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[109 House Committee Prints]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:29862.wais]
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2006
=======================================================================
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2006
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
_____
U.S. GOVERNMENT PRINTING OFFICE
29-862 PDF WASHINGTON : 2006
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
CHUCK HAGEL, Nebraska, Chairman JAMES A. LEACH, Iowa, Co-Chairman
SAM BROWNBACK, Kansas DAVID DREIER, California
GORDON H. SMITH, Oregon FRANK R. WOLF, Virginia
JIM DeMINT, South Carolina JOSEPH R. PITTS, Pennsylvania
MEL MARTINEZ, Florida ROBERT B. ADERHOLT, Alabama
MAX BAUCUS, Montana SANDER LEVIN, Michigan
CARL LEVIN, Michigan MARCY KAPTUR, Ohio
DIANNE FEINSTEIN, California SHERROD BROWN, Ohio
BYRON DORGAN, North Dakota MICHAEL M. HONDA, California
EXECUTIVE BRANCH COMMISSIONERS
STEVEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
FRANKLIN L. LAVIN, Department of Commerce
CHRISTOPHER R. HILL, Department of State
BARRY F. LOWENKRON, Department of State
David Dorman, Staff Director (Chairman)
John Foarde, Staff Director (Co-Chairman)
C O N T E N T S
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Page
I. Commission Finding............................................ 1
II. Executive Summary............................................ 2
III. List of Recommendations..................................... 16
IV. Introduction................................................. 22
V. Monitoring Compliance With Human Rights....................... 25
(a) Special Focus for 2006: Freedom of Expression............ 25
(b) Rights of Criminal Suspects and Defendants............... 42
(c) Protection of Internationally Recognized Labor Rights.... 60
(d) Freedom of Religion...................................... 75
(e) Status of Women.......................................... 97
(f) The Environment.......................................... 100
(g) Public Health............................................ 104
(h) Population Planning...................................... 109
(i) Freedom of Residence and Travel.......................... 113
VI. Political Prisoner Database.................................. 118
VII. Development of the Rule of Law and Institutions of
Democratic Governance.......................................... 119
(a) Development of Civil Society............................. 119
(b) Institutions of Democratic Governance and Legislative
Reform..................................................... 124
(c) Access to Justice........................................ 131
(d) Commercial Rule of Law and the Impact of the WTO......... 142
VIII. Tibet...................................................... 160
IX. North Korean Refugees in China............................... 172
X. Developments in Hong Kong..................................... 175
XI. Appendix: Commission Activities in 2005 and 2006............. 178
XII. Endnotes.................................................... 180
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
2006 ANNUAL REPORT
I. Commission Finding
The Commission is deeply concerned that some Chinese
government policies designed to address growing social unrest
and bolster Communist Party authority are resulting in a period
of declining human rights for China's citizens. The Commission
identified limited improvements in the Chinese government's
human rights practices in 2004, but backward-stepping
government decisions in 2005 and 2006 are leading the
Commission to reevaluate the Chinese leadership's commitment to
additional human rights improvements in the near term. In its
2005 Annual Report, the Commission highlighted increased
government restrictions on Chinese citizens who worship in
state-controlled venues or write for state-controlled
publications. These restrictions remain in place, and in some
cases, the government has strengthened their enforcement.
The Communist Party's concern with growing social unrest
dominated its policy statements over the past year, and served
as
justification for increased government interference with, and
intimidation and harassment of, individuals and groups that the
Party believes may threaten its authority or legitimacy. The
government targeted social, political, and legal activists, as
well as
religious believers who violated strict government limitations
on religious practice. In the past year, government efforts to
maintain social stability have led to a greater reliance on the
coercive powers of the police to subdue potential threats to
Party rule. Chinese officials have also taken additional steps
in the past year to curb the growth of China's emerging civil
society. New government and Party controls have been imposed on
courts and judges that may further weaken the independence of
the Chinese judiciary. Moreover, the Chinese government
continues to use its regulatory control over the Internet and
print publishing to censor political and religious expression,
to imprison journalists and writers, and to prevent Chinese
citizens from having access to independent news sources.
The Commission notes the progress that the Chinese
government has made over the past 25 years in beginning to
build a political system based on the rule of law and on
respect for basic human rights. The twin demands of social
stability and continued economic progress have spurred legal
reforms that may one day be the leading edge of constraints on
the arbitrary exercise of state power. The Chinese government
continues to pursue judicial and criminal reforms, often in
cooperation with international partners, that could lead to
further protection of citizen rights. The government's
achievements in the economic realm are impressive, none more so
than its success in lifting more than 400 million Chinese
citizens out of extreme poverty since the early 1980s. Economic
reforms have also contributed to a growing middle class,
expected to total 170 million people by 2010. China's WTO
accession commitments have resulted in gradual improvements in
transparency at all levels of government. Elections at the
village level are now commonplace in China, and limited
experiments with popular participation continue at other levels
of government. Average Chinese citizens are free to discuss
sensitive issues in a way that would have been unimaginable two
decades ago.
While all of these changes are important, the gap between
forward-looking economic freedoms and a backward-looking
political system remains significant. There are leaders now
within China who comprehend the need for change, and who
understand that inflexibility, secretiveness, and a lack of
democratic oversight pose the greatest challenges to continued
development. These leaders will need to gather considerable
reformist courage to overcome obstacles and push for continued
change. Such changes will not occur overnight, but rather in
ways that Chinese society, culture, infrastructure, and
institutions must be prepared for and willing to accept.
II. Executive Summary
China has an authoritarian political system controlled by
the Communist Party. Party committees formulate all major state
policies before the government implements them. The Party
dominates Chinese legislative bodies such as the National
People's Congress (NPC), and fills all important government
positions in executive and judicial institutions through an
internal selection process. Party control extends throughout
institutions of local government. Chinese authorities have
ruled out building representative democratic institutions to
address citizen complaints about corruption and abuse of power,
and instead are recentralizing government posts into the hands
of individual Party secretaries. The absence of popular and
legal constraints to check the behavior of Party officials has
led to widespread corruption and citizen anger. The Party has
strengthened the role of internal responsibility systems to
moderate official behavior, but these systems have provided
some local Party officials with new incentives to conceal
information and abuse their power. In 2005, the central
leadership called for strengthened controls over society to
address mounting social unrest and to suppress dissent.
Since the 1980s, officials have introduced limited reforms
to allow citizens to vote in village elections. While these
reforms are a step forward in permitting citizen participation
at the local level, the reforms are designed to strengthen
Party governance and do not represent Party acceptance of
representative government. Since the late 1990s, the Party has
experimented with reforms that allow a limited degree of
citizen participation in the selection of local Party cadres,
but the Party retains tight control over the candidate pool and
the selection process. Since 2000, Chinese authorities have
experimented with the use of legislative hearings to solicit
public views on pending legislation, and the NPC held its first
controlled public hearing in September 2005. In March 2005, the
central government announced new transparency requirements for
local governments. The requirements mandate county and
provincial governments to increase transparency and popular
participation in government decisionmaking. Implementation of
these ``open government'' requirements varies, but some local
governments have taken steps toward greater transparency.
The Chinese government continues to engage the
international community on human rights and rule of law issues
to varying degrees. The government announced in 2006 that it
plans to amend its Criminal, Civil, and Administrative
Procedure Laws and reform the judiciary to prepare for
ratification of the International Covenant on Civil and
Political Rights. The government hosted visits by the UN
Special Rapporteur on Torture in late 2005 and the UN High
Commissioner for Refugees in March 2006. Both UN officials
commended the Chinese government for its open attitude toward
increased dialogue, but Manfred Nowak, UN Special Rapporteur on
Torture, also reported that his work was monitored and
obstructed by Chinese authorities. In May 2006, China was
elected to serve for a three-year term on the newly established
UN Human Rights Council. The government's application for
membership in the Council noted that it has acceded to 22
international human rights accords. As a member of the new
Council, the government has pledged to fulfill its obligations
under the terms of these accords, and is obligated under the
rules of the Council to submit to peer review of its human
rights record.
Chinese scholars and officials continued to engage foreign
governments and legal experts on a range of criminal justice
issues during late 2005 and 2006. Chinese law enforcement
agencies expressed a growing interest in cooperating with other
countries to combat transnational crime, and in expanding
cooperation with U.S. law enforcement agencies on money
laundering, fighting terrorism, and other issues. Numerous
international conferences and legal exchanges with Western
NGOs, judges, and legal experts took place, including programs
on public accountability, pretrial discovery, evidence
exclusion, criminal trials and procedure, bail, capital
punishment, and prison reform. In 2006, the U.S. and Chinese
governments continued to conduct a series of bilateral
cooperative activities on wage and hour laws, occupational
safety and health, mine safety and health, and pension program
oversight.
Government censorship, while not total, is pervasive and
highly effective, and denies Chinese citizens the freedoms of
speech and of the press guaranteed to them in the Chinese
Constitution. The government has imprisoned journalists who
provide news to foreigners, such as Zhao Yan, Shi Tao, and
Ching Cheong. Editors of publications that criticize government
policies, such as Yang Bin of the Beijing News and Li Datong of
the China Youth Daily, have been dismissed. The government
blocks the Web sites and radio and television broadcasts of
foreign news organizations, such as those of the British
Broadcasting Corporation, Radio Free Asia, and the Voice of
America. In 2005, the government banned dozens of newspapers
and confiscated almost one million ``illegal'' political
publications. Beginning in May 2005, the government blocked the
Commission's Web site from being viewed in China.
Modern telecommunications technologies such as the
Internet, cell phones, and satellite broadcasts, allow Chinese
citizens access to more information sources, both state-
controlled and non-state-controlled. But government
restrictions on news and information media, including on these
new information sources, do not conform to international human
rights standards for freedom of expression. The Chinese
government imposes a strict licensing scheme on news and
information media that includes oversight by government
agencies with discretion to grant, deny, and rescind licenses
based on political and economic criteria. The Chinese
government's content-based restrictions include controls on
political opinion and religious literature that are not
prescribed by law, and whose primary purpose is to protect the
ideological and political dominance of the Communist Party.
The government's restrictions on religious literature do
not conform to international human rights standards. Only
government-
licensed printing enterprises may print religious materials,
and then only with approval from both the provincial-level
religious affairs bureau and the press and publication
administration. In addition to confiscating religious
publications, the Chinese government also has fined, detained,
and imprisoned citizens for publishing, printing, and
distributing religious literature without government
permission. Cai Zhuohua, a house church pastor in Beijing, and
two of his family members were imprisoned in 2005 for printing
and giving away Bibles and other Christian literature. In Anhui
province, house church pastor Wang Zaiqing was arrested in May
2006 on the same charges.
The Communist Party's concern with growing social
instability dominated its policy statements over the past year,
and served as justification for increased government vigilance
over activities and groups that potentially threaten Party
legitimacy. Top Party, court, and law enforcement officials
repeatedly linked the government's policy of pursuing periodic
anti-crime campaigns, referred to as ``Strike Hard'' campaigns,
to the goal of maintaining social stability. Government efforts
to maintain social stability have led to a greater reliance on
the coercive powers of the police to subdue
potential threats to Party rule.
Abuse of power by local police forces remains a serious
problem. The Supreme People's Procuratorate (SPP) has
acknowledged the existence of continuing and widespread abuses
in law enforcement, including illegal extended detentions and
torture. New SPP regulations that detail the criteria for
prosecuting official abuses of power went into effect in July
2006, and establish standards for the prosecution of police who
abuse their power to hold individuals in custody beyond legal
limits, coerce confessions under torture, acquire evidence
through the use of force, maltreat prisoners, or retaliate
against those who petition the government or file complaints
against them.
The Chinese government continues to apply vague criminal
and administrative provisions to justify detentions based on an
individual's political opinions or membership in religious,
ethnic, or social groups. These provisions allow for the
targeting and punishment of activists for crimes that
``endanger state security'' or ``disturb public order'' under
the Criminal Law. The UN Special Rapporteur on Torture
concluded in his March 2006 report to the UN Commission on
Human Rights that the vague definition of these crimes leaves
their application open to abuse, particularly of the rights to
freedom of religion, speech, and assembly.
Chinese authorities use reeducation through labor and other
forms of administrative detention to circumvent the criminal
process and imprison offenders for ``minor crimes,'' without
judicial review and the procedural protections guaranteed by
the Chinese Constitution and Criminal Procedure Law. The UN
Working Group on Arbitrary Detention concluded in 2004 that the
Chinese government has made no significant progress in
reforming the administrative detention system to ensure
judicial review and to conform to international law. Although
proposed reforms would provide some added procedural
protections, they would still not provide an accused individual
the opportunity to dispute the alleged misconduct and contest
law enforcement accusations of guilt before an independent
adjudicatory body.
Although illegal in China, torture and abuse by law
enforcement officers remain widespread. Factors that perpetuate
or exacerbate the problem of torture include a lack of
procedural safeguards to protect criminal suspects and
defendants, over reliance on confessions of guilt, the absence
of lawyers at interrogations, inadequate complaint mechanisms,
the lack of an independent judiciary, and the abuse of
administrative detention measures. The Chinese government
emphasizes its ongoing efforts to pass new laws and
administrative regulations preventing, punishing, and
compensating cases of torture by law enforcement officers. Both
the SPP and the Ministry of Public Security have announced
their support for audio and video taping of interrogations of
criminal suspects accused of a limited number of crimes. The
Chinese government recognizes that problems of misconduct,
including physical abuse, exist within Chinese prisons and
reeducation through labor centers, and it is making progress
toward increasing accountability for such behavior.
In 2006, Chinese authorities increased restrictions on
lawyers who work on politically sensitive cases or cases that
draw attention from the foreign news media. Law enforcement
officials also intimidated lawyers defending these cases by
charging them, or threatening to charge them, with various
crimes. Since mid-2005, local authorities have also used
harassment and violent measures against those who participated
in criminal or civil rights defense in sensitive matters.
Beijing lawyer Zhu Jiuhu was detained during the past year.
Self-trained legal advocate Chen Guangcheng was sentenced on
August 24, 2006, to four years and three months' imprisonment,
and Shanghai lawyer Zheng Enchong is currently under house
arrest after being released from prison on June 5, 2006.
Beijing lawyer Gao Zhisheng has been held incommunicado since
authorities reportedly abducted him on August 15 from his
sister's home in Shandong province. Guo Feixiong, who served as
a legal advisor to Gao's law firm, was arrested and later
released in late 2005, and is currently in detention after
being taken from his home on September 14.
Chinese criminal law includes 68 capital offenses, over
half of which are non-violent crimes. The Chinese government
reportedly has adopted an ``execute fewer, execute cautiously''
policy. In 2006, the Chinese judiciary made reform of the death
penalty review process a top priority and introduced new
appellate court procedures for hearing death penalty cases. The
Supreme People's Court announced that it would consolidate and
reclaim the death penalty review power from provincial-level
high courts. These reforms are designed to limit the use of
death sentences, consolidate criteria used by courts to
administer those sentences, and ensure constitutionally
protected human rights.
The Vice Minister of Health acknowledged that the majority
of human organs used in transplants in China originate from
executed prisoners. Under the World Health Organization's
guiding principles on human organ transplantation, organ
donations by prisoners, even when reportedly voluntary, may
nonetheless violate international standards if the organs are
obtained through undue influence and pressure. New Ministry of
Health regulations include medical standards for organ
transplants, but do not provide guidance on what type of
consent is required for taking organs from
executed prisoners.
The Chinese government does not respect the internationally
recognized right of workers to organize their own unions. The
All-China Federation of Trade Unions (ACFTU), a Party-led mass
organization, is the only legal labor federation in China. It
controls local union branches and aligns worker and union
activity with government and Party policy. The ACFTU began a
campaign in March 2006 to establish union branches in foreign
enterprises doing business in China. Chinese workers who
attempt to form independent workers' organizations, or whom the
government suspects of being leaders of such organizations,
risk imprisonment. The government secretly tried labor rights
activist Li Wangyang and sentenced him to 10 years'
imprisonment in September 2001 for staging a peaceful hunger
strike. Li had previously served most of a 13-year sentence for
organizing an independent union. In May 2003, the government
sentenced labor activist Yao Fuxin to a seven-year prison term
for peacefully rallying workers to demand wage and pension
arrearages from a bankrupt state-owned enterprise. Both Li and
Yao remain in prison.
Weak protection of worker rights has contributed to an
increase in the number of labor disputes and protests.
According to ACFTU figures, the number of labor disputes rose
sharply in 2005. The ACFTU reports that there were 300,000
labor-related lawsuits filed, a 20.5 percent increase over 2004
and a 950 percent increase compared to 1995. Strikes, marches,
demonstrations, and collective petitions increased from fewer
than 1,500 in 1994 to about 11,000 in 2003, while the number of
workers involved increased from nearly 53,000 in 1994 to an
estimated 515,000 in 2003. Poor workplace health and safety
conditions and continuing wage and pension arrearages were the
most prominent issues resulting in labor disputes during the
past year. Chinese industry continues to have a high accident
rate, with death rates in the mining and construction
industries leading other sectors. According to official
statistics, 110,027 people were killed in 677,379 workplace
accidents through December 2005, and more than 10,000 workers
died in the mining and construction sectors during 2005.
Forced labor is an integral part of the Chinese
administrative
detention system. Authorities sentence some prisoners without
judicial review to reeducation through labor (laojiao) centers,
where they are forced to work long hours without pay to fulfill
heavy production quotas, and sometimes are tortured for
refusing to work. China's Labor Law prohibits forced labor
practices in the workplace, and authorities have arrested
employers who trap workers at forced labor sites. In 2002, the
Chinese government began to cooperate with the International
Labor Organization on broad issues of concern regarding forced
labor, including on potential reforms to the reeducation
through labor system, and on improving institutional capacity
to combat human trafficking for labor exploitation.
The use of child labor in some regions of China is
reportedly on the rise. Labor shortages in the economically
developed southern and eastern coastal provinces are causing
employers to turn to child laborers, according to NGO reports.
This development coincides with intensified efforts by the
Ministry of Justice and the Ministry of Labor and Social
Security to fight the illegal employment of children,
suggesting that the government is more concerned about such
abuses than before. Government authorities
consider statistics on child labor that have not been
officially
approved for release to be state secrets, and this policy
thwarts
efforts to understand the extent and causes of the problem.
Chinese government restrictions on the practice of religion
violate international human rights standards. Freedom of
religious
belief is protected by the Chinese Constitution and laws, but
government implementation of Party policy on religion, and
restrictions elsewhere in domestic law, violate these
guarantees. The
Chinese government tolerates some aspects of religious belief
and practice, but only under a strict regulatory framework that
represses religious and spiritual activities falling outside
the scope of Party-sanctioned practice. Religious organizations
are required to register with the government and submit to the
leadership of ``patriotic religious associations'' created by
the Party to lead each of China's five recognized religions:
Buddhism, Catholicism, Daoism, Islam, and Protestantism. Those
who choose not to register with the government, or groups that
the government refuses to register, operate outside the zone of
protected religious activity and risk harassment, detention,
imprisonment, and other abuses. Registered communities also
risk such abuse if they engage in religious activities that
authorities deem a threat to Party authority or legitimacy.
The 2004 Regulation on Religious Affairs (RRA) has not
afforded greater religious freedom to Chinese citizens, despite
government claims that it represented a ``paradigm shift'' by
limiting state control over religion. Like earlier local and
national regulations on religion, the RRA emphasizes government
control and restrictions on religion. The RRA articulates
general protection only for freedom of ``religious belief,''
but not for expressions of religious belief. Like earlier
regulations, it also protects only those religious activities
deemed ``normal,'' without defining this term. Although the RRA
includes provisions that permit registered religious
organizations to select leaders, publish materials, and engage
in other affairs, many provisions are conditioned on government
approval and oversight of religious activities.
Chinese government enforcement of Party policy on religion
creates a repressive environment for the practice of Tibetan
Buddhism. Party policies toward the Dalai Lama and Panchen
Lama, the second-ranking Tibetan spiritual leader, seek to
control the fundamental religious convictions of Tibetan
Buddhists. Government actions to implement Party policies
caused further deterioration in some aspects of religious
freedom for Tibetan Buddhists in the past year. Officials began
a patriotic education campaign in Lhasa-area monasteries and
nunneries in April 2005. Expressions of resentment by Tibetan
monks and nuns against the continuing campaign resulted in
detentions, expulsions, and an apparent suicide. Chinese
officials continue to hold Gedun Choekyi Nyima, the boy the
Dalai Lama recognized as the Panchen Lama in May 1995, in
incommunicado custody along with his parents.
Tibetan Buddhist monks and nuns constituted 21 of the 24
known political detentions of Tibetans by Chinese authorities
in 2005, compared to 8 of the 15 such known detentions in 2004,
based on data available in the Commission's Political Prisoner
Database. None of the known detentions of monks and nuns in
2005 took place in Sichuan province, a shift from the previous
three years, but known detentions of monks and nuns in Qinghai
and Gansu provinces increased during the same period. Based on
data available for 50 currently imprisoned Tibetan monks and
nuns, their average sentence length is approximately nine years
and six months. In one positive development, the government
permitted the resumption of a centuries-old Tibetan Buddhist
tradition of advanced study that leads to the highest level of
scholarly attainment in the Gelug tradition.
Government repression of unregistered Catholic clerics
increased in the past year. Based on NGO reports, officials in
Hebei and Zhejiang provinces detained a total of 38
unregistered clerics in 13 incidents in the last year, while in
the previous year officials detained 11 clerics in 5 incidents.
The government targets Catholic bishops who lead large
unregistered communities for the most severe punishment. Bishop
Jia Zhiguo, the unregistered bishop of Zhengding diocese in
Hebei province, has spent most of the past year in detention.
Bishop Jia has been detained at least eight times since 2004.
Government harassment and abuse of registered Catholic
clerics also increased in the past year. In November and
December 2005, three incidents were reported in which officials
or unidentified
assailants beat registered Catholic nuns or priests after they
demanded the return of church property. In April and May 2006,
officials began a campaign to increase control over registered
Catholic bishops. Officials detained, sequestered, threatened,
or exerted pressure on dozens of registered Catholic clerics to
coerce them into participating in the consecration of bishops
selected by the state-controlled Catholic Patriotic Association
but not approved by the Holy See. Government authorities also
restricted contact between registered clergy and the Holy See,
denying bishops permission to travel to Rome in September 2005
to participate in a meeting of Catholic bishops. Authorities
continued to permit some registered priests and nuns to study
abroad.
The Chinese government also strictly controls the practice
of Islam. Muslims face the same rigorous registration
requirements as other religious groups. The state-controlled
Islamic Association of China aligns Islamic practice to Party
goals by directing the training and confirmation of religious
leaders, the publication of religious materials, the content of
sermons, and the organization of Hajj pilgrimages, as well as
by indoctrinating religious leaders and adherents in Party
ideology and government policy.
The government severely represses Islamic practice in the
Xinjiang Uighur Autonomous Region (XUAR), especially among the
Uighur ethnic group. Local regulations in the XUAR impose
restrictions on religion that are not found in other parts of
China. The government's religious repression in the XUAR is
part of a broader policy aimed at diluting expressions of
Uighur identity and tightening government control in the
region. The government continues to imprison Uighurs who engage
in peaceful expressions of dissent and other non-violent
activities. Writer Nurmemet Yasin and historian Tohti Tunyaz
remain in prison for writing a short story and conducting
research on the XUAR.
The Chinese government continues to repress Chinese
Protestants who worship in house churches. From May 2005 to May
2006, the government detained nearly 2,000 house church
members, according to one U.S. NGO. Almost 50 percent of the
reported detentions of Protestant house church members and
leaders took place in Henan province, where the house church
movement is particularly strong. In June 2006, Pastor Zhang
Rongliang, the leader of one of China's largest house churches,
was sentenced to seven years and six months in prison for
``illegally crossing the national border'' and ``fraudulently
obtaining a passport.'' Authorities have detained or imprisoned
Pastor Zhang multiple times since 1976. Pastor Gong Shengliang
is serving a life sentence in declining health, and was beaten
in prison during the past year.
The Chinese government continues to maintain strict control
over the registered Protestant church. The RRA requires that
all Protestants worship at registered churches, regardless of
their differences in doctrine and liturgy. The state-controlled
Three-Self Patriotic Movement, which leads the registered
Protestant church in China, continues to impose a Party-defined
theology, called ``theological construction,'' on registered
seminaries that is intended to ``weaken those aspects within
Christian faith that do not conform with the socialist
society.'' In the past year, authorities detained a registered
Protestant pastor in Henan province for conducting a Bible
study meeting at a registered Protestant church outside his
designated geographic area.
The Chinese government continues to disrupt the
relationships that many house churches maintain with co-
religionists outside China, including raiding meetings between
house church leaders and overseas Protestants, and preventing
foreign travel by house church leaders. The Chinese government
also continues to restrict and monitor the ties between the
registered Protestant Church and foreign denominations.
Government persecution of the Falun Gong spiritual movement
continued during the past year. Authorities use both criminal
and administrative punishments to punish Falun Gong
practitioners for peacefully exercising their spiritual
beliefs. The state-controlled press has reported on at least
149 cases of Falun Gong practitioners currently in prison, but
Falun Gong sources estimate that up to 100,000 practitioners
have been detained since 1999. Manfred Nowak, UN Special
Rapporteur on Torture, reported after his November 2005 visit
to China that Falun Gong practitioners account for two-thirds
of victims of alleged torture by Chinese law enforcement
officers. Tsinghua University student Wang Xin was sentenced to
nine years' imprisonment in 2001 for downloading Falun Gong
materials from the Internet and printing leaflets.
Despite strict government controls on the practice of
religion, Chinese authorities accommodate the social programs
of Buddhist, Catholic, Daoist, Muslim, and Protestant
communities when these programs support Party goals. For
example, domestic Muslim civil society organizations carry out
social welfare projects, and international Muslim charities
have supported projects in Gansu and Shaanxi provinces, as well
as in the XUAR. The Amity Foundation, affiliated with the
registered Protestant Church, sponsors projects in social
services and development aid, including education, health care,
and care for the elderly.
The Chinese Constitution and national laws provide that men
and women should enjoy equal rights and list protections for
the economic and social rights of women, but vague language and
inadequate implementation hinder the effectiveness of these
legal protections. Some provincial and municipal governments
have passed regulations to strengthen the implementation of
national laws. A 2005 amendment to the Law on the Protection of
Rights and Interests of Women prohibits sexual harassment and
domestic violence, promotes a greater voice for women in the
government, and charges several government organizations with
responsibility for preventing human trafficking and
rehabilitating victims.
Civil society groups in China advocate on behalf of women's
rights within the confines of government and Party policy. The
All-China Women's Federation, a Party-led mass organization,
works with the Chinese government to support women's rights,
implement programs for disadvantaged women, and provide a
limited measure of legal counseling and training for women.
Women,
however, have limited earning power compared to men, despite
government policies that guarantee women non-discrimination in
employment and occupation.
The Chinese government strictly controls the reproductive
lives of Chinese women. Since the early 1980s, the government's
population planning policy has limited most women in urban
areas to bearing one child, while permitting many women in
rural China to bear a second child if their first child is
female. Officials have coerced compliance with the policy
through a system marked by pervasive propaganda, mandatory
monitoring of women's reproductive cycles, mandatory
contraception, mandatory birth permits, coercive fines for
failure to comply, and, in some cases, forced sterilization and
abortion. The Chinese government's population planning laws and
regulations contravene international human rights standards by
limiting the number of children that women may bear, by
coercing compliance with population targets through heavy
fines, and by discriminating against ``out-of-plan'' children.
Local officials have violated Chinese law by punishing
citizens, such as legal advocate Chen Guangcheng, who have
drawn attention to population planning abuses by government
officials.
Human trafficking remains pervasive in China despite
efforts by government agencies to combat trafficking, a
framework of domestic laws to address the problem, and ongoing
cooperation with international anti-trafficking programs. The
government's population planning policy has created a severe
imbalance in the male-female birth ratio, and this imbalance
exacerbates trafficking of women and girls for sale as brides.
Between 10,000 and 20,000 men, women, and children are victims
of trafficking within China each year, and NGOs estimate that
90 percent of those victims are women and children trafficked
for sexual exploitation. Authorities are working with the
International Labor Organization to build anti-trafficking
capacity and raise domestic awareness of the problem.
The Chinese government acknowledges the severity of China's
environmental problems and has taken steps to curb pollution
and environmental degradation. Since 2001, it has formulated or
revised environmental protection laws, administrative
regulations, and standards, and has worked to strengthen
enforcement of anti-pollution rules. The Chinese government has
also welcomed international technical assistance to combat
environmental degradation, and has increased cooperation with
the U.S. government on environmental protection over the past
year.
Despite these initiatives, local enforcement of
environmental laws and regulations is poor, and under funding
of environmental protection activities continues to hinder
official efforts to prevent environmental degradation. A lack
of transparency hampers the Chinese government's ability to
respond to civil emergencies, including environmental
disasters. Government efforts to impose greater control over
environmental civil society groups during the past year have
stifled citizen activism.
The central government strengthened its commitment during
the past year to address the severe shortage of affordable
health care in rural China. Since the collapse of the rural
public health infrastructure in the 1980s, the disparity in the
availability and affordability of health care between urban and
rural areas has increased. As a result, the medical needs of
China's rural poor, including the diagnosis and treatment of
infectious diseases, often go unaddressed. The government,
however, has pledged to accelerate the establishment of rural
health cooperatives and invest more than 20 billion yuan
(US$2.5 billion) over the next five years to modernize
hospitals, clinics, and medical equipment at the village,
township, and county levels.
The central government continued to take steps over the
past year to prevent and control the spread of HIV/AIDS.
Although the estimated number of HIV/AIDS cases nationwide has
decreased, health officials still consider the disease to be a
grave problem. Government efforts to prevent and control the
transmission of HIV/AIDS continue to face serious challenges,
as local implementation of national policy lags far behind
central government attention to the problem. Victims of HIV/
AIDS and other infectious diseases also continue to face
harassment and discrimination, despite legal protections.
Chinese public health officials have shown increased
commitment and responsiveness in their efforts to prevent and
control the spread of avian flu, and have taken steps to
improve government transparency following the mishandling of
the SARS epidemic in 2003. International health experts,
however, still consider China to be among the most likely
incubators of a potential human influenza pandemic. Central
government cooperation in sharing information and virus samples
with international health organizations has been inconsistent,
and international health organizations and central government
officials continue to express concern about the speed and
accuracy of local reporting on outbreaks among both humans and
poultry.
Since its implementation in the 1950s, the Chinese
household registration (hukou) system has limited the rights of
ordinary Chinese citizens to choose their permanent place of
residence, receive equal access to social services, and enjoy
equal protection of the law. Economic changes and relaxation of
some hukou controls have eroded previously strict limits on
citizens' freedom of movement, but these changes have also
exported a discriminatory urban-rural social division to
China's cities. Migrants who lack a local hukou for their new
city of residence face legal discrimination in employment,
education, and social services.
Chinese leaders called for reforms to the hukou system
during the past year. Central government interest in reform
stems not only from concern over migrant rights and economic
inequality, but also from concern over growing social
instability and a desire for stronger government control over
China's internal migrant population. New national goals for
hukou reform, like similar proposals implemented periodically
since the late 1990s, call for streamlined hukou categories,
elimination of discriminatory regulations on employment, and
improved migrant access to social services. Local governments
and urban residents have resisted reforms to the hukou system
because of the potential budgetary impact, fears of increasing
population pressure in cities, and discriminatory attitudes
toward migrants. Local opposition has limited the ability of
central government authorities to achieve national reform
goals.
The number of civil society organizations in China is
growing, with many organizations undertaking projects such as
poverty alleviation, faith-based social work, and legal efforts
to protect citizen rights. These organizations include national
mass organizations that the Party created and funds, smaller
citizen associations
registered under national regulations, and loose networks of
unregistered grassroots organizations. In February 2006, the
China Foundation for Poverty Alleviation selected six groups as
the first civil society organizations to receive Chinese
government funding to run experimental anti-poverty programs,
including the China office of a U.S.-based rural development
organization.
Central authorities seek to maintain control over civil
society groups, halt the emergence of independent
organizations, and prevent what they have called the
``Westernization'' of China. While recognizing the utility of
civil society organizations to address social problems, Chinese
authorities use strict regulations to limit the growth of an
independent civil society. Some Chinese citizens who attempt to
organize groups outside of state control have been imprisoned.
These include individuals who have attempted to establish
independent labor unions and political associations, such as
China Free Trade Union Preparatory Committee member Hu Shigen,
and China Democracy Party member Qin Yongmin; or young
intellectuals who organize informal discussion groups, such as
New Youth Study Group members Jin Haike, Xu Wei, Yang Zili, and
Zhang Honghai.
Chinese officials have taken additional steps to curtail
civil society organizations in the past year, but authorities
are undecided on how to proceed. Since early 2005, Ministry of
Civil Affairs (MOCA) officials have been researching a new
administrative system to monitor and control civil society
organizations. Many details of the new system are undetermined,
such as who will conduct the required evaluations of civil
society groups, how the evaluation results will be used, and
who will fund the evaluations. At the same time, Chinese
authorities have supported limited reforms to the status of
civil society organizations. MOCA officials are advocating
changes to the tax code to encourage private donations to civil
society organizations. Central Party officials have expressed
support for the creation of rural farmer cooperatives in annual
policy guidelines issued each year since 2004.
International human rights standards require effective
remedies for official violations of citizen rights. Despite
these guarantees, Chinese citizens face formidable obstacles in
seeking remedies to government actions that violate their legal
rights and constitutionally protected freedoms. External
government and Party controls continue to limit the
independence of the Chinese judiciary. Party officials control
the selection of top judicial personnel in all courts,
including the Supreme People's Court, China's highest judicial
authority. Since 2005, the government has restricted the
efforts of private lawyers and human rights defenders who
challenge government abuses. The All China Lawyers Association
issued a guiding opinion that restricts the ability of lawyers
to handle cases involving large groups of people. Local Chinese
authorities have imposed additional restrictions on lawyer
advocacy efforts.
The constitutional and administrative mechanisms in Chinese
law that allow citizens to challenge government actions do not
provide effective legal remedies, and Chinese citizens seldom
use them. Chinese citizens rarely submit proposals to the
National People's Congress for constitutional and legal review
because the review process lacks transparency and citizens
cannot compel review. Administrative court challenges to
government actions have not increased since 1998. Provincial
authorities report an overall decline between 2003 and 2005 in
applications for administrative reconsideration, and the total
numbers of such applications in major Chinese municipalities is
a few hundred per year.
Chinese law also permits citizens to petition government
officials directly to redress their grievances through the
``letters and visits'' (xinfang) system. Official news media
report that Chinese citizens presented 12.7 million petitions
to county-level and higher xinfang bureaus during 2005, in
contrast to the 8 million total court cases handled by the
Chinese judiciary during the same period. Local officials are
disciplined more severely for high incidences of petitioning.
Absent alternative political or legal channels to check the
power of local officials and obtain redress, this punishment
structure provides an incentive for Chinese citizens to take
their grievances to the streets in order to force local
officials to act. But this punishment structure also gives
local authorities an interest in suppressing mass petitions and
preventing petitioners from approaching higher authorities. A
December 2005 study of the xinfang system by a U.S. NGO found
that some local authorities have resorted to ``rampant violence
and intimidation'' to abduct or detain petitioners in Beijing
and force them to return home.
The Supreme People's Court 2004-2008 court reform program
imposes stronger external and internal controls that may
further weaken the independence of courts and judges. The court
reform program, however, also sets some positive long-term
goals for judicial reform in the areas of court financing,
adjudication, retrial procedures, and juvenile justice. Party
efforts to address growing
social unrest have resulted in new government programs to
strengthen institutions that assist citizens with legal claims
and disputes. Official Chinese statistics show that the number
of government legal aid centers rose from 2,774 in 2003 to
3,081 in 2005. The total number of cases handled by these
centers rose from about 166,000 in 2003 to an estimated 250,000
in 2005, or roughly 3 percent of all cases handled by the
Chinese courts in 2005.
In 2005, the Dalai Lama increased his efforts to explain
that he does not seek Tibetan independence from China. The
Dalai Lama's envoys traveled to China for a fifth round of
dialogue with Chinese officials in February 2006, relaying a
request to Chinese leaders to permit the Dalai Lama to visit
China as a religious pilgrim. Tibetans could benefit from full
implementation of the Regional Ethnic Autonomy Law, but the
lack of local self-government in Tibetan autonomous areas of
China creates mistrust in the dialogue and demonstrates that
authorities are not implementing this law.
The Chinese government favors accelerating implementation
of development initiatives, especially the Great Western
Development program, that already erode Tibetan culture and
heritage. The Qinghai-Tibet railway began passenger service in
July 2006, increasing Tibetan concerns about the railway's
potential effects on Tibetan culture and the environment.
Education levels among Tibetans are much lower than those of
ethnic Han Chinese, undermining the ability of Tibetans to
compete for employment and other economic advantages in an
emerging market economy that attracts an increasing number of
Han.
The Chinese government strictly limits the rights of
Tibetans to exercise the constitutionally guaranteed freedoms
of religion, speech, and assembly. Communist Party political
campaigns promote atheism and strengthen government efforts to
discourage
Tibetan aspirations to foster their unique culture and
religion. Chinese authorities have punished Tibetans, such as
Jigme Gyatso, a former monk imprisoned in 1996 who is serving a
17-year sentence and Choeying Khedrub, a monk serving a life
sentence since 2000, for peaceful expressions and non-violent
actions that officials believe could undermine Party rule. The
Commission's Political Prisoner Database listed 103 known cases
of current Tibetan political detention or imprisonment as of
August 2006, a figure that is likely to be lower than the
actual number of Tibetan political prisoners. Based on sentence
information available for 70 of the current prisoners, the
average sentence is approximately 10 years and 11 months.
The Chinese government forcibly repatriates North Korean
refugees facing starvation and political and religious
persecution in their homeland, contravening its obligations
under the 1951 Convention relating to the Status of Refugees
and its 1967 Protocol. Chinese authorities detained and
returned to the Democratic People's Republic of Korea (DPRK)
thousands of North Koreans in 2005. The government classifies
all North Koreans who enter China without documents as illegal
economic migrants and claims it must return them to the DPRK,
even though North Korean defectors meet the definition of
refugees under international law. Repatriated North Koreans
face long prison sentences, torture, and execution.
Without legal status, North Korean refugees in China are
vulnerable to abuse and exploitation. There are an estimated
20,000 to 50,000 North Koreans currently hiding in northeastern
China, and some NGOs estimate that the number of refugees is
much higher. The government refuses the UN High Commissioner
for Refugees (UNHCR) access to North Korean refugees, and fines
and imprisons humanitarian workers who assist North Koreans in
China.
Officials in Beijing met with UNHCR Antonio Guterres in March
2006 during the first UNHCR visit to China since 1997. In July
2006, the Chinese government for the first time allowed three
North Korean refugees to travel directly from the U.S.
Consulate in Shenyang, Liaoning province, to the United States
to seek asylum.
The people of Hong Kong continue to enjoy the benefits of
an independent judiciary and an open society in which the
freedoms of religion, speech, and assembly are respected. The
Commission strongly supports the provisions of the Basic Law
that provide for the election of the chief executive and the
entire Legislative Council through universal suffrage, and
highlights the importance of the central government's
obligation to give Hong Kong the ``high degree of autonomy''
promised in the Basic Law. The Commission notes, however, that
during the past year, no steps were taken that would move Hong
Kong closer to the ``ultimate aim'' of universal suffrage as
specified in the Basic Law.
The Hong Kong Special Administrative Region's
Constitutional Development Task Force issued its fifth report
in October 2005, which proposed modest measures to expand
citizen participation in selecting the chief executive in 2007
and forming the Legislative Council in 2008. A vigorous public
debate on the merits of the Task Force proposals, and their
lack of a timetable for universal suffrage, culminated in a
December 2005 march by tens of thousands to protest the slow
pace of democratization. Twenty-four Legislative Council
members voted against the report in late December, blocking its
passage. A last-minute package of adjustments offered by the
government did not meet the lawmakers' demand for a specific
timetable to realize universal suffrage.
The Chinese government has made progress in bringing its
laws and regulations into compliance with its World Trade
Organization (WTO) commitments. Although significant flaws
remain, the new body of commercial laws has improved the
business climate for foreign companies in China. With new, more
transparent rules, the Chinese trade bureaucracy has reduced
regulatory and licensing delays in many sectors. The Chinese
commercial regulatory regime remains, however, largely opaque
to both domestic and foreign businesses. When China joined the
WTO in December 2001, the government committed to establishing
an official journal that would publish drafts of trade-related
measures for notice and comment, and to publish trade-related
measures no later than 90 days after they become effective.
Although the government has acted to improve transparency, some
central government agencies and many local governments are not
consistent in publishing trade-
related measures in the official journal.
The Chinese government tolerates intellectual property
rights (IPR) infringement rates that are among the highest in
the world. The Chinese government has not introduced criminal
penalties sufficient to deter IPR infringement, and steps taken
by Chinese government agencies to improve the protection of
foreign intellectual property have not produced any significant
decrease in infringement activity. The Chinese government's
failure to provide effective criminal enforcement of IPR has
led foreign companies to turn to civil litigation to obtain
monetary damages or injunctive relief. Civil litigants continue
to find, however, that most judges lack the necessary training
and experience to handle IPR cases, and damage awards are too
low to be an effective deterrent.
Since acceding to the WTO, the Chinese government has used
technical, regulatory, and industrial policies, some of which
appear to conflict with its WTO commitments, to discriminate
against foreign producers and investors and limit their access
to the domestic market. U.S. rights holders and industry groups
have complained that the government's censorship regime serves
as a barrier to entry and encourages IPR violations. In 2005,
the American Chamber of Commerce in China wrote that censorship
clearance procedures severely restrict the ability to
distribute CD, VCD, and DVD products in China and provide an
``unfair and unnecessary advantage to pirate producers who
bring their products to market long before legitimate copies
are available for sale.''
III. List of Recommendations
The Commission is working to implement the recommendations
made in its 2002-2005 Annual Reports. Based on the information
presented in this report and the Commission's belief that the
United States must continue to pursue a dual policy of high-
level advocacy on human rights issues and support for legal
reform efforts, the Commission makes the following additional
recommendations to the President and the Congress for 2006:
Human Rights for China's Citizens
The UN Human Rights Council held its first
session from June 19 to June 30 in Geneva. As a
responsible member of the international community and
one of the 47 members of the new Council, China must
abide by the international norms of behavior
articulated in the Universal Declaration of Human
Rights and international covenants, and submit to peer
review of its human rights record. The President and
the Congress should continue to urge the Chinese
government to ratify the International Covenant on
Civil and Political Rights, and to adopt such
legislative and other measures as may be necessary to
give effect to the rights recognized in the Covenant.
The President and the Congress should also encourage
the Council to fight human rights abuses and to speak
on behalf of Chinese prisoners of conscience who have
had their voices silenced, including: democracy and
labor activist Hu Shigen (imprisoned for helping to
establish an independent political party and trade
union), members Jin Haike, Xu Wei, Yang Zili, and Zhang
Honghai of the New Youth Study Group (imprisoned for
participating in a university discussion group), former
monk Jigme Gyatso (imprisoned for printing leaflets and
distributing posters), Uighur publisher Korash Huseyin
(imprisoned for publishing a short story), Uighur
writer Nurmemet Yasin (imprisoned for writing a short
story), democracy activist Qin Yongmin (imprisoned for
serving as a China Democracy Party spokesman), poet and
journalist Shi Tao (imprisoned for investigative
journalism), Uighur historian Tohti Tunyaz (imprisoned
for historical research), U.S. permanent resident and
democracy activist Yang Jianli (whose detention was
found to be arbitrary by the UN Working Group on
Arbitrary Detention), freelance writer Yang Tianshui
(imprisoned for writing articles critical of
authoritarian rule), labor rights activist Yao Fuxin
(imprisoned for rallying workers to seek back wages),
and New York Times researcher Zhao Yan (imprisoned for
investigative journalism).
China's leaders say they are committed to
building a fair and just society based on the rule of
law, and, in an effort to control social unrest, have
moved toward strengthening government institutions that
assist citizens with legal claims. Over the past year,
however, prominent Chinese criminal and civil rights
defense lawyers who have worked to advance the
development of the rule of law under the rubric of
``rights defenders'' have met with government
intimidation, harassment, and imprisonment. The
President and the Congress should continue to discuss
with China's leaders the importance of an effective,
robust, and transparent legal defense in protecting
civil and political rights, and recall the 1998 UN
General Assembly declaration calling for the protection
of human rights defenders worldwide. The President and
the Congress should also continue to emphasize that
continued detention and imprisonment of rights
defenders such as Chen Guangcheng (sentenced in August
for speaking out against population planning abuses)
will only undermine the legitimacy of government
actions and of China's developing legal system. A full
commitment to the rule of law will also require the
Chinese government to cease its harassment,
surveillance, and abuse of citizens such as legal
advocates Guo Feixiong and Zhao Xin, who have suffered
repeated violence for working peacefully to defend
citizen rights, and to allow courageous lawyers such as
Gao Zhisheng and Zheng Enchong to resume their
important legal advocacy.
The future of Tibetans and their religion,
language, and culture depends on fair and equitable
decisions about future policies that can only be
achieved through dialogue. The Dalai Lama is essential
to this dialogue. To help the parties build on dialogue
held during visits by the Dalai Lama's representatives
each year since 2002, the President and the Congress
should continue to urge the Chinese government to
invite the Dalai Lama to visit China, so that he can
see for himself the changes and developments in China,
and so that he can seek to build trust through direct
contact with the Chinese leadership.
Rapid economic development without effective
environmental safeguards has resulted in severe
environmental degradation throughout China, poor air
and water quality in many areas, and increased risk of
disease. The Chinese government has acknowledged the
severity of China's environmental problems and has
taken steps to curb pollution. The United States and
China share a common interest in protecting the
environment, and the Chinese government has welcomed
international technical assistance to combat
environmental degradation. The President and the
Congress should discuss with China's leaders the
importance of citizen activism in protecting the
environment and in challenging governments to provide
clean air and drinking water. The President and the
Congress should also provide funding to support the
full range of activities envisioned in new Sino-U.S.
bilateral and international efforts to protect the
environment like the Joint Committee on Environmental
Cooperation and the Asia-Pacific Partnership on Clean
Development and Climate.
The Chinese government continues to apply
vague criminal and administrative provisions to justify
detentions based on an individual's political opinions
or membership in religious, ethnic, or social groups.
These provisions allow for the targeting and punishment
of activists for crimes that ``endanger state
security'' or ``disturb public order'' under the
Criminal Law. They also allow for administrative
detention for ``minor crimes'' in centers where
prisoners can be subjected to forced labor without
judicial review and the procedural protections
guaranteed by the Constitution and Criminal Procedure
Law. The President and the Congress should raise these
issues in discussions with UN oversight agencies and
the Chinese government, and recommend that the Criminal
Law be amended to define these crimes in precise terms,
and to create exceptions for the peaceful exercise of
fundamental rights guaranteed under the Chinese
Constitution and international declarations and
treaties. The President and the Congress should also
recommend that the administrative detention system be
reformed to conform to international law, including the
abolition of forced labor practices. Reforms should
ensure that Chinese citizens have the opportunity to
dispute any alleged misconduct and contest law
enforcement accusations of guilt before an independent
adjudicatory body.
Freedom for Religious Believers in China
Freedom of religion is a fundamental human
right. The freedom to believe and to practice one's
religion includes the right of religious adherents to
interact freely with their co-religionists abroad, and
to choose where they worship, who will teach them, the
texts they study, and whom they accept as their
leaders. The President and the Congress should continue
to foster the development of freedom of religion in
China by encouraging the Chinese government to
recognize that this freedom includes the right of
Tibetan Buddhists to freely express their religious
devotion to the Dalai Lama, of Chinese Catholics to
worship with bishops selected by the Holy See, of
Muslims to participate in religious pilgrimages without
government interference, of Protestants to worship in
house churches, and of adherents of spiritual belief
systems, like Falun Gong, to freely practice their
beliefs. In addition, the President and the Congress
should continue to encourage the Chinese government to
end the harassment, detention, and abuse of leaders and
members of unregistered religious organizations; raise
cases of religious imprisonment with the Chinese
government; and call for the immediate release of
religious prisoners of conscience, including house
church pastor Cai Zhuohua (imprisoned for printing and
giving away Bibles), Tibetan monk Choeying Khedrub
(sentenced to life imprisonment for printing leaflets),
South China Church leader Gong Shengliang (sentenced to
life imprisonment based on tortured confessions),
Catholic bishop Jia Zhiguo (detained for unauthorized
Catholic ministry), Catholic bishop Su Zhimin (held
incommunicado since 1997), and Tsinghua University
student and Falun Gong practitioner Wang Xin
(imprisoned for downloading Internet materials). The
President and the Congress should also continue to urge
the Chinese government to allow the UN Special
Rapporteur on Religious Intolerance to visit China
without conditions, as the Chinese government has
committed to the U.S. government and to the Special
Rapporteur.
Chinese central government policy, and some
local regulations, only recognize five government-
defined religions. This restriction is neither
contained in national law nor in China's new Regulation
on Religious Affairs. In some parts of China,
Protestant communities that are not affiliated with the
state-controlled patriotic religious association have
been allowed to register with the government. Although
the government does not recognize Orthodox Christianity
as a religion, some Orthodox communities in China have
registered with a local government. These are welcome
developments, but they have been limited in scope. The
President and the Congress should continue to encourage
the Chinese government to eliminate its policy
restrictions on religion and to guarantee citizens
freedom of thought, conscience, religion, and belief in
accordance with Article 18 of the Universal Declaration
of Human Rights; to allow all religious and spiritual
groups to form independent organizations and practice
their faith free from interference by the government
and state-controlled religious associations; to remove
registration requirements or amend them so that the
government does not have the discretion to deny
registration to certain groups; and to provide
protections for individuals who choose to worship
outside the framework of organized
religion.
Labor Rights for China's Workers
Working conditions in China remain poor, and
Chinese workers are often unaware of the national laws
that protect their rights. The U.S. Department of Labor
has been working with the Chinese Ministry of Labor and
Social Security and the State Administration of Work
Safety to implement activities that focus on such labor
issues as occupational and mine safety and health, wage
and hour law administration, and education for Chinese
workers about national labor laws. The President and
the Congress should support expansion of these
cooperative activities to improve labor conditions for
Chinese workers. The President and the Congress should
also raise with Chinese leaders the critical role that
independent unions can play in achieving safer
workplaces, pressing factory owners to pay workers
fully and on time, and reducing accidents and
countering official corruption in the mining sector.
Human trafficking is a serious problem in
China. The government is cooperating with the
International Labor Organization's (ILO) Special Action
Program to Combat Forced Labor to strengthen the law
enforcement aspects of the trafficking cycle, but
government institutions lack the knowledge and capacity
to combat these practices effectively. China's Criminal
Law does not specifically address the issue of human
trafficking as it relates to forced labor, and although
the Labor Law outlaws forced labor practices in the
workplace, it only provides light penalties for
violators. The President should continue to support,
and the Congress should continue to fund, U.S.
assistance to the ILO's cooperative programs with China
on forced labor and trafficking; should urge the
Chinese government to ratify the two protocols to the
UN Convention against Transnational Organized Crime
concerning trafficking in persons and smuggling of
migrants; and should encourage bilateral discussions on
ways that government agencies, domestic law, and
employers and business groups can deter human
trafficking more
effectively.
Free Flow of Information for China's Citizens
The National People's Congress is considering
a draft ``Law on the Handling of Sudden Incidents''
that, in its current form, restricts domestic and
foreign news media reporting on natural and man-made
disasters. If passed, this law would not only impose a
prior restraint on the press that is inconsistent with
international human rights standards, but also impede
the efficiency of the Global Public Health Intelligence
Network, an electronic surveillance system used by the
World Health Organization to monitor the Internet for
reports of communicable diseases and communicable
disease syndromes. The President and the Congress
should continue to raise with China's leaders the
global nature of public health emergencies, the
importance of complete transparency in the
administration of public health, and the importance of
an unimpeded press in monitoring government performance
on public health and providing critical information to
the public in a timely manner.
The Chinese government uses technology, prior
restraints, intimidation, detention, imprisonment, and
vague and arbitrarily applied censorship regulations to
suppress free expression and control the news media.
Because the government
restricts the free flow of information, many Chinese
citizens are unaware that official censorship policies
violate their rights to freedom of speech and freedom
of the press. The President and the Congress should
urge the Chinese government to eliminate prior
restraints on publishing, cease detaining journalists
and writers, stop blocking foreign news broadcasts and
Web sites, and specify precisely what kind of political
content is illegal to publish. The President should
propose, and the Congress should appropriate, funds to
support U.S. programs to develop technologies that
would help Chinese citizens access Internet-based
information currently unavailable to them, as well as
educational materials about their rights under
international law to freedom of speech and freedom of
the press.
Rule of Law and the Development of Civil Society
Chinese officials have taken additional steps
in the past year to curb the growth of China's emerging
civil society. Ministry of Civil Affairs officials are
currently researching a new administrative system to
supervise, control, and ``rate'' civil society
organizations. Many details of the plan, such as who
will conduct the evaluations and how the results will
be used, are not yet determined. The President and the
Congress should encourage bilateral discussion on the
issue of official control over civil society
organizations; reiterate statements made by Chinese
officials and scholars regarding the important role
independent civil society organizations can play in
resolving
conflict, protecting citizen rights, and maintaining
social stability; and encourage the Chinese government
to take steps that would promote the development of an
independent civil society, such as removing the sponsor
organization requirement.
The Chinese government forcibly repatriates
North Koreans seeking refuge in China and denies the
Office of the UN High Commissioner for Refugees (UNHCR)
access to this vulnerable population, contravening its
obligations under the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol, as well as
the Chinese government's 1995 Agreement with the UN.
The State Council is currently considering new
Regulations on the Administration of Refugees. These
regulations could provide new protections for the
vulnerable North Korean refugee population, but little
is known about their contents. The President and the
Congress should continue to press the Chinese
government to immediately cease repatriation of North
Korean refugees and grant the UNHCR unimpeded access to
screen North Korean refugee petitions. The President
and the Congress should also encourage the Chinese
government to be transparent as it progresses in
drafting and adopting its new regulations on refugees,
and to work closely with the UNHCR to ensure that this
legislation will protect North Korean refugees in full
accordance with international law.
Abuse of power by local police forces remains
a serious problem throughout China. The Supreme
People's Procuratorate has acknowledged the existence
of continuing and widespread abuses in law enforcement,
including illegal extended detentions and torture. The
President and the Congress should work to expand
programs, such as funding a permanent Resident Legal
Advisor at the U.S. Embassy in Beijing, that will help
foster dialogue between Chinese and U.S. counterparts,
and encourage Chinese procuratorates to exercise
greater oversight over police abuses. These programs
should encourage the Chinese government to continue
reform efforts such as providing criminal defense
lawyers with greater access to their clients and case
files, audio and video taping law enforcement
interrogations of criminal suspects, and excluding
evidence at trial that was obtained through torture or
other illegal means.
Upon joining the World Trade Organization
(WTO), the Chinese government committed to increasing
regulatory transparency, improving the protection of
intellectual property rights, and ensuring non-
discrimination in administering trade-related measures.
The government has achieved incremental improvements in
regulatory transparency since WTO accession, but
continues to tolerate rampant infringement of
intellectual property rights. In addition, government
industrial policies promote and protect many domestic
industries, in some cases in a manner that appears to
contravene China's WTO commitments. The President and
the Congress should continue to urge the Chinese
government to ensure that relevant authorities publish
all measures affecting trade in a timely manner; to
enact and impose criminal and civil penalties severe
enough to deter intellectual property infringement; and
to
remove all non-prudential barriers to U.S. and other
foreign participation in those market sectors governed
by WTO commitments.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. The views and recommendations
expressed in this report, however, do not necessarily reflect
the views of individual Executive Branch members or the
Administration.
This report was approved by a vote of 22 to 1.
IV. Introduction
Domestic Challenges Growing Out of Economic Restructuring
Since the beginning of the ``reform and opening up'' period
in 1978, Chinese government policies have raised the national
standard of living and lifted more than 400 million citizens
out of extreme poverty, according to Chinese and World Bank
statistics. This is an impressive achievement. But as incomes
have risen, so too have inequalities created by economic
restructuring policies that have favored urban over rural
development. In 2005, the average income of China's urban
residents was more than three times that of rural residents, an
increase from two and one-half times in 1978. China's ethnic
minorities, who live primarily in rural areas, constitute less
than 10 percent of China's population, but represent more than
40 percent of the nation's poorest citizens. The government
also faces a growing population of new urban poor. Millions of
Chinese citizens who lost their jobs and pensions because of
the collapse of state-owned enterprises have not found new
jobs. In addition, many rural to urban migrants survive in the
low-wage informal economy without access to public services of
any kind.
Chinese leaders face enormous domestic challenges. The
government estimated that it needs to create 25 million new
urban jobs in 2006 just to keep unemployment levels in check.
The dual problems of urban unemployment and growing rural-urban
inequality have created diverse and competing societal
interests that increasingly clash, fueling social unrest
throughout China, and complicating the government's efforts to
find solutions. Officials reported that ``disturbances of
public order'' rose to a total of 87,000 in 2005, a 6.6 percent
increase over the figure in 2004. Citizen protests broke out in
several provinces during the past year over land
expropriations, official corruption and abuse, low wages and
poor working conditions in factories, and environmental
degradation. In September 2005, police clashed with hundreds of
residents in Taishi village, Guangdong province, over citizen
attempts to remove a local official from office for embezzling
land compensation funds. In October, police in Chongqing
municipality broke up one of the largest worker protests in
China in more than a decade. In December, forces from the
paramilitary People's Armed Police shot at thousands of
villagers and killed as many as 20 in Shanwei city, Guangdong
province, in response to protests against the pollution and
displacement caused by construction of a power plant. In July
2006, hundreds of citizens rioted in Guiyang city, Guizhou
province, after officials beat a migrant worker lacking a
temporary residence permit.
Rural Inequality and Social Unrest
Concerns about mounting social unrest because of rural-
urban inequality have reached the top levels of the Chinese
leadership. In late 2005, Premier Wen Jiabao warned senior
rural bureaucrats that more violence would result if they
continued to commit the ``historic mistake'' of failing to
protect farmers and their lands. Party and government leaders
used the first major policy document of 2006 to announce a
campaign for ``construction of a new socialist countryside.''
This campaign seeks to address the growing inequalities between
rural and urban residents and commits the central government to
increasing services to rural areas in health, education, and
employment. In March, Wen told the National People's Congress
(NPC) that the central government will invest more than 20
billion yuan (US$2.5 billion) over the next five years to
modernize hospitals, clinics, and medical equipment at the
village, township, and county levels. Chinese officials also
promised to spend 218 billion yuan (US$27.25 billion) over the
next five years to improve rural education. In January, the
central government stopped levying agricultural and livestock
taxes on farmers in an effort to boost rural incomes. Although
Chinese authorities remain sensitive to farmers' efforts to
organize collectively to protect their interests, central
policy documents issued each year since 2004 have given a
limited degree of support to establishing farmer cooperatives,
and the 2006 legislative calendar for the NPC contains a
proposal for a national law on these organizations.
The central government has also called for increased
protections for the rights of migrant workers as part of its
effort to increase social stability. The Central Party
Committee and State Council issued a joint circular on social
stability in October 2005 calling, in part, for greater
protections of migrant rights and the creation of a permanent
mechanism to address worker claims for unpaid wages, a problem
that disproportionately affects migrants. China's Communist
Party-led labor union federation responded to the new central
government mandate by creating programs to help migrants avoid
abuse and exploitation by employers. In the past year, the
labor union federation has announced new programs to assist
migrants in signing labor contracts with employers, recovering
unpaid wages, improving work safety, and securing legal aid and
job training. Concerns over social unrest growing out of rural-
urban inequality also have compelled the government to consider
reforming some of the political tools it has used to control
society. Chinese
authorities announced in October 2005 that they were
considering national reforms to the Chinese household
registration (hukou) system, and have taken steps to remove
restrictions on migrant
employment in urban areas.
Political and Religious Repression and Social Unrest
The largely positive government response to social unrest
growing out of rural inequality stands in sharp contrast to the
government response to citizen grievances over political and
religious repression. The Chinese government has punished
citizens who press for change and challenge government abuses,
in disregard of the peaceful nature of their activities and in
contravention of international human rights standards. The same
October joint circular that detailed positive measures to help
migrants and the rural poor also called for stronger controls
over society. The central government has imposed
countermeasures to rein in the Chinese press and to exercise
greater control over the Internet. Officials are currently
evaluating new measures to control civil society organizations.
Party officials have warned about foreign ``hostile forces''
that push for ``color revolutions'' and ``infiltrate'' the
press, civil society, the legal profession, and the Uighur and
Tibetan autonomous areas of China.
In the absence of a free press, civil society, democratic
governance, and other mechanisms to allow citizens to press for
change, Chinese human rights defenders have used legal advocacy
and civil disobedience to promote democracy and the development
of the rule of law. Wang Yi, a Chinese law professor and rights
defender, said at a May 3 Congressional Human Rights Caucus
roundtable, ``If even the rights defense movement cannot
succeed, then there is really no hope for China.'' In February,
Beijing lawyer and rights defender Gao Zhisheng began a hunger
strike relay following months of government violence against
large numbers of Chinese citizens. The hunger strike called
attention to the illegal persecution and violent beatings of
many groups in China, including workers, farmers,
intellectuals, religious believers, petitioners, activists, and
journalists. These groups suffered from government repression
despite having maintained a strict policy of peaceful protest
against government abuses. In response to his citizen activism
and peaceful defense of basic human rights, authorities
stripped Gao Zhisheng of his ability to practice law, targeted
him for government intimidation and harassment, and accused him
of criminal activity.
The Chinese government's repressive measures threaten the
Party's goal of maintaining social stability. The failure to
provide effective mechanisms for citizens to voice their
grievances and protect their civil and political rights fuels
citizen anger and ultimately unrest, the very condition that
China's leaders are seeking to prevent. Such a result can only
undermine China's progress. Freedom of the press, a vibrant
civil society, and democratic governance are the primary means
for keeping officials accountable to the citizens they serve.
They are also the essential building blocks for any long-term
and successful system of government.
V. Monitoring Compliance with Human Rights
V(a) Special Focus for 2006: Freedom of Expression
findings
Government censorship, while not total, is
pervasive and highly effective, and denies Chinese
citizens the freedoms of speech and of the press
guaranteed to them in the Chinese Constitution. The
government has imprisoned journalists who provide news
to foreigners, such as Zhao Yan, Shi Tao, and Ching
Cheong. Editors of publications that criticize
government policies, such as Yang Bin of the Beijing
News and Li Datong of the China Youth Daily, have been
dismissed. The government blocks the Web sites and
radio and television broadcasts of foreign news
organizations, such as those of the British
Broadcasting Corporation, Radio Free Asia, and the
Voice of America. In 2005, the government banned dozens
of newspapers and confiscated almost one million
``illegal'' political publications. Beginning in May
2005, the government blocked the Commission's Web site
from being viewed in China.
Modern telecommunications technologies such as
the Internet, cell phones, and satellite broadcasts
allow Chinese citizens access to more information
sources, both state-controlled and non-state-
controlled. But government restrictions on news and
information media, including on these new information
sources, do not conform to international human rights
standards for freedom of expression. The Chinese
government imposes a strict licensing scheme on news
and information media that includes oversight by
government agencies with discretion to grant, deny, and
rescind licenses based on political and
economic criteria. The Chinese government's content-
based restrictions include controls on political
opinion and religious literature that are not
prescribed by law, and whose primary purpose is to
protect the ideological and political dominance of the
Communist Party.
The government's restrictions on religious
literature do not conform to international human rights
standards. Only government-licensed printing
enterprises may print religious materials, and then
only with approval from both the provincial-level
religious affairs bureau and the press and publication
administration. In addition to confiscating religious
publications, the Chinese government also has fined,
detained, and imprisoned citizens for publishing,
printing, and distributing religious literature without
government permission. Cai Zhuohua, a house church
pastor in Beijing, and two of his family members were
imprisoned in 2005 for printing and giving away Bibles
and other Christian literature. In Anhui province,
house church pastor Wang Zaiqing was arrested in May
2006 on the same charges.
Government Censorship in China
Government censorship in China, while not total, is
pervasive and highly effective, and denies Chinese citizens the
freedom of the press guaranteed to them in the Chinese
Constitution.\1\ As 13 Chinese scholars, lawyers, and editors
wrote in a letter to Chinese President Hu Jintao after the
Communist Party's Central Propaganda Department (CPD) shut down
a popular news weekly in February 2006, the CPD ``manipulates
and controls the range of speech, and it has become the sole
criterion for measuring truth.'' \2\ Another group, composed of
13 former senior government, Party, and news media officials,
wrote in an open letter regarding the same event that the CPD
has ``stripped away freedom of speech in order to quash public
opinion.'' \3\
The Chinese government has imprisoned journalists who
provide news to foreigners, such as Zhao Yan, Shi Tao, and
Ching Cheong. Editors of publications that criticize government
policies, such as Yang Bin of the Beijing News and Li Datong of
the China Youth Daily, have been dismissed. The government
blocks the Web sites and radio and television broadcasts of
foreign news organizations, such as those of the British
Broadcasting Corporation, Radio Free Asia, and the Voice of
America. In 2005, the government banned dozens of newspapers
and confiscated almost one million ``illegal'' political
publications. Beginning in May 2005, the government blocked the
Commission's Web site from being viewed in China. The heads of
government and Party agencies responsible for enforcing China's
media regulations emphasize press control, not press freedom:
Liu Yunshan, director of the CPD, told
attendees at the National Propaganda Directors Seminar
in August 2005 that they should increase their
supervision of the media, impose content controls
earlier in the editorial process, and coordinate the
application of administrative, economic, legal,
ideological, and other controls.\4\ In a speech to the
same group the previous year, Liu said that no change
to the role of the news media as the mouthpiece of the
Party, or the Party's supervision of the media, would
be tolerated.\5\
Long Xinmin, Director of the General
Administration of Press and Publication (GAPP), said in
a speech to the National Press and Publication
Directors Conference in December 2005 that Party
leaders had ordered press and publication officials to
increase their administration of press and publishing.
Long said that the key was to strengthen the leadership
of the Party and establish a ``grand cadre'' of
``politically strong'' press and publication
workers.\6\
Liu Yuzhu, head of the Ministry of Culture's
Market Department, wrote in the January 2005 edition of
Seeking Truth, the official journal of the Chinese
Communist Party Central Committee, that Web sites
located in foreign countries such as the United States
represent a threat to China's political structure. He
encouraged increased censorship of foreign Web sites
and called on domestic Web site operators to step up
their self-censorship.\7\
Despite pervasive censorship, state control of domestic
news media is now less severe than before the ``reform and
opening up'' period began in the late 1970s. Modern
telecommunications technologies such as the Internet, cell
phones, and satellite broadcasts allow Chinese citizens access
to more information sources, both state-controlled and non-
state-controlled. More information is also available as a
result of a dynamic domestic newspaper and book publishing
industry. China also has a thriving underground publishing
industry, and citizens may easily purchase many banned books
from unlicensed publishers and retailers.\8\ By forcing
unlicensed publishers to break the law, however, the government
erodes respect for intellectual property rights and the rule of
law because illegal publishers are also de facto copyright
violators (the illegal works are ``pirated,'' and authors
cannot collect royalties on them) and must bribe officials to
keep operating.
Chinese leaders and officials maintain that citizens enjoy
freedom of the press, and that government restrictions on that
freedom conform to international standards.\9\ While the Party
does not screen content before publication to the same degree
as in the past, the government continues to impose
administrative restrictions on who may publish and what they
may publish (``prior restraints'') that do not conform to the
international human rights standards set forth in the Universal
Declaration of Human Rights\10\ and the International Covenant
on Civil and Political Rights (ICCPR).\11\ These standards
require the elimination of registration systems for the print
media that grant government agencies the discretion to approve,
deny, or rescind licenses based on the political and financial
qualifications of the applicant (``licensing schemes'').\12\
These standards also prohibit government restrictions on the
publication of political and religious ideas and information,
other than restrictions that are both prescribed by law and
necessary to protect an important state interest (``content-
based restrictions''). As two Chinese legal scholars noted in
their study of the ICCPR:
This principle [that the ICCPR prohibits prior
restraints] requires that government power may not be
employed to suppress expressive activities before they
are carried out, and no licensing measures or
ideological
content restrictions may be imposed on speech, books,
periodicals, or radio or television programs prior to
their dissemination, publication, distribution, or
broadcast.\13\
The Chinese government imposes a strict licensing scheme on
all newspaper, magazine, and book publishing and printing
(public and private, for-profit and non-profit). The government
uses this licensing scheme, as well as post-publication
punishments, to enforce content-based restrictions that include
prohibitions on the publication of political opinion and
religious literature. These content-based restrictions on
political opinion and religious literature are neither
prescribed by law nor necessary to protect a legitimate state
interest. Government and Party leaders state that these
restrictions are intended to protect the ideological and
political dominance of the Party.
Government Licensing for Print Media
Article 19 of the Universal Declaration of Human Rights and
Article 19 of the International Covenant on Civil and Political
Rights provide that people enjoy the right to seek, receive,
and impart information and ideas through any media and
regardless of frontiers. The Chinese government's licensing
scheme for print media does not conform to international
standards for freedom of the press. Although no absolute
international standard prescribes what constitutes freedom of
the press, international human rights standards set forth a
minimum prerequisite: no legal system can be said to respect
freedom of the press if it subjects the print media to any
prior restraint through a licensing scheme. In 2003, the UN
Special Rapporteur on Freedom of Opinion and Expression, the
Organization for Security and Cooperation in Europe (OSCE)
Representative on Freedom of the Media, and the Organization of
American States (OAS) Special Rapporteur on Freedom of
Expression issued a joint declaration saying that licensing
schemes are unnecessary and subject to abuse.\14\ Many nations,
both developed and developing, have abolished licensing schemes
for the print media. For example, the constitutions of many
countries, including those of Brazil and South Korea,
explicitly prohibit licensing schemes.\15\ In other countries,
such as the United States and India, the right to publish
without first having to obtain government authorization is
protected through a combination of constitutional and court-
made law.\16\ In those countries with registration
requirements, such as Sweden and the United Kingdom, the
government does not have the discretion to refuse
registration.\17\
The Chinese government, like a number of governments in
other countries, including Ethiopia,\18\ Iran,\19\ Jordan,\20\
Syria,\21\ Uzbekistan,\22\ and Yemen,\23\ imposes a strict
licensing scheme on the print media.\24\ No one may legally
publish a book, newspaper, or magazine in China unless they
have a license from the General Administration of Press and
Publication (GAPP).\25\ Chinese law requires that every book,
newspaper, and magazine have a unique serial number, and the
GAPP maintains exclusive control over the distribution of these
numbers.\26\ GAPP officials have explicitly linked the
allotment of book numbers to the political orientation of
publishers.\27\ The Chinese government's licensing scheme
includes substantive conditions on who may publish. To obtain a
license to publish news, applicants must have a government
sponsor.\28\ Although the average annual income in China is
less than 10,000 yuan (US$1,250),\29\ the government also
restricts the right to publish to those who can afford to
invest at least 300,000 yuan (US$37,500) in registered
capital.\30\ The Chinese government says that its licensing
scheme is necessary to regulate the publishing market,\31\ but
such reasoning does not conform to international human rights
standards.\32\
Chinese authorities banned 79 newspapers and periodicals
and seized 169 million publications in 2005.\33\ From 2003 to
2005, the government canceled the registrations of 202 news
bureaus and shut down 73 others.\34\ Other examples of the
government using its licensing authority to violate citizens'
freedom of the press in the past year include:
In August 2005, GAPP officials in Luliang
city, Shanxi province, banned the Luliang Weekly, shut
down its editorial
department, and dismissed its staff. Officials imposed
these sanctions because the weekly had been published
without government authorization, and ``the articles it
carried were mostly negative reports, which severely
violated relevant national regulations, and which had
an adverse effect on society.'' \35\
In September 2005, the Hunan provincial
government shut down the news bureaus of four
publications established without government
permission.\36\
Also in September 2005, the Chinese government
reported that no illegal political materials had been
published in the Inner Mongolia Autonomous Region city
of Wuhai since 2002.\37\ The report attributed the city
government's ``success'' in part to a rigorous training
regime for publishers and printers and the fact that
authorities had closed 12 illegal printing enterprises.
The report said officials conducted daily inspection
tours and surprise raids to stop unauthorized
publications from entering or leaving the city.
In addition to these administrative measures, Chinese
authorities have used Article 225 of the Criminal Law, which
defines operating a publishing business without government
permission as an illegal business activity,\38\ to fine and
imprison publishers:
In January 2004, authorities in Anhui province
sentenced two men to prison terms of nine and seven
years for publishing collections of love poems.\39\
In September 2004, a court in Xinxiang county,
Henan province sentenced Wang Lelan, a farmer who had
purchased two printing presses, to five years'
imprisonment and an 8,000 yuan (US$1,000) fine for
publishing ``illegal books'' such as ``China's Top
Level'' and ``Confidential Exclusive News.'' \40\
In August 2005, a court in Beijing sentenced
the head of the Beijing representative office of Hong
Kong's Credit China International Media Group Limited
to three years' imprisonment for publishing the
magazine ``Credit China'' without government
authorization.\41\
New rules governing the publication of newspapers and
magazines in China went into effect in December 2005.\42\ In
addition to restricting the right to publish newspapers and
magazines to government licensees, the rules also establish
post-publication content screening and review systems. The
rules require provincial-level GAPP offices to submit regular
written reports to the GAPP and conduct annual ``verification
and examination'' reviews. The rules stipulate that publishing,
printing, and distribution enterprises may not provide services
to any newspaper or magazine unless they have passed the
previous year's inspection. The rules also require each
newspaper and magazine publisher to submit regular reports to
the GAPP, as well as annual ``self-examination reports'' with
copies of its most recently published editions. The rules
require the GAPP to assess the ``publishing quality'' of
newspapers and magazines, and empower it to take the following
actions against any publisher whose contents it deems incorrect
or in violation of regulations:
order it to cease publication and
distribution;
order it to retract entire editions;
order supervising and sponsoring government
agencies to ``rectify'' the publisher;
revoke its publishing license.
The Chinese government's press licensing scheme also
extends to the Internet. According to the state-run media:
Since 1996, 14 agencies, including the Central
Propaganda Department, State Council Information
Office, Ministry of Public Security, Ministry of
Culture, and the
General Administration of Press and Publication have
participated in the administration of the Internet,
have promulgated nearly 50 laws and regulations, and
have put
together the world's most extensive and comprehensive
regulatory system for Internet administration. One
scholar who specializes in researching Internet Law
[said] China's emphasis on, and effectiveness of
administration over, the problem of Internet security
is ``rare in this world.'' \43\
The government requires all Web sites in China to be either
licensed by, or registered with, the Ministry of Information
Industry (MII).\44\ Web sites that fail to register or obtain a
license may be shut down and their operators fined.\45\ As part
of the registration process, the MII requires anyone who posts
news on a Web site to confirm that the Chinese government has
authorized him or her to do so.\46\ According to the OpenNet
Initiative, ``In large measure, the registration regulation is
designed to induce website owners to forego potentially
sensitive or prohibited content, such as political criticism,
by linking their identities to that content. The regulation
operates through a chilling effect.'' \47\ In August 2005, the
state-controlled news media reported that over 700,000 Web
sites had registered,\48\ and that authorities had shut down a
``large number of Web sites,'' using ``specialized software to
render them inaccessible.'' \49\ In December 2005, the MII
issued a notice to Internet service providers saying, ``The
campaign to rectify unregistered Web sites has entered a period
of severe sanctions,'' and demanded they shut down all
unregistered Web sites.\50\
In September 2005, the MII and the State Council
Information Office promulgated new rules tightening the
government's control over Internet news services.\51\ These
rules prohibit anyone from using the Internet to post or
transmit news reports or commentary relating to politics and
economics, or military, foreign, and public affairs, without a
government license. Chinese authorities used these rules to
shut down at least five Web sites before the annual plenary
sessions of the National People's Congress and the Chinese
People's Political Consultative Conference, which concluded in
March 2006.\52\
The MII crackdown coincided with a similar crackdown on the
Internet by branches of China's Ministry of Public Security
(MPS) in major cities.\53\ Throughout 2005 and 2006, public
security bureaus in cities such as Beijing, Guangzhou, and
Chongqing ordered Web sites to register with public security
authorities or be shut down. In addition, in December 2005, the
MPS promulgated new rules\54\ requiring Internet portals, Web
sites, Web logs (``blogs''), and hosting services to record and
retain any content that news providers post on their Web sites,
as well as the time it was posted.
Finally, the Chinese government instituted a licensing
scheme for journalists in 2005,\55\ even though such schemes
are incompatible with international human rights standards for
freedom of the press.\56\ In January 2005, the GAPP issued two
new regulations limiting ``lawful'' news gathering and
editorial activities to government-licensed journalists.\57\ In
March 2005, the GAPP, Central Propaganda Department, and State
Administration of Radio, Film, and Television (SARFT) jointly
issued new rules specifying that journalists and editors must
``support the leadership of the Chinese Communist Party,
support the socialist system . . ., respect the Party's news
propaganda discipline, [and] protect the interests of the Party
and the government.'' \58\ SARFT used its authority to accredit
television hosts to shut down the television show of well-known
economist Lang Xianping (also known as Larry Lang) in February
2006 on the grounds that he lacked required government
certification.\59\
Restrictions on Political and Religious Publishing
The Chinese government's restrictions on the publication of
political opinion and religious literature do not conform to
international human rights standards for freedom of the press
and freedom of religion. Article 19 of the Universal
Declaration of Human Rights and the same article of the
International Covenant on Civil and Political Rights (ICCPR)
provide that people enjoy the right to publish ``information
and ideas,'' and the ICCPR adds ``of all kinds.'' International
human rights standards permit restrictions on the press,
provided they are prescribed by law and are necessary to
prevent the dissemination of speech that is obscene or
defamatory, or that poses a realistic threat to national
security, or that is false and threatens public order.\60\ The
Chinese government's restrictions on the press are not clearly
prescribed in national law. In addition, the government uses
discretionary and extralegal powers to restrict the publication
of information and ideas that conflict with the Party's
political and religious orthodoxy or that threaten its control
over political and religious ideology.
Not Prescribed by Law
National media regulations include vague and sweeping
prohibitions on the publication of material that ``harms the
honor or the interests of the nation,'' \61\ ``spreads
rumors,'' \62\ or ``harms the credibility of a government
agency.'' \63\ The Criminal Law punishes acts said to
constitute ``rumor mongering'' to incite subversion or the
overthrow of the socialist system with sentences of up to five
years' imprisonment.\64\ Nothing in Chinese law specifies what
constitutes the ``interests of the nation,'' a ``rumor,'' or
``harming credibility.'' Chinese laws and regulations provide
lists of what may be deemed a state secret, but these lists are
broad and vague, encompassing essentially all matters of public
concern.\65\ Moreover, Chinese law does not require the
government to show that anyone committing any of these acts
knew that the materials they published fell into one of these
categories.\66\ Finally, Chinese courts do not require the
government to show that the publication of the materials in
question caused, or could have caused, any negative effect on
the national interest.\67\
Government agencies responsible for implementing and
interpreting national security do not balance government
interests against a citizen's right to freedom of the press,
and instead consistently interpret laws in favor of the
government. In recent years, more than 70 percent of all cases
of criminal disclosure of state secrets were the result of a
``faulty understanding of state secrets.'' \68\ None of the 17
or more central government and Party agencies responsible for
enforcing and interpreting national security and state secrets
laws as they relate to freedom of the press has provided any
public guidance about when it will or will not censor
publications or pursue criminal complaints against
publishers.\69\ In 2004, the Chinese government shut down 338
publications for publishing ``internal'' information.\70\ In
addition, the Chinese judiciary is not independent from Party
control and does not issue instructive opinions in criminal
trials (see discussion of Huang Qi below). [For more
information on the Chinese judiciary, see Section VII(c)--
Access to Justice.]
The Chinese government does not articulate content-based
restrictions in statutes and court judgments, but instead
relies upon detaining writers, indoctrinating journalists, and
banning publications to encourage companies, institutions, and
individuals to ``choose'' not to publicize views that a
government official might deem politically unacceptable.\71\ An
example of the Chinese government's indifference to freedom of
the press is the case of Huang Qi. The Chengdu Intermediate
People's Court sentenced Huang to five years' imprisonment in
May 2003 for inciting subversion by operating a Web site that
included articles on democracy and the 1989 Tiananmen democracy
protests. The court's decision did not provide examples of any
subversive language, and made no attempt to show that the
articles on the Web site had caused, or were likely to cause, a
threat to China's national security. Moreover, the court did
not place any constitutional limitations on the authority of
the government to criminalize certain types of speech, or
balance the need to protect national security with Huang Qi's
right to freedom of expression.\72\
Another example of the Chinese government's opaque national
security content-based restrictions occurred in October 2003,
when a Shanghai court sentenced Zheng Enchong to three years'
imprisonment for ``illegally providing state secrets to an
entity or individual outside China.'' Zheng faxed a copy of a
Xinhua news report to a U.S. NGO to get it published
abroad.\73\ In rejecting Zheng's appeal, the Shanghai High
People's Court said that, while the document in question
included no markings indicating it was a ``state secret,''
Zheng ``should have known'' that it was a state secret
because it had been published in a Xinhua publication called
``Internal Selections.'' Xinhua is a government agency that
reports directly to the State Council, and if an article
included information that was a state secret, Xinhua had both
the authority and the legal obligation to have it
classified.\74\ Instead, Xinhua officials labeled the article
``internal,'' and according to the Shanghai High People's
Court, officials with the local state secrets bureau had it
``certified'' as a state secret after Zheng was detained.\75\
Stories from ``Internal Selections,'' however, are freely
available on Party Web sites, including those of the Beijing
Municipal Party Committee and the Chongqing Municipal Party
Committee.\76\
The case of Zhao Yan, a researcher for the New York Times,
is a more recent example. Authorities detained Zhao in
September 2004 for ``illegally providing state secrets to an
entity or individual outside China.'' Sources said the ``state
secret'' was information that former President and Party
General Secretary Jiang Zemin had offered to resign as Chairman
of the Central Military Commission. His resignation was later
reported in the official press.\77\ [See Section V(b)--Rights
of Criminal Suspects and Defendants, for a discussion of Zhao's
arbitrary and extended detention.]
Chinese courts cannot consider Chinese citizens'
constitutional right to freedom of the press in subversion and
state secrets trials [see Section VII(c)--Access to Justice--
Constitutional Review]. Some cases have been reported, however,
in which a court found insufficient evidence to hold a trial on
the charges brought against a defendant. Such decisions are the
result of international pressure rather than an interest in
upholding the rights of the accused. For example, Chinese
authorities detained Liu Di (also known as the ``Stainless
Steel Mouse'') in November 2002 after she posted a series of
essays on the Internet discussing political reform and
criticizing the Party. They released her in November 2003
without charges following widespread international pressure.
The Chinese government also uses indoctrination as an
extralegal means of restricting publishing of political
opinions and religious literature. A January 2006 General
Administration of Press and Publication (GAPP) report described
an example of press indoctrination, saying that in 2005 the
government carried out on-the-job training of Party officials
holding leadership positions at news publishers, and ``deeply
and meticulously performed worker and staff ideological and
political work'' in order to ``safeguard stability and unity.''
\78\ Xinhua reported in May 2006 that the government and the
Party expect Chinese journalists to be ``politically strong''
and ``strictly disciplined.'' \79\ The All China Journalists
Association held a conference in April 2006 to study and
implement the Party's propaganda campaign on ``Socialist Glory
and Shame.'' \80\ The state-run news media reported that
conference participants expressed a desire to reject
``capitalist liberalism'' and to accept ``serving the general
work of the Party and the nation'' as the ``sacred mission'' of
journalists.\81\ Western news media have reported that the
Beijing Municipal Information Office, an agency that reports to
the Central Propaganda Department, summons executives from a
dozen Internet news Web sites every Friday morning to attend a
meeting. Chen Hua, Director of the Internet Propaganda
Management Department, usually runs this meeting. According to
one Western news report, ``[Chen] or one of his colleagues
tells the executives what news they should keep off their sites
and what items they should highlight in the week ahead.'' \82\
The Chinese government and the Party often carry out
censorship through informal and opaque procedures that are not
subject to legal oversight or restraint. For example, according
to Wang Yi, a law professor in Sichuan province, public
security officials in Beijing had his Web site shut down by
calling an employee of the Chinese Internet company Blogchina
at home and ordering him to do it.\83\
Chinese authorities used similar extralegal measures to
censor two of China's most popular publications. The first
incident occurred in December 2005, when the Party removed
editor-in-chief Yang Bin and two deputy editors at the Beijing
News, as part of an effort to curb that newspaper's aggressive
reporting style.\84\ Central Propaganda Department director Liu
Yunshan had told officials at an April 2005 meeting that
``[t]he South has a newspaper that disgusts a lot of officials
in the North, and the North has a paper that disgusts a lot of
officials in the South.'' \85\ An unnamed source told a Western
news magazine that the ``northern paper'' was the Beijing News,
and a Beijing News editor noted that so many cadres had
traveled to Beijing to complain about the paper that it was
under ``heavy'' pressure to conform to new restrictions on
``extra-territorial'' investigative reporting.\86\ In December
2005, propaganda officials singled out the Beijing News for
criticism at a meeting where it was decided that ``metropolitan
newspapers'' such as the Beijing News should ``strengthen Party
control'' and obey propaganda officials.\87\ Officials have
said that the Beijing News ``committed errors in the
orientation of opinion,'' and Liu Yunshan concluded that the
Beijing News' ``problems'' must be ``fundamentally resolved.''
A second example of official circumvention of the law to
silence critics occurred in January 2006, when Party officials
ordered the China Youth Daily (CYD) to suspend publication of
its Freezing Point weekly because it had published an essay on
Chinese history textbooks that officials claimed contradicted
historical facts, violated news propaganda discipline, harmed
the national sentiments of the Chinese people, harmed the image
of the CYD, and had a detrimental social influence.\88\ The
officials also ordered the CYD Publishing House to submit a
report criticizing Li Erliang, CYD editor-in-chief, and Li
Datong, editor-in-chief of the Freezing Point weekly. On
February 16, Ministry of Foreign Affairs spokesperson Qin Gang
defended the Party's decision.\89\ On the same day, the
Communist Party Youth League Publishing House Party Committee
announced the conditions under which Freezing Point would
resume publication. The CYD was required to dismiss Li Datong
from his position as editor-in-chief, and Lu Yuegang from his
position as deputy editor. In addition, it had to publish an
essay in the first issue of the re-launched Freezing Point
weekly that would
refute the earlier objectionable essay.\90\
Government and Party intimidation, harassment, and
imprisonment of writers and journalists create a chilling
effect on freedom of speech that results in self-censorship.
For instance, Internet and software companies in China must
either employ censorship technologies in their products or risk
a government order to close.
Although no Chinese law or regulation forbids specific words,
companies such as Tencent and MSN embed a list of banned words
and phrases in their Internet applications, including
``freedom'' and ``democracy.'' \91\ Chinese search engines such
as Baidu, and the China-based search engines of Yahoo!, MSN,
and Google filter search
results, including those relating to the Voice of America,
Radio Free Asia, and human rights. A senior corporate official
from Google testified to the House Committee on International
Relations in February 2006 that one of the factors leading to
the company's decision to filter search results for its China-
based service was:
Many queries, especially politically sensitive
queries, were not making it through to Google's
servers. And access became often slow and unreliable,
meaning that our service in China was not something we
felt proud of. Even though we weren't doing any self-
censorship, our results were being filtered anyway, and
our service was being
actively degraded on top of that. Indeed, at some times
users were even being redirected to local Chinese
search engines.\92\
Google designed its Chinese-language news aggregation
service so that users in China cannot view materials from
dissident news Web sites that Chinese authorities have blocked.
Google has said that it will not deploy e-mail and blogging
services in China because the company cannot meet its own
standards for the privacy and security of users' sensitive
information.\93\
The Party and the government are seeking to expand self-
censorship by instituting ``industry self-discipline.'' During
an August 2005 speech, Liu Yunshan called on propaganda
officials to ``merge propaganda work into the self-supervision
of mass groups and professional organizations,'' and said that
requiring professional organizations to ``tightly integrate
professional discipline and restraint with professional moral
restraint'' will allow employees to ``voluntarily'' accept
government supervision. In April 2006, 14 major Internet
portals, including Sina.com, Sohu.com, Baidu.com, and Yahoo!'s
Chinese Web site, issued a joint proposal calling for the
Chinese Internet industry to censor harmful information, spread
the ideas of President Hu Jintao, and voluntarily accept
government supervision.\94\ Shortly after the Internet portals
issued their
proposal, Internet information providers and industry groups
throughout China made similar announcements.
The state-run media portrayed the Internet portals'
participation as spontaneous and voluntary, but both the GAPP
and State Administration for Radio, Film, and Television
(SARFT) have either used or advocated the use of ``self-
discipline'' agreements and other informal methods to control
the press in China. For example, in April 2006, GAPP Director
Long Xinmin wrote that the government should establish an
administrative system for newspapers and magazines
characterized by Party leadership, government administration,
and industry self-discipline.\95\ In September 2005, SARFT
issued a notice saying that radio announcers and television
hosts would ``voluntarily'' obey professional ethical standards
that SARFT had issued in December 2004.\96\
Political Speech
International human rights standards obligate the Chinese
government to respect the rights of its citizens to publish
political ideas or opinions, even when they are critical of the
government.\97\ Chinese government and Party officials have
said, however, that they will not tolerate the publication of
political ideas or opinions with which they disagree:
Liu Binjie, a deputy director of the General
Administration of Press and Publication (GAPP), has
said that political publications are the highest
priority target for the Sweep Away Pornography and
Strike Down Illegal Publications Task Force.\98\
Shi Feng, another GAPP deputy director,
complained in an October 2005 speech that some
newspapers and periodicals in China have exhibited
``political orientation problems,'' by ``denying the
leading position of Marxism,'' ``violating the Party
line,'' and ``openly smearing the Party's leaders.''
\99\
Officials have said that it is necessary to
``strike hard at'' and ``tightly seal up and
investigate'' political publications that ``spread
political rumors and create ideological chaos.'' \100\
The State Administration for Radio, Film, and Television
(SARFT) issued ``propaganda priorities'' in 2005 that said
broadcasters should ``refuse all incorrect ideological and
political perspectives and expression.'' \101\ The GAPP has
said that it will shut down publications with ``severe
political errors,'' \102\ and in 2005, the Chinese government
confiscated 996,000 publications because of their political
content.\103\ Regulations require that everything published in
China must adhere to Marxism, Leninism, Mao Zedong Thought, and
Deng Xiaoping Theory\104\ and prohibit the publication of
anything that violates the propaganda discipline of the
Party\105\ or contradicts the guiding policies of the
Party.\106\ In addition, Chinese law requires that books and
essays about Party and national government leaders must be
``solemn and discreet,'' and their point of view must conform
to the spirit of various Party documents.\107\
To enforce these ideological restrictions, Chinese
regulations require that publishers submit to the GAPP and the
Central Propaganda Department a list of any ``important topic
selections'' that they plan to publish.\108\ Only publishing
houses that the GAPP specifically approves may publish works
about government and Party leaders, foreign relations,
religion, the history of the People's Republic of China, and
the history of the People's Liberation Army.\109\ In February
2005, a GAPP official warned in a report:
If publishers are careless about strictly screening
topic selection, then serious orientation and quality
problems will occur. . . . Therefore, publishers'
screening of the selection of topics is not merely a
professional matter, but rather is a serious political
responsibility. Therefore, topic selection screening is
a political system.\110\
The GAPP report also said that publishers must carry out
registration procedures for all selections relating to
politics, the military, security, foreign affairs, religion,
ethnicities, and ``other
sensitive issues.'' In addition, the report also noted that it
is illegal to publish anything on these topics that has not
been reported to, and approved by, authorities.
New rules governing the publication of newspapers and
periodicals that went into effect in December 2005\111\ include
requirements that these publications must ``adhere to Marxism-
Leninism,'' ``follow correct guidelines of public opinion and
publication orientation,'' and foster a ``good atmosphere for
building socialism with Chinese characteristics.'' The rules
also require newspapers and periodicals to obey unspecified
``relevant regulations'' when publishing articles that relate
to ``important state policies'' and ethnic and religious
affairs.
SARFT requires screenplays that depict major historic
events and important leaders and their families to be approved
by both the government and the Party.\112\ SARFT issued
regulations in April 2006\113\ that removed the previous
requirement that television producers obtain government
approval for dramas, but
programs relating to modern Chinese history must still have
government approval.\114\ In addition, anyone wishing to film
television programs with content relating to ``important or
sensitive political issues, the military, foreign affairs, the
Party's United Front, religion, ethnicities, the administration
of justice, public security, education, and famous people''
must first request an ``opinion'' from the relevant department
at the provincial level or higher.
Government and Party intolerance of the independent
political views of citizens is particularly apparent before and
during government and Party plenary meetings and some national
holidays. In the weeks before the annual plenary sessions of
the National People's Congress and the Chinese People's
Political Consultative Conference, which concluded in March
2006, Chinese officials took the following measures (in
addition to the Web site closings that were described
previously):
The Sweep Away Pornography and Strike Down
Illegal Publications Task Force held a teleconference
in January 2006 and notified relevant agencies that
they should ``purify the publishing market'' and be on
duty 24 hours per day during the plenary sessions.\115\
Officials in Zhongshan city, Guangdong
province, issued a circular calling on local customs,
traffic, press and publications officials, and
commercial agencies, to step up their enforcement
measures against ``harmful information,'' including
illegal political publications.\116\
Officials in Henan province launched a
crackdown on political publications and Falun Gong
materials to ``ensure the health and stability of the
publications market'' during the plenary sessions.\117\
During the last year Chinese authorities have continued to
silence writers, journalists, and Web sites for expressing
political ideas or opinions with which they disagree. In
October, an Anhui court upheld Zhang Lin's sentence of five
years' imprisonment for subverting state power in connection
with articles he posted on the Internet and a radio interview
he gave.\118\ Chinese authorities detained and imprisoned
several others, including Yang Tianshui, Guo Qizhen, and Li
Yuanlong for publishing articles on foreign Web sites
criticizing the government and the Party.\119\ During the run-
up to the annual plenary sessions, Chinese authorities shut
down the Aegean Sea [Aiqinhai] Web site, as well as four other
sites that had complained on behalf of local workers.\120\ In
June, authorities shut down two of China's major Internet
portals, Sina.com and Sohu.com, for several days to allow the
Internet portals to upgrade their censorship capabilities after
authorities found that the Internet portals failed to filter
certain key words deemed politically harmful.\121\ In July, the
Beijing Communications Administration shut down the ``Century
China'' Web site, a popular Internet discussion forum for
commentary on political, historical, and cultural issues.\122\
In August, authorities shut down the ``Polls'' Web site and
revoked its license after the Web site posted a poll asking
visitors whether the General Secretary of the Communist Party
should be chosen from among several candidates in differential
voting.\123\
Religious Speech
International human rights standards protect the printing
and distribution of religious literature as a fundamental human
right.\124\ The Chinese government asserts that its protection
of freedom of religious belief ``is basically in accordance
with the main contents of [relevant] international documents
and conventions,'' and that everyone in China ``should have the
freedom to compile and distribute printed materials pertaining
to religion or belief.'' \125\ Only government-licensed
printing enterprises may print such materials, however, and
then only with approval from the provincial-level religious
affairs bureau and a certificate of approval from the press and
publication administration.\126\ Printing enterprises in China
may print religious publications for in-house use by customers,
but the printing enterprise must first receive approval from
provincial-level religious and publishing authorities.\127\
Non-religious publications only require printing approval from
publishing authorities at the county level.\128\ Publishing
regulations mandate government authorization and screening of
books and news reports that mention religious issues.\129\ [See
Section V(d)--Freedom of Religion.]
Chinese authorities confiscated 4.62 million items of Falun
Gong and ``other cult organization propaganda material'' in
2005.\130\ This included the confiscation of 9,860 printed
materials in the Xinjiang Uighur Autonomous Region that were
either illegal publications of a religious nature, Falun Gong
materials, or publications related to ``feudal superstitions.''
\131\ In addition, authorities in the Tibet Autonomous Region
confiscated 54 ``Dalai Lama splittist group reactionary
publications.'' \132\
In addition to confiscating religious publications, the
Chinese government also has fined, detained, and imprisoned
citizens for publishing, printing, and distributing religious
literature without government permission. In November and
December 1999, officials detained and arrested Jiang Sunian, an
unregistered Catholic priest from Wenzhou diocese in Zhejiang
province who had published hymnals.\133\ Officials charged
Jiang with illegal publishing.\134\ In April 2000, a court
convicted Jiang under Article 225 of the Criminal Law, assessed
a fine of 270,000 yuan (US$32,000), and sentenced him to six
years' imprisonment. Officials released Jiang in December
2003.\135\ In November 2005, a Beijing court sent Cai Zhuohua,
a pastor of six house churches in Beijing, and two of his
family members to prison under Article 225 of the Criminal Law
for printing and giving away Bibles and other Christian
literature without government permission.\136\ In Anhui
province, house church pastor Wang Zaiqing was arrested in May
2006 on the same charges.
During the last year Chinese authorities have continued to
detain people who express religious ideas or opinions which
they consider incorrect. Chinese authorities detained
documentary filmmaker Hao Wu for 140 days after they discovered
him shooting a documentary about China's unregistered house
churches.\137\ In July 2006, authorities shut down two blogs
maintained by the popular Tibetan poet and writer Oezer, which
she believed was a response to her posting a photograph of the
Dalai Lama.\138\ In August 2006, authorities detained
journalist Zan Aizong for one week after he posted reports on
foreign Web sites about detentions of Protestants who were
protesting the destruction of a church in Xiaoshan city,
Zhejiang province.\139\
Ideological Uniformity
International human rights standards prohibit content-based
restrictions on the press except those necessary to protect the
rights and reputations of others and to meet the requirements
for morality, national security, and public order in a
democratic society.\140\ The Chinese government and the
Communist Party exceed these allowances, however, and control
and censor the press to impose ideological uniformity. In one
of his first speeches as head of the General Administration of
Press and Publication (GAPP), Long Xinmin told officials
attending a national conference in December 2005 to ``maintain
a high degree of uniformity with the political ideology of the
Party Central Committee under Comrade Hu Jintao as Secretary,
and insist on never wavering from Marxism as the guiding
principle of press and publication work.'' \141\ Liu Yunshan
called on propaganda officials to leverage the advantage
provided by the large circulation and distribution of the
state-run news media to guide public opinion in an ``intimate,
natural, quiet, and unobtrusive manner.'' \142\ Shi Feng has
said that investigative reporting must ``serve the work of the
Party and the government.'' \143\ In September 2005, the
Guangming Daily published an editorial saying:
[I]rresponsible expression online easily brings with
it ideological confusion, and creates a severe
challenge for college students' political ideological
education. An important and pressing question for
university political ideological education is how to
use positive and healthy ideological culture to capture
the Internet battlefield and prevent people with
ulterior motives from using the Internet to disseminate
incorrect ideology and information, and resist
infiltration by enemy forces and cult
organizations.\144\
Government and Party leaders also have said that they
intend to co-opt modern communications technologies such as the
Internet and mobile communications, and have called on
officials to ensure that their propaganda reaches newly
emerging social groups.\145\ Liu Yunshan noted that Chinese
society is becoming increasingly complex as it shifts from one
dominated by people employed in state-run enterprises to one in
which more and more people work for
private enterprises.\146\ Given this shifting demographic, Liu
said that Party propagandists must ``expand the targets of
propaganda work'' to new groups, such as young intellectuals,
and ``troubled'' groups, such as unemployed workers, migrant
workers, and farmers who have lost their land.\147\ The Party
also focuses political propaganda on Chinese youth. In late
2005, the Party journal Seeking Truth called on Party cadres to
focus on guiding the organization of college student
groups,\148\ and the Guangming Daily published an editorial
saying that schools should work to form ``united and positive
online public opinion'' by organizing ``ranks of online
commentators.'' \149\ Some Chinese universities have also
instituted student-run monitoring groups to remove offensive
content, including political dissent, from university Internet
forums.\150\
In December 2004, the State Administration of Radio, Film,
and Television (SARFT) issued ethical guidelines requiring
television editors, reporters, and hosts to be loyal to, and
carry out the work of, the Party.\151\ Later the same month,
SARFT announced that it would require television stations to
increase control over what television interviewers say on the
air, and only broadcast programs that ``comply with propaganda
discipline'' produced by government-licensed production
companies and screened by relevant officials.\152\ In March
2005, the Central Propaganda Department, the GAPP, and SARFT
jointly issued regulations requiring news reporting and editing
personnel to support the leadership of the Party, focus on
``correct propaganda'' as their guiding principle, and have a
firm grasp of ``correct guidance of public opinion.'' \153\ In
April 2005, SARFT issued ``Interim Implementation Rules for
Administration of Those Employed as Radio and Television News
Reporters and Editors,'' saying: ``It is necessary to instruct
news reporting and editing personnel to strengthen their
political consciousness.'' \154\ In September 2005, SARFT
issued a notice requiring television
announcers and hosts to increase their study of political
theory, improve their political character and political
proficiency, guide people with correct public opinion,
passionately love the motherland, serve the greater interests
of the work of the Party and the government, and implement the
Party's ``line, principles, and policies.'' \155\ The same
month, SARFT also issued a notice warning that reports relating
to politics and government policies must be handled carefully
to avoid ``problems.'' In addition, to ``ensure the correct
guidance of public opinion,'' radio and television broadcasters
must
receive approval from SARFT before making any ``large-scale
live broadcast reports of significant events . . . especially
those live broadcast reports of activities chaired by central
leading cadres.'' \156\ The notice also requires all
broadcasters to be sensitive to ``political'' issues and to
screen live broadcasts to ``ensure their orientation is
correct.''
The government and the Party remain concerned that Chinese
citizens have increased access to foreign sources of
information that may dilute the Party's control over public
opinion. Senior officials portray the news and information
media as a battlefield for the Party's propaganda work that
must either be occupied or lost to Western countries. For
example, Liu Yunshan has called on Party propagandists to learn
how to open to the outside world but prevent ``Western enemy
forces'' from using their ``economic and technical superiority
to carry out ideological infiltration and cultural expansion''
in order to ``Westernize and divide'' China.\157\ Shi Feng has
said the government must not abandon the battlefield of public
opinion, and has complained that, despite strict government
prohibitions on private and foreign investment in newspaper and
periodical publishing, people continue to ``illegally enter the
newspaper and periodical publication domain,'' and that illegal
publishers are a ``serious threat'' to the Party's ability to
use propaganda to influence ideology.\158\
The Supreme People's Court also supports censorship to
prevent Chinese citizens from having access to ``foreign''
political ideas. In 1998, the same year it issued a judicial
interpretation expanding the scope of Article 225 of China's
Criminal Law to include unauthorized publishing,\159\ it warned
China's judges, ``Foreign enemy forces are using publishing as
a channel to carry out infiltration and aggravation of our
ideology and culture, and there are numerous publications with
political problems circulating within the country's borders.''
\160\
The Chinese government attempts to prevent its citizens
from having access to uncensored political ideas and
information by banning the general distribution of foreign
newspapers, news magazines, and television news programs, and
by restricting the ability of foreign news agencies to
distribute news domestically. In November 2005, Shi Zongyuan,
then Director of the GAPP, said that Chinese authorities had
halted plans to allow foreign newspapers to print in China
because of concerns raised by the recent ``color revolutions''
in former Soviet republics.\161\ Also in 2005, the GAPP
introduced internal restrictions on foreign magazines, limiting
approvals to science and technology publications.\162\ In
October 2004, SARFT issued regulations prohibiting joint
ventures from producing programs on ``political news.'' \163\
In March 2005, SARFT issued an interpretive notice on these
regulations that further limits foreign companies to investing
in a single joint venture, saying:
[W]e must control the contents of all products of
joint ventures in a practical manner, understand the
political inclinations and background of foreign joint
venture parties, and in this way prevent harmful
foreign ideology and culture from entering the realm of
our television program production through joint
investment and cooperation.\164\
In September 2006, Xinhua issued new rules prohibiting
foreign news agencies from distributing news to Chinese
citizens without government permission.\165\ The new rules
require foreign news agencies to be licensed by Xinhua and to
submit all articles to a government-approved agency for
distribution.\166\ The new rules give Xinhua the authority to
select the news and information that foreign news agencies
release, and to delete any information that the government has
banned.\167\ [For information on the commercial implications of
the new rules, see Section VII(d)--Commercial Rule of Law and
the Impact of the WTO.]
To prevent Chinese citizens from using television and radio
to access ideas and opinions that may conflict with the Party
line, the government jams programming offered by the Voice of
America and the British Broadcasting Corporation. The
government also has enacted regulations that restrict private
satellite dish ownership and only permit foreign television
news from broadcasters that are ``friendly'' to China and that
offer their programs through government-controlled
channels.\169\ In August 2005, SARFT issued three notices
restricting Chinese citizens' access to foreign television and
radio content.\166\ In April 2006, SARFT issued a circular\170\
repeating the restrictions on the dissemination of foreign news
reports that were first put in place in 2002.\171\ Both
circulars prohibit local television stations from using news
footage taken from foreign satellite programs and require them
to use only international news
reports provided by China Central Television and China Radio
International. The new circular said these restrictions are
required to ``ensure correct orientation of public opinion,''
because some foreign wire services and news media have
distributed international news to local television stations
with ``blatant political intentions.'' The circular calls on
television regulators to ``firmly establish political
consciousness'' and ``increasingly bring the administration of
international news within the administration of propaganda
work.''
Chinese officials attempt to prevent citizens who use the
Internet from gaining access to ideas and opinions that the
government and Party cannot censor. In February 2006, Liu
Zhengrong, Deputy Chief of the Internet Affairs Bureau of the
State Council Information Office, said Chinese citizens can
access the Web freely, except for ``a very few'' foreign Web
sites that are blocked because their contents mostly involve
pornography or terrorism.\172\ According to one study, however,
Chinese authorities operate ``the most extensive,
technologically sophisticated, and broad-reaching system of
Internet filtering in the world'' to prevent access to
``sensitive'' religious and political material on the
Internet.\173\ The central government blocks the Web sites of
foreign news providers such as the Voice of America, Radio Free
Asia, and the British Broadcasting Corporation, and of human
rights advocacy groups such as Human Rights Watch, Human Rights
in China, Reporters Without Borders, and the Committee to
Protect Journalists. Since May 2005, the Chinese government has
prevented its citizens from accessing the Commission's Web
site.
V(b) Rights of Criminal Suspects and Defendants
findings
The Communist Party's concern with growing
social instability dominated its policy statements over
the past year, and served as justification for
increased government vigilance over activities and
groups that potentially threaten Party legitimacy. Top
Party, court, and law enforcement officials repeatedly
linked the government's policy of pursuing periodic
anti-crime campaigns, referred to as ``Strike Hard''
campaigns, to the goal of maintaining social stability.
Government efforts to maintain social stability have
led to a greater reliance on the coercive powers of the
police to subdue potential threats to Party rule.
Abuse of power by local police forces remains
a serious problem. The Supreme People's Procuratorate
(SPP) has acknowledged the existence of continuing and
widespread abuses in law enforcement, including illegal
extended detentions and torture. New SPP regulations
that detail the criteria for prosecuting official
abuses of power went into effect in July 2006, and
establish standards for the prosecution of police who
abuse their power to hold individuals in custody beyond
legal limits, coerce confessions under torture, acquire
evidence through the use of force, maltreat prisoners,
or retaliate against those who petition the government
or file complaints against them.
The Chinese government continues to apply
vague criminal and administrative provisions to justify
detentions based on an individual's political opinions
or membership in religious, ethnic, or social groups.
These provisions allow for the targeting and punishment
of activists for crimes that ``endanger state
security'' or ``disturb public order'' under the
Criminal Law. The UN Special Rapporteur on Torture
concluded in his March 2006 report to the UN Commission
on Human Rights that the vague definition of these
crimes leaves their application open to abuse,
particularly of the rights to freedom of religion,
speech, and assembly.
Chinese authorities use reeducation through
labor and other forms of administrative detention to
circumvent the criminal process and imprison offenders
for ``minor crimes,'' without judicial review and the
procedural protections guaranteed by the Chinese
Constitution and Criminal Procedure Law. The UN Working
Group on Arbitrary Detention concluded in 2004 that the
Chinese government has made no significant progress in
reforming the administrative detention system to ensure
judicial review and to conform to international law.
Although
proposed reforms would provide some added procedural
protections, they would still not provide an accused
individual the opportunity to dispute the alleged
misconduct and contest law enforcement accusations of
guilt before an independent adjudicatory body.
Although illegal in China, torture and abuse
by law enforcement officers remain widespread. Factors
that perpetuate or exacerbate the problem of torture
include a lack of procedural safeguards to protect
criminal suspects and defendants, over reliance on
confessions of guilt, the absence of lawyers at
interrogations, inadequate complaint mechanisms, the
lack of an independent judiciary, and the abuse of
administrative detention measures. The Chinese
government emphasizes its ongoing efforts to pass new
laws and administrative regulations preventing,
punishing, and compensating cases of torture by law
enforcement officers. Both the SPP and the Ministry of
Public Security have announced their support for audio
and video taping of interrogations of criminal suspects
accused of a limited number of crimes. The Chinese
government recognizes that problems of misconduct,
including physical abuse, exist within Chinese prisons
and reeducation through labor centers, and it is making
progress toward increasing accountability for such
behavior.
In 2006, Chinese authorities increased
restrictions on lawyers who work on politically
sensitive cases or cases that draw attention from the
foreign news media. Law enforcement officials
intimidated lawyers defending these cases by charging
them, or threatening to charge them, with various
crimes. Since mid-2005, local authorities have also
used harassment and violent measures against those who
participated in criminal or civil rights defense in
sensitive matters. Beijing lawyer Zhu Jiuhu was
detained during the past year. Self-trained legal
advocate Chen Guangcheng was sentenced on August 24,
2006, to four years and three months' imprisonment, and
Shanghai lawyer Zheng Enchong is currently under house
arrest after being released from prison on June 5,
2006. Beijing lawyer Gao Zhisheng has been held
incommunicado since authorities reportedly abducted him
on August 15 from his sister's home in Shandong
province. Guo Feixiong, who served as a legal advisor
to Gao's law firm, was arrested and later released in
late 2005, and is currently in detention after being
taken from his home on September 14.
Chinese criminal law includes 68 capital
offenses, over half of which are non-violent crimes.
The Chinese government reportedly has adopted an
``execute fewer, execute cautiously'' policy. In 2006,
the Chinese judiciary made reform of the death penalty
review process a top priority and introduced new
appellate court procedures for hearing death penalty
cases. The Supreme People's Court announced that it
would consolidate and reclaim the death penalty review
power from provincial-level high courts. These reforms
are designed to limit the use of death sentences,
consolidate criteria used by courts to administer those
sentences, and ensure constitutionally protected human
rights.
The Vice Minister of Health acknowledged that
the majority of human organs used in transplants in
China originate from executed prisoners. Under the
World Health Organization's guiding principles on human
organ transplantation, organ donations by prisoners,
even when reportedly voluntary, may nonetheless violate
international standards if the organs are obtained
through undue influence and pressure. New Ministry of
Health regulations include medical standards for organ
transplants, but do not provide guidance on what type
of consent is required for taking organs from executed
prisoners.
The Chinese government continues to engage the
international community on human rights and rule of law
issues, including those related to the criminal justice
system. The government's application for membership in
the UN Human Rights Council noted that it has acceded
to 22 international human rights accords, and that it
plans to amend its Criminal, Civil, and Administrative
Procedure Laws and reform the judiciary to prepare for
ratification of the International Covenant on Civil and
Political Rights. As a member of the new Council, the
government has pledged to fulfill its obligations under
the terms of these accords, and is obligated under the
rules of the Council to submit to peer review of its
human rights record.
Public Security and Coercive Use of Police Power
The Communist Party's concern with growing social
instability dominated its policy statements over the past year,
and served as justification for increased government vigilance
over activities and groups that potentially threaten Party
legitimacy. Top Party, court, and law enforcement officials
repeatedly linked the government's policy of pursuing periodic
anti-crime campaigns, referred to as ``Strike Hard'' campaigns,
to the goal of maintaining social stability.\1\ On a national
level, the government's ``Strike Hard'' campaigns included
crackdowns on the publication of materials, including Falun
Gong literature, that the government deemed to be ``illegal
political publications'' or that allegedly ``spread political
rumors and create ideological chaos'' \2\ [see Section V(a)--
Special Focus for 2006: Freedom of Expression]. Regionally,
provincial-level officials used ``Strike Hard'' campaigns to
justify crackdowns on ``ethnic separatist forces'' in the
Xinjiang Uighur Autonomous Region\3\ and those who might
threaten the operation of the new Qinghai-Tibet railroad,\4\
among other groups. [See Section V(d)--Freedom of Religion--
Religious Freedom for China's Muslims; Section VIII--Tibet for
additional information.]
Government efforts to maintain social stability have led to
a greater reliance on the coercive powers of the police to
subdue potential threats to Party rule.\5\ In late 2005, a land
dispute between local government officials and villagers in
Shanwei city, Guangdong province, escalated into a mass protest
and then a violent confrontation between villagers and the
paramilitary People's Armed Police (PAP).\6\ Both domestic and
international human rights activists condemned the coercive use
of police power to subdue the Shanwei villagers, and called for
an investigation into the PAP's decision to open fire on the
crowd.\7\ Shanwei authorities detained Deputy Director Wu Sheng
of the local public security bureau for mishandling the
situation,\8\ but one month later, Public Security Minister
Zhou Yongkang and the PAP's top two officials reaffirmed the
role of the PAP as a prominent force in guarding against
threats to public order, particularly large-scale mass
incidents.\9\ In May 2006, domestic news media reported that
Party officials delivered a ``stern internal warning'' to Wu
and fired him from office.\10\ No criminal charges were filed
against Wu, but 13 of the villagers who participated in the
protest received sentences ranging from three to seven years'
imprisonment for allegedly ``gathering people to disturb public
order,'' among other crimes.\11\
Party concerns over the type of unrest that occurred in
Shanwei have prompted new government measures that allow for
greater discretion by local police in responding to
``disturbances of public order.'' \12\ In late 2005, Premier
Wen Jiabao warned senior rural bureaucrats that more violence
would result if they continued to commit the ``historic
mistake'' of failing to protect farmers and their lands.\13\ In
April 2006, the Ministry of Public Security (MPS) denied the
existence of conflict between police and villagers.\14\
Instead, MPS officials maintained that China faces ``conflicts
among the people,'' high crime rates, and struggles against
unnamed ``enemies.'' \15\ The MPS reported that crimes of
``disturbing public order'' rose to a total of 87,000 in 2005,
a 6.6 percent increase over the figure in 2004.\16\ Officials
declined to provide a figure for mass incidents in 2005, but
previously reported a rise from 58,000 mass incidents in 2003
to 74,000 in 2004.\17\ In March, a new Public Security
Administration Punishment Law went into effect nationwide and
added 165 new offenses that are subject to administrative
punishments at the discretion of public security agencies,
rather than according to the procedures required under the
criminal justice system.\18\ In a press conference about the
new law, MPS officials
explained that the law entrusts public security agencies and
the police with greater powers and means for protecting social
stability and public order.\19\
Abuse of power by local police forces remains a serious
problem. The government does not encourage external supervision
over police affairs or prosecution of police abuses by the
procuratorate,\20\ as mandated by law.\21\ Instead, the MPS
maintains a system of self-discipline carried out by the police
affairs supervisory departments within local public security
bureaus.\22\ Between 2001 and 2005, 1.5 million on-site
inspections resulted in 330,000 findings of abuse by police
officers.\23\ Of those, 4,321 offending officers were suspended
and 2,576 were taken into custody as punishment for their
wrongdoing.\24\ In February 2006, the MPS announced that it had
suspended a total of 10,034 police officers since 1997 for
breaches of discipline.\25\ The announcement acknowledged the
problem of police misconduct and expressed a high-level
commitment to confront the problem and improve the image of the
police. At the same time, it also confirmed that local police
in some areas openly collude with criminals, without fear of
reprisal. In one case in Hunan province, a court convicted
three senior public security officials for ties to organized
crime, but ultimately suspended their two- and three-year
sentences.\26\
The Supreme People's Procuratorate (SPP) has acknowledged
the existence of continuing and widespread abuses in law
enforcement, including illegal extended detentions and
torture.\27\ New SPP regulations that detail the criteria for
prosecuting official abuses of power went into effect on July
26, 2006, and establish standards for the prosecution of police
who abuse their power to hold individuals in custody beyond
legal limits, coerce confessions under torture, acquire
evidence through the use of force, maltreat prisoners, or
retaliate against those who petition the government or file
complaints against them.\28\ Domestic news media reported in
2006 on the convictions of several public security officials
who had beaten to death criminal suspects or prisoners in their
custody.\29\ In one case, two public security officials
received sentences of 1 year and 12 years' imprisonment,
respectively, for beating a woman to death during police
interrogation.\30\ The local procuratorate did not launch an
investigation until two years after the incident occurred, and
only in response to persistent efforts by the woman's husband
to petition the government.\31\ In response to these reports,
one Chinese legal scholar criticized authorities for being too
lenient and for shielding one another from punishment.\32\ In
July, an SPP spokesperson stated that local procuratorates do
not lack potential cases against official abuses of power, but
that ``many of them are cases that [the procuratorates] don't
dare handle, are unlikely to handle, and cannot handle.'' \33\
Political Crimes
The Chinese government continues to harass, detain, and
imprison citizens for the peaceful exercise of fundamental
rights guaranteed under the Chinese Constitution and
international declarations and treaties such as the Universal
Declaration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights (ICCPR).\34\ In some
cases, police detain individuals without formal charge or
judicial review, in contravention of provisions in both the
UDHR and the ICCPR.\35\ Arbitrary detentions intensified during
politically sensitive periods, such as the periods both
preceding and following the visits of U.S. President George W.
Bush and Manfred Nowak, UN Special Rapporteur on Torture, in
November and December 2005, respectively.\36\ Police also
detained, placed under surveillance, and harassed citizens
before the first anniversary of former Communist Party General
Secretary Zhao Ziyang's death in January 2006,\37\ and before
and after the March 2006 plenary sessions of the National
People's Congress (NPC) and Chinese People's Political
Consultative Conference.\38\ A senior official from the
Ministry of Public Security justified police use of mass
roundups during the plenary sessions by stressing the need to
``manage public order'' and ``reduce some of the factors
threatening social stability'' \39\ [see Section VII(c)--Access
to Justice--Citizen Petitioning]. In most cases, police
released individuals after a few days in detention.
The Chinese government continues to apply vague criminal
and administrative provisions to justify detentions based on an
individual's political opinions or membership in religious,
ethnic, or social groups, even when authorities identify a
formal charge and initiate the legal process. These provisions
allow for the targeting and punishment of activists for crimes
that ``endanger state security'' or ``disturb public order''
under the Criminal Law.\40\ After a 2004 visit to China, the UN
Working Group on Arbitrary Detention (UNWGAD) recommended that
the Chinese government define these crimes in precise terms and
create exceptions under the Criminal Law for the peaceful
exercise of fundamental rights guaranteed by the UDHR.\41\
Nowak noted after his visit to China in late 2005 that the
UNWGAD's recommendations have not been implemented to date.\42\
He concluded in his March 2006 report to the UN Commission on
Human Rights: ``The vague definition of these crimes leaves
their application open to abuse, particularly of the rights to
freedom of religion, speech, and assembly.'' \43\
Courts convict 99 percent of those tried for crimes that
allegedly ``endanger state security,'' and the Dui Hua
Foundation, a U.S. NGO that advocates for political prisoners
in China, reports: ``The great majority were detained for non-
violent expression of their political and religious beliefs.''
\44\ ``Splittism'' and ``inciting splittism,'' \45\ as well as
``subversion of state power'' and ``inciting subversion of
state power,'' \46\ are classified as crimes that endanger
state security under the Criminal Law. Chinese authorities
continue to use charges of ``splittism'' and ``inciting
splittism'' to target and punish peaceful activities by ethnic
Uighurs and Tibetans [see Section V(d)--Freedom of Religion--
Religious Freedom for China's Muslims; Section VIII--Tibet].
They continue to apply charges of ``subversion'' and ``inciting
subversion'' to target and punish the peaceful activities of
writers, journalists, and publishers [see Section V(a)--Special
Focus for 2006: Freedom of Expression], as well as those who
have supported the creation of independent political parties or
associations [see Section VII(a)--Development of Civil
Society].
Faced with an increasing number of ``public order
disturbances'' in 2005, Chinese authorities have applied
criminal provisions to crack down on otherwise lawful citizen
attempts to challenge government abuses.\47\ Many of the
``public order disturbances'' that
occurred in 2005 involved alleged crimes of ``gathering people
to disturb public order,'' \48\ ``obstructing public
services,'' \49\ ``gathering people to engage in affrays,''
\50\ and ``creating disturbances.'' \51\ From 2004 to 2005,
these ``public order disturbances'' increased by 13 percent,
18.9 percent, 5.8 percent, and 11.8 percent, respectively.\52\
In one case, a local people's court in Yulin city, Shaanxi
province, sentenced private investor and former Party official
Feng Bingxian to three years' imprisonment for ``gathering
people to disturb public order'' and obstructing the work of
government agencies.\53\ Feng's conviction was based on his
efforts to meet with local officials and discuss compensation
for private property that the government seized in 2003.\54\
The procuratorate charged that the presence of too many
investor representatives led to traffic congestion, disturbance
of public order, and interference with the work of the
government.\55\ At the time that the procuratorate indicted
Feng, the NPC was publicizing efforts to increase legal
protection for property rights.\56\
Since late 2005, government officials have abused Criminal
Law provisions on ``public order disturbances'' to silence
property rights advocates in particular. In 2004, the
government amended the
Constitution to recognize explicitly the private property
rights of Chinese citizens.\57\ One year later, at the same
time that Shaanxi officials detained Feng Bingxian, Guangdong
provincial authorities used force to suppress citizen efforts
to defend property rights in Shanwei city\58\ and Taishi
village\59\ in Guangzhou city. In October 2005, Guangdong
authorities arrested legal advocate Yang Maodong (who uses the
pen name Guo Feixiong) for ``gathering people to disturb public
order.'' \60\ The charge was based on Guo's efforts to advise
Taishi villagers in their recall campaign against the village
committee head, who allegedly had embezzled compensation funds
for government seizures of farmland [see Section VII(b)--
Institutions of Democratic Governance and Legislative Reform].
In February 2006, the Guangdong Public Security Bureau
circulated a report that blamed a succession of mass protests
in 2005 on ``disputes over so-called rights defense.'' \61\
With the release of this report, Guangdong authorities made
explicit their campaign against legal advocates such as Guo and
directly linked the activities of these individuals to crimes
of ``disturbing public order.''
The Chinese government has released a small number of
political prisoners since August 2005, but many Chinese
citizens continue to serve long prison or reeducation through
labor sentences for political or religious activities.\62\ In
April 2005, the Chinese government insisted that authorities do
not apply a stricter standard for evaluating sentence
reductions and parole in crimes that ``endanger state
security.'' \63\ Between early 2005 and 2006, however,
officials granted sentence reductions or early releases to
political prisoners in only a few cases.\64\ Authorities
released most political prisoners only when their court-imposed
sentences expired. The list of released political prisoners
includes political activist Wang Wanxing, journalist Liu Shui,
legal advocate Guo Feixiong, journalist Jiang Weiping, Falun
Gong practitioner Charles Lee, labor activist Xiao Yunliang,
journalist and Tiananmen democracy activist Yu Dongyue,
Internet publisher Cai Lujun, China Democracy Party member Tong
Shidong, Internet writer Luo Changfu, house church activist
Xiao Gaowen, Shanghai lawyer Zheng Enchong, Gyatso Children's
Home founder Nyima Choedron, and Catholic auxiliary bishop An
Shuxin.\65\ Despite the Chinese government's pledge to conduct
a national review of cases involving political acts that are no
longer crimes under Chinese law,\66\ some prisoners are still
serving sentences for counterrevolutionary and other crimes
that were removed from the Criminal Law in 1997.\67\
Arbitrary Detention in the Formal Criminal Process
The UN Working Group on Arbitrary Detention (UNWGAD)
defines the deprivation of personal liberty to be ``arbitrary''
if it meets one of the following conditions:
(1) there is clearly no legal basis for the deprivation
of liberty;
(2) an individual is deprived of his liberty because he
has exercised rights and freedoms guaranteed under the
Universal
Declaration of Human Rights (UDHR) or the International
Covenant on Civil and Political Rights (ICCPR); or
(3) non-compliance with the standards for a fair trial
set out in the UDHR and other relevant international
instruments is sufficiently grave to make the detention
arbitrary.\68\
Chinese authorities use measures such as surveillance or
house arrest\69\ to punish and control political activists,
even when no legal basis exists for such deprivations of
liberty. Authorities in Linyi city, Shandong province, placed
Chen Guangcheng, a legal advocate who exposed and challenged
the abuses of local population planning officials [see Section
V(h)--Population Planning], under house arrest on September 6,
2005.\70\ In March 2006, Chen's house arrest exceeded the six-
month limit permitted by Chinese law.\71\ A network of Chinese
human rights activists and groups subsequently worked with
Chen's defense lawyers to submit information about his case to
the UNWGAD, the UN Special Rapporteur on the Independence of
Judges and Lawyers, and the Special Representative of the
Secretary General for Human Rights Defenders.\72\ From March
until formal notification of Chen's criminal detention on June
10, Linyi authorities held Chen without charge or trial.\73\
Since March, authorities have kept Chen's wife under
surveillance at their home, formally arrested several of Chen's
relatives, beaten and summoned Chen's lawyers for
interrogation, and placed other activists under house arrest to
prevent them from holding a press conference about Chen's
case.\74\
Chinese authorities also have used incommunicado detention
to punish and control particularly high-profile political
offenders who exercise their fundamental rights. The Criminal
Procedure Law (CPL) permits detention without arrest or charge,
but generally requires notification of family members or the
detainee's workplace within 24 hours of custody.\75\ Despite
this legal safeguard, a number of activists, including Hu Jia,
disappeared in February 2006 after launching a nationwide
hunger strike to protest government abuses [see Section IV--
Introduction]. Hu, who has campaigned on behalf of HIV/AIDS
patients [see Section V(g)--Public Health--HIV/AIDS], was
missing from February 16 to March 28. When Hu reappeared, he
reported that security officers took him from his home and held
him on the outskirts of Beijing without any legal formalities
and without notifying his family.\76\ In February, a UN agency
expressed concern about Hu's disappearance and reported his
case to the Ministry of Health.\77\ Others who have been held
incommunicado include Gedun Choekyi Nyima and his parents,
abducted by Chinese officials in 1995 after the Dalai Lama
recognized him as the reincarnation of the Panchen Lama, and
Catholic Bishop Su Zhimin, who reportedly has been detained in
a form of house arrest since 1997. Both Gedun Choekyi Nyima and
Bishop Su have been the subject of frequent U.S. and
international inquiries, but the Chinese government denies that
it took coercive measures against either of them. [See Section
V(d)--Freedom of Religion--Religious Freedom for Tibetan
Buddhists; Section V(d)--Freedom of Religion--Religious Freedom
for China's Catholics and China-Holy See Relations for
additional information.]
Law enforcement authorities continue to detain Chinese
citizens for long periods without formal charge or trial,
despite official statements to the contrary. In January 2006,
the Chinese government reported to Manfred Nowak, UN Special
Rapporteur on Torture, that serious cases of extended detention
lasting more than three years had been eliminated, and that the
number of individuals held beyond time limits was at an all-
time low.\78\ The government further reported that the number
of provinces, autonomous regions, and municipalities in which
there were no cases of extended detention had risen from 14 at
the end of 2003 to 29.\79\ In May 2006, the Supreme People's
Procuratorate (SPP) identified Beijing as one of nine
municipalities or provinces where no cases of extended
detention had occurred in 2005.\80\ Despite these claims,
Beijing authorities repeatedly used provisions in Chinese law
to hold New York Times researcher Zhao Yan from September 17,
2004, until his trial date on June 16, 2006.\81\ After invoking
several legal exceptions to extend Zhao's pretrial detention,
authorities indicted him on December 23, 2005, for disclosing
state secrets and for fraud.\82\ The Beijing procuratorate
withdrew its case against Zhao on March 17, 2006,\83\ shortly
before President Hu Jintao's visit to the United States, but
resumed legal proceedings based on the same charge in May,
after Hu returned to China.\84\ The court permitted the
procuratorate to resume its case, despite objections from
Zhao's defense lawyer that this action was illegal.\85\ The
UNWGAD has concluded that Zhao's detention was arbitrary
because it resulted from the exercise of rights guaranteed
under the UDHR and the ICCPR, and because official non-
compliance with the international standards for a fair trial
was sufficiently grave.\86\
Chinese authorities do not comply with the minimum
international standards for prompt judicial review of criminal
detention and arrest. Both the UDHR and the ICCPR prohibit
arbitrary detention or arrest. Under the ICCPR, anyone detained
or arrested on a criminal charge must be brought promptly
before a judge or other officer authorized by law to exercise
adjudicatory powers, for review of the lawfulness of his
detention or arrest.\87\ In December 2004, the UNWGAD found
that the CPL and related regulations on pretrial detention fail
to meet this basic standard because: (1) Chinese suspects
continue to be held for too long without judicial review; (2)
procurators, who review arrest decisions, only examine case
files and do not hold a hearing; and (3) a procurator cannot be
considered an independent adjudicator under applicable
international standards.\88\ In May 2006, the SPP acknowledged
that unlawful extended detentions remain problematic, and that
Chinese authorities misuse provisions in the CPL to disguise
this problem.\89\ The SPP is currently working with the Supreme
People's Court and Ministry of Public Security to finalize new
regulations that will seek to address the problem of extended
detention.\90\
Administrative Detention
The Chinese government continues to punish large numbers of
citizens administratively, without effective judicial review
and in contravention of human rights standards under the
Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights
(ICCPR).\91\ Public security agencies reported that they
investigated and charged a total of 6.3 million ``public
security'' (zhi'an) offenses in 2005, up from 5.4 million in
2004.\92\ ``Public security'' offenses include public order
disturbances, traffic offenses, prostitution, drug use, and
other ``minor crimes'' that the Chinese government typically
sanctions with administrative punishments rather than formal
criminal sentences.\93\ In some instances, public security
agencies handle cases administratively because they do not have
enough evidence for a formal prosecution,\94\ or because it is
a convenient method for detaining and harassing activists.\95\
Administrative punishments can range from a warning or fine to
detention in a reeducation through labor (RTL) center for up to
three years, with the possibility of a one-year extension.\96\
Administrative punishments such as RTL can be harsher than some
criminal punishments such as fines, public surveillance, and
criminal detention of one to six months.\97\
In March 2006, Manfred Nowak, UN Special Rapporteur on
Torture, concluded that the RTL system and other forms of
administrative detention ``go beyond legitimate rehabilitation
measures provided for in [A]rticle 10 of the ICCPR.'' \98\
Forms of administrative detention include short-term detention
under the Public Security Administration Punishment Law (PSAPL)
and long-term
detention such as RTL, forced psychiatric commitment, ``custody
and education'' of prostitutes and their clients, forced drug
detoxification, work-study schools, and discipline and
inspection of corrupt officials under Party rules.\99\ Although
many public security cases do not result in detention, the U.S.
State Department estimates that at least 260,000 to 310,000
individuals are currently detained in approximately 340 RTL
centers.\100\ In addition, another 350,000 individuals were
held in facilities for drug offenders and prostitutes as of
2004.\101\ The government consistently has emphasized the
beneficial ``reeducation'' function of administrative detention
measures,\102\ but Nowak found that ``some of these measures of
[reeducation] through coercion, humiliation and punishment aim
at altering the personality of detainees up to the point of
even breaking their will.'' \103\
The Chinese government is in the process of reforming the
administrative punishment system, but these reforms seek to
codify rather than abolish it. In August 2005, the National
People's Congress Standing Committee passed the PSAPL to
provide a basis in national law for short-term detentions of up
to 20 days. In addition to establishing more severe punishments
than its predecessor, the Regulations on Public Security
Administration Punishment, the new law creates 165 new offenses
subject to administrative punishment effective March 1,
2006.\104\ These offenses include, among other things, ``taking
on the name of religion or qigong to carry out activities
disturbing public order'' \105\ and ``inciting or plotting
illegal assemblies, marches, or demonstrations.'' \106\ The new
law reaffirms the role of public security bureaus as the
entities that determine and administer punishments for public
security violations. Ministry of Public Security officials have
interpreted this provision to mean greater powers and means for
public security agencies and police to carry out their duties
and protect stability.\107\ The new law provides for
disciplinary sanctions and criminal liability to address
violations of human rights, such as coercing confessions under
torture or exceeding time limitations on interrogation.\108\
The law, however, lacks mechanisms for external supervision of
public security agencies and police, and lacks standards for
imposing disciplinary and criminal sanctions on police abuses.
Although short-term administrative detention of up to 20
days for public security offenses now has a basis in national
law under the PSAPL, long-term administrative detention,
including RTL, is authorized only under administrative
regulations and therefore violates Chinese law. The Legislation
Law requires that all deprivations of personal liberty be
authorized by national law, and not by administrative
regulation.\109\ Under the criminal justice system, a Chinese
citizen cannot be found guilty of any crime, even a ``minor
crime,'' without being judged guilty by a people's court.\110\
The Constitution makes explicit the inviolable nature of a
person's liberty and further dictates:
No citizen may be arrested except with the approval or
by decision of a people's procuratorate or by decision
of a people's court, and arrests must be made by a
public security organ. Unlawful deprivation or
restriction of citizens' freedom of person by detention
or other means is prohibited. . . .\111\
Nonetheless, Chinese authorities use RTL and other forms of
long-term administrative detention to circumvent the criminal
process and imprison offenders for ``minor crimes,'' without
judicial review and the procedural protections guaranteed by
the Chinese Constitution and Criminal Procedure Law.\112\
The UN Working Group on Arbitrary Detention (UNWGAD)
concluded that between its 1997 and 2004 visits, the Chinese
government had made no significant progress in reforming the
administrative detention system to ensure judicial review and
to conform to international law.\113\ Domestic pressure is
building to reform the RTL system, particularly in the National
People's Congress (NPC).\114\ Since March 2005, the NPC has
been considering a new Law on the Correction of Unlawful Acts
that would provide a basis in national law for RTL.\115\ The
draft law reportedly enhances the rights of RTL prisoners by
setting a maximum sentence of 18 months, and by permitting
defendants to hire a lawyer, request a hearing, and appeal
sentences imposed by public security officials in RTL
cases.\116\ Although the reforms would provide some added
procedural protections, the draft law would still not provide
an accused individual the opportunity to dispute the alleged
misconduct and contest law enforcement accusations of guilt
before an independent adjudicatory body.\117\ Public security
officials continue to dominate the decisions of RTL
administration commissions,\118\ which consist of officials
from the public security, civil affairs, and labor
bureaus.\119\ The Chinese government has argued that
administrative detention decisions are subject to judicial
review under the Administrative Procedure Law (APL), but the
UNWGAD found APL review ``of very little value'' and maintained
that ``no real judicial control has been created over the
procedure to commit someone to [reeducation] through labor.''
\120\
The UNWGAD also has found that the government's practice of
forced psychiatric commitment of criminal offenders is a ``form
of deprivation of liberty, since it lacks the necessary
safeguards against arbitrariness and abuse.'' \121\ The U.S.
State Department estimates that there are at least 20
ankang,\122\ or special psychiatric institutions for mentally
ill criminal offenders, in China. Public security officials can
forcibly commit ``political maniacs,'' and increasingly have
done so as a measure against those who repeatedly petition the
government such as Liu Xinjuan,\123\ or political activists
such as Wang Wanxing.\124\ The government deprives these
individuals of their liberty without judicial review.\125\
Treatment in these institutions is sometimes brutal, and
political prisoners are held along with patients suffering from
true mental illnesses.\126\ Upon his release in August 2005,
Wang called for the government to cease psychiatric detention
of those without mental illness and transfer administration of
ankang hospitals from public security
officials to psychiatric professionals.\127\ He added that the
inability to object to public security officials' determination
that one is
mentally ill ``makes it so difficult for the inmates to hope
for release--more difficult than in prison or in a labor camp,
where the punishments are for a fixed term.'' \128\
Torture and Abuse in Custody
Although illegal in China, torture and abuse by law
enforcement officers remain widespread.\129\ In March 2006,
Manfred Nowak, UN Special Rapporteur on Torture, reported that
Falun Gong practitioners make up the overwhelming majority of
victims of alleged torture [see Section V(d)--Freedom of
Religion--Government Persecution of Falun Gong], and that other
targeted groups include Uighurs, Tibetans, human rights
defenders, and political activists.\130\ About half of all
alleged acts of torture take place in pretrial criminal
detention centers or reeducation through labor (RTL) centers,
and 47 percent of alleged perpetrators are police or other
public security officials.\131\ Forms of torture and abuse
cited in Nowak's report include beating, electric shock,
painful shackling of the limbs, denial of medical treatment and
medication, and hard labor.\132\ Foreign news media and NGOs
reported that torture by law enforcement officers resulted in
the death of at least one detainee during the past year.\133\
The widespread use of torture in China violates both
domestic and international law. Chinese domestic law prohibits
judicial officers from coercing confessions under torture or
acquiring evidence through the use of force, and imposes
criminal liability on police and other corrections officers who
beat or maltreat prisoners, if the circumstances are
particularly ``serious.'' \134\ The government is further bound
by the provisions of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that
prohibit the use of torture.\135\ Nowak has said that the
government's definition of torture under the Criminal Law and
administrative regulations does not correspond fully to the
international standard as outlined in Article 1 of the
CAT.\136\ In addition, the government does not recognize the
competence of the Committee against Torture authorized under
the CAT to investigate allegations of systematic torture.\137\
Factors that perpetuate or exacerbate the problem of
torture in China include a lack of procedural safeguards to
protect criminal suspects and defendants, over reliance on
confessions of guilt, the absence of lawyers at interrogations,
inadequate complaint mechanisms, the lack of an independent
judiciary, and the abuse of administrative detention
measures.\138\ In late 2005 and early 2006, the U.S. State
Department and several faith-based organizations reported that
these factors and the pervasiveness of torture and abuse by
public security officials contributed to the conviction of
Pastor Gong Shengliang of the banned South China Church.\139\
Following their release from prison in late 2003 and early
2004, several female members of the church disclosed that
public security
officials tortured and forced them to sign statements accusing
Pastor Gong of the sexual crimes for which he was ultimately
convicted.\140\ Pastor Gong reportedly continues to be tortured
in prison,\141\ and is confined for a life term.
The Chinese government emphasizes its ongoing efforts to
pass new laws and administrative regulations preventing,
punishing, and compensating cases of torture by law enforcement
officers.\142\ Some of these new measures appeared after a
series of news media reports in 2005 on wrongful convictions
drew national attention to widespread abuses in the criminal
justice system and the continuing problem of torture.\143\ In
April 2005, the Sichuan provincial government prohibited the
use of evidence acquired through illegal means and introduced a
requirement that interrogation in ``major'' cases be
taped.\144\ Other provincial governments have not followed
Sichuan's lead in excluding illegally acquired evidence,\145\
but have shown more willingness to adopt the practice of audio
and video taping of interrogations as a preventive measure
against torture. In early 2006, the Supreme People's
Procuratorate mandated that by October 1, 2007, all
procuratorate interrogations of criminal suspects in job-
related crimes such as graft and dereliction of duty be audio
and video taped.\146\ At the March 2006 plenary session of the
National People's Congress, one deputy submitted a proposal
calling on the Ministry of Public Security (MPS) to mandate
tapings of police interrogations in cases of crimes punishable
by death.\147\ The MPS has announced that it will promote audio
and video taping of police interrogations in homicide and
organized crime cases, and that public security bureaus in
economically developed areas such as Shanghai and Beijing
municipalities have already adopted this practice.\148\ It has
no formal plans for nationwide implementation.
The Chinese government recognizes that problems of
misconduct, including physical abuse, exist within Chinese
prisons and RTL centers, and it is making progress toward
increasing accountability for such behavior. In February 2006,
the Ministry of Justice (MOJ) established punishments ranging
from warnings to dismissal and criminal liability for prison
and RTL police found to violate prohibitions against beating,
or instigating others to beat, prisoners.\149\ Under these new
regulations, police activities will be subject to regular
supervision and investigation by the MOJ and local justice
bureaus, to ensure that they comply with legal requirements.
Beijing municipal authorities have also imposed quality control
measures on prison police that authorize warnings, demotions,
and dismissals for misconduct including insults, beatings,
prolonged confinement, and isolation of inmates.\150\
Access to Counsel and Right to Present a Defense
Most defendants in China go to trial without a lawyer, and
domestic sources cite fear of law enforcement retribution and
the lack of legal protections for lawyers as major factors in
the low rate of representation.\151\ Chinese law grants
criminal defendants the right to hire an attorney, but
guarantees pro bono legal defense only if the defendant is a
minor, faces a possible death sentence, or is blind, deaf, or
mute.\152\ In other cases in which defendants cannot afford
legal representation, courts may appoint defense counsel or the
defendant may apply for legal aid.\153\ In late 2005, the
Chinese government expanded the scope of legal aid in criminal
cases and required public security bureaus and procuratorates
to notify all criminal suspects of their right to apply for
legal aid.\154\ Criminal suspects who cannot afford legal
services can now make a request for legal aid as early as the
investigative stage of their case, and do not have to wait
until formal indictment.\155\ Despite these advances, lawyers
represent criminal defendants in, at most, 30 percent of all
cases, and the rate of representation continues to drop.\156\
Government abuses of provisions in the Criminal Procedure
Law (CPL) have prevented some criminal defendants who are able
to find lawyers from meeting with them. Under Chinese law,
suspects have a right to meet with their lawyers after police
interrogation or from the first day of their formal
detention.\157\ Nevertheless, after the first interrogation,
police have manipulated legal exceptions to deny lawyers access
to their clients or otherwise obstruct or encumber such
access.\158\ The UN Working Group on Arbitrary Detention
identified China's use of the ``state secrets'' exception as
one area of particular concern, noting that authorities apply
the exception to improperly interfere with access to defense
counsel.\159\ In late 2005, Beijing lawyer Gao Zhisheng
attempted to register as defense counsel for democracy activist
Xu Wanping, but authorities refused to grant him access to Xu
on the grounds that the case involved ``state secrets.'' \160\
Authorities also held freelance writer Yang Tongyan (who uses
the pen name Yang Tianshui) without access to a lawyer or
contact with his family, again citing ``state secrets.'' \161\
According to Yang's lawyer, the inability of lawyers to get
involved during the investigative stage is a ``tacitly
understood, unwritten rule'' in political cases.\162\ Chinese
scholars have urged amending the CPL to allow for lawyers to be
present throughout the criminal process, beginning with the
interrogation of a criminal suspect, to help guard against
coerced confessions under torture and other abuses.\163\
Chinese law imposes procedural obstacles that make it
difficult for lawyers to build and present an adequate defense.
In practice, defense lawyers cannot start building a case until
the official investigation ends and a case is transferred to
the procuratorate.\164\ Even then, police and procurators often
deny lawyers access to government case files and information,
despite provisions in the CPL that are intended to guarantee
access to those materials.\165\ Defense lawyers can gather
information in support of their case from a witness, but must
obtain the consent of the witness or permission from a
procuratorate or court.\166\ In June and July, authorities
obstructed attempts by lawyers to meet with witnesses and
gather evidence in defense of legal advocate Chen
Guangcheng.\167\ Li Jinsong, one of Chen's defense lawyers,
reported that unidentified assailants attacked him during a
visit to Chen's home village, and that police officers stood by
and watched.\168\ In order to interview crime victims, defense
lawyers must obtain both the consent of the victim and
permission from a procuratorate or court.\169\ In addition,
about 95 percent of witnesses in criminal cases do not appear
in court to testify, in part due to hardship or fear of
reprisals.\170\ The inability of defense lawyers to cross-
examine witnesses undermines their ability to represent their
clients.\171\ Chinese scholars involved in the discussion of
potential amendments to the CPL suggest that a provision
requiring witnesses to appear in court should be written into
the law.\172\
In 2006, Chinese authorities increased restrictions on
lawyers who work on politically sensitive cases or cases that
draw attention from the foreign news media. The All China
Lawyers Association issued a guiding opinion that restricts and
subjects to punishment lawyers who handle collective cases
without authorization [see Section VII(c)--Access to Justice--
Access to Legal Representation]. Defense lawyers have also
reported that local authorities apply added pressure in cases
that involve systemic problems or large groups of people.\173\
In April 2006, local justice bureaus in at least two provinces
formalized this growing practice by issuing opinions to
restrict the scope of activities that lawyers are permitted to
undertake in particularly sensitive or high-profile cases [see
Section VII(c)--Access to Justice--Access to Legal
Representation].\174\ The opinion issued by the justice bureau
in Shenyang city, Liaoning province, emphasized the role of
Chinese lawyers as protectors of social stability and builders
of a harmonious society, and implied that these functions may
outweigh the defense of legally protected rights.\175\
Law enforcement officials intimidated lawyers defending
these cases by charging them, or threatening to charge them,
with various crimes [see Section IV--Introduction], including
``evidence fabrication'' under Article 306 of the Criminal
Law.\176\ Such charges often prove to be groundless.\177\ At
the March 2006 plenary session of the National People's
Congress, one delegate submitted a motion to eliminate the
Criminal Law's provision on evidence fabrication and noted its
chilling effect on criminal defense work.\178\ Since mid-2005,
local authorities have also used harassment and violent
measures against those who participated in criminal or civil
rights defense in sensitive matters such as the Shaanxi oil
case and Taishi recall election\179\ [see Section IV--
Introduction]. Asia Weekly included prominent legal advocates
and scholars Chen Guangcheng,\180\ Fan Yafeng,\181\ Gao
Zhisheng,\182\ Guo Feixiong,\183\ Guo Guoting,\184\ Li
Baiguang,\185\ Li Heping,\186\ Xu Zhiyong,\187\ Zhang
Xingshui,\188\ Zheng Enchong,\189\ and Zhu Jiuhu\190\ among
China's 14 ``Icons of 2005,'' \191\ but all have been placed
under surveillance or other government restrictions after
drawing news media attention to themselves and their legal
cases. Zhu Jiuhu was detained during the past year. Chen
Guangcheng was sentenced on August 24, 2006, to four years and
three months' imprisonment, and Zheng Enchong is currently
under house arrest after being released from prison on June 5,
2006. Gao Zhisheng has been held incommunicado since
authorities reportedly abducted him on August 15 from his
sister's home in Shandong province. Guo Feixiong was arrested
and later released in late 2005, and is currently in detention
after being taken from his home on September 14.
Fairness of Criminal Trials and Appeals
China's criminal justice system is strongly biased toward
presumptions of guilt, particularly in cases that are high-
profile or politically sensitive.\192\ The conviction rate for
first instance criminal cases rose slightly and remained above
99 percent in 2005.\193\ After Chinese reports disclosed in
2005 that official malfeasance had led to the wrongful murder
conviction of She Xianglin, a local court official blamed the
miscarriage of justice on negligence by investigative
personnel, intense public pressure, and a heavy presumption of
guilt throughout the criminal process.\194\ The local court,
city government, and public security bureau all acknowledged
wrongdoing in She's case and agreed to provide compensation or
subsidy based on his wrongful imprisonment, physical and
emotional damages, lost wages, and reintegration into
society.\195\ She Xianglin's case sets a potential precedent
for similar claims based on wrongful conviction and
imprisonment. Reports of wrongful murder convictions in Hebei,
Henan, Liaoning, and Shaanxi provinces appeared in the news
throughout 2005, and similarly called into question the
fairness of those trials and the criminal process.\196\
Reports of wrongful convictions indicate that public
security officials and procurators rely heavily on pretrial
witness statements to support their case,\197\ despite
provisions in the Criminal Procedure Law (CPL) that say such
statements cannot serve as the sole basis for a criminal
judgment.\198\ In February 2006, an intermediate people's court
in Chongqing municipality reversed its original death sentence
against a man convicted of robbery, and called into question
the procuratorate's heavy reliance on pretrial statements that
were later retracted during the trial.\199\ One Chinese legal
scholar has reported that retraction of pretrial statements is
increasing, and that in recent years, the reliability of
pretrial statements has become increasingly suspect.\200\
According to one criminal defense lawyer, even when lawyers
and judges believe that a defendant may be innocent, ``external
factors'' may nonetheless lead to a criminal conviction.\201\
Senior court officials and Party political-legal committees
continue to influence judicial decisionmaking, particularly in
sensitive or important criminal cases\202\ [see Section
VII(c)--Access to Justice--The Chinese Judicial System]. In
addition, Chinese procurators may appeal acquittals as a matter
of right or request ``adjudication supervision'' from higher
courts until they obtain a guilty verdict.\203\ In practice,
procurators have incentives to do so, since they face potential
liability and professional sanction for wrongful detention if a
criminal suspect is acquitted.\204\
Chinese defendants who are judged to be guilty face limited
prospects for reversal of their conviction, due to procedural
and other barriers. In one case during the past year, Beijing
court officials pressured house church pastor Cai Zhuohua into
giving up his right to an appeal,\205\ even though provisions
under the CPL guarantee this right.\206\ If an appeals court
finds a case to be based on questionable or incomplete
evidence, it may send the case back to a court of first
instance for retrial.\207\ However, courts of first instance
have incentives not to change their original judgments because
they face potential liability and professional sanction for
incorrect decisions\208\ [see Section VII(c) --Access to
Justice--The Chinese Judicial System]. Procedural provisions do
not limit the number of times an appeals court may send the
case back for retrial, so some cases based on questionable or
incomplete evidence have bounced back and forth between courts,
sometimes for several years while the defendant remains in
prison.\209\
Capital Punishment
Chinese criminal law includes 68 capital offenses, over
half of which are non-violent crimes such as tax evasion,
bribery, and embezzlement.\210\ The Chinese government
reportedly has adopted an ``execute fewer, execute cautiously''
policy, but the government publishes no official statistics on
the number of executions and considers this figure a state
secret.\211\ Some Chinese sources have estimated that the
annual number of executions in China is in the thousands.\212\
In 2006, the Chinese judiciary made reform of the death
penalty review process a top priority and introduced new
appellate court procedures for hearing death penalty cases.
After news accounts of several wrongful murder convictions in
2005, the Supreme People's Court (SPC) convened seminars to
help lower-level courts draw lessons from judgments made in
error.\213\ In October 2005, the SPC announced that it would
consolidate and reclaim the death penalty review power from
provincial-level high courts, as part of a five-year court
reform program for 2004 to 2008.\214\ Court officials emphasize
that returning the power of death penalty review to the SPC
will play a significant role in limiting the use of death
sentences, consolidating criteria used by courts to administer
those sentences, and ensuring constitutionally protected human
rights.\215\ The SPC's five-year court program also mandates
that in 2006, provincial-level high courts will begin to
conduct hearings on all death penalty appeals.\216\ At these
hearings, courts are required to conduct a ``comprehensive
examination'' of the trial court's conclusions of fact and law,
and to ensure that key witnesses, expert witnesses,
procurators, and lawyers appear in court.\217\ Some provincial-
level high courts began implementing these requirements in
January 2006, and have commented that court hearings help them
to minimize wrongful executions and to provide greater
protection to criminal defendants.\218\
The Chinese government took positive steps toward reform of
death penalty procedures in 2006, but legal scholars and
professionals question how these steps will be implemented in
practice. In 2005, provincial-level high courts reviewed nearly
90 percent of death sentences handed down in China.\219\ The
SPC has added three criminal tribunals to cope with the
additional work from
reclaiming death penalty review from the high courts, and has
already transferred hundreds of court personnel to staff the
new tribunals.\220\ Scholars at the National Judges College,
however, expressed concern that three new criminal tribunals
would require training at least 300 new judges.\221\ Moreover,
early reports indicate that provincial-level high courts do not
agree about which cases require court hearings under the law,
or about the specific procedures that they should apply to
hearings.\222\ The SPC has not yet issued a judicial
interpretation to help settle unresolved issues in the death
penalty review process and further clarify its own
procedures.\223\
Harvesting of Organs From Executed Prisoners
In July 2005, Huang Jiefu, Vice Minister of Health, became
the first senior official to acknowledge that the majority of
organs used in transplants in China originate from executed
prisoners.\224\ Other officials maintain that organ harvesting
is limited to a few cases in which the express consent of the
condemned convicts has been obtained, and pursuant to strict
legal regulations.\225\ In 2006, new reports from overseas
medical and legal experts condemned the government's continuing
practice of harvesting organs from executed prisoners without
their consent.\226\
Existing Chinese law legalizes the harvesting of organs
from executed prisoners, but does not regulate the practice in
a way that conforms to international standards. Under the World
Health Organization's guiding principles on human organ
transplantation, organ donations by prisoners, even when
reportedly voluntary, may nonetheless violate international
standards if the organs are obtained through undue influence
and pressure, or if insufficient information prevents the donor
from understanding the consequences of consent.\227\ Ministry
of Health regulations that became effective on July 1, 2006,
include new medical standards for organ transplants in
China.\228\ These regulations do not provide guidance, however,
on what type of consent is required for taking organs from
executed prisoners, and leave intact 1984 provisions that
legalize organ harvesting if no one claims the prisoner's body
for burial.\229\
Criminal Justice Exchanges
Chinese scholars and officials continued to engage foreign
governments and legal experts on a range of criminal justice
issues during late 2005 and 2006. Chinese law enforcement
agencies expressed a growing interest in cooperating with other
countries to combat transnational crime,\230\ and in expanding
cooperation with U.S. law enforcement agencies on money
laundering, fighting terrorism, and other issues.\231\ Numerous
international conferences and legal exchanges with Western
NGOs, judges, and legal experts took place, including programs
on public accountability, pretrial discovery, evidence
exclusion, criminal trials and procedure, bail, capital
punishment, prison reform, and other subjects.\232\
Participants in these programs encouraged more such
exchanges.\233\
The Chinese government continues to engage the
international community on human rights and rule of law issues,
including those related to the criminal justice system. The
government hosted visits by the UN Special Rapporteur on
Torture from November to December 2005\234\ and the UN High
Commissioner for Refugees in March 2006.\235\ Both UN officials
commended the Chinese government for its open attitude toward
increased dialogue,\236\ but Manfred Nowak, UN Special
Rapporteur on Torture, also reported that his work was
monitored and obstructed by Chinese authorities.\237\ On May 9,
2006, China was elected to serve for a three-year term on the
newly established UN Human Rights Council.\238\ The
government's application for membership in the Council noted
that it has acceded to 22 international human rights accords,
including five of the seven core conventions.\239\ In addition,
the government reports that it plans to amend its Criminal,
Civil, and Administrative Procedure Laws and reform the
judiciary to prepare for ratification of the International
Covenant on Civil and Political Rights.\240\ As a member of the
new Council, the government has pledged to fulfill its
obligations under the terms of these accords,\241\ and is
obligated under the rules of the Council to submit to peer
review of its human rights record.\242\
V(c) Protection of Internationally Recognized Labor Rights
findings
The Chinese government does not respect the
internationally recognized right of workers to organize
their own unions. The All-China Federation of Trade
Unions (ACFTU), a Party-led mass organization, is the
only legal labor federation in China. It controls local
union branches and aligns worker and union activity
with government and Party policy. The ACFTU began a
campaign in March 2006 to establish union branches in
foreign enterprises doing business in China. Chinese
workers who attempt to form independent workers'
organizations, or whom the government suspects of being
leaders of such organizations, risk imprisonment. The
government secretly tried labor rights activist Li
Wangyang and sentenced him to 10 years' imprisonment in
September 2001 for staging a peaceful hunger strike. Li
had previously served most of a 13-year sentence for
organizing an independent union. In May 2003, the
government sentenced labor activist Yao Fuxin to a
seven-year prison term for peacefully rallying workers
to demand wage and pension arrearages from a bankrupt
state-owned enterprise. Li and Yao remain in prison.
Weak protection of worker rights has
contributed to an increase in the number of labor
disputes and protests. According to ACFTU figures, the
number of labor disputes rose sharply in 2005. The
ACFTU reports that there were 300,000 labor-related
lawsuits filed, a 20.5 percent increase over 2004 and a
950 percent increase compared to 1995. Strikes,
marches, demonstrations, and collective petitions
increased from fewer than 1,500 in 1994 to about 11,000
in 2003, while the number of workers involved increased
from nearly 53,000 in 1994 to an estimated 515,000 in
2003. Poor workplace health and safety conditions and
continuing wage and pension arrearages were the most
prominent issues resulting in labor disputes during the
past year. Chinese industry continues to have a high
accident rate, with death rates in the mining and
construction industries leading other sectors.
According to official statistics, 110,027 people were
killed in 677,379 workplace accidents through December
2005, and more than 10,000 workers died in the mining
and construction sectors during 2005.
Forced labor is an integral part of the
Chinese administrative detention system. Authorities
sentence some prisoners without judicial review to
reeducation through labor (laojiao) centers, where they
are forced to work long hours without pay to fulfill
heavy production quotas, and sometimes are tortured for
refusing to work. China's Labor Law prohibits forced
labor practices in the workplace, and authorities have
arrested employers who trap workers at forced labor
sites. In 2002, the Chinese government began to
cooperate with the International Labor Organization on
broad issues of concern regarding forced labor,
including on potential reforms to the reeducation
through labor system, and on improving institutional
capacity to combat human trafficking for labor
exploitation.
The use of child labor in some regions of
China is reportedly on the rise. Labor shortages in the
economically developed southern and eastern coastal
provinces are causing employers to turn to child
laborers, according to NGO reports. This development
coincides with intensified efforts by the Ministry of
Justice and the Ministry of Labor and Social Security
to fight the illegal employment of children, suggesting
that the government is more concerned about such abuses
than before. Government authorities consider statistics
on child labor that have not been officially approved
for release to be ``state secrets,'' and this policy
thwarts efforts to understand the extent and causes of
the problem.
In 2006, the U.S. and Chinese governments
continued to conduct a series of bilateral cooperative
activities on wage and hour laws, occupational safety
and health, mine safety and health, and pension program
oversight.
Internationally Recognized Labor Rights
The Chinese government is committed through its membership
in the International Labor Organization (ILO) to respect a
basic set of internationally recognized labor rights for
workers: the freedom of association and the right to collective
bargaining, the elimination of forced labor, the abolition of
child labor, and non-discrimination in employment and
occupation. The ILO's Declaration on the Fundamental Principles
and Rights at Work (1998 Declaration) commits ILO members ``to
respect, to promote and to realize'' these fundamental rights
based on ``the very fact of [ILO] membership.'' \1\ China is a
founding member of the ILO, and has been a member of the ILO
Governing Board since June 2002.\2\
The ILO's eight core conventions provide guidance on the
full scope of worker rights and principles enumerated in the
1998 Declaration.\3\ Many ILO members have not ratified all of
these core conventions, but each member is committed to respect
the fundamental right or principle addressed in each.\4\ China
has ratified four of the eight ILO core conventions, including
two core conventions on the abolition of child labor (No. 138
and No. 182) and two on non-discrimination in employment and
occupation (No. 100 and No. 111).\5\ The ILO reports that the
Chinese government is preparing to ratify the two core
conventions on forced labor (No. 29 and No. 105).\6\
Chinese labor law generally incorporates the basic
obligations of the ILO's eight core conventions, with the
exception of the provisions relating to the freedom of
association and the right to collective bargaining.\7\ The
Chinese government's failure to implement existing labor
regulations, however, and the general lack of awareness
regarding worker rights among citizens, renders most of the
protective aspects of Chinese labor law ineffective. The
administrative detention system prescribes forced labor as a
punishment for those accused of ``minor crimes'' [see Section
V(b)--Rights of Criminal Suspects and Defendants--
Administrative Detention],\8\ in contravention of the 1998
Declaration, relevant ILO conventions,\9\ and Article 8 of the
International Covenant on Civil and Political Rights
(ICCPR).\10\
In March 2001, the Chinese government ratified the
International Covenant on Economic, Social, and Cultural Rights
(ICESCR), which guarantees the right of workers to strike, the
right of workers to organize independent unions, the right of
trade unions to function freely, the right of trade unions to
establish national federations or confederations, and the right
of the latter to form or join international trade union
organizations. The Chinese government took a reservation to
Article 8(1)(a) of the ICESCR, which guarantees workers the
right to form free trade unions. The government asserted that
application of the article should be consistent with the
Chinese Constitution and the Trade Union Law. The Trade Union
Law does not allow for the creation of independent trade
unions.\11\
Freedom of Association
The Chinese government does not respect the internationally
recognized right of workers to organize their own unions.
Article 22 of the International Covenant on Civil and Political
Rights guarantees that ``[e]veryone shall have the right to
freedom of association with others, including the right to form
and join trade unions for the protection of his interests.''
The All-China Federation of Trade Unions (ACFTU), a Communist
Party-led mass organization, is the only legal labor federation
in China. It controls local union branches and aligns worker
and union activity with government and Party policy.\12\ The
Trade Union Law requires the ACFTU to ``uphold the leadership
of the Communist Party.'' \13\ Wang Zhaoguo, the current ACFTU
chairman, is a Politburo member, and the Party, not union
members, selected him as ACFTU chairman.\14\ Article 10 of the
Trade Union Law establishes the ACFTU as the ``unified national
organization,'' and Article 11 mandates that all unions must be
approved by the next higher-level union body, giving the ACFTU
an absolute veto over the establishment of any local union and
the legal authority to block the formation of independent
workers' associations.\15\ Article 15 of the ACFTU constitution
stipulates that the establishment of an ACFTU branch in a
factory ``must be endorsed by its general membership or
membership congress.'' \16\ Most workers, however, do not vote
in union elections and most officials are appointed to their
union posts.\17\
Since 2004, ACFTU and Party officials have made major
efforts to expand their control over non-unionized groups of
workers. In 2004, the ACFTU announced the target of recruiting
6.6 million workers per year from 2004 to 2008.\18\ It also
launched a major recruitment drive aimed at migrant
workers.\19\ Authorities permitted migrant workers to become
union members for the first time in 2003, but ACFTU officials
announced in 2006 that only 13.8 percent of the total migrant
workforce has been ``unionized.'' \20\
The ACFTU began a campaign in March 2006 to establish
unions in foreign enterprises doing business in China,
including Wal-Mart, Kentucky Fried Chicken, McDonald's, and
Samsung.\21\ ACFTU officials noted in July that some 60 percent
of the 500,000 foreign enterprises in China have not
established ACFTU branches,\22\ and made the promotion of
unions within foreign enterprises a priority for the second
half of 2006.\23\ ACFTU Chairman Wang Zhaoguo proposed an
amendment to the Trade Union Law on July 5 that would
specifically require foreign enterprises to establish ACFTU-
affiliated unions.\24\ ACFTU pressure has led to the creation
of some local branches in foreign enterprises doing business in
China. In July and August, unions were established in 17 Wal-
Mart stores in China.\25\ The ACFTU's campaign to establish
unions in foreign enterprises followed a March directive issued
by top Party leaders ordering the establishment of Party
committees and trade unions in foreign enterprises as a means
to counter social unrest.\26\ Labor experts have noted that the
ACFTU's 2006 efforts to expand the number of local branches in
foreign enterprises is an effort to respond to declining ACFTU
membership, increasing labor protests, efforts by Chinese
workers to organize independent unions, and an increase in the
percentage of the workforce composed of non-unionized migrant
workers.\27\
Some local authorities have experimented with using direct
elections to choose the leaders of union branches, but Party
authorities and higher-level ACFTU officials retain control
over the selection and approval of candidates.\28\ ACFTU
officials in Hubei province began an experimental program of
direct elections for union officials in 2004, and issued a
directive in July 2005 to implement the program on a province-
wide basis by 2009.\29\ The Hubei regulations provide that
higher-level ACFTU officials and Party authorities are
responsible for choosing the electoral leadership groups that
determine candidate eligibility. These authorities also approve
the specific proposals of individual union branches about how
to conduct their direct elections.\30\
Chinese workers who attempt to form independent workers'
organizations, or whom the government suspects of being leaders
of such organizations, risk imprisonment. The government
secretly tried labor rights activist Li Wangyang and sentenced
him to 10 years' imprisonment in September 2001 for staging a
peaceful hunger strike. Li had previously served most of a 13-
year sentence for organizing an independent union.\31\ In May
2003, the government sentenced labor activist Yao Fuxin to a
seven-year prison term for rallying workers to demand payment
of wage arrearages and pension benefits from a bankrupt state-
owned enterprise in Liaoning province.\32\ Yao reportedly
suffers from serious medical problems resulting from his
imprisonment.\33\ Li and Yao remain in prison.
Right to Collective Bargaining
Chinese labor law does not prohibit collective bargaining,
but the absence of independent unions to represent worker
interests makes the concept of bargaining with employers on
behalf of workers incompatible with the Chinese labor
system.\34\ Trade union officials at the enterprise level
function as part of the enterprise management structure for
whom, according to three Western and Chinese labor experts,
``the idea of representing and protecting the legitimate rights
and interests of their members in opposition to those of the
employer is something unfamiliar, if not totally alien.'' \35\
Although collective bargaining does not exist, trade union
officials are permitted under Article 20 of the Trade Union Law
to facilitate a process of ``equal consultations'' between
workers and employers that can result in a ``collective
contract.'' \36\ The Provisions on Collective Contracts, issued
by the Ministry of Labor and Social Security (MOLSS) in January
2004, detail the specific content which may be included, and
the procedures for negotiating, such contracts.\37\ Once
concluded, the collective contract is legally binding on both
employer and employees, but the contract generally
includes only the ``bare-boned reflections of labor statutory
minimums,'' according to one Western scholar.\38\ Another group
of Western and Chinese academics examining collective contracts
and the consultation process concluded in 2004 that trade
unions defer to the employer on any contentious issue. Both the
union and the employer are reluctant to include any provisions
in the collective contract that ``might subsequently provide
grounds for a grievance or dispute.'' \39\ Collective contracts
covered more than 103 million Chinese workers at the end of
September 2005, out of a total urban labor force of around 250
million.\40\ The majority of collective contracts are not
actually negotiated, but rather model agreements endorsed by
the employer and union without the direct involvement of
workers.\41\ In addition, most collective contracts are
``single-issue'' agreements, usually pertaining to wages,
rather than comprehensive agreements covering all aspects of
labor relations.\42\
The Chinese labor dispute resolution process does not
provide workers with meaningful union support to address
workplace grievances. Labor disputes in China are channeled
through the government's three-stage labor dispute resolution
process: mediation,
arbitration, and litigation.\43\ Workers enter the first stage
of dispute resolution without union representation. Article 80
of the Labor Law designates the union branch chief to serve as
chair of the labor dispute mediation committee.\44\ As chair,
the union official mediates on an equal basis between employer
and employee, and does not represent the employee in the
dispute. If mediation fails, either party may apply to an
arbitration committee for a hearing.\45\ The high cost of
arbitration discourages workers from applying. According to one
National People's Congress (NPC) delegate, labor arbitration
typically costs 420 yuan (US$52.39), about half the average
monthly wage for Chinese workers.\46\ Workers who choose to
arbitrate face other obstacles to achieving a fair outcome.
Article 81 of the Labor Law designates a ``tripartite
structure'' for the arbitration committee: the employer's
representative, the union's representative, and the
government's local labor bureau representative, who serves as
chair.\47\ In effect, the local labor bureau representative, in
consultation with two representatives from the enterprise
management team, decides how to rule on a worker's
complaint.\48\
Chinese authorities currently are experimenting with
reforms to the labor dispute resolution system. The Supreme
People's Court issued a judicial interpretation on August 14
that allows workers seeking to recover back wages to bypass the
labor arbitration process and sue directly in court.\49\ Some
authorities have supported the creation of arbitration
tribunals, which are specialized sub-divisions of arbitration
committees, to resolve labor disputes. Chinese news media
reports note that the creation of these tribunals is an effort
to make arbitration determinations ``more neutral'' by
separating the administrative functions of the arbitration
committees from hearing and deciding cases.\50\ These tribunals
also conduct mediation in addition to their arbitration work.
Shenzhen authorities created the first such tribunal in
2001,\51\ and the MOLSS reported in May 2006 that Chinese
authorities have since established 116 of the tribunals
throughout China.\52\ Descriptions of the work responsibilities
for some of the provincial tribunals emphasize that they should
handle ``major,'' ``cross-provincial,'' or ``emergency''
events, suggesting that the tribunals may be focused on
handling specifically designated, high-profile cases.\53\
The courts are the final recourse for resolving labor
disputes, pursuant to Article 83 of the Labor Law.\54\ The All-
China Federation of Trade Unions (ACFTU) reports that there
were 300,000 labor-related lawsuits filed in 2005, a 20.5
percent increase over 2004 and a 950 percent increase compared
to 1995.\55\ Like arbitration, litigation costs are high, which
``results in many workers being unable to afford a lawyer or to
even bring the case to court,'' according to one Chinese legal
scholar.\56\ The scholar
recommended in December 2005 to the NPC Standing Committee that
the NPC should enact a labor dispute resolution law that would
allow courts to hear labor cases with simplified, less
expensive procedures that better protect worker rights. The law
should include evidentiary rules that do not discriminate
against workers, the scholar said.\57\ She criticized the
current three-stage process for labor dispute resolution as
``more complex than the procedure for resolving regular civil
disputes,'' and recommended that parties to certain types of
labor disputes be able to choose to litigate directly without
meeting the current precondition that parties first complete
arbitration.\58\
Draft Labor Contract Law
The National People's Congress (NPC) circulated a draft of
a new Labor Contract Law for public comment in early 2006,\59\
the first law that would govern exclusively the establishment,
revocation, and termination of labor contracts, and the rights
of workers and employees who sign them.\60\ During the one-
month period for public comment, the NPC received over 190,000
comments, and claimed that over 65 percent of these were
submitted by Chinese workers.\61\
Current Chinese law mandates labor contracts, but
implementation and enforcement of this mandate have been poor.
Chapter 3 of the Labor Law outlines the requirements and
procedures for individual and collective labor contracts, and
Article 16 mandates labor contracts between workers and
employers.\62\ A recent NPC survey found that less than 20
percent of small- and medium-size private enterprises use labor
contracts.\63\ According to a survey published in 2006, 46
percent of migrant workers did not have labor contracts with
their employers.\64\ Current law is deficient in that the
contractual relationship between enterprises and workers hired
though labor contractors is not defined. The widespread use of
both legal and illegal labor contractors results in numerous
cases of non-payment, underpayment, or late payment of wages,
especially in the construction sector. Moreover, when labor
contractors fail to give contracts to the workers they hire and
assign to enterprises, the workers often cannot prove a
contractual relationship with the enterprise, which is the
principal employer for whom they have performed the work.\65\
The State Council compiled the draft Labor Contract Law for
NPC consideration to increase the formation rate for written
labor contracts. The draft law provides for a ``contractual
relationship'' in situations where employers do not sign
written contracts with their employees,\66\ and it standardizes
labor contract rules and procedures in a way that ``tilts more
toward workers,'' according to an All-China Federation of Trade
Unions official.\67\ The Ministry of Labor and Social Security
began a three-year effort, concurrent with consideration of the
draft law, to compel all employers to sign labor contracts with
their workers, as required under the existing Labor Law.\68\
Some companies that have complied with Chinese labor
contract regulations are concerned that the draft law includes
provisions that would be both expensive and cumbersome to
business owners,\69\ and would take away market-driven
flexibility in hiring and firing.\70\ These provisions include
a requirement that workers receive severance pay if fixed-term
contracts expire and are not renewed, and a mandatory payment
equaling an employee's annual salary to enforce non-compete
agreements.\71\
One article in the Chinese state-controlled media
criticized portions of the proposed draft for being too weak,
pointing out that it does not cover part-time workers or
students engaged in work-study programs, that it fails to
provide definitions for key terms such as ``technical'' and
``non-technical'' positions, and that the sanctions it applies
on employers who withhold workers' wages in bad faith do not
exceed the requirements of existing labor regulations.\72\
ACFTU Role in Protecting Worker Rights
The careers of union leaders are tied to their rank in the
Communist Party, and local union officials generally are
recruited from enterprise management. This system compromises
the ability and willingness of unions to defend worker rights
when they conflict with Party or employer interests.\73\
Article 6 of the Trade Union Law calls on unions to ``represent
and safeguard the legitimate rights and interests of workers,''
\74\ but in practice this directive means that unions help
workers only in ways that do not conflict with government and
Party policy, such as by managing welfare assistance programs
for workers and organizing social events. Some local unions,
however, have developed innovative programs to help workers,
within the limits of government and Party policy. For example,
the Tianjin Trade Union Council has developed new procedures to
aid unemployed workers, monitor safety problems and accidents,
and resolve employee-employer disputes.\75\
Some national-level All-China Federation of Trade Unions
(ACFTU) programs have had a positive impact on worker rights,
while also maintaining consistency with government policy
goals. ACFTU efforts in the past year to expand the
availability of legal aid services to workers, and to improve
worker knowledge of the dispute resolution process, are part of
the central government's policy responses to Party concerns
about growing social unrest\76\ [see Section VII(c)--Access to
Justice]. According to news media reports from early 2006,
nearly 4,000 legal aid offices were established by ACFTU
branches in 2005. Provincial branches must establish a legal
aid office by the end of 2006, but county branches have three
years to do so.\77\ In 2005, the Shenzhen Federation of Trade
Unions' legal aid efforts included outreach to ensure that
workers understand their rights in cases of unlawful discharge,
occupational injury, and compensation arrearages.\78\ In June
2006, the ACFTU and the State Administration of Work Safety
began a program to inspect mining, construction, and
manufacturing worksites to ensure safe conditions for migrant
workers.\79\
Elimination of Forced Labor
Forced labor is an integral part of the Chinese
administrative detention system [see Section V(b)--Rights of
Criminal Suspects and Defendants--Administrative Detention].
Authorities sentence some prisoners without judicial review to
reeducation through labor (RTL, or laojiao) centers, where they
are forced to work long hours without pay to fulfill heavy
production quotas, and sometimes are tortured for refusing to
work.\80\ Prisoners in RTL centers have suffered physical
injuries from extended periods of repetitive labor, and former
prisoners report that fainting from exhaustion is common.\81\
The Chinese government continues to deny the International
Committee of the Red Cross access to such centers.
China's Labor Law prohibits forced labor practices in the
workplace,\82\ and authorities have arrested employers who trap
workers at forced labor sites. Article 96 of the Labor Law
prohibits employers from ``compelling workers to work by the
use of force, threat or by resorting to the means of
restricting personal freedom,'' \83\ but only specifies light
penalties for violators including a warning, fine, or 15 days
in custody for the person in charge.\84\ Chinese press
reports over the past year, however, have described some
instances of overseers coercing workers to remain in factories
or fields for work without pay, and beating or torturing those
who try to
escape.\85\
In 2002, the Chinese government began to cooperate with the
International Labor Organization (ILO) on broad issues of
concern regarding forced labor, including potential reforms to
China's RTL system, to prepare for the eventual ratification of
the ILO's two conventions on forced labor.\86\ Since September
2004, the ILO's Special Action Program to Combat Forced Labor
has been working with the Chinese Ministry of Labor and Social
Security to improve institutional capacity within China to
address the law enforcement aspects of the trafficking cycle,
and to assist employers' and workers' organizations in
identifying cases of forced labor\87\ [see Section V(e)--Status
of Women--Human Trafficking].
Prison Labor Products
Section 307 of the Tariff Act of 1930 prohibits the import
of goods made by prisoners into the United States.\88\ The
United States and China signed a Memorandum of Understanding in
1992 to prevent the import into the United States of prison
labor products. A subsequent agreement in 1994 permits U.S.
officials, with Chinese government permission, to visit prison
facilities suspected of producing products for export to the
United States.\89\ The U.S.-China Relations Act of 2000 created
a Prison Labor Task Force to monitor and promote enforcement of
U.S. law in this area.\90\ In 2005, the Chinese government
cooperated with the Task Force to resolve a number of alleged
cases of prison labor products being exported to the United
States.\91\
Although goods made in Chinese prisons probably do not
constitute a large percentage of overall Chinese imports into
the United States, the types of products produced by prisoners,
and the commercialization of the Chinese prison system, make
prison labor products difficult to detect. Many prison labor
goods are produced under abusive conditions,\92\ and Chinese
prisoners cannot refuse to produce goods for the commercial
market.\93\ Although the term laogai, or reform through labor,
has been expunged from the Criminal Law as a term describing
one form of criminal punishment, Western and Chinese experts
estimate the number of commercial prison factories in China to
be in the thousands.\94\ One senior Chinese official expressed
concern in 2004 about the commercial use of prison labor as a
source of official corruption, and noted instances of prison
administrators mixing prison-made goods with those from
ordinary commercial enterprises.\95\
Abolition of Child Labor
The use of child labor in some regions of China is
reportedly on the rise, according to analyses over the past
year by NGOs with expertise on Chinese labor issues.\96\ State-
controlled media reported in June that the Ministry of Justice
and the Ministry of Labor and Social Security intensified their
efforts ``to fight illegal employment of child laborers,''
suggesting that the government is more concerned about such
abuses than before.\97\ Article 15 of the Labor Law prohibits
employing children under the age of 16, and Article 94 provides
for punishment of businesses that employ children, including
revocation of their business licenses.\98\ Chinese law bars
employers from hiring juvenile workers between 16 and 18 years
old to engage in mining, or highly strenuous or hazardous work,
and requires employers to provide such workers with regular
health inspections.\99\ The State Council issued a rule in
September 2002 requiring employers to check identity cards to
verify age, and imposing fines of 5,000 yuan (US$625) a month
for each child laborer employed.\100\ Government authorities
consider statistics on child labor that have not been
officially approved for release to be state secrets, and this
policy thwarts efforts to understand the extent and causes of
the problem.\101\
Labor shortages in the economically developed southern and
eastern coastal provinces are causing employers to turn to
child laborers, according to NGO reports.\102\ Hong Kong news
media has reported on employers who exploit child labor by
recruiting underage students to work in factories as
``interns.'' In one press report, teachers at a school in
Shaanxi province arranged for about 600 students to be employed
in a joint venture electronics factory in southern China. At
the time of the report, more than 240 students were working on
the factory's assembly lines for up to 14 hours a day of
``practical training.'' \103\ Although factory owners may
legally employ interns, employers abuse internship programs
when they rely on students as a large percentage of their
workforce and do not pay them fairly for work performed,
according to one publication on corporate social responsibility
issues in China.\104\
Hong Kong based experts have asserted that the Chinese
education system is partly to blame for the problem of child
labor because insufficient state funding, expensive local
surcharges, and an excessive focus on college entrance exams
leads many students to drop out of school.\105\ Poverty also
leads to child labor abuses. Some poor families send children,
frequently girls, to find work as a means of support.\106\
Other children work because their families cannot afford to pay
school tuition fees, or because schools have hired them out to
fill budget shortfalls.\107\
Non-discrimination in Employment and Occupation
The Constitution, Labor Law, and Law on the Protection of
Interests and Rights of Women all contain provisions that
guarantee women non-discrimination in employment and
occupation\108\ [see Section V(e)--Status of Women]. The Rules
on Collective Contracts issued in December 2003 contain
``special protections'' for women, including provisions on
pregnancy and breastfeeding in the workplace.\109\ The Chinese
government has also begun national development programs to
improve the status of women.\110\ Despite these efforts and
legal protections, both urban and rural women in China have
limited earning power compared to men, and women lag behind men
in finding employment in higher-wage urban areas.\111\
Some local authorities provide job training and
reemployment services for women,\112\ and civil society groups
may advocate for women's rights within the confines of
government and Party policy [see Section V(e)--Status of
Women--Gender Disparities]. For example, the Center for Women's
Law and Legal Services at Peking University submitted a
petition in March 2006 to the National People's Congress (NPC)
Standing Committee requesting constitutional review of a
regulation that requires women workers to retire five years
before men.\113\ The petition recommended that a future Chinese
Pension Law include a provision for a flexible retirement
system that allows both men and women to retire at or around 60
years of age.\114\ As of August 2006, the NPC Standing
Committee had not responded to the petition,\115\ and it has no
legal obligation to do so [see Section VII(c)--Access to
Justice--Constitutional
Review].
Article 4 of the Chinese Constitution prohibits ethnic
discrimination,\116\ and Article 12 of the Labor Law forbids
discrimination in job hiring on the basis of ethnicity.\117\
Nevertheless, ethnic discrimination continues to exist
throughout China in both private and governmental hiring
practices. Some Han Chinese entrepreneurs in ethnic minority
areas recruit Han workers from other areas rather than hiring
local minorities.\118\ Tibetans have reported discrimination in
job hiring.\119\ According to the head of the Qinghai-Tibet
railway construction project, 10,000 of 100,000 workers
employed were Tibetan,\120\ and most of the Tibetan workers
were employed in menial labor positions.\121\ In the Xinjiang
Uighur Autonomous Region (XUAR), personnel decisions in 2005
and 2006 explicitly favored Han Chinese over minorities. In
April 2005, for example, the government specified that 500 of
700 new civil service positions in the southern XUAR would be
reserved for Han Chinese.\122\ In June 2006, the Xinjiang
Production and Construction Corps announced it would recruit
840 civil servants from the XUAR, designating almost all of the
job openings for Han Chinese and reserving 38 positions for
members of specified minority groups.\123\
Conditions for China's Workers
Weak protection of worker rights has contributed to an
increase in the number of labor disputes and protests.
According to All-China Federation of Trade Unions (ACFTU)
figures, the number of labor disputes rose sharply in 2005. The
ACFTU reports that there were 300,000 labor-related lawsuits
filed, a 20.5 percent increase over 2004 and a 950 percent
increase compared to 1995.\124\ Strikes, marches,
demonstrations, and collective petitions increased from 1,482
in 1994 to about 11,000 in 2003, while the number of workers
involved increased from 52,637 in 1994 to an estimated 515,000
in 2003.\125\ Participants in all labor disputes rose from
77,794 in 1994 to nearly 800,000 in 2003.\126\ Poor workplace
health and safety conditions and continuing wage and pension
arrearages were the most prominent issues resulting in labor
disputes during the past year. Workers in all parts of China
have difficulty collecting the wages that they are owed for
work performed. Workers in the construction sector have the
most problems with wage arrearages,\127\ and the continuing
building boom, along with new construction for the 2008
Olympics in Beijing, will challenge central and local
governments to ensure that workers are paid promptly.
Workplace Health and Safety Conditions
Workplace health and safety conditions in China remain
poor, despite central government statements about the need to
improve safety and despite efforts at the enterprise level to
cut the rate of industrial accidents. Chinese industry
continues to have a high accident rate, with death rates in the
mining and construction industries leading other sectors.
According to State Administration of Work Safety (SAWS)
statistics, 110,027 people were killed in 677,379 workplace
accidents through December 2005, and more than 10,000 workers
died in the mining and construction sectors during 2005.\128\
The government has continued to take steps to address
China's poor workplace safety record. In February 2006, SAWS
ordered the closure of 35,842 companies that failed to meet a
requirement to obtain safety licenses by the end of 2005,
warning that it would
ensure compliance by cutting off electric power to the
companies' facilities.\129\ SAWS also announced in February
2006 that the government is drafting legislation that would
hold top provincial and city government and Party officials
responsible for fatal accidents that result from lapses in
workplace safety.\130\ Criminal Law amendments passed in June
2006 strengthen punishments for work safety violation,
including new penalties for personnel who hinder rescue efforts
by covering up or failing to report accidents.\131\ In July,
the government ratified a safety plan for the 11th Five-Year
Program aimed at addressing major problems in workplace
safety.\132\ In August, the government announced it would
dedicate 467.4 billion yuan (US$58.81 billion) over the next
five years to curb workplace accidents.\133\
The Ministry of Health implemented a plan in May 2006 to
improve rural migrant worker health that includes a number of
goals for improving workplace health and safety conditions for
migrant workers. These goals include implementing health and
safety training and instruction programs in mid- and small-
scale businesses, and undertaking collaborative efforts with
the World Health Organization and the International Labor
Organization.\134\ Many migrant workers are employed in
industries in which they are exposed to occupational diseases
and other workplace safety hazards, according to an expert with
the Chinese Center for Disease Control.\135\
Occupational Health
Occupational diseases and injuries are widespread in many
Chinese industries. Estimates of the incidence rate of
occupational diseases and injuries caused by chemicals, toxic
fumes, and machinery vary and are difficult to confirm. For
example, one Chinese press report estimates that 200 million
workers suffer from occupational diseases.\136\ The SAWS
officials who provided the estimate note that the number of
workers suffering from occupational diseases is increasing, and
describe the victims as mostly younger, poor workers.\137\
Coal Mine Safety
Deaths in the coal mining sector totaled 5,938 in 2005,
according to official Chinese statistics,\138\ but some NGOs
estimate that the number of deaths is much higher.\139\ A
political scientist at the Chinese Academy of Social Sciences
offered the view that ``China is so hungry for energy that safe
coal produced by safe mines is not enough to quench its
thirst.'' \140\ Press reports suggest that Chinese coal mines
are the world's deadliest.\141\ Fires, explosions, and floods
occur in Chinese mines almost daily.\142\ The government has
set the modest goal of reducing coal mine deaths during 2006 by
3.5 percent, but one workplace safety activist believes that
``even this will take a great effort to realize.'' \143\
Chinese officials have ordered the closure of dangerous
mines, most of which are small, privately run mines, in an
attempt to control the number of coal mine accidents.\144\
Small mines produce one-third of China's coal output, but are
responsible for two-thirds of coal mine deaths.\145\ The
government deems mines that produce under 30,000 tons per year
as most vulnerable to accidents, and intends to close all such
mines by the end of 2007.\146\ Most of these small mines are
expected to merge administratively with larger mines with
better safety records.\147\
Pervasive official corruption impedes implementation of
coal mine safety programs. Local officials often receive income
from mines, and therefore are reluctant to enforce safety
regulations that will affect production.\148\ In an August 2005
circular, the State Council ordered the managers of state-owned
enterprises and government officials to divest themselves of
all financial interests in coal mines other than stock of
publicly listed companies.\149\ By January 2006, official news
media reported that more than 7,000 officials had given up
investments in coal mines.\150\
The government has prosecuted officials responsible for
serious coal mine disasters. A December 2005 State
Administration of Work Safety announcement described the
prosecution and punishment of over 200 officials involved in
six large coal mine disasters in 2004.\151\
Wages
Article 8 of the Provisions on Minimum Wages, issued by the
Ministry of Labor and Social Security (MOLSS) in January 2004,
charges provincial MOLSS authorities with drafting minimum wage
rules in cooperation with provincial-level unions and
industrial associations.\152\ In July 2006, the Shenzhen
Special Economic Zone, which is not a provincial-level
government, raised its minimum wage to 810 yuan per month
(US$101).\153\ The previous minimum wage rate in Shenzhen had
been the same as Jiangsu province and Shanghai municipality:
690 yuan per month (US$86).\154\ At the lower end of the
minimum wage scale are Gansu province at 340 yuan per month
(US$43) and Jiangxi and Jilin provinces at 360 yuan per month
(US$45).\155\
Provincial governments in China are reluctant to review
their minimum wage levels every two years, even though the 2004
provisions require it.\156\ In March 2006, at least four
provincial governments were out of compliance with the two-year
rule, according to the MOLSS.\157\ Official news media suggests
that provincial officials fear that higher minimum wages will
force companies to relocate manufacturing facilities to
provinces where wages are lower.\158\ A Xinhua editorial
recommended that the central government develop a more clearly
defined method to determine that the minimum wage is not
artificially low, and monitor how local governments apply this
method. An All-China Federation of Trade Unions official said
in May that the minimum wage levels set by most provincial-
level governments did not meet national guidelines.'' \159\
Wage Arrearages
Employers illegally withhold or refuse to pay wages earned
by millions of Chinese workers.\160\ Employers owe millions of
migrant workers more than US$12 billion in unpaid wages, a
problem that is particularly acute in the construction
industry, which employs many migrant workers.\161\ Some
employers make only minimal wage payments through the year in
addition to providing room and board. Others withhold payments
over the New Year holiday as a means of compelling workers to
return.\162\ A State Council report estimates that employers do
not pay about half of migrant workers on time.\163\
Despite central government pledges beginning in 2003 to
clear up wage arrearages for migrant workers in the
construction sector, the problem persists. In some cases where
the government has reported success in clearing arrearages, the
workers have, in fact, accepted less than full pay in order to
get any cash at all. Many wage arrearages also go unreported,
and new arrearages continue to accumulate, despite the creation
of programs to discourage them.\164\
Some local governments have taken steps to help workers
recover wages. In February 2006, the Shenzhen Labor and Social
Security Bureau sanctioned 1,300 companies and imposed 47
million yuan (US$5.8 million) in fines for not paying wages
owed to workers. The Bureau reclaimed about 70 million yuan
(US$8.6 million) in unpaid wages.\165\ Since July 2006,
employers in Shaanxi province who have not met time limits set
by the provincial government for paying back wages have been
subject to fines totaling 50 to 100 percent of the
arrearages.\166\ In 2005, the Guangdong Provincial Labor and
Social Security Bureau began posting the names of companies
that continued to default on wages after ``repeated education,
warnings, or even heavy punishments.'' \167\ Although these
programs are positive developments, they have not been highly
successful.\168\
Benefits
Employers in China rarely comply with laws and regulations
on benefits.\169\ In one 2004 study, a Western auditing firm
found that only 5 of 80 Chinese factories surveyed were in
compliance with benefits laws.\170\ Compliance problems
included failure to grant workers paid vacations and failure to
enroll workers in the social security system (including
pensions).\171\ Companies also have failed to provide workers
with medical benefits, including treatment for workplace
injuries and maternity benefits.\172\ Some employers circumvent
their obligation to provide benefits by refusing to sign labor
contracts.\173\
The State Council adopted a decision on basic old-age
insurance in December 2005 with the stated goal of shifting
Chinese pensions from an enterprise-based system to a market-
oriented system with personal accounts.\174\ The decision also
seeks to address the underfunding of personal accounts,
guarantee the short-term availability of pension funds, and
expand coverage of the funds.\175\ One U.S. expert said, ``For
this patchwork [of pensions], covering perhaps a sixth of the
total Chinese workforce, the net present value of unfunded
liabilities is estimated to exceed current GDP--perhaps
substantially.'' \176\ Problems in the pension system spurred
large-scale worker protests in 2005 and 2006.\177\
The government announced plans in 2006 to expand coverage
of on-the-job injury insurance to 140 million people by
2010\178\ and said it would take compulsory measures to promote
employer participation.\179\ As of April 2006, 87 million
workers were covered, the government reported.\180\ In June,
the Shanxi province government announced that all employers
must provide injury insurance to migrant workers.\181\ By the
end of July 2006, 18.7 million migrant workers nationwide had
such insurance, according to government figures.\182\
U.S.-China Bilateral Programs
The U.S. Department of Labor (DOL) and two Chinese
government agencies continued to conduct cooperative activities
during 2006 on wage and hour laws, occupational safety and
health, mine safety and health, and pension program
oversight.\183\ The DOL-sponsored mine safety program provided
training to 55 Chinese mine managers and over 400 miners. Under
the Labor Law Cooperation Project, four legislative drafters
participated in internship programs in the United States to
learn about legislative and labor law systems and enforcement
practices. The project also produced information, education,
and communication materials on labor law that were distributed
to tens of thousands of Chinese workers. Under the project,
2,437 migrant workers received labor law training, 380 workers
received counseling services, and 24 were provided with legal
assistance.\184\
The DOL, in cooperation with central and local Chinese
government agencies, completed five baseline surveys on labor
dispute resolution that served as references for drafting a new
Dispute Resolution Law, scheduled for consideration in August
2006. In addition, the Project selected 15 diverse enterprises
(including joint venture, foreign-owned, state-owned, small,
medium, and large enterprises) to participate in a pilot
project to improve labor relations. Training for some 80
individuals began in April 2006 to establish and operate in-
plant labor-management committees. Trainees
include officials from district labor dispute tribunals,
company human resource directors, and workers from the
enterprises.\185\
Migrant Workers
Official statistics suggest 120 million rural migrants
worked in China's urban cities in 2005.\186\ These migrant
workers often face discrimination and violations of their legal
rights. Over 81 percent of rural migrant workers currently work
outside of their place of residence for more than six months
out of the year, an increase of 6.4 percent compared to 2002,
according to a State Council research report.\187\ Since many
local regulations limit the ability of poor migrants to obtain
local hukou (household registration) in the urban areas where
they live and work, migrant workers are often unable to obtain
public services such as health insurance and education for
their children on an equal basis with urban residents [see
Section V(i)--Freedom of Residence and Travel].
Migrant workers also frequently have difficulties
protecting their legal rights under China's labor laws. Fewer
than 54 percent of rural migrant workers have signed labor
contracts with their
employers. Excessive work hours and unpaid wages are common
problems.\188\ Over 35 percent of rural migrant workers report
``sometimes'' having difficulty being paid on time, while
nearly 16 percent say they ``frequently'' have problems being
paid.\189\ Seventy-six percent of migrant workers report that
they have not received overtime pay owed to them.\190\
Chinese authorities have attempted to address the problems
of migrant workers. The Ministry of Health announced a plan in
May 2006 to improve the health of rural migrant workers. The
plan includes goals for preventing and controlling the spread
of HIV/AIDS among rural migrants, improving infectious disease
monitoring capabilities in large urban areas with migrant
workers, as well as improving workplace health and safety
conditions for migrant workers.\191\ The central government has
also included in its 2006 rural development campaign for a
``new socialist countryside'' such components as reform of the
hukou system, protection of the legal rights of migrant
workers, and the elimination of discriminatory regulations that
restrict urban job opportunities for migrants.\192\ In 2005,
both Beijing municipal authorities and national Ministry of
Labor and Social Security officials eliminated rules that limit
employment in cities for migrants.\193\ Chinese authorities
also have called for creating better mechanisms for addressing
workers' claims for unpaid wages and for expanding workers'
compensation insurance programs to cover migrants.\194\ The
State Council's research report on migrant workers notes that
despite central government policies regarding the abolition of
discriminatory permits and fees for rural migrant workers,
``the phenomenon of illegal charges continues to exist'' in
some areas.\195\
V(d) Freedom of Religion
findings
Chinese government restrictions on the
practice of religion violate international human rights
standards. Freedom of religious belief is protected by
the Chinese Constitution and laws, but government
implementation of Communist Party policy on religion,
and restrictions elsewhere in domestic law, violate
these guarantees. The Chinese government tolerates some
aspects of religious belief and practice, but only
under a strict regulatory framework that represses
religious and spiritual activities falling outside the
scope of Party-sanctioned practice. Religious
organizations are required to register with the
government and submit to the leadership of ``patriotic
religious associations'' created by the Party to lead
each of China's five recognized religions: Buddhism,
Catholicism, Daoism, Islam, and Protestantism. Those
who choose not to register with the government, or
groups that the government refuses to register, operate
outside the zone of protected religious activity and
risk harassment, detention, imprisonment, and other
abuses. Registered communities also risk such abuse if
they engage in religious activities that authorities
deem a threat to Party authority or legitimacy.
The 2004 Regulation on Religious Affairs (RRA)
has not afforded greater religious freedom to Chinese
citizens, despite government claims that it represented
a ``paradigm shift'' by limiting state control over
religion. Like earlier local and national regulations
on religion, the RRA emphasizes government control and
restrictions on religion. The RRA articulates general
protection only for freedom of ``religious belief,''
but not for expressions of religious belief. Like
earlier regulations, it also protects only those
religious activities deemed ``normal,'' without
defining this term. Although the RRA includes
provisions that permit registered religious
organizations to select leaders, publish materials, and
engage in other affairs, many provisions are
conditioned on government approval and oversight of
religious activities.
Chinese government enforcement of Party policy
on religion creates a repressive environment for the
practice of Tibetan Buddhism. Party policies toward the
Dalai Lama and Panchen Lama, the second-ranking Tibetan
spiritual leader, seek to control the fundamental
religious convictions of Tibetan Buddhists. Government
actions to implement Party policies caused further
deterioration in some aspects of religious freedom for
Tibetan Buddhists in the past year. Officials began a
patriotic education campaign in Lhasa-area monasteries
and nunneries in April 2005. Expressions of resentment
by Tibetan monks and nuns against the continuing
campaign resulted in detentions, expulsions, and an
apparent suicide. Chinese officials continue to hold
Gedun Choekyi Nyima, the boy the Dalai Lama recognized
as the Panchen Lama in May 1995, in incommunicado
custody along with his parents.
Tibetan Buddhist monks and nuns constituted 21
of the 24 known political detentions of Tibetans by
Chinese authorities in 2005, compared to 8 of the 15
such known detentions in 2004, based on data available
in the Commission's Political Prisoner Database. None
of the known detentions of monks and nuns in 2005 took
place in Sichuan province, a shift from the previous
three years, but known detentions of monks and nuns in
Qinghai and Gansu provinces increased during the same
period. Based on data available for 50 currently
imprisoned Tibetan monks and nuns, their average
sentence length is approximately nine years and six
months. In one positive development, the government
permitted the resumption of a centuries-old Tibetan
Buddhist tradition of advanced study that leads to the
highest level of scholarly attainment in the Gelug
tradition.
Government repression of unregistered Catholic
clerics increased in the past year. Based on NGO
reports, officials in Hebei and Zhejiang provinces
detained a total of 38 unregistered clerics in 13
incidents in the last year, while in the previous year
officials detained 11 clerics in 5 incidents. The
government targets Catholic bishops who lead large
unregistered communities for the most severe
punishment. Bishop Jia Zhiguo, the unregistered bishop
of Zhengding diocese in Hebei province, has spent most
of the past year in detention. Bishop Jia has been
detained at least eight times since 2004.
Government harassment and abuse of registered
Catholic clerics also increased in the past year. In
November and December 2005, three incidents were
reported in which officials or unidentified assailants
beat registered Catholic nuns or priests after they
demanded the return of church property. In April and
May 2006, officials began a campaign to increase
control over registered Catholic bishops. Officials
detained, sequestered, threatened, or exerted pressure
on dozens of registered Catholic clerics to coerce them
into participating in the consecration of bishops
selected by the state-controlled Catholic Patriotic
Association but not approved by the Holy See.
Government authorities also restricted contact
between registered clergy and the Holy See, denying
bishops permission to travel to Rome in September 2005
to participate in a meeting of Catholic bishops.
Authorities continued to permit some registered priests
and nuns to study abroad.
The Chinese government strictly controls the
practice of Islam. The state-controlled Islamic
Association of China aligns Islamic practice to Party
goals by directing the training and confirmation of
religious leaders, the publication of religious
materials, the content of sermons, and the organization
of Hajj pilgrimages, as well as by indoctrinating
religious leaders and adherents in Party ideology and
government policy.
The government severely represses Islamic
practice in the Xinjiang Uighur Autonomous Region
(XUAR), especially among the Uighur ethnic group. Local
regulations in the XUAR impose restrictions on religion
that are not found in other parts of China. The
government's religious repression in the XUAR is part
of a broader policy aimed at diluting expressions of
Uighur identity and tightening government control in
the region. The government continues to imprison
Uighurs who engage in peaceful expressions of dissent
and other non-violent activities. Writer Nurmemet Yasin
and historian Tohti Tunyaz remain in prison for writing
a short story and conducting research on the XUAR.
The Chinese government continues to repress
Chinese Protestants who worship in house churches. From
May 2005 to May 2006, the government detained nearly
2,000 house church members, according to one U.S. NGO.
Almost 50 percent of the reported detentions of
Protestant house church members and leaders took place
in Henan province, where the house church movement is
particularly strong. In June 2006, Pastor Zhang
Rongliang, the leader of one of China's largest house
churches, was sentenced to seven years and six months
in prison for
``illegally crossing the national border'' and
``fraudulently obtaining a passport.'' Authorities have
detained or imprisoned Pastor Zhang multiple times
since 1976. Pastor Gong Shengliang is serving a life
sentence in declining health, and was beaten in prison
during the past year.
The Chinese government continues to maintain
strict control over the registered Protestant church.
The RRA requires that all Protestants worship at
registered churches, regardless of their differences in
doctrine and liturgy. The state-controlled Three-Self
Patriotic Movement, which leads the registered
Protestant church in China, continues to impose a
Party-defined theology, called ``theological
construction,'' on registered seminaries that is
intended to ``weaken those aspects within Christian
faith that do not conform with the socialist society.''
In the past year, authorities detained a registered
Protestant pastor in Henan province for conducting a
Bible study meeting at a registered Protestant church
outside his designated geographic area.
The Chinese government continues to disrupt
the relationships that many house churches maintain
with co-religionists outside China, including raiding
meetings between house church leaders and overseas
Protestants, and preventing foreign travel by house
church leaders. The Chinese government also continues
to restrict and monitor the ties of the registered
Protestant Church with foreign denominations.
Government persecution of the Falun Gong
spiritual movement continued during the past year.
Authorities use both criminal and administrative
punishments to punish Falun Gong practitioners for
peacefully exercising their spiritual beliefs. The
state-controlled press has reported on at least 149
cases of Falun Gong practitioners currently in prison,
but Falun Gong sources estimate that up to 100,000
practitioners have been detained since 1999. Manfred
Nowak, UN Special Rapporteur on Torture, reported after
his November 2005 visit to China that Falun Gong
practitioners account for two-thirds of victims of
alleged torture by Chinese law enforcement officers.
Tsinghua University student Wang Xin was sentenced to
nine years' imprisonment in 2001 for downloading Falun
Gong materials from the Internet and printing leaflets.
Despite strict government controls on the
practice of religion, Chinese authorities accommodate
the social programs of Buddhist, Daoist, Catholic,
Muslim, and Protestant communities when these programs
support Party goals. For example, domestic Muslim civil
society organizations carry out social welfare
projects, and international Muslim charities have
supported projects in Gansu and Shaanxi provinces, as
well as in the XUAR. The Amity Foundation, affiliated
with the registered Protestant Church, sponsors
projects in social services and development aid,
including education, healthcare, and care for the
elderly.
Introduction
Chinese government restrictions on the practice of religion
violate international human rights standards.\1\ Freedom of
religious belief is protected by the Chinese Constitution\2\
and laws,\3\ but government implementation of Communist Party
policy on religion, and restrictions elsewhere in domestic law,
violate these guarantees. Although Party doctrine acknowledges
the presence of religion in Chinese society, the Party's
central tenets remain at odds with religion.\4\ The Party
promotes atheism among Chinese citizens, and has continued
efforts to dismiss religious believers from its ranks.\5\
The government acknowledges only five belief systems as
religions entitled to legal protection: Buddhism, Catholicism,
Daoism, Islam, and Protestantism. While the State
Administration for Religious Affairs (SARA) has established an
office to oversee religions and folk beliefs other than these
five,\6\ legal protections are restricted to these five in
practice,\7\ with only limited exceptions.\8\ Some local
regulations also restrict legal protections to these five
religions.\9\ Religious organizations affiliated with
recognized religions must register with the government and
apply for government approval to establish churches, mosques,
temples, or other religious venues. The government claims that
citizens do not need official approval to conduct worship
services in private homes ``mainly
attended by relatives and friends for religious activities such
as praying and Bible reading,'' \10\ but no national law or
regulation specifically protects worship at home,\11\ and
authorities have shut down services held in private homes.\12\
The Chinese government tolerates some aspects of religious
belief and practice, but only under a strict regulatory
framework that represses religious and spiritual activities
falling outside the scope of Party-sanctioned practice. The
government's policies create a hierarchy of religious
communities subject to different forms of government control.
The government and Party exercise control over registered
religious communities through the ``patriotic religious
associations'' created by the Party to lead each recognized
religion.\13\ The patriotic associations ensure that religious
doctrine conforms to state policy by controlling such matters
as the training of religious leaders, contacts with religious
groups outside China, the
interpretation of religious texts, the content of sermons, and
the publication of religious materials.\14\ Despite such
controls, a visiting delegation from the U.S. Commission on
International Religious Freedom found that the government
nonetheless provides a ``zone of toleration'' for registered
religious communities acting within the parameters set by the
government.\15\ Religious adherents also have reported being
able to worship in authorized venues without direct government
interference.\16\ Those who choose not to register with the
government, or groups that the government refuses to register,
operate outside the zone of protected religious activity and
risk harassment, detention, imprisonment, and other abuses.
Members of approved organizations also risk harassment,
detention, imprisonment, and other abuses if they engage in
religious activities that authorities deem a threat to Party
authority or legitimacy.
Legal protections for freedom of religion are narrow. By
stating only that ``religious belief'' is under constitutional
protection,\17\ the Constitution does not broadly protect the
exercise of religion, including public expressions of belief.
Instead, the Constitution and Chinese laws and regulations
provide protection only for ``normal religious activity.'' Laws
and regulations do not clearly define what constitutes ``normal
religious activity,'' and this vague term is subject to
arbitrary interpretation by implementing officials.\18\
Officials interpret and implement domestic laws and
policies on religion inconsistently, resulting in uncertainty
among religious believers about potential government actions.
Such inconsistencies have led to additional restrictions in
practice beyond those specified in law. In some cases, regional
variations in implementation have resulted in more official
tolerance for religion, and in unregistered groups being
allowed to operate.\19\ In a few cases, local authorities have
registered groups affiliated with a religion not recognized by
the central government, as well as groups that are part of a
recognized religion but have not affiliated with a patriotic
religious association.\20\ In other cases, however, variations
in implementation have resulted in official abuses and
repression of religious activities.
Although the SARA acknowledges and manages some ``folk''
beliefs, the government does not give them the same protections
as recognized religions, despite widespread practice throughout
China. The government tolerates some practices associated with
``folk'' religions,\21\ but also designates some other popular
practices as ``feudal superstitions,'' which it denounces and
in some cases penalizes.\22\
The government does not recognize spiritual movements as
belief systems protected under the law, and in some cases, the
government persecutes practitioners. The government designates
some spiritual movements, such as the Falun Gong, as ``cults''
and applies criminal and administrative punishments against
them.\23\ In 2006, the government continued its campaign of
persecution against Falun Gong members.
Foreign residents or visitors may conduct worship services
for foreign members of their own religious communities,\24\ and
foreign faith-based NGOs operate in China.\25\ National rules
governing
foreigners' religious activities forbid them, however, from
``cultivating followers from among Chinese citizens,''
distributing ``religious propaganda materials,'' and carrying
out other missionary
activities.\26\
Regulation on Religious Affairs
The 2004 Regulation on Religious Affairs (RRA)\27\ has not
afforded greater religious freedom to Chinese citizens, despite
government claims that it represented a ``paradigm shift'' by
limiting state control over religion.\28\ Like earlier local
and national regulations on religion,\29\ the RRA emphasizes
government control and restrictions on religion. The RRA
articulates general protection only for freedom of ``religious
belief,'' \30\ but not for expressions of belief. Like earlier
regulations, it also protects only those religious activities
deemed ``normal,'' \31\ without defining this term. Although
the RRA includes provisions that permit registered religious
organizations to select leaders, publish materials, and engage
in other affairs, many provisions are conditioned on government
approval and oversight of religious activities.\32\
Party doctrine guides implementation of the RRA. The
Party's United Front Work Department continues to administer
religious matters alongside the government's religious affairs
bureaus,\33\ and in doing so, ensures that the RRA is
implemented in line with Party directives. During 2006, local
authorities cited Party policy as a guiding influence when
addressing religious issues and implementing the RRA.\34\
The RRA and related regulations\35\ subject religious
communities to onerous and arbitrary registration requirements
that give the government discretion to deny recognition to
religious communities. Like earlier regulations,\36\ the RRA
requires religious groups to apply for approval from the
government to operate as an organization or to establish a
venue for religious activities.\37\ Among other requirements, a
group must have 50 or more members to apply for recognition as
an official organization.\38\ Once recognized, religious
organizations must fulfill conditions such as demonstrating a
``necessity to frequently carry out collective religious
activities'' to gain permission to build a venue for religious
activities.\39\
The RRA's protections for religious activities are limited.
Although the RRA states that it protects the ``lawful rights
and interests'' of religious believers, it does not
specifically protect individual public displays of religious
belief, which is a protected component of religious freedom
under international human rights standards.\40\ In addition, it
requires collective religious activities ``in general'' to be
conducted at registered venues\41\ and does not specify that
religious believers or religious members of a family may
practice a
religion within their own homes, although some local
regulations appear to permit this practice.\42\
International human rights standards define freedom of
religion to include the ``freedom to prepare and distribute
religious texts or publications.'' \43\ While the RRA provides
that authorized religious organizations and venues may compile
and print materials for internal and public distribution, the
RRA requires such publications to be prepared in accordance
with national regulations.\44\ The Chinese government imposes
strict prior restraints on religious literature in national
regulations that go beyond restrictions on other types of
publications\45\ [see Section V(a)--Special Focus for 2006:
Freedom of Expression].
The RRA provides for government oversight of the
appointment of religious personnel. Although the RRA permits
authorized religious organizations to select religious
personnel, it requires them, in most cases, to report this
selection to the local religious affairs bureau.\46\ In
addition, the RRA singles out the appointment of reincarnated
Tibetan Buddhist lamas and Catholic bishops for reporting to
higher levels of government, and in the case of reincarnated
Tibetan Buddhist lamas, appointments require government
approval.\47\
The RRA provides administrative penalties, ranging from
fines to the possibility of administrative detention, for
violations of its provisions.\48\ While it sanctions government
officials who abuse their authority when administering
religious policy,\49\ it is unclear whether this provision
protects unregistered organizations and venues that lack legal
standing. The RRA directs most of its provisions on legal
liability at ordinary citizens, religious organizations, or
venues that violate its provisions.\50\ Some of the RRA's
penalties are absent in earlier regulations. For example, the
RRA for the first time proscribes Hajj pilgrimages that are
organized without government authorization and subjects
violators to fines.\51\
The RRA also represents a codification, and in some cases
expansion, of limited protections for authorized religion found
in older regulations on religion. For example, the RRA permits
registered religious organizations and venues to engage in
social welfare activities, as earlier local regulations have
allowed.\52\ It also permits registered religious organizations
and venues to accept contributions from abroad,\53\ while
previous regulations have not granted this permission in such
explicit terms.\54\ The RRA specifies time limits for
decisionmaking by government agencies, and permits
administrative appeal of actions and decisions by religious
affairs
bureaus.\55\
At the same time, the RRA lacks some of the restrictions
found in earlier regulations. For example, the RRA does not
specify that only the five recognized religions are protected,
and does not reinforce the authority of patriotic religious
associations by naming them, as in the case of some local
regulations.\56\ Some observers suggest that the omission of
previous controls, coupled with vague language within the RRA,
may signify more tolerance toward religion.\57\ Without further
clarification, however, such omissions and wording do not grant
new rights. Moreover, the RRA's vague
language, including the lack of a definition of ``normal
religious activity,'' generates inconsistent interpretations
not only in the implementation of the RRA itself but also in
the drafting of new local regulations.
The RRA does not mention the status of local
regulations.\58\ Since the RRA entered into force, however, at
least six provincial-level governments have issued new or
amended comprehensive regulations on religion. These
regulations are generally consistent with the RRA with respect
to provisions on establishing religious organizations and
venues,\59\ but differ in other areas. For example, a new
regulation from Henan province restricts the term ``religion''
to Buddhism, Daoism, Islam, Catholicism, and Protestantism.\60\
In April 2005, the Shanghai municipal government amended its
1995 regulation on religious affairs to remove a previous
reference to the five recognized religions.\61\ All of the new
and amended regulations appear to provide citizens with a
degree of permission to practice an authorized religion at
home, but the wording of each regulation on this issue
varies.\62\ The amended Shanghai regulation expands its
previous section on legal liability, increasing both penalties
and protections for religious believers;\63\ the Henan
regulation contains the most detailed provision on the
liability of government officials.\64\
Other Developments
In December 2005, the government announced the
establishment of the China Religious Culture Communication
Association (CRCCA), which it described as a non-profit social
organization designed to promote religious exchanges,
cooperation with other countries, and the dissemination of
information about religion in China. Ye Xiaowen, Director of
the State Administration for Religious Affairs (SARA), leads
the association. CRCCA honorary chairman Bishop Fu Tieshan,
Vice Chairman of the Standing Committee of the National
People's Congress and Chairman of the Catholic Patriotic
Association, called the association's establishment
``beneficial for accurately publicizing China's policies on
freedom of religious belief and the real state of affairs for
religious belief.'' \65\
The government adopted measures during 2005 that provide
freer access to information on religious regulations and to
religious sites that charge admission. The SARA launched a Web
site on December 1, 2005, that posts religion-related news and
regulations, bringing greater transparency to the
administration of religious affairs.\66\ The government also
issued a circular in December 2005 requiring that religious
sites charging admission to tourists must provide free entrance
to religious adherents, although Chinese journalists
investigating the circular in January 2006 found that
implementation was inconsistent.\67\
Religious Freedom for Tibetan Buddhists
Chinese government enforcement of Communist Party policy on
religion creates a repressive environment for the practice of
Tibetan Buddhism. The Party tolerates religious activity only
within the strict requirements of the Chinese Constitution,
laws, regulations, and policies.\68\ The government interprets
and enforces these requirements in a manner that interferes
with the Tibetan Buddhist monastic education system and
discourages devotion to the Dalai Lama and other important
Tibetan Buddhist teachers who live in exile.\69\
Party polices toward the Dalai Lama and Panchen Lama, the
second-ranking Tibetan spiritual leader, seek to control the
fundamental religious convictions of Tibetan Buddhists.
Government actions to implement Party policies caused further
deterioration in some aspects of religious freedom for Tibetan
Buddhists during the past year. Officials began a patriotic
education campaign in Lhasa-area monasteries and nunneries in
April 2005.\70\ The Chinese government and the Party mandate
patriotic education as a recurrent feature of religious
education to indoctrinate Tibetans on the relationship between
religion and patriotism toward China, and to end the Dalai
Lama's influence among Tibetans. Monks and nuns must pass
examinations on political texts,\71\ agree that Tibet is
historically a part of China, accept the legitimacy of the
Panchen Lama installed by the Chinese government, and denounce
the Dalai Lama.
In May 2006, Zhang Qingli,\72\ Secretary of the Tibet
Autonomous Region (TAR) Party Committee, called on senior
government and Party officials to widen the patriotic education
campaign to include a broader population, and to intensify the
``rectification'' and
restructuring of each monastery and nunnery's Democratic
Management Committee (DMC),\73\ according to the TAR Party
newspaper.\74\ Zhang told the officials that the Party is
engaged in a ``fight to the death struggle'' against the Dalai
Lama and his supporters, and that the Dalai Lama is ``the
biggest obstacle hindering Tibetan Buddhism from establishing
normal order.'' Comprehensive implementation of the Regulation
on Religious Affairs (RRA)\75\ will lead to the ``normalization
of religious order'' and the ``standardization of religious
activity,'' Zhang said. Li Guangwen, Executive Vice Chairman of
the TAR People's Congress Standing Committee, stressed ``the
need to step up legislative work in the area of the anti-
separatism struggle and the management of religious affairs''
\76\ at a meeting of Standing Committee members, probably in
early June. In August, Zhang confirmed the Party's plans to
broaden patriotic education in an interview with Western media:
``We are organizing patriotic education everywhere, not just in
monasteries. Those who do not love their country are not
qualified to be human beings.'' \77\
Expressions of resentment by Tibetan monks and nuns against
the continuing campaign resulted in detentions, expulsions, and
an apparent suicide. At Sera Monastery, when monks were to be
tested on patriotic education in July 2005, officials
reportedly expelled 18 monks, of whom police detained 8.\78\ At
about the same time, public security officials detained monk
Tsering Dondrub and subjected Jangchub Gyaltsen, a Sera
``disciplinarian,'' \79\ to one year of surveillance\80\ for
their roles in arranging an oral reading of a prayer that
mentioned the Dalai Lama.\81\ Drepung Monastery monk Ngawang
Jangchub apparently committed suicide in October 2005, after he
argued with patriotic education instructors.\82\ Public
security officials detained five Drepung monks (Abbot Ngawang
Phelgyal, Ngawang Namdrol, Ngawang Nyingpo, Ngawang Thubten,
and Phuntsog Thubwang) on November 23 after they refused
instructions from patriotic education instructors to sign a
document denouncing the Dalai Lama as a splittist, pledging
loyalty to the Chinese government, and agreeing that Tibet is
part of China.\83\ On November 25, some 400 monks gathered in
Drepung's main courtyard and protested together silently
against the patriotic education campaign and the accompanying
crackdown.\84\ Authorities threatened to remove them by force
and sealed the monastery for two days.\85\ Officials conducting
patriotic education at Gyabdrag Nunnery in June 2005 expelled
more than 40 nuns, and authorities expelled 13 nuns from
Shugsib Nunnery.\86\
In December 2005, the government and Party stepped up a
campaign to challenge the Dalai Lama's role as the spiritual
leader of Tibetan Buddhists by increasing the prominence of
Gyaltsen Norbu, the boy the State Council installed in 1995 as
the 11th Panchen Lama.\87\ An official Chinese report on the
10th anniversary of Gyaltsen Norbu's installation referred to
him as ``the highest ranking figure in Tibetan Buddhism'' and
``the leader of Tibetan Buddhism.'' \88\ Chinese news media
reports that rank Gyaltsen Norbu above the Dalai Lama, however,
contradict previous official statements about the relationship
between the Dalai Lama and Panchen Lama. In November 1995, Li
Ruihuan, then a senior Politburo member, described the late
10th Panchen Lama\89\ as ``a prominent leader of China's
Tibetan Buddhism,'' \90\ and a 1992 Chinese government White
Paper described the 10th Panchen Lama as the ``co-leader of
Tibetan Buddhism with the Dalai Lama.'' \91\
Gyaltsen Norbu demonstrated support of the Party's
policy\92\ to merge Tibetan Buddhism with patriotism toward
China when he pledged at a December 2005 ceremony to be ``a
good living Buddha who loves his motherland, his religion, and
serves his country and its people.'' \93\ A week later, he
concluded a Buddhist ritual at the tombs of his predecessors by
saying that he would ``live up to the expectations of the
Chinese Communist Party and the central government.'' \94\
Gyaltsen Norbu made his first appearance before an
international gathering at the First World Buddhist Forum in
Hangzhou city, Zhejiang province, on April 13, 2006.\95\ He
told some 1,000 monks, nuns, and scholars from more than 30
countries that, ``Defending the nation and working for the
people is a solemn commitment Buddhism has made to the nation
and society.'' \96\ The forum's organizers\97\ did not allow
the Dalai Lama, Tibetan Buddhism's foremost representative, to
attend. Qi Xiaofei, Deputy Director of the State Administration
of Religious Affairs (SARA) told reporters on April 12 that the
Dalai Lama is a stubborn secessionist who would ``surely pose a
really disharmonious note'' if he had been invited.\98\
Chinese officials continue to hold Gedun Choekyi Nyima, the
boy the Dalai Lama recognized as the Panchen Lama in May 1995,
in incommunicado custody along with his parents.\99\ After the
Dalai Lama announced his recognition of Gedun Choekyi Nyima,
Chinese officials took the then six-year-old boy and his
parents into custody. The State Council declared the Dalai
Lama's announcement ``illegal and invalid'' \100\ and installed
Gyaltsen Norbu, whose appointment continues to stir widespread
resentment among Tibetans. The UN Committee on the Rights of
the Child recommended in September 2005 that the Chinese
government ``allow an independent expert to visit and confirm
the well-being'' of Gedun Choekyi Nyima.\101\ In an official
response to the UN Special Rapporteur on Freedom of Religion or
Belief in September 2005, Chinese officials claimed that Gedun
Choekyi Nyima is leading a ``normal, happy life and receiving a
good cultural education.'' \102\
The Party intends to strengthen its authority over Tibetan
Buddhism by controlling the selection of the religion's most
important leaders, including the Dalai Lama. Party officials
assert that the next Dalai Lama will be selected in the same
manner as Gyaltsen Norbu: by drawing a name from a golden urn.
In July 2005, Jampa Phuntsog (Xiangba Pingcuo), Chairman of the
TAR government, referred to the Dalai Lama's advancing age and
told reporters that the next Dalai Lama will be identified by
``the traditional rules of Tibetan Buddhism since the Qing
dynasty.'' \103\ He denied that the Party interferes in the
process.\104\ In 1995, however, Party Central Committee member
and State Councilor Luo Gan, who is now a Politburo Standing
Committee member, presided when Gyalsten Norbu's name was
pulled from a golden urn.\105\ Jampa Phuntsog's comment about
``the traditional rules of Tibetan Buddhism'' refers to a 1792
Qing Dynasty edict demanding that the Tibetan government in
Lhasa reform religious, administrative, economic, and military
practices to suit the Qing court.\106\ The first of the edict's
29 articles directed that the Dalai Lama and Panchen Lama be
selected by drawing lots from a golden urn, and that a high-
ranking Chinese official must be present to confirm the result.
Tibetans used their own methods, however, to identify the
current Dalai Lama and his predecessor.\107\ Article 27 of the
Regulation on Religious Affairs issued in 2004 includes the
principle of the Qing directive by requiring that the
identification of reincarnated lamas be performed in accordance
with ``religious ritual and historic conventions'' and be
subject to government approval.\108\
Tibetan Buddhist monks and nuns constituted 21 of the 24
known political detentions of Tibetans by Chinese authorities
in 2005, compared to 8 of the 15 such known detentions in 2004,
based on data available in the Commission's Political Prisoner
Database (PPD) as of August 2006. This increased proportion in
part reflects monks imprisoned for expressing their resentment
of the patriotic education campaign. None of the known
detentions of monks and nuns in 2005 took place in Sichuan
province, a shift from the previous three years,\109\ but known
detentions of monks and nuns in Qinghai and Gansu provinces in
2005 increased during the same period.\110\ Tibetan monks and
nuns make up about 70 percent of the 103 currently detained or
imprisoned Tibetan political prisoners, according to PPD data.
Thirty-two of the monks and nuns were detained or imprisoned in
the TAR, 22 in Sichuan province, 12 in Qinghai province, and 6
in Gansu province. Based on data available for 50 currently
imprisoned Tibetan monks and nuns, their average sentence
length is approximately nine years and three months. Several
monks reportedly detained during patriotic education in Lhasa
in 2005 remain unidentified and these figures do not reflect
their cases.\111\
In one positive development, the government permitted the
resumption in July 2004\112\ of a centuries-old Tibetan
Buddhist tradition of advanced study that leads to the highest
level\113\ of scholarly attainment in the Gelug tradition.\114\
A small number of lamas successfully completed the program in
2005 and 2006.\115\ Tibetan human rights monitors pointed out
that even advanced lamas are required to study political texts
promoting patriotism toward China,\116\ but also noted that the
resumption of the program is a ``welcome gesture.'' \117\
Chinese authorities shut the program down in 1966 at the start
of the Cultural Revolution, and did not allow it to resume
until 1986.\118\ Officials closed it again in March 1988 after
Tibetan monks staged a peaceful pro-independence protest march
in central Lhasa.\119\
Religious Freedom for China's Catholics and China-Holy See Relations
Government repression of unregistered Catholics increased
in the past year.\120\ Based on NGO reports, officials in Hebei
and Zhejiang provinces detained a total of 38 unregistered
clerics and 90 unregistered laypersons in 13 incidents during
the past year, while the preceding year officials detained 11
clerics in 5 incidents.\121\ Twelve of the 13 detention
incidents reported since October 2005 occurred in Hebei
province, where the unregistered Catholic community is
particularly strong.\122\ The other reported detention incident
occurred in Zhejiang province.\123\ Officials in Fujian
province demolished an unregistered Catholic church in
September.\124\
The government targets Catholic bishops who lead large
unregistered communities for the most severe punishment. The
government has detained Bishop Jia Zhiguo, the unregistered
bishop of Zhengding diocese in Hebei province, at least eight
times since 2004.\125\ Bishop Jia has spent most of the past
year in detention. The government detained Bishop Jia from
November 2005 to April 2006, when officials released him into
residential surveillance.\126\ In May 2006, officials admitted
Bishop Jia to the hospital for medical treatment, releasing him
the following month into detention at an unknown location.\127\
Su Zhimin, the unregistered bishop of Baoding diocese in Hebei
province, was detained in October 1997, and the government has
refused to provide any information about his health or
location.\128\ Su's auxiliary bishop, An Shuxin, was released
after 10 years' detention in August 2006. An reportedly agreed
to register with the government but not with the state-
controlled Catholic Patriotic Association (CPA).\129\
Government harassment and abuse of registered Catholic
clerics also increased in the past year. In November and
December 2005, three incidents were reported in which officials
or unidentified
assailants beat registered Catholic nuns or priests after they
had demanded that local governments return church property. In
November 2005, officials beat a group of registered Catholic
nuns in Tongyuan village, Shaanxi province.\130\ Also in
November, unidentified assailants beat a group of registered
Catholic nuns in Xi'an city, Shaanxi province.\131\ In December
2005, unidentified assailants beat a group of registered
Catholic priests in Tianjin municipality.\132\ A Catholic news
service reported additional incidents in which officials beat
registered priests in Hebei province, but supplied no
details.\133\ The recent increase in reports of violence toward
registered clergy contrasts sharply with the situation between
2000 and 2004, during which there were no such reports. The
same period was marked by a relative relaxation of control over
registered bishops.\134\
In the beating incidents in Tongyuan, Xi'an, and Tianjin,
the nuns or priests sought to recover property that had once
belonged to Catholic dioceses or religious orders and that
local governments had confiscated during the 1950s and
1960s.\135\ In violation of a 1980 State Council directive,
local officials had refused to return the properties.\136\ One
NGO reported that local governments in Xi'an and Tianjin have
rented or sold church properties to third parties and retained
the income.\137\ Incidents like these have
occurred elsewhere in China.\138\
In April and May 2006, officials began a campaign to
increase control over registered Catholic bishops, coercing
bishops and priests to participate in episcopal consecrations
not approved by the Holy See, and demanding that registered
bishops uphold the government's authority to select bishops.
Since the 1950s, the government has insisted that the Holy See
lacks the authority to
select Chinese bishops, and the state-controlled Catholic
Patriotic Association (CPA) has selected bishops for the
registered Church.\139\ Nevertheless, the registered Catholic
community has increasingly acknowledged the spiritual
leadership of the Holy See, and Catholic bishops and news
agencies outside China have reported that, in recent years, the
CPA has accepted the Holy See's discreet involvement in the
selection process. Most or all recently consecrated registered
bishops had been approved by the Holy See before their
consecration.\140\
In April 2006, however, officials detained, sequestered,
threatened, or otherwise exerted pressure on dozens of
registered Catholic clerics to coerce them into participating
in the consecration of bishops selected by the CPA but not
approved by the Holy See. On April 30 and May 3, a group of
registered bishops consecrated two new bishops who had not been
approved by the Holy See.\141\ The CPA installed the new
bishops in episcopal sees in Kunming city, Yunnan province, and
Wuhu city, Anhui province. The CPA also installed a bishop, who
was consecrated in 2000 without the approval of the Holy See,
in the see of Mindong diocese in Fujian province.\142\ On May
19, the CPA convened a meeting of 18 registered bishops
involved in recent episcopal consecrations and demanded they
uphold the CPA's authority to select bishops without seeking
approval from the Holy See.\143\ On May 27, CPA officials
announced their refusal to recognize a bishop in Shaanxi
province, a former registered priest who was consecrated by a
registered bishop without the approval of the CPA, but with the
approval of the Holy See. Officials forbade him to act as a
bishop, harassed him for several months, and on September 11
detained him at an unknown location.\144\
Although a generation of elderly bishops has been passing
away, the CPA has been slow to approve candidates for the
registered sees. Over 40 registered dioceses had no bishops in
April 2006.\145\ Because no priests were ordained during the
Cultural Revolution period in the 1960s and 1970s, new bishops
must be selected from priests in their thirties and early
forties.\146\ Government officials and the Holy See are
competing for the loyalty of the new bishops, since many who
will be selected in the next few years are likely to be young
men who will govern the Church into the distant
future.\147\
The Holy See has not approved the consecration of new
bishops for the unregistered community since 1999.\148\ In
October 2005, an authoritative Vatican periodical recommended
that the Holy See should unite the unregistered and registered
communities by continuing its policy of approving the
consecration of bishops only for the registered community.\149\
According to the proposal, as the unregistered bishops pass
away, Holy See-approved registered bishops would become the
sole point of reference for both communities. As a result of
reports from authoritative Catholic sources abroad that most
registered bishops have been legitimated or approved by the
Holy See, unregistered Catholics increasingly have accepted
Catholics practicing in the registered church.\150\
Government authorities restricted contact between
registered clergy and the Holy See over the past year. In
September 2005, the CPA denied bishops permission to travel to
Rome to participate in a meeting of Catholic bishops.\151\
Since 2005, authorities have required registered clergy to
report on their activities on a weekly basis.\152\ Authorities
continued to permit some registered priests and nuns to study
abroad, including in the United States. Authorities also
permitted the continued development of the registered
community's Catholic social service agencies, and new
charitable groups have reportedly been founded.\153\
The Chinese government has not altered its longstanding
public position that the Holy See must break relations with
Taiwan and renounce its role in the selection of Chinese
bishops before the
government will open formal talks on establishing diplomatic
relations.\154\ After the election of Pope Benedict XVI, the
Chinese government reiterated its desire for diplomatic
relations with the Holy See, but the tone of these public
statements became progressively cooler during late 2005.\155\
In February 2006, the government responded to the elevation to
the College of Cardinals of Bishop Zen Ze-kiun of Hong Kong by
warning him to stay out of politics.\156\ In April 2006, Ye
Xiaowen, Director of the State Administration for Religious
Affairs, said that the issue of whether the CPA or the Holy See
has the authority to select Catholic bishops ``may be open to
consultation.'' \157\ Church figures, however, interpreted the
government's coerced consecration of bishops without Holy See
approval in April and May as a diplomatic rebuff to the Holy
See.\158\ In June, Chinese government officials met with Holy
See representatives in Beijing, although the meeting reportedly
yielded few concrete results.\159\
Religious Freedom for China's Muslims
The Chinese government strictly controls the practice of
Islam. The state-controlled Islamic Association of China\160\
aligns Islamic practice to Communist Party goals by directing
the training and confirmation of religious leaders, the
publication of religious materials, and the content of sermons,
as well as by indoctrinating religious leaders and adherents in
Party ideology and government policy.\161\ The Regulation on
Religious Affairs acknowledges that Muslims may make
pilgrimages abroad but limits such trips to those organized by
the Islamic Association of China\162\ and penalizes those
organizing pilgrimages without authorization.\163\ In May 2006,
the Islamic Association of China announced it would establish
an office to manage pilgrimages to Mecca.\164\ In 2005, the
Association's Islamic Affairs Steering Committee, which
controls the content of religious publications, announced that
it was compiling a fourth edition of its ``new collected
sermons,'' noting that messages on patriotism and unity within
the text contribute to building a ``socialist harmonious
society.'' \165\ In May 2006, the China Islamic Congress, which
met to define the goals of the Islamic Association for the
coming five years, passed a measure on confirming religious
personnel that requires knowledge of the sermons.\166\
Official policy toward Islam reflects government and Party
concern about maintaining control over, and stability within,
China's Muslim population, which includes 10 ethnic groups
under the government's classification system.\167\ In November
2005, the government said it was formulating national
legislation to regulate halal foods, in part because of
concerns that misuse of the halal label could ``influence
ethnic unity and social stability, and harm ethnic relations.''
\168\ After Muslims protested the publication of materials that
they found offensive to Islam, the government issued a national
circular in 1993 requiring strict examination of publications
that ``touch upon the Islamic religion'' in order to ``uphold
social stability'' and avoid ``hurting the feelings of
religious believers.'' \169\ A 1995 national circular on
pilgrimages abroad requires provincial-level authorities to
instruct pilgrims before departure on patriotism, socialism,
``defending the unity of the motherland,'' and ethnic
unity.\170\
The government accommodates Muslim communities in certain
respects. Outside the Xinjiang Uighur Autonomous Region (XUAR),
some Muslim communities and mosques have openly set up schools
to provide children and adults with secular and religious
education.\171\ Domestic Muslim NGOs carry out social welfare
projects,\172\ and international Muslim charities have
supported projects in Gansu and Shaanxi provinces, as well as
in the XUAR.\173\
Islam in the Xinjiang Uighur Autonomous Region
The Chinese government severely represses Islamic practice
in the Xinjiang Uighur Autonomous Region (XUAR), especially
among the Uighur ethnic group.\174\ Some restrictions on
religion in the XUAR are not found elsewhere in China. The
XUAR's 1993 Implementing Measures for the Law on the Protection
of Minors forbid parents and guardians to allow minors to
engage in religious activity.\175\ No other provincial-level or
national regulation on minors or religion contains this
restriction.\176\ Amendments\177\ in 2001 to the XUAR's 1994
Regulation on the Management of Religious Affairs eliminated a
clause that protected ``normal religious activities,'' and
limited the publication of religious materials to provincial-
level religious organizations.\178\ Internal policy directives
and handbooks also control the practice of religion in the
region.\179\ One Chinese official said, ``Xinjiang is different
from other places in China. Islam is administered much more
strictly there than elsewhere.'' \180\
In addition to these formal legal strictures, the
government also implements harsh policies in practice.
Authorities have detained Muslims for unauthorized possession
and study of religious materials,\181\ forbidden students and
discouraged adults from fasting during Ramadan,\182\ barred
university students from conducting prayers in dormitory
rooms,\183\ posted signs forbidding children from entering
mosques,\184\ and revoked the credentials of imams deemed not
to uphold Communist Party policy.\185\ The government limits
the ability of Muslim communities in the XUAR to support social
welfare programs.\186\ A visiting U.S. delegation in 2005 was
told that the government has not authorized Uighurs to build
new mosques since 1999.\187\
The government continued severe repression of religious
practice in the XUAR during 2006, including a reported new
restriction on who may enter mosques. According to one report,
authorities now have included women in restrictions on mosque
entry already
enforced against children, Party members, and government
workers, including retirees.\188\ Another report stated in
January that authorities were conducting a month-long
investigation aimed at ``the masterminds of religious extremist
forces'' and other groups.\189\ In February, authorities raided
a minority-language publishing market and confiscated 350
``illegally printed'' religious posters.\190\ During the same
month, official news media reported that XUAR authorities had
confiscated 9,860 illegal publications involving religion,
Falun Gong, or ``feudal superstitions'' during 2005.\191\ In
April, Wang Lequan, XUAR Party Secretary, said that the XUAR
government would intensify its work on religion and called for
``resolutely curb[ing] illegal religious activities'' and
strengthening the ``ideological and political consciousness''
of religious figures.\192\
The government uses counterterrorism policies as a pretext
for severely repressing religion in the XUAR.\193\ The
government describes security conditions in the XUAR in a
manner that suggests terrorist attacks continue in the
region,\194\ even as official sources indicate that no
terrorist attacks have taken place in the XUAR since 1999.\195\
Authorities continue to detain and arrest XUAR residents
engaged in religious activities deemed unauthorized and have
charged them with a range of offenses, including state security
crimes.\196\ The government targets ``religious extremism,''
splittism, and terrorism in anti-crime campaigns, calling them
the ``three evil forces.'' \197\ The government began
tightening control over religious practice in the region in the
early 1990s, following unrest in the region, but intensified
its crackdown after September 11, 2001.\198\ Official sources
published in 2001 recorded an increase in the number of Uighurs
sent to prison or reeducation through labor centers since the
mid-1990s because of religious
activity.\199\
The government's religious repression in the XUAR is part
of a broader policy aimed at diluting expressions of Uighur
identity and tightening government control of the region. The
government promotes Han migration to the XUAR, claiming it is
necessary to foster ``social stability,'' ``ethnic unity,'' and
the ``unity of the state,'' \200\ and has staffed top
government and Party positions with high numbers of ethnic Han
Chinese [see Section V(c)--Protection of Internationally
Recognized Labor Rights--Non-discrimination in Employment and
Occupation].\201\ In January and February 2006, the XUAR
government acknowledged that migrants contribute to the
region's high population growth rate, even as it announced
plans to direct its population planning measures at controlling
birth rates in impoverished ethnic minority regions.\202\ The
government also announced plans throughout the year to promote
language programs that decrease the use of ethnic minority
languages in XUAR schools and preschools.\203\ The government
continues to imprison Uighurs who engage in peaceful
expressions of dissent and other non-violent activities.
Foreign news media reported in November 2005 that Korash
Huseyin, editor of the Kashgar Literature Journal, received a
three-year sentence for publishing writer Nurmemet Yasin's
story ``Wild Pigeon.'' \204\ Yasin received a 10-year sentence
in February 2005 for ``inciting splittism.'' Other Uighurs
engaged in peaceful activities, including Tohti Tunyaz,
Abdulghani Memetemin, and Abduhelil Zunun, remain in
prison.\205\ In addition, since Uighur activist Rebiya Kadeer's
2005 release into exile in the United States, the government
has continued to harass her relatives in the XUAR.\206\ In June
2006, authorities charged Alim, Ablikim, and Qahar Abdurehim,
three of Kadeer's sons, with state security and economic
crimes.\207\ Authorities beat Alim and Ablikim, and in early
July, Alim confessed to the charges against him after
reportedly being tortured.\208\ The local procuratorate
indicted Alim and Qahar on July 10.\209\ Authorities also have
placed other family members under house arrest and
surveillance.\210\
Religious Freedom for China's Orthodox Christians
The Chinese government has not officially recognized its
small and slowly reawakening Orthodox Christian community, nor
has it accommodated its need for priests and bishops.\211\ In
recent years, Chinese officials have met with representatives
of the Russian Orthodox Church to discuss these issues.\212\
The central government has not recognized Orthodoxy as a
religion, as many had hoped after the 2004 Regulation on
Religious Affairs omitted mention of the government's five
recognized religions. The provincial regulations of
Heilongjiang and Inner Mongolia, however, have recognized
Orthodoxy, and some other localities have published documents
that appear to recognize Orthodoxy while including it under the
category of Protestantism.\213\ Local authorities have not
accepted the registration of any Orthodox parishes other than
the four that were registered before 2005 in Harbin city,
Heilongjiang province, Labdarin city, in the Inner Mongolia
Autonomous Region, and Ghulja and Urumqi cities, in the
Xinjiang Uighur Autonomous Region (XUAR).\214\ In the XUAR,
authorities have reportedly advised Orthodox Christians not to
communicate with foreigners.\215\ The Chinese government has
not permitted Chinese Orthodox priests trained in Russia to
minister to Chinese Orthodox, who still have no priests to
conduct divine liturgy and administer sacraments.\216\
Religious Freedom for China's Protestants
The Chinese government continues to repress Chinese
Protestants who worship in house churches. According to reports
from a U.S. NGO that monitors religious freedom in China,
officials raided house church services or meetings, and
detained and questioned leaders and members.\217\ Although
public security officials held most of those whom they detained
in such raids for short periods, they held house church leaders
for more extended periods, sometimes for weeks or months.\218\
Officials also reportedly tortured or physically abused some of
the house church detainees.\219\ Officials confiscated personal
property belonging to house church leaders and members, and
officials also detained foreign missionaries who provided
training to house church leaders.\220\
From May 2005 to May 2006, the government detained nearly
2,000 house church members, according to the same U.S.
NGO.\221\ Almost 50 percent of the reported detentions of
Protestant house church members and leaders took place in Henan
province, where the Protestant house church movement is
particularly strong.\222\ Detentions were also reported in
Beijing municipality and in Anhui, Hubei, Jiangsu, Jilin,
Shandong, Shanxi, Sichuan, Yunnan, and Zhejiang provinces, and
in the Xinjiang Uighur Autonomous Region (XUAR).\223\ In
addition, officials demolished a large house church in Hangzhou
city, Zhejiang province, and beat hundreds of house church
members. Municipal officials had denied repeated requests for
permission to build a church.\224\
The government targets house church leaders for the most
severe punishment. In November 2005, officials convicted Cai
Zhuohua, a house church pastor in Beijing, of ``illegal
operation of a business'' for printing and giving away Bibles
without government authorization\225\ [see Section V(a)--
Special Focus for 2006: Freedom of Expression]. The court
sentenced Cai to three years' imprisonment. Xiao Yunfei and
Xiao Gaowen, his wife and brother-in-law, were sentenced to
shorter terms.\226\ House church pastors Liu Yuhua and Wang
Zaiqing also reportedly printed Bibles without permission, and
in 2006 officials detained the former and formally arrested the
latter.\227\ In December 2004, officials arrested Zhang
Rongliang, a leader of the China for Christ house church
network in Henan province, and several months later charged him
with ``illegally crossing the national border'' and
``fraudulently obtaining a passport.'' \228\ In June 2006,
Pastor Zhang was sentenced to seven years and six months in
prison.\229\ Officials convicted Gong Shengliang, founder of
the South China Church in Hubei province, of premeditated
assault and rape in 2001. Gong continues to serve a sentence of
life in prison in Hubei province, although nine of the
government's witnesses against him have recanted their
testimony, alleging that their testimony was extracted under
torture [see Section V(b)--Rights of Criminal Suspects and
Defendants--Torture and Abuse in Custody]. In 2006, Gong's
daughters reported that he is in poor health, and that another
inmate beat Gong in prison. His lawyers have applied for his
release on medical parole.\230\
Chinese authorities have banned some house churches as
``cults,'' and harassment and repression of unregistered
Protestants for involvement in ``cults'' became more prominent
in mid-2006. Religious practitioners involved in what the
government classifies as a ``cult'' are subject to prosecution
under Article 300 of the Criminal Law. On five occasions in
June and July 2006, officials reportedly accused or
investigated house church members for involvement in ``cults''
(xiejiao).\231\ In July 2006, Xu Shuangfu and 15 additional
leaders of the Three Grades of Servants house church, which was
banned as a ``cult'' in 1999, were convicted on charges of
murder and fraud.\232\
The Chinese government continues to maintain strict control
over the registered Protestant church. The Regulation on
Religious Affairs (RRA) requires that all Protestants worship
at registered churches,\233\ regardless of their differences in
doctrine and liturgy. The state-controlled Three-Self Patriotic
Movement (TSPM), which leads the registered Protestant church
in China, does not allow Protestants to express these
differences freely.\234\ The TSPM continues to impose a
Communist Party-defined theology, called ``theological
construction,'' on registered seminaries that, according to
TSPM leader Ding Guangxun, will ``weaken those aspects within
Christian faith that do not conform with the socialist
society.'' \235\ TSPM publications indicate that the aspects to
be weakened include fundamental Protestant beliefs, such as
justification by faith alone.\236\ TSPM publications also
contain indications that some Chinese Protestants resist
``theological construction,'' and that this resistance may be
gaining in strength.\237\ In the past year, one instance was
reported in which officials detained a
registered Protestant pastor in Henan province, when the pastor
conducted a Bible study meeting at a registered Protestant
church outside his designated geographic area.\238\ The Henan
provincial Regulation on Religious Affairs requires visiting
registered
religious personnel to secure permission from both the
religious
organization in their designated geographic area and the
religious organization in the area they propose to visit.\239\
A TSPM official in the XUAR, where Protestantism is spreading
rapidly among the Han Chinese population, has reportedly said
that, although several years ago children used to attend
church, authorities now have forbidden this throughout the
region.\240\ A foreign expert who has done extensive research
on the TSPM has said that authorities have been ``siphoning off
the church's main source of revenue--rental income.'' \241\
The Chinese government continues to restrict the
relationships of unregistered Chinese Protestants with their
co-religionists abroad, in contravention of international human
rights standards.\242\ House church Protestants reported that
authorities raided meetings
between house church leaders and Protestants visiting China to
conduct theological or organizational training.\243\ Officials
have prevented some house church leaders from traveling abroad,
and imprisoned others upon their return.\244\ Senior government
officials continue to incite suspicion of overseas Christians
by accusing them of ``religious infiltration'' intended to
weaken China. Press reports have associated Protestantism with
``foreign imperialism'' and warn that Protestantism must be
``patriotic'' and not harm China.\245\ Despite these
restrictions, Chinese house churches have become increasingly
interested in theological and denominational issues,\246\ and
major house church networks continued to have regular contacts
with each other and with Protestants abroad.\247\
The government also restricts and monitors the foreign
relationships of the registered Protestant church. Although the
government permits the TSPM to maintain contact with foreign
denominations and educational institutions, and to conduct
exchanges with interdenominational Protestant organizations
abroad, it strictly regulates these contacts and limits them to
the TSPM's top leadership.\248\ Registered churches, however,
continue to receive financial support from abroad, a right
protected by Article 35 of the RRA.\249\
The number of reported house church and registered
Protestants in China continued to increase in the past
year.\250\ Foreign estimates of the total number of Protestants
range from 30 million to 100 million. Official Chinese
estimates exclude those who worship in unregistered house
churches.\251\ In response to the rapid growth in the numbers
of unregistered house churches, the government has instructed
registered churches to hold home services.\252\ According to
some reports, Protestants constitute a significant proportion
of the religious practitioners within the Communist Party.\253\
An internal Party study found that of some 60 million Party
members, 20 million engage in religious activities (9 million
do so regularly), and that a majority of them are
Christians.\254\ In October 2005, Party leaders concluded that
this high level of religious practice will ``change the
ideology of Party members and lead to the disintegration of
their political belief . . . and this will create all kinds of
social and political crises in the Party and in the country.''
The same leaders also called for all religious adherents to be
expelled from the Party.\255\ Party members in Liaoning
province and certain members of the Party Central Committee in
Beijing reportedly expressed their disagreement with this
policy, and said that it is time to permit Party members to be
believe in and practice a religion.\256\
The government continues to welcome some of the effects and
influences of Protestantism, specifically those that support
the
Party's societal goals. Chinese Protestants report that many
local officials believe that religious influence reduces
criminality and contributes to social welfare.\257\ The
government continues to welcome social service projects
undertaken by the Amity Foundation, a Protestant foundation
that recently sponsored projects in social services and
development aid, including education, healthcare, and care for
the elderly.\258\ A U.S.-based NGO plans to open the first
private university with an openly Christian mission in China
since 1949.\259\ A growing number of urban entrepreneurs who
have become Protestants use their influence to protect and
promote their religious communities.\260\ Likewise, a growing
number of urban intellectuals who have joined the house church
movement advocate for political and legal reform in China.\261\
Government Persecution of Falun Gong
Government persecution of Falun Gong practitioners, which
began in 1999 after thousands of practitioners demonstrated
peacefully outside the senior leadership compound in
Beijing,\262\ continued during the past year. Falun Gong and
other sources reported cases of arrest, abuse, detention,
torture, and execution of practitioners in 2005 and 2006.\263\
Based on official Chinese government information, at least 202
Falun Gong practitioners are currently in prison.\264\ Falun
Gong sources estimate that since 1999, at least 6,000
practitioners have been sentenced to prison, over 100,000
practitioners have been sentenced to reeducation through labor
(RTL), and almost 3,000 Falun Gong practitioners have died from
torture while in custody.\265\ Manfred Nowak, UN Special
Rapporteur on Torture, reported after his November 2005 visit
to China that Falun Gong practitioners account for 66 percent
of victims of alleged torture while in government custody.\266\
Multiple allegations of government-sanctioned organ harvesting
from Falun Gong prisoners surfaced in 2006. The U.S. State
Department investigated one set of charges, but was unable to
confirm them.\267\ A former senior Canadian government official
provided transcripts of telephone calls to detention facilities
and transplant centers in China, where officials there
confirmed the availability of organs from Falun Gong
prisoners.\268\ [See Section V(b)--Rights of Criminal Suspects
and Defendants--Harvesting of Organs from Executed Prisoners.]
Chinese government persecution of Falun Gong practitioners
contravenes the standards in Article 18 of the International
Covenant on Civil and Political Rights (ICCPR).\269\ Article
18(1) of the ICCPR guarantees everyone ``the right to freedom
of thought, conscience, and religion . . . [and] to manifest
his religion or belief in teaching, practice, worship, and
observance.'' Article 18(3) specifies that ``freedom to
manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to
protect public safety, order, health, or morals or the
fundamental rights or freedoms of others.'' \270\ The Chinese
government justifies its persecution of Falun Gong on the
grounds that it is necessary to protect public safety, order,
and morals, an argument based on Article 36 of the
Constitution.\271\ The UN Working Group on Arbitrary Detention
(UNWGAD), however, has rejected this argument. In 2004, the
UNWGAD found the detention of Falun Gong practitioner Qiu
Minghua arbitrary, and added that the Chinese government had
``failed to adduce any argument explaining why and how Ms.
Qiu's affiliation with, or profession of, the ideas or
principles of Falun Gong was or could have been detrimental to
the society as a whole, or to other individuals.'' \272\
Article 300 of the Criminal Law\273\ and Article 27 of the
newly enacted Public Security Administration Punishment
Law\274\ provide the legal pretext for penalizing Falun Gong
activities. Public security officials punish the majority of
detained Falun Gong practitioners administratively, including
by detaining them in RTL centers.\275\ [See Section V(b)--
Rights of Criminal Suspects and
Defendants--Administrative Detention.] According to a 1999
joint Supreme People's Court and Supreme People's Procuratorate
interpretation, ``cult'' activities that merit punishment under
the Criminal Law include publishing sect-related materials and
inciting others to disturb public order.\276\ Individuals
sentenced under Article 300 of the Criminal Law for organizing
the April 1999 demonstration in Beijing, and who remain in
prison today, include Li Chang, Wang Zhiwen, Ji Liewu, and Yao
Jie. In 2001, officials sentenced Chongqing practitioners Chen
Qi, He Haiou, Li Zongyu, and Xu Linfen to sentences from 8 to
12 years in prison for using the Internet to create and
distribute information about Falun Gong. In December 2001, a
Beijing court sentenced Wang Xin, Dong Yanhong, Meng Jun, Yao
Yue, and Liu Wenyu, five practitioners associated with Tsinghua
University, and Wang Xuefei, a university student from
Shanghai, to sentences ranging from 3 to 12 years. The
practitioners were convicted of using the Internet to download
materials from foreign Falun Gong Web sites and printing
leaflets for posting and distribution on Beijing streets.\277\
Officials harass and punish Chinese rights defenders and
lawyers who defend Falun Gong practitioners against government
persecution. [See Section V(b)--Rights of Criminal Suspects and
Defendants--Access to Counsel and Right to Present a Defense.]
In November 2005, authorities suspended the operating license
of the Beijing Shengzhi Law Firm and its director Gao Zhisheng
after he wrote an open letter to President Hu Jintao and
Premier Wen Jiabao criticizing official abuses against Falun
Gong practitioners.\278\ In January 2006, a Guangxi law firm
dismissed lawyer Yang Zaixin after he represented three Falun
Gong practitioners.\279\
The Chinese government continues its propaganda campaign
against Falun Gong and other qigong disciplines that it has
designated as ``cults.'' The government alleges that ``Falun
Gong is not only a cult but also an anti-China political
organization with base political intentions.'' \280\ The
government reports that ``in some places, the illegal
activities of Falun Gong and other cults are not completely
contained,'' and has maintained a campaign to distribute
posters illustrating the ``nature and danger'' of these
organizations throughout the country.\281\ The government
campaign against Falun Gong extends to all written materials
that practitioners use. In 2005, the government confiscated
4.62 million ``illegal'' Falun Gong and ``other cult propaganda
materials.'' \282\ One email provider in China blocked almost
20,000 emails relating to Falun Gong and other ``reactionary''
topics in 2005.\283\
V(e) Status of Women
findings
The Chinese Constitution and national laws
provide that men and women should enjoy equal rights
and list protections for the economic and social rights
of women, but vague language and inadequate
implementation hinder the effectiveness of these legal
protections. Some provincial and municipal governments
have passed regulations to strengthen the
implementation of national laws. A 2005 amendment to
the Law on the Protection of Rights and Interests of
Women prohibits sexual harassment and domestic
violence, promotes a greater voice for women in the
government, and charges several government
organizations with responsibility for preventing human
trafficking and rehabilitating victims.
Civil society groups in China advocate on
behalf of women's rights within the confines of
government and Communist Party policy. The All-China
Women's Federation, a Party-led mass organization,
works with the Chinese government to support women's
rights, implement programs for disadvantaged women, and
provide a limited measure of legal counseling and
training for women. Women, however, have limited
earning power compared to men, despite government
policies that guarantee women non-discrimination in
employment and occupation.
Human trafficking remains pervasive in China
despite
efforts by government agencies to combat trafficking, a
framework of domestic laws to address the problem, and
ongoing cooperation with international anti-trafficking
programs. The government's population planning policy
has created a severe imbalance in the male-female birth
ratio, and this imbalance exacerbates trafficking of
women and girls for sale as brides. Between 10,000 and
20,000 men, women, and children are victims of
trafficking within China each year, and NGOs estimate
that 90 percent of those victims are women and children
trafficked for sexual exploitation. Authorities are
working with the International Labor Organization to
build anti-trafficking capacity and raise domestic
awareness of the problem.
Laws and Institutions
The Chinese Constitution and national laws provide that men
and women should enjoy equal rights and list protections for
the economic and social rights of women.\1\ A 2005 amendment to
the Law on the Protection of Rights and Interests of Women
(LPRIW) prohibits sexual harassment and domestic violence,
promotes a greater voice for women in the government, and
charges several government organizations with responsibility
for preventing human trafficking and rehabilitating victims.\2\
Some provincial and municipal governments have passed
regulations to strengthen the implementation of national laws.
For example, 15 provinces and cities have passed anti-domestic
violence regulations, and some localities have rules mandating
that police respond to domestic abuse calls.\3\
Vague language and inadequate implementation hinder the
effectiveness of these legal protections. The editor of the
Beijing newspaper Women's News points out that the LPRIW does
not define sexual harassment and domestic violence.\4\
According to one expert, many women know that laws exist to
protect their rights, but do not understand what these rights
are.\5\ Moreover, judges lack training on the laws protecting
women's rights. One Peking University Law School professor
notes that case rulings in domestic violence cases are
inconsistent because Chinese laws and judicial explanations
lack clear standards.\6\ Under a 1978 State Council regulation,
employers can require women workers to retire five years
before men.\7\ Courts have used this regulation to rule against
women in employment cases, even though the practice contravenes
the LPRIW.\8\ [See Section V(c)--Protection of Internationally
Recognized Labor Rights--Non-discrimination in Employment and
Occupation.] When determining who is eligible to receive shares
of collectively owned village assets, village committees have
made decisions that legitimize discrimination against women who
have moved to their husband's village, or who have remained in
the village in contravention of traditional marriage
arrangements.\9\ The Law of the PRC on Land Contract in Rural
Areas and the Marriage Law guarantee women the same land rights
as men, including land contracts and compensation for
requisitioned land, and since August 2005, judges have ruled in
favor of women in four lawsuits concerning land rights.\10\
The All-China Women's Federation (ACWF), a Communist Party-
led mass organization, works with the Chinese government to
support women's rights, implement programs for disadvantaged
women, and provide a limited measure of legal counseling and
training for women. The ACWF's close ties to the government
allow it to secure funding for innovative methods to deal with
women's problems.\11\ According to one Chinese official, ACWF
loans have helped increase education and employment
opportunities for rural women living in poverty.\12\ Urban
district-level ACWFs are cooperating with judicial and law
enforcement agencies to combat domestic violence by ensuring
police intervention and improving evidence collection in
domestic violence cases.\13\ The ACWF does not promote women's
interests, however, when such interests conflict with Party
policies that limit women's rights. For example, an ACWF
representative in Yunnan refused to allow a leading women's
rights activist to represent over 500 women in Yunnan who were
seeking redress for lost land, on the grounds that such
interference could ``influence stability.'' \14\ In addition,
the ACWF has been silent about the abuses of the government
population planning policy and is complicit in coercive
enforcement of birth limits\15\ [see Section V(h)--Population
Planning].
Civil society groups in China advocate for women's rights
within the confines of government and Party policy. Working
with the ACWF, the Chinese Legal Aid Foundation has set up a
fund to encourage volunteers to provide expert legal advice for
economically disadvantaged women.\16\ Women lawyers represent
women in lawsuits involving sexual harassment, domestic
violence, and compensation for land seizures, and newspapers
such as Women's News publicize the cases.\17\ In October 2005,
six domestic Chinese women's organizations attended a symposium
to share best practices,\18\ and women lawyers, entrepreneurs,
mayors, and reporters have also begun to form associations to
raise the profile of women in these professions.\19\
Gender Disparities
Women have limited earning power compared to men, despite
government policies that guarantee women non-discrimination in
employment and occupation. [See Section V(c)--Protection of
Internationally Recognized Labor Rights--Nondiscrimination in
Employment and Occupation.] Women have fewer opportunities for
promotion than men\20\ and have lower rates of employment at
high-paying jobs than men.\21\ Employers demand that women have
higher education levels than men to be hired for equivalent
white-collar positions.\22\ Middle-aged women have lost their
jobs more quickly than men as the state-owned manufacturing
sector has undergone economic restructuring.\23\ Some local
governments have established programs to provide loans and
training to women who have lost their jobs.\24\
In rural areas, women have fewer economic opportunities
than men and have less access to education. Men have more
opportunities to engage in non-agricultural employment, and
women are increasingly taking up uncompensated farming
responsibilities.\25\ Women now account for 60 percent of total
rural laborers.\26\ Some families emphasize the education of
male children over female children.\27\ According to statistics
in a 2006 Chinese Academy of Social Sciences report, 61 percent
of boys and 43 percent of girls in rural areas have completed
education higher than lower middle school.\28\ Young women
migrate to urban areas to find work, leaving them vulnerable to
trafficking, forced labor, and other abuses.\29\ According to a
2005 survey conducted in Hunan province, 74.8 percent of
migrant women respondents in Changsha, the capital of Hunan
province, had experienced sexual harassment while working.\30\
Chinese health statistics reflect women's disadvantaged
status. Chinese women have a higher overall rate of infectious
disease and disability than men.\31\ A lack of gender-sensitive
anti-HIV/AIDS policies has led to a growing risk of infection
for women\32\ [see Section V(g)--Public Health--HIV/AIDS].
According to one Chinese
report, since the late 1990s, the proportion of female HIV/AIDS
patients has risen. In the late 1990s, the ratio of infected
men to women was 9:1. In 2006, the ratio was reported to be
3:1.\33\ China is the only country in the world where the rate
of suicide is higher among women than among men.\34\ In rural
areas, the instance of suicide among women is three to four
times higher than the rate among men.\35\
Human Trafficking
Human trafficking remains pervasive in China despite
efforts by government agencies to combat trafficking, a
framework of domestic laws to address the problem, and ongoing
cooperation with international anti-trafficking programs.
Traffickers are often linked to organized crime and specialize
in abducting infants and young children for adoption and
household service.\36\ They also abduct girls and women for the
bridal market in China's poorest areas and for sale as
prostitutes.\37\ According to the U.S. State Department's
Office to Monitor and Combat Trafficking in Persons, between
10,000 and 20,000 men, women, and children are victims of
trafficking within China each year, and NGOs estimate that 90
percent of those victims are women and children trafficked for
sexual
exploitation.\38\ The government's population planning policy
has created a severe imbalance in the male-female sex ratio,
and the imbalance exacerbates trafficking of women for sale as
brides [see Section V(h)--Population Planning]. The Chinese
official media reported that employees at state-run welfare
organizations in Hunan province and the Inner Mongolia
Autonomous Region engaged in infant trafficking in 2005.\39\
Article 240 of the Criminal Law provides for severe
punishment, including the death penalty, for abducting and
trafficking women and children, and Article 416 contains
provisions to punish officials who fail to rescue women and
children who are abducted and trafficked.\40\ Efforts by the
Ministry of Public Security (MPS), however, have not kept pace
with increased trafficking. The number of victims of child
trafficking increased by 15 percent over a two-year period
beginning in 2003, according to unofficial government sources
cited by foreign news media,\41\ but the number of trafficking-
related arrests has declined since reaching a peak during an
MPS enforcement campaign that began in 2000.\42\ China is a
signatory to the UN Convention against Transnational Organized
Crime, but not to its two protocols that address human
trafficking and smuggling of migrants.\43\ China's Criminal Law
does not specifically address the issue of human trafficking as
it relates to forced labor, and although the Labor Law outlaws
forced labor practices in the workplace, it only provides light
penalties for violators.\44\ [For more information on forced
labor, see Section V(c)--Protection of Internationally
Recognized Labor Rights--Elimination of Forced Labor.]
State Council ministries, as well as employers' and
workers' organizations, are cooperating with the International
Labor Organization (ILO) to build anti-trafficking capacity and
raise domestic awareness of the problem.\45\ For example, an
ILO pilot program begun in 2000 to reduce the vulnerability of
women and children to trafficking in Yunnan province has
coordinated the resources of the All-China Women's Federation
and other local agencies to raise awareness and rehabilitate
victims of trafficking. The program has been expanded to five
other provinces.\46\
V(f) The Environment
findings
The Chinese government acknowledges the
severity of China's environmental problems and has
taken steps to curb pollution and environmental
degradation. Since 2001, it has
formulated or revised environmental protection laws,
administrative regulations, and standards, and has
worked to strengthen enforcement of anti-pollution
rules. The Chinese government has also welcomed
international technical assistance to combat
environmental degradation, and has increased
cooperation with the U.S. government on environmental
protection over the past year.
Despite these initiatives, local enforcement
of environmental laws and regulations is poor, and
underfunding of environmental protection activities
continues to hinder official efforts to prevent
environmental degradation. A lack of transparency
hampers the Chinese government's ability to respond to
civil emergencies, including environmental disasters.
Government efforts to impose greater control over
environmental civil society groups during the past year
have stifled citizen activism.
Government Response to Environmental Degradation
The Chinese government acknowledges the severity of China's
environmental problems. The State Council's White Paper on
``Environmental Protection (1996-2005),'' issued in June 2006,
notes that ``the contradiction between economic growth and
environmental protection is particularly prominent'' as the
``relative shortage of resources, a fragile ecological
environment and insufficient environmental capacity are
becoming critical problems hindering China's development.'' \1\
Senior government officials also acknowledge the possible
threat to social stability posed by severe environmental
degradation.\2\ A U.S. expert has observed that environmental
degradation and pollution ``constrain economic growth,
contribute to large-scale migration, harm public health, and
engender social unrest.'' \3\ According to official Chinese
estimates, environmental degradation and pollution cost China
an estimated 8 to 12 percent of annual GDP,\4\ and the number
of mass protests over pollution has increased by 29 percent per
year since 2000.\5\
The Chinese government has taken steps to curb pollution
and environmental degradation. In both its 10th (2001-2005) and
11th (2006-2010) Five-Year Programs, the government formulated
or revised environmental protection laws, administrative
regulations, and standards,\6\ and has worked to strengthen
enforcement of anti-pollution rules.\7\ The State Environmental
Protection Administration (SEPA) announced in October 2005 that
city governments will be penalized if they fail to attain
national air quality standards.\8\ SEPA has also continued to
close factories and halt construction projects that violate the
Environmental Impact Assessment Law and other environmental
protection laws.\9\ In September 2005, a Sichuan court found
environmental protection officials and commercial enterprise
officers criminally liable for severely polluting the Tuojiang
(Tuo River). This case is the first in which environmental
protection authorities investigated officials and company
officers at the same time for an environmental crime.\10\
Despite these initiatives, local enforcement of
environmental laws and regulations is poor, and underfunding of
environmental protection activities continues to hinder
official efforts to prevent environmental degradation.\11\
Officials often seek to protect enterprises that pollute
because local governments derive income from these enterprises
and job evaluations for officials are based on local economic
performance, not improvements in health or safety.\12\ Local
officials have also pressured local environmental protection
bureaus (EPBs) to overlook pollution and take no action against
polluters. Moreover, EPB officials sometimes allow polluting
enterprises to continue operation, because their often
underfunded bureaus derive additional funds by collecting fines
from polluters.\13\ In late 2005, poor local enforcement of
environmental laws and corruption triggered mass protests by
villagers in Zhejiang province.\14\
Government Transparency and Environmental Protection
A lack of transparency hampers the Chinese government's
ability to respond to civil emergencies, including
environmental disasters. An explosion in November 2005 at a
petrochemical plant in Jilin province released over 100 tons of
benzene and other toxic chemicals into the Songhua River.\15\
The Songhua flows into neighboring Heilongjiang province and is
the main water source for Harbin, the provincial capital, and
surrounding areas.\16\ Jilin officials and plant managers
initially denied that the explosion caused any pollution and
tried to dilute the spill by discharging water from a
reservoir.\17\ Jilin officials also waited approximately five
days to inform Heilongjiang provincial officials and the State
Environmental Protection Administration (SEPA) about the
spill.\18\ Once informed, Harbin officials announced that the
water supply system would be shut down for ``routine
maintenance.'' Harbin officials revised the announcement amid
rumors of a chemical spill, and informed the public 10 days
after the spill that the water system would be unavailable for
4 days due to ``possible'' contamination.\19\ This delayed
local government response impeded central government efforts to
manage the crisis, led to panic among the citizens of Harbin
city, and created a diplomatic incident with Russia.\20\
According to a U.S. expert, ``there are few incentives for
local officials in China to be bearers of bad news within the
system, because they believe they will likely be penalized for
it politically from the higher-ups.'' \21\
After the Songhua spill, the central government dismissed
some officials and passed rules to discourage provincial and
local officials from concealing information from the central
government.\22\ These reforms were not intended to relax the
government's control over the media or over the free flow of
information to the general public. Rather, the goal was to
increase the flow of information to central authorities in
Beijing. In January 2006, the State Council issued a general
plan on emergency response, stipulating that Class I (``most
serious'') or Class II (``serious'') incidents must be reported
to the State Council within four hours, and that the public
should be provided with accurate information in a timely
manner.\23\ In February 2006, SEPA issued a notice stating that
serious incidents must be reported to SEPA within an hour of
being discovered.\24\ Despite these steps to improve local
reporting to higher authorities, the central government did not
address the larger issue of government control over the news
media,\25\ which led to a nearly two-week press blackout on the
Songhua spill. Moreover, the National People's Congress is
considering a new draft law that would fine news media
organizations that report on sudden incidents, such as
environmental disasters, without prior government
authorization.\26\
Public Participation in Environmental Protection
The State Environmental Protection Administration (SEPA)
has continued efforts to expand public participation in
environmental protection work. In February 2006, SEPA released
two provisional measures on public participation in
Environmental Impact Assessment (EIA) procedures. These
measures are the first to contain specific arrangements and
procedures for public involvement in environmental issues.\27\
The measures allow a limited role for the public in the EIA
process through attendance at symposiums or public hearings,
answering questionnaires, and consulting experts. In July 2006,
a SEPA official announced that public hearings may be held on
important, complex, or difficult environmental matters.\28\ In
addition, before contractors launch a project, they are
required to provide the public with details on how construction
could affect the environment and what preventive measures will
be taken.\29\
The Chinese government has altered or delayed some
development projects in response to environmental concerns from
civil society groups, but a continued lack of transparency
limits public
involvement and violates the government's own environmental
protection laws. In February 2004, the government responded to
citizen environmental concerns and agreed to suspend all 13
proposed hydroelectric dam projects on the Nujiang (Nu River)
in Yunnan province, pending further review.\30\ In 2005,
Chinese officials reversed this decision after a closed
internal review, said that four of the proposed dams would be
built, and banned further news media coverage of the topic.\31\
Officials released information regarding the proposed dam
project under public pressure. In September 2005, environmental
activists posted an open letter to the State Council on the
Internet, pointing out violations of the EIA law and demanding
that officials organize a public hearing on the dam
project.\32\ Provincial authorities subsequently released the
government's order approving the EIA report, after refusing to
do so for two years.\33\
Despite these positive steps, government efforts to impose
greater control over environmental civil society groups during
the past year have stifled citizen activism. In June 2006, an
unidentified assailant assaulted Three Gorges resettlement
activist Fu Xiancai, leaving him paralyzed from the shoulders
down, after he met with a public security official to discuss
his interview with a German television station in May. Fu had
been harassed and threatened for more than a year as a result
of his petitioning efforts.\34\ The official investigation into
the assault concluded in August that Fu's injuries were self-
inflicted, a finding that is disputed by observers and those
close to him.\35\ This assault follows the detention of
environmental activists in October 2005 and April 2006.\36\ Tan
Kai, who was detained in October 2005 for his involvement in
the environmental group ``Green Watch,'' went to trial in May
on charges of illegally obtaining state secrets and was
sentenced to 18 months' imprisonment in August.\37\ Authorities
tried a villager from Zhejiang province in November 2005 for
his role in a protest against air pollution.\38\ In August
2005, senior officials announced that the All-China Environment
Federation would conduct a survey of environmental
organizations.\39\ Some analysts believe that the goal of the
survey is to rein in the activities of civil society
organizations.\40\
International Environmental Cooperation
The Chinese government has welcomed international technical
assistance to combat environmental degradation. The United
States and China share a common interest in protecting the
environment, and over the past year the two governments have
increased bilateral cooperation on environmental protection,
including:
In November 2005, the Joint Committee on
Environmental Cooperation (JCEC) met in the United
States for its inaugural session. The JCEC was formed
on the basis of a 2003 agreement between the U.S.
Environmental Protection Agency (EPA) and the China
State Environmental Protection Administration to
collaborate on environmental issues, beginning with air
pollution, water contamination, and the environmental
impact of toxic substances.\41\
The Asia-Pacific Partnership on Clean
Development and
Climate, a U.S. initiative to promote the development
and deployment of clean energy technologies to meet
pollution reduction, energy security, and climate
change concerns, was launched in January 2006. Member
countries include the United States, China, Australia,
India, Japan, and South Korea.\42\ One priority of the
Partnership is to strengthen U.S.-China cooperation on
environmental protection.\43\
In April 2006, EPA Administrator Stephen
Johnson met in China with his counterpart, Minister
Zhou Shengxian, to sign an agreement on hazardous-waste
management, including finding and disposing of
polychlorinated biphenyls (PCBs). Johnson also toured
an EPA-funded project to encourage the use of cleaner,
safer home cooking fuels in Lijiang city, Yunnan
province, and an EPA-supported project between the Port
of Los Angeles and the Shanghai Municipal Port
Administration to reduce air pollution.\44\
In May 2006, the U.S. Trade and Development
Agency awarded a grant to the Shandong Provincial
Environmental Protection Bureau (EPB) to develop
cleaner energy sources and another grant to the Shanxi
Provincial EPB to improve air quality.\45\
V(g) Public Health
findings
The central government strengthened its
commitment during the past year to address the severe
shortage of affordable health care in rural China.
Since the collapse of the rural public health
infrastructure in the 1980s, the disparity in the
availability and affordability of health care between
urban and rural areas has increased. As a result, the
medical needs of China's rural poor, including the
diagnosis and treatment of infectious diseases, often
go unaddressed. The government, however, has pledged to
accelerate the establishment of rural health
cooperatives and invest more than 20 billion yuan
(US$2.5 billion) over the next five years to modernize
hospitals, clinics, and medical equipment at the
village, township, and county levels.
The central government continued to take steps
over the past year to prevent and control the spread of
HIV/AIDS. Although the estimated number of HIV/AIDS
cases nationwide has decreased, health officials still
consider the disease to be a grave problem. Government
efforts to prevent and control the transmission of HIV/
AIDS continue to face serious challenges, as local
implementation of national policy lags far behind
central government attention to the problem. Victims of
HIV/AIDS and other infectious diseases also continue to
face harassment and discrimination, despite legal
protections.
Chinese public health officials have shown
increased commitment and responsiveness in their
efforts to prevent and control the spread of avian flu,
and have taken steps to improve government transparency
following the mishandling of the SARS epidemic in 2003.
International health experts, however, still consider
China to be among the most likely incubators of a
potential human influenza pandemic. Central government
cooperation in sharing information and virus samples
with international health organizations has been
inconsistent, and international health organizations
and central government officials continue to express
concern about the speed and accuracy of local reporting
on outbreaks among both humans and poultry.
Rural Poverty and Public Health
The central government strengthened its commitment during
the past year to address the severe shortage of affordable
healthcare in rural China. Premier Wen Jiabao announced the
launching of a Plan for Establishing and Developing a Rural
Healthcare Service System in a March 2006 work report to the
annual plenary session of the National People's Congress. The
Chinese leadership highlighted these goals in their December
2005 Opinion Promoting the Construction of a New Socialist
Countryside, a document that enumerated key policy goals
related to rural development for 2006.\1\
According to the plan, the government will invest more than
20 billion yuan (US$2.5 billion) over the next five years to
modernize hospitals, clinics, and medical equipment at the
village, township, and county levels.\2\ In an effort to
accelerate the establishment of rural health cooperatives,
Premier Wen pledged to expand experimental health cooperative
coverage from 671 counties to 1,145 counties (over 70 percent
of the counties in China) by the end of 2006, and double the
healthcare allowances paid to rural residents in the program
from 20 yuan (US$2.5) to 40 yuan (US$5).\3\ Wen also said that
central and local governments will build rural health
cooperatives across the entire country by 2008.\4\
Since 2002, the central government has encouraged the
formation of rural health cooperatives, which receive local
government subsidies to cover a portion of the medical expenses
for farmers who pay an annual 10 yuan (US$1.25) premium.
Despite these
improvements, healthcare costs have become one of the greatest
financial burdens for those living in rural areas.\5\ The
poorest residents in rural areas frequently do not enroll in
health cooperatives because of the modest annual fee.\6\ Even
for participants, the cooperative plan covers only between 30
and 40 percent of hospitalization costs, leaving many rural
families in debt after a serious
illness.\7\ Yang Lixiong, a social security expert at Renmin
University in Beijing, found that since 2001, the per capita
income of those living in rural areas increased 2.4 percent,
while the per capita yearly expenditure on healthcare services
among rural residents rose 11.8 percent.\8\
Since the dissolution of the commune-based rural public
health infrastructure in the 1980s, the disparity between urban
and rural areas in the availability and affordability of
healthcare has increased.\9\ China's healthcare system
underwent privatization beginning in 1978, and by 1999 the
central government's share of
national healthcare spending fell from 32 percent to 15
percent.\10\ From 1977 to 2002, the number of doctors in rural
China decreased from 1.8 million to 800,000, and the number of
rural healthcare workers decreased from 3.4 million to
800,000.\11\ Eighty percent of medical resources are now
concentrated in cities, and the new rural healthcare system
covers less than 23 percent of rural residents.\12\ The rural-
urban disparity is also apparent in mortality statistics.
Residents of large cities in China live 12 years longer than
rural residents, and the infant mortality rate in some rural
areas is nine times higher than in large cities.\13\
Infectious Diseases and Public Health
Infectious diseases such as tuberculosis and hepatitis B
continue to be a major challenge for China's public health
system. According to the Ministry of Health (MOH), a total of
4.42 million infectious disease cases were reported in 2005, an
increase of 12.7 percent from 2004.\14\ Over 13,000 people died
from infectious diseases in 2005, and the mortality rate
increased more than 80 percent from 2004, according to a MOH
report.\15\ Among the top killers were tuberculosis, rabies,
AIDS, hepatitis B, and neonatal tetanus.\16\ Unofficial
estimates place the number of hepatitis B carriers in China at
120 million.\17\ In an attempt to reduce hepatitis B infection,
the MOH issued the ``2006-2010 National Plan on Hepatitis B
Prevention and Control.'' The plan's top priority is to
strengthen vaccination programs, especially among young
children.\18\ The plan sets the goal of lowering the infection
rate to 1 percent among those five years old and younger, and
to less than 7 percent nationwide by 2010. The MOH has
acknowledged the limitations of the current public health
system in addressing the growing medical needs of hepatitis
carriers.\19\ A survey conducted by the China Foundation for
Hepatitis Prevention and Control (CFHPC) found that a majority
of Chinese physicians do not have adequate knowledge of
hepatitis B or of ways to prevent and treat the disease.\20\
Victims of infectious diseases, like hepatitis B, continue
to face discrimination in schooling and employment, despite
protections in the Law on the Prevention and Control of
Infectious Diseases, as amended in 2004.\21\ The amended law
prohibits discrimination against people with infectious
diseases, people carrying the pathogen of an infectious
disease, and people who are suspected of having an infectious
disease. A 2005 CFHPC survey, covering 583 hepatitis patients
in 18 provinces, found that 52 percent of the respondents had
faced discrimination in employment and education.\22\ Some
carriers, however, have become aware of their legal rights and
have taken legal action against unfair treatment. In November
2005, university authorities in the Xinjiang Uighur Autonomous
Region ordered 156 students, diagnosed as hepatitis B positive
in their matriculation health checks, to suspend their
schooling ``for the sake of public health.'' Students formed an
action group and circulated fliers to protest the unfair
treatment, and one student started legal proceedings against
university authorities.\23\ One student also filed a lawsuit
against a university in Henan province alleging that the school
denied him admission because he is a carrier of the hepatitis B
virus. The university had denied the student admission, despite
the fact that he scored above the cut-off point on the entrance
examination. His application showed that he had tested positive
for hepatitis B.\24\
HIV/AIDS
The central government continued to take steps over the
past year to prevent and control the spread of HIV/AIDS. In
January 2006, the State Council issued its most comprehensive
HIV/AIDS regulations since the government first adopted
guidelines in 1987.\25\ The new regulations address the
dominant modes of HIV/AIDS transmission in China: intravenous
drug use and sexual contact. The regulations call for
cooperative measures among health authorities to provide
treatment for drug addicts, require that local governments
organize HIV/AIDS prevention action plans and monitoring
systems, and encourage local governments to post material about
HIV/AIDS transmission in public places. The new regulations
also require that governments at the county level and above
provide free anti-HIV/AIDS drugs for rural and poor urban AIDS
patients.\26\ A March 2006 UNAIDS report found that China was
only half way to meeting its goal under the UN's ``3 by 5''
initiative of providing 30,000 HIV/AIDS carriers access to
anti-HIV drugs by the end of 2005.\27\ The new regulations also
address discrimination against HIV patients, mandating that
``no work unit or individual shall discriminate against HIV
carriers, AIDS patients, or their families.'' \28\ The
regulations, however, do not specify legal redress for victims
who face such discrimination.
Health officials still consider HIV/AIDS in China to be a
``grave'' problem.\29\ Although the World Health Organization
and UNAIDS program decreased the estimated number of HIV/AIDS
cases nationwide from 840,000 to 650,000, health officials
calculate that there were on average 200 new cases of HIV/AIDS
infection in China each day in 2005.\30\ Government efforts to
prevent and control the transmission of HIV/AIDS continue to
face serious challenges. Central government officials expressed
frustration during 2005 and 2006 with local-level
implementation of national HIV/AIDS policy. During a November
29, 2005, meeting of the State Council Work Committee on AIDS
Prevention and Treatment, Vice Premier Wu Yi criticized some
local officials for failing to recognize the severity of the
HIV/AIDS problem, and criticized others for neglecting and, at
times, obstructing HIV/AIDS prevention and control efforts.\31\
Wang Longde, Vice Minister of Health, criticized local
governments in November 2005 for only providing HIV/AIDS
prevention services to urban residents with local residential
registration, thus excluding migrant workers who are a high-
risk group for HIV/AIDS infection.\32\ To address this
discrimination, the State Council and the Ministry of Health
announced a new program in November 2005 that aims to provide
more than 65 percent of migrant workers with access to HIV/AIDS
prevention information by the end of 2006, and more than 85
percent by 2010.\33\
Reports of government harassment of HIV/AIDS carriers
continued throughout the year, as some local officials
retaliated against AIDS victims who expressed their
grievances.\34\ Local government harassment of Chinese civil
society organizations dealing with HIV/AIDS also continued,
undermining efforts to combat the disease. Public security
officials detained activist Hu Jia, co-founder of the Beijing
Aizhixing Institute and of Loving Source, both HIV/AIDS
advocacy groups, when he attempted to deliver a petition on
behalf of more than 50 AIDS patients to Vice Premier Wu Yi at a
November 2005 AIDS conference in Henan province.\35\ Citing
government pressure, Hu subsequently resigned from Loving
Source in February 2006.\36\ [See Section VII(a)--Development
of Civil Society.]
Avian Flu
Chinese public health officials have shown increased
commitment and responsiveness in their efforts to prevent and
control the spread of avian flu, and have taken steps to
improve government transparency following the mishandling of
the SARS epidemic in 2003.\37\ Since a series of outbreaks in
poultry occurred in the fall of 2005, the central government
has appropriated over 2 billion yuan (US$250 million) for the
establishment of an avian flu prevention fund, and initiated
avian flu emergency management and monitoring plans through the
Ministry of Health and the Chinese Center for Disease Control
and Prevention.\38\ Local officials have culled or vaccinated
millions of poultry in affected areas.\39\ International health
experts, however, still consider China to be among the most
likely incubators of a potential human influenza pandemic.\40\
International health officials have continued to express
concern about the effectiveness of animal disease surveillance
methods at the local level, as the majority of reported human
infections have occurred in regions in which no previous bird
infections had been reported.\41\
Central government cooperation in sharing avian flu
information and virus samples with international health
organizations has been inconsistent. Although the Ministry of
Health has cooperated with international health organizations,
the Ministry of Agriculture has been less forthcoming.\42\
Testifying before a Commission roundtable, one health expert
said, ``Unfortunately, the lessons learned from SARS by the
Ministry of Health do not seem to have translated as well to
the Ministry of Agriculture.'' \43\ In an attempt to improve
the transparency of official reporting on avian flu outbreaks,
the State Council issued regulations in November 2005 requiring
provincial governments to report ``major'' animal epidemics to
the State Council within four hours of discovering them, and
county and city governments to report cases to provincial
authorities within two hours.\44\ Officials who are found
negligent in reporting outbreaks face removal from office and
potential prosecution.\45\ Despite these regulations,
international health organizations and central government
officials continue to express concern about the speed and
accuracy of local reporting of outbreaks among both humans and
poultry.\46\ The reporting of domestic outbreaks by Chinese
news media sources also has frequently lagged behind that of
international news media organizations.\47\ In an October 2005
editorial discussing the government's response to avian flu, Hu
Shuli, editor of Caijing, a government-sponsored magazine,
wrote that, ``if one wants to do things even better, one should
admit that announcements of avian influenza outbreaks to the
domestic public are still obviously delayed and incomplete.
This is inappropriate in every way.'' \48\
V(h) Population Planning
findings
The Chinese government strictly controls the
reproductive lives of Chinese women. Since the early
1980s, the government's population planning policy has
limited most women in urban areas to bearing one child,
while permitting many women in rural China to bear a
second child if their first child is female. Officials
have coerced compliance with the policy through a
system marked by pervasive propaganda, mandatory
monitoring of women's reproductive cycles, mandatory
contraception, mandatory birth permits, coercive fines
for failure to comply, and, in some cases, forced
sterilization and abortion.
The Chinese government's population planning
laws and regulations contravene international human
rights standards by limiting the number of children
that women may bear, by coercing compliance with
population targets through heavy fines, and by
discriminating against ``out-of-plan'' children. Local
officials have violated Chinese law by punishing
citizens, such as legal advocate Chen Guangcheng, who
have drawn attention to population planning abuses by
government officials.
Population Planning Policy
The Chinese government strictly controls the reproductive
lives of Chinese women, but population planning policy varies
by locality. Since the early 1980s, the government's population
planning policy has limited most women in urban areas to
bearing one child, while permitting many women in rural China
to bear a second child but generally restricting the additional
birth to women whose first child is female.\1\ Officials have
coerced compliance with the policy through a system marked by
pervasive propaganda, mandatory monitoring of women's
reproductive cycles, mandatory contraception, mandatory birth
permits, coercive fines for failure to comply, and, in some
cases, forced sterilization and abortion. Since the early
1980s, population planners have frequently revised provincial
and local rules and quotas as the result of evolving national
population targets.\2\ Current policies concerning the
circumstances under which women may bear two children vary at
the provincial and local level, depending on changes in the
national plan, on changes in provincial and local quotas, and
on whether provinces or localities have met or exceeded
previous quotas.\3\ Local regulations permit ethnic minorities
to have additional children. Ethnic minorities in the Xinjiang
Uighur Autonomous Region are permitted to have more than two
children if they reside in rural areas, and the Communist
Party's official journal, Seeking Truth, has claimed that in
the Tibet Autonomous Region there are no restrictions on the
number of children that farmers and herders may have.\4\
The government coerces compliance with its restrictions on
birth principally through a system of harshly coercive fines,
which are termed ``social compensation fees.'' \5\ Provincial-
level governments determine the criteria for issuing these
fines, their amounts, and the method for collecting them
``based on local conditions.'' \6\ In Beijing municipality,
officials file a case, investigate, and deliver a ``Social
Compensation Fee Decision'' to parents when they suspect an
illegal birth. The parents must pay in full within 30 days of
receiving the ``Social Compensation Fee Decision'' or file an
application to pay the fine in installments. The first payment
must be 50 percent of the total fine, and the parents must make
full payment within three years. Parents in Beijing who violate
regulations on having a second child, or unmarried persons who
violate regulations on having a child, are fined 3 to 10 times
the area's average annual income. Parents who have a second
child in accordance with regulations, but less than four years
after the first child, or when the mother is less than 28 years
old, are fined one-fifth of the area's average disposable
annual income for urban residents, and one-fifth of the area's
average gross annual income for rural residents. When the
parents' actual income exceeds the area's average income, the
regulations provide that the actual income should be the basis
for computing the fine. If the parents ``practice deception,''
obstruct official processes, or ``exert negative social
influence,'' fines can be doubled.\7\ Practices for assessing
fees against parents who violate population planning
regulations differ in Shandong province, where incomes are
lower than in Beijing municipality. The fine is set at 30
percent of a given area's average annual income.\8\ Families
forced to pay these heavy fines can be financially devastated
for years. When parents do not pay the fines, population
planning officials can file legal cases, and one Chinese media
report from 2006 described a local court acting ``vigorously''
to collect fees and to ``uphold the authority'' of population
planning officials.\9\ Officials also have reportedly destroyed
the homes of those who do not pay the fines.\10\
Violations of Chinese Law and International Human Rights
Standards
The Chinese government's population planning laws and
regulations contravene international human rights standards.
For example, the Population and Family Planning Law, which
became
effective in 2002, contravenes the standards set by the 1995
Beijing Declaration and the 1994 Programme of Action of the
Cairo International Conference on Population and Development
(1994 Programme) by limiting the number of children that
married women may bear and by banning unmarried women from
bearing any children.\11\ Population planning laws coerce
compliance by penalizing women who bear an ``out-of-plan''
child with a ``social compensation fee'' that ranges from
roughly one-half to 10 times an individual's average annual
income, based on locality.\12\ Moreover, 7 provinces require
``termination'' of pregnancies that violate provincial
regulations, while 10 provinces require unspecified ``remedial
measures.'' \13\ The government contravenes the standards set
by the
Universal Declaration of Human Rights and the International
Covenant on Economic, Social, and Cultural Rights by
discriminating against ``out-of-plan'' children in health care
and education.\14\ The government also contravenes the 1994
Programme by setting population targets.\15\
Some local officials charged with implementing the national
population planning policy violate Chinese law by physically
coercing abortions and sterilizations. Although physical
coercion violates Article 4 of the Population and Family
Planning Law,\16\ local officials continue to use physical
coercion, or the threat of physical coercion, to enforce
compliance with population planning laws and regulations. In
December 2005, Western media reported that officials in Hebei
province forced a Falun Gong practitioner to have an abortion,
and in 2006, officials in Chongqing municipality and in Fujian
province forcibly sterilized women.\17\ In June 2006, Western
media reported that a woman fell to her death while fleeing
Anhui provincial officials who were attempting to force her to
abort twins, since she had previously given birth to one
child.\18\ Central government personnel policies encourage the
coercive practices of local officials by making the local
officials' promotions and bonuses dependent on meeting
population targets.\19\ Little public evidence is available to
show that officials who employ physical coercion against
pregnant women have been punished for their illegal acts.\20\
Two committees of the U.S. House of Representatives heard
testimony in 2004 and 2006 that some Chinese officials continue
to physically coerce compliance with the population planning
policy. Witnesses said that the means employed against pregnant
women include forced abortion, sterilization, and implantation
of contraceptive devices. Other forms of physical coercion are
exercised against friends and relatives who try to assist
them.\21\ The government uses group rewards and punishments,
denying benefits or imposing penalties on entire villages,
factories, or work units in the event of a single ``out-of-
plan'' birth. As a result, women with ``out-of-plan''
pregnancies are ostracized and placed under great pressure to
have an abortion.\22\ These abuses have created an atmosphere
of fear in which most Chinese women feel they have little
choice but to comply with the population planning policy.\23\
Officials charged with implementing these laws and
regulations have also violated Chinese law by punishing
citizens, such as legal advocate Chen Guangcheng, who have
publicized population planning abuses by local authorities.\24\
In early 2005, authorities in Linyi city, Shandong province,
directed a campaign against ``out-of-plan'' births in which
local officials reportedly committed physical abuses, including
forced abortions, forced sterilizations, and beatings. The
authorities profited from their abuses by charging illegal fees
to those detained.\25\ Although Article 41 of the Chinese
Constitution guarantees Chinese citizens ``the right to
criticize and make suggestions to any state organ or
functionary,'' Chen was beaten, placed under house arrest,
detained, arrested, tried, and sentenced to four years and
three months in prison for peacefully drawing attention to the
abuses in Linyi.\26\ A number of his relatives, supporters, and
attorneys were also harassed, beaten, or
detained [see Section V(b)--Rights of Criminal Suspects and
Defendants--Arbitrary Detention in the Formal Criminal
Process]. In September 2005, an official from the National
Population and Family Planning Commission (NPFPC) responded to
international news media attention by admitting that Linyi
officials had committed unspecified ``practices that violated
law'' and declaring that ``the
responsible persons have been removed from their posts.'' \27\
In October 2005, however, foreign journalists reported that
forced abortions continued in Linyi, and in February 2006,
foreign journalists were unable to confirm that any Linyi
officials had been punished for these acts.\28\
Victims and activists have accused officials of other
instances of corruption and abuse of power in implementing the
population planning program. Article 4 of the Population and
Family Planning Law requires officials to perform their
administrative duties strictly in accordance with the law, and
Article 39 provides that population planning officials may be
subject to criminal punishment for ``abusing [their] power . .
. demanding or accepting bribes. . . .'' \29\ In Hunan
province, approximately 60 villagers claimed that population
planning officials took 11 adopted and ``out-of-plan'' children
away from their homes and demanded money for their return.\30\
Xinhua reported that government authorities punished 13
officials in Shaanxi province after investigators found that a
population planning official and a village head took bribes
from a woman and her husband, supplied them with fraudulent
documents, and forged the woman's contraception records.\31\
Some wealthy Chinese choose to pay the fines for ``out-of-
plan'' children to have a large family.\32\ The head of the
NPFPC said in an interview that a minority of wealthy and
famous people, as well as leading cadres, violate the birth
restrictions and, although they ``should be legally punished .
. . our supervision has not yet reached the desired level.''
\33\
Social Crises Resulting From the Population Planning Policy
Chinese population planning policies, combined with a
cultural preference for sons, produce sex ratio imbalances and,
in some cases, lead families to abort female infants. The
current male-female birth ratio for first births is 121:100 and
152:100 for second births. Some foreign experts believe that
the actual ratios are even more imbalanced,\34\ and some
reports claim that the imbalance is worsening.\35\ Demographers
and population experts consider a normal male-female birth
ratio to be between 103 to 107:100.
In June 2006, the National People's Congress (NPC) withdrew
a proposed law that would have criminalized sex-selective
abortion. Article 35 of the 2002 Population and Family Planning
Law prohibits, but does not penalize, sex-selective abortion.
The prohibition has been widely ignored by medical personnel
and parents.\36\ In December 2005, the National Population and
Family Planning Commission (NPFPC) reported that the government
had submitted a draft Criminal Law amendment to the NPC under
which parents or medical personnel involved in sex-selective
abortions would face fines and up to three years in prison.\37\
In an April 2006 interview, Zhang Weiqing, Director of the
NPFPC, emphasized the long-term nature of the sex-ratio
imbalance and the need to support the draft amendment.\38\
Xinhua later reported that the proposed amendment had resulted
in a ``controversial debate'' that left the NPC Standing
Committee ``sharply divided.'' \39\ In June, the NPC decided to
withdraw the proposed law.\40\ Some officials opposed the law
on the grounds that a woman has the right to know the sex of
her child, that harsh penalties would create a black market in
fetal sex determination, and that prosecution of offenders
under the proposed amendment would prove difficult.\41\ Yu
Xuejun, Director of the NPFPC's Department of Policies and
Regulations, told a foreign newspaper that he regretted that
the amendment had been withdrawn and that he would continue
lobbying for it.\42\ Subsequent
reports in the state-run press have not disclosed whether the
government plans to submit a similar amendment to the NPC in
the future, but stated that curbing the sex ratio imbalance
remained a ``top priority'' and that the imbalance could become
a major obstacle to economic development. Other reports have
also discussed the means by which the sex-ratio imbalance might
be addressed. These included closing more clinics involved in
sex-selective abortions; strengthening and geographically
expanding implementation of the Care for Girls Program; raising
the criteria for licensing medical institutes and
practitioners; implementing preferential policies for girls and
women in health care, education, and employment; and
dispatching 60 teams to evaluate sex ratios, trends, and the
efficiency of government policies.\43\ The government has also
said that it plans to create a system to punish local officials
who fail to control sex ratio imbalances.\44\
The population planning policy has contributed to an
increasing number of elderly Chinese citizens without children
to support them financially. Director Zhang of the NPFPC has
noted that ``[t]here is a definite relationship between the
acceleration of the aging of the population and the strict
birth control policy.'' \45\ During the past year, the
government established a national program that grants a small
sum of money to rural couples who have one child or two
daughters.\46\ Some Chinese demographers predict that the aging
of the Chinese population and the sex-ratio imbalance will
create additional economic and social problems in the future,
and therefore advocate moving toward a ``two-child policy.''
\47\ One Chinese demographer at a December 2005 forum contended
that the Chinese population is aging faster than expected,
while others predicted that the population will begin to
decrease earlier and more sharply than expected.\48\ Others
predict worsening labor shortages and insufficient numbers of
working-age people to cover social insurance and pensions, and
foresee economic stagnation or recession in the next 20
years.\49\ Although many provinces have adopted policies that
expand the number of people permitted to have two children, not
all Chinese demographers agree with these forecasts or advocate
a ``two-child policy.'' \50\ NPFPC officials maintain that the
population planning policy will not change in the near future
and that preventing overpopulation will remain the government's
top priority for the foreseeable future.\51\ Director Zhang of
the NPFPC said in April that the policy was open to change, but
not in the short term. He claimed that China faces an impending
``baby boom.'' \52\
V(i) Freedom of Residence and Travel
findings
Since its implementation in the 1950s, the
Chinese hukou (household registration) system has
limited the rights of ordinary Chinese citizens to
choose their permanent place of residence, receive
equal access to social services, and enjoy equal
protection of the law. Economic changes and relaxation
of some hukou controls have eroded previously strict
limits on citizens' freedom of movement, but these
changes have also exported a discriminatory urban-rural
social division to China's cities. Migrants who lack a
local hukou for their new city of residence face legal
discrimination in employment, education, and social
services.
Chinese leaders called for reforms to the
hukou system during the past year. Central government
interest in reform stems not only from concern over
migrant rights and economic inequality, but also from
concern over growing social instability and a desire
for stronger government control over China's internal
migrant population. New national goals for hukou
reform, like similar proposals implemented periodically
since the late 1990s, call for streamlined hukou
categories, elimination of discriminatory regulations
on employment, and improved migrant access to social
services.
Local governments and urban residents have
resisted reforms to the hukou system because of the
potential budgetary impact, fears of increasing
population pressure in cities, and discriminatory
attitudes toward migrants. Local opposition has limited
the ability of central government authorities to
achieve national reform goals.
The Hukou System
Since its implementation in the 1950s, the Chinese hukou
(household registration) system has limited the rights of
ordinary Chinese citizens to choose their permanent place of
residence, receive equal access to social services, and enjoy
protection of the law. Urban residents received preferential
employment opportunities, favorable educational quotas, and
old-age pensions. Rural residents did not. Hukou status, and
the accompanying right to receive these benefits, is inherited
at birth. Only limited methods exist for citizens to change
their hukou status.\1\ During the late 1970s, the system became
so rigid that rural residents risked arrest for entering urban
areas. These limits effectively blocked upward mobility for
most rural citizens.\2\
Economic changes and relaxation of some hukou controls have
eroded previously strict limits on citizens' freedom of
movement,\3\ but these changes have also exported a
discriminatory urban-rural social division to China's cities.
Official statistics suggest 120 million rural migrants worked
in Chinese cities in 2005, about a quarter of China's total
urban population.\4\ Official reforms undertaken since the late
1990s have allowed migrants to obtain hukou in urban areas
where they have a ``stable source of income'' and a ``stable
place of residence.'' \5\ Local officials, however, often
interpret these terms to exclude low-income rural migrants.\6\
As a result, poor rural migrants may live in Chinese cities for
long periods, even from birth, but retain hukou registration
inherited from their parents because they are unable to obtain
a local hukou in their new city of residence.
Migrants who lack a local hukou for their new city of
residence face legal discrimination. They cannot receive social
services such as healthcare or schooling for their children on
the same basis as other residents.\7\ Local authorities also
condition government employment, old-age benefits, and low-
interest housing loans on having a local hukou in the city of
residence.\8\ The Supreme People's Court issued a judicial
interpretation in 2003 regarding compensation for deaths in
personal injury cases that mandates a lower rate of
compensation for deceased rural hukou holders, even if they
have been resident in urban areas for many years.\9\
Representation in local legislative bodies favors urban hukou
holders; an individual rural local people's congress deputy
represents four times as many citizens as his or her urban
counterpart.\10\
Chinese laws and regulations that condition citizen legal
rights and social services on hereditary hukou status conflict
with international human rights standards on non-discrimination
and have generated criticism in China. Article 26 of the
International Covenant on Civil and Political Rights guarantees
equal protection of the law and non-discrimination based on
``national or social origin . . . birth or other status.''
Article 2(2) of the International Covenant on Economic, Social,
and Cultural Rights also prohibits discrimination on the same
grounds in fields such as employment, education, health, and
social security benefits. In early 2006, Chinese news media
carried a series of critical reports on cases of long-term
migrants in urban areas who held non-local rural hukou and who
were killed in traffic accidents. Families of the deceased
received substantially less in compensation than families of
residents who held local urban hukou and who were killed in the
same or similar accidents.\11\ The father of one deceased
migrant student said, ``My daughter had lived in the city for
10 years. She didn't pay less for her school fees because she
had [a] rural hukou. Why was her life worth less than half of
that of her classmates? '' \12\
Reform Efforts in 2005 and 2006
Chinese leaders called for reforms to the hukou system
during the past year. Communist Party scholars and government
officials publicly raised the subject of hukou reform in
October 2005, after the conclusion of the Party plenum.\13\ The
joint opinion issued by the Party Central Committee and the
State Council in December 2005 made hukou reform part of the
Party's ``new socialist countryside'' campaign on rural reform,
and a policy goal for 2006.\14\
Central government interest in reform stems not only from
concern over migrant rights and economic inequality, but also
from concern over growing social instability and a desire for
stronger government control over China's internal migrant
population. The December joint opinion emphasized the need to
protect the ``legitimate rights and interests of farmers who
seek work.'' \15\ Accompanying press statements noted a large
and increasing gap
between urban and rural incomes, with the former totaling 3.22
times the latter in 2005.\16\ An earlier October 2005 joint
Party and State Council opinion on public security and social
stability also highlighted the need to better protect migrant
rights, but also called for ``new techniques to manage China's
migrant population.'' \17\ In December 2004, Chen Jiping,
Director of the General Office of the Party's Committee for
Comprehensive Management of Public Security, the office that
drafted the October joint opinion, called for improving systems
used to keep track of temporary residents, including better
monitoring of migrant housing rentals.\18\
New national goals for hukou reform, like similar proposals
implemented periodically since the late 1990s, call for
streamlined hukou categories, elimination of discriminatory
regulations on employment, and improved migrant access to
social services.\19\ Public Security Vice Minister Liu Jinguo
said in October 2005 that the government was considering
elimination of the distinction between ``agricultural'' and
``non-agricultural'' hukous nationwide, a reform already
adopted in 11 provinces.\20\ Chinese academics noted that this
reform ``has not involved substantive content,'' since it does
not affect the requirement that migrants must obtain a hukou in
a particular city in order to receive equal access to social
services.\21\ Liu also said that Chinese authorities will
continue to require a ``stable place of residence'' to
determine which migrants may obtain hukou in larger cities.\22\
Both Liu's speech and the December joint opinion also
called for elimination of discriminatory regulations that limit
the ability of rural migrants to work in urban areas.\23\ The
State Council issued a similar directive in December 2004.\24\
Some ministries and local authorities have taken steps to
implement these directives. In late 2005, the Ministry of Labor
and Social Services (MOLSS) issued a migrant rights handbook
that says that MOLSS officials will not require migrants to
obtain a work registration card from their place of origin
before they seek jobs in urban areas.\25\ In early 2005,
Beijing municipal authorities abolished regulations that
prohibited renting apartments to migrants and that allowed
labor officials to exclude migrants from certain
occupations.\26\
Finally, central government authorities have called for
improving migrant access to urban social services as a national
reform goal. Public Security Vice Minister Liu said that local
governments should make serious efforts to address migrant
housing, education, and healthcare needs.\27\ The December
joint opinion calls for ``gradually constructing a social
security network for migrants,'' ``exploring the provision of
medical insurance for serious illnesses to migrants,'' and
``solving the problem of educating migrant children'' \28\ [see
Section IV--Introduction]. Draft amendments to the Law on
Compulsory Education would charge local governments with
providing equal educational opportunities to the children of
migrants.\29\ The Ministry of Health has announced projects to
educate migrant workers about HIV/AIDS, provide occupational
healthcare, and vaccinate migrant children against infectious
diseases.\30\
Local governments and urban residents have resisted reforms
to the hukou system because of the potential budgetary impact,
fears of increasing population pressure in cities, and
discriminatory attitudes toward migrants. Ministry of Public
Security (MPS) officials said in November 2005 that national
hukou reform efforts had encountered resistance from local
authorities who would bear responsibility for funding the
additional services to migrants.\31\ In the fall of 2005,
Shenzhen authorities announced tighter rules for migrants in an
effort to control the growth rate of the temporary resident
population. The new Shenzhen measures temporarily suspend
processing of local hukou applications for the dependent
children of current Shenzhen migrant residents, limit the
growth of private schools for migrant children, and require
migrant parents to pay additional fees to enroll their children
in public schools.\32\ Some urban residents oppose improved
treatment for migrants, expressing concern about urban
population growth and the influx of poor, less educated
migrants. Citizens invited to comment on Beijing's municipal
development plans in August 2005 demanded tighter restrictions
on rural migrants, including strict hukou policies and strict
controls on providing housing and employment to migrants.\33\
Local opposition has limited the ability of central
government authorities to achieve national reform goals. Lu
Hongyan, Deputy Director of the MPS General Office, said that
hukou reform ``is not entirely within the power or
responsibility of the MPS,'' but that the MPS would attempt to
coordinate with local governments and other ministries to
present a hukou reform program by late December 2005 or early
2006.\34\ Neither official sources nor the state-controlled
news media have reported the completion of work on such a
program. Chen Xiwen, Deputy Director of the General Office of
the Central Leading Group for Finance and Economics, remarked
at a press conference accompanying the issuance of the December
2005 joint opinion that the ``attached benefits'' linked to
hukou identification, such as education or healthcare, hinder
reform efforts. Chen said that the central government will not
press for a single plan for hukou reform, but will instead
allow localities to adopt their own reforms.\35\
Some provincial governments have made efforts to address
discrimination against migrants. For example, Henan provincial
authorities announced that starting in October 2005 they would
include several urban medical facilities in the local rural
health cooperative system. The plan allows migrants and rural
residents to receive health services at the designated
facilities, and forbids health providers from discriminating
between urban and non-urban residents in assessing fees.\36\ In
June 2006, the Henan High People's Court (HPC) issued an
opinion setting death or injury compensation awards for some
rural migrants at the same level as long-term urban residents.
The opinion requires that rural migrants have a ``regular place
of residence in the city'' and that their ``main source of
income be earned in the city.'' \37\ The Anhui HPC has issued
rules stipulating that injury or death compensation for minors
who hold a rural hukou but attend school and live in urban
areas shall be computed using the urban standard.\38\ Other
courts and legislative bodies are considering issuing similar
directives.\39\
Other local reforms have been limited, or have reversed
previous efforts to relax hukou controls. In January 2006, the
Shanghai local people's congress (LPC) for the first time
allowed two migrant workers from Jiangsu province to attend a
session of the Shanghai LPC as observers. The China Economic
Times, a State Council-sponsored publication, criticized the
Shanghai LPC, however, for not allowing the two migrants to
serve as full representatives. It noted that hukou restrictions
bar migrants from standing for election, and that none of the
1,000 LPC delegates attending the session represented
Shanghai's 4 million migrant workers.\40\ Shenyang municipal
authorities announced in December 2005 that they would resume
requiring temporary residence permits for migrants. Authorities
had abolished these permits in July 2003,
requiring only that migrants sign in with local public security
officials upon arrival in the city. Shenyang authorities noted
that they reinstated the temporary residence permits to comply
with provincial and national guidelines on hukou reform.\41\
International Travel
The National People's Congress Standing Committee passed a
new Law on Passports in April 2006 that will take effect in
January 2007. The law narrows the legal authority of Chinese
officials to deny passports to Chinese citizens.\42\ Article 13
of the new law specifies the conditions under which Chinese
authorities may deny a citizen's passport application,
including document falsification, failure to prove citizenship,
pending fulfillment of a criminal sentence or other criminal
punishment, or a court order not to leave the country as a
result of an ongoing civil case.\43\ Authorities may also deny
a passport application if they determine that the applicant's
activities abroad would harm national security or state
interests.\44\ This language is narrower than that of the
previous 1980 Regulations on Passports and Visas, which set no
limits on the government's authority to deny passport
applications.\45\ Article 12 of the International Covenant on
Civil and Political Rights provides both that ``[e]veryone
shall be free to leave any country, including his own,'' and
that ``[n]o one shall be arbitrarily deprived of the right to
enter his own country.'' Chinese authorities have denied
passports to Chinese citizens who express views they find
objectionable. In May 2006, Chinese authorities refused to
issue passports to two Chinese lawyers who applied for
permission to travel to the United States to assist a Falun
Gong practitioner who faced criminal charges.\46\ Chinese
authorities have also prevented Protestant house church leaders
from traveling abroad [see Section V(d)--Freedom of Religion--
Religious Freedom for China's Protestants]. Yang Jianli, a
Chinese citizen and democracy activist, is currently serving a
five-year prison sentence in China on charges of illegal entry
and espionage after entering the country on another person's
passport. Throughout the 1990s, Yang was unable to secure a
passport from Chinese consular officials in the United
States.\47\ The UN Working Group on Arbitrary Detention has
found his detention to be arbitrary.\48\
VI. Political Prisoner Database
The Commission made the CECC Political Prisoner Database
(PPD) globally accessible via the Internet in November 2004.
The PPD serves as a unique and powerful resource for
individuals, educational institutions, NGOs, and governments
that wish to research political and religious imprisonment in
China or advocate on behalf of prisoners. The Commission
routinely uses the database for its own advocacy work, and to
prepare summaries of information about political and religious
prisoners for Members of Congress and senior Administration
officials. The Commission uses the database to alert the public
about upcoming dates of parole eligibility, and about dates
when sentences expire and prisoners are due for release. The
PPD received approximately 150,000 online requests for prisoner
information since last October.
The PPD is designed to allow anyone with Internet access to
query the database and download prisoner data without providing
personal information. Users also have the option to create a
user account, which allows them to save, edit, or reuse
queries. A user-specified ID and password is the only
information required to set up a user account. The PPD does not
download or install any software or Web cookies to a user's
computer.
The PPD currently allows users to conduct queries on 19
categories of prisoner information.\1\ The Commission intends
to upgrade the PPD software and interface to make it possible
to search and retrieve more categories of prisoner information,
such as the names and locations of the courts that convicted
political and religious prisoners, and the dates of key events
in the legal process such as sentencing and decision upon
appeal. The Commission also plans future upgrades that will
make it possible for users to navigate between reports on
political imprisonment in the CECC Virtual Academy and records
of political and religious prisoners in the PPD. The Virtual
Academy is accessible on the Commission's Web site.
Each prisoner's record describes the type of human rights
violation by Chinese authorities that led to his or her
detention. These include violations of the right to peaceful
assembly, freedom of religion, freedom of association, freedom
of expression, including the freedom to advocate peaceful
social or political change, and to criticize government policy
or government officials. Many records feature a short summary
of the case that includes basic details about the political or
religious imprisonment and the legal process leading to
imprisonment. Users may download information about prisoners
from the PPD as Adobe Acrobat files or Microsoft Excel
spreadsheets.
As of September 2006, the PPD contained more than 3,900
individual case records of political and religious imprisonment
in China. The Dui Hua Foundation, based in San Francisco, and
the Tibet Information Network, based in London, shared their
extensive experience and data on political and religious
prisoners in China with the Commission to help establish the
database.\2\ The Dui Hua Foundation continues to do so. The
Commission also relies on its own staff research for prisoner
information, as well as on information provided by NGOs and
other groups that specialize in promoting human rights and
opposing political and religious imprisonment.
The PPD is accessible on the Internet at http://
ppd.cecc.gov. The Commission Web site contains instructions on
how to use the PPD.
VII. Development of the Rule of Law and Institutions of Democratic
Governance
VII(a) Development of Civil Society
findings
The number of civil society organizations in
China is growing, with many organizations undertaking
projects such as poverty alleviation, faith-based
social work, and legal efforts to protect citizen
rights. These organizations include national mass
organizations that the Communist Party created and
funds, smaller citizen associations registered under
national regulations, and loose networks of
unregistered grassroots
organizations. In February 2006, the China Foundation
for Poverty Alleviation selected six groups as the
first civil society organizations to receive Chinese
government funding to run experimental anti-poverty
programs, including the China office of a U.S.-based
rural development organization.
Central authorities seek to maintain control
over civil society groups, halt the emergence of
independent organizations, and prevent what they have
called the ``Westernization'' of China. While
recognizing the utility of civil society organizations
to address social problems, Chinese authorities use
strict regulations to limit the growth of an
independent civil society. Some Chinese citizens who
attempt to organize groups outside of state control
have been imprisoned. These include individuals who
have attempted to establish independent labor unions
and political associations, such as China Free Trade
Union Preparatory Committee member Hu Shigen and China
Democracy Party member Qin Yongmin; or young
intellectuals who organize informal discussion groups,
such as New Youth Study Group members Jin Haike, Xu
Wei, Yang Zili, and Zhang Honghai.
Chinese officials have taken additional steps
to curtail civil society organizations in the past
year, but authorities are undecided on how to proceed.
Since early 2005, Ministry of Civil Affairs (MOCA)
officials have been researching a new administrative
system to monitor and control civil society
organizations. Many details of the new system are
undetermined, such as who will conduct the required
evaluations of civil society groups, how the evaluation
results will be used, and who will fund the
evaluations. At the same time, Chinese authorities have
supported limited reforms to the status of civil
society organizations. MOCA officials are advocating
changes to the tax code to encourage private donations
to civil society organizations. Central Party officials
have expressed support for the creation of rural farmer
cooperatives in annual policy guidelines issued each
year since 2004.
Civil Society and Government Controls
The number of civil society organizations in China is
growing, with many organizations undertaking projects such as
poverty alleviation, faith-based social work, and legal efforts
to protect citizen rights.\1\ These organizations include
national mass organizations that the Communist Party created
and funds, smaller citizen associations registered under
national regulations, and loose networks of unregistered
grassroots organizations.\2\ According to official Chinese
statistics, the number of registered civil society
organizations increased from 288,936 in 2004 to 317,000 in
2006, but one Chinese source estimates the number of
unregistered organizations to be as high as 3 million.\3\
Chinese authorities support the growth of civil society
organizations to help address social problems such as poverty
and AIDS.\4\ Ministry of Civil Affairs (MOCA) officials
acknowledge that these organizations have ``exerted [a]
positive influence in boosting China's economic growth and
helping maintain social stability.'' \5\ In February 2006, the
China Foundation for Poverty Alleviation selected six groups to
be the first civil society organizations to receive Chinese
government funding to run experimental anti-poverty programs,
including the China office of a U.S.-based rural development
organization.\6\
While recognizing the utility of civil society
organizations to address social problems, Chinese authorities
use strict regulations to limit the growth of an independent
civil society. National regulations issued in 1998 require that
civil society organizations have a government-approved sponsor
organization to register and obtain legal status.\7\ The
government limits sponsor organizations to designated
government and Party bureaus.\8\ This requirement contravenes
Article 22 of the International Covenant on Civil and Political
Rights, which provides that:
[N]o restrictions shall be placed on the exercise of
[the freedom of association] other than those which are
prescribed by law and which are necessary in a
democratic society in the interests of national
security or public safety. . . .\9\
Chinese regulations that require a government sponsor
organization for registration, and that consider all groups
that do not register to be illegal, differ from legal standards
in many countries and regions, including India, South Korea,
the European Union, and the United States.\10\ Other countries,
such as Moldova, Singapore, Tajikistan, and Uzbekistan, have
legal requirements similar to those in China.\11\
Chinese civil society organizations also have difficulty
raising funds, which limits their ability to act independently.
The majority of funds raised by environmental civil society
organizations is monopolized by a small group of organizations
with close official ties, according to a 2005 survey by the
All-China Environment Federation (ACEF).\12\ As a result, these
groups avoid direct confrontation with the government. Almost
65 percent of environmental organizations say that they would
prefer to cooperate with authorities, while 32.1 percent said
they would neither cooperate with nor oppose the
government.\13\ As one officer of a Chinese civil society
organization noted, ``[we] all recognize that keeping in line
with government policies and receiving government approval are
indispensable prerequisites for successful action.'' \14\ These
pressures are heightened by legal rules that hamper the ability
of civil society organizations to raise funds from private
domestic donors.\15\ Current law provides that Chinese
corporations may only deduct charitable donations for tax
purposes that are made to a few specified groups, and limits
tax exemptions to 3 percent of income.\16\
Central authorities seek to maintain control over civil
society groups, halt the emergence of truly independent
organizations, and prevent what they have called the
``Westernization'' of China. Top government and Party officials
have stopped citizen efforts to
register groups that they perceive as a threat, such as qigong
associations and organizations of veterans, laborers, and the
unemployed.\17\ Party officials have ordered the establishment
of Party cells within civil society organizations.\18\ Chinese
authorities periodically issue warnings against the use of
civil society organizations by ``hostile Western forces'' to
``combat'' or ``infiltrate'' China\19\ [see Section V(a)--
Special Focus for 2006: Freedom of Expression and Section
V(d)--Freedom of Religion]. Some Chinese citizens who attempt
to organize groups outside of state control have been
imprisoned. These individuals include those who have attempted
to establish independent labor unions and political
associations, such as China Free Trade Union Preparatory
Committee member Hu Shigen and China Democracy Party member Qin
Yongmin, and young intellectuals who organize informal
discussion groups, such as New Youth Study Group members Jin
Haike, Yang Zili, Xu Wei, and Zhang Honghai.\20\
Official reluctance to permit independent citizen
associations limits the options of Chinese citizens seeking to
protect their interests. According to the 2005 ACEF survey,
only 23.3 percent of Chinese environmental civil society groups
are registered.\21\ The absence of applicable national legal
standards hampers the development of the approximately 140,000
rural farmer cooperatives established as of 2003. Farmers use
these cooperatives to pool resources, increase their
competitiveness, and undertake limited collective action
against government authorities. National law does not provide
clear legal standards for the registration of these
organizations. Without legal status, they cannot borrow money
from institutional lenders or sign legally binding contracts.
Their tax obligations are also unclear. Some have registered
with MOCA, others with the Ministry of Industry and Commerce,
and others choose not to
register.\22\
Developments During 2005 and 2006
Chinese officials have taken additional steps to curtail
civil society organizations in the past year, but recent
developments indicate that authorities are undecided on how to
proceed with additional controls. In early 2005, an article in
an academic journal sponsored by the State Council pressed
officials to prevent Western ``infiltration and sabotage of
China through political NGOs.'' \23\ International NGOs with
U.S. ties operating in China subsequently have reported Chinese
partners cancelling or withdrawing from projects under
government pressure.\24\ Since 2005, Chinese public security
officials have investigated the operations of domestic and
international civil society organizations and questioned their
staff.\25\ In February 2006, prominent Chinese AIDS activist Hu
Jia resigned from Loving Source, an organization that he helped
establish to assist the orphans of AIDS victims, citing
pressure on the organization's international donors. Hu said
that the Chinese government ``is using soft methods to narrow
the space NGOs can exist in. The authorities are worried a
civil society would bring about a strong force that challenges
its rule.'' \26\ In August 2006, one Western expert on Chinese
civil society said that there has been a ``virtual paralysis''
of official registration by civil society organizations in
China, contrasted this with a more permissive climate two years
ago, and also noted an increase in self-censorship on the part
of civil society organizations that seek to avoid antagonizing
the government.\27\
Since early 2005, Ministry of Civil Affairs (MOCA)
officials have been researching a new administrative system to
supervise and control civil society organizations. In March
2005, MOCA established a leading group to develop this system.
During the summer of 2005, MOCA sponsored research on the new
system in Jinan and Qingdao municipalities in Shandong
province, and participated in international conferences
regarding new management techniques for civil society
organizations in the fall of 2005.\28\ News media reports and
official statements say that the system will be designed to
``evaluate'' and ``rate'' civil society organizations.\29\ Many
details of the new system have not been determined, such as who
will conduct the evaluations, how the evaluation results will
be used, and who will fund the evaluations.\30\ Provincial
efforts to implement the new system suggest that it will
augment rather than replace existing controls. For example,
Jiangxi provincial officials called for the implementation of
the new administrative system in March 2006, and said that it
should operate in addition to existing registration authorities
and official sponsor organizations.\31\ A MOCA official said
these efforts seek to improve the ``quality'' of civil society
organizations,\32\ while MOCA-sponsored conferences have linked
these efforts to the elimination of ``illegal organizations.''
\33\
Central government officials continue to consider draft
revisions to the 1998 regulations that govern civil society
organizations. Although MOCA officials have suggested that the
sponsor organization requirement be abolished,\34\ other
central government officials have rejected this option. State
publications note that ``there are no fundamental changes in
the draft revision[s]'' and that the sponsor organization
requirement will remain unchanged.\35\ News reports suggest
that the planned revisions contain a degree of liberalization,
allowing authorities discretion to register multiple civil
organizations of the same type in the same administrative area,
and
removing high capital requirements for registration.\36\
Reports also indicate that the revisions will allow
international organizations that operate in China to register,
but will also require them to have approved sponsor
organizations.\37\ Existing regulations do not specify a
procedure for most foreign NGOs to register, and therefore
their status is unclear.\38\ The reported content of the
revisions corresponds to the approach taken in 2004 national
regulations on foundations, which replaced a prior set of rules
on the same
subject.\39\
Chinese authorities have supported limited reforms to the
status of civil society organizations. MOCA officials are
advocating changes to the tax code to encourage private
donations to civil society organizations.\40\ Central Communist
Party officials have expressed support for the creation of
rural farmer cooperatives in annual policy guidelines issued
each year since 2004.\41\ Zhejiang provincial officials have
experimented with granting legal status to these cooperatives,
passing the first set of provincial regulations in 2004, and
registering the first group of associations under these rules
in 2005.\42\ In 2006, Chinese leaders voiced support for
national legislation to reform lending, tax, and registration
treatment of rural farmer cooperatives.\43\ The National
People's Congress (NPC) has placed relevant proposals on the
2006 legislative calendar. Nonetheless, NPC delegates say that
the central government's attitude toward these organizations
remains ``cautious'' and that central officials only support
these reforms because they have concluded that these
cooperatives are economic in nature, and will not become
involved in political issues.\44\
VII(b) Institutions of Democratic Governance and Legislative Reform
findings
China has an authoritarian political system
controlled by the Communist Party. Party committees
formulate all major state policies before the
government implements them. The Party dominates Chinese
legislative bodies such as the National People's
Congress (NPC), and fills all important government
positions in executive and judicial institutions
through an internal selection process. Party control
extends throughout institutions of local government.
In 2005, the central leadership called for
strengthened
controls over society to address mounting social unrest
and to suppress dissent. Chinese authorities have ruled
out building representative democratic institutions to
address citizen complaints about corruption and abuse
of power, and instead are recentralizing government
posts into the hands of individual Party secretaries.
The absence of popular and legal constraints
to check the behavior of Party officials has led to
widespread corruption and citizen anger. The Party has
strengthened the role of internal responsibility
systems to moderate official behavior, but these
systems have provided some local Party officials with
new incentives to conceal information and abuse their
power.
Since the 1980s, officials have introduced
limited reforms to allow citizens to vote in village
elections. While these reforms are a step forward in
permitting citizen participation at the local level,
the reforms are designed to strengthen Party governance
and do not represent Party acceptance of representative
government.
Since the late 1990s, the Party has
experimented with reforms that allow a limited degree
of citizen participation in the selection of local
Party cadres, but the Party retains tight control over
the candidate pool and the selection process. Since
2000, Chinese authorities have experimented with the
use of legislative hearings to solicit public views on
pending legislation, and the NPC held its first
controlled public hearing in September 2005.
Since 2000, the central government has
announced new transparency requirements for local
governments. In March 2005, central authorities
specifically required county and provincial governments
to increase transparency and popular participation in
government decisionmaking. Implementation of these
``open government'' requirements varies, but some local
governments have taken steps toward greater
transparency.
Introduction
China has an authoritarian political system controlled by
the Communist Party. Party committees formulate all major state
policies before the government implements them. The Party
dominates Chinese legislative bodies such as the National
People's Congress (NPC), and fills all important government
positions in executive and judicial institutions by an internal
selection process. The State Council's White Paper on
``Building Political Democracy in China,'' issued in October
2005, says that:
Party committees serve as the leadership core over
all [government and mass] organizations at the same
level . . . and through Party committees and cadres in
these organizations, ensure that the Party's policies
are carried out. . . . Through legal procedures and
democratic discussion, Party committees ensure that
Party proposals become the will of the state and that
candidates recommended by Party organizations become
leaders in the institutions of state power.\1\
Party control extends throughout institutions of local
government. Party institutions control the selection of judges,
and local Party committees influence which judges are posted to
their localities.\2\ Many local Party secretaries serve
concurrently as head of the local people's congress (LPC).\3\
County and township Party secretaries also control LPC and
village elections through the election leadership groups which
they often head.\4\ The Party constitution charges delegates to
Party congresses with selecting and controlling local Party
committees,\5\ but, as a U.S. expert noted at a Commission
roundtable, delegates ``are generally uninformed as to the
content of the Party congress or who they are to vote for until
just before the congress meets.'' \6\
China's authoritarian one-party system does not comply with
international human rights standards contained in the
International Covenant on Civil and Political Rights
(ICCPR).\7\ Article 25 of the ICCPR requires that citizens be
allowed to ``take part in the conduct of political affairs''
and ``to vote and to be elected at genuine periodic
elections.'' Under General Comment 25 to the ICCPR, this
language requires that:
The right of persons to stand for election
should not be limited unreasonably by requiring
candidates to be members of parties or of specific
parties;
Party membership should not be a condition of
eligibility to vote;
It is implicit in Article 25 that [elected]
representatives do in fact exercise governmental power
and that they are accountable through the electoral
process for their exercise of that power;
An independent electoral authority should be
established to supervise the electoral process and to
ensure that it is conducted fairly, impartially, and in
accordance with established laws which are compatible
with the ICCPR;
Freedom of expression, assembly, and
association are essential conditions for the effective
exercise of the right to vote and must be fully
protected.
The absence of popular and legal constraints to check the
behavior of Party officials has led to widespread corruption
and citizen anger. Although Party policy documents assert that
one-party control is necessary for social stability,\8\ senior
Chinese officials have acknowledged that the inability of local
Party cadres to respond to citizen grievances is contributing
to rising social unrest.\9\ As one U.S. expert noted, ``the
power concentrated in the hands of the Party secretary and
standing committee has led to corruption and other abuses of
power that have fed social protests and a general decline in
the legitimacy of the Party in recent years.'' \10\ For
example, thousands of local Chinese officials have used their
positions to acquire financial interests in local mines,
hampering efforts to improve their safety [see Section V(c)--
Protection of Internationally Recognized Labor Rights]. In some
localities, police collude with criminal forces\11\ [see
Section V(b)--Rights of Criminal Suspects and Defendants--
Public Security and Coercive Use of Police Power]. In June
2005, local officials hired armed thugs to break up a protest
by farmers in Shengyou village, Hebei province, killing six
villagers and wounding more than 100. Villagers had opposed
local government efforts to seize their land and claimed that
local officials had embezzled money that should have gone to
the villagers.\12\ Ministry of Public Security statistics show
that incidents of ``mass gatherings to disturb social order''
rose by 13 percent from 2004 to 2005.\13\ Weak protection of
labor rights and worker discontent over unpaid wages and
benefits resulted in an increase in mass labor disputes from
1,482 in 1994 to 11,000 in 2003.\14\ Both collective and
individual citizen petitions seeking official redress have
increased steadily from 1993 to 2004.\15\
Party secretaries can block access to local information
sources that might challenge their control,\16\ which stifles
the role of the media as a check on the abuse of government
power. In November 2005, Jilin provincial officials prevented
the news media from reporting on an industrial accident and
massive benzene leak on the Songhua River for more than a week.
The delayed local government response impeded central
government efforts to manage the crisis, caused panic among the
citizens of Harbin city, and created a diplomatic incident with
Russia\17\ [see Section V(f)--The Environment]. In June 2005,
Hong Kong news media reported that Party propaganda officials
issued a directive limiting publication of critical
investigative reports by local news media through a requirement
that state-run news media first clear the articles with the
local Party committee.\18\ [See Section V(a)--Special Focus for
2006: Freedom of Expression.]
Chinese authorities have ruled out building representative
democratic institutions to address citizen complaints about
corruption and abuse of power,\19\ and are recentralizing
government posts into the hands of individual Party
secretaries. Officials are also relying on top-down personnel
controls to address local governance problems,\20\ but these
measures have increased incentives for some local Party
secretaries to conceal problems from their superiors, and thus
risk compounding the issue.\21\ One Commission roundtable
witness noted that ``rural governance can only be improved
within the current framework by strengthening the measures to
monitor government by the local congress[es] and farmers'
organizations,'' but that ``Chinese rural governments have no
impetus to initiate their own reform. . . .'' \22\
Stronger Party Controls
In 2005, Communist Party officials called for strengthened
controls over society to address mounting social problems and
suppress dissent. In October 2005, the Party Central Committee
and State Council issued an opinion calling for strengthened
controls over society, and the accompanying press statement set
a 2006 goal to reduce the number of ``mass incidents'' that
disturb public order, including strikes, marches,
demonstrations, and collective petitions to government
authorities.\23\ In January 2005, Party leaders launched an
``advanced education'' campaign to strengthen Party
organizations and to conduct political education for Party
cadres. Officials expanded the campaign to rural areas in
November 2005.\24\ Party officials assert that this propaganda
campaign will help reduce social unrest.\25\ A December 2005
Party and State Council joint opinion called for strengthening
village autonomous institutions (such as elected village
committees), but ``under village Party leadership.'' \26\
Government officials tightened controls over the press and
imposed new restrictions on the Internet [see Section V(a)--
Special Focus for 2006: Freedom of Expression]. Authorities
issued warnings about the activities of civil society
organizations, and are preparing new measures to monitor and
control them [see Section VII(a)--Development of Civil
Society].
Party officials say that the Chinese government ``will
absolutely not imitate Western political models,'' and they are
strengthening Communist consultative institutions instead of
creating representative political bodies.\27\ At the March 2005
meeting of the Chinese People's Political Consultative
Conference (CPPCC), Central Party School Vice President Li
Junru contrasted the Chinese system of ``elections plus
consultation'' with ``discredited'' Western liberal democratic
models.\28\ The CPPCC is a Party-led organization that includes
Party members, representatives of Party mass organizations, and
non-Party members that closely align themselves with Party
goals, including members of the eight minor ``democratic''
parties permitted under Chinese law.\29\ Li said, ``[i]n order
to
address foreign and domestic challenges regarding the issue of
democracy, particularly the challenge of the `color
revolutions,' the advantages of the CPPCC need to be brought
into play more effectively.'' \30\ In February 2006, Party
authorities issued an opinion on strengthening the CPPCC.\31\
It described ``Chinese socialist democracy'' as including not
only elections but also ``political consultation'' between
CPPCC and Party officials before important policy decisions are
made.\32\ It emphasized the role of the CPPCC in reflecting
popular opinion and providing government and Party leaders with
suggestions.\33\ It also called for stronger guarantees that
non-Party members may participate in consultations about
government policies.\34\ Foreign and Chinese news media have
noted that Chinese government and Party officials see the CPPCC
as a means to address mounting social unrest and popular
grievances.\35\
Party officials are recentralizing government posts into
the hands of Party secretaries, reversing reforms from the late
1980s in which Party leaders took some steps toward separating
government and Party roles.\36\ Chinese authorities now
encourage local Party secretaries to serve as the heads of
local people's congresses (LPCs), and also encourage the same
person to be village Party secretary and village committee
head.\37\ The Party's September 2004 ``Decision on
Strengthening the Party's Ruling Capacity'' instructed
officials to increase the number of dual Party-government
appointments.\38\ In 2005, Anhui provincial authorities
expanded to 17 counties an experimental program that implements
the 2004 Decision.\39\ The Anhui program promotes having
township Party secretaries serve concurrently as the head of
township governments.\40\ Reforms in individual townships
require other government positions to be held by lower-ranking
Party committee members.\41\ Local officials say that the
reforms seek to reduce overlapping responsibilities between
government and Party officials, thereby decreasing the size of
government and the local tax burden. Chinese domestic media has
raised concerns about the wisdom of concentrating power in the
hands of a single Party official.\42\
Chinese authorities increasingly use responsibility systems
that, in the absence of popular and legal constraints on their
power, provide incentives for local Party officials to conceal
information and engage in illegal behavior. Responsibility
systems link career rewards and sanctions to the success of
local officials in meeting government and policy goals for
social order, population planning, and other issues.\43\
Because no meaningful popular participation constrains the
behavior of local officials, responsibility systems create
incentives for abuse of authority, as officials try to fulfill
the goals set by their superiors. Such abuses include covering
up mining
accidents to meet safety goals [see Section V(c)--Protection of
Internationally Recognized Labor Rights], coercing women to
have abortions to meet population planning targets [see Section
V(h)--Population Planning], and illegally detaining petitioners
to meet social order objectives [see Section VII(c)--Access to
Justice]. In July 2005, the State Council issued an opinion
promoting the use of these top-down personnel systems.\44\
Since that time, authorities have ordered responsibility
systems to be implemented widely for officials in charge of
enforcing intellectual property rights,\45\ prohibiting illegal
mining,\46\ protecting the environment,\47\ and supervising the
judiciary [see Section VII(c)--Access to Justice]. In
December 2005, central Party officials said that government and
Party leaders at all levels should bear personal responsibility
for maintaining social order.\48\
Limited Public Participation Reforms
Since the 1980s, officials have introduced limited reforms
to allow citizens to vote in village elections. While these
reforms are a step forward in permitting citizen participation
at the local level, the reforms are designed to strengthen
Party governance and do not represent Party acceptance of
representative government.\49\ Since the 1990s, Chinese
authorities have pursued other reforms to increase citizen
political participation, including the use of public hearings,
greater government transparency requirements, and citizen
participation in Party elections.\50\ As one U.S. expert noted
at a Commission roundtable, Chinese leaders have introduced
these reforms to
allay local discontent, to respond to growing demands
for greater participation in politics, and to better
monitor local agents of the state. . . . [They intend
to] improve Party responsiveness both to reduce
societal discontent and to preserve the Party's ruling
position.\51\
These reforms attempt to ``gain the sort of input that
elections normally provide, but without introducing electoral
democracy.'' \52\ In an October 2005 joint opinion, Party and
State Council officials specified that they want to create a
system in which ``the Party leads, the government bears
responsibility, society assists, and the people participate.''
\53\
Since the late 1990s, the Party has experimented with
reforms that allow a limited degree of citizen participation in
the selection of local Party cadres, but the Party retains
tight control over the candidate pool and the selection
process. Party regulations adopted in 1995 and 2002 granted
officials the discretion to permit public participation in
nominations of government and Party leaders.\54\ But the
regulations warned that Party selection of nominees should not
depend solely on the total number of votes received in the
nomination process.\55\ ``Public nomination, direct election''
experiments are currently under way in 217 counties in 13
provinces.\56\ These experiments, however, grant citizens only
a small role in the nomination of potential candidates, while
allowing Party committees to strike names from the nominee
lists, and giving Party members the final authority to choose
officials.\57\ For example, in February 2006 elections for the
township Party committee in Longtoupu, Hunan province, Party
members and non-Party citizen delegates first selected
candidates from 16 nominees. The system weighted the selection
process in favor of Party members, however, by restricting the
proportion of citizen delegates to 30 percent (136) of the
number of Party members (433). Party members then participated
in a Party-only election to choose seven township committee
members from the nine remaining candidates.\58\
Since 2000, Chinese authorities have experimented with the
use of hearings to solicit public views on pending
legislation.\59\ The National People's Congress held its first
controlled public hearing in September 2005. It chose 20
people, including academics and migrant workers, from among
nearly 5,000 applicants to offer opinions on a proposal to
raise the minimum taxable income.\60\ The 2002 Environmental
Impact Assessment (EIA) Law generally requires authorities and
developers to hold public hearings or use other means to
solicit public and expert input when projects may have a
significant environmental impact.\61\ The 2003 Administrative
Licensing Law places similar requirements on government
efforts to create administrative licensing schemes.\62\
National authorities at the State Environmental Protection
Administration (SEPA) and local authorities in cities such as
Shenyang city in Liaoning province have adopted implementing
measures for holding hearings under these two laws.\63\
Environmental authorities and activists used public hearings in
2004 and 2005 to challenge some development projects.\64\
Citizen efforts to use hearings to advocate for change have
been hampered both by the opposition of some central government
officials and by rules that do not require hearings until late
in the
regulatory drafting process. SEPA sponsored two environmental
hearings in Beijing that received wide news media coverage and
allowed the public to air concerns about the projects, but the
hearings had limited impact on the projects. Some Western
experts have noted that the hearings occurred well after the
projects were under way.\65\ Government authorities responded
to public opposition to government plans to dam the Nujiang (Nu
River) by temporarily halting the project, conducting a closed
internal review, and banning further news media coverage of the
topic\66\ [see Section V(f)--The Environment--Public
Participation in Environmental Protection]. Chinese officials
have taken steps to curb SEPA's activism in the field of
environmental protection. Soon after SEPA ordered the closure
of 30 construction projects in early 2005 for failure to comply
with EIA procedures, other central government officials
overruled the decision.\67\
The central government has also announced transparency
requirements for local governments. In 2000, the Party and
State Council issued a joint opinion directing township
authorities to make information available to the public on
government administration and local finances. The joint opinion
also encouraged authorities at the county level and above to
experiment with such policies.\68\ A March 2005 opinion
expanded these requirements, announced the principle that
government information generally should be made public, placed
specific requirements on county and provincial governments, and
linked these steps to efforts to increase popular participation
in supervising government decisions.\69\ Neither opinion
requires officials to make Party information public.
Implementation of these ``open government'' requirements
varies, but some local governments, including the cities of
Shanghai and Guangzhou, have taken steps toward greater
openness.\70\
Local experiments with governance reform can result in
positive changes when they are linked to substantive and
independent citizen oversight. Officials in Wuyi county in
Zhejiang province have allowed the creation of ``village
affairs supervision committees'' with veto power over the
financial decisions of the local Party branch and the village
committee.\71\ Villagers select supervision committee members
through direct election, and the committee may not include
Party branch or village committee members. The reforms have
helped check official corruption and have provided limited
space for citizen political participation.\72\ Nonetheless,
supervision committees in Wuyi remain dependent on the support
of individual reform-minded Party cadres, and officials
threatened by these reforms have resisted such efforts.\73\
In December 2005, the government placed reform of laws
governing village and residents' committees (VCs, RCs) on the
national 2006 legislative plan.\74\ In October 2005, provincial
Ministry of Civil Affairs officials prepared draft proposals
for reform of the Organic Law on Village Committees. The
proposed changes would regularize and clarify campaign rules,
allow village representative assemblies to choose the village
election committee, and require townships to organize village
recall elections if a village assembly fails to handle a
recall.\75\ These changes do not address issues such as
township government and local Party control over VCs. Party
regulations and directives require local Party branches to
direct VC election work.\76\ One local Party organization
bureau official explained that this mandate requires the local
Party secretary to head the election committee that is charged
with supervising the elections; to organize Party members to
serve on the election committee; to encourage Party members to
run for the position of VC head; and to bar the registration of
candidates who belong to unregistered religious groups, oppose
population planning policies, or organize mass petitions.\77\
Local Party and township government control over local
elections undermines the protections granted to citizens by
national law. In July 2005, residents of Taishi village,
Guangdong province, launched a recall campaign pursuant to the
provisions of Article 16 of the Organic Law on Village
Committees that authorize such efforts.\78\ The recall sought
to remove the official serving as both local Party branch
secretary and village committee head, whom they accused of
misusing village revenue from land sales.\79\ In September
2005, township and village officials suppressed the recall
effort. They removed village financial documents from
government offices, forced popularly elected members of the
recall committee to resign, arrested and beat dozens of
residents and activists, and barred reporters from entering the
village.\80\ In March 2006, a leader of the Taishi recall
effort lost a township local people's congress election bid
against a rival candidate supported by local officials. The
defeated candidate and his supporters alleged that the rival
candidate bought votes and that the election committee and
local officials tampered with the ballots.\81\
VII(c) Access to Justice
findings
International human rights standards require
effective remedies for official violations of citizen
rights. Despite these guarantees, Chinese citizens face
formidable obstacles in seeking remedies to government
actions that violate their legal rights and
constitutionally protected freedoms. External
government and Communist Party controls continue to
limit the independence of the Chinese judiciary. Party
officials control the selection of top judicial
personnel in all courts, including the Supreme People's
Court, China's highest judicial authority. Since 2005,
the government has restricted the efforts of private
lawyers and human rights defenders who challenge
government abuses. The All China Lawyers Association
issued a guiding opinion that restricts the ability of
lawyers to handle cases involving large groups of
people. Local Chinese authorities have imposed
additional restrictions on lawyer advocacy efforts.
The constitutional and administrative
mechanisms in Chinese law that allow citizens to
challenge government actions do not provide effective
legal remedies, and Chinese citizens seldom use them.
Chinese citizens rarely submit proposals to the
National People's Congress for constitutional and legal
review because the review process lacks transparency
and citizens cannot compel review. Administrative court
challenges to government actions have not increased
since 1998. Provincial authorities report an overall
decline between 2003 and 2005 in applications for
administrative reconsideration, and the total numbers
of such applications in major Chinese municipalities is
a few hundred per year.
Chinese law also permits citizens to petition
government officials directly to redress their
grievances through the xinfang (``letters and visits'')
system. Official news media report that Chinese
citizens presented 12.7 million petitions to county-
level and higher xinfang bureaus during 2005, in
contrast to the 8 million total court cases handled by
the Chinese judiciary during the same period. Local
officials are disciplined more severely for high
incidences of petitioning. Absent alternative political
or legal channels to check the power of local officials
and obtain redress, this punishment structure provides
an incentive for Chinese citizens to take their
grievances to the streets in order to force local
officials to act. But this punishment structure also
gives local authorities an interest in suppressing mass
petitions and preventing petitioners from approaching
higher authorities. A December 2005 study of the
xinfang system by a U.S. NGO found that some local
authorities have
resorted to ``rampant violence and intimidation'' to
abduct or detain petitioners in Beijing and force them
to return home.
The Supreme People's Court 2004-2008 court
reform program imposes stronger external and internal
controls that may further weaken the independence of
courts and judges. The court reform program, however,
also sets some positive long-term goals for judicial
reform in the areas of court financing, adjudication,
retrial procedures, and juvenile justice. Party efforts
to address growing social unrest have resulted in new
government programs to strengthen institutions that
assist citizens with legal claims and disputes.
Official Chinese statistics show that the number of
government legal aid centers rose from 2,774 in 2003 to
3,081 in 2005. The total number of cases handled by
these centers rose from about 166,000 in 2003 to an
estimated 250,000 in 2005, or roughly 3 percent of all
cases handled by the Chinese courts in 2005.
Access to Justice and International Human Rights Standards
Chinese citizens face formidable obstacles in seeking
remedies to government actions that violate their legal rights
and constitutionally protected freedoms. Party and government
controls limit the independence of Chinese courts and weaken
the ability of individual judges to decide cases fairly. The
government restricts lawyer advocacy efforts, particularly in
politically sensitive cases.
Although Chinese law provides citizens with Constitutional,
judicial, and administrative mechanisms to challenge official
violations of their rights, these mechanisms do not provide
effective legal remedies.
International human rights standards require effective
remedies for official violations of citizen rights. Article 8
of the Universal Declaration of Human Rights states that
``Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law.'' Article 2
of the International Covenant on Civil and Political Rights
(ICCPR) requires that all parties to the ICCPR ensure that
persons whose rights or freedoms are violated ``have an
effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity.'' \1\
The Chinese Judicial System
External government and Communist Party controls continue
to limit the independence of the Chinese judiciary. Party
officials control the selection of top judicial personnel in
all courts, including the Supreme People's Court (SPC), China's
highest judicial authority. Party interests guide judicial
reform efforts. SPC President Xiao Yang has linked official
efforts to improve the funding and professionalization of rural
Chinese courts to the core Party goals of establishing a
``harmonious society'' and ``increasing the Party's governance
capacity.'' \2\ In January 2006, the Party's Political and
Legislative Affairs Committee issued a circular directing
courts to improve enforcement efforts ``under the leadership of
local Party committees,'' apparently in response to the Party's
broader effort to address mounting social unrest.\3\
The SPC's 2004-2008 reform program imposes stronger
external controls on courts.\4\ The program directs courts to
permit officials from local procuratorates to participate in
adjudication committees, the highest authorities within Chinese
courts. Since the procuratorate represents the government in
cases pending before the courts, this directive raises issues
of judicial independence and conflict of interest.\5\ The
program also directs local officials to strengthen court
mechanisms for receiving criticism and recommendations from
local people's congresses (LPCs). The Chinese Constitution
grants the standing committees of LPCs the authority to
supervise local courts,\6\ and court procedures facilitate the
intervention of LPC delegates in individual cases.\7\
The SPC also announced stronger internal controls over
Chinese courts that may weaken the independence of individual
judges to decide cases fairly. The SPC's 2004-2008 program
requires that Chinese courts implement responsibility systems
for individual judges and judicial panels.\8\ These systems
discipline judges for a range of errors, including reversals by
a higher court for legal errors.\9\ Chen Youxi, Vice President
of the Constitutional and Human Rights Committee of the All
China Lawyers Association, noted that because such systems
``have a direct impact on personal interests such as bonuses
and benefits of those trial judges with high rates of
overturned cases,'' trial judges ``commonly resort to seeking
advance guidance from higher courts before making a decision,
and run to appeals courts to convince them not to overturn
their verdicts.'' \10\ Such systems encourage judges to violate
the principles of openness and transparency in judicial
decisionmaking.\11\ In November 2005, Chi Qiang, the president
of the Beijing No. 1 Intermediate People's Court, announced the
abolition of his court's
responsibility system, and said that his court will attempt to
move toward a disciplinary system that sanctions judges for
illegal behavior rather than ``incorrect'' outcomes.\12\ The
wider adoption of such innovative local reforms remains in
doubt, however, given the SPC's requirement that courts
implement responsibility systems.
Some local Party officials have called for a degree of
judicial independence, even as they press for strengthened
controls over courts.\13\ State-controlled news media announced
in January that Jiangxi provincial Party officials had issued a
decision pressing local Party committees to strengthen their
controls over the selection of court personnel. The decision,
however, also called on local Party officials to support
judicial independence and guard against local protectionism.
The decision warned local Party committees against organizing
court personnel to participate in campaigns to enforce
administrative decisions or to attract investment in the local
economy.\14\
The SPC's 2004-2008 court reform program sets some positive
long-term goals for judicial reform. The SPC announced that it
will consolidate and reclaim the death penalty review power
from provincial-level high courts, and will require court
hearings to resolve death penalty appeals [see Section III(b)--
Rights of Criminal Defendants and Suspects]. The program also
proposes steps to implement other positive reforms,\15\
including:
Court financing. Local governments influence
courts through their control over judicial funding and
appointments, and use this influence to protect local
interests. The program directs court officials to
explore national financing for court operations.
Court adjudication committee system.
Adjudication committees include court presidents and
other administrative personnel and are the highest
authorities in Chinese courts. They are often the
vehicle for outside pressure to reverse individual
decisions. The program directs committees to adopt more
open decisionmaking procedures and to guarantee that
experienced judges are able to serve on adjudication
committees.
Retrial procedures. Chinese court decisions
often lack finality, as the result of extensive use of
retrial procedures with vague rules and few
limitations. [See Section V(b)--Rights of Criminal
Suspects and Defendants--Fairness of Criminal Trials
and Appeals for the impact that this has had on
criminal trials.] The program directs officials to
clarify the criteria, limits, jurisdiction, and
procedures for granting retrial. Officials have drafted
two proposed judicial interpretations that seek to
address some of these questions.\16\
Advisory opinion system. Lower courts often
rely on advisory opinions from higher courts for
specific guidance on how to decide pending cases. This
system undermines judicial fairness by separating
actual court decisions from trials and by making
subsequent appeals (to the same entity that responded
to the request for review) no more than a formality.
The program directs courts to limit use of advisory
opinions to general questions of law rather than
determinations of fact.
Use of official authentication conclusions and
expert testimony. The program directs court officials
to implement a 2005 National People's Congress decision
that forbids courts from establishing for-profit
authentication centers to provide expert testimony. The
Ministry of Justice issued relevant implementing
measures in September 2005.\17\
Juvenile justice system. China currently has
2,400 juvenile tribunals.\18\ The program directs
courts to improve their work in handling criminal,
civil, and administrative cases affecting the rights of
juveniles. It also provides for the establishment of
experimental juvenile courts.
Access to Legal Representation
Communist Party efforts to address growing social unrest
have resulted in government programs to strengthen institutions
that assist citizens with legal claims and disputes. To help
reduce the number of citizen protests and mass petitions,
provincial and municipal Party committees have directed local
officials to improve legal aid and mediation efforts.\19\
Minister of Justice Wu Aiying said in February that:
[We must] bring into play the professional strengths
of lawyers in resolving disputes. [We must] take
further steps to organize and guide lawyers, basic
legal service workers, and legal aid personnel to
actively participate in the work of handling mass
incidents and citizen petitions involving legal issues.
[We must] actively explore methods and measures that
press parties to settle out-of-court and in non-
litigation forums, in order to better resolve disputes
and prevent them from escalating.\20\
Central government officials also are strengthening the
Ministry of Justice (MOJ) presence at the local level,
particularly in western China and at the level of township
governments. MOJ offices guide the work of local mediation
committees, run government legal aid programs that provide pro
bono legal representation to citizens who meet designated
criteria, and supervise and license Chinese lawyers.\21\ In
2005, Chinese authorities set the goal of ensuring that 91
percent of Chinese townships had a MOJ office by the end of
2006.\22\ Chinese authorities designated 7.4 billion yuan
(US$920 million) to improve housing and work conditions for
township court, justice, and public security bureaus in western
China from 2004 to 2008.\23\ The MOJ has made the strengthening
of township mediation and legal aid programs part of its effort
to implement the Party's ``new socialist countryside''
campaign.\24\
Chinese authorities have expanded the scope of government
legal aid efforts. Official Chinese statistics show that the
number of government legal aid centers rose from 2,774 in 2003
to 3,081 in 2005. The total number of cases handled by these
centers rose from about 166,000 in 2003 to an estimated 250,000
in 2005, or roughly 3 percent of all cases handled by the
Chinese courts in 2005.\25\ In July 2005, the All-China
Environment Federation and the State Environmental Protection
Administration announced the creation of a joint legal aid
program for the victims of environmental pollution.\26\ In
September 2005, the Shanghai People's Congress issued a
decision clarifying the eligibility of migrant workers for
legal aid in cases of labor disputes, occupational injuries,
and domestic violence.\27\ In May, the All-China Federation of
Trade Unions (ACFTU) announced that 669 of its legal staff
would be permitted to acquire bar licenses and provide
increased legal services to workers [see Section V(c)--
Protection of Internationally Recognized Labor Rights].
At the same time that it has promoted efforts to expand
legal assistance to citizens, the government also has
restricted the efforts of private lawyers and human rights
defenders who challenge government abuses [see Section IV--
Introduction; Section V(b) --Rights of Criminal Suspects and
Defendants--Access to Counsel and Right to Present a Defense].
The MOJ's ``2006 Report on the Policy for Development of
China's Legal Profession'' emphasized its role in ``guiding''
the legal profession and the need for all lawyers to ``serve
the harmony and stability of society.'' \28\ The All China
Lawyers Association (ACLA) issued a guiding opinion that went
into effect on March 20 and restricts the ability of lawyers to
handle cases involving representative or joint litigation by 10
or more litigants, or cases involving both litigation and non-
litigation efforts.\29\ The guiding opinion further instructs
law firms to assign only ``politically qualified'' lawyers to
conduct the initial intake of these cases, and to obtain the
approval of at least three law firm partners before taking them
on.\30\ Lawyers who handle mass cases must accept supervision
and guidance by judicial administration departments, attempt to
mitigate conflict, and propose mediation as the method for
conflict resolution.\31\ Local lawyers' associations may
sanction any lawyer or law firm that fails to follow these
guidelines and causes a ``negative impact.'' \32\
Local Chinese authorities have imposed additional
restrictions on lawyer advocacy efforts. The Henan Provincial
Justice Bureau has issued an opinion that forbids lawyers from
using the news media and engaging in various other activities
when handling ``major, sensitive, mass'' cases.\33\ The opinion
says that lawyers in Henan province cannot ``use the media to
stir things up or create a negative impact on domestic or
international public opinion.'' It prohibits lawyers and law
firms from publishing commentary to affect the outcome of a
case or the mood of the public, and warns them not to establish
contact with foreign organizations or news media in violation
of disciplinary rules. The Shenyang Municipal Justice Bureau
has also issued an opinion that requires lawyers to seek
instruction from the Justice Bureau before they handle ``major,
difficult, and sensitive'' cases.\34\
Constitutional Review
The National People's Congress (NPC) wields exclusive power
to amend the Constitution and to enact and amend national laws,
particularly through its Standing Committee (NPCSC). The NPC is
the only governmental body with the power to interpret the
Constitution and supervise its enforcement. Chinese courts do
not have the power either to apply constitutional provisions in
the absence of concrete implementing legislation or to strike
down laws or regulations that are inconsistent with the Chinese
Constitution.\35\ In December 2005, the NPCSC enacted new
procedures that require the Supreme People's Court (SPC) and
the Supreme People's Procuratorate to submit judicial
interpretations to the NPCSC within 30 days of
promulgation.\36\ At least one Chinese scholar has said that
these new procedures represent an NPC move to rein in the SPC
and to ensure that the SPC does not erode the NPC's power as
China's sole legislator and interpreter of the
Constitution.\37\ The NPC supervises both the SPC, China's
highest judicial authority, and the State Council, China's
executive authority, but the NPC remains subject to tight Party
control [see Section VII--Development of the Rule of Law and
the Institutions of Democratic Governance].
Some scholars have suggested removing the power of
constitutional review from the NPC and vesting it in a
``dedicated judicial agency,'' \38\ but the government has
ruled out establishing a specialized court to review the
constitutionality of laws and administrative regulations.\39\
Senior government and Party leaders have warned officials to
guard against the promotion of ``Western-style constitutional
reform.'' \40\ They also reject adopting a ``Western separation
of powers,'' \41\ and insist that any restraint on the central
government's power must not diminish the leadership of the
Communist Party.\42\
Under Article 90 of the Legislation Law, Chinese citizens
may propose NPCSC review of whether or not a State Council
regulation violates the Constitution or any national law.\43\
The Chinese government has taken some limited steps to
formalize the constitutional and legal review system. For
example, the NPCSC announced in 2004 the formation of a new
Legislation Review and Filing Office (LRFO) to assist its
Legislative Affairs Commission in reviewing regulations that
may conflict with the Constitution and national laws.\44\ In
December 2005, the NPCSC amended the ``Working Procedures for
the Filing and Review of Administrative Rules, Local Rules,
Autonomous Region and Special Purpose Regulations, and Special
Economic Zone Rules'' (Legislation Procedures).\45\ The
Legislation Procedures stipulate three phases for
constitutional and legal review: consultation between the NPCSC
and the formulating agency; NPCSC submission of a written
request to the formulating agency that it revise or rescind the
legislation; and, if the formulating agency does not accept the
request, consultation within the NPCSC to determine whether or
not to rescind the legislation. The amendments include a new
provision authorizing the special committees of the NPC to
review laws and regulations on their own initiative, with a
deadline of two months for formulating agencies to respond to
NPCSC special committee requests that a regulation be revised
or rescinded.
Chinese citizens rarely submit proposals to the NPCSC for
constitutional and legal review because the review process
lacks transparency and citizens cannot compel review.\46\
During the run-up to the annual plenary sessions of the NPC and
the Chinese People's Political Consultative Conference, Chinese
authorities shut down the Aegean Sea (Aiqinhai) Web site, as
well as four other sites that had complained on behalf of local
workers.\47\ The Web site operators sought relief through the
constitutional and legal review system in April 2006.\48\ As of
September 2006, the NPCSC had not yet responded to the request
for review. To address these problems, some Chinese legal
experts have called for requiring the LRFO to notify those
seeking review whether or not it will accept their proposal,
and to provide explanations to those whose proposals it
rejects.\49\ Others have suggested that the NPCSC report each
year to the full NPC, describing the previous year's
constitutional review work.\50\ Some legal experts in China
also have advocated that the NPCSC establish a dedicated
Constitutional Commission staffed by scholars, judges, and
lawyers.\51\
NPC special committees and other central government
agencies have the power to compel the NPCSC to act on their
applications,\52\ but they have an interest in maintaining the
national status quo and not creating conflicts among
themselves.\53\ Thus, they have little incentive to request
review of national laws, State Council regulations, or other
central government agencies' rules on major issues relating to
civil or human rights.\54\ Citizens may only offer proposals to
the LRFO, which stands between them and the NPCSC and lacks the
power to issue binding decisions that would resolve
disputes.\55\ In addition, unlike other laws that compel State
Council departments, courts, and local governments to act on
citizens' applications and lawsuits,\56\ the Legislation Law
merely provides that the NPCSC may react to citizens' proposals
``if necessary.'' Finally, the government is not required to
inform citizens whether or not it will act on a proposal, and
the 2005 amendments to the Legislation Procedures revised the
provision concerning government notification to a citizen that
a review is complete, making such notification voluntary.\57\
The NPCSC has enacted and amended laws and regulations that
protect citizens from government abuses in response to public
pressure\58\ and new legislative mandates,\59\ but it has never
rescinded a law or administrative regulation in direct response
to a citizen proposal.\60\ The primary purpose of the
constitutional and legal review system is to safeguard the
unity of China's legal system rather than to give citizens an
effective remedy by a competent national tribunal.\61\ The
system is based on the constitutional and legal
presumption that the NPC and its Standing Committee are
paramount,\62\ and therefore not subject to checks, balances,
or oversight.\63\ The China Law Society's Democracy and Law
Times summarized the situation as follows:
As a system, constitutional review comprises
proposal, acceptance, review, determination, and
resolution. If it lacks any one of these, then the
constitutional review system is not complete. Although
the meaning of citizens having been granted the right
to submit proposals for constitutional review is very
important, if all they have is the right of proposal,
and do not have the right of acceptance, review,
determination, and resolution, then the right of
proposal exists in name only. This also explains the
reason why so few citizens propose constitutional
review.\64\
Judicial and Administrative Review of State Action
Chinese law provides methods for citizens to seek a remedy
when they believe the government has violated their rights.
These methods allow Chinese citizens limited legal recourse
against individual officials or local governments that exceed
their authority.\65\ Under the Administrative Reconsideration
Law (ARL), Chinese citizens may submit an application to State
Council departments for administrative review of specific
government actions that violate their legal rights and
interests.\66\ Under the Administrative Procedure Law (APL),
citizens may file a lawsuit in a people's court to challenge
government actions.\67\ Under the State Compensation Law,
citizens may request compensation for illegal government acts
along with an ARL or APL action, or present them directly to
the relevant government bureau.\68\ Some local Party
disciplinary committees are also experimenting with procedural
changes that grant cadres in specific cases the ability to
mount a defense, present evidence, and receive a hearing on the
charges against them.\69\
These methods, however, do not allow Chinese citizens to
challenge administrative regulations that violate
constitutional or legal rights. Article 12 of the APL forbids
courts from accepting citizen challenges of administrative
rules and regulations that have ``general binding force.''
Article 7 of the ARL allows citizens to apply to administrative
agencies for review of the legality of decrees\70\ of State
Council departments and local people's governments at or above
the county level, and any provisions enacted by town or
township people's governments.\71\ The ARL does not, however,
allow reconsideration of State Council rules or
regulations.\72\
Citizens are making only limited use of laws that protect
their rights by granting judicial and administrative review of
government actions. For example, Hubei provincial authorities
report an overall decline between 2003 and 2005 in applications
for administrative reconsideration, from 3,468 to 3,336.\73\
Total numbers of such applications in major Chinese
municipalities is a few hundred per year.\74\ Administrative
court challenges to government actions have not increased since
1998. In 2005, first-instance administrative law cases totaled
95,707, nearly twice the 52,596 reported in 1995, but a decline
from the 101,921 recorded in 2001. This decline parallels a
similar stagnation in citizens using the judiciary generally.
In 2005, the Chinese judiciary handled 4.3 million first-
instance civil cases, down from 4.73 million reported in 2001,
and only slightly higher than the 4 million recorded in
1995.\75\
Chinese laws that grant judicial and administrative action
to citizens to protect their rights do not provide mechanisms
to compel effective judicial or government review. When the
government shut down the Aegean Sea Web site, along with four
other Web sites, in March 2006, authorities cited Article 5 of
the Provisions on the Administration of Internet News
Information Services (Provisions),\76\ which grant the State
Council Information Office (SCIO) the authority to license Web
sites that report and comment on politics, economics, fast-
breaking social events, and military, foreign, social, and
public affairs. The operators of the closed Web sites believed
that the Provisions violated their constitutional and legal
rights,\77\ but they had no way to compel judicial or other
government review of the Provisions. Government authorities
were acting under the authority of the Provisions when they
shut down the Web sites, and so the issue was whether the
Provisions violated the Constitution, a national law, or a
State Council regulation. Administrative review under the ARL
could not provide the Web site operators an effective remedy
because the Provisions are ``department rules,'' and a 2005
State Council decision (Decision) explicitly provides for the
licensing authority granted to the SCIO.\78\ Because citizens
may not use the administrative reconsideration system to
question the constitutionality or legality of State Council
regulations (such as the Decision) or State Council department
rules (such as the Provisions), the Web site operators would be
unlikely to obtain effective relief based on an application for
administrative reconsideration attacking the Provisions
directly.
The ARL provides that citizens who do not accept an
administrative reconsideration decision may file a lawsuit with
a people's court under the APL.\79\ Like the ARL, however, the
APL explicitly prohibits constitutional or legal review of
State Council departments' rules.\80\ A court could refuse to
enforce the Provisions if they conflicted with a national law
or a State Council regulation,\81\ but since the SCIO's
licensing authority is derived from the Decision, a court would
lack the authority to declare the Provisions unconstitutional
or illegal.\82\
Citizen Petitioning
Since the 1950s, xinfang (``letters and visits'') offices
have provided a channel outside court challenges for citizens
to appeal government decisions and present their
grievances.\83\ Under the new national Regulations on Letters
and Visits (RLV) issued in January 2005, citizens may ``give
information, make comments or suggestions, or lodge
complaints'' to xinfang bureaus of local governments and their
departments.\84\ Individual petitioning may be as simple as one
dissatisfied citizen visiting multiple xinfang bureaus within
government agencies. Collective or mass petitioning may involve
organized demonstrations, speeches, or marches of hundreds or
thousands of people seeking to present their grievances,
despite an official prohibition on such activities.\85\
Official news media report that Chinese citizens presented 12.7
million petitions to county-level and higher xinfang bureaus
during 2005,\86\ in contrast to the 8 million total court cases
handled by the Chinese judiciary during the same period.\87\
The total number of petitions increased each year from 1993 to
2004.\88\ Petitioning is common even within the judiciary.
Chinese courts handled four million petitions in 2005, a number
roughly equal to the total number of civil court cases for the
year.\89\
Authorities launched an implementation campaign for the RLV
in 2005 aimed at reducing the number of citizen petitions. The
government tasked the Ministry of Public Security (MPS) with
coordinating official responses to citizen petitions, required
local MPS heads to meet personally with petitioners in a May-
to-September campaign, and increased propaganda efforts
pressing local officials to resolve citizen petitions.\90\
Chinese authorities have ordered the nationwide adoption of
responsibility systems that discipline local officials who fail
to prevent mass petitions.\91\ Concerned about the rising
number of mass petitions, central Party officials have set a
goal to decrease the number during 2006.\92\ Party and
government officials have called for strengthening xinfang
institutions in conjunction with stronger efforts to maintain
social order.\93\
Chinese authorities and state-run news media report that
official measures to address citizen petitions in 2005 were a
major policy success,\94\ but official statistics provide
conflicting support for this claim. Official statistics show
total citizen petitions declined for the first time in 12
years, from 13.7 million in 2004 to 12.7 million in 2005.\95\
Although officials reported a 90 percent success rate in
resolving petitions,\96\ scholars commissioned by the
government to study the issue say that only 0.2 percent of
petitions filed receive a response.\97\ Official news media
report that government and Party xinfang bureaus at the county
level and above have handled some 917,000 petitions since the
beginning of the campaign, but this represents less than a
tenth of the total number of petitions received in 2005 by
xinfang bureaus. Since MPS rules issued in August 2005 provide
for disciplining local MPS officials who fail to prevent
collective petitions, MPS officials may be suppressing
petitioners or misreporting their numbers rather than resolving
the underlying problems.\98\
The 2005 RLV requires local governments to adopt official
xinfang responsibility systems, and some local governments have
done so.\99\ These systems punish local officials more harshly
for mass petitions that reach higher-level authorities,
depending on the numbers of petitioners involved and the level
of government that they reach.\100\ Absent alternative
political or legal channels to check the power of local
officials and obtain redress, this punishment structure
provides an incentive for Chinese citizens to take their
grievances to the streets in order to force local officials to
act.\101\ But this punishment structure also gives local
authorities an interest in suppressing mass petitions and
preventing petitioners from approaching higher authorities. A
December 2005 NGO study of these systems found that some local
authorities have resorted to ``rampant violence and
intimidation'' to abduct or detain petitioners in Beijing and
force them to return home.\102\ The report alleges that Beijing
police often ignore such abductions or detentions and sometimes
assist with abductions.\103\
The government uses harsh measures to repress petitioners
during high-profile national events. In March 2006, a senior
MPS official confirmed that MPS officials would engage in mass
roundups to ``strongly encourage'' those ``people without
proper professions, fixed places of residence, or stable
incomes who have been hanging around Beijing for a long time''
to leave the capital before the annual plenary session of the
National People's Congress (NPC).\104\ Other repressive
measures include:
During the annual NPC plenary session in March
2006, authorities detained AIDS activist Hu Jia for 41
days without legal formalities and without notifying
his family [see Section V(b)--Rights of Criminal
Suspects and Defendants--Arbitrary Detention]. Hu had
attempted to submit petitions on behalf of AIDS victims
to central government officials during high-profile
conferences [see Section V(g)--Public Health--HIV/
AIDS].
In December 2005, Beijing police arrested
several hundred petitioners who gathered outside the
offices of China Central Television to present their
grievances on ``Popularize Law Day.''
In December 2005, Shanghai police arrested
over 200 petitioners who sought to present their
grievances to municipal Party officials and were
gathered outside a building in which the local Party
branch was holding a conference.
In November 2005, police in a number of cities
arrested or detained dozens of petitioners before an
official visit by U.S. President George W. Bush.\105\
Chinese court officials are pursuing reforms to the process
of handling citizen petitions that may weaken the ability of
individual judges to decide cases according to law. The Supreme
People's Court (SPC) announced in November 2005 that it will
require Chinese courts to establish procedures to resolve
citizen petitions about judicial decisions. Trial judges will
be responsible for responding to parties who visit the court
and raise complaints about judgments, and their record for
handling such complaints will be made part of their performance
reviews.\106\ Similarities between the SPC announcement and the
RLV suggest that the central government seeks to implement a
common set of reforms for addressing citizen petitions to both
the courts and local governments.\107\ The SPC reforms may
encourage Chinese litigants to resort to post-decision
petitioning rather than appeals to reverse verdicts, increase
pressure on Chinese trial judges to alter verdicts to satisfy
persistent petitioners, and weaken the finality of
judgments.\108\
VII(d) Commercial Rule of Law and the Impact of the WTO
findings
The Chinese government has made progress in
bringing its laws and regulations into compliance with
its World Trade
Organization (WTO) commitments. Although significant
flaws remain, the new body of commercial laws has
improved the business climate for foreign companies in
China. With new, more transparent rules, the Chinese
trade bureaucracy has reduced regulatory and licensing
delays in many sectors.
The Chinese commercial regulatory regime
remains, however, largely opaque to both domestic and
foreign businesses. When China joined the WTO in
December 2001, the government committed to establishing
an official journal that would publish drafts of trade-
related measures for notice and comment, and to
publishing trade-related measures no later than 90 days
after they become effective. Although the government
has acted to improve transparency, some central
government agencies and many local governments are not
consistent in publishing trade-related measures in the
official journal.
The Chinese government tolerates intellectual
property rights (IPR) infringement rates that are among
the highest in the world. The Chinese government has
not introduced criminal penalties sufficient to deter
IPR infringement, and steps taken by Chinese government
agencies to improve the protection of foreign
intellectual property have not produced any
significant decrease in infringement activity. The
Chinese government's failure to provide effective
criminal enforcement of IPR has led foreign companies
to turn to civil litigation to obtain monetary damages
or injunctive relief. Civil litigants continue to find,
however, that most judges lack the necessary training
and experience to handle IPR cases, and damage awards
are too low to be an effective deterrent.
Since acceding to the WTO, the Chinese
government has used technical, regulatory, and
industrial policies, some of which appear to conflict
with its WTO commitments, to discriminate against
foreign producers and investors and limit their access
to the domestic market. U.S. rights holders and
industry groups have complained that the government's
censorship regime serves as a barrier to entry and
encourages IPR violations. In 2005, the American
Chamber of Commerce in China wrote that censorship
clearance procedures severely restrict the ability to
distribute CD, VCD, and DVD products in China and
provide an ``unfair and unnecessary advantage to pirate
producers who bring their products to market long
before legitimate copies are available for sale.''
Introduction
On December 11, 2001, China formally became a member of the
World Trade Organization (WTO). In doing so, the Chinese
government agreed to abide by the rules governing trade
relations among most of the nations in the world, and voiced
its willingness to make fundamental changes to its trade regime
to conform with the WTO's rules-based system, affecting China's
system of governance at all levels. The WTO agreements and
China's accession documents contain many core elements of the
rule of law. When China joined the WTO, the Chinese government
committed to ensuring that all trade-related measures be
administered in a non-discriminatory manner. The WTO also
imposes transparency on its members by requiring that all laws,
regulations, judicial decisions, and administrative rulings
relating to trade be published promptly.
The government's implementation of its WTO non-
discrimination and transparency obligations is a useful measure
of the overall development of the rule of law in China,
including the extent to which the government treats individuals
equally under the law and makes laws and administrative
regulations accessible to the public. The Chinese government
has made progress in bringing its laws and regulations into
compliance with its WTO commitments. The new body of commercial
laws has improved the business climate for foreign companies in
China. With new, more transparent rules, the Chinese trade
bureaucracy has reduced regulatory and licensing delays in many
sectors. Nevertheless, serious problems remain in such areas as
regulatory transparency, the enforcement of intellectual
property rights (IPR), and discrimination against goods and
services of foreign origin. Most of China's WTO commitments
were to have been phased in by December 2004, and the past year
therefore provides an indication of what Chinese citizens and
foreign investors can expect of China as a WTO member with its
full range of WTO commitments in place.
The U.S. and Chinese governments established the U.S.-China
Joint Commission on Commerce and Trade (JCCT) in 1983 as a
government-to-government mechanism to develop and facilitate
the bilateral commercial relationship. The two governments held
the 17th plenary session of the JCCT on April 11, 2006, in
Washington, D.C. The Chinese delegation made a number of
commitments on trade issues of priority concern to the United
States, such as fighting piracy of U.S. intellectual property;
increasing transparency in China's domestic regulatory process;
ending duplicative testing of U.S. medical products entering
the Chinese market; resuming sales of U.S. beef; and making
progress toward accession to the WTO Agreement on Government
Procurement. The U.S. Department of Commerce is the lead U.S.
government agency in the JCCT process, and engages the Chinese
government to ensure compliance with commitments made at JCCT
meetings.
Transparency
The Chinese commercial regulatory regime continues to
exhibit what the United States Trade Representative (USTR)
describes as ``systemic opacity.'' \1\ China's Protocol of
Accession to the WTO requires that the Chinese government
translate all trade-related laws, regulations or other measures
into one or more of the WTO's official languages.\2\ In
addition, to the maximum extent possible, it must make these
laws, regulations and other measures available before they are
implemented or enforced, but in no case later than 90 days
after the date of implementation or enforcement.\3\ Moreover,
the government committed to designating an official journal to
regularly publish trade-related laws, regulations, and other
measures, and to provide additional relevant information, such
as the effective date for a particular measure and the identity
of the governmental and non-governmental authorities
responsible for authorizing, approving, or regulating services
activities.\4\ Before implementing or enforcing trade-related
laws, regulations, and other measures, the Chinese government
has committed to publishing them in an official journal and to
providing a reasonable period for public comment to the
appropriate government authorities, except in extraordinary
circumstances.\5\
The government, in particular the Ministry of Commerce
(MOFCOM), has taken steps toward improving transparency, but
still does not consistently publish trade-related measures\6\
and does not always translate those measures that it
publishes.\7\ Some government agencies do not circulate drafts
of trade-related measures to outside groups or individuals,
domestic or foreign, or do so only on the condition that the
outside party promises not to share the draft more widely.\8\
In March 2006, the State Council issued a circular
providing that the ``Chinese Foreign Economic Trade Gazette''
would be the government's official journal for the publication
and registration of ``all laws, regulations, or other measures
pertaining to or affecting trade in goods, services, trade-
related aspects of intellectual property rights (TRIPs), or the
control of foreign exchange.'' \9\ The
circular reiterated that all local governments and government
agencies are required to forward to MOFCOM any trade-related
regulations that they promulgate or make available in draft
form for public comment. MOFCOM is then responsible for
publishing the regulations. MOFCOM began making the Gazette
available on its Web site in 2003.\10\ A Commission review of
the Gazette indicates, however, that few trade-related measures
below the central government level have been published there.
Poor transparency has made it difficult for the U.S.
government to obtain accurate information on the Chinese
government's subsidy programs.\11\ The WTO Agreement on
Subsidies and Countervailing Measures requires each WTO member
to submit an annual notification of all the subsidies that it
maintains, and provides that members shall respond to requests
for information regarding practices that appear to constitute
subsidies ``as quickly as possible and in a comprehensive
manner.'' \12\ To date, however, the Chinese government has not
met its annual notification commitment. The United States
submitted a request to the Chinese government in October 2004
regarding a number of subsidy programs.\13\ The Chinese
government did not respond until April 2006,\14\ and that
response was limited to subsidies that existed between 2001 and
2004.
Chinese officials credit China's accession to the WTO as
having increased the government's attention to transparency.
Zhou Hanhua, the head of the State Council-designated drafting
team on open government measures [see Section VII(b)--
Institutions of Democratic Governance and Legislative Reform],
said WTO accession has raised awareness about citizen rights
and the importance of openness and transparency.\15\ Some local
governments also have cited the WTO transparency principle as
support for their own reforms. For example, officials in
Changzhou city, Jiangsu province, announced in November 2005
that the city government would no longer enforce regulatory
documents that have not been published first in the local
newspaper, the government's gazette, or other publications
specified by the city government. In the circular announcing
this requirement, the Changzhou government said that,
``[A]ccording to the WTO `principle of openness and
transparency,' there is generally one month between the time
that regulatory documents and other policies and proceedings
are promulgated and the time that they are implemented.'' \16\
The new procedures provided that the public could ``inspect and
review'' any such draft measure before the government makes it
effective if it has been published in one of the three approved
media.
Intellectual Property Rights Protection and Enforcement
Intellectual property counterfeiting and piracy in China
are rampant, according to Chinese\17\ and U.S. government
sources.\18\ Industry reports indicate that infringement levels
in China range from 85 to 95 percent for all copyrighted
works.\19\ In 2005, the value of copyrighted works that were
pirated exceeded US$2.3 billion.\20\ China is now the second-
largest legal music market in Asia, with sales worth US$212
million in 2004. Sales of pirated discs were, however, worth
approximately US$400 million.\21\ Ninety percent of the
software used in China is pirated,\22\ and business software
losses were estimated at US$1.27 billion in 2005.\23\ A study
commissioned by the Motion Picture Association of America found
that 93 percent of the Chinese film market is lost to
piracy,\24\ costing U.S. rights holders nearly US$300 million
per year, according to industry estimates.\25\ According to
U.S. customs statistics, 69 percent of all counter |
