|
|
|
||
|
| Home Search Printer Friendly | Subscribe/Unsubscribe to Commission Email & Newsletter |
|
|
|
|
Freedom of Residence and Travel FINDINGS
The household registration (hukou) system remains a key component of the caste-like divide in Chinese society between urban and rural residents. Massive rural-urban migration continues to put heavy pressure on the system. Under this pressure, Chinese national and local authorities are liberalizing the hukou regime, but rural migrants continue to suffer significant regulatory discrimination with regard to basic social services. This discrimination exacerbates the economic hardships they face on a range of issues such as back wages, property rights, and the education of their children.554 Chinese migrants are frequently the targets of a wide range of unfair practices. Urban employers often exploit the tenuous social status of migrants and their unfamiliarity with their rights. Chinese factory managers also often require workers to pay a ¡®¡®deposit¡¯¡¯ to secure a job. Workers lose these deposits if they return home without permission or before their contract expires.555 Migrants sometimes suffer discrimination in their home villages, particularly with respect to their property rights. For example, a large number of legal cases have been brought recently in Shaanxi province that pertain to the rights of individuals who have left their village either temporarily or permanently (such as migrants to urban areas, or women who have married out of the village), but continue to retain their rural hukou identification with the village. When the village distributes money from collective assets, such as government compensation for the requisition of village land, the villagers often deny these migrants a share because they are perceived as outsiders.556 Migrants also face official discrimination as a result of their residence status. In some cases, a regulation explicitly bars access to social services. Until 2003, for example, numerous provincial regulations limited legal aid only to individuals having either a local hukou or a temporary residence permit.557 As Chinese critics have noted, migrants who wish to obtain a temporary residence permit often must pay substantial fees, both over and under the table, to various government agencies.558 Consequently, millions of migrants remain unregistered and cut off from social services. According to the Chinese news media, fewer than 3 percent of migrant applicants actually receive legal aid.559 Such regulatory obstacles have resulted in a rural migrant underclass in Chinese cities that is deprived of many of the social services their urban neighbors enjoy.560 Central government measures adopted recently attempt to eliminate some of the most blatant discrimination with regard to social services. For example, the State Council passed national legal aid regulations in 2003 that do not condition legal aid on the residence status of applicants.561 Despite such moves, financial resources of local governments often limit their actual ability to offer these social services to migrants.562 For example, pilot medical projects in western China aimed at addressing the collapse in rural health care often exclude migrants because of cost.563 In contrast, relatively well-off southern localities have begun to allow rural hukou holders to buy into health plans run by urban governments, with local governments sometimes subsidizing the migrants¡¯ share.564 Despite central government measures, the hukou system continues to facilitate local discrimination because it divides Chinese society into clear categories and provides a convenient method for local authorities and residents to identify migrants. This phenomenon is particularly evident with regard to the education of the approximately 20 million migrant children in China. Many city governments see migrant children as an unwelcome and expensive nuisance, and therefore simply forbid them from attending public schools, or charge their parents substantial additional fees.565 Over 80 percent of migrant children pay more than their urban counterparts to attend school.566 Private schools for migrants often find themselves in conflict with local governments and residents seeking to close them.567 Although the State Council took steps to ensure a measure of equal treatment in September 2003 by ordering urban public schools to assume the responsibility of accepting and educating migrant children,568 the forward progress represented by this shift in central policy has been undercut by the ability of local officials to discriminate on the basis of hukou identification. In some areas, central government pressure on local schools to admit migrant students has led to the extortion of additional fees.569 Sometimes such pressure prompts even more creative forms of discrimination. Facing central pressure to admit migrant children to local public schools, township governments in Ningbo have responded by adopting a ¡®¡®separate but equal¡¯¡¯ policy. Local authorities have designated one particular public school as the ¡®¡®migrant¡¯¡¯ school, replaced the full-time teachers with part-time instructors, and redirected local government education subsidies to the schools serving local students.570 The Chinese government has improved the general treatment of migrants. The State Council¡¯s formal abolition of the custody and repatriation system in 2003 was a step forward [see Section III(a)- Rights of Criminal Suspects and Defendants]. The Hangzhou Public Security Bureau has eliminated mass dragnet sweeps aimed at rounding up migrants.571 A new national identification card law limits the ability of the police to request identification in certain situations.572 A significant number of local governments have begun to experiment with various forms of hukou reform.573 A few have announced the abolition of temporary residence permits.574 But many of these reform measures merely allow a limited number of relatively well-off rural hukou holders to obtain urban residence status by demonstrating they have a fixed place of residence and a ¡®¡®relatively stable source of support.¡¯¡¯ 575 These requirements are heavily weighted against low-income rural migrants. Nanjing¡¯s new regulations, issued in June 2004, define ¡®¡®fixed place of residence¡¯¡¯ as ownership of an apartment or possession of one issued by a work unit.576 Hebei province excludes applicants for local hukou from living in rented apartments.577 Both sets of regulations define ¡®¡®relatively stable source of income¡¯¡¯ as holding either a professional job or one providing income above the government-established minimum wage.578 Similar restrictions are common in many other local hukou reforms.579 These are difficult for poor rural migrants to fulfill. Such measures are gradually shifting the hukou system into a set of formal class divisions based on wealth, giving an official stamp of approval to the creation of an urban migrant underclass barred from receiving many social services. Fundamental reform faces significant obstacles. Guangzhou public security officials indicate they continue to regard the residence permit system as an indispensable tool of social control, particularly of migrants.580 Although the NPC is currently considering draft proposals for a Law on the Protection of Peasant Rights,581 similar legislation has been under study for years without much progress.582 Instead, Chinese leaders have favored administrative pronouncements to address the status of Chinese migrants.583 As one Chinese critic notes, ¡®¡®[Central government] policy attention cannot completely replace legal protection. Protecting the interests of peasants requires [that] the law give them corresponding rights, rather than merely letting peasants run around from place to place seeking protection by waving national ¡®policy documents.¡¯¡¯¡¯ 584 Unless the Chinese government affords effective legal protections to migrants and ends the social inequalities perpetuated by the hukou system, discrimination against migrants will continue to create serious social problems. Notes to Freedom of Residence and Travel 554 The Commission¡¯s 2003 report contains a thorough review of China¡¯s hukou regime. Congressional-Executive Commission on China, 2003 Annual Report, 2 October 03, 50-3. For even more comprehensive treatment as to the origins of reforms to the hukou system, at least through the late 1990s, see Kam Wing Chan and Li Zhang, ¡®¡®The Hukou System and Rural-Urban Migration in China: Processes and Changes,¡¯¡¯ 160 China Quarterly 818 (1999). 555 AFL-CIO, Section 301 Petition of American Federation of Labor and Congress of Industrial Organizations, 16 March 04, 38, <www.aflcio.org/>. 556 Wang Gang, ¡®¡®How Should the Law Address the ¡®Village Within the City¡¯ Dispute Over Division of Interest? ¡¯¡¯ [Falu¡§ ruhe yingdui ¡®chengzhongcun¡¯ liyi fenpei jiufen?], Shaanxi Daily [Shaanxi ribao], 18 November 03, <www.sxdaily.com.cn/>. The situation is further complicated by local village committees, which often take actions legitimizing discrimination against migrants who leave the village. Local residents who remain in the village often support these actions. This creates tensions between ensuring the right to village self-rule on one hand (according to the 1998 Organic Law on Village Committees) and, on the other, protecting the legal rights of migrants. Chinese courts find it particularly difficult to negotiate these competing interests. Ibid. For the views and proposed treatment of one local Shaanxi court, see Yang Kesheng, ¡®¡®Analytical Discussion Regarding Disputes Over the Division of Allocated Amounts in the Countryside¡¯¡¯ [Guanyu nongcun fenpei kuan jiufen anjian de fenxi tantao], 8 July 03, <www.court-shaanxi.gov.cn>. 557 Guangdong Province Legal Aid Regulations [Guangdong sheng falu¡§ yuanzhu tiaoli], issued 20 August 99, article 10(1); Zhejiang Province Legal Aid Regulations [Zhejiang sheng falu¡§ yuanzhu tiaoli], issued 29 October 00, article 7; Shaanxi Province Legal Aid Regulations [Shaanxi sheng falu¡§ yuanzhu tiaoli], issued 25 September 01, article 8. 558 Hua Hua, ¡®¡®Migrant Population Deserves Better,¡¯¡¯ China Daily, 18 November 03 (FBIS, 18 November 03). 559 ¡®¡®Of 1000 Migrant Workers, Less Than 3 Percent Are Actually Able to Receive Legal Aid¡¯¡¯ [1000 Waidi mingong zhong, zhenzheng nenggou huode falu¡§ yuanzhu de buzu 3 percent], Xinhua, 12 January 04, <http://news.xinhuanet.com>. Numerous other factors are responsible for the problems migrants face in obtaining legal aid as well, including difficulties collecting evidence and problems getting migrant plaintiffs to sign power-of-attorney forms. Ibid. In comparison, official Chinese statistics give an approval rate of 75 percent for all civil legal aid applications. MOJ Legal Aid Center, 2003 Annual Report on Legal Aid Work, 29. Officials in Chengdu legal aid centers estimate that about one-third of applicants are able to receive aid. Jiang Hua, ¡®¡®6 Cents to Change Destiny¡¯¡¯ [Gaibian mingyun de 6 fen qian], Southern Daily [Nanfang ribao], 13 November 03, <www.nanfangdaily.com.cn>. 560 The Chinese media has taken note of this problem. ¡®¡®The Migrant Workers¡¯ Exodus,¡¯¡¯ China Daily, 30 July 04 (FBIS, 30 July 04). Although American national and local regulations often condition receipt of social services, barring non-residents or non-citizens (as is the case with federally-funded legal aid programs), they are much less likely than their Chinese counterparts to create permanently excluded sub-classes. American public schools, for example, often require extremely limited and easily-established proof of residency, but not proof of citizenship. Sean Salai and Matthew Cella, ¡®¡®Schools Will Not Report Illegals,¡¯¡¯ Washington Times, 9 June 04, <www.washingtontimes.com>. Federal funding for hospitals would require inquiries as to immigrants¡¯ status, but does not condition emergency services on the responses. Robert Pear, ¡®¡®U.S. is Linking Immigrant Patients¡¯ Status to Hospital Aid,¡¯¡¯ New York Times, 10 August 04, <www.nytimes.com>. 561 Regulations on Legal Aid [Falu¡§ yuanzhu tiaoli], issued 21 July 03. 562 Despite the national legal aid regulations, many local legal aid centers still appear to condition receipt of legal aid on the applicant¡¯s residence status. See, e.g.,theXiamengovernmentWebsite<www.xm.gov.cn/xminfo/flzh/default.asp?id=8&id2=39> (referencing local regulations requiring a local hukou or temporary residence permit as a prerequisite for receiving legal aid). 563 Zhang Feng, ¡®¡®Improved Rural Medical Care Still Far Away,¡¯¡¯ China Daily, 17 March 04, (FBIS, 17 March 04). 564 For information on such a plan in Guangdong, see ¡®¡®Nanhai Peasants Will Enjoy Health Insurance Coverage¡¯¡¯ [Nanhai nongmin xiangshou yibao], Southern Rural Daily [Nanfang nongcun bao], 25 December 03, <www.nanfangdaily.com.cn>. Under the plan, rural residents are required to contribute up to 57 yuan a year of their own money, with village and township government providing the remainder. Ibid. 565 Human Rights in China, ¡®¡®China¡¯s Education System: Reading Between the Lines,¡¯¡¯ in China Rights Forum, No. 1, 2004, 49. The local government in the place where a family has hukou registration has traditionally had responsibility for primary and secondary education of the children. The HRIC report also contains a very thorough discussion of the general problems faced by migrant children in terms of education. 566 ¡®¡®Almost 20 Milion Migrant Children, Only Half in School¡¯¡¯ [Liudong ertong jin 2000 wan, banshu wei ruxue], World Journal [Shijie ribao], 7 November 03, <www.worldjournal.com>. 567 Some seek to close these often ill-equipped schools out of honest concern for health and safety code violations. Others use these arguments as pretexts to rid their neighborhoods of the perceived ¡®¡®evils¡¯¡¯ of migrant youth. Wan Lixia, ¡®¡®Where Have Beijing¡¯s Schools For Migrant Youth Gone? ¡¯¡¯ [Beijing dagong zidi xuexiao dao nali qu le], 21st Century Business Herald [21 shiji jingji baodao], 18 February 04, <www.nanfangdaily.com.cn>. 568 State Council Notice on the Opinion of the Education and Other Ministries Relating to Further Work on Migrant Children¡¯s Compulsory Education [Guowuyuan bangongting zhuanfa jiaoyubu deng bumen guanyu jin yibu zuohao jincheng wugong jiuye nongmin zinu yiwu jiaoyu gongzuo yijian de tongzhi], issued 17 September 03. 569 Zhou Yang, ¡®¡®Compulsory Education For Migrant Children Will Receive ¡®Urban Resident¡¯ Treatment¡¯¡¯ [Mingong zinu yiwu jiaoyu jiang huo ¡®shimin daiyu¡¯], 21st Century Business Herald, [21st shiji jingji baodao], 14 January 04, <www.nanfangdaily.com.cn>. 570 ¡®¡®Do Migrant Children Suffer ¡®Apartheid¡¯ in Education? ¡¯¡¯ [Mingong zinu shangxue zaoyu ¡®¡®geli zhengce? ¡¯¡¯], Southern Weekend, [Nanfang zhoumo], 3 June 04, <www.nanfangdaily.com.cn>. Central government pressure on local schools to meet national targets may also result in local schools barring easily identifiable, and poorer-performing, migrant children from participating in educational testing in order to boost school scores. Ibid. 571 ¡®¡®Hangzhou Eliminates Migrant Sweeps¡¯¡¯ [Hangzhou quxiao wailai renkou qingcha xingdong], Southern Metropolitan Daily [Nanfang dushi bao], 31 October 03, <www.nanfangdaily.com>. 572 The new PRC Law of Citizen Identification Cards [Zhonghua renmin gongheguo shenfenzheng fa], issued 28 June 03, bars private organizations and individuals from requiring individuals to display their ID cards. Ibid, art. 15. The police are allowed to check identification in certain designated situations. Ibid. 573 According to news reports, over half of Chinese provincial-level administrative regions have undertaken some form of hukou reform. ¡®¡®China Reforms Household Registration System To Bridge Urban-Rural Gap,¡¯¡¯ Xinhua, 4 December 03 (FBIS, 4 December 03). 574 Wuhan Will Eliminate Temporary Residence Permits, Specific Implementation Plans Are Being Prepared [Wuhan jiang quxiao zanzhuzheng, juti shishi fang¡¯an shang zai yunniang], Wuhan government Web site, 2 September 04, <www.wuhan.gov.cn>; Hua Keji and Lu Bingbing, ¡®¡®Shenzhen ¡®Blue Book¡¯ Issued, Temporary Residence Permit System For Migrants to be Gradually Eliminated¡¯¡¯ [Shenzhen ¡®¡®lanpishu¡¯¡¯ wenshi, wailai renkou jiang zhubu quxiao zanzhuzheng], Southern Daily [Nanfang ribao], 11 May 04, <www.nanfangdaily.com.cn>; Zhang Jing, ¡®¡®Shenyang Eliminates Temporary Residence Permits¡¯¡¯ [Shenyang quxiao zanzhuzheng], Sina, 22 July 03, <www.sina.com.cn>. 575 For information on the content of some of these reforms, see ¡®¡®Can Get Urban Hukou With a Fixed Place of Residence¡¯¡¯ [You guding zhusuo ke ban chengzhen hukou], Southern Metropolitan Daily [Nanfang dushi bao], 21 October 03, <www.nanfangdaily.com.cn>; ¡®¡®Why Unified Urban-Rural Residence Status Faces an Uphill Battle,¡¯¡¯ [Cheng xiang tongyi huji weihe lengchang], Finance [Caijing], 19 June 04, <www.caijing.com.cn>. Granting urban residence permits to individuals in small urban areas possessing a ¡®¡®fixed place of residence¡¯¡¯ and a ¡®¡®stable source of income¡¯¡¯ has been government policy since 2001. Joe Young, ¡®¡®Hukou Reform Targets Rural-Urban Divide,¡¯¡¯ The China Business Review, May-June 2002. 576 Nanjing City Issues Regulations on Implementation Details for Residence Permit System Reforms¡¯¡¯ [Nanjing shi chutai huji zhidu gaige xiangxi guiding], Sina, 24 June 04, <www.sina.com.cn>. 577 Li Zhanyong, ¡®¡®Hebei Releases Implementation Details on Residence Status Reform¡¯¡¯ [Hebei chutai huji gaige shishi xize], People¡¯s Daily [Renmin ribao], 26 September 03, <www.people.com.cn/>. 578 National government policy supports extending urban hukou status to highly educated individuals. ¡®¡®Decision of the CPC Central Committee and State Council on Further Strengthening Work Concerning Skilled Personnel,¡¯¡¯ Xinhua, 26 December 03 (FBIS, 9 January 04) (urging promotion of skilled workers and liberalizing hukou restrictions as applied to them). 579 Examples include Chengdu, ¡®¡®Large Revisions to Chengdu Residence Permit Policy, From June 1, Barrier to Entering the City Will Be Relaxed¡¯¡¯ [Chengdu huji zhengce da tiaozheng 6 yue 1 ri qi jincheng menlan jiangdi], 30 May 03, Xinhua, <www.xinhua.com.cn>; Guangzhou, ¡®¡®Beginning Next Year, Guangzhou¡¯s Residence Permit System Will Have Major Changes¡¯¡¯ [1 yue ri Guangzhou huji zhidu gaige zai mai da bu], 23 December 03, Xinhua, <www.xinhua.com.con>; Shanghai, ¡®¡®As of October, Shanghai Residence Permits Will Expand to Include ¡®Ordinary¡¯ Non-Locals¡¯¡¯ [Shanghai juzhuzheng 10 yue qi kuoda dao putong wailai renyuan], China Youth Daily [Zhongguo qingnian bao], 3 September 04, <www.cyd.com.cn>. The frequent description in Chinese media of the ¡®¡®elimination¡¯¡¯ of rural and urban hukou divisions is somewhat misleading. The reform measures described above and in the text are shifting the residence permit system away from one based on rural/urban labels to one based on specific place of residence. However, registration criteria such as that described above still hinders the ability of rural migrants to actually obtain both local hukou in the urban areas they move to and unfettered access to the social services available there. 580 ¡®¡®Guangdong: Temporary Residence Permit Not Amenable to Elimination¡¯¡¯ [Guangdong: zanzhuzheng buyi quxiao], Southern Metropolitan Daily [Nanfang dushi bao], 20 October 03, <www.nanfangdaily.com.cn>. 581 ¡®¡®China Expects First Ever Farmer Protection Law,¡¯¡¯ People¡¯s Daily [Renmin ribao], 12 July 04, <www.people.com.cn>. 582 The Chinese government¡¯s own White Paper on its human rights record touts the drafting of a ¡®¡®Law on the Protection of Peasants Rights.¡¯¡¯ Chinese Government White Paper, ¡®¡®2003 Progress in Chinese Human Rights Work,¡¯¡¯ [2003 Nian zhongguo renquan shiye de jinzhan], <www.china-un.ch>. See also ¡®¡®This Year Will See Drafting of Law on the Protection of Peasant¡¯s Rights¡¯¡¯ [Jinnian jiang qicao nongmin quanyi baohu fa], Beijing Youth Daily [Beijing qingnian bao], 15 March 04, <www.lawyerstep.cn/>; ¡®¡®Five Long Years for ¡®Law on the Protection of Peasant Rights¡¯: To Give Peasants the Rights of Citizens? ¡¯¡¯ [¡®¡®Nongmin quanyi baohu fa¡¯¡¯ wu nian changpao: gei nongmin guomin daiyu?], 21st Century Business Herald [21 shiji jingji baodao], 3 March 04. The content of these proposals appears to vary wildly. Some represent grandiose promises of total equality of treatment between urban residents and migrants, others specific efforts to redirect monetary compensation for land seizures to local governments to pay for social services. Ibid. Other proposals appear to condition a change in hukou status on the exhaustion of social service benefits in migrants¡¯ home areas. Chen Kencheng and Shu Ying, ¡®¡®Landless Peasants Increase by 20 Million Every Year-Shanghai Social Welfare Chief Submits Proposal to NPC¡¯¡¯ [Shidi nongmin nianzeng 200 wan shanghai shebao juzhang tijiao renda yian], 21st Century Business Herald [21 shiji jingji baodao], 3 March 04, <www.nanfangdaily.com.cn/>. 583 Many of these administrative notices do attempt to curb local abuses associated with the hukou system. Zhao Cheng and Liu Zheng, ¡®¡®9 National Ministries Jointly Issue Notice to Clean Up and Wipe Out Discriminatory Regulations Directed at [Migrants] Coming Into the City to Work¡¯¡¯ [Guojia 9 buwei lianhe xiafa tongzhi, qingli quxiao zhendui jincheng wugong nongmin de qishixing guiding], Xinhua, 4 August 04. However, such directives fail to give migrants legal rights they can assert against discrimination. They also do not address the basic social seperation created by the hukou labels. |
|
 Back To Top Previous Page
|
|
||