Legal Restraints on Government Power

One core structural element of the rule of law is the existence of meaningful limits on the arbitrary exercise of power by state actors, supported by processes and institutions through which citizens can challenge state action. Restraints on state power in China traditionally have been weak when they have existed at all. As China's legal reform process has progressed, however, Chinese scholars and officials have discussed the need to establish new mechanisms for constitutional enforcement. The Chinese government has also created a limited set of legal mechanisms through which citizens can challenge state action, such as the Legislation Law, the Administrative Litigation Law and the State Compensation Law.

Constitutional Enforcement and Legislative Review

The Chinese Constitution guarantees many of the same rights and freedoms enjoyed in the United States and other Western democracies. In practice, however, Chinese citizens have no real power to enforce these constitutional guarantees. The Chinese Constitution vests the National People's Congress (NPC) and its Standing Committee with supreme lawmaking authority and with the power to interpret law and supervise enforcement of the Constitution.\395\ However, the NPC and its Standing Committee have not actively performed the latter two functions, a deficiency long criticized by Chinese legal scholars.\396\ Although the NPC has delegated some limited powers to interpret law to the Supreme People's Court (SPC),\397\ historically Chinese courts have not had the power to apply constitutional provisions in the absence of concrete implementing legislation or to strike down legislation that is inconsistent with the Constitution.\398\ Given such restraints, some observers have characterized the Chinese Constitution as a national declaration or aspirational statement analogous to the U.S. Declaration of Independence, not as a legally enforceable document.\399\

Although constitutional development has been a subject of discussion by Chinese legal scholars for many years, several recent legal reforms and events suggest that China is taking tentative steps toward the development of more robust mechanisms of constitutional enforcement. In 1999, the Chinese Constitution was amended to emphasize the concept of rule according to law,\400\ a change of significant symbolic importance that China's leaders have incorporated into government and Party rhetoric.\401\ Under Article 90 of the 2000 Legislation Law [see Section V(b)], citizens have the right to petition the NPC Standing Committee for review of administrative regulations that they believe contradict the Constitution or national laws.\402\ In 2001, the SPC authorized a court in Shandong Province to rely on constitutional provisions guaranteeing the right to education in deciding a case.\403\ This potentially groundbreaking decision, the first in which the SPC explicitly authorized a lower court to directly apply constitutional provisions, has spawned new theoretical and practical discussion of the judicial application of the Constitution. According to Commission sources, several legal aid clinics in China are actively seeking new constitutional test cases to bring before Chinese courts.\404\

The past year has witnessed a number of notable developments related to constitutionalism. In December 2002, Hu Jintao chose the celebration of the 20th anniversary of the 1982 Chinese Constitution as the occasion for his first major speech after becoming the new General Secretary of the Party.\405\ Hu emphasized the need for enhanced mechanisms of constitutional redress and called the Constitution ``a weapon to guarantee the protection of citizen rights.'' \406\ In late 2002, Hu directed the new Communist Party Politburo to hold its first study session on the primacy of the Constitution and appointed a high-ranking committee under NPC Chairman Wu Bangguo to study proposals to amend the Chinese Constitution.\407\ The NPC also accelerated work on a national Supervision Law, which is expected to provide detailed provisions on constitutional supervision.\408\

These events have taken place in the context of renewed study in the NPC, the SPC, and the Party of reforms related to constitutional supervision and judicial review.\409\ According to Commission sources, while the NPC Standing Committee will most likely retain the final power of constitutional review, the NPC is considering proposals to grant the SPC and lower courts greater authority to rely on the Constitution in adjudicating cases.\410\ The creation of a constitutional court has also been discussed, but most observers conclude that this reform is unlikely to be adopted in the near term.

Legal reformers and human rights advocates were encouraged by the State Council's June 2003 decision to repeal China's custody and repatriation regulations. The State Council action was prompted in part by legal petitions challenging the constitutionality of the regulations. Riding a wave of public outcry over the death of Sun Zhigang and intensive reporting of the incident in the Chinese media\411\ [see Section III(a)], three young legal scholars filed a groundbreaking petition with the NPC Standing Committee under Article 90 of the Legislation Law, arguing that the administrative regulations conflicted with two national laws and were therefore illegal restraints on the personal freedom of Chinese citizens.\412\ A second group of legal scholars petitioned the NPC Standing Committee to establish a special commission of inquiry into the Sun Zhigang case and the implementation of the regulations.\413\ Although the State Council's decision to repeal the custody and repatriation regulations pre-empted the need for the NPC Standing Committee to act on the scholars' legal challenge, thereby heading off a potentially precedent-setting annulment of an administrative provision, the decision was viewed as a significant victory for legal reformers and citizen empowerment and stimulated further discussion of the need for constitutional enforcement mechanisms.\414\

In the context of these events, scholars and the media engaged in a spirited discussion of constitutional issues for much of 2003. In March, for example, the newspaper Southern Weekend published a special issue on constitutional government featuring comments by eight prominent legal scholars.\415\ Similar discussions have been published in many other Chinese newspapers and Web sites for much of the year.\416\ The Sun Zhigang case in particular stimulated extensive discourse on the need for constitutional enforcement mechanisms. The government curtailed these discussions in August 2003, ordering the media and academics to refrain from discussing such issues and harassing academics that had been active in such debates. [See Section III(d)].

The Administrative Litigation Law and State Compensation Law

Since 1989, China's legislature has passed several laws that have enhanced the ability of Chinese citizens to mount legal challenges to state action. Under the 1989 Administrative Litigation Law (ALL), Chinese citizens and entities have the right to bring suit in court to challenge administrative acts that violate their lawful rights and interests.\417\ Under the ALL, for example, a citizen sentenced to administrative detention by public security or arbitrarily denied a license by an administrative agency can challenge such decisions in court.\418\

In 1994, the NPC passed a related law called the State Compensation Law (SCL). The SCL provides citizens and entities with the right to obtain compensation in a limited number of situations in which they are harmed by the illegal acts of government officials.\419\ Unlike the ALL, the SCL applies to both administrative and criminal justice organs. Under the SCL's ``criminal compensation'' procedures, citizens have the right to seek compensation from public security, procuratorial, judicial, and prison management organs for a range of illegal acts that take place in the course of criminal investigations, prosecutions, and sentencing.\420\

In practice, litigants face a number of obstacles in making use of these legal mechanisms. The scope of both the SCL and ALL is limited. Under the ALL, for example, citizens lack the power to challenge acts or administrative decisions with general applicability, such as family planning policies, and neither law applies to acts of the Communist Party.\421\ Many citizens either do not understand that they have the right to challenge administrative actions and seek compensation, or misinterpret the scope of the laws and file improper claims, leading to frustration and disillusionment when such claims are dismissed.\422\ Official resistance also has been a problem. In many cases, recalcitrant officials have restricted information about the ALL and SCL, threatened or otherwise mistreated claimants, or interfered in court decisions under the laws.\423\ Procedural defects in the case of the SCL criminal compensation provisions make it easy for law enforcement organs to obstruct claims. Finally, the threat of official liability under the SCL has placed added pressure on law enforcement organs and personnel to secure criminal convictions, a factor in continued abuses in the criminal process.\424\

Despite such obstacles, the ALL and SCL have had some positive impact. Both laws have symbolic importance as official recognition that government officials violate rights and that citizens should have access to legal mechanisms to challenge such improper acts.\425\ Citizens also have demonstrated an increasing willingness to put these legal mechanisms to use. Between 1989 and 2002, courts handled more than 810,000 administrative litigation cases, with steady growth in the annual number of cases over this period.\426\ As measured by the number of cases in which the courts revoke or modify administrative acts or in which plaintiffs settle with administrative agencies, citizen success rates have ranged from 35 to 40 percent annually.\427\ Although the annual number of SCL cases has remained much smaller, it also has grown since the SCL was enacted in 1994.\428\ According to official statistics, citizen claimants in SCL cases show comparable rates of success.\429\ As China law scholar James Feinerman told the Commission at an April 2003 roundtable, ``There is no doubt that the changes in the last few years, economic, political, and legal, have reduced the arbitrariness of the government . . .'' \430\

Implications of Developing Legal Restraints on Government Power

Despite the promise of these developments, most observers are careful not to interpret them as signs that the senior leaders of the Communist Party will subject themselves to meaningful checks on their power in the near term. The impact of many of these developments has been limited. Due in part to the lack of a clear procedure for review or requirements that it act on petitions within a legally prescribed time period, the NPC Standing Committee has been unwilling to formally exercise its power to review and annul unconstitutional laws or regulations under the Legislation Law.\431\ Even if Chinese citizens are provided with more concrete mechanisms through which to enforce constitutional rights, such rights are still qualified by other constitutional provisions prescribing their duties to the state.\432\ While the ALL and SCL have provided citizens with basic legal mechanisms through which to challenge arbitrary government action, they are limited in scope, and citizens face problems such as official resistance and procedural obstacles in invoking their rights under the laws. Chinese officials routinely ignore fundamental rights and freedoms guaranteed to Chinese citizens under the Chinese Constitution, and criminal justice authorities subject Chinese citizens to a host of arbitrary actions. Existing legal mechanisms are not yet strong enough to restrain abuses in these and other contexts.

On a broader level, when Chinese leaders discuss the need for constitutional enforcement and legal restraints on the government, it is unlikely that they have Western democracies in mind as models of governance.\433\ The Chinese Constitution affirms the leadership role of the Communist Party,\434\ a point that continues to be stressed even in progressive discussions of constitutional reform.\435\ General Secretary Hu's speech on the Constitution emphasized the leading role of the Party and the need to maintain national unity and social stability, two common justifications for continued authoritarian controls.\436\ The Party controls the lawmaking process, and the Chinese leadership likely believes that emphasizing rule according to law, promoting constitutional enforcement, and enacting statutes such as the ALL and SCL will help it to control rampant corruption, bolster the Party's legitimacy, and maintain its hold on power.\437\ Finally, as noted above, there are limits to the discussion that the leadership will tolerate, as evidenced by the government's decision to curtail discussion of constitutional reform in academic circles and in the media in August 2003.\438\

Nevertheless, the long-term significance of these events should not be dismissed. As illustrated by the repeal of the administrative regulations on custody and repatriation, recent reforms have had limited but practical impact in providing citizens with checks on government action. More importantly, they have been crucial symbolic steps that have introduced and legitimized the concept of legal restraints on the government, generated a greater sense of empowerment among Chinese citizens, and established precedents and official space that reformers can use to justify an increasingly broad range of future reforms and challenges to government abuses.\439\ This pattern has characterized China's 25-year legal reform process and has been illustrated again in the case of the successful challenge to the custody and repatriation regulations. Reformers are already stressing that citizens cannot rest with this victory and must press for further constitutional and legal reform.\440\ These patterns of change are likely to continue.

Footnotes

395 Constitution of the People's Republic of China, arts. 57, 58, 62, 67.

396 Peter Howard Corne, ``Creation and Application of Law in the PRC,'' American Journal of Comparative Law (Spring 2002), 409.

397 Organic Law of the People's Courts, art. 33. Under Article 33, the Supreme People's Court has the power to issue interpretations of law that are binding on lower courts. However, the procedure and scope of this power is not precisely defined.

398 Commission Staff Interview; Shen Kui, ``Is it the Beginning or the End of the Era of the Run of the Constitution? Reinterpreting China's `First Constitutional Case,''' Pacific Rim Law & Policy Journal 12 (January 2003), 200, 209; Randall Peerenboom, China's Long March toward Rule of Law, (Cambridge: Cambridge University Press, 2002), 317.

399 Donald C. Clarke, ``Puzzling Observations in Chinese Law: When Is a Riddle Just a Mistake?'' in Understanding China's Legal System, Steven Hsu (ed.) (New York: New York University Press, 2003), 106.

400 Constitution of the People's Republic of China, art. 5.

401 See, e.g., Constitution of the Communist Party of China (Adopted and Amended at the 16th National Congress of the Communist Party of China, November 14, 2002), General Program; ``Build a Well-Off Society in an All-Around Way and Create a New Situation in Building Socialism with Chinese Characteristics,'' Jiang Zemin, Report to the 16th National Congress of the Communist Party of China, 8 November 2002.

402 People's Republic of China of Legislation Law [Zhonghua renmin gongheguo lifa fa], enacted 15 March 2001, art. 90.

403 Shen Kui, ``Is it the Beginning or the End of the Era of the Run of the Constitution? Reinterpreting China's `First Constitutional Case,''' 200, 209.

404 Commission Staff Interviews. One such case was brought in Sichuan Province in April 2002, where a plaintiff sued the Chengdu branch of the People's Bank, arguing that height requirements in the bank's job advertisements violated his constitutional rights to equal treatment under the law. The lawsuit was dismissed primarily on technical grounds. ``Record of the Court Hearing of China's First Constitutional Case on the Right to Equal Protection'' [``Zhongguo xianfa pingdengquan di yi an'' tingshen tou lu], China Lawyer Net [Zhongguo falu zixun wang], 12 December 2002, http://www.law.com.cn/pg/newsShow.php?Id=6457 (20 June 2003).

405 Both Chinese and foreign observers attached significance to Hu's choice of this occasion for his first major policy address.

406 ``Hu Jintao Stresses Moving Forward to Establish Consciousness and Authority of the Constitution (Full Text) [Hu jintao qiandiao jinyibu shuli xianfa yishi yu quanwei (fu quanwen),'' Chinanews.com [Zhongguo xinwen wang], 4 December 2002, http://www.chinanews.com.cn/2002-12-04/26/250121.htmlb (30 May 2003).

407 Zhai Wei ``Hu Jintao Stresses Importance of Study at CPC Politburo's Group Study Session,'' Xinhua, 26 December 2002, translated in FBIS, Doc. ID CPP20021226000099; Kathy Chen, ``Chinese Leaders Consider Overhaul for the Constitution,'' The Wall Street Journal, 13 June 2003, <www.wsj.com>.

408 Wang Leiming, Shen Lutao, and Zou Shengwen, ``Supervision: A Force That Bears Witness to Democracy_Shining the Spotlight on Five Bright Spots in the Supervision Work of the Ninth National People's Congress,'' Xinhua, 2 February 2003, translated in FBIS, Doc. ID CPP20030223000012.

409 Commission Staff Interview.

410 Ibid.

411 Along with efforts to control the outbreak of SARS, news and debate about the Sun Zhigang case and its implications dominated the Chinese media in May and June 2003.

412 Proposal to Examine the ``Measures for Custody and Repatriation of Urban Vagrants and Beggars,'' Submitted to the National People's Congress Standing Committee on 14 May 2003 [Guanyu shencha ``chengshi liulang qitao renyuan shourong yisong banfa de jueyishu''], available at http://www.southcn.com/weekend/commend/200305220015.htm (20 June 2003). The scholars argued that the regulations were illegal because (1) under Articles 8 and 9 of the Legislation Law and Article 8 of the Administrative Punishments Law because the freedom of citizens can only be restricted by law (not by administrative regulations such as the Measures for Custody and Repatriation of Urban Vagrants and Beggars) and (2) under Article 37 of China's Constitution, no citizen may be arrested except with the approval of a people's procuratorate or people's court, and unlawful deprivation of freedom by detention or other means is prohibited. As such, the Measures were illegal under the Article 87 of the Legislation Law, which states that administrative regulations may not contravene the Constitution or the law.

413 Proposal Submitted to the Standing Committee of the National People's Congress on Initiating a Special Investigation into the Sun Zhigang Case and the Implementation of the Custody and Repatriation System [Tiqing quanguo changweihui jiu Sun zhigang an ji shourong yisong zhidu shishi zhuangkuang qidong tebie diaocha chengxu de jianyishu], submitted to the National People's Congress, 22 May 2003, available at http://www.china-review.com/everyday/jianyishu.htm (20 June 2003).

414 See, e.g., Erik Eckholm, ``Petitioners Urge China to Enforce Legal Rights,'' New York Times, 2 June 2003 (quoting He Weifang and petitioners); ``Hu Jintao Overseas Tour; Sun Zhigang Case Driving Constitutional Change,'' Hong Kong Feng Huang Wei Shih Chung Wen Tai, 5 June 2003, translated in FBIS, Doc. ID CPP20030609000100.

415 ``Start with Respecting the Constitution [Cong zunzhong xianfa kaishi]'' Southern Weekend [Nanfang zhoumo], 13 March 2003, 1.

416 Commission monitoring of legal newspapers and Web sites. In June 2003, for example, a nongovernmental symposium on constitutional amendment held by 40 well-known scholars put forth a series of five-year and ten-year constitutional reform proposals to the NPC. ``Non-Governmental Sector Submits to the Central Authorities a Proposal on Constitutional Amendment: Forty Scholars Call for Abrogation of Dictatorship,'' Hong Kong Ming Pao, 30 June 2003, translated in FBIS, Doc. ID 20030708000048.

417 People's Republic of China Administrative Litigation Law [Zhonghua renmin gongheguo xingzheng susong fa], enacted 4 April 1989, arts. 2, 11. The law applies only to a range of ``concrete administrative acts'' that target a specific person or entity, and not to government acts that are binding generally. However, the scope of the law has gradually been expanded under SPC Interpretations.  See Supreme People's Court Opinion on Several Questions Related to the Implementing the PRC Administrative Litigation Law [Zuigao renmin fayuan guanyu guanche zhixing ``zhonghua renmin gongheguo xingzheng susongfa'' ruogan wenti de yijian], issued 11 June 1991, Section 1; Supreme People's Court Interpretation on Several Problems in Implementing the PRC Administrative Litigation Law [Zuigao renmin fayuan guanyu zhixing ``zhonghua renmin gongheguo xingzheng susongfa'' ruogan wenti de jieshi], issued 24 November 1999.

418 Administrative Litigation Law, art. 11. Under the ALL, courts also have the power to grant compensation to claimants. The right to compensation was clarified by the SCL, which was enacted 5 years later.

419 People's Republic of China State Compensation Law [Zhonghua renmin gongheguo guojia peichangfa], enacted 12 May 1994, art. 2.

420 Ibid., chapter 3. Both the scope of and process for criminal compensation is more restrictive than that for administrative compensation. For example, while administrative compensation claimants may file their claims directly with a people's court as part of an administrative lawsuit, criminal compensation claimants must first petition the criminal justice organ that is accused of violating the claimant's rights. Only if such claims are denied do claimants have a right to review in a people's court, and even then review is conducted by a ``people's court compensation committee,'' not by the court itself. State Compensation Law, chapter 3.

421 Minxin Pei, ``Citizens vs. Mandarins: Administrative Litigation in China'' The China Quarterly (1997), 385; Ding Yuechao, et. al., State Compensation Law Principles and Practice [Guojia peichangfa yuanli yu shiwu], (Beijing, 1998), 72. Note, however, that if administrative regulations violate the Constitution or the law, citizens can petition the NPC Standing Committee for such laws to be annulled under Article 90 of the Legislation Law.

422 Commission Staff Interview.

423 Veron Hung, ``China's Commitment on Independent Judicial Review: An Opportunity for Political Reform,'' Working Paper, Carnegie Endowment for International Peace, No. 32, November 2002, 5; Kevin O'Brien, ``Suing the Local State: Administrative Litigation in Rural China,'' 4 November 2002 (draft paper on file with author); ``If You Damage Things you Must Pay! A Look Back on Four Years of Implementing the State Compensation Law, Commentary on Democracy and the Rule of Law [Sunhai dongxi yao pei! Guojia peichangfa shishi si nian huimou, minzhu fazhi shuping]'' People's Daily [Renmin Wang], 8 December 1999, www.people.com.cn.

424 De Hengbei, ``An Analysis of Basic Concepts in the Controversy over Seeking Criminal Liability of Lawyers'' [Lushi xingshi zeren zhuijiu zhenglun de jichu guannian pingxi], Legal Daily [Fazhi ribao], 16 January 2003.

425 Passage of the Administrative Litigation Law was hailed as a positive reform by both Chinese and foreign legal observers. Pei, ``Citizens vs. Mandarins: Administrative Litigation in China,'' 832.

426 China Law Yearbooks, 1991-2002; Situation of Judgment Work and the Building of Judicial Cadres of the People's Courts, 1998-2002 [1998-2002 nian renmin fayuan shenpan gongzuo he duiwu jianshe qingkuang], http://211.147.1.70/public/detail.php?id=47770 (17 March 2003). From 13,006 cases in 1990, the number of Administrative Litigation Law cases accepted in China grew to 52,596 in 1995 and 84,942 in 2002. 1991 China Law Yearbook [Zhongguo falu nianjian], (Beijing: China Law Yearbook Press, 1992), 933; 1996 China Law Yearbook, 1055. In 2000 and again in 2002, there was a dip in the number of ALL cases accepted. The Supreme People's Court has monitored this situation closely and ordered courts in provinces that experienced such decreases to study the causes and report to the SPC. Commission Staff Interview.

427 See Pei, ``Citizens vs. Mandarins: Administrative Litigation in China,'' 841-43; 2001 China Law Yearbook, 156. In 1995, for example, the success rate was 36.7 percent. For 2001, it was 39.4 percent.

428 The lack of complete State Compensation Law statistics makes a comprehensive evaluation of State Compensation Law implementation difficult, but official Chinese sources report that the number of criminal compensation cases accepted by the people's courts grew from 398 in 1996 to 2,818 in 2002, while the number of such cases accepted for review by procuratorial offices increased from 379 to 1996 to 1,361 in 2001. See Situation of Judgment Work and the Building of Judicial Cadres of the People's Courts, 1998ÿ092002 [1998-2002 nian renmin fayuan shenpan gongzuo he duiwu jiansheqingkuang], http://211.147.1.70/public/detail.php?id= 47770< /A>(17 March 2003); 1997 China Law Yearbook, at 183; 2002 China Law Yearbook, at 184. There is some likely some overlap in the number for criminal compensation cases accepted by the courts and the procuratorate, since claimants may appeal to a people's court compensation committee if the procuratorate denies their claims. State Compensation Law, art. 13. Public security and procuratorial organs review criminal compensation cases because claimants must first petition the criminal justice organ that is accused of violating the claimant's rights.

429 According to official sources, in 2001, people's courts granted claimants compensation in about 22 percent of the 4,048 administrative compensation cases decided and in 34 percent of the 2,705 criminal compensation cases decided. 2002 China Law Yearbook, at 158.

430 Congressional-Executive Commission on China Roundtable, Rule of Law in China: Lawyers without Law, 1 April 2003, Testimony of James V. Feinerman, Georgetown University Law Center.

431 Foreign legal observers have criticized procedural deficiencies in the Legislation Law review mechanism. Randall Peerenboom, China's Long March toward Rule of Law, (Cambridge: Cambridge University Press, 2002), 264-5. Indeed, Chinese scholars concluded that the NPCSC was unlikely to act on the scholars' petition in the Sun Zhigang case due to a lack of detailed procedures for handling such petitions. The Commission is unaware of any administrative regulations that have been formally overturned in response to a citizen petition filed under the Legislation Law. According to Commission sources, however, the NPC Standing Committee has in some cases called local people's congresses and regulatory agencies informally and suggested that local laws or regulations should be repealed.

432 Constitution of the People's Republic of China, art. 33. ``Every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law.''

433 See, e.g., Congressional-Executive Commission on China Roundtable, Rule of Law in China: Lawyers without Law, 1 April 2003, Testimony of Randall Peerenboom, Professor of Law, University of California at Los Angeles.

434 Constitution of the People's Republic of China, Preamble.

435 ``Constitutional Governance: Selecting the Path of Modern Political Civilization [Xianzheng: Xiandai zhengzhi wenming lujing de xuanze],'' Guangming Daily [Guangming ribao], 13 August 2003, http://www.chinacourt.org/public/detail.php?id=74712< /A> (13 August 2003).

436 ``Hu Jintao Stresses Moving Forward to Establish Consciousness and Authority of the Constitution (Full Text)'' [Hu jintao qiandiao jinyibu shuli xianfa yishi yu quanwei (fu quanwen)], Chinanews.com [Zhongguo xinwen wang], 4 December 2002, http://www.chinanews.com.cn/2002-12-04/26/250121.html (30 May 2003).

437 Vivian Pik-kwan Chan, ``Hu Uses Constitution to Tighten Grip on Power,'' South China Morning Post, 20 January 2003, in FBIS, Doc. ID CPP20030120000048; ``Nailene Chou Wiest, ``Hu Delivers on a Promise to Uphold Rule of Law,'' South China Morning Post, 16 June 2003, in FBIS, Doc. ID CPP20030616000085; Hugo Restall, ``Why China's Glass is Half Full,'' The Wall Street Journal, 13 June 2002; Kevin O'Brien, ``Suing the Local State: Administrative Litigation in Rural China,'' 4 November 2002 www.wsj.com , (draft paper on file with author), at 19-20.

438 ``The Central Authorities Have Forbidden Media from Bringing Political Reform and Constitutional Amendment to Discussion,'' Hong Kong Xing Dao Ri Bao, 21 August 2003, translated in FBIS, Doc ID CPP20030821000078.

439 According to one Commission source, for example, after the State Council repealed the custody and repatriation regulations, legal scholars filed a second petition with the NPC Standing Committee arguing that regulations on re-education through labor should be repealed. The legal arguments were reportedly similar to those make in the petition on custody and repatriation. Reportedly, the NPC Standing Committee denied the petition and authorities barred the Chinese media from reporting on it.

440 See, e.g., T1commentary by Chinese legal scholar Xiao Han at http://www.china-review.com/everyday/everyday-79.htm ; Eckholm, ``Petitioners Urge China to Enforce Legal Rights.''