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Appearance of a Legal System in China Misleading, Says Commission

October 21, 2009

By Gary Feuerberg
Epoch Times
October 18, 2009

WASHINGTON -- China gives the appearance of a
modern state, with a comprehensive judicial
system and code of laws. In reality, China
experts agree that respect for the rule of law
and individual rights common in democracies takes
a backseat to other state priorities. Still, the
Chinese regime must have answers to international
inquiries about how China is addressing, for
example, climate change, environmental
protection, and the recent Tibetan and Uyghur protests.

To access how China’s legal system and human
rights protections are evolving, the
Congressional-Executive Commission on China
(CECC) asked a group of experts to assess the
current state of human rights and the rule of law.

"In its 2009 report, the [CECC] Commission
expressed deep concerns about the continual human
rights abuses and the stalled rule of law
development,” said Senator Byron L. Dorgan
(D-ND), Co-Chairman of the Commission, in his
opening statement. The 2009 annual CECC report is
scheduled for an Internet release on Oct. 13.

"Mr. Chairman, I am afraid that what we have seen
in China is not the emergence of rule of law but
rule by law. All of China’s developing legal
structures, regulatory institutions, bureaucratic
agencies, don’t amount to real law, since the
communist party and the government aren’t subject
to them," said ranking member Rep. Chris Smith (R-NJ).

Senator Dorgan said it is in the interest of the
U.S. as well as Chinese citizens for the China’s
regime to cease repressing free expression and
the rule of law. "The harassment of whistle
blowers and the suppression of criticism and
dissent remove internal checks against
environmental damage and hurt not only Chinese
citizens but have a global impact as well."

"To maximize progress on food safety, product
quality, even clean air, the Chinese government
must engage as allies environmental whistle
blowers, watchdog press, the NGOs, Human Rights
lawyers, and they cannot be repressed as enemies
of the state," said Sen. Dorgan.

Political prisoners less often released

John Kamm, founder, chairman and executive
director of Dui Hua ("dialogue") Foundation,
provided the Commission an update on political
prisoners. Mr. Kamm has had business ties with
Hong Kong and the mainland since the 1970s, and
over that period, he cultivated friendships with
some Chinese officials. Since May 1990, he says
he has made inquiries on the status of more than
one thousand prisoners and has received written
responses on over half of them. Unfortunately, in
2005, China’s Ministry of Justice stopped
providing information on Dui Hua’s list. And for
more than two years, Dui Hua’s website has been blocked.

However, this past year, Mr. Kamm found another
way, chiefly from local sources in various
provinces and municipalities to obtain prisoner
information. The Ministry of Foreign Affairs has
also begun to provide response to queries on lists of prisoners.

The latest information that Kamm has obtained
were on the June Fourth prisoners, that is,
prisoners who were sentenced for their
involvement in the Tiananmen protests in 1989
(that resulted in the deaths of thousands when
the People’s Liberation Army attacked the protesters).

"...there are about 20 prisoners still serving
sentences or otherwise detained at least in part
because of the spring 1989 protests,” said Kamm.
He said these prisoners were held in Beijing, but
that there may be others in the provinces.

Special pardons to mark the Beijing Olympic Games
or the 60th anniversary of the founding of the
PRC were granted to some by the provinces, but
not by Beijing. Some of those who benefited were
probably political prisoners: June Fourth
prisoners and a subgroup, the
"counterrevolutionary" prisoners who received
life sentences in the 1980s. Labor activist and
dissident Jiang Cunde is one of these sentenced
for counterrevolution; like many June Fourth
prisoners, Jiang suffers from mental illness.

Kamm said that what we would call "political" or
"religious" prisoners receive sentence reductions
of 50 percent lower rate than other prisoners.
These are prisoners who were sentenced for either
"endangering state security" (ESS) or accused of belonging to a cult.

"...in places like Tibet and Xinjiang, ESS
prisoners almost never receive sentence reduction
or parole. Even in the predominately Han
provinces, political prisoners are rarely granted clemency," said Kamm.

Activist lawyers licenses not renewed

There has been a change in the status of lawyers
towards more independence, according to Donald
Clarke, a specialist in Chinese law. In the past,
lawyers were treated as "state legal workers" but
now the regime regards them to be "simply
commercial suppliers of a service." However, the
shift does not mean lawyers can practice as they do in Western countries.

"[The state] exercises tight control over
lawyer’s association and imposes special duties
on lawyers to promote the state’s interest even
when it might be at the expense of their
clients," said Clarke. One well known example of
state interference in the normal relationship
between a defendant and counsel was a rule issued
regarding the 1989 Tiananmen protesters. It
directed the lawyer to pressure the defendant to
admit to the crime, for instance, of
"counter-revolutionary rebellion" and submit to the law.

More specifically, Clarke testified that the
conditions for lawyers who get involved in
"sensitive" cases, for example, Falun Gong,
Tibet, land takings, environmental protests, or
challenging directly or indirectly a leader, "has
worsened in the last six months."

Clarke described the suspension of the Beijing
law firm Yitong, which has taken on several
controversial cases, representing Hu Jia (the
HIV/AIDS activist) and Chen Guangcheng, the blind
self-trained lawyer, who exposed forced abortions
and illegal sterilizations in his native Shandong
province. Also, several Yitong lawyers challenged
the leadership of the Beijing Lawyers Association
(BLA). Some lawyers called for the direct election of the leaders of the BLA.

Yitong was shut down for six months, although it
managed to re-open last month with fewer lawyers
and its ability to function had “been greatly
impaired," said Clarke. The lesson drawn from
this punishment was undoubtedly not lost on
China’s potential activist lawyers, opined
Clarke. Several layers involved in the BLA
challenge, which failed, had their licenses to practice law taken away.

Very worrisome is the announcement last July by
the body in charge of licensing lawyers in
Beijing that 53 lawyers’ licenses were canceled
because they failed to register as members of the
Beijing Lawyers Association. Other pretexts were
also contrived to disbar lawyers on a large
scale. Prominent lawyers who lost their licenses
mentioned by Clarke were Jiang Tianyong, Li Heping and Teng Biao.

Lawyers may have to get approval to accept a
major or important case and are even told how to
handle it. In 2006, a nation-wide regulation was
issued that requires lawyers to report to local
authorities cases that are multi-party litigation
(cases with more than ten plaintiffs) and accept
the state guidance and supervision, said Clarke.

In 2008, dozens of lawyers volunteered to
represent plaintiffs in the Sanlu scandal
(melamine-tainted milk resulted in four
children’s deaths and over 50,000 suffering
kidney damage), but the state warned lawyers to
stay away from the case, according to Clarke.

China needs to enforce its many environmental laws and regulations

China’s communist leaders know that they have to
do something about China’s deplorable environment
because it is limiting opportunities for economic
growth, causing mounting health problems, and it
"has become one of the leading sources of social
unrest throughout the country," said Elizabeth
Economy, C.V. Starr Senior Fellow and Director
for Asia Studies, Council on Foreign Relations.

The worsening air and water pollution may explain
the dramatic increase in cancer victims --
roughly 20 percent since 2005, based on PRC
official statistics. "Over half of the country’s
population drinks contaminated water on a daily basis," said Economy.

The number of environmental protests exceeded
50,000 in 2005, according to Minister of
Environmental Protection, said Economy. “These
protests can range from 100 farmers blocking a
road to 30,000 protesting anew chemical factory
in Sichuan that would cause miscarriages of young
women in the villages," said Economy at the hearing.

Corruption is a big problem too. Media have
exposed local officials covering up serious
pollution problems by pressuring the courts,
press, and even hospitals so that the public
doesn’t hear about them. Additionally, "local
officials often divert environmental protection
funds." Economy cited an official report which
found that "fully half of the environmental funds
distributed from Beijing to local officials for
environmental protection made its way to projects
unrelated to the environment."

The Communist Party has allowed the emergence of
3,000 environmental non-government organizations
(NGOs) for their expertise and to bring
transparency to environmental problems. The media
too is sometimes allowed to a play a watchdog role.

However, "China’s leaders fear the potential that
the environment might become a lightning rod for
a broader push for political reform,” said
Economy. Therefore, these NGOs are subjected to
severe restrictions and are closely monitored.
Many of China’s prominent environmentalists are
being harassed and/or jailed, such as Wu Lihong,
Yu Xiaogang, and Tan Kai, to name three.

But China’s explanation is doubtful, according to
Dr. Bovingdon. He confirmed on the morning of the
hearing that major news websites in Xinjiang were
still not accessible after an elapse of more than
3 months. He asserted that this shutting down is
a violation of the Universal Declaration of Human Rights.

The Congressional-Executive Commission on China
was established in October 2001 with the
legislative mandate to monitor human rights and
the development of the rule of law in China. The
Commission is also tasked to maintain a database
of information on Chinese prisoners.
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