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Message from the Executive Director

April 23, 2009

Over the past three decades, China has made clear progress towards building a rule of law, including extensive legislative reforms and adoption of a human rights provision in the Chinese Constitution. It has also engaged in international human rights processes with growing sophistication and impact. Despite these positive domestic developments and active international engagement, however, serious implementation challenges persist in bridging the gap between law on the books and law in practice. This issue of the China Rights Forum examines some of these challenges and greatly benefits from the deep insights and editorial contributions of Professor Fu Hualing, a leading Chinese legal scholar.

Section One: “Asking the Tiger for its Skin”? focuses on the struggles of activist lawyers for greater professional autonomy and democratic rule of law. Jerome Cohen recounts the compelling story of a courageous group of Beijing lawyers that called for direct elections for the state-controlled Beijing Lawyers Association. The authorities responded with a “Stern Statement,” pressured firms to dismiss their lawyers, and ordered a six-month shutdown of one law firm, Yitong, also profiled in this issue. Li Fangping describes the election procedural irregularities during the 2008 annual congress of the state-controlled All China Lawyers Association (ACLA). In a detailed personal account of his kidnapping and abuse by the police in March 2008, Teng Biao expresses sympathy for his interrogators and a firm commitment to continue to fight for the rights of others, even those who keep silent out of fear or apathy. Zan Aizong engages in a wide-ranging interview with lawyer Tang Jingling on his activist citizens’ rights defense experience, and discussion of his principles of freedom and vision of citizens’ non-cooperation.

Section Two: Criminal and Administrative (In)justice offers a window into a crisis of the judicial system embedded in the structural obstacles posed by the criminal and administrative detention systems, and even in reported reforms. Fu Hualing discusses the implications of the abolition of Reeducation-Through-Labor (“RTL”) for its traditional targets, with sobering observations of what it would mean for political and religious offenders. Eva Pils examines the infamous case of Yang Jia, who was tried and executed after killing six police officers and wounding several others. Yang Jia’s trial, appeal, and execution generated enormous public response, including strong support for Yang Jia, celebrated in verse as a martyr and a hero, exposing a deep anger at police brutality, “criminal injustice,” and the highly questionable practices on the part of the prosecution reported in the case. Elizabeth Lynch outlines a U.S.-Asia Law Institute empirical study on plea bargaining in the Chinese criminal justice system that concludes that, while efficiency might be enhanced, simplified procedures similar to plea bargaining might not be delivering on the fairness and protection of defendants’ rights.

Section Three: Human Rights and Government Accountability addresses subsistence and other human rights of China’s most vulnerable groups—peasants, workers—and examines government accountability both domestically and internationally. In the first of a three-part series on land rights and social stability—one of the most critical issues of China today—He Qinglian examines the Gordian knot that the government faces in its attempt to solve the problem of subsistence for the country’s 940million rural inhabitants. Qin Hui argues that mainstream interpretations of China—the “China myth” and “China’s coming collapse,” and the so-called “Beijing Consensus”—are all seriously flawed. He concludes that China’s true “competitive advantage” lies in its “low human rights” resulting from the collusion between government, officials, and business interests to suppress workers and peasants, attract investment, and export cheap goods. Margaret Lewis argues that in order to understand the development of the rule of law in China, it is important also to take stock of how domestic legal developments are intertwined with events outside China’s borders. She examines China’s participation in international efforts to combat corruption as both cautionary tale and as potential source of domestic reforms.

Finally, Section Four: Open Government Information: Double-Edged Sword? looks at the much-touted OGI regulations that purport to make more information available to the public. Professor Fu Hualing focuses on the new Regulations on Open Government Information and identifies three obstacles, including significant legal, political, and cultural barriers, to their effective implementation. He concludes that, like the rule of law in general, the OGI regulations are a double-edged sword; although the government may be willing to publicize information regarding bread-and-butter issues for ordinary people, Professor Fu questions whether it is ready to make public the “real” operation of the political system and the dirty laundry of government officials.

While recognizing the high human costs of the struggles to build a legal system that respects human rights, the majority of the contributors also express hope inherent in the growing civil society—the grassroots activists, lawyers, journalists and writers, and independent intellectuals pressing for greater democracy, accountability, and social justice. The many references by Chinese activists and lawyers to other international social justice movements such as the Mothers of the Plaza de Mayo (Association Madres de Plaza de Mayo) of Argentina, Gandhi’s non-violence, and the Civil Rights Movement in the U.S., are powerful reminders of the universality of these struggles for human dignity and human rights.

Sharon Hom
Executive Director, Human Rights in China
March 2009

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