Notes to Section III--Access to Justice
\1\ Universal Declaration of Human Rights, adopted and proclaimed
by UN General Assembly resolution 217A (III) of 10 December 48, art. 8.
\2\ International Covenant on Civil and Political Rights, adopted
by UN General Assembly resolution 2200A (XXI) of 16 December 66, entry
into force 23 March 76, art. 2. China signed the ICCPR in 1998. The
Chinese Government has committed to ratifying the ICCPR and says it is
taking concrete steps to prepare for ratification. In November 2009, a
Joint Statement of the 12th EU-China Summit said, ``The EU welcomed
China's commitment to ratifying the [ICCPR] as soon as possible.''
Joint Statement of the 12th EU-China Summit, reprinted in China
Internet Information Center (Online), 30 November 09. In October 2009,
Ambassador Liu Zhenmin, China's Deputy Permanent Representative to the
United Nations, said, ``At present, legislative, judicial and
administrative reforms are under way in China with a view to aligning
our domestic legislation with the provisions of the [ICCPR] and paving
the way for its ratification.'' Permanent Mission of the People's
Republic of China to the UN (Online), ``Statement by H.E. Ambassador
Liu Zhenmin, Deputy Permanent Representative of China to the United
Nations, at the Third Committee of the 64th Session of the General
Assembly on the Implementation of Human Rights Instruments (Item
69A),'' 20 October 09. In its 2009-2010 National Human Rights Action
Plan issued in April 2009, the Chinese Government stated that the ICCPR
was one of the ``fundamental principles'' on which the plan was framed,
and that the government ``will continue legislative, judicial and
administrative reforms to make domestic laws better linked with this
Covenant, and prepare the ground for approval of the ICCPR.'' State
Council Information Office, National Human Rights Action Plan of China
(2009-2010), Xinhua (Online), 13 April 09, introduction, sec. V(1). In
February 2009, during the UN Human Rights Council's Universal Periodic
Review of the Chinese Government's human rights record, the Chinese
Government supported recommendations made by Member States that China
ratify the ICCPR. Chinese officials said China was in the process of
amending domestic laws, including the criminal procedure law and laws
relating to reeducation through labor, to make them compatible with the
ICCPR. UN GAOR, Hum. Rts. Coun., 11th Sess., Report of the Working
Group on the Universal Periodic Review--China, A/HRC/11/25, 3 March 09,
paras. 63, 114(1).
\3\ According to Article 41 of the PRC Constitution, ``Citizens
have the right to make to relevant state organs complaints and charges
against, or exposures of, violations of the law or dereliction of duty
by any state organ or functionary, but fabrication or distortion of
facts with the intention of libel or frame-up is prohibited. In case of
complaints, charges, or exposures made by citizens, the state organ
concerned must deal with them in a responsible manner after
ascertaining the facts. No one may suppress such complaints, charges,
and exposures, or retaliate against the citizens making them. Citizens
who have suffered losses through infringement of their civil rights by
any state organ or functionary have the right to compensation in
accordance with the law.'' PRC Constitution, adopted 4 December 82,
amended 12 April 88, 29 March 93, 15 March 99, 14 March 04, art. 41.
\4\ For more information on Chinese human rights lawyers and
defenders in China, see Bureau of Democracy, Human Rights, and Labor,
U.S. Department of State, Country Report on Human Rights Practices--
2009, China (includes Tibet, Hong Kong, and Macau), 25 February 09;
Chinese Human Rights Defenders (Online), ``Annual Report on the
Situation of Human Rights Defenders in China (2009),'' 25 April 10.
\5\ Jamil Anderlini, ``Punished Supplicants,'' Financial Times
(Online), 5 March 09; Human Rights Watch (Online), ``An Alleyway in
Hell,'' 12 November 09, 3; Foster Klug, ``Rights Group Claims Chinese
Abuse of Critics,'' Associated Press (Online), 21 January 10.
\6\ See, e.g., ``Impartial Administration of Justice Is the Tool
for Maintaining Rights and Stability'' [Gongzheng de sifa cai shi
weiquan he weiwen de liqi], Southern Metropolitan Daily (Online), 24
May 10.
\7\ Supreme People's Court, Opinion on Protecting the Procedural
Rights of Administrative Litigants [Guanyu yifa baohu xingzheng susong
dangshiren suquan de yijian], issued 9 November 09.
\8\ You Wei, ``Courts Are Reluctant To Accept Difficulties of
`Citizens Sue Officials' Cases'' [Fayuan bu yuan shouli ``min gao
guan'' de kuzhong], Legal Daily (Online), 25 May 10; ``Supreme People's
Court Requests Resolutely Resisting and Eliminating `Local Policies' of
Administrative Litigation'' [Zuigao fayuan yaoqiu jianjue dizhi he
qingchu xingzheng susong shou an ``tu zhengce''], Xinhua (Online), 22
May 10.
\9\ ``Impartial Administration of Justice Is the Tool for
Maintaining Rights and Stability'' [Gongzheng de sifa cai shi weiquan
he weiwen de liqi], Southern Metropolitan Daily (Online), 24 May 10.
\10\ Ibid.
\11\ Chen Fei, ``Administrative Reconsideration Law Revisions To Be
Included in the State Council Legislative Agenda; Legislative Affairs
Office Provides Detailed Explanation'' [Xingzheng fuyi fa xiugai lie ru
guowuyuan lifa jihua fazhi ban xiangjie], Xinhua (Online), 10 June 10.
\12\ PRC Administrative Reconsideration Law, enacted 29 April 99,
effective 1 October 99, arts. 6, 14. The Chinese administrative law
system speaks in terms of ``concrete'' acts, which refer to actions by
a government official or agency against a specific target with regard
to a specific matter. ``Abstract'' acts refer to universally binding
documents issued by administrative agencies to regulate behavior.
\13\ Li Li, ``Revisions to the Administrative Review Law Are Bound
To Expand the Scope of Cases Accepted'' [Xiugai hang zheng fuyi fa shou
an fanwei shibi kuoda], Legal Daily (Online), 29 June 10.
\14\ Chen Fei, ``Administrative Reconsideration Law Revisions To Be
Included in the State Council Legislative Agenda; Legislative Affairs
Office Provides Detailed Explanation'' [Xingzheng fuyi fa xiugai lie ru
guowuyuan lifa jihua fazhi ban xiangjie], Xinhua (Online), 10 June 10.
\15\ PRC State Compensation Law, enacted 12 May 94, effective 1
January 95, amended 29 April 10, effective 1 December 10; ``China
Adopts Amended State Liability Compensation Law,'' Xinhua (Online), 29
April 10.
\16\ Chinese Human Rights Defenders (Online), ``China Human Rights
Briefing April 27-May 3, 2010,'' 4 May 10; PRC State Compensation Law,
enacted 12 May 94, effective 1 January 95, amended 29 April 10,
effective 1 December 10; ``China Adopts Amended State Liability
Compensation Law,'' Xinhua (Online), 29 April 10.
\17\ PRC State Compensation Law, enacted 12 May 94, effective 1
January 95, amended 29 April 10, effective 1 December 10, arts. 3(3),
26, 35.
\18\ Cheng Zhuo and Li Huizi, ``China Adopts Amended State
Compensation Law To Better Protect Human Rights,'' Xinhua (Online), 30
April 10; ``Interpretation of the Amended Law on State Compensation''
[Jiedu xiuzheng hou de guojia peichang fa], Xinhua (Online), 30 April
10.
\19\ Du Ming, ``Let the Saying `The State Compensation Law Is the
Non-Compensation Law' End Here'' [Rang ``guojia peichangfa shi bu pei
fa'' de shuofa congci xiaoshi], Legal Daily (Online), 3 May 10; Cary
Huang, ``Controversial Compensation Law on Detainees Approved,'' South
China Morning Post (Online), 30 April 10.
\20\ According to the Supreme People's Court's ``2009 National
Court Statistics on the Circumstances of State Compensation Cases,''
there were a total of 1,531 compensation cases accepted and 450 cases
received compensation. Supreme People's Court, 2009 National Court
Statistics on the Circumstances of State Compensation Cases, 8 April
10.
\21\ ``From Psychological Comfort to Psychological Compensation''
[Cong jingshen fuwei kaishi, xiang jingshen peichang nuli], Southern
Metropolis Daily (Online), 30 April 10.
\22\ Cary Huang, ``Controversial Compensation Law on Detainees
Approved,'' South China Morning Post (Online), 30 April 10; ``Law
Revision Falls Short,'' China Daily (Online), 30 April 10.
\23\ PRC Administrative Supervision Law, enacted and effective 9
May 97, amended 25 June 10, effective 1 October 10; ``China's
Amendments Will Increase Power of Administrative Supervision; New Law
To Be Implemented on October 1'' [Zhongguo xiufa jia da xingzheng
jiancha lidu xinfa jiang yu 10 yue 1 ri shixing], Xinhua (Online), 25
June 10.
\24\ ``China Mulls Law To Increase Protection of Informants,''
Xinhua (Online), 22 June 10.
\25\ ``SPP Documents Show 70% of Complainants Have Suffered
Retaliation'' [Zuigao jian cailiao xianshi 70% jubao zhe ceng zao daji
baofu], People's Daily (Online), 19 June 10.
\26\ Zhao Yanrong, ``More Mediation Offices Coming,'' China Daily
(Online), 31 March 10; Ma Limin, ``Sichuan: `Great Mediation' Allows
Society To Be More Harmonious'' [Sichuan:``da tiaojie'' rang shehui
gengjia hexie], Legal Daily (Online), 22 March 10; ``NPC Standing
Committee Reviews Many Laws'' [Quanguo renda changwei hui shenyi duo bu
falu an], Xinhua, reprinted in Global Times (Online), 22 June 10.
\27\ ``Role of Mediation,'' China Daily (Online), 30 August 10;
Chen Fei et al., ``People's Courts Strengthen Mediation for `Litigation
Explosion' '' [Renmin fayuan jiaqiang tiaojie yingdui ``susong
baozha''], China Internet Information Center (Online), 12 March 10.
\28\ Dengjun Ming and Xie Mu, ``Construction of the `Great
Mediation' System To Promote Three Key Tasks'' [Goujian ``da tiaojie''
zhidu tuijin san xiang zhongdian gongzuo], Court News Network (Online),
12 June 10.
\29\ ``Bright Spots Frequently Appear in People's Mediation Law''
[Renmin tiaojie fa liangdian pinxian], Legal Daily (Online), 30 August
10; Guo Xiaoyu, ``Milestone in the Development of the Mediation
System'' [Renmin tiaojie zhidu fazhan de lichengbei], Legal Daily
(Online), 6 September 10.
\30\ Zhou Yingfeng et al., ``China Will Pass Legislation To Improve
People's Mediation System To Build `First Line of Defense' in Stability
Maintenance'' [Woguo jiang lifa wanshan renmin tiaojie zhidu gouzhu wei
wen ``di yi dao fangxian''], Xinhua (Online), 22 June 10.
\31\ Pei Zhiyong, ``Harmony Valued, Mediation First--Sichuan
Completes Building of `Great Mediation' Work System'' [He wei gui diao
wei xian sichuan quanmian goujian ``da tiaojie'' gongzuo tixi],
People's Daily (Online), 23 March 10.
\32\ ``Zhou Yongkang: Firmly Grasp the Full Services of Three Key
Economic and Social Development Work'' [Zhou yongkang: renzhen zhua hao
san xiang zhongdian gongzuo quanli fuwu jingji shehui fazhan], Xinhua
(Online), 6 January 10.
\33\ ``NPC Standing Committee Reviews Many Laws'' [Quanguo renda
changwei hui shenyi duo bu falu'an], Global Times (Online), 22 June 10.
\34\ Wang Doudou, ``Mediation Law Allows `Flowers of the Orient' To
Deliver More Gorgeous Bloom'' [Renmin tiaojie fa rang ``dongfang zhi
hua'' gengjia xuanlan zhan fang], Legal Daily (Online), 29 August 10;
``Chinese Legislature Passes People's Mediation Law,'' Xinhua (Online),
29 August 10.
\35\ Zhu Zhe and Lan Tian, ``Mediation Draft Law Could Ease
Tension,'' China Daily (Online), 23 June 10.
\36\ ``Chinese Legislature Passes People's Mediation Law,'' Xinhua
(Online), 29 August 10.
\37\ Ibid.; PRC Mediation Law, enacted 28 August 09, effective 1
January 10, arts. 8, 9.
\38\ PRC Mediation Law, enacted 28 August 09, effective 1 January
10, art. 13.
\39\ Ibid., art. 14.
\40\ Ibid.
\41\ Ibid.
\42\ Ananth Krishnan, ``China Passes Mediation Law To Aid Strained
Judiciary,'' The Hindu (Online), 30 August 10.
\43\ Li Gang, ``Courts Can `Mediate,' but Enforcement Is Another
Matter'' [Fayuan ``tiaojie'' rongyi zhixing nan], Beijing Youth Daily
(Online), 7 July 10.
\44\ Marianne Barriaux, ``China's Human Rights Lawyers Face Uphill
Struggle,'' Agence France-Presse (Online), 11 May 10. For additional
examples of the ``clampdown'' on lawyers and activists, see the
following sources: Chinese Human Rights Defenders (Online), ``China
Human Rights Briefing May 25-31, 2010,'' 31 May 10; ``Tang Jitian Meets
With U.S. Officials To Talk About Human Rights and Religion; Lawyer Li
Xiongbing Not Allowed To Leave Home'' [Tang jitian tan jian mei
guanyuan tan renquan zongjiao li xiongbing lushi bei jinzhi chumen],
Radio Free Asia (Online), 25 May 10.
\45\ Andrew Jacobs, ``Chinese Activist Surfaces After a Year in
Custody,'' New York Times (Online), 28 March 10; Chris Buckley and
Bejamin Kang Lim, ``Well-Known Missing Chinese Rights Lawyer Alive,''
Reuters (Online), 28 March 10.
\46\ After his reported release in late March, Gao spoke with
Western media outlets. Chris Buckley and Benjamin Kang Lim, ``Well-
Known Missing Chinese Rights Lawyer Alive,'' Reuters (Online), 29 March
10; Andrew Jacobs, ``Chinese Activist Surfaces After a Year in
Custody,'' New York Times (Online), 28 March 10; ``Missing Lawyer Says
He Is in Northern China,'' Associated Press (Online), 28 March 10.
\47\ Michael Wines, ``Chinese Rights Lawyer Disappears Again,'' New
York Times (Online), 30 April 10; Michael Wines, ``Chinese Rights
Lawyer Disappears After Release,'' New York Times (Online), 14 April
10.
\48\ Jerome A. Cohen and Beth Schwanke, ``The Silencing of Gao
Zhisheng,'' Wall Street Journal (Online), 31 May 10.
\49\ ``Law Firm That Defends Dissenters To Be Closed, Say
Activists,'' Agence France-Presse, reprinted in South China Morning
Post (Online), 22 February 09; Lei Huo, Chinese Human Rights Defenders
(Online), ``When Does `Suspension for Rectification' End for Beijing
Law Firm'' [Beijing yitong lushishiwusuo ``tingye zhengdun'' heshi
liao], 2 February 10; ``Yitong Law Firm Begins Its Six-Month Reform,
Who Will Protect the Interests of the Clients/ '' [Yitong kaishi tingye
zhengdun liu ge yue lushi bei zheng dangshi ren liyi shui lai weihu?],
Radio Free Asia (Online), 19 March 09.
\50\ Xia Yu, Chinese Human Rights Defenders (Online),
``Administrative Officials Secretly Order Landlord Not To Renew
Contract, Drawing Beijing's Anhui Law Firm Into Hopeless Situation''
[Xingzheng ganyu miling fang zhu bu xuyue, beijing anhui lushi shiwusuo
xianru juejing], 25 March 10.
\51\ Raymond Li, ``Lawyer Recovers From Setback in Women's
Rights,'' South China Morning Post (Online), 6 June 10.
\52\ Edward Wong, ``AIDS Activist Leaves China After Government
Pressure,'' New York Times (Online), 10 May 10.
\53\ Amnesty International (Online), ``Chinese Activists Under
Threat After Obama Visit,'' 20 November 09.
\54\ China Human Rights Lawyers Concern Group (Online), ``Beijing
Human Rights Lawyer Jiang Tianyong Illegally Taken Away by Public
Security Officers,'' 11 November 09; Julia Duin, ``China Holds Lawyer
Who Tried To See Obama,'' Washington Times (Online), 24 November 09.
\55\ Amnesty International (Online), ``Chinese Activists Under
Threat After Obama Visit,'' 20 November 09.
\56\ `` `Fuzhou Internet Users' Defamation Case' Lawyer's Law Firm
Closed Down Because of Director's Suspended License'' [``Fuzhou wangmin
feibang an'' daili lu suo zao jiesan bei tingye lushi ceng shi lu guan
chu zhang], Southern Weekend (Online), 28 April 10; China Human Rights
Lawyers Concern Group (Online), ``Fujian Lawyer Lin Hongnan and His Law
Firm Punished; Retaliation for Taking Up the `Three Fuzhou Netizens'
Case,'' 3 May 10.
\57\ Li Bao, ``Fujian Court Opens Second Instance Trial in
Defamation Case Against Fujian Netizens'' [Fujian kaiting ershen
wangyou feibang an], Voice of America (Online), 13 June 10.
\58\ Chinese Human Rights Defenders (Online), ``Lawyers Meet With
Wang Yonghang; Family Calls for End to Persecution'' [Lushi huijian
wang yonghang jiashu xu tingzhi pohai], 18 January 10; Chinese Human
Rights Defenders (Online), ``China Human Rights Briefing January 14-22,
2010,'' 27 January 10.
\59\ ChinaAid (Online), ``Human Rights Lawyer Banned From Entering
Linfen Court, Barred From Travel,'' 13 July 10; ``Christians Come Under
Attack in China,'' Toronto Star (Online), 7 August 10.
\60\ Ibid.
\61\ ChinaAid (Online), ``U.S. Ambassador Meets With Chinese Rights
Lawyer Zhang Kai Following Ban,'' 20 July 10.
\62\ ChinaAid (Online), ``Human Rights Lawyer Banned From Entering
Linfen Court, Barred From Travel,'' 13 July 10. For more information on
the Linfen-Fushan Church raid, see Section II--Freedom of Religion.
\63\ Ibid.
\64\ China Human Rights Lawyers Concern Group (Online), ``Online
Petition: Support Human Rights Lawyers Who Failed the `Annual
Assessment and Registration,' '' 24 July 09; ``Lawyers' Licenses
Withheld,'' Radio Free Asia (Online), 18 July 10; CECC, 2009 Annual
Report, 10 October 09, 234.
\65\ CECC, 2009 Annual Report, 10 October 09, 234; China Human
Rights Lawyers Concern Group (Online), ``Online Petition: Support Human
Rights Lawyers Who Failed the `Annual Assessment and Registration,' ''
24 July 09; China Human Rights Lawyers Concern Group (Online),
``Concern Over Human Rights Lawyers Snatched of Their Legal Practice
Qualification, Demand Scrapping the Annual Inspection and Annual
Registration System,'' 16 July 10.
\66\ China Human Rights Lawyers Concern Group (Online), ``Concern
Over Human Rights Lawyers Snatched of Their Legal Practice
Qualification, Demand Scrapping the Annual Inspection and Annual
Registration System,'' 16 July 10; ``Lawyers' Licenses Withheld,''
Radio Free Asia (Online), 18 July 10.
\67\ ``Lawyers' Licenses Withheld,'' Radio Free Asia (Online), 18
July 10.
\68\ Ibid.
\69\ Beijing Bureau of Justice, Administrative Penalty Decision--
Beijing Bureau Penalty Decision [2010] No. 2 [Xingzheng chufa jueding
shu jingsi fajue (2010) 2 hao], issued 30 April 10; Beijing Bureau of
Justice, Administrative Penalty Decision--Beijing Bureau Penalty
Decision [2010] No. 3 [Xingzheng chufa jueding shu jingsi fajue (2010)
3 hao], issued 30 April 10; Human Rights in China (Online), ``Beijing
Judicial Bureau Revokes Licenses of Two Rights Defense Lawyers,'' 7 May
10; Lucy Hornby, ``China Disbars Two Rights Defense Lawyers,'' Reuters
(Online), 9 May 10.
\70\ Human Rights in China (Online), ``Lawyers Facing License
Revocation Detail Irregular Courtroom Activities Permitted by Judge,''
20 April 10.
\71\ Edward Wong, ``2 Chinese Lawyers Are Facing Disbarment for
Defending Falun Gong,'' New York Times (Online), 21 April 10.
\72\ For commentary on the two measures, see ``Ministry of Justice
Issues Two Measures To Strengthen the Supervision of Law Firms and
Lawyers' Activities'' [Sifabu chutai liang banfa jiaqiang dui lushi
lusuo zhiye huodong jiandu], Legal Daily, reprinted in Xinhua (Online),
9 April 10; Measures for the Annual Inspection and Evaluation of Law
Firms [Lushi shiwu suo niandu jiancha kaohe banfa], issued 7 April 10,
effective 9 April 10; Measures on Punishing Illegal Acts of Lawyers and
Law Firms [Lushi he lushi shiwu suo weifa xingwei chufa banfa], adopted
7 April 10, effective 1 June 10.
\73\ ``Ministry of Justice Department of Lawyers and Public
Notaries Spokesperson Answers Questions on the Revised `Measures on
Punishing Illegal Acts of Lawyers and Law Firms' '' [Sifa bu lushi
gongzheng si fuze ren jiu xiuding hou de ``lushi he lushi shiwu suo
weifa xingwei chufa banfa'' da jizhe wen], Legal Daily (Online), 5
April 10.
\74\ Chinese Human Rights Defenders, ``China Human Rights Briefing
April 7-12, 2010,'' reprinted in Amnesty International UK--Blogs
(Online), 14 August 10.
\75\ Cara Anna, ``2 China Lawyers Who Defended Falun Gong Face
Ban,'' Associated Press, reprinted in Seattle Times (Online), 21 April
10.
\76\ Carl Minzner, ``Xinfang: An Alternative to Formal Chinese
Legal Institutions,'' 42 Stanford Journal of International Law 103,
104-06, 116-17 (2006). Since the founding of the People's Republic of
China, the xinfang system, in theory, has ideally functioned to enhance
relations among the Communist Party, the government, and the people.
Sun Weiben ed., PRC Administrative Management Encyclopedia [Zhonghua
renmin gongheguo xingzheng guanli dacidian], (Beijing: Renmin Ribao
Chubanshe, 1992), 329. The practice of submitting grievances to local
authorities has existed in China since imperial times. Carl Minzner,
``Xinfang: An Alternative to Formal Chinese Legal Institutions,'' 41
Stanford Journal of International Law 103, 111-120 (2006).
\77\ According to Article 41 of the PRC Constitution, ``Citizens
have the right to make to relevant state organs complaints and charges
against, or exposures of, violations of the law or dereliction of duty
by any state organ or functionary, but fabrication or distortion of
facts with the intention of libel or frame-up is prohibited. In case of
complaints, charges, or exposures made by citizens, the state organ
concerned must deal with them in a responsible manner after
ascertaining the facts. No one may suppress such complaints, charges,
and exposures, or retaliate against the citizens making them. Citizens
who have suffered losses through infringement of their civil rights by
any state organ or functionary have the right to compensation in
accordance with the law.'' PRC Constitution, adopted 4 December 82,
amended 12 April 88, 29 March 93, 15 March 99, 14 March 04, art. 41.
The right is also protected by the more recent 2005 National
Regulations on Letters and Visits. Regulations on Letters and Visits
[Xinfang tiaoli], issued 5 January 05, effective 1 May 05, arts. 1, 3.
\78\ Carl Minzner, ``Xinfang: An Alternative to Formal Chinese
Legal Institutions,'' 42 Stanford Journal of International Law 103, 107
(2006).
\79\ Regulations on Letters and Visits [Xinfang tiaoli], issued 5
January 05, effective 1 May 05, arts. 9-13, 15; Sun Weiben ed., PRC
Administrative Management Encyclopedia [Zhonghua renmin gongheguo
xingzheng guanli dacidian], (Beijing: Renmin Ribao Chubanshe, 1992),
257; Human Rights Watch (Online), `` `We Could Disappear at Any Time':
Retaliation and Abuses Against Chinese Petitioners,'' December 2005,
17-18.
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