New Regulations on Discipline from CCP's Central Commission for Discipline Inspection

By Jerome A. Cohen

The new regulations on discipline from the CCP's Central Commission for Discipline Inspection are fascinating and worthy of serious research. How are targets of discipline selected? Is the clause on prohibited reading merely used as an add-on in cases where other charges are brought or is it sometimes applied independently? What procedures apply and how is evidence introduced and evaluated? What Communist Party and administrative sanctions are applied in what circumstances? To what extent does the CCDI system send cases to the courts for criminal punishments? To what extent does the CCDI system influence the handling of such criminal cases by the police, the procuracy and the courts?

I believe that, under the awning of the National Supervisory Commission, certain non-Party members are also subject to these strictures if they are government officials of one kind or other. Is there anyone out there who knows and is free to tell us? It must be a matter of considerable interest to the millions who are subject to this discipline. 

Remembering Professor Jiang Ping

By Jerome A. Cohen

Like so many, I admired Professor Jiang Ping, and we seemed to have a special bond even though we seldom actually got together. It seemed to be based on our similar ages and our mutual concern for China’s legal profession. In many ways he was a courageous person as well as an influential developer of China’s civil law. 

I greatly respected his decision to return to China despite June 4th, which occurred while he was abroad, in Hawaii, I believe. He was always supportive of attempts to defend the PRC’s criminal defense lawyers, and I liked his ability to retain his sense of humor in difficult circumstances. He made a great impact on my class when I invited him down to lecture at NYU while he was visiting at Columbia. His career encapsulated the PRC’s legal progress and problems from the early 1950s.

Even in death the Party seeks to benefit from Professor Jiang Ping and keep him under control. As experience in China has shown, funerals can sometimes provide the single spark that lights a prairie fire. Both the Supreme Court and the Supreme Procuracy sent tributes. I didn’t see anything from China’s lawyers association but there may well have been, if only discreetly. I hope someone will analyze the symbolism and significance of this occasion. 

The New Amendments to the PRC's Counter-Espionage Law

The first thing to keep in mind about the amendments to the counter-espionage law – and any law in the PRC – is that the secret police are free to ignore it when they deem it desirable to do so. Despite their actions cloaked in secrecy, many cases of lawless action eventually become known to the public and to foreigners, as recent cases again illustrate.

It is encouraging to see that the forthcoming law will be amended to protect “individuals”, i.e., including foreigners, rather than only “citizens”. But no one should be foolish enough to rely on the paper protections of human rights in this legislation or the PRC’s other provisions relating to criminal justice.

Second, speculation about how the vague terms in the amended law will actually be interpreted and applied should await promulgation of a new set of Detailed Implementing Rules as well as regional and local regulations.

Third, it is unclear which of the relevant legal institutions will exercise the most power over enforcement of the law. Surely it will not be the courts. Will it be the local Communist Party Political-Legal Committee? The organs of the Ministry of State Security? Or the recently-established National Supervisory Commission and its agents? And how meaningful is it to state that espionage cases are subject to law when the Criminal Procedure Law allows criminal investigators to detain a suspect incommunicado for six months before a decision is made to initiate conventional criminal procedures and when in espionage cases those procedures are applied in blatant denial of basic due process rights?

The anticipated amendments to the espionage law add to the already breathtaking breadth of its provisions. Acts of espionage will now include “seeking to align with an espionage organization and its agents”. The new law will protect not only state secrets and intelligence but all “other documents, data, statistics, materials and other items related to national security”. And officials are admonished, of course, to take “a holistic view of national security” in applying the terms of the law.

The new law will also proscribe espionage in China that targets a third country and will punish PRC nationals who while abroad allow themselves to be used by an espionage organization.

The Danger of Escalation in Ukraine

By Jerome A. Cohen

After a largely sleepless night worrying about what China ought to be doing to try to end the tragic and increasingly dangerous crisis over Ukraine, I awoke to this impressive warning by Ashford and Shifrinson that outlines the many possibilities for the current conflict quickly developing into World War III. I hope that elites in all relevant countries give it a careful reading. Yet it is curious that the authors make little mention of the possible role of China in extinguishing the fire.

Thus far Ukraine has cast Xi Jinping and his government in a very poor light. Have they been disingenuous in portraying their relations with Putin and his government on the eve of invasion? Were they duped? Did Xi Jinping know more about Putin’s plans and agree to more than he shared with even his own foreign minister? Since the war’s outbreak, the PRC has resembled the proverbial deer caught in the headlights, bobbing, weaving and waffling unpersuasively in an attempt to cope with multiple pressures. It is time now for it to adopt a bold, statesmanlike position and vigorously pursue the role of mediator to which it has made occasional vague reference. China has much to gain from such an effort even if mediation were to fail.

Successful mediation will not be easy, even first to achieve an effective ceasefire throughout Ukraine. Settlement terms will be harder to come by but should be achievable with the cooperation of the Western powers. For example, Ukraine could become, at least for the foreseeable future, the Switzerland of Eastern Europe. Zelensky and his government should remain in place and independent but commit to abstaining from NATO. They should also recognize the loss of Crimea and provide for a special autonomous regime within Ukraine for the two eastern provinces. Such distasteful concessions should make it possible for Russia to accept the humiliating failure of its disastrous policy. Western sanctions would obviously be diminished in accordance with progress made in implementing the terms of settlement.

China’s serious efforts to help end the war would have benefits that extend far beyond the Ukraine crisis. They could moderate the present extremely negative Western perceptions of the PRC and its policies at home and abroad and make it easier for the Biden administration and other governments to initiate measures to improve relations with Beijing despite strong domestic anti-PRC pressures. If Beijing fails to do more than unimpressively dither over Ukraine, the situation in Asia is likely to worsen as many major powers take steps to further bolster Taiwan against the PRC’s threats to use force to overwhelm the island’s admirable democracy.

Wang Yi and PRC "mediation" if "necessary"

By Jerome A. Cohen

I think PRC mediation is urgently “necessary” now from China’s perspective as well as those of the combatants. China’s international standing has been badly damaged by its appearance as a silent partner in Russia’s war. If China could now emerge as a successful mediator – a very tall order in the circumstances – it could establish a new and more positive image in the world. Blessed are the peacemakers! Both the Chinese language and Western languages endorse the wisdom of seeking to turn a vice into a virtue. Even a good faith mediation effort that failed would improve the PRC’s status.

But what is “mediation”? The term embraces a multitude of possible roles. Certainly there is no need for a third party merely to pass messages back and forth between the combatants since they have proved capable of conducting direct discussions. At the other end of the mediation spectrum, this is not a situation where the third party can exercise irresistible pressures upon the combatants to accept its proposed terms of settlement. Yet Russia’s need for PRC support to resist the impact of international sanctions gives Beijing considerable sway over the outcome if it chooses to act strongly despite the sensitivity of their “rock solid” relations.

The challenge, of course, is to find a plausible basis for settlement that will give sufficient “face” to Russia’s withdrawal without detracting from Ukraine’s earned respect for its independence and the Western world’s massive rejection of wars of aggression.

The problem now is not to avoid revival of the Cold War, since the Cold War is plainly already revived. The problem is how to end a Hot War that can become a broad catastrophe if mishandled.

Lao Dongyan's Essay on Facing the Real World

By Jerome A. Cohen

Here is an extraordinary essay that was shared before it was quickly removed from WeChat (translated by David Cowhig). It’s a good thing it’s so long. Otherwise it would not have lasted two hours! Many China-watchers will find it a worthy read. It is, of course, the seldom-published weeping of many law professors whose voices have been silenced, not only at one of China’s major law schools – Tsinghua. I wonder whether Professor Lao, a younger scholar whom I did not know during my 2002-3-4-5 autumn semesters teaching there, will now suffer the fate of her former colleague, the ex-communicated, shunned and impoverished Professor Xu Zhangrun, who is being quietly and informally but severely punished for his brilliant and courageous critiques of Xi Jinping’s repression.

This essay is not only about the plight of legal scholars, lawyers, free speech and the abuse of criminal justice. It is a Chinese intellectual’s effort to confront contemporary life. It is also a meditation on arriving at middle age (recall the PRC movie from the early post-1979 era “Ren Dao Zhongnian”) and on the responsibilities of raising children to cope with the contradictions of China’s present political, social and economic environment. Professor Lao offers many admirable sentences, and I like her concluding quotation of J.K.Rowling’s speech to Harvard graduates, which urges a path that we all might well follow.

Is there a quiet pre-Olympics crackdown on human rights lawyers?

By Jerome A. Cohen

I was tempted not to post this report of the official disappearance of another human rights lawyer, since events like this occur so often perhaps they no longer constitute “news” and attract public interest. Yet some observers believe that a special, below-the-radar effort may have begun to prevent the PRC’s continuing harsh repression from being exposed to the media as the Winter Olympics approaches. The long-anticipated last month “trial” of the well-respected and long-confined lawyer-activists Xu Zhiyong and Ding Jiaxi may have been postponed until after the Olympics or after the 20th Party Congress at year’s end (or even the 2049 100thanniversary of the PRC’s establishment!). There has been much PRC silence about many other long-pending cases. This week’s detention of lawyer Xie Yang may be designed “merely” to remove him from society until after the Games or, unlike his previous detentions, he may this time be permanently lost to life like the famous human rights lawyer Gao Zhisheng who, after repeated formal imprisonments failed to halt his protests, has simply not been heard about for several years. Like many, Gao is a victim not of Xi Jinping’s vaunted “rule by law” but of lawlessness. What should the International Olympics Committee be doing in response to this situation? The Amnesty report cited here is especially worth reading.

A Tribute to Jonathan Spence

By Jerome A. Cohen

As the significant and widespread obituaries demonstrate, all who knew Jonathan Spence or read his work will greatly miss him and his contributions. I always felt an especial admiration for him because of his appreciation of the importance of China’s traditional legal system and his encouragement of budding historians to pursue this often neglected aspect of the country’s development. In recalling the many splendid books that Jonathan produced, the obituaries that I have seen failed to mention one early work that is worthy of current attention: “The Death of Woman Wang.” Below is my 1978 review for the New York Times Book Review.


A Local History: Review of "The Death of Woman Wang" by Jonathan Spence

CHINA remains a rural nation. Well over 700 million of its almost one billion people live in the countryside. Mao Tse‐tung's genius lay in recognizing that the Chinese revolution's success would turn on the ability to mobilize and transform the peasants. Is the People's Republic succeeding in this Promethean effort?

Foreign observers can form only the most tentative appraisals. Denied sustained and free access to China's million villages, they combine fleeting personal impressions with inferences drawn from publications, radio broadcasts, refugee interviews and other sources. Visitors to communes frequently long to know what really takes place there. What do people actually think? Moreover, the problems of penetrating rural life are not only political but cultural as well, inhibiting the understanding of urban Chinese, not to mention foreigners.

During the century before the triumph of Communism in 1949 foreigners enjoyed expanding access to the Chinese countryside. The accounts of missionaries, traders, travelers, novelists and, eventually, scholars — Chinese and foreign — taught us much about at least some places. K. C. Hsiao's “Rural China in the Nineteenth Century” offered as masterful a set of generalizations as could be made about the vast and varied land.

Yet even then, China was a society in transition. To discern the impact on rural life, first of internal disintegration and imperialist intervention and then of Communist revolution, one has to establish a baseline prior to the changes that the 19th century brought with increasingly bewildering speed. Describing political, social and economic conditions in the hinterland in the pre‐modern era, however, is even more formidable a task than depicting the contemporary situation. One cannot visit the past, and there are no daily newspapers or broadcasts to monitor or refugees to interview. Nevertheless, sources can be found, and Jonathan Spence, a distinguished Yale historian, has skillfully interwoven three — a local history, a magistrate's handbook and a collection of stories by a gifted writer — to re‐create the world of an ordinary Chinese county in the latter part of the 17th century.

Professor Spence, whose previous book, “Emperor of China: Self‐Portrait of K'ang‐hsi” focused on the highest reaches of the social scale, here presents T'anch'eng in the coastal province of Shantung, “a peripheral county that had lost out in all the observable distributions of wealth, influence, and power.” He introduces “the sorrow of its history” not through a Sinological orgy of names, dates and places but by sketching the context and then ushering us into “the zones of private anger and misery” and “the realms of loneliness, sensuality, and dreams that were also a part of T'an‐ch'eng.”

His success offers a Chinese “Winesburg, Ohio,” a series of vignettes and portraits that establishes the common humanity of people separated from us by time, culture and circumstance. If the tone of Sherwood Anderson's tales is sad, Professor Spence's is depressing. Small‐town Americans in the early 20th century were less preoccupied with survival, or even economics, than with universal, intractable human dilemmas. By contrast, the residents of T'an‐ch'eng despite the fact that the newly established Manchu dynasty was approaching the zenith of its splendor played out their individuality amid the devastation, famine and epidemics brought on by recurrent natural disasters including drought, floods, locust plagues and earthquakes. These disasters in turn stimulated human plagues such as corruption, banditry, war and even cannibalism. As the author of the magistrate's handbook wrote of T'an‐ch'eng: “The area was so wasted and barren, the common people so poor and had suffered so much, that essentially they knew none of the joys of being alive.” These were the conditions that elsewhere in China produced periodic upheavals and rebellions that became the antecedents of revolution.

The special social and economic injustices suffered by the women of traditional China added fuel to the fires of revolution. “The Death of Woman Wang” shows us how virtually every aspect of T'an‐ch'eng life reflected their unfair treatment. Female infanticide was common practice, girls were fed less than boys, they were often crippled by foot‐binding that was designed to titillate the male psyche, they were frequently bought and sold to become servants, wives, concubines or prostitutes, they were discriminated against in matters of inheritance, they could not share fairly in property acquired by the family during marriage, husbands could divorce far more readily than wives, widows usually confronted great hardship, and rape was an ever‐present consequence of the countryside's insecurity. Thus, in an area where suicide was a common exit from misery, it is not surprising that women seemed to resort to it even more than men. Confucian pieties proved insufficient restraint in this respect as in others. Indeed, in certain instances, as when a childless widow killed herself out of loyalty to her late husband or a wife chose death to avoid rape, the prevailing ethic considered suicide to be morally correct.

Woman Wang, the character in the last story who lends her name to the book, chose a different escape from an unhappy marriage — running off with another man — and for this her husband eventually strangled her. Because Chinese law regarded a wife's betrayal as a major offense and provocation, he was not sentenced to death but only to a beating with the heavy bamboo and to the humiliation of a long period wearing the kangue,a large and uncomfortable wooden collar that was a badge of shame.

Resentment against the administration of justice also contributed to unrest and Professor Spence reveals the functioning of the imperial legal system at the local level. He adds to our knowledge of the cruelty and corruption of the magistrate's assistants, whose abuses were literally proverbial. He illustrates how official torture sometimes elicited false confessions from the accused, and how the powerful and rich men often manipulated the system through intimidation, bribery and other means. Yet he also shows conscientious and clever magistrates surmounting such obstacles to achieve just results and earn popular respect. Interestingly, this latter aspect of imperial justice, as well as its repressive features, is being emphasized by a traditional‐style opera and film — “Fifteen Strings of Cash” — currently being shown all over China as part of an effort to demonstrate the post‐Mao Govern- ment's interest in protecting human rights.

In fact, almost every facet of Professor Spence's historical account is relevant to those interested in the People's Republic, for, despite the great changes that have intervened, China today faces many of the same problems that confronted her new Manchu leaders three centuries ago,. How to feed people, enhance production, collect revenue, govern efficiently, allocate responsibility between local and central authorities, instill ethics, cope with corruption, curb arbitrary rule, eradicate superstition, reduce rural boredom and enlist popular enthusiasm remain as challenging now as they were then.

Is it Pious Pontification to "Remember Pearl Harbor?"

By Jerome A. Cohen

For several hours I have unsuccessfully tried to resist sending out a message about today’s significance in modern memory.  I was playing basketball in the backyard with a friend when the news came by radio from Honolulu. Since then the world has witnessed many wars, three major conflicts in East Asia alone. While scholars have long debated the origins and lessons of World War I, we in America also especially focus on the causes of World War II and the subsequent conflicts in Korea and Vietnam. Today is an appropriate time to renew our efforts to avoid yet another conflict, one that might well inflict more serious harm to mankind than even history’s most tragic precedents. I suppose we all recognize the importance of current discussions. Yet this seems a good time to recall the statement often attributed to Justice Oliver Wendell Holmes, Jr., that we need education in the obvious more than vindication of the obscure.

The forthcoming trial of two of China's greatest human rights lawyers and would-be political reformers–Xu Zhiyong and Ding Jiaxi

Ding Jiaxi (left) and Xu Zhiyong

By Jerome A. Cohen

After torturing these two admirable people for almost two years, the PRC finally appears ready to bring them to secret trial, probably between Christmas and the New Year in order to minimize foreign publicity. Here is a reliable two-page summary of their plight written by Lawyer Ding’s remarkable wife, Sophie Luo, who is now working in the United States for a European company while devoting all other energy to attempting to secure her husband’s freedom. She is not only as well-informed as possible about this non-transparent prosecution but also unusually articulate, thoughtful and balanced in her analysis of the overall PRC human rights situation. A Council on Foreign Relations Round Table Dialogue with her is tentatively scheduled for December 14.

One of the questions worthy of exploration is why the PRC bothers with secret and distorted legal trappings in many cases like this while using even less transparent methods to silence other reformers and critics. What purposes are served by the Chinese Communist Party’s criminal justice charades? How much has Xi Jinping learned from Stalin and how much has he “improved on” Stalin’s widely-condemned techniques?

The Forthcoming Trials of Ding Jiaxi and Xu Zhiyong

Xu Zhiyong (left) and Ding Jiaxi

By Jerome A. Cohen

I recently received a sad message from Shengchun Sophie Luo, the wife of human rights and commercial lawyer Ding Jiaxi. Ding and the terrific legal scholar and political reformer Xu Zhiyong are set to be prosecuted soon, but neither the lawyers nor family members have received any information regarding the trial dates. December 6-7 will mark the second anniversary of the Xiamen meeting in which they and about twenty other activists met for a couple of days of discussions reviewing the human rights situation in China. That led soon after to a wide scale roundup of as many of the group as could not evade arrest. Xu and Ding seem to be regarded as ringleaders of a subversive effort and are finally expected to be brought to separate trials before the year’s end. Two recent letters summarizing their plight are linked here and here and reveal the realities of the PRC criminal process, including extended and harsh incommunicado detention, persistent torture, long-delayed access to defense lawyers and illegal restrictions on defense lawyers activities.

Here are summaries of the indictments (Ding Jiaxi here and Xu Zhiyong here) and an excellent analysis of the cases by China Change.

I admire the continuing optimism that reportedly sustains the defendants’ will to resist injustice, but do not share it. Nevertheless, I hope others will do all that they can to protest these tragic abuses by the PRC even if, to borrow the traditional Chinese simile employed by the disappeared tennis star Ms, Peng Shuai, “it’s like throwing an egg against a stone!”

A Global Times Article Challenges Foreign Scholars of China

By Jerome A. Cohen

Here is an interesting piece from the PRC’s leading international newspaper. I suppose the headline (“Western intellectuals now have weak minds to grasp China's might”) means we have weak minds because we are ill-prepared and lack appropriate means of analysis for what the author confusingly claims is either a new, unprecedented phenomenon or a reworked version of traditional China, in either event a different civilization from that of the “West”. Do we need the late Sam Huntington, Yu Ying-shi and John Fairbank more than ever? Can today’s scholars in China help us avoid the stigma of “historical nihilism” that is applied by the PRC to honest efforts to produce objective scholarship? What concepts need to be developed to describe and analyze the PRC?

Specialists in various fields of China studies, while unwilling to discard those frameworks that have thus far proved helpful in analyzing various societies, including China’s, have sought to adapt to the distinctive challenges the PRC presents in their respective fields. Indeed, it is those challenges that make the study of China so exciting – the opportunity to unearth new facts and to determine the extent to which new ideas and modes of analysis are required to do justice to those facts.

In the field of Chinese law, many of us, going back to the early 1960s when Stanley Lubman, William Jones, Randle Edwards, David Buxbaum, Anthony Dicks, I and others first tried to take up the challenge, we did not attempt to squeeze the Chinese experience into existing comparative categories, although we did not ignore those stimuli. We sought to analyze it for what it appeared to be. Researching and writing my 1968 book on the PRC’s criminal process proved for me to be a memorable effort to impose an interpretation on previously unperceived facts that distinguished the Chinese Communist system from those of imperial China, Chiang Kai-shek’s Kuomintang regime, and Stalin’s Soviet Union that evidently influenced it. Our efforts continue today, as does the PRC’s evolution. Many, but surely not all, legal scholars in mainland China, Hong Kong, and Taiwan seem to appreciate our work more than the Global Times author implies.

The sensational police detention of famous pianist Li Yundi on charges of soliciting a prostitute

By Jerome A. Cohen

Li Yundi

There are obviously so many unanswered questions at this early stage of learning about the most recent manifestation of Xi Jinping’s New Era. The release by the Beijing police of the news that they have detained someone – anyone – by the shabby method of unofficially posting and reposting broad “hints” on Weibo must be nauseating to disinterested observers of comparative criminal justice. I assume there will soon be a formal official announcement clarifying the degree of punishment to be imposed on the hapless pianist. The reference to “administrative detention” suggests that Mr. Li may “only” be charged with a violation of the supposedly “non-criminal” Law for the Punishment of Violations of Public Order, which enables the police alone to punish minor offenders without the need to obtain approval from the procuracy and the court and without any significant guarantees of fair treatment. That would subject world famous Li  to a fine and a maximum of 15 days in a very unpleasant police detention cell. It is also possible, yet unlikely, that he could be prosecuted for a formal “crime” that could result in a prison sentence as well as a long period of pre-trial police detention. If he proves as cooperative in responding to the accusation as reports suggest, no “criminal” charge may be brought, especially since enough has already been done to damage his reputation and perhaps end his career in China.

But why has he been singled out for detention on a prostitution charge when huge numbers of prostitutes’ customers are not pursued? Did he offend a leader by some remarks of a political or personal nature? Was he “set up” for this charge? Can one be confident that the facts alleged are true?  Is this the use of the police as an instrument of revenge by some powerful person? Is this simply a part of the current campaign to transform and “purify” the entertainment and other industries? Will Li be allowed to leave the country after serving his punishment to pursue his career abroad? That seems unlikely.

Prostitution is such a time-honored Communist Party claim against political opponents that one has to be suspicious of this case. In any event, the manner by which the police have made the matter public only adds to the unsavory story.

Assessing the Meng Case

By Jerome A. Cohen

It is too early, of course, to adequately evaluate the outcome of the Meng Wanzhou extradition case. The PRC Government has not yet issued any explanation of its release of the two Michaels, and we do not know what will be done about the hapless Schellenberg’s politically-inspired death sentence still pending final review. We do have Hu Xijin’s warning in Global Times that the prosecutions of the two Michaels should alert other countries that they shouldn’t seek to detain Chinese international business personnel even in the course of a conventional extradition proceeding. Ironically, the PRC’s arbitrary detentions of the two Michaels warned the world’s law-abiding business people that they are risking their personal freedom by traveling to China. Moreover, the PRC itself  has been very active, although often frustrated, in seeking to employ extradition and detention of suspects in many countries. A more civilized response to the US effort to extradite Ms. Meng than abusing the two Michaels in ways that have shamed the PRC before the international community might have been, if justified, for it to seek the extradition from a third country of Americans suspected of violating China’s criminal law, such as it is. 

Although the US Government apparently settled the case more leniently than in some of the usual deferred prosecution agreements, these decisions have always involved a broad exercise of prosecutorial discretion, as do similar decisions not to proceed with prosecution of other cases that appear to meet the technical prerequisites to criminal conviction. (Full disclosure, long ago I served briefly as a federal prosecutor in Washington, DC). Yet anyone who reads the DOJ’s summary of the case and the statement of facts accepted by Ms. Meng will see that the DOJ received from her a powerful admission of intentional, continuing deceitful international business misconduct that should be noted by any foreign entity and executives doing business with China. This is also a vivid illustration and concrete explanation of why the USG seeks to punish foreigners – corporate and individual – who seek to use the US financial system while abusing it in violation of the laws that enable that system to be so valuable to the world.

Another aspect worthy of consideration is what the case implies about the independence of the judiciary in Canada. Liberal democracies occasionally experience embarrassing exceptions to their practice of judicial independence of political authority. Yet in those countries whose legal systems generally inspire respect, judicial independence does exist in practice, especially in the national and prominent state or provincial court systems and despite judges’ varied philosophical predispositions in outlook. The Canadian system certainly seems to take judicial independence seriously. Indeed, in the Meng case none of the three governments involved in the dispute seemed eager to allow the matter to be decided, at least in part, by the Canadian courts. The Canadian hearing judge was in a very tight spot. She reportedly conducted the hearings fairly and intelligently, although I personally thought she allowed the proceedings to drag on at too great length, given the consequences for the unfairly detained Michaels. My hope was that, in the absence of a political settlement, she would soon decide to deny extradition on the ground that President Trump had converted an originally legitimate request into a political act that justified denial in accordance with accepted extradition law and practice. That might have been thought by some to be stretching traditional extradition jurisprudence and the USG might have felt obligated to spur the Canadian Government to appeal the decision, which could have made the case drag on for a couple of more years. Yet the Biden administration might instead have gratefully acquiesced in the decision, which would have put the onus on Trump rather than the DOJ. But that would have resulted in no powerful admission of wrongdoing by Ms. Meng.

Let’s see how the PRC spins the immediate release of the two Michaels. It will be difficult to conceal the implicit repudiation of its previous pretense that its legal system had been operating without regard to the Meng case. The PRC’s actions in this case have revealed for all to see that its criminal justice system is cruel and arbitrary in many respects, despite halting legislative and administrative reforms. The US DOJ can now go back to its preoccupation with trying to cure the injustices of America’s superior, yet deeply flawed, system. Canadian justice, which treated Ms. Meng admirably and made available very able defense lawyers, seems to have vindicated Prime Minister Trudeau’s oft-expressed confidence in the judicial system. Yet it too must wrestle with the perennial challenges of racism, poverty and inequalities of various kinds.

Can foreign journalists curb arbitrary detention in China?

By Jerome A. Cohen

Usually, media reports on “disappearances” such as have been suffered by well-known people as diverse as Xiao Jianhua and Gao Zhisheng, and on arbitrary use of the formal criminal process as in the case of the two Michaels, do not provide sufficient pressure to effect release of the victims or even produce a credible explanation from PRC officials. But Red Roulette, the new “tell all” book by Desmond Shum, lays the groundwork for what could become a persistent barrage of questions to MOFA press conferences and the Q&A following the speeches of high Chinese officials that might eventually yield some response.

MOFA spokespersons usually dust off the initial question about a fresh detention by assuring the assembled journalists that the case of the person in question is being processed by “the judicial organs in accordance with law”. This is a misleading answer since it evokes the falsely reassuring image of Chinese courts, while the actual situation is even worse. The detainee is normally in the custody of the police. Unless, of course, the detainee has been kidnapped and is therefore indefinitely, lawlessly held by special Party or military minions. 

Yet sometimes journalistic efforts, including op eds, can make a difference, as they did in the release of Ai Weiwei in 2011 after his 81-day incommunicado confinement in the guise of “residential surveillance”.  What belatedly and briefly smoked out the missing Whitney Duan after four years of enforced silence was the imminent publication of her ex-husband Shum’s book. I hope that PRC officials will be peppered with questions about Ms. Duan’s mysterious case since she is still obviously being secretly detained.

Red Roulette gives readers vivid insight into PRC corruption, Beijing politics and much else

By Jerome A. Cohen

Here is an excerpt from Red Roulette. It is a “must” read on China for many reasons. Publicity in the London press on Friday stimulated a secret PRC response that, having quickly been revealed by the book’s author, will enhance its prominence. As I have previously noted, the book’s scheduled publication today (Sept 7) required some sort of response from Beijing, one that would reluctantly confirm the continuing existence of the “disappeared” Ms. Whitney Duan. The ex-wife of author Desmond Shum was kidnapped in Beijing by Communist Party agents four years ago. Shum’s courageous determination to finally expose this important story will now be tested as he awaits further PRC reactions, secret and public. In view of obvious concerns for the safety and welfare of his family, his ex-wife, his friends, and himself, this could not have been a simple decision. The second of the two phone calls that he just received from his suddenly-emerged ex-wife, still a captive of the Chinese secret police, was especially sinister in explicitly threatening the harm that may occur to Shum, his ex-wife and even their 12-year-old son if Shum failed to stop publication of the book, an obviously impossible task on the very eve of publication.

The oddest thing about ex-wife Whitney Duan’s emergence to make two last-minute phone efforts to stop publication of Shum’s book is indeed its timing.  What might this tell us about elite politics in China? Was this a mere pro forma protest? An advance reader’s edition of the book has been circulating for weeks. Moreover, Shum has been a person of interest to PRC security people for some time, at least for almost five years since his business partner and former wife was first banned from leaving China and then kidnapped. Undoubtedly, he was long under scrutiny by PRC security agents, and his communications must have been sufficiently monitored to indicate that he was seriously at work on a tell-all book. Why, then, did the security people wait to intervene until the day before the book’s formal publication?

A second question worth pondering is why the ugly explicit threats to harm Shum, his son and the ex-wife were made and why not until the second phone call. The callers (Ms. Duan was obviously not alone and apparently in the hands of captors who dictated the bulk of the script) must have anticipated that the sinister threats would be made public, enhancing the current Chinese Communist Party leadership’s foreign image as a band of ruthless thugs.

It seems appropriate that The Wire should publish an excerpt of the book since Shum describes the impact on China’s elite politics of the remarkable reporting by David Barboza before he left the NY Times for The Wire. 

This book may well be regarded as one of the very best popular accounts ever to be published about the PRC in English. (Recall Robert Loh’s “Escape from Red China” of the 1950s; Jean Pasqualini’s “Prisoner of Mao” in the ‘60s; and Chen Guangcheng’s more recent memoir of escape from arbitrary imprisonment almost a decade ago). It not only gives a vivid, detailed picture of the corrupt nexus between business and the Communist Party’s ruling class, but also offers a persuasive interpretation, backed by facts, of how Xi Jinping ruthlessly moved to eliminate all rivals to his exclusive power. In addition, it provides real insights into upper class contemporary Chinese social life and the complex human relations of a high-powered married couple bent upon manipulating the system to their greed. I also especially appreciate both the book’s eloquent condemnation of a regime grounded in blatant resort to lawless arbitrary detention and its requiem for the now dead Hong Kong freedoms that benefited many of Shum’s formative years. His story reeks of authenticity and is a wonderful read, thanks in part, as the author makes clear, to the skillful cooperation of the distinguished journalist-scholar John Pomfret. 

Beijing has a lot to answer for, and Shum has made it impossible for the PRC to continue keeping silent.

Art and the Chinese Democracy Movement

By Jerome A. Cohen

Here is a link to the trailer of Beijing Spring, a movie that includes never-before-seen footage of China's first democracy movement. This brings back an exciting era in which art was at the forefront of domestic politics in China and foreign specialists were beginning to play a stimulating role. My wife, Joan Lebold Cohen, was prominent among them. Her three public lectures at the Central Arts Academy in Beijing in February, early March 1979 – the first by any American – were the most exciting events I have ever witnessed in the PRC, especially the first two, which were delivered to hundreds of excited artists, faculty, students and activists who had never before had the chance to see and hear much about Western art. Their questions were endless, and the atmosphere was electric.

The third lecture was held in highly constricted circumstances before about thirty students after the Party line had changed. Deng had decided that his trip to the US had led to too much enthusiasm for the US, and the PRC had gone to war with Vietnam. It was of great interest to witness how constrained the atmosphere had become almost overnight. No electricity in the air from dozens of audience questions, since the Academy Director, who was courageous to even show up, announced at the outset that he was certain Joan would be too tired to answer questions. No more announcements that her lectures would be published in the Academy’s magazine – they weren’t. I wondered how he would thank her at the conclusion. “Students”, he said, “It is always good to learn about the art of another country. It is especially good to learn about that art from someone from that country. Of course, dear students, what they say about their art and what we say about it may be entirely different things. Thank you very much, Mrs. Cohen”!

In May 2012, when some of the by then famous artists and teachers at the Academy managed to put on a program there commemorating Joan’s lectures and her subsequent help to many of them (her op-eds about their work that appeared in the then new Asian Wall St. Journal were translated and widely circulated in the internal “Reference News”), she was told she could invite anyone she wished as her guest. When our old friend Ai Weiwei accepted the invitation, the School promptly prohibited any of its current students from attending the program!

My forthcoming article on “'Rule of Law' with Chinese Characteristics: Evolution and Manipulation”

I was reluctant at first to consider the invitation of the International Journal of Constitutional Law to comment on a Chinese scholar’s disquisition on the “socialist rule of law” in the People’s Republic of China (PRC). What might I expect? Another legal rationalization of the latest developments in China’s “people’s democratic dictatorship” by a scholar demonstrating regime loyalty in the tradition of the intellectual servants of the country’s millennial emperors? Or another ingenious attempt by one of the country’s liberal law professors to concoct a subtle theory that purports to remain consistent with the current Communist Party line while actually seeking to constrain it? [continue reading here]

What price martyrdom?

By Jerome A. Cohen

Recent events should make us reflect again on the costs of voluntary martyrdom. Ms. Zhang Zhan, the Shanghai lawyer-journalist who is serving a sentence of four years in prison for reporting on Wuhan’s early mishandling of the Coronavirus, is currently hospitalized and approaching death as a result of the determined hunger strike that she hopes will inspire further protests against dictatorship. Professor Xu Zhiyong has again recently been indicted for another supposedly subversive offense that may ensure his continuing imprisonment and torture, this time for perhaps twelve years.

On the other hand, the distinguished journalist and author Stephen Vines has wisely decided to leave Hong Kong for London rather than risk prosecution, like so many other critics have already suffered, for exposing the Handover that has now become the Takeover.  Just before leaving, he published an excellent book entitled “Defying the Dragon; Hong Kong and the World’s Largest Dictatorship”. One of the distinguished observers who have endorsed this book is Joshua Wong, whom the book’s publisher rightly identifies as “Hong Kong’s most famous democracy advocate”. Joshua, sadly, seems destined to spend the coming years in prison.

Wouldn’t Zhang Zhan, Xu Zhiyong and Joshua Wong do more for human rights if they were free and abroad rather than silenced in prison? Was Liu Xiaobo right in believing that political martyrdom would inspire future generations sufficiently to warrant the loss of his further contributions, if only from exile?

I had this kind of conversation with the famous Chinese human rights lawyer Gao Zhisheng in 2005. He chose martyrdom rather than the less heroic, more practical path that I suggested. Tragically, he has long since been “disappeared” and joined the forgotten.

Is there an irreconcilable gulf between the US and China?

By Jerome A. Cohen

Here is Michael Cole’s excellent analysis of the current Sino-American crisis. I would only add the following:

We should note the very nice statement by China’s new Ambassador Qin as he arrived in Washington, a vivid contrast with everything else coming out of the MOFA that sent him and at odds with his own reputation. He stated that “the China-U.S. relationship has once again come to a new critical juncture, facing not only many difficulties and challenges but also great opportunities and potential.”

I wish that Michael, in his helpful list of the issues, including human rights, that divide the PRC from the West had made explicit reference to the suppression of human rights lawyers and the abusive criminal justice system that enforces the repression of free expression.

PRC rhetoric does not rail against the current system of international law as much as the alleged manipulation by the US and allied governments of that system and the need to mobilize the non-liberal states to overcome that manipulation, a process that is well under way.

The crucial element in Sino-Western relations now is what to do about Criticism. Although the Biden administration has advocated a balanced China policy that consists of Cooperation, Competition and Confrontation, it did not adopt the fourth “C” that I have been advocating – Criticism, even though it has properly been engaging in a good deal of it. That Criticism should be mutual, not unilateral, of course, since, although the valid aspects of the PRC’s responsive criticisms sting, they provide useful additional stimulus to the necessary domestic debates that currently roil the US, Canada, Australia, the UK and other liberal democracies striving – in public – to address their failings. As many of us have recognized and as the PRC now makes plain, it is easy enough to articulate the elements of a balanced policy, but difficult to execute in practice since Criticism - devastating, rightful condemnation - gets in the way of Cooperation. 

Nevertheless, despite a similar challenge in Soviet-Western relations, Moscow and Washington and its allies did manage to reach a number of important agreements and practices that were crucial in avoiding a conflict that many observers thought inevitable. That record should be re-studied. The PRC, despite its current hostility, will recognize its security interests in resolving certain universal problems regardless of its preference for all-out opposition to the West. That’s what Wendy Sherman was emphasizing the other day. But we need to be patient and anticipate a long period of stalemate before that recognition is translated into action. That is why during the immediate period of the Xi Jinping years we have to avoid unnecessary provocations and excessive nationalism that plays well in domestic politics but can lead to disaster. I don’t like Confrontation and prefer Deterrence, although it does not begin with “C”.  Containment, which I previously invoked, might also be preferable, although it hearkens back to the Cold War and seems to vindicate the PRC charge that the US wants to contain China’s progress. Biden and allies should make clear that we do not want to contain the PRC’s progress, which should be evident to objective analysts, but to contain its destabilizing aggressiveness, just as the PRC rejects the destabilizing actions of the US in recent years. Further analysis of the Cold War and anti-Soviet Containment seems to be warranted, and there is no time to be lost.