Tibet and Xinjiang: A Case of Ping Pong Repression

By Jerome A. Cohen

Here is a Wall St. Journal with an unusually good review of the PRC’s recent actions in Tibet and their relation to and comparison with developments in Xinjiang. Several interesting observations were made, including the following:

Just as earlier successful repressive measures in Tibet were then applied and expanded in Xinjiang, now cutting edge technologies applied in repression in Xinjiang are being applied and adapted in Tibet. Ping pong repression! 

The Han majority continues to have more interest in and sympathy for Tibetans than for people in Xinjiang, a point that the article properly credits Professor Robbie Barnett for emphasizing in his continuing invaluable studies of Tibet. Many of us can personally testify to this from our own anecdotal experience in China.

A good reminder of the Dalai Lama’s advancing age and the impending crisis over his succession. He seems to have been less in the public eye of late and his repeated calls for autonomy for Tibet rather than independence, which have never reassured Beijing, would ring especially hollow to the world as well in light of recent events in Hong Kong, Xinjiang and Tibet. I recall the conversation about Taiwan that I had in 1964 with a Communist Party member in Hong Kong who tried to convince me that the Party would guarantee Taiwan the same degree of autonomy as granted to Tibet. That, I said, was exactly the fear that many of us had.

The article reports that the Tibetan government in exile has stated that it was originally optimistic about Xi Jinping’s assumption of power because Xi’s father “had a close relationship with the Dalai Lama," something I had not heard before. Of course, many of us have been disappointed about XJP’s rejection of his father’s final admonition to the Party to allow “differences of opinion” or risk failure.

Finally, the WSJ article refers to recent work by Adrian Zenz on Tibet, which I had not noted. He keeps giving the Party more and more reasons to try to discredit him.

Remembering 709: Confronting Today and Tomorrow

By Jerome A. Cohen

Here are the remarks that I delivered at today's event, the 5th China Human Rights Lawyer Day, hosted by several US and Taiwanese organizations. I am honored that I was asked to participate in the program, yet I am sad that I cannot be more encouraging than last year about the prospects for China’s human rights lawyers and other Chinese advocates for political and civil liberties in their country.

Of course, I again want to try to rally China’s beleaguered human rights activists and their many foreign supporters to keep the faith. We must not lessen our support for all those engaged in the great and historic effort to nourish the development of justice, due process, government under law and freedoms of expression in China, even while those of us outside China strive to meet similar challenges in our own societies.

Yet we owe each other and our shared cause the duty of candor. Illusions and self-deception cannot serve us. We are engaged in a long-run struggle. The six years since the start of the tragic 709 crackdown are a mere speck in China’s long history. Even the 70 years since the establishment of the People’s Republic is but a short interval. It is important to note that these most recent seven decades have been marked by major swings in the pendulum of political development. The current Xi Jinping era is especially depressing to those who hope for a democratic dawn or at least a more pluralistic and freer country that offers protection to individual rights. But change will come again, as many of us predicted even during the darkest days of Mao’s Cultural Revolution. I recommend that everyone inside and outside China see the so-called film comedy “THE DEATH OF STALIN”. As the nineteenth century poet Swinburne wrote: “No life lives forever”.

In the interim, what should we be doing?

1. Certainly we should give all the support we can to those who, despite all obstacles, continue to engage in the struggle for the protection of human rights in China. We should continue to let them know that we greatly appreciate the risks and suffering they endure and the contributions that they are managing to make.

2. We need to do much more to inform the world about the true situation of China’s human rights lawyers and the extent to which the PRC’s criminal process serves as totalitarianism’s major weapon of repression and injustice.

3. We must provide full support to those Chinese human rights lawyers who escape from China, and we must benefit from the accurate information and advice that they bring us.

4. We must attempt to persuade UN institutions, other international organizations, foreign governments and legislatures, NGOs, the media, bar associations, law firms, law schools, and individual lawyers, judges, officials, scholars and students to focus on the suppression of China’s human rights lawyers and to maximize pressures to alleviate their persecution. Every day in many fora we have to keep asking questions such as: Is the great lawyer Gao Zhisheng dead or alive? Is the great civic reformer Xu Zhiyong  again suffering torture while imprisoned?

We must not succumb to compassion fatigue. Indeed, if we increase our efforts, perhaps next year’s 709 conference will be convened in a more optimistic atmosphere. 

The link to the video of today's program is here: https://www.youtube.com/watch?v=pJY_WNtPcOs

My latest article on extradition in The Diplomat

By Jerome A. Cohen

Here is an article that I hope will be appreciated by all who are concerned with the administration of justice generally. The issues go beyond extradition, of course. The piece was recently published in two parts by The Diplomat. Part 1 is here; part 2 is here.

Some Early Thoughts on the New Zealand Extradition Decision

By Jerome A. Cohen

Here is Don Clarke’s excellent analysis of the major New Zealand decision that I called attention to the other day. Don’s essay clarifies several aspects of the inevitably hasty NY Times report that I discussed. Don’s essay should be read together with Michael Caster’s op-ed in Stuff, which also focuses on the extent to which other states can trust the assurances of the PRC in extradition, deportation and other related human rights situations. I just gave a talk on these issues to the American Foreign Lawyers Association in New York and will post the recording as soon as received, so I will only make some brief comments now. I also hope to write something more substantial.

At 150 pages, I would agree that this is probably the most thorough examination of the Chinese legal system that any foreign judicial opinion has discussed. It is painfully meticulous and also useful in presenting the issues as well as much relevant information about international human rights standards. Yet the Court’s opinion is also painfully naïve about the realities of PRC justice, and I would not characterize it as an “unquestionably thorough examination of the Chinese judicial system”. 

Although, as Don points out, the Court spends a great deal of time pondering whether adoption of the PRC trial judges’ recommended decision by their court’s judicial committee composed of court administrators, which did not take part in the trial, should be deemed a denial of a fair trial, the Court fails to analyze the Communist Party’s various controls over the “judicial independence” required by the relevant standard embodied in the International Covenant on Civil and Political Rights (ICCPR). It delicately acknowledges that there may be political influences on the judicial committee. Yet it makes no reference to not only the influence of higher courts transmitting Communist Party instructions but also the instructions of the relatively new government “supervisory commissions” that front for the Part’s discipline and inspection commissions and are more powerful than the courts. Moreover, nothing is said about direct orders to the court from the local Party institutions concerned with “justice,” including the Party Political-Legal Committee and a newer organization that “comprehensively” surveys the situation.

The Court’s treatment of the plight of Chinese criminal defense lawyers and their inability to provide effective representation is also alarmingly incomplete and pathetic.

The issue of PRC assurances to foreign governments in this kind of case is crucial. As Don Clarke and Michael Caster have emphasized, it is very difficult at this point, in light of over a decade of recent experiences, to credit most PRC assurances. Over twenty years ago, in Canada’s Lai Changxing case, I was willing to credit the PRC assurance that he would not be executed. Indeed, in the New Zealand case today, no one challenges the assurance that Mr. Kim will not be executed. In 1999, I was also willing, in the unique circumstances of Lai’s case, to say that it was unlikely that the PRC would  dishonor its pledge not to subject the accused to torture before conviction, although I could not guarantee his protection while serving a life sentence. But I was not asked about the fair trial question. Today, as Don and Michael have indicated, we have had so many additional unfortunate experiences with PRC treaty and other formal assurances that, apart from the death penalty question, I can put no faith in such assurances. This began when, as Yu-jie Chen and I discussed in reporting on the Australian national Stern Hu’s criminal conviction, the PRC threw aside both its consular treaty and its own national legislation with the Foreign Ministry’s airy assertion that “Nothing can interfere with China’s exercise of judicial sovereignty”. Apparently not even commitments made by the PRC in the exercise of that sovereignty!!

My Review of The Last Kings of Shanghai

By Jerome A. Cohen

In reciprocation for Winston Lord’s well-warranted, enthusiastic endorsement of Orville Schell’s new novel My Old Home, I write to alert those who have not yet seen Jonathan Kaufman’s book, The Last Kings of Shanghai. Although non-fiction, it is sometimes hard to keep this in mind as he unfolds in highly readable style an extraordinary, complex and fascinating story that covers the whole era of modern China in an even broader compass than the book’s title suggests.  I was eager to see it because of my friendship with the Kadoories and my ignorance of the frequently-touted Sassoons who preceded and overlapped with them in many ways. I was also interested generally in the Jewish angle in the China story. Kaufman gives us much more. His research goes far beyond what even he could accomplish when formerly a distinguished Pulitzer Prize-winning journalist covering China as well as other subjects, and his interpretations and analysis have contemporary ramifications. The encomiums in the jacket blurbs are all entirely credible. 

I say all this despite the fact that Kaufman apparently made no effort to interview me among the horde of relevant witnesses still alive whom he did pursue. Lawrence and Muriel Kadoorie welcomed my family to Hong Kong in the fall of 1963, and they treated us warmly.   Kaufman actually provides evidence of this at page 226 when he anonymously quotes my six-year-old son Peter who, on ringing the doorbell of the Kadoorie country mansion for the first time, shouted: “Hey, what is this? A hotel?” The author must have gleaned this from an article I had published in the Hong Kong Law Journal. Oddly, it is not mentioned in the book’s helpful Notes. Twenty years later Lawrence Kadoorie retained me as the chief lawyer for negotiating the complex Daya Bay nuclear power  joint venture, which was then by far the largest foreign investment in China and probably the most controversial. As Kaufman points out, this imaginative project was the centerpiece of the Kadoorie family’s many contributions to Hong Kong –China relations and the development of China.    

I always urged Lawrence to write his memoirs. He was a great story-teller but steadfastly resisted, citing his belief that one should never look back, even in his eighties.   He wanted to live forever and was convinced that he had to keep driving up Hong Kong’s steep hills into the future, whatever the risks to himself and his passengers!  Fortunately, he need not have been concerned about the past, since Kaufman has given us a remarkably balanced, sophisticated account of Lawrence’s challenges and achievements, more credible than any personal self-assessment might have been. I also appreciated the book’s positive rendering of the many often underestimated accomplishments of Lawrence’s younger brother, whom we all called “Uncle Horace”.  Thanks to Horace, the family did a lot not only for China’s industrial progress but also its agriculture.

But don’t neglect the Sassoons. Their story is eye-popping in many ways that others can still testify to.                                         

What are the implications of China's lawsuit against Adrian Zenz?

By Jerome A. Cohen

U.S-based academic Adrian Zenz

Here is a recent article by Eva Dou on a lawsuit against U.S.-based academic Adrian Zenz for his work on exposing human rights abuses in Xinjiang. I assume this is a civil lawsuit for defamation. It is probably an effort to reinforce propaganda throughout the country to convince the Chinese people that foreign stories about Xinjiang are demonstrably false. Defamation can also be a crime in China. Zenz has nothing to worry about as long as he does not set foot in China, unless some effort is made to enforce a PRC judgment in the courts of a country where he resides or has assets, which could be the United States, Germany or elsewhere. In such case, he might well benefit from the pro bono services of local lawyers who oppose this form of PRC oppression. Otherwise, legal defense fees could prove costly even if, as I assume, he defeats the attempt at enforcement of the foreign judgment and the court does not require the plaintiffs to reimburse his fees.

Similarly, Singapore’s Prime Minister Lee Kuan Yew made good use of defamation suits to crush local political opponents by persuading his courts to award huge damage verdicts against the opponents. They would also have to pay court costs and lawyers’ fees, perhaps even for the lawyers who sued them! The defendants had no place to hide.

Perhaps Zenz should contemplate bringing suit outside China against the Chinese companies who seek to harass him in China if they have a presence in relevant jurisdictions. He can probably find lawyers to help him pro bono, and this would not only cause the companies to incur expense but also harm their reputations in markets of importance.

My Thoughts on the Proposed HK Electoral Reforms

By Jerome A. Cohen

It has recently been reported that Beijing plans to “reform” Hong Kong’s election system, expanding the membership in the local legislature and the Election Committee that selects the Chief Executive in order to assure its control. This is obviously the end of the political democracy envisioned by One Country Two Systems as agreed in the Joint Declaration and the Basic Law. It is the comprehensive culmination of a piecemeal process that has been under way for some time. Hong Kong will still have a governmental system called 1C2S, but its content has now dramatically changed. The forms of government in HK will continue to be distinct from those on the Mainland but the substance will plainly be the same – the Chinese Communist Party will call the shots and its minions in HK will loyally implement this new manifestation of socialist democracy with Chinese characteristics and be rewarded as “patriots”.

This is not only a huge defeat for the people of HK but also a huge embarrassment to Xi Jinping and the CCP before the world. It is also implicit disrespect for one of Deng Xiaoping’s landmark achievements, which is consistent with other efforts by the Xi regime to downgrade Deng’s status.

Moreover, the Xi regime will not stop at transformation of the electoral system. It will next accelerate the efforts it has been making to rein in the courts and the legal profession. All branches of government must be brought to heel in a totalitarian system. And these “reforms”, of course, are only part of the broader effort to transform Hong Kong society through reshaping education from kindergarten through university, from dominating the media and via other means.

Awaiting the fate of the Hong Kong 47

As I write, it is almost noon Wednesday in Hong Kong and the extraordinary bail proceedings that have been going on since Monday morning should finally be approaching an end. I can’t recall any proceedings anywhere that have been similar to what is taking place. It is hard to believe that the Hong Kong courts, and the police and prosecution that so meticulously prepared the mass arrests, could not have done a better job in coping with the expected bail situation. Without even reaching the crucial decisions regarding the grant or denial of bail, the process itself seems outrageous and a violation of due process of law. How any judge, in the circumstances reported, can manage to give careful and fair consideration to each of the 47 individual bail applications is beyond me.

 Just this past week the Hong Kong High Court proved to be disappointing in its handling of merely one case — that of Jimmy Lai. The disappointment — little noticed until now — lay not so much in its refusal of bail to Mr. Lai but in its failure to give a reasoned explanation for its decision. Judge Anthea Pang made her decision immediately after the bail hearing on February 18 and then took five days to release the judicial opinion explaining her decision. Yet her opinion, although it listed various factors to be taken into account in applying the principles articulated in the recent bail decision of the Court of Final Appeal in Lai’s case, utterly fails to explain why she considered the extraordinary bail conditions offered by Lai insufficient to meet the strict standard innovated by the new National Security Law.

 Can we expect anything better from the court that is now trying to handle 47 different applications?

Jiang Tianyong's Continued House Arrest

Jiang Tianyong (image via Frontline Defenders)

By Jerome A. Cohen

Here is the latest report on the continuing police detention of disbarred lawyer Jiang Tianyong, whose home, like that of many others ostensibly released from prison, has been turned into his prison. This, as the report indicates, is a classic example of the widespread but little-recognized practice that I long ago termed “Non-Release Release” (NRR). Although Jiang still has another year to serve of the three-year “deprivation of political rights” (DPR) to which he was sentenced in addition to his formal two-year prison sentence, there is no way that his continuing NRR can be justified as falling under DPR, and I have seen no serious attempt to legally support that claim. This is simply another instance of arbitrary police action against which there is no appeal. It is, of course, a blatant violation of Jiang’s rights under both international law and China’s domestic laws. 

I am especially aware of the tragic injustice that Xi Jinping’s Communist Party is inflicting in this case. I have known and admired Jiang for over fifteen years since he made his career change from public school teacher to human rights lawyer because he believed that would enable him to do more to promote democracy, freedom and human rights for the country. We cooperated in 2004-05 in the vain effort to protect the famous blind “barefoot lawyer” Chen Guangcheng. Jiang proved to be an able and fearless colleague. He and his family have long suffered as a result of his many similarly courageous efforts.

Much more should be done to expose, condemn and prevent such blatant injustices.

YLS Event–The U.S.-China Crisis: Can Law Help?

Thank you to the Paul Tsai China Center at Yale Law School for inviting me to speak tomorrow, February 10, from 12:10-1:00pm EST. The topic is "The U.S.-China Crisis: Can Law Help?" More information on the event can be found here. If you are a member of the Yale community, you can register here. If not, you can access the Zoom meeting with this link: https://yale.zoom.us/j/93711920730?pwd=Szk0cDJSY3BYMVZXMjdtV2tacUZlUT09

The US and the PRC are Oceans Apart on Many Law of the Sea Issues

By Jerome A. Cohen

Here is a very clear and helpful statement issued by the US 7th Fleet’s public affairs unit in Hawaii. Unlike some immediate media reports, it deals not only with the important innocent passage issue but also the even more often overlooked question of the PRC’s unjustified application of the UNCLOS straight baseline rules. Although not as detailed as a legal text, it is a clear, succinct explanation of the issues at stake. 

These are only two of the half dozen or so maritime questions that separate the US and the PRC. It would be good if the Biden administration could initiate bilateral or multilateral meetings with the PRC to try to reach some accommodation on these questions through horse-trading or otherwise.

I am not a law of the sea specialist. Perhaps that is why I have always been sympathetic to the argument that every coastal state should have the right to demand notice from any foreign warship that intends to ply its territorial waters and the right to reject its entry. Yet that is definitely not the UNCLOS rule, and I believe that the US, Russia and other naval powers permit foreign warship entry into their territorial waters so long as the passage is “innocent” as defined by UNCLOS. No notice or permission is required.

I feel differently about the UNCLOS rules that permit foreign air and naval reconnaissance from the further offshore Exclusive Economic Zone of the coastal state. Here I am less sympathetic to the PRC position, and this has been a more dangerous Sino-American disagreement than the innocent passage or straight baseline disputes thus far.

Of course, as China develops a more ambitious and far-reaching navy, it may be open to moderating its dissenting views on these issues. It already reportedly engages in its own EEZ reconnaissance elsewhere that is inconsistent with its claims against the US.

It will be important and interesting to see whether Vietnam and Taiwan react to these recent developments. I also hope that law of the sea experts will expound on this situation.

We Must Draw Attention to China's Arbitrary Denial of Foreigners' Right to Exit the Country

By Jerome A. Cohen 

Richard O’Halloran and his wife Tara.

Image: SaveRichardNow/Twitter

Here is another example of outrageous and self-damaging conduct on the part of the PRC. Richard O’Halloran is an Irish businessman who has been prevented from leaving China for two years. O’Halloran’s continuing forced confinement is pure Cultural Revolution stuff reminiscent of the infamous Banque Belge case and many others. This is transferring to the international scene the type of hostage negotiations that often take place within China where corporate officials are locked up by local police at the behest of some powerful figures supporting the other side of a business dispute. Such tactics have often been used against foreign companies and their Chinese or even foreign representatives, but with little publicity.

Sometimes the abuse of foreigners, either through criminal detention or exit denial as in this case, is the result of powerful local influencers being given deference by central officials. Sometimes a powerful central leader sends down a command that cannot be opposed by local authorities, certainly not by the Chinese courts, which simply wait to be instructed by whoever has the most political influence in the circumstances.

International publicity that generates serious action by foreign governments and the international business community is the only defense in most of these foreign-related cases. Why any multinational corporation would allow its employees to travel to China to settle a dispute is  beyond me. Some used to believe that sending them to China’s periphery for negotiations concerning disputes in the interior used to be safe, but I have known of cases where police from the interior have gone to Shenzhen or Shanghai to detain the foreign representatives and force them to continue the “negotiations”  while in captivity in the interior.

Until recently Hong Kong would surely have been regarded as a safe place for uncoerced negotiations. It would be much riskier to rely on it now.

Genocide, crimes against humanity, and common sense

By Jerome A. Cohen

It is obvious that crimes against humanity and other international human rights violations have been taking place in Xinjiang. There is ample evidence from many sources, not the least of which are the Muslim people themselves. I do not think that commentators should allow the debate over whether the correct term is “genocide” to absolve the PRC from its evident abominations.

Yet, we should not allow this agreement to obscure the importance of the Genocide Convention. It should not take training in international law to make it clear to those who read the Convention that this treaty is not by any means limited in its scope to killing. If it were, there would have been no need to go beyond “killing” in section (a) to add sections (b) through (e), covering other types of harm, in the definitional provision. The PRC has been engaged in a comprehensive, multifaceted, whole of government and society campaign to eliminate the distinguishing characteristics of the Uyghur and Kazakh peoples. This grotesque and probably futile effort to convert them into Han people deserves to be condemned as the kind of “destruction” of a people that those who drafted and ratified the Convention had in mind. 

Regarding what actions countries can take, I support unilateral and multilateral denunciations in every possible forum, including diplomatic, economic, scientific, educational, cultural and sports activities, and reluctance to give favorable responses to whatever the PRC wants from other countries. E.g., it is still not too late for the EU to drag its feet on or not ratify the recent trade agreement. In protest, the US and other liberal democracies should not send participants to the 2022 Winter Olympics.

How to manage such strong protests and still make progress on urgent issues of interest to both sides, such as climate and public health, will be the challenge confronting liberal democracies. Balance is easier said than done. Yet we have to try what I have mentioned previously – The Four Cs: Cooperation, Competition, Criticism and Containment.

The PRC's "Rectification Campaign" Finds Its Way to Hong Kong's Courts

By Jerome A. Cohen

Here is a strong statement from Samuel Chu, Managing Director of the Hong Kong Democracy Council in Washington DC, criticizing the HK court’s decision to terminate the bail of Joshua Wong, Agnes Chow, and Ivan Lam instead of allowing them to remain free until sentencing on December 2.

I echo this criticism but hope for more information about the reasons for the defendants’ guilty pleas. Sometimes defendants plead guilty because they admit guilt as an act of civil disobedience committed in protest against injustice. Sometimes they plead guilty in order to induce the court to grant a lighter sentence than would be imposed after putting the state and themselves to the burdens and expense of a trial.

Here it seems they may have pleaded guilty in protest against what they anticipate would be an unfair trial before a court that they presume has fallen under the influence of Beijing’s intensifying efforts to restrict and emasculate the local judiciary, even in cases that do not come within the purview of the new National Security Law. 

As sometimes occurs in Mainland China, defendants in similar circumstances may nevertheless prefer to defend themselves in a trial, even though they know the trial will prove a farce, will be conducted in secret and without the participation of adequate defense counsel, and will result in heavier punishment.

Apparently, Joshua and his colleagues believe that recent events have demonstrated that Beijing has already succeeded in its intensifying pressures to bring Hong Kong judges to heel. We will have to read his explanation when available. 

Some pro-Beijing critics of the Hong Kong courts’ independence, however, believe that much more still needs to be done to root out those judges who are deemed to be disloyal, unpatriotic, unaware of the true nature of the constitutional system imposed by the Basic Law, unduly sympathetic to protesters or incompetent.

In an essay that was published today by The Diplomat, I mention some of the measures that are being contemplated in order to heed the unspecific but militant call for Hong Kong “judicial reform” recently issued by Zhang Xiaoming, deputy director of the Central Government’s Hong Kong and Macau Affairs Office.

We should note that, while Beijing is waging this campaign to reform Hong Kong’s judiciary, it has also recently launched a nationwide “rectification campaign” to weed out from the country’s judges, prosecutors and police all those “two-faced people” who are disloyal and dishonest to the Party. As many international media have reported, PRC political-legal officials have been ordered to “turn the blade inward and scrape poison off the bone”!

Hong Kong is not likely to be spared.

What Is the Significance of Sun Dawu's Arrest?

By Jerome A. Cohen

Chinese billionaire Sun Dawu

Here is an interesting account of how the criminal process has been used to clip  the wings of another important PRC businessman and his business. Billionaire Sun Dawu and more than 20 of his family members were arrested on November 11 and accused of “provoking quarrels and disrupting production.” Authorities also seized control of his company, Hebei Dawu Agricultural and Animal Husbandry Group, which was once of the largest private enterprises in China. Coming soon after the recent last minute blocking of Jack Ma and his hugely profitable Hong Kong IPO for Ant, and the harsh sentence meted out to the outspoken business mogul and critic of the Party Ren Zhiqiang, this could begin to look like a new central campaign to curb the political and economic power of major private entrepreneurs who refuse to follow the central Party line in every respect.

Yet this new Sun case may be more typical of local practices that have existed for decades in the PRC, where one side in a business struggle, having more local political power than the other, calls in the local police to detain its unyielding opponents in the public security detention house or some less supervised coercive environment in order to continue the business negotiations in a setting more likely to produce the desired outcome.

I have been consulted about such cases and gave a talk about this phenomenon at a University of Hawaii-based conference over a decade ago. Locking up such a large number of people in this instance does seem a bit unusual, however. Now that this case has been publicized widely abroad, whether and how the central authorities will attempt to resolve the matter remains to be seen.  

Cases like this sometimes sensitize rising entrepreneurs to the failings of the PRC justice system and the importance of human rights that they have long ignored. Occasionally their lawyers get drawn into the human rights struggle through experiences like this. 

The Continuing Attack on China's Human Rights Lawyers

By Jerome A. Cohen

Human rights lawyer Ding Jiaxi

The title of this latest valuable message from IAPL Monitoring, “Rights lawyer Ding Jiaxi remains under police investigation,” sounds much too innocuous to encapsulate what is taking place. “Remains under police investigation” does not do justice to the gross injustice being perpetrated by the Linyi Public Security Bureau (PSB), the PSB that so abused the blind “barefoot lawyer” Chen Guangcheng in so many ways from 2005 until his extraordinary escape in 2012. 

Human rights lawyer Ding has been held incommunicado for almost one year since his detention following the small HR lawyers meeting last December in Xiamen. If the experience of so many others is a guide, he is undoubtedly being subjected to tortures of various kinds.

What is interesting about this latest sad report of the plight of “disappeared lawyers” is the apparent refusal of the local procuracy to accept the PSB’s recommendation for prosecution on two occasions, presumably because the police are not deemed to have made out the case for “inciting subversion of state power”. In these circumstances Ding should be released free and clear or at least granted the PRC equivalent of “bail” if there is need for the investigation to continue. 

The PSB rejects this proper course and continues to try again. The procuracy should order the PSB to at least grant the defense lawyer’s request for bail. Yet, in order to avoid embarrassment and accountability for the police and to avoid sanctions against the procuracy itself, it continues to send the case back for more evidence. The procuracy is caught in a dilemma, trying to do its duty to carry out the legal protections prescribed in the PRC Criminal Procedure Law to prevent an unjustifiable indictment and yet not run afoul of the Communist Party’s insistence that the police, procuracy and courts operate as “a single fist” in such cases.

I assume the Linyi City Party Political-Legal Committee will resolve the problem since, legally, the procuracy cannot continue at this point to keep sending the request for prosecution back to the police for further “investigation”.

DING’S LAWYERS GROUP WAS A MODERATE CIVIL SOCIETY ORGANIZATION. If I were a Hong Kong lawyer working for civic, political and legal reforms, I would take note of the Mainland precedents and be very worried about Hong Kong’s deteriorating constitutional prospects and my own future. For example, Dennis Kwok, the able and dynamic lawyer representing the Hong Kong legal profession in the Legislative Council until his Wednesday ouster by the NPCSC, intends to return to law practice and continue, as a citizen as well as a barrister, his opposition to the new National Security Law. Should he be prepared for detention and “investigation” for alleged “inciting subversion against state power”? Now that the Mainland security organizations have come to dominate HK, will he be subjected to the same incommunicado “investigation” procedures and punishments as Mainland lawyer Ding?

Case of Chinese Lawyer Qin Yongpei Submitted to Seven UN Offices

By Jerome A. Cohen

Lawyer Qin Yongpei

Here, to mark the first anniversary of the incommunicado detention of the valiant and imaginative Chinese defense lawyer Qin Yongpei, is the remarkable submission of his plight to no fewer than seven UN human rights offices by the Chinese Human Rights Defenders. CHRD has written a communiqué outlining the timeline of Qin’s arrest and alleging subsequent arbitrary detention and torture.

Qin’s case has followed what by now is a familiar course. First, like many HR lawyers, he was picked up, held, intimidated, warned and released in 2015. When he persisted in carrying out his lawyer’s obligations, in 2018 he was disbarred from law practice and his law firm dissolved. After ingeniously forming an ostensible business consultancy in order to continue their work, he and some disbarred colleagues added to their challenges to the police-prosecutors-judges triumvirate by establishing a “Disbarred China Lawyers Club” that exposed official corruption and abuses of power as well as the environmental depredations of a local mining company. That proved to be the last straw for the targets of his public efforts, and he was then “disappeared” by the targets in 2019. There is as yet, one year later, apparently no further news of him.

What a tangle it must be now for the seven different UN groups, including the Working Group on Arbitrary Detention and several Special Rapporteurs, to decide how best to reconcile their overlapping jurisdictions in order to vigorously pursue their duties. Their inquiries may evoke a PRC response and speed up the processing of this typically sad case. Surely it should not continue unnoticed by the world community.

Threats to Sinology–In and Out of China

By Jerome A. Cohen

Here is Professor Wang Gungwu’s stimulating and informative essay on “Sinology and the Rise of China.” Anything he publishes deserves our attention. I am puzzled, however, by the incompleteness of his conclusion. 

Earlier in the essay, Professor Wang points out that  “Deng Xiaoping’s reforms after 1978 promised a fresh start,” permitting Mainland scholars to escape the confines of the Marxist-Leninist framework to which Mao’s oppressive rule had subjected them. As a result, as he says, “a more pluralist Sinology began to emerge in the 1980s.”

In his penultimate paragraph, Professor Wang notes another, more recent, political change that bodes less well for a flourishing pluralist Sinology. As he puts it, “China is now seen by the United States as a threat to its supremacy. In such a context, the knowledge gathered by pluralist Sinology could serve as a weapon for self-defence or for intelligent offence”.

Of course, one should also point out that the United States is not the only democratic state to increasingly perceive the People’s Republic of China as a threat. This only underscores Professor Wang’s warning that in the new circumstances “Sinologists may be travelling on a road with many danger signs”.

What puzzles me, however, is that Professor Wang fails to notice the very important political changes that have taken place in China since the ascension of Xi Jinping, changes that are in large part responsible for the enhanced “China threat” perceptions abroad. Moreover, have these changes had no impact on the freedoms of Chinese scholars to engage in honest Sinology that they gradually acquired during the Deng Xiaoping era? 

This is not a rhetorical question, since I do not know the answer. But I do know the severe negative impact that the current “New Era” in China has made by further restricting the freedoms of Chinese scholars in my own field of law, including the legal history of their own country.  This makes me suspect that the danger signs for Sinologists may be more numerous than Professor Wang has acknowledged.

Professor Yu Ying-shih on the Roots of Chinese Totalitarianism

By Jerome A. Cohen

Here is an interesting interview (and the original interview text in French) between French China expert Ursula Gauthier and the great historian of China, Professor Yu Ying-shih of Princeton. I appreciate the beautiful translation of Michael S. Duke of an interview that originally was conducted in Chinese and English.

Reading it inspired many thoughts, including one about the preoccupying American presidential election: “The egotistical monarch who does not care for his subjects loses their support and finishes by losing the famous ‘tianming’, or Mandate of Heaven.” We await the fate of President Trump and note the warning that Prof. Yu explicitly gives to China’s current dictator, Xi Jinping.

I was glad to see Prof. Yu’s confirmation of the Confucian-Legalist “durable system synthesis” and the impacts that other contending philosophies had upon the evolving traditional Chinese theories of governance. Sixty years ago, Joseph Levenson’s great lectures at UC Berkeley introduced my wife and me to the concept of “syncretism.” Yu’s clarification of the relationship between the Chinese Classics and Confucianism is also enlightening to the non-specialist.

In addition, I benefited from Prof. Yu’s discussion of the Professor John K. Fairbank-led model of traditional China’s regional “tribute system”. Although Yu does not directly address the recent efforts to modify or reject that influential pattern imposed on hoary East Asian facts, his portrayal does add welcome detail, analysis and nuance to the Fairbank model, which I still regard as a useful insight into contemporary China’s relations with its East Asian neighbors.

Especially gratifying is Yu’s dismissal as “ridiculous” of the frequent claim by Xi Jinping that the Chinese have traditionally been a peaceful people, that China had never attacked other people and that China’s history is free of the crime of colonialism.

I do wonder, however, about Prof. Yu’s conclusion that It is not in imperial history that we must search for the roots of contemporary China’s totalitarianism but in the influence of the Soviet Union. One hypothesis need not exclude the other. He believes that the harshness of the autocratic traditional Chinese monarchy was “tempered by a government mainly of a moral and cultural elite” while today “we have a dictatorial system reinforced by arbitrary and despotic practices”. I suspect that the differences are not quite so stark and that today, just as in Russia, so too in China the propensity toward totalitarianism is sustained by inherited traditions, enhanced by the repressive potential of contemporary technology.

Update on Last Week's NPCSC Meeting

By Jerome A. Cohen

Here is the latest report from Changhao Wei’s “NPC Observer.” It, like Susan Finder’s “Supreme Court Monitor,” is an invaluable asset in helping us keep track of the work of Chinese legal and governmental institutions. This report discusses the past week’s output of the Standing Committee of the National People’s Congress. Its most recent meeting was noteworthy in several respects.

First of all, there was apparently no discussion of the possibility that the NPCSC might issue a clarification of the scope of Article 38 of the new National Security Law for Hong Kong. Article 38 has been widely criticized in Hong Kong and abroad because, on its face, it purports to condemn as criminal actions that are perfectly legal in the jurisdictions where non-permanent residents of Hong Kong have committed them. This goes beyond the reach of China’s code of Criminal Law and standard international practice. It remains to be seen to what extent the PRC will seek to implement Article 38. Beijing may be content for now with the in terrorem effect of the language, which has been considerable.

Additionally, the amendments to the PRC’s National Flag Law and National Emblem Law, undoubtedly inspired by events in Hong Kong and applicable to Hong Kong, should be studied for their impact on the Special Administrative Region’s socio-political-legal environment as well as the rest of the nation.

The substantial revision of the Minors Protection Law should interest human rights advocates.

Perhaps of great importance to many observers in the scientific, legal, economic, social and political fields, is a new Biosecurity Law that must have been stimulated at least in part by the Covid-19 crisis and the antecedent controversy and criminal case relating to CRISPR and gene-editing.

Thanks again to the NPC Observer, a periodical worthy of our support.