My take on Hong Kong's extradition bill

By Jerome A. Cohen

I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.

Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it. 

“Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong. ”

[New book] “Taiwan and International Human Rights: A Story of Transformation”

 By Jerome A. Cohen

I’ve had the pleasure of working with Professor William Alford of Harvard and Justice Chang-fa Lo of Taiwan’s Constitutional Court to edit this new book: “Taiwan and International Human Rights: A Story of Transformation”, which is published by Springer (Amazon link here).

The announcement of publication came today with the great news that Taiwan has just passed same-sex marriage legislation as the first country to do so in Asia! From a depressing island run by a dictatorship  that operated the world’s longest martial law regime to today’s vibrant constitutional democracy that actively engages universal human rights values, Taiwan is a testament to the resilience, endeavor and accomplishment of the Taiwanese people.

Washington Post: The forgotten victims of China’s Belt and Road Initiative

By Jerome A. Cohen

I played a minor role in the publication of an op-ed, The forgotten victims of China’s Belt and Road Initiative, with my colleague Aaron Halegua, a terrific Chinese labor law scholar whom I take credit for spotting many years ago, even before he started his JD study at the Harvard Law School! Here's the link to the op-ed online in the Washington Post. The Post was glad to have it and did a very careful job checking the facts and editing it, but I do not think it will appear in the paper because there are just too many Mueller Report-related op eds at the moment.

China’s Xinjiang Propaganda

By Jerome A. Cohen

China went through its third review in the UN Human Rights Council last November (“Universal Periodic Review”), in which many concerns about Xinjiang were raised. On Friday, the Council considered the report prepared for China (report link here). While China was able to summon many countries that have close ties to praise China’s human rights performance, such as Russia, Cuba and Iran, many countries urged China to stop its abuse in Xinjiang (including the US, Canada, Germany, Switzerland, Belgium and Australia etc). In response, China resorted to its usual rhetoric and stated that, “the Xinjiang vocational skills education and training institutions, which had been established for counter-terrorism purposes in the Xinjiang Autonomous Region, were focused on the study of legal knowledge, vocational and language skills and on deradicalization, and that they were employment oriented.”

Then the China Daily put out a report that China’s human rights record was praised by the Human Rights Council, with no mention whatsoever of the extensive international criticisms actually voiced against China. Ironically, the report features the photo of smiling Uyghur women dressed in colorful outfits (screenshot below)!

Screenshot, China Daily

This reminds me of the 1977-8 first-time visit of Ted Kennedy and eleven family members to China that I helped arrange and escort. Ted wanted very much to visit a Chinese university and make a speech that might electrify the students the way Bobby had done on a Moscow visit. In order to prevent this, our hosts were instructed by the leadership that in no circumstances were we to be allowed to visit a university. In Shanghai we were told that Beijing would be the best place for a university visit. In Beijing we were told the universities were all on holiday but that Changsha would be a good place. In Changsha we were told that it only had eight universities but that Guangzhou, our next stop, had sixteen. At that point we really protested, so the hosts arranged a visit to a beautiful hilltop overlooking Hunan University so we could say that we had “seen” it and there, in a lovely knoll, were five assorted worker, peasant and soldier “students” dressed in colorful native costumes playing a variety of musical instruments. That, of course, enabled us to say we had “met with” students! When this farce led to ridicule and the assurance to our hosts that we would broadcast their charades on leaving China, they “relented” and arranged a visit to a Guangzhou university teacher’s home that they claimed was on campus!  

Conviction of Chinese human rights lawyer Wang Quanzhang

By Jerome A. Cohen

Chinese human rights lawyer Wang Quanzhang has been sentenced to four and a half years in prison for subversion. But, since we have not yet seen the court’s judgment and don’t know the details of his long detention, we cannot be certain what this sentence means.

Wang has been held in pre-trial and post-trial detention since July 2015, and detention time served is usually deducted from the sentence (with one-to-one credit for the days of regular detention and only half a credit for the days during which he was held in “residential surveillance at a designated location” or RSDL). This probably means that Wang can be expected to be released in April 2020 and perhaps even earlier, depending on how long he was confined in RSDL rather than regular criminal detention.  BUT the court may have deviated from the practice of giving credit for time already served prior to sentence, which would mean no release until mid-2023!

In light of the harsh sentences rendered to some other lawyers punished in the 709 crackdown, IF the court has followed the standard sentencing practice, it appears that the Chinese Communist Party/government has gone relatively (and unexpectedly) light on Wang. So many factors go into the sentencing decision. How has he behaved? What shape is he in? Has he made any apparently sincere commitment to abide by the secret promises usually extracted from a convicted person to be a “good boy” upon release? Has the Party decided to look lenient because of the intense world interest, the abusive and unusually lengthy pre-sentence detention Wang suffered and the current widespread international condemnation of China for its abominable misbehavior toward the three Canadians who are being punished in retaliation for Canada’s handling of America’s extradition request of the Huawei executive? 

Pressures on Wang not to appeal must be very great. Some convicted defendants decline to appeal because they know that the appeal process will not result in a favorable outcome and only extends the time they will remain confined in conditions that are often much more uncomfortable than the prison cell that awaits them once the appellate process has run its course. To be sure, we don’t know in what kind of shape Wang is mentally and physically and whether he has been subjected to any of the horrific “medical” treatment designed to break the will of so many political defendants. He may not be in condition to carefully weigh the wisdom of an appeal. If he is still capable of rational decision and retains his courageous determination, he may wish to appeal simply to avoid the inference that he accepts the decision as a correct and just one.

In any event it should be noted that only giving half sentencing credit for time served in RSDL is grossly unfair, since conditions tend to be more coercive than if the suspect is detained in an ordinary jail, even though an ordinary detention cell can be extremely uncomfortable. RSDL is not “house arrest” in one’s own home but in that of the secret police. I think double credit should be given for every day of RSDL until that vile detention practice is abolished, as it should be!!

The Code of Criminal Procedure limits RSDL to a three-month term that can be renewed once. Yet I have long suspected that police have meted out more than the maximum six-months RSDL term on some occasions by purporting to charge the hapless suspect with another “national security” offense that supposedly deserves their investigation. This may have occurred in the Wang case and perhaps the delay in issuing the judgment is related to an attempt to obscure that situation.

Wang Quanzhang, wife and son (Wang Quanxiu via AP)

Human Rights Lawyer Wang Quanzhang's Secret Trial

By Jerome A. Cohen

Wang Quanzhang, who has been detained incommunicado since July 2015, was reportedly tried today in a secret trial that neither his wife nor supporters could attend.

Wang Quanzhang and his wife Li Wenzu, with their child. Credit: Li Wenzu, via Associated Press

I didn’t have the good fortune to know Wang Quanzhang but I know what he stands for and what the public martyrdom that is his trial symbolizes. Wang, of course, represents the best, yet vain, efforts of many valiant Chinese human rights lawyers to establish the rule of law in an increasingly repressive Communist system. Like so many of his colleagues, Wang has been crushed after losing his freedom for more than 1,200 days. The wonder is that it has taken his captors such an impressively long time to prepare the secret trial.

In a year when “justice” has been chosen to be the world’s most prominent word, what we are allowed to know of Wang’s so-called trial is a brief but potent demonstration of “injustice”. Yet Chairman Mao once said that we should never underestimate the educational value of negative examples!

China, Xinjiang and UN Human Rights Review

By Jerome A. Cohen

Source: AP (Uyghur protesters outside the UN Headquarters in Geneva, Nov. 6, 2018.)

On Nov.6, the People's Republic of China underwent its third UN Universal Periodic Review (UPR), which is a peer review at the Human Rights Council of China's human rights record. Each country, ridiculously, only had 45 seconds to speak! All eyes were watching if China's mass incarceration of Muslims in Xinjiang and related repression outside the detention prisons would be criticized. Many countries did speak out, including the U.S., Canada, Germany and the UK. The only Muslim country that raised this issue is Turkey. It is shameful that Muslim countries and their regional organizations have done so little to date. The PRC cleverly lined up a large number of sycophant states to sing its praises and take time away from states that wanted to be critical. (All UPR-related documents are here at the UN's website.)

The PRC has moved relentlessly to increase its influence over the Human Rights Council while the U.S. has withdrawn from it. Accordingly, many countries, including developing and authoritarian countries that rely on China's economic ties, lavished high praise on China's human rights achievements, instead of treating the session seriously.  But there are a few other UN possibilities for condemning the PRC’s misconduct in Xinjiang and elsewhere, for example, the recent criticism of the PRC by the committee that reviews violations of the racial discrimination treaty. Other treaty review committees can also become relevant forums. The UN Working Group on arbitrary detention is another institution that quietly—too quietly—frequently condemns PRC violations against individuals..

Demands by the High Commissioner for Human Rights to send special rapporteurs to China on one mission or another have occasionally been acceded to by Beijing after very long pressure and have resulted in withering criticisms of the PRC’s dictatorial suppression. I don’t expect Beijing to allow any such scrutiny over Xinjiang soon, but it depends on how much international public opinion becomes informed on what is taking place. There are many opportunities for regional groups outside the UN to embarrass the PRC for its human rights oppression, for example, NATO, the EU and the various Western countries’ economic policy meetings. 

NGOs and academics have become much more active. As one of the organizers of the recent protest by public speakers promising to criticize the PRC for Xinjiang atrocities, I mention this in every public appearance, as do many of the over 250 China watchers who have taken the pledge. I hope there will be a multiplicity of the above efforts.

Xinjiang & the Global Magnitsky Act

By Jerome A. Cohen

Here is a terrific, comprehensive explanation from SupChina of helpful reports and articles about Xinjiang’s “re-education camps” . While China tries hard to conceal information, the materials currently available should prompt the United Nations and its human rights regime—including human rights treaty bodies, the Human Rights Council and its Special Procedures—to investigate and to condemn with confidence these atrocities in Xinjiang.

The outside of a newly built internment camp in Turpan, Xinjiang. Picture by Wall Street Journal reporter Josh Chin.

It also makes one ask: what evidence is necessary under the Global Magnitsky Act in the United States to apply sanctions not only against those who are actually carrying out these abuses, starting with Chen Quanguo, the Party chief in Xinjiang, but also against those in Beijing who are instructing Chen to do so? We all know who runs China today!

This reminds me of the time in 1964 that I had an opportunity to have coffee in Hong Kong with Zhang Guotao (Chang Kuo-tao), one of the founders of the Chinese Communist Party who later split with Mao and remained in exile. I wanted to understand why Communist leaders had such mistrust of law and a genuine legal system. Zhang said that, while he did not know much about law and neither did Mao, perhaps he could give me an example that might help answer my question. In effect he then said: “If A kills B, no system would have trouble punishing A. But what if A merely tells B to kill C and B does it, how could a legal system punish A?” That, Zhang said, was probably the kind of thinking that underlay Mao’s mistrust!

The U.S. legal system usually is not troubled by such a simplistic challenge!

What can be done regarding Xinjiang’s mass detentions?

By Jerome A. Cohen

I have discussed Xinjiang’s horrific detentions on my blog. There should be more investigative reporting that looks into various important questions. We do not know all the types of detention resorted to. They may include: simply lawless detentions, i.e., not based on any regulations or laws; detentions authorized by some written document even if issued only by low level police; detentions based on special legal provisions under the new Supervision Law; detentions based on the usual Criminal Procedure Law; and detentions based on special provisions of the Criminal Procedure Law, i.e., residential surveillance.

It would be difficult to convincingly argue that these detentions are consistent with the PRC Constitution if such arguments could be made before an impartial tribunal, which, of course, does not exist in the PRC. These detentions are very similar to those imposed for decades under “re-education through labor” (RETL), which, like several other notorious administrative detention procedures, finally had to be abandoned by the regime, at least in name. Yet similar detentions still take place under various rubrics such as “re-education” for drug offenders, prostitutes and their customers and political offenders who continue to be given “black jails” and other types of confinement.

We are purposely being kept in the dark about the unique, massive detentions in Xinjiang, which have confined many hundreds of thousands of closely-settled people on many specious charges. Perhaps the last time so many people have been detained outside the formal criminal process was in the 1957-59 “anti-rightist” campaign where RETL was first used.

Given the Communist Party’s domination of the judicial system, the legal impossibility of getting the courts to consider constitutional claims and the refusal of the National People’s Congress Standing Committee, which, unlike the courts, is authorized to interpret the Constitution, to consider such claims, there is no prospect for challenging the Xinjiang measures domestically. It is worth noting, however, that what is being done should be understood as violating procedural rights under Article 37 of the Constitution as well as various freedoms enshrined in the Constitution, not to mention relevant provisions of China’s Criminal Procedure Law and other national legislation.

To be sure, the Xinjiang measures also violate public international law in many respects. China has signed but not ratified the International Covenant on Civil and Political Rights, which plainly prohibits arbitrary detentions. The PRC has ratified the Convention Against Torture and the International Covenant on Economic, Social and Cultural Rights, and the Xinjiang actions are clear violations of these international treaties in many respects. Other international human rights violations can also be established. Relevant treaty bodies, such as the Committee Against Torture and the Committee on Economic, Social and Cultural Rights, should review the Xinjiang detentions in their dialogues with China, ask the Chinese government to provide accurate information and condemn violations in Xinjiang.

Additionally, other UN human rights agencies are the obvious fora in which to move, including the UN Human Rights Council, the UN independent human rights experts such the Working Group on Arbitrary Detention and other special rapporteurs, and the Office of the High Commissioner for Human Rights. Unfortunately China has moved skillfully to dominate the UN Human Rights Council and the U.S. Government has certainly not risen to the challenge of effectively opposing China’s maneuvers. The departure of Mr. Zaid, the energetic and courageous High Commissioner for Human Rights, is greatly to be regretted.

Individual countries, of course, can take actions, which is why I recommend that the U.S. Government adopt Magnitsky Act sanctions against those responsible for Xinjiang, starting with Xi Jinping.

Various concerned countries can also act in concert outside the UN, for example excluding China from major economic and political meetings. It is a particular disgrace that Turkic, Muslim countries and their organizations have done so little to condemn China for what it is doing to their kinsmen.

There should also be many public protests by ordinary citizens, i.e., NGOs and popularly-inspired meetings in free countries whose people support human rights.

U.S. should impose Magnitsky Act sanctions against China’s human rights violators

Jerome A. Cohen

Amnesty has just issued a plea for urgent action on behalf of what remains of lawyer Jiang Tianyong. Amnesty’s announcement seems understated despite the large cap title. Jiang is exposed to more than the “imminent risk of torture and other ill-treatments”. He has in actuality long been suffering from such abuse that is designed to break him as a person, to destroy him both mentally and physically. And, as we know from many cases including those of Gao Zhisheng and Wang Quanzhang, this calculated campaign to end China’s human rights lawyering seems to be gradually thinning the ranks of human rights lawyers. The many, sometimes bizarre, procedural violations in Jiang’s case are a reminder of the realities of Chinese justice when it comes to those who challenge the regime. His captors should be investigated on charges of what may well amount to “attempted murder”.

I know Jiang but have never cooperated with Wang Quanzhang, whose case appears to be even more outrageous. After three years of absolute silence about Wang’s fate the Party has reportedly decided to finally bring him to “trial” in the near future but his mental and physical condition are both in doubt, and he has not been allowed to retain his own lawyer but must accept a government-selected one.

Despite Chinese Government maneuvers to gain control over the international human rights institutions and the current relative indifference of the U.S. Government to human rights issues, greater efforts must be made to try to stop the PRC campaign against human rights lawyers. One important, if largely symbolic, response would be for the U.S. to impose Magnitsky Act sanctions against those Chinese officials who are directly responsible for executing this notorious campaign, starting at the top of the Communist Party.

“In China, they call it a political camp but really it was a prison in the mountains.”

By Jerome A. Cohen

(Photo credit: AFP; the 41-year-old said she had been tricked into working in one of the camps)

Here’s a valuable AFP report on Xinjiang, China’s 'reeducation camps' in spotlight at Kazakhstan trial. There have been occasional references to the mass detention of Kazakhs as well as Uyghurs but this report tells more. It is especially interesting to learn much new information through the medium of a public trial allowed to be held in Kazakhstan despite the politically explosive nature of the charges for the country and its dictatorial government that functions under China’s shadow.

In China a similar case, IF a formal criminal prosecution is used instead of simple arbitrary detention, would usually be closed to the public on grounds of national security. In this case, by contrast, Kazakhstan held an open hearing, apparently attended by foreign media, in which the accused had the benefit of an active defense lawyer who was allowed to question his client extensively. The court, for political reasons, might have curtailed the scope of the testimony to avoid discussion of the Chinese “re-education centers” but instead properly allowed the questioning to take place in order to make clear the background of the defendant’s resort to false travel documents. The defendant, who seems to have made an excellent witness, aptly summed up the terrible Xinjiang situation when she said: “In China, they call it a political camp but really it was a prison in the mountains.” !!! 

Liu Xia’s release: half-way house toward freedom

By Jerome A. Cohen

Liu Xia arrives at the Helsinki International Airport in Finland on July 10 (Jussi Nukari/AP)

Here is an excellent statement by the UN HR High Commissioner Zeid Ra’ad Al Hussein on Liu Xia’s release. Liu Xia is now physically free but still enslaved mentally since her brother Liu Hui has been intentionally kept hostage. Liu Hui was convicted of fraud in 2013 and was sentenced to 11 years in prison. He’s been released under medical parole, a lesser criminal law restraint, which can be revoked by the authorities at any time. So for Liu Xia her release is a half-way house toward freedom, really a new form of restriction, another ingenious type of detention-equivalent administered by a PRC that spawns new types of detention almost every day, as the Xinjiang “re-locations” illustrate.

Liu Xia’s restricted release is certainly a case of China responding to outside pressures—enormous pressures of various types including those generated by human rights groups. The PRC, like the rest of us, tries to turn a vice into a virtue and make the best of a difficult situation. They still have Liu Xia’s brother to trade and what about the missing human rights lawyers and the hundreds of thousands lawlessly locked up in Xinjiang? There’s a lot of material to work with any time they feel the need to get better press by releasing some people without actually reducing their repression.

The urgent need for stronger foreign opposition to China’s human rights violations

By Jerome Cohen

The essay by Rian Thum and Jeffrey Wasserstrom, The Dark Side of the Chinese Dream, deserves the widest attention. The problem of how to alert the world to gross violations of human rights while coping with the broader political actions of the perpetrating state is not a new one, of course, in regard to China and other dictatorships. We have long faced a similar challenge regarding North Korea.

It also reminds me of the late 1930s when growing international concern over the foreign political actions of Hitler helped to obscure the domestic horrors he was increasingly committing and to diminish the foreign reactions to those horrors that might have otherwise been expected.

With respect to China’s continuing atrocities, it is time to consider how to heighten the awareness and willingness to protest of the foreign governments and businesses that interact with Beijing. Much greater pressure has to be applied to the national politicians who influence the actions of their  governments. Social protests and boycotts against the multinational corporations that court the PRC and yield to its demands may be necessary to get their attention. Popular condemnations even at athletic events may be desirable. Of course, it behooves the United States Government and the American people to cure our own human rights abuses. “Do as I say, not as I do” is never an attractive or effective posture.

'Easier to die than live': #LiuXia, widow of Chinese dissident Liu Xiaobo, cries out for help in phone call https://www.hongkongfp.com/2018/05/02/easier-die-live-liu-xia-widow-chinese-dissident-liu-xiaobo-cries-help-phone-call/

China sends Uyghurs to re-education camps as a “preventive measure”

By Jerome Cohen

Here is a Radio Free Asia report on the hundreds of thousands of Uyghurs who have been detained in “re-education” camps. The number detained may have reached one million, according to the estimate. This is far beyond the number of those who were retained for “re-education through labor” (RETL) at any given time in what were supposedly the last years of that notorious punishment. As I recall, there were usually said to be about 300,000 detained for RETL at that time.

We need to know much more about who has been recently detained in Xinjiang, for what reasons, by what procedures, for how long, for what type of “education” etc. Is it really true that people under 40 are being preventively detained without any basis for suspicion other than the fact that, because of their relative youth, they might be susceptible to evil thoughts and actions? This is a horrendous situation that makes a mockery of the Party’s claim that it is pursuing the “rule of law”. It invites comparisons with the early years of Hitler’s attack on the Jews.

It also makes me think of Lee Kuan-yew’s Singapore. Until the early ‘80s, when he changed his views, Lee prohibited Singaporeans under 40 or 45 (I forget which) who had been educated in the PRC from returning to Singapore, regarding them as security risks. Lee also resorted to preventive detention, but on a very limited scale and with respect to people who had at least demonstrated what he regarded as “left wing” sympathies. I hope those of us who observe developments in China will not look away from this ugly, worsening phenomenon in the Central Realm.

China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

Term limits for the leadership are not usually found in dictatorships. The Chinese Communist Party’s proposed abolition of China’s presidential term limit means that it has forgotten one of the main lessons of Mao’s long despotism. The two-term limit was inserted into the People’s Republic of China Constitution after the Cultural Revolution ended and reflected a widespread desire to prevent the return of one-man dictatorship. Its abolition signals the likelihood of another long period of severe repression. This should prompt us to think of Chiang Kaishek as well as Mao and Yuan Shikai and, in a comparative Asian vein, of Marcos and Park among others. Of course, some recognize that Putin’s example may also have significantly influenced Xi Jinping.

Xi’s move will have a profound effect on world order. It will enable him to move more boldly and increases the risk of his acting arbitrarily and perhaps mistakenly in international relations. It will surely hinder China’s efforts to be respected for “soft power” as well as military and economic prowess.

Xi decided to strike while the iron is hot rather than wait for later in his new term when increasing problems might have made the change more difficult. His brash step has undoubtedly aroused profound concern among the elite. Many high Party personnel, bureaucrats, judicial officials, lawyers, intellectuals, academics and business people, mindful of the past Maoist dictatorship and the increasingly repressive and arbitrary government under Xi, have seen this coming and now, in social media and other informal ways, are showing their anxieties and opposition.

But not many public signs of protest can be expected, since he has stifled free expression in the past few years. There must be great grumbling and concern among the country’s elite and educated, especially since the same Party “proposals” that have eliminated term limits have also confirmed the establishment of the National Supervisory Commission that will make the regime more repressive and more free of legal restraints than ever, imposing what amounts to “the Inquisition with Chinese characteristics.”

There is big risk for Xi at home since, as it becomes more obvious that China’s problems are catching up with its achievements, the government will look less impressive and the masses will begin to lose their enthusiasm and hold the great leader responsible. The elite will be less surprised but less forgiving.

The external risk is more immediate. Xi’s bold consolidation of power will enhance fear of “the China threat”, and his ever greater repression will make people think of Stalin’s decades-long centralization of power, even though, one hopes, Xi will not engage in mass executions. He already is engaging in mass detentions in Xinjiang even though “re-education through labor” was abolished in name a few years ago.

These “proposals” are at least a 1-2 punch against the Constitution when we consider the simultaneous establishment of the National Supervisory Commission. People often wonder—even now—how in 1937 Stalin could have said: “We need the stability of the law more than ever.” while at the very same time displaying the infamous “purge trials” to the world and lawlessly executing huge numbers of people. Xi claims to be strengthening the “rule of law” while making certain that it will never get off the ground. Tell it to all the tens of thousands in Xinjiang who are locked up in Xi’s successor camps to the supposedly abolished “re-education through labor”.

Carl Minzner’s new book: End of an Era: How China's Authoritarian Revival is Undermining Its Rise (Oxford 2018)

By Jerome A. Cohen

Fordham Law School’s prestigious Leitner Center for Human Rights gave Professor Carl Minzner’s book—End of an Era: How China's Authoritarian Revival is Undermining Its Rise—a splendid launch in an all-day program on Monday that focused on its implications for the future of  “rights lawyers”.  At lunch Carl gave an eloquent overview of the book, which is learned, analytical and stimulating while maintaining a highly readable style throughout. It is plainly directed at a broad and influential audience and likely to have a significant impact on the current reevaluation of the PRC’s power. Teng Biao and I made subsequent comments.

Teng emphasized the totalitarian aspects of the Xi Jinping era and maintained that the U.S. has a special duty to promote democracy in China and that the political costs of transition to democracy have been exaggerated. Among a number of other points he also urged Western nations to defend against PRC efforts to undermine their own democracies.

I focused on the implications for rights lawyers, urging them to recognize that the current era of extreme repression will pass, just as the Cultural Revolution did, and that they should in the interim try to avoid martyrdom by pursuing their craft within the unfair restrictions imposed by the regime in order to survive and recruit others to prepare for the better days to come. Too many brave and able lawyers have already been eliminated as functioning professionals as a result of torture and other punishments including “medication” designed to destroy their mind as well as their will, with corresponding harm to their families. 

My final point branded Xi Jinping’s efforts to justify his repression by invoking China’s authoritarian “Confucian” past as ineffective and hollow, as demonstrated by today’s Taiwan and South Korea in addition to Japan and by the prominent roles that rights lawyers are playing in those societies. China’s present leader seeks “soft power” as well as military and economic power but does not seem to realize that his repression of rights lawyers is increasingly earning the world’s ridicule and scorn.

Teng Biao made the proper point that it is very difficult for even cautious rights lawyers to always know where the regime is drawing the line at any given time, and thus some have become unwilling martyrs to the rule of law.

Chinese police's recent re-detention of Swedish Citizen Gui Minhai: What’s the story?

By Jerome A. Cohen

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Gui Minhai. Photo: Hong Kong Free Press, screenshot/CCTV.

The recent Chinese police re-detention of Mr. GUI Minhai, a Swedish citizen, when he was on the train with Swedish diplomats escorting him to Beijing, deserves more public attention than it has received. China’s action must be questioned and protested by the international community, as argued by last week’s Washington Post editorial, China’s violation of rights grows ever more brazen.   

The People’s Republic of China leaves itself open to condemnation by failing to give a public explanation of its dramatic and unusual deprivation of Gui’s freedom. This is probably because there has been some disagreement or lack of coordination in the PRC government’s control of Gui. What may have happened is that the local security police in Ningbo may have approved Gui’s trip to Beijing for medical reasons, as apparently it had approved his Shanghai trips to the Swedish Consulate there. But the central authorities, when they learned of the plan, may have panicked at the possibility that Gui might seek embassy asylum, as the blind barefoot lawyer CHEN Guangcheng did in 2012, and decided to detain Gui again to prevent that possibility. There may also have been, and still might be, a struggle between the Ministry of State Security and the Ministry of Public Security concerning jurisdiction over Gui.

I suspect we will soon see the following explanation from the PRC: Gui was living in Ningbo under “qubao houshen” (取保候审), a Chinese type of bail requiring the “released” suspect to remain in the city where he has been released and requiring him to obtain special permission for any outside trips. Although Gui has apparently completed his sentence for his earlier traffic offense, his bail must relate to the unfinished current charges for which he apparently has not yet been tried.

It is possible, of course, that the Swedish Embassy may have decided to follow the U.S. example in the Chen case and make positive efforts to spirit Gui to the embassy’s custody, but, given the Swedish Government’s quiet, conventional efforts to aid Gui to date, and to aid Peter Dahlin after his detention, that seems unlikely.

Yet, given the escort of two Swedish diplomats accorded Gui, one has to give Sweden credit at least for seeking to assure Gui better medical treatment in Beijing and for anticipating possible obstruction.

Reportedly the PRC and Sweden have differed on the degree of consular access to be permitted to Gui at various times, and these issues probably have a history going back to the original detention of Gui in Thailand, which was a brazen kidnapping. It should be noted that Sweden and China apparently do not have a bilateral consular agreement, which is odd, but both adhere to the multilateral Vienna Convention on consular relations.

These incidents involve so many as yet unanswered questions. The PRC should not remain silent even if its agencies have not yet coordinated. The Ministry of Foreign Affairs, as so often in these cases, was publicly embarrassed when its spokesperson implicitly admitted that it really did not know what was going on.

Certainly, the Swedish Government should reveal the full story behind its frustrations in this case and in others involving China, and Swedish public opinion should demand that the Government tell the truth now. 

National supervision commission and China’s silenced legal elites

By Jerome A. Cohen

The second plenum of China’s 19th Party Congress was concluded last week. It paved the way for amending the Constitution to establish a National Supervision Commission. But this proposed “reform” has encountered fierce misgivings, especially among three expert groups: members of the Procuracy, i.e., the national and local prosecutors; influential scholarly specialists in constitutional law and criminal justice; and human rights and criminal defense lawyers.

The anticipated Constitutional and legislative changes represent a huge setback for almost four decades of official, scholarly and professional efforts to establish a rule of law that will protect the rights of individuals in their dealings with the government and the Communist Party. The Procuracy has major institutional reasons for opposing the new situation, since many of its personnel will be reassigned to investigative work in the supervisory commissions that will in effect be largely lawless in terms of meaningful procedural protections for suspects. Moreover, the powers of those prosecutors who remain in the Procuracy will certainly be limited in their handling of cases sent to them by the supervisory commissions. Also, procurators, scholars and lawyers are plainly opposed to the changes for many other good reasons including the length of incommunicado detentions possible without any other check or restraint, the absence of access to counsel, the very broad scope of the conduct that can be punished, even going beyond the criminal law’s prohibitions to include alleged violations of Party discipline and public morality, and the very large numbers of people—far beyond only Party members—who will be subject to repression and fear.

These changes will create a nightmarish scenario that will counteract many of the genuine reforms to the criminal justice system that are being developed and currently discussed. Yet, after a courageous academic protest meeting drew harsh official reaction, no one has dared to speak out in a public way despite great hostility to the changes continuing to be expressed on a confidential basis.

Xi Jinping regards formal authorization of these changes, which have already taken place in practice in many places, as positive because it will give an official fig-leaf to a terrifying investigatory/punishment process that until recently has been largely practiced by the Party against Party members and that has been widely condemned as lawless by many critics at home and abroad. But this new attempt at official veneer is plainly not authentically legal, even in terms of the government’s existing legal system. The anticipated constitutional amendments cannot remedy the situation and will make major alterations in the governmental system that the People’s Republic imported from the former Soviet Union..

What is at stake here is the legitimacy of the country’s legal system in the eyes of the educated, articulate but currently silenced, influential elites. Political leaders, bureaucrats, business figures and their employees, prosecutors, judges, legislators, professors and especially lawyers have good reason to fear that they may be the next victims of a plainly arbitrary system. This is the Inquisition with Chinese characteristics!

(In)justice with Chinese characteristics: the twinned stories of two human rights activists, Wu Gan and Xie Yang

By Jerome A. Cohen

Wu Gan; source: China Change.

Xie Yang; source: Changsha Intermediate Court.

The two Christmas cases of Wu Gan and Xie Yang—victims of China’s 709 Crackdown on human rights activists and lawyers in 2015—demonstrate the continuing importance and benefits of pleading guilty. “Leniency for those who confess, Severity for those who resist.” (坦白从宽，抗拒从严) has been the fundamental maxim of criminal justice in the People’s Republic of China. The Chinese Communist Party (CCP) erected into high public principle what has long quietly been the practice of many legal systems. The insistence on confession characterized Chinese justice centuries before the rise of the CCP and for many reasons.

Confession admits the correctness of the government’s charge and helps to relieve those who administer the system of doubts or feelings of guilt they might harbor. Confession reinforces prevailing ideology. It also avoids the embarrassment and risks to administrators that appeals can cause and the delay and administrative costs involved. In China refusal to confess and insistence on appeal are seen to constitute an attack on the prosecution and the government. Confession encourages others to follow suit, and it is viewed as the first step toward the reform of the accused.

Yet how persuasive can any of these factors be when torture is so often the stimulus for confession and everyone knows this? Moreover, at least in non-political cases, the CCP is increasingly concerned about the frequency of wrongful convictions caused by coerced confessions.

The Christmas timing of the two cases is worth noting. There is no doubt the PRC government wants to be thought well of abroad as well as at home, which is why it spends so much on a worldwide system of propaganda and seeks to control the UN and other organizations regarding the PRC’s suppression of human rights. Of course, it prefers not to reveal many abominable acts, which is often possible because of its domination of the media and even social media.

The timing of its repressive human rights acts depends on many factors. Certainly, when it’s possible to manipulate the timing of acts of repression that are likely to be condemned by the world, the PRC is eager to do so in order to reduce publicity and minimize harm to its quest for soft power. The dates of trial hearings and sentencings are one example among many others.

The twinned stories of Wu Gan and Xie Yang may be destined to continue and provide more grist for the mills of those who study the PRC’s expansive and imaginative detention policies. It will be important to see, of course, how long Wu Gan can remain alive and resistant in captivity. It will also be important to see to what extent Xie Yang, having reversed his previous stand under torture, “confessed” on demand and thereby won exemption from further formal imprisonment, will be allowed to resume his former human rights advocacy or, like most of his comrades, remain in what I call “non-release ‘release’”.

The misleading term “house arrest” no longer does justice to the varieties of informal, unauthorized, suffocating restrictions on their freedom that most “released” human rights advocates are suffering. Indeed, many human rights activists suffer such restrictions even before they are formally detained! The PRC has blurred the line between “detention” and “freedom”, giving new meaning to these words.

A noteworthy new book: “The People’s Republic of the Disappeared”

The New York Times Sunday Review has an important article--In China, the Brutality of ‘House Arrest’--by Steven Lee Myers featuring excerpts from three of the twelve essays in the new book “The People’s Republic of the Disappeared” organized and edited by Michael Caster. They all are about personal experiences in the torture chamber parading under the bland title “Residential Surveillance at a Designated Place” (see below for an explanation of the RSDP in relation to the world-renowned artist Ai Weiwei’s 2011 detention*).

Ex-law professor/lawyer Teng Biao, himself one of the victims of these official kidnappings, contributed the Foreword to the book. One of the most chilling of many quotable statements comes from human rights activist Tang Zhishun:

“At times the guards warned me that my wife and child, despite being in the United States, were not as safe as I might think they were. Chinese agents could still kill them. They said the same thing about my mother.”

I used to regard such often irresistible warnings as mere interrogators’ threats, but no longer, and they are reminiscent of the words and deeds of the KMT as recently as the late 1970s!

I hope this NYT Review, even though buried in the Sunday paper on Thanksgiving weekend, will enhance interest in a deserving book that is likely to be ignored by the media without this kind of help. 

* Residential Surveillance at a Designated Place (RSDP) and Ai Weiwei

Ai Weiwei, who suffered RSDP in the spring of 2011 before it was even formally authorized for people who maintain residence in the jurisdiction, has done a lot through imaginative art and theater to publicize RSDP’s true nature. The publicity efforts of some of us about his case and the massive foreign petition from the foreign art community that the publicity inspired provided some of the pressure (there was also domestic pressure) that caused Party legislators to deal with RSDP in the 2012 new criminal procedure code.

Since Ai was supposedly investigated and detained for alleged tax violations, he could not be legally detained via RSDP on similar charges even today since that charge does not fall within the three circumstances ( i.e., cases involving national security, terrorism or serious bribery) that have authorized RSDP since the 2012 new criminal procedure code (Art. 73) was enacted. Of course, all the police need for “justification” is a suspicion that his conduct might be against “national security”, a suspicion the reasonableness of which cannot be effectively challenged in the PRC today.