The NSL Is Already Changing Hong Kong. How Far Will It Go?

By Jerome A. Cohen

Although I always thought that the 2005 Anti-Secession Law was much-ado-about-nothing, the National Security Law (NSL) is very different. Whereas Taiwan was relatively unaffected by the passage of the Anti-Secession Law, the NSL is already having a huge impact on many aspects of life in HK, but quietly. For example, will scheduled courses in Chinese politics and modern history be taught in the coming academic year and how? Appointments and promotions made as originally anticipated? Will people exercise their freedoms as before? Beijing is waiting to assess the immediate impact. 

In the meantime, the NSL has aroused far greater international concern than perhaps anticipated, so Beijing has another motive for proceeding slowly rather than via the “Operation Thunderbolt” that former Hong Kong deputy police commissioner Tony Kwok recommended. Prosecutions under the NSL may be a later manifestation of the new regime. Besides, there are the existing prosecutions under the pre-July 1 regime. E.g., Benny Tai may lose his appeal. Joshua Wong may also go to prison without the need to apply the NSL. But the clock is ticking on the September Legislative Council election, and this will likely be the first public shoe to drop in seriously implementing this all-encompassing, vague NSL. No nasty Central Government criminal prosecutions are yet necessary, but “merely” a succession of technical, administrative steps that will ultimately emasculate the election. The process will seem relatively soothing and assuring compared to the spectacle that would be created by dragging Martin Lee and Dennis Kwok to Beijing for incommunicado detention and secret trial.

The Case of Chinese Public Intellectual/Lawyer/Activist Xu Zhiyong Raises Questions About PRC Police Discretion to Detain Suspects

By Jerome A. Cohen

Xu Zhiyong speaks during a meeting in Beijing in 2013. Xiao Guozhen via Reuters

The recent formal arrest of Xu Zhiyong raises questions about the relationship of the notorious Residential Surveillance at a Designated Location (RSDL) to the regular criminal process and other forms of Communist Party-police coercion. Xu has been held incommunicado since his February 15 detention. He was formally arrested for “inciting subversion of state power” last week and has now been reportedly placed under RSDL. 

I have been under the impression that, under China’s Criminal Procedure Law, supposed “national security” suspects have often first been subjected to up to six months of RSDL. Then the police decide what the next step should be. That could be release with no further criminal processing, or the granting of the PRC equivalent of “bail”, or formal “arrest” followed by continuing detention while the case undergoes further investigation in preparation for the decision whether to indict and prosecute the suspect. “Bail” can also be granted after “arrest”. Whether granted before or after “arrest”, “bail” usually means that the case will be dropped quietly if the suspect does nothing objectionable to the police within the next year.

AMNESTY’s report on the fates of various lawyers detained by the police after their informal December 2019  meeting in Xiamen is worth reading. Although the bail for lawyers Dai and Zhang and the continuing detention of lawyer Ding for apparent prosecution seem consistent with what I know of the usual practice, I wonder about Xu’s case. Is he only now being sent to RSDL and after, not before, formal arrest? If that’s the case, under what authority was he held for the months since February 15? 

The Public Order Administration Punishment Law only allows maximum police detention for 15 days for each minor offense. Might Xu have initially been held under RSDL and is he now being sent back for a second time after arrest? Such a maneuver would be a disturbing extension of police power.

Might Xu have been initially detained in accordance with the 2018 National Supervisory Law’s “liu zhi” sanction? Nominally, ”liuzhi” is not supposed to be “detention” but in fact it is another type of incommunicado confinement, one that is outside the Criminal Procedure Law. It is the successor to the Party’s long-feared “Shuanggui” that the Supervisory Law has authorized for applications far beyond those who are Party members. 

Has anyone seen any details that might help explain Xu’s detention process and how the various sanctions available to the Party-state relate to each other? I have seen no indication that Xu might have been held under other supposedly non-criminal administrative provisions authorizing detention for prostitution, drug or other anti-social behavior or because of severe mental illness. Might the Amnesty report have simply made a mistake about Xu being sent to RSDL after arrest instead of being transferred now for likely indictment and trial?

To what extent will Hong Kong's new National Security Law "educational reforms" affect its law schools?

By Jerome A. Cohen

Thus far, apart from concern over the fate of Professor Benny Tai, whose earlier criminal conviction now pending appellate review has left him free on bail but under review for possible removal from the Hong Kong University Law School faculty, little attention has been paid to the potential impact of the new NSL on the SAR’s law schools. 

Will freedom of speech continue to prevail at the many forums they sponsor? Will speaking panels be unfairly tilted in favor of pro-government advocates?  Will certain teaching appointments for untenured professors not be renewed for unspoken political reasons? Will certain courses no longer be taught, or their content skewed in response to the new situation? Will new, politically inspired courses be added? Will there be pressures on scholars not to research certain topics or to pursue others? Will classes be monitored by students who are encouraged to report discussion of forbidden topics? What topics might be forbidden? Will the criteria for enrolling undergraduate and post-graduate students be altered? For hiring teachers and research scholars? Will it be possible to continue cooperation with foreign law schools and research institutions and to attract foreign students? Many other questions might be asked. Much is at stake here.

A closely related issue is the impact of NSL Article 55 on academia more generally, making individual scholars subject to government prosecution, not merely restrictions imposed by their academic institutions. Some analyses may be drawing the potential net for prosecution too narrowly. I fear the law may go beyond the examples being discussed by expert observers. For example, in view of Article 55, many scholars now teaching in HK, whether bred in HK or arrivals from the Mainland or from foreign climes, are asking themselves, as recently as today, should they continue to grant interviews to foreign media, take part in international Zoom-type fora, write another op-ed or blog condemning the new NSL, meet with students including foreign students, etc.? Moreover, are their foreign interlocutors likely to also be pursued by the PRC as “colluders”? And will activist scholars in HK have alleged violations of the NSL used against them when they apply for promotion, course assignments and research grants? These are not merely academic questions, as many well appreciate. 

Furthermore, although I agree that it’s best for activist teachers to carry on until some specific warning is issued, it is a more difficult decision for a university professor who is not a foreign national. Yet I have even advised one who isn’t a foreigner to not significantly self-censor until a warning is issued. In response I was told that informal warnings and advice had already been personally given by university officials, even before adoption of the NSL!! In these circumstances, even the bravest are now becoming at least somewhat more discreet. 

Was Helping China Build Its Post-1978 Legal System A Mistake?

By Jerome A. Cohen

I am glad to see publication of this semi-memoir in the Virginia Journal of International Law Online, originally done for a stimulating conference reviewing the last forty years of China’s legal development convened by the University of Michigan last October. It addresses the present claim that those of us who responded to the PRC’s requests for help in reconstructing its legal system after the Cultural Revolution not only wasted our time but also helped build up a fearsome world power. I was also stung by the different claim that, in aiding China, I had become another instrument in the history of America’s legal imperialism. What puzzled me especially was that the able author of the latter claim, who previously visited my NYU office, never interviewed me or colleagues in our China effort. For some current histories the documents of the dead are insufficient. Please find the article here.

What’s Next for Xu Zhangrun?

By Jerome A. Cohen

Although Professor Xu Zhangrun, a leading and outspoken scholar of Chinese law, society, politics and history, was released after six days of detention by Beijing police, he’s now been dismissed from Tsinghua University and any public office. I wish Xu hadn’t returned from Japan and perhaps now he does too. His next move? One option is to go on occasionally publishing in China or, more likely, abroad and get locked up much more seriously like Xu Zhiyong and so many other able, outspoken reformers. Another is to try to keep silent, do serious research and contemplation to the extent extensive “non-release release” restrictions permit, and wait for a better day. The third is to leave the country at least for the immediate IF he and his family are allowed to do so. Will the Party let him go?

Former Chinese law professor Teng Biao, whose academic career followed a similar downward political spiral and who was three times actually kidnapped by PRC police in China, happened to be in Hong Kong with one of his children when the Party’s final blow landed on his career in the country. But it took his wife and their older child a year to escape and only after a harrowing 26-day trip from Beijing to Boston, including a secret motorcycle rescue via Southeast Asia.

Xu Zhangrun

The Impact of the Hong Kong National Security Law—Outside of Hong Kong

By Jerome A. Cohen

Recently, the State Department warned US citizens in China to “exercise increased caution” in light of the new Hong Kong national security law although it cautiously does not mention the law by name. We are all waiting to see how the PRC interprets Article 38 of the new NSL for HK that on its face purports to cover speech and other conduct by anyone anywhere that the PRC claims to have violated the HKNSL.

The notice is available to all Americans who might plan to travel to China as well as those already there. It is interesting that it warns that consular access might be denied. Even the two Canadians, Michael Spavor and Michael Kovrig, who were detained 18 months ago, had Canadian consular access until this past January when it was cut off allegedly because of Covid-19. The problem is that the PRC version of consular access is very limited. Meetings usually occur once a month at best, they are short, and it is not permitted to even discuss the case that led to the detention. Moreover, PRC commitments to allow appointment of a defense lawyer are not honored. 

The PRC may modify the NSL's extraordinary breadth by announcing additional prerequisites to prosecution in the law itself and/or by demonstrating in its application of the law or through informal public statements that it recognizes that the literal wording goes too far and won’t be applied. But, so far as I know, it has not yet done any of these things. PRC authorities may be scrambling to come to a conclusion about what to do to meet the rising world concern and opposition.

In the interim, Article 38 has certainly had a strong deterrent impact in many countries and is already affecting the calculations of many NGOs and ordinary citizens abroad about their plans and conduct. The State Department is of course most immediately concerned about Americans currently within China’s borders, presumably including Hong Kong, since they are subject to immediate enforcement of the broadest interpretation of 38 if that is the path the PRC decides to pursue. But it should surely notify anyone who, although not currently in China, is planning to travel there, including those who may merely be planning to pass through en route to further destinations.

It is interesting to see the emphasis on private electronic communications. The email warns citizens that they may be detained or deported “for sending private electronic messages critical of the Chinese government.” What is the State Department’s premise? That emails and phone calls wholly between persons outside China are susceptible to PRC monitoring and potentially subject to prosecution? Internet chats? Direct communications between someone outside China and someone inside? “Only” communications wholly within China? The NSL has already had an impact outside of Hong Kong, but it is still unclear what the full impact will be. However, I suppose we have to be grateful that the HKNSL has done a lot to alert the world to the dangers of arbitrary detention in China that too many have long ignored. 

The 709 Crackdown is a Permanent Process

By Jerome A. Cohen

I recently had an interview with William Yang on the fifth anniversary of the “709 Mass Arrest.” Although I do not think that the intensity has increased, this campaign has become a permanent, ongoing process. This is partially because the original crackdown did not wipe out all of its intended targets, but also because Xi Jinping is experiencing increasing pressure at home and abroad. Read the full interview here.

Our 709 commemoration evokes the memory of the 1957-58 anti-rightist movement

By Jerome A. Cohen

The ongoing suppression of human rights lawyers and legal scholars in China makes me recall the huge attack that was dramatically launched against them in early June 1957 as Mao decided to end the dangerously developing “Hundred Flowers Bloom” Campaign by launching the Anti-Rightist Movement. One of the major targets was law professor YANG Zhaolong, Harvard Law SJD and protégé of former Dean Roscoe Pound, who played a prominent role in Republican China’s legal development and who decided to stay on to help build a post-Liberation legal system. He was often attacked in existing legal publications of the day, detained and punished as an “extreme rightist” and, after his release, again punished severely during the Cultural Revolution as a “counterrevolutionary”. In 1971, Yang was first sentenced to death but, because he was so well-known abroad, this was reduced to life imprisonment. His wife and son also suffered severely. After Mao’s death and Deng’s rise, Deng, who had presided over the horrendous Anti-Rightist Movement as the Party’s Secretary-General, began the process of rehabilitating (平反píngfǎn) many of those who had been most unfairly abused. Yang died in 1979 some time after his release and was posthumously rehabilitated in 1980. In 2017, Fudan University managed to get by the censors a massive volume of Yang’s collected writings, mostly but not entirely from the relatively freer pre-Liberation days, in tribute to him but also as an impressive, implicit signal of the continuing loss to China’s rule of law efforts.

To Stay or to Go: Hong Kong Academics Face an Uncertain Future

By Jerome A. Cohen

Following the passage of the Hong Kong National Security Law, it was announced that educational materials will be subject to government “guidance,” and some libraries have begun to pull books by pro-democracy activists off the shelves. This bleak turn of events is obviously worrying to the academics living and teaching in Hong Kong and has been the subject of much discussion with some wondering if they should leave, or if it is even more important now that they stay.

These events have made me think of 1949-1950 when many able Chinese returned amid the excitement of creating a new and stronger China. Others returned later, especially during the optimistic 1953-57 period. Some important and talented people were not permitted to leave the US for China for several years after “Liberation,” especially Qian Xuesen, the Cal-Tech rocket scientist who later became famous for his role in PRC nuclear development. Some intellectuals even chose to go back in the 1960s just before the Cultural Revolution broke out. The great Harvard-based scholar Ch’u Tung-tsu, who in 1962 published Local Government in China Under the Ch’ing and who welcomed my interest in China during our brief meeting, had the misfortune to return not long after the book’s publication. I next heard of him when my wife bumped into him and a small group of Shanghai scholars climbing Huang-shan in mid-September 1979. Life would have been pleasanter and more productive for him had he remained at Harvard’s East Asian Research Center. 

My hope is that people stay if possible and continue to teach and research as they have previously done. As an example, before Hong Kong was returned to the PRC in 1997, China News Analysis chose to leave Hong Kong for Taipei, leading to the demise of the publication. Father Ladany, its editor when I was breaking into the field in the ‘60s, was a shrewd observer and critic of the PRC’s efforts to develop a legal system, and it is a shame that the publication left when it did. Of course, we all hope that those foreigners who stay on to teach sensitive subjects like history and law in HK will not suffer the fate of French academics who decided to stay on in Shanghai after “Liberation.” In a long piece that is about to be published and that is already on SSRN, I discuss, among other things, the PRC’s criminal punishment of Dean Andre Bonnichon of the Aurore University Law School in Shanghai. Fortunately, he was ultimately released and later vividly described the long incommunicado detention and coercion that he suffered, which hopefully will not happen to those who wish to stay in Hong Kong. Whatever happens, those on the outside will surely learn from the experiences of those who stay. We must wish them bonne chance! 

The new national security law for Hong Kong: “Do what we say and you will be fine and even happy.”

By Jerome A. Cohen 

Here’s an RTHK interview with my former student Professor Albert Chen—who is a member of the Basic Law Committee—about the new national security law, 'Security law is like a new social contract'. 

As every law professor should know, a contract is one voluntarily entered into by the parties to the contract. Perhaps earlier one might have optimistically said that, despite the unequal bargaining powers of the parties, the Basic Law established a social contract since, over a very long negotiating process, the UK and even representatives of the people of Hong Kong took part in the different stages of the negotiating process. But the new national security law is in no possible sense a contract. It is a secretly drafted, extremely vague, non-negotiable political and social diktat that has immediately shrunk freedoms in Hong Kong.

The new “rule of law,” enforced by Mainland police and their local minions, is “Do what we say and you will be fine and even happy.” People will gradually lose even their freedom to be silent. Sadly, the time for benign optimism has plainly passed.  

My quick reading of the troubling national security law for Hong Kong

By Jerome A. Cohen

I have been asked by journalists about the new national security law (NSL) for Hong Kong (Chinese text here; Xinhua’s English translation here). Here are some quick comments that highlight some of the key points to be made about this new law, which bristles with legal issues. Zhang Xiaoming’s ambiguous but threatening remarks just quoted by Reuters make what is written below, written before Zhang’s latest remarks, even more relevant, beginning with the paragraph numbered 2.

The real impetus for the NSL is not the need to prohibit the offenses proscribed, although some new ones, especially relating to “foreign and external” influence, have been added to the already largely adequate Hong Kong criminal laws. 

The major changes can be summarized under four categories:

1. Institutional innovation establishing Central security and judicial controls over anything called national security and integrating Hong Kong Government firmly under control of the Central security agencies

2. Jurisdictional expansion designed to give Central security agencies, prosecutors and courts control of punishment of those deemed the most serious offenders AND the discretion to decide which of the most serious should be tried in Hong Kong but under the new system of Hong Kong “justice” for national security cases. This means that some suspects will be forced to go to the Mainland for detention, prosecution, trial and sentencing by Mainland authorities skilled in dealing with national security cases, or tried in Hong Kong under the imported Mainland system! (No reference to the nasty, inflammatory concept of “rendition/extradition” but how do the suspects shipped to the Mainland get there?)

3. This leads to the third category — Procedural innovations for suspects including not only residents but also people outside Hong Kong charged with acts abroad. For example, the new Mainland Office in Hong Kong can question, investigate, detain and deny bail to people according to Mainland practice, including Invitations to tea and no privilege against self-incrimination when police ask questions. If as prescribed the Office decides to prosecute you under Mainland processes either in Hong Kong or the Mainland, under the PRC Criminal Procedure Law, as a national security case suspect you can be locked up for as long as 6 months incommunicado, which subjects you, illegally of course, to torture and coerced confession, legally to no access to counsel or family or friends, before the police decide whether to process you for a crime according to the ordinary procedure. If the police decide instead to process you under the new Hong Kong special procedure, you get specially selected Hong Kong prosecutors and judges. And no jury trial but three judges. If selected for trial by Mainland processes, either in Hong Kong or in the Mainland, you get the usual Mainland national security processes, such as they are.

4. The fourth category is the electoral consequences of the new law. If you fail to endorse it, you can be removed from existing public offices — Legco or District Council — or disqualified from running for those offices, etc.

Much depends on the Law’s interpretation by the National People’s Congress Standing Committee (NPCSC), which has exclusive power to interpret. How should those special Hong Kong judges allowed to deal with these cases obtain any necessary NPCSC interpretation? Normally a Hong Kong court could itself interpret the Law or even invalidate a provision subject to later NPCSC reversal. But now only the NPCSC can take the first and last shot at its meaning.

There’s also the important question of how “state secrets” in many places of the Law will be interpreted. Based on the Mainland’s practice, “state secrets” are whatever the police choose to define them as in the case at hand and, despite relevant legislation, it is impossible to seriously challenge the designation in discussions with prosecutors before or after indictment or in front of judges during trial and appellate proceedings. Usually defense lawyers themselves simply have to accept the designation and certainly cannot seek help from experts or others since they are not allowed to reveal to others any information pertaining to these secret, closed trials. Years ago a defense lawyer I had recommended to a Chinese defendant in an alleged “State secrets” case could not risk discussing the proceedings with me.

As to the tricky Article 38 (“This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.”), some nations in principle claim the right to punish foreigners as well as their own nationals for acts abroad that have serious adverse consequences at home or against their nationals abroad. Others purport only to ban the adverse acts of their own nationals abroad. There will be a huge reaction to any PRC claim to punish foreigners for adverse acts committed abroad that are not proved to have serious consequences at home or against the nationals of China abroad. The international community is likely to reject any attempt at such a claim as another PRC violation of public international law. In interpreting Art 38, as it will have to, the NPCSC will undoubtedly look to the relevant provision of China’s criminal law and say that foreigners may be punished if their acts have a certain level of seriousness, such as that of similar offenses in China that call for at least three years of punishment, AND IF those acts are also punishable in their own country. Thus, Americans, for example, can safely condemn the NSL while in the US without being subject to PRC conviction for a NSL violation since such condemnation is not punishable in the US, being an act of free speech.

To me, more serious is the range of problems arising from the inevitable need to interpret the collusion with foreign forces provision. These are not merely interesting theoretical questions but of the utmost practical significance to foreign and Taiwan scholars who cooperate with HK academics, lawyers, NGOs and democratic political figures. Do I dare to host Martin Lee, Jimmy Lai, Dennis Kwok or Anson Chan (if she returns to the scene) again at the Council on Foreign Relations in New York? The legal danger will be theirs; I will probably be mentioned only as an unindicted co-conspirator!

All in all, this is a Takeover of HK, not, as billed, a “second Handover”.

For a checklist and analysis of the issues, the long piece I had in The Diplomat a couple of weeks ago may be of interest, since many issues discussed in that piece are rising daily.

ASEAN Takes a Subtle Stance Against China’s Maritime Claims

By Jerome A. Cohen

On Saturday, ASEAN member states took a subtle but important step forward toward asserting the all-encompassing authority of the UN Convention on the Law of the Sea (UNCLOS) over PRC claims. UNCLOS, Beijing argues, despite the 2016 major contrary decision of the Philippine arbitration tribunal convened under UNCLOS that the PRC spurned, still leaves open the possibility of legitimate PRC claims to “historic rights” and a preemptive “nine-dash Line” in the South China Sea. Yet, without specific reference to the unanimous Philippine arbitration decision interpreting UNCLOS, which would have plainly infuriated the PRC, this new ASEAN statement, crafted by Vietnam but apparently acquiesced in by all ASEAN members, explicitly confirms that “UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out”.

This cautious, collective “diplomatic speak” can be read to mean that any PRC maritime activities in defiance of the authoritative Philippine arbitration award interpreting UNCLOS are illegitimate. Of course, the PRC claims that the tribunal’s expert arbitrators, among the world’s leading law of the sea specialists, misunderstood UNCLOS and that a proper reading would sustain the PRC’s position.

This is what makes fascinating the recent signals that Vietnam may finally pursue its own maritime legal claims against the PRC by following the Philippine example and initiating its own claims against the PRC via UNCLOS arbitration arrangements. Curiously, the PRC has recently reportedly hinted at a possible receptiveness to Vietnam’s suggestion that Hanoi and Beijing agree to invoke third party legal decision-making to settle their maritime issues, which would be a momentous and positive step toward international law for Beijing. But don’t hold your breath waiting for Beijing’s agreement to any type of impartial, independent international maritime arbitration or adjudication. Nevertheless, at least some reconsideration of the wisdom of PRC refusal to take part in the Philippine arbitration may be under way in Beijing. 

Vietnam’s initiation of arbitration would itself be an exciting development, even more so than the Philippines’ stunning 2013 decision to try to take the PRC “to court”. A second authoritative arbitration award invalidating the PRC position would be a grievous blow to Beijing’s continuing legal efforts. For years I have been urging Vietnam to take this legal plunge despite the countervailing political and economic pressures that have inhibited Hanoi from going to law against the powerful neighbor on its borders.  International law is the last resort of the weak against the powerful. Yet invoking it can be risky!

More About Canada, China, and Arbitrary Detention

By Jerome A. Cohen

As I have written here before, in the Gao Zhan espionage case in 2001, the US State Dept and the PRC MOFA quietly agreed that she would be released on ostensible medical grounds but only after first being convicted and sentenced to 10 years in prison. Her trial followed shortly afterward, and she was released 48 hours after sentencing. Because of the added Meng extradition element in the current Canadian dispute with China, the Gao Zhan case is not analogous to that of the two Michaels but its resolution is relevant. Although Gao was not yet an American citizen, she was on the cusp, and she had tremendous public support from the US academic community because she was a US-trained and US-based scholar of Chinese society engaged in fieldwork in China. Her detention and prosecution seemed to threaten all serious foreign scholars working in China. Only later was it discovered that she had been secretly working for Taiwan intelligence - as well as also earning a living by illegally exporting to the PRC American high-tech electronic equipment that was banned from export under the US Trading with the Enemy Act. This was no simple multitasking but “walking on two legs” following Mao’s famous maxim. 

Although I believe, with Trudeau, that Canada should not yield to PRC hostage diplomacy, if it should do so eventually, it should certainly not do so on the basis of the PRC first convicting the two Michaels of the crime charged. They could instead be released sequentially on one medical excuse or other prior to trial. The PRC might try to negotiate their convictions for respective minor offenses as a face-saving measure in a pathetic attempt to justify their long, barbaric detentions. Years ago, during the Jiang Zemin era, when at trial a courageous defense lawyer demonstrated that the PRC could not plausibly convict a Chinese employee of the NYTimes Beijing Bureau of leaking state secrets to a foreign organization, in order to justify the years of his pre-trial detention the Beijing High Court convicted him of a much lesser, unrelated offense that had arisen from what was really more of a civil dispute than a criminal matter. 政治掛帥, zhengzhi guashuai! Politics is always in command of the Chinese courts, as Xi Jinping and his minions repeatedly advocate.

Arbitrary Detention, Canada and the National Security Law for Hong Kong

By Jerome A. Cohen

This recent article details the disgraceful PRC arbitrary detention of the two Michaels and the understandable strains this has placed on domestic Canadian politics as well as Ottawa’s relations with China. In a recent letter, a number of prominent Canadians urged the prime minister to end Meng Wanzhou’s extradition process in exchange for Michael Kovrig’s and Michael Spavor’s release. Despite the emotional pressure that all of us feel in sympathy with the tragic, unfair plight of the Michaels, Prime Minister Trudeau’s decision not to yield to hostage diplomacy is undoubtedly the right one from the viewpoint of Canadian law, values and government, as well as Canada’s international relations generally and its continuing contributions to public international law. An equally prominent group of Canadians recognized this in an answering second letter.

The right course for the authors of both letters and for all who want to end hostage diplomacy by powerful dictatorial regimes is to join forces and press all democratic governments to denounce and excoriate the PRC’s gross misconduct in every available forum. The current public effort of the UN Human Rights Special Procedures experts to condemn China’s forthcoming National Security Law for Hong Kong is only one excellent precedent to emulate. Although Beijing’s veto precludes UN Security Council action, and Beijing’s influence over the UN General Assembly and even the UN Human Rights Council still staves off significant actions by those institutions, the impressive large group of politically independent UN human rights experts who have courageously signed this just-released statement have taken a very important step that deserves the fullest world appreciation. 

Indeed, there is a link between these two outrageous situations. The fate of the two Michaels demonstrates how arbitrarily the PRC Party-controlled apparatus can be manipulated in the name of “national security.” Kovrig may indeed be deemed the unwitting vanguard of Hong Kong-based political experts to be sacrificed in the PRC in the name of China’s “national security.”

Confusion and Contradictions Surround the National Security Law

By Jerome A. Cohen

As leaks continue to seep out from various official and semi-official sources about the contents of the forthcoming National Security Law, some of them muddy the waters even more. This just-released SCMP story is a classic case of confusion. In quoting several speakers, it mixes up several questions: 1) By what process will the HK Chief Executive be permitted to appoint the panel of NSL judges? 2) Will it be possible to include judges holding foreign nationality in the panel to be appointed? Judges with HK and foreign ties? 3) To what extent will there be cases under the NSL that are deemed to be outside the jurisdiction of HK courts and only subject to the jurisdiction of the central authorities?

I could not understand the remarks attributed to Zhang Yong, Vice Chairman of the Legislative Affairs Commission of the NPCSC, who seemed to counter concerns about judicial independence with opaque references to judicial jurisdiction. Perhaps the reporters garbled the text of his speech, which I hope to see soon.

Each Day Reveals New Problems with the Imminent National Security Law

By Jerome A. Cohen

This one-day marathon charade of “informal public consultations” for only select supporters of the forthcoming National Security Law would be a laughable farce, as a good farce should be, were the subject not so serious.

The day’s most significant reported addition to what has already been reported is the amazing statement attributed to law professor Priscilla Leung, a HK lawmaker and member of the Basic Law Committee, that the only people who will be sent to the Mainland for prosecution under the NSL will be those who advocate independence for Tibet, Xinjiang and Taiwan! Can this be an accurate account of what she actually said?

Will it now be prohibited for all persons in HK, including foreigners, to express support for independence for Taiwan and the two “autonomous” regions whose long-suffering fate may point the way to HK’s future autonomy? Will people be prosecuted in the Mainland for expressing such support outside China as well as in HK? And what about expressing support for HK’s own independence or genuine autonomy? Will people who voice such sentiments NOT be forcibly transported to the Mainland for trial? That seems very unlikely and inconsistent with the  slogan that best summarizes the new regime - “Equal Injustice Under Law”! 

Furthermore, each day results in more in the series of piecemeal revelations to which the public is being treated. Deputy director of the NPCSC Legal Work Committee, Zhang Yong, recently contradicted Carrie Lam’s statement that there will not be a nationality restriction on judges appointed in national security cases. Apparently, the leadership believes that a slow unveiling of the law is a preferred strategy for minimizing adverse popular reactions – gradually ease the people and the world into the new era rather than spring the whole repressive apparatus on them “cold turkey.” The full truth will continue to be progressively revealed once the new NSL is applied. After the law’s promulgation, the key question will be: will Xi Jinping think it more effective immediately to launch the stunning massive repression that former ICAC deputy commissioner Tony Kwok advocates – “Operation Thunderbolt” - or should the campaign begin slowly and be geared to the strength of the popular pushback?

Judicial Appointments Under the National Security Law

By Jerome A. Cohen

Here is another interesting development. As a result of criticisms from highly respected sources in Hong Kong and elsewhere – NOT Tony Kwok or Grenville Cross, some flesh has been put on how the Chief Executive will exercise the power to appoint judges for security cases.

The system being articulated may not in itself be a bad one or an unusual one if the question of how to appoint judges is viewed in the abstract and in comparative terms. But in the context of existing HK reality, one has to ask, as many still do: why is this new appointment system being introduced? Why is it limited to security cases? HK already has a good system for selecting judges for ALL cases. Who is being excluded from the HK judiciary for consideration of these special cases? Foreign judges? Judges considered too sympathetic to democracy? Why?

Moreover, this whole desirable flap over judicial independence obscures the even more serious problem that will certainly persist. That problem arises from the breadth of the definitions of the offenses to be proscribed in the National Security Law and the broad discretion this will give HK government prosecutors to bring charges. For example, the next time Martin Lee and Jimmy Lai come to New York, if they again speak at the Council on Foreign Relations as they recently did, will this lead to their prosecution for “colluding with foreigners’” for saying things that the HK government and its willing Secretary for Justice think should be regarded as “against the interests of HK”?

An independent judge will look at the breadth of the statute and find that the words involved are not self-defining. The judge will have to decide whether the interpretation put upon those words by the prosecution, so broad as to prohibit the speeches involved, is a proper one or whether, in the interests of freedom of speech and other constitutional considerations, a narrower interpretation protecting the freedoms in question is to be preferred. Hong Kong judges have been capable of taking on this task of interpretation until now.

But the NSL now clearly commands that all future interpretations of this nature must be made NOT by HK judges but exclusively by the NPCSC. This is the core problem that focus on judicial appointments alone obscures! Yet we are not allowed to learn – until too late, when the law emerges - how the new offenses are defined, if at all, in the law. Amazingly, even Carrie Lam admits that, even at this late date, she, Hong Kong’s stoutest defender of the draft, has not seen all of it! And in the absence of release of the draft text, all the symposiums of limited, selected audiences currently being convened by PRC agencies are a meaningless, even deceptive, substitute for the usual genuine public consultation that the draft deserves but has been denied.

Grenville Cross Ignores the National Security Law’s Dangerous Effects

By Jerome A. Cohen

Here is todays’s preposterous and frightening Xinhua story about the National Security Law. It relies, as China Daily and other PRC propaganda vehicles have, on former Hong Kong Director of Public Prosecutions, Grenville Cross, who continues to wax enthusiastic about the very broad potential reach of the forthcoming NSL, which he sees as an “antidote” and a “minimalist” approach.  

While justifying the law in terms of the need to put down violence and terrorism, Cross nevertheless suggests interpreting the criminalization of collusion with foreign or external forces to include “asking external forces to harm the interests of Hong Kong officials or agencies, or to otherwise hurt the interests of Hong Kong.” So, if Martin Lee, Jimmy Lai, Dennis Kwok and others, even including Anson Chan, again criticize Carrie Lam or her subordinates while in New York or Washington DC, they can soon be sent to prison for up to 10 years. Moreover, they will not even have to criticize any HK officials or agencies. It will be enough for them to say anything that the successors to Mr. Cross may claim has “hurt the interests of HK,” even if many in and out of Hong Kong believe that what the defendants have said actually supports the true interests of Hong Kong.

How can Cross keep a straight face as he repeats that the NSL’s arrangement for the Chief Executive to appoint the judges who will try the accusations made by his government does not affect the SAR’s judicial independence? Certainly the HK Bar Association dismisses this as nonsense, as does Andrew Li, the able first Chief Justice of HK, now retired, who is quoted, NOT in Xinhua or China Daily but in the June 22 SCMP, as saying that giving the chief executive the power to select the judges would be “detrimental to the independence of the judiciary.”

Thoughts on Human Rights Lawyer Wang Quanzhang’s Interview

By Jerome A. Cohen

Human rights lawyer Wang Quanzhang

Here is the latest report on the famous, now released from prison, human rights lawyer Wang Quanzhang. Its description of the torture and many other abuses he suffered while being convicted on national security grounds in China should be of interest to all in Hong Kong who might fall into the category of “the very small number” of people whose prosecutions for violations of the forthcoming National Security Law might subject them to central authorities.

The report is a curiosity in several respects. Why has the PRC allowed this first “face to face” media interview with Wang as well as his earlier interviews with overseas media? This is not normal “non-release release” for PRC ex-political prisoners.

Why does the interview feature only the torture and other charges that Wang has already made known but says nothing about his earlier vow to pursue justice and try to review his case in PRC courts? Has Wang made any progress in this notoriously uphill struggle? How has he tried to proceed? Is he refusing to talk to foreign media about this current effort in order to avoid possibly prejudicing it because of adverse PRC official reactions?

The translation of the interview seems a bit odd in places, especially to call the abusive police, prosecutorial and judicial measures taken against Wang “sloppy.” I wonder what the Chinese term Wang used was.

Important Information Withheld in the National Security Law Draft

By Jerome A. Cohen

Here, in an amazingly short time, is a useful, quick analysis by the astute NPC Observer of the summary of the draft National Security Law distributed following the end of the NPCSC’s June 18-20 session. It notes the failure of the summary to enlighten us about the definitions of the four major offenses, and the vagueness surrounding the circumstances in which and methods by which the Central Government will exercise jurisdiction over the “very few” cases that cannot be left to Hong Kong. There is not a word about extradition, there is no clear light about jury trials and care NOT to use the anticipated term “special court” to describe arrangements for what is in effect a special court, no mention of the privilege against self-incrimination, no details about whether the Chief Executive will pick judges for each case or only for the special panel from which they will be selected, no mention of whether foreign judges will be excluded from the security trials, and so many other judicial issues skirted, including how courts are to receive interpretations of the NPCSC in cases that raise issues of statutory interpretation or constitutional questions. Also still a mystery is whether the public will be given a formal chance to submit written comments on this fragmentary material or if it will be left to the restricted channels currently existing for registering popular reactions. No referendum, school protests, boycotts, strikes, or public demonstrations; only limited access to government circles and resort to the media, civic and academic meetings, etc. Will opposition to the draft NSL today lead to trouble with the new system tomorrow? We are told that no punishments will be imposed for conduct committed before it was proscribed by law. That major judicial principle may still be observed when a security court makes its decision but surely it will not prevent the new security police from initiating the investigations that will lead to prosecutions ostensibly limited to NSL-proscribed conduct. And, in sentencing, judges often look to the convicted person’s past behavior, not merely to previous criminal convictions.