As Tensions Rise, Australian Citizen Cheng Lei is Detained in Beijing

By Jerome A. Cohen

On August 14, the Australian government was notified that Cheng Lei, an Australian citizen working as a TV anchor for China Global Television Network, was detained in Beijing and is being held under “residential surveillance at a designated location” (RSDL). Although Australian scholarship on comparative law and politics relating to China is impressive, no learned books, law review articles or op-eds can do as much to alert public opinion to criminal injustice in China as recent arrests of Australian citizens who were formerly PRC nationals. They highlight the regime’s resort to RSDL, which vitiates the ordinary protections prescribed in the PRC’s Criminal Procedure Law for up to six months by authorizing the incommunicado detention that has so often fostered torture and coerced confessions. Good luck to those who seek to organize legal assistance for Ms. Cheng Lei!

On August 27, Australian officials held an initial consular visit over videoconference with Cheng. It would be interesting to learn details of the consular visit remotely allowed. Did Australia press for an in person visit but was rebuffed? Was the remote visit different in substance from the usual in person visit? Still the same restrictions against discussing the case that landed the suspect in detention? Generally, one of the few benefits of the PRC’s restricted consular visits is the opportunity for the visiting diplomat to closely observe the physical and mental condition of the suspect and to detect any gestures or reactions that might reveal the true conditions of the suspect’s plight. To what extent was the remote interview satisfactory in this respect or others? I have never been happy with the refusal of the protecting foreign government, the US included, to reveal information about detention of its nationals by invoking rules against violating the detainee’s privacy. My experience in seeking to aid detainees held in China suggests that they often need and want publicity in order to generate public pressure for their release or at least the improvement of the conditions of confinement.

China's Continuing Fear of the Nobel Peace Prize

By Jerome A. Cohen

Last week, China’s Foreign Minister Wang Yi visited Norway to resume talks on a bilateral free-trade agreement, and also to warn against giving the Nobel Peace Prize to Hong Kong protesters. Ironically, Wang said that the PRC does not “want to see anyone politicize the Nobel Peace Prize.” Wang is an intelligent, sophisticated and handsome representative for China in the world, but increasingly nationalistic and prone to losing his temper at press conferences in a way that makes him look like the chief of the PRC’s diplomatic “wolf warriors”, which indeed he nominally is.  

The argument that award of the Prize to China’s international human rights warriors is “interference in China’s internal affairs” is no more persuasive today than in the past. International human rights, which the PRC selectively endorses and invokes in its dealings with other states, is by definition not an exclusively internal matter for any state. The PRC’s continued repetition of this hollow nonsense is another example of its increasing attempts to interfere with the internal and external affairs of other countries. Nothing would be more appropriate this year than for the Nobel Peace Prize to be awarded to one or more Hong Kong organizations that have been striving to protect human rights in Hong Kong and the Mainland. In addition to the obvious candidates, the Hong Kong Bar Association should be considered. Its barristers are the last line of legal defense for the city’s human rights. 

However, award of the NPP has often seemed a puzzle, if not a disappointment. I thought Kissinger’s sharing it with his North Vietnamese counterpart was odd, and Obama got it before he had a chance to do anything to earn it. Taiwan’s former President Ma Ying-jeou deserved to be considered after he started his second term as president because of the extraordinary accomplishment of concluding some 20 cross-strait agreements with a PRC that had always maintained it would never conclude agreements on an equal footing with a mere province. I said so when in 2012 Taiwan media asked how I evaluated his first-term achievements. That didn’t get Ma the Prize, but it did anger some other former students who have long advocated Taiwan independence! 

Sadly, the PRC has reneged on implementation of some of these agreements with Taiwan since the 2016 election of current President Tsai Ing-wen because of her refusal to endorse the so-called “1992 Consensus,” according to which Taiwan is part of China, although the two sides never agreed which of the contending governments should be deemed the representative of that “China.”

China's (Ironic) Role in the Law of the Sea

By Jerome A. Cohen 

It was recently reported that Duan Jielong, the Chinese ambassador to Hungary, was elected a member of the International Tribunal for the Law of the Sea (ITLOS). Although the PRC has appointed its ambassador to a land-locked country to be its representative on ITLOS, Duan is a specialist in international law, as he served as the head of the Ministry of Foreign Affairs’ Department of Treaties and Law earlier in his career. His most recent ambassadorial appointment may have been designed to broaden his experience and resume. However, many ironies remain! 

What deserves noting is that ITLOS, although named the International Tribunal for the Law of the Sea, does not get to decide all of the most important law of the sea issues, due to the flexible menu of options that UNCLOS provides member states while compelling them to accept compulsory dispute resolution of one kind or other. As some know, the 2016Philippine arbitration award that is finally being propelled to the attention it warrants was not an ITLOS decision but that of a panel of five well-known experts selected in accordance with UNCLOS alternatives to ITLOS. If, as perpetually threatened, Vietnam finally brings itself to initiate an UNCLOS arbitration against China, it, like the Philippines, may decide to avoid ITLOS.

Serving as the PRC’s ambassador to Hungary may not be the most demanding of diplomatic positions, but serving as its representative on ITLOS may seem like a well-deserved vacation, certainly compared to serving as head of the PRC’s Treaty and Law Division, which does have to deal with all law of the sea disputes as well as the multitude of other international law issues in which the PRC is embroiled.

In view of China’s prominence, I don’t think it unwise to have a permanent PRC representative on ITLOS (since the tribunal’s establishment in 1996, there have been three Chinese judges), even while the PRC flagrantly inflicts upon itself the grave wound of contemning the result of the UNCLOS dispute resolution processes to which it committed itself in ratifying the treaty. Even though both the PRC and the United States refuse to submit to the compulsory jurisdiction of the International Court of Justice, it is nevertheless useful to have their perennial able experts on the ICJ. “Hope springs eternal….”

We should recall that a major reason why the United States, unlike the PRC, the Philippines, Vietnam and so many other states, has disgracefully refused to ratify UNCLOS is the US unwillingness to submit itself to the compulsory dispute resolution system that is one of this great treaty’s most distinctive features.

Finally, it is worthwhile yet again to emphasize that the Philippine arbitration award is NOT the product of the Permanent Court of Arbitration in the Hague, which only provided its admirable facilities for the litigation.

What Big Data on China's Lawyers Fails to Mention

By Jerome A. Cohen

This China Daily story on Beijing’s lawyers has recently been called to my attention. The Ministry of Justice has published data from 2019 on the number of lawyers, law firms, and revenue generated, among other things. It shows the great growth in the legal profession since its renewal following the rise of Deng Xiaoping in 1978. Deng, of course, had been Party Secretary-General in 1957 when Mao launched the Anti-Rightist Campaign that put China’s then Soviet-style lawyers out of action for over two decades. When in August 1979 the Beijing Economic Development Corporation asked me to organize an international commercial law training program for city officials, none of whom had legal training, only a handful of lawyers had begun to reemerge and it took several years for legal education to be revived and lawyers and law firms to be formally authorized once again. 

Unfortunately, the statistics that were just released are not comprehensive. They fail, for example, to mention the number of lawyers who have been disbarred and the number of law firms that have been forced to close (many for political reasons). Some of the statistics seem surprising, such as the small number of supporting staff (this may be a definitional problem) and the small number of arbitration cases in which lawyers took part, probably a reflection of the fact that most arbitrations have not involved significant enough claims to make retention of lawyers sensible or feasible for claimants. The small number of criminal cases in which lawyers took part is not a surprise, since most Chinese criminal defendants have gone without lawyers, especially in lesser criminal cases. Note the very big jump in lawyers’ revenue (a year-on-year growth of 16.64%). It’s an incentive for them not to risk the good life by getting drawn into a range of tempting human rights matters that often end lawyers’ careers and even their personal freedom.

Will Jimmy Lai Be Transferred to the Mainland for Prosecution?

By Jerome A. Cohen

Jimmy Lai during an interview on May 29, 2020.

Today’s New York Times has a five-paragraph AP story reporting Jimmy Lai’s remarks about relaxing a bit when he realized the officers who arrested him were not speaking Mandarin, “since he was worried he could be sent to mainland China, where the legal system has fewer protections.” Of course, it is much too early to know whether Lai will indeed be sent to the mainland (he is currently out on bail). The system established by the National Security Law did not purport to restrict the role of the HK police but to enhance it by establishing a special local unit that operates under the guidance of mainland security specialists. It would have been inefficient, as well as unnecessarily incendiary, to have mainland police arrest Lai and the other suspects. Perhaps there were mainland advisor-observers among the 200-odd police who descended on the Apple Daily and other relevant premises. It will probably be a matter of weeks or months before a decision is made about whether the central authorities will complete the processing of the case or allow it to be completed by the HK Department of Justice’s special new prosecution unit and the specially convened local court (without a jury). Much will be determined by the evidence that has been seized as well as Beijing’s assessment of the likely impact on HK and the world community of the momentous decision to transfer Lai to the mainland for further interrogation, investigation, trial and sentencing.

 At this point Beijing may be “crossing the river by feeling the stones.” Perhaps it will test the way toward central prosecutions by first sending suspects in other NSL cases to the Mainland. It is also quite likely that the adverse public reaction thus far will lead to Lai and others remaining in HK for final disposition. The fact that fraud is included among possible charges adds to the government’s options if NSL conviction should seem problematic, and fraud would be prosecuted locally unless inextricably linked to NSL activity.

Yet, if I were Lai’s HK counsel, I would be quietly consulting well-connected mainland lawyers about possible future contingencies, to the extent that mainland defense experts have been allowed to learn what the central authorities may have in mind for NSL processing. I don’t think that the Communist Party’s Political-Legal Commission (PLC) that controls the mainland prosecution, defense bar and courts will be available for consultation by defense counsel at this point, although experience demonstrates that the PLC will eventually not be shy in telling Lai’s defense lawyers what they can do and say and what they cannot!

The Impact of HK's NSL on Canada-China Relations

By Jerome A. Cohen

Yesterday the Canadian Parliament’s Special Committee on Canada-China relations held a three-hour session regarding the new Hong Kong National Security Law (NSL). I joined several others, including Michael Davis, Samuel Chu and Annie Boyajian, to discuss the impact that the NSL will have on foreign citizens in the China mainland, Hong Kong, and Canada. I urged the Canadian government to do more to protect Chinese-Canadians in light of the increased risk of arbitrary detention and other acts of harassment and intimidation. There was also brief reference to extradition problems. You can watch the recording here and read the news report here.

Virtual CFR Meeting on Hong Kong—Autonomy and National Security

By Jerome A. Cohen

In the last few months, Hong Kong has undergone significant and troubling changes. The new National Security Law (NSL) has already had a huge impact on many aspects of society, and more changes are likely to come. On Wednesday, the Council on Foreign Relations held a virtual meeting moderated by Nancy Yao Maasbach, and I joined Victoria Tin-bor Hui and Christopher Patten to discuss the NSL, the delayed Legislative Council elections, and how history has impacted the current situation. You can watch the recording here.

Indefinite Confinement under China's Mental Health Laws--Another Type of Arbitrary Detention?

By Jerome A. Cohen

Chi Yin, formerly an Intermediate Court judge in China and now my colleague at NYU Law School’s US-Asia Law Institute, and I have just published a Diplomat piece on detention in China’s mental hospitals. The article follows the case of Feng Xiaoyan, who was taken to a mental hospital by her husband after being arrested, but then released, for distributing pro-democracy pamphlets. Although she was diagnosed with schizophrenia, her daughter maintains that her mother is entirely sane and was only taken to the hospital by her husband because of the threat that her political activism posed to his career. China has a law against involuntary admission except in certain instances. Yet involuntary confinement seems to occur to a disturbing extent, and patients can end up in indefinite legal limbo with little recourse. You can read the full piece here.

The NPCSC's Telling Silence

By Jerome A. Cohen

This Xinhua release in today’s China Daily is, of course, of great interest, if only because of its silence about the NPCSC’s failure to mention whether the four democratic Legislative Council (LegCo) members who have been banned from re-election will be allowed to serve for the remaining one-year minimum of the existing LegCo term. The NPCSC’s silence on this issue means that the four will be permitted to continue for the extended year. This is the bone that Carrie Lam has thrown in an attempt to pacify the masses for the postponement of September’s election and the disqualification of the four from future service. Politically this may seem a shrewd move since the four cannot do much damage in the current LegCo, which remains under government control. As members of a popular majority in the next LegCo, they might have been a strong voice for democracy. Legally and logically, however, the decision seems inconsistent and a travesty exposing the real reasons for the disqualification.

Worthy of notice is the penultimate paragraph of the Xinhua story, which reports the full support given to the NPCSC’s newest decision by the “founding president of the  Small and Medium Law Firms Association of Hong Kong”. This is an organization I have never heard of and may have been recently created. Perhaps its support is designed to counter the embarrassment caused by the failures of both the HK Bar Association and the HK Law Society to voice similar support.

In this connection it is useful to note another action of the NPCSC reported in today’s China Daily – the decision to allow HK and Macao lawyers to practice law in the nine major cities of Guangdong Province once they qualify like Mainland lawyers. This won’t make the local competition happy but gives an incentive to HK lawyers to support “the second Handover”.

Jimmy Lai's Arrest and the Future of Hong Kong Criminal Procedure

By Jerome A. Cohen

PAUL YEUNG/BLOOMBERG

The recent arrest of Jimmy Lai for “alleged foreign collusion” is of special interest to me since I invited him and Martin Lee to join me in a breakfast discussion of Hong Kong at the Winston Lord Round Table on the Rule of Law and US Foreign Policy in Asia at the Council on Foreign Relations on October 25, 2019. I had never met Lai and was hoping that he would be as feisty as his reputation. I was disappointed because, although he was perfectly intelligent and thoughtful in his remarks, he was quite restrained, even though I urged him to speak out more vigorously. Martin, on the other hand, fortunately, was his usual dynamic, informative and outspoken self. 

Over the next few months, it will be very important to try to observe the procedures in these new types of Hong Kong criminal cases. To what extent will court procedures be open for public observation? Will prosecutors be obligated to reveal in open court the bases for the  arrests? Will defense counsel be allowed to inform the public about the details of the proceedings? Many questions have already arisen. For example, regarding the six overseas activists abroad recently placed on the Wanted for Arrest list (one is a US citizen), has the PRC implemented the Interpol notification process? If so, with what responses from various countries thus far? 

For Lai’s case, will there now be a move to transfer him and his co-defendants to the Mainland for investigation and trial? By what procedures? Secret or public? With any possible resort to HK courts? In a case that arose a few days earlier, are the four arrested suspects who are 21 and younger to be charged for their Internet messages alone or for other conduct? How will their cases be processed? If HK’s Director of Public Prosecutions has just resigned because of the refusal of his bosses in the Department of Justice and higher in the HK Government to allow him to know about NSL prosecutions, how much will the HK Bar, the media and the public be allowed to know about such matters?

I hope the courageous Jimmy Lai’s confidence in his prison future is not misplaced. In an interview with AFP, he said that “he is prepared for prison. If it comes, I will have the opportunity to read books I haven’t read.” He has said he will not leave Hong Kong. But can he be sure? If transferred for detention, interrogation and trial on the Mainland under the NSL, he will leave HK against his will.

Moreover, is he correct in assuming that, if imprisoned, he will catch up on his reading? Mainland jails and prisons are not as lenient as some Hong Kong counterparts. Ask the two Canadian Michaels what books they have been reading, even though the lights may still be kept on in their cells 24/7! Ask human rights lawyer Wang Quanzhang what he read during his five years of torture. Ask artist Ai Weiwei what he read during his months of “residential surveillance” at a designated location, even though he had to be released before prosecution because of political pressures.

If Apple Daily manages to continue to publish, I hope it can report on what has been too largely ignored to date— the underlying reasons why the HK Director of Public Prosecutions (HKDPP) resigned. What does this foretell for Jimmy Lai and many others that the HKDPP is not only not allowed to decide who gets prosecuted under the NSL, but he is not even allowed to know what is going on in the decision-making process! Good luck, Jimmy!!

What Now? A Conversation on the Future of US-China Relations

By Jerome A. Cohen

I recently joined Scott Kennedy, Rui Zhong, Robert Daly, Sophie Richardson, Yangyang Cheng, Tong Yi, Andrew J. Nathan, Pamela Kyle Crossley, and Alex Wang for a ChinaFile conversation on the future of US-China Relations. I discuss the Trump administration’s dangerous China policy and offer my own ideas on how to improve relations. By adopting “The Four C’s: Cooperation, Competition, Criticism, and Containment,” I believe that Washington and Beijing could improve relations and avoid a further worsening of the situation. You can read the article here.

The Reemergence of the Phrase "Communist China"

By Jerome A. Cohen

I was recently asked about China Daily’s use of quotation marks around “communist China” in this piece, which is much more worth reading and thinking about than most of the articles that CD puts out. The article discusses limitations on Chinese journalists in the US, notably calling the US administration a “cabal of wackadoodles” and criticizing the severance of ties between the US and China.

The Trump people’s resurrection of “Communist China” (I am accustomed to capitalization of Communist when linked to China) as the term for identifying the Government of the People’s Republic of China (PRC) rings many bells with the old cadre of American China-watchers and is a contemporary attempt to help Americans and other people see the differences between the Party and the people in China. “Communist China” was an early, transitional term that served another function – to distinguish Mao’s regime from that of Chiang Kai-shek’s “Nationalist China” sheltering on Taiwan. It was sometimes considered an upgrade of the earlier, more politically emotive term “Red China” that overlapped with “Communist China” in American policy parlance in the ‘60s and early ‘70s. For example, the Harvard-MIT group of China specialists that sent a memorandum to President-elect Nixon via Henry Kissinger in November 1968 used the term “Communist China”.

I remember how startled the journalist Lawrence Spivak, who ran Meet the Press, was when, in an April 1971 TV interview with John Fairbank and me, I admonished him for constantly using “Red China” at that late date and urged him to clean up his language and recognize that the Communist government was indeed the government of mainland China. I have always liked to refer to it as the PRC, which accords it its self-described name and yet has the ring of a Communist regime. I don’t object to the use of Communist China today, during Xi Jinping’s Party-obsessed era, as I didn’t object to it during Mao’s era, because it is a useful reminder of the distinctive regime that controls the Chinese people. That, of course, is why Pompeo and company are using it today. The term has genuine factual connotations and also serves a delegitimizing function in describing a dictatorial system. 

Grenville Cross for the HKG's Defense...or Offense?

By Jerome A. Cohen

Once again, a pro-PRC publication offers us the opportunity to hear from Mr. Grenville Cross, a very able lawyer and former Director of Public Prosecutions for Hong Kong, in defense of the latest restriction on political freedoms in the SAR. This time the issue discussed – the one-year postponement of the Legislative Council (LegCo) election – presents the occasion for a more plausible excuse than some of the other HKG and PRC actions Cross has advocated and defended. What is most notable here is that, rather than devote space to the more detailed consideration of the postponement that the issue merits, Cross extends his brief to an attack upon the Pompeo-led US condemnation of PRC actions re HK including the election’s postponement. Many in the US may find this diversionary attack more persuasive than his defense of the election postponement decision.

In discussing the postponement, Cross cites examples of similar decisions having been made in other countries including the UK. Yet he fails to mention the several recent contrary examples closer to HK where East Asian countries have successfully held elections after taking due precautions to prevent dangerous increases in the spread of Covid-19. Moreover, he also fails to mention anything about the pros and cons of resorting to written ballots. Certainly, written ballots, despite Donald Trump’s pathetic attempts to discredit them, could be used to accommodate those Hong Kongers who wish to stay home but nevertheless vote and those who cannot or will not return from residence on the Mainland or elsewhere. Indeed, since I give great weight to the risks that crowds bring to spread of the virus, I have expressed wonder about the merely modest attention that has been accorded the feasibility of resort to written ballots for everyone eligible to vote in HK. (In November, my wife and I will use written ballots to vote against Trump in NY!)

In the second part of his essay, where Cross extends his brief, or his mandate, to the USG counterattack, he demeans his arguments and himself by referring to critics of the postponement at home and abroad as “anti-China elements” who have “attempted to make sordid political capital” out of a government decision that supposedly had nothing to do with politics, only public safety. The criticisms of democratic Legislator Claudia Mo and disqualified candidate for LegCo Joshua Wong, instead of being answered, are dismissed as “the poisonous ramblings” of people who are simply “grandstanding and pleasing their foreign backers”. Any responsible opposition leader would not oppose but would agree with the government, Cross maintains.

If, as he claims, Joshua Wong is merely “a professional agitator”, should we dismiss Cross as “a professional apologist”? It would be good to know the extent to which he may be influencing the new office within the HK Department of Justice that decides on NSL prosecutions and that excludes the current Director of Public Prosecutions, a more independent-minded successor to Cross who has just announced his resignation, from even knowledge of the prosecutorial decisions being made.

As a final point in his argument, Cross abandons his broader political slashing and returns to political-legal analysis, implying, undoubtedly correctly, that the forthcoming special session of the NPCSC, in extending the current LegCo’s term by the necessary one year to fill the postponement gap, will disqualify from further LegCo service all current LegCo members who have been or will be disqualified from standing for election in the postponed LegCo election. What responsible opposition leader can complain about this further example of the new HK “rule of law”?

“Intellectual Property Theft” Requires Some Clarification

By Jerome A. Cohen

Here are some thoughts inspired by one American investor’s experience in China as related in Steve Saleen’s Wall Street Journal article. 

Today it is commonplace to read about alleged PRC theft of intellectual property. Often, however, it is unclear what this phrase means. Sometimes it merely refers to PRC insistence that would-be foreign investors transfer valuable IP to their investments in China, whether a joint venture of some type or a wholly foreign-owned enterprise. Sometimes it merely means that a would-be licensor of technology transfers its best IP at a favorable price in return for access to the China market. Such market access in return for technology deals are part of the ordinary commercial bargaining process, and theft seems a misnomer in those circumstances.

At the other end of the spectrum is genuine outright theft via various means including cybertheft. In between, there are many variants, one type of which the sad Saleen story recounts. My three decades of practical experience dealing with PRC business as both a lawyer and an arbitrator, as well as an academic, ended around 2010 and included many situations that qualify for the appellation “theft”.  One standard pattern was for one or more local employees of a Chinese-foreign joint venture to secretly abscond with IP, including trade secrets, contributed by the foreign investor in order to quietly set up a competing venture. Another technique was for the local joint venture (JV) partner or licensee to secretly register the foreigner’s IP in its own name. This was easily done for trademarks as well as patents. A third common technique was for the local licensee to refuse to pay license fees and claim that the foreigner’s licensed technology failed to meet the contract’s prescribed standards, even while the licensee secretly was successfully using it in production and sales. A fourth technique was for the local JV partner simply to take advantage of the foreigner’s helplessness in a remote area where the local authorities were cooperating with the local venture and would permit the local partner, often a government agency itself, to squeeze the foreigner out of control. Sometimes the local police would detain one or more foreign owners or employees and “renegotiate” the relevant contracts in the detention house of the Public Security Bureau! Yet another technique, where the foreign investor or licensor unwisely decided not to keep one of its employees on the ground in China – a basic error, was for the local employees of the JV to keep two sets of books so that local interests could secretly pocket some of the JV profits.  

Sometimes the foreign company could obtain legal relief at considerable cost. But local courts are, of course, under local Party control, and reliable, independent local lawyers may be hard to find. Local protectionism is strong, and corruption rife. Beijing’s central agencies may have limited influence and interest in far-off disputes, and I have been an arbitrator in Chinese arbitrations, even in Beijing, that were plainly stacked against the foreign company that sought relief. 

So “theft of intellectual property” requires some details. 

The Telling Resignation of Hong Kong’s Director of Public Prosecutions

By Jerome A. Cohen
David Leung has resigned as Director of Public Prosecutions (DPP) and will leave on December 31, citing disagreements with the Secretary of Justice. The most important functions of the Office of Hong Kong’s Secretary of Justice are carried out by the DPP and his staff. With respect to HK’s rule of law, that job has been more important than any judgeship or other judicial work. The DPP’s office is the most important place where discretion has to be exercised regarding whether or not someone in HK should be punished and, if so, for what offense. Prosecutors often have enough evidence to technically justify a conviction, but, as the head of the HK Bar Association recently recognized, there are often good reasons for not bringing a prosecution. Courts and even juries often have little discretion in deciding the cases brought before them. That’s why, once prosecutors decide to indict, conviction rates are generally very high not only in dictatorships like China and Russia but also in democracies like Japan and the United States (where plea bargaining generally prevails in practice rather than trial on the merits).

David Leung’s resignation as DPP tells us a lot about the changes required in HK justice under the National Security Law. Although during his leadership his office successfully carried out many unpopular prosecutions because, after independent examination of each case, he decided, rightly or wrongly, that respect for the rule of law, including the exercise of discretion, justified prosecution. He steadfastly argued against police or politicians influencing the decisions to prosecute. That independence apparently led Beijing and its local minions to lose confidence in him. The NSL removes NSL prosecutions from the DPP’s consideration and places them under special Beijing-controlled arrangements. The new regime refuses to allow him to even know about the operations of the new unit within the DOJ for the handling of NSL offenses. This is a pathetic situation. We are not yet told who is making the decisions about whether to prosecute alleged NSL violations. Who has been appointed to head the new special NSL office within the DOJ, and what influences is that person subject to? This is the real crux of the struggle for judicial independence, although the NSL has also taken steps to curb the powers of HK judges and juries to the extent they will still be allowed to handle NSL cases.

Postponement of the Upcoming Hong Kong Legislative Council Election

By Jerome A. Cohen

It was recently announced that Carrie Lam has invoked an emergency ordinance to postpone the September Legislative Council (LegCo) elections by one year. This follows the disqualification of twelve opposition candidates earlier this week. But if the Hong Kong government was going to postpone the election, why bother to disqualify candidates? That seems an unnecessary addition to the challenges with which the HKG and its Beijing masters are confronting their people and the democratic world, since the disqualifications drew significant international condemnation. But the disqualification decisions should be seen as one further step in an unfolding campaign to establish Beijing’s new Hong Kong regime beyond peradventure. 

There may well be more disqualifications, for example, even though the election has been postponed. That may be followed by a decision that current members of LegCo who have been disqualified for the next election will not be allowed to continue to serve in the newly-extended one-year LegCo term. Moreover, the reasons given for the disqualification of these candidates fit them easily into the categories of conduct now made criminally punishable by the National Security Law (NSL), especially inciting secession, subversion and foreign interference. 

The latest statement of the PRC’s HK Liaison Office makes clear its felt need to entirely eliminate these supposedly unpatriotic people from the political process. So this may be the prelude to further prosecutions of democratic figures, not for relatively minor alleged violations of assisting in unlawful public assemblies prior to July 1, but for far more serious NSL crimes. Of course, as the HKG brazenly assures us, supposedly none of these actions in any way restricts the political freedoms of the HK people! 

Furthermore, authorities have now released a wanted notice for six political figures outside HK who are suspected of inciting secession and colluding with foreigners to harm national security. What does this portend for their colleagues now in HK? Even those in HK who are barristers had better seek out local counsel specializing in the HK criminal process as now drastically altered by the NSL. Hope for the best but prepare for the worst. 

The PRC Legal System’s Unobtrusive International Impact

By Jerome A. Cohen

Agreements between the Chinese Communist Party’s Central Political-Legal Commission (CCPPLC) and foreign governments are a little-known but important aspect of the PRC legal system’s quiet international impact. The agreement between China and Belarus (中共中央政法委员会与白俄罗斯总统办公厅法治领域合作协议) is an interesting example of the CCPPLC directly making an agreement and cooperating with the President’s Office of a foreign government. The agreement was made between Meng Jianzhu, then Secretary of the CCPPLC, which controls the judiciary and Chinese intelligence and security services, and Stanislav Zas’, State Secretary of the Belarusian Security Council. Although the report published in the PRC court newspaper gives this interaction the appearance of innocuous and benign support for the “rule of law” and “judicial reform,” the excellent scholarly analysis by Ms. Nadège Rolland makes clear that this cooperation is an example of the export of the PRC’s surveillance and internal security system of repression. Belarus appears especially concerned with improving its censorship and cybersecurity, which the PRC is famed for perfecting.

From the diplomatic point of view, it is striking to see a Chinese Party organization concluding an agreement with a foreign government. Functionally, of course, this makes perfect sense since the Party organization controls the PRC government agencies involved, in this case the ministries for national security, state security and justice, as well as the procuracy and the courts. How much influence the CCPPLC has over other related government security and military agencies is also worthy of study. In the days of the USSR, the CCPPLC might have made a comparable Belarus agreement with that country’s Communist Party counterpart.

The PRC-Belarus cooperation cited above took place in 2016-2017. That was just before the PRC established its innovative National Supervisory Commission (NSC), a powerful new government institution for investigating and disciplining not only all Party members but also a broad swath of non-Party officials. Since the NSC seems to be more powerful than the government’s political-legal system, it would be good to know the extent to which the NSC might be affecting current cooperation with foreign governments regarding the “rule of law” and “judicial reform” as well as the CCPPLC’s present role in this respect.

Hong Kong Universities Ramp Up Suppression of Dissident Views

By Jerome A. Cohen

This is a helpful report on the Shiu Ka-chun case. Hong Kong Baptist University recently told Shiu, an opposition lawmaker who was involved in the 2014 Occupy Central protests, that it would not renew his lecturing contract, with no reasons given and no opportunity to be heard. I know nothing about Shui but sympathize with his comments about HKBU’s refusal to renew his teaching contract. He described the decision as “political persecution.”

Activists Lee Wing-tat, Chan Kin-man, Benny Tai, Chu Yiu-ming, Tanya Chan and Shiu Ka-chun arrive at the court for sentencing in Hong Kong in April 2019. Reuters

Indeed, no opportunity for him to ask why or present his case? No waiting until the judicial appeals process on his criminal conviction for participating in the Occupy Central movement has run its course? No reasons for HKBU’s decision, even though it is a publicly funded university? The university is hiding behind the shameful excuse that it is remaining silent in order to protect the “privacy” of the harmed teacher, while hiding its reasons from the very person whose privacy is ostensibly being protected. “Privacy” is a pathetic excuse for the public university to hide behind.

Simultaneously, pro-democracy activist Professor Benny Tai was fired today from Hong Kong University by a HKU council vote of 18-2. Note that Nathaniel Lei, an undergraduate representative on the council who spoke out against the decision, pointed out that if Tai wins his appeal, the council decision “may be reviewed.” We should not hold our breath, of course, that the appeal will be successful or that success might lead to reversal of the academic decision. Additionally, how should we interpret the failure of Vice-Chancellor Zhang Xiang to vote? A gesture of opposition to the council action? Or of impartiality or political paralysis? Note the hypocritical discretion of the university council in identifying the matter solely as “a personnel issue concerning a teaching staff member.” What a joke to claim that this is purely an internal matter and that outsiders should respect the university’s autonomy! Cheers for the council’s endorsement of “impartial due process”! And recall the rejection by the council of the nomination of former law Dean Johannes Chan, a great person, for higher university responsibility!

For me these cases are a matter of special interest because of the contrast it presents with my own experience at Harvard during the height of the Vietnam war controversy in America. In 1968, I believe, the TODAY show asked me to debate with Assistant Secretary of State Averell Harriman the right of the US air force to bomb Hanoi hospitals that reportedly were plainly marked with Red Crosses on the roof. Harriman himself and some wealthy Harvard alumni reacted strongly to various university authorities the next day about my criticisms of the US government. However, Harvard President Derek Bok told me to go on doing what I thought was right. He did not abstain!

What Will Become of HKU’s Law School?

By Jerome A. Cohen

Tomorrow’s decision about the sacking of Professor Benny Tai will have significance well beyond the Law School and Hong Kong University. Last April, Professor Tai was convicted on two charges of causing a public nuisance during Occupy Central in 2014. On Tuesday, HKU’s governing council will decide whether he can keep his job as an associate professor of law. HKU’s increasingly distinguished Law School, a bit over fifty years since its belated founding, has been struggling for several years over how to cope with all the pressures inflicted by 1 Country, 2 Systems. The implications of tomorrow’s decision will be profound. Although the university faculty has recommended against sacking, it is widely expected that the governing council, stacked with pro-Beijing political figures, will reject that recommendation. Either way, the ripple effects of the decision will reach much of the entire community, certainly the educational establishment at various levels.

Professor Benny Tai PHOTOGRAPH BY BOBBY YIP/LANDOV

One of the most immediate questions is whether it will affect the forthcoming decision to formally confirm the acting deanship of the exceptional Professor FU Hualing, who has nobly sought to hold the school together for the past two years following its inability to select an outside candidate. Whatever the outcome of tomorrow’s decision, and I am rooting for Professor Tai, I hope it will free the voices of many of the able, multinational law faculty, who until now, for both personal and professional reasons, have tried to remain relatively discreet in the face of doubts and provocations relating to the new National Security Law. Hong Kong needs the benefits of their robust public legal debate.

The US and China Near the Brink—We Need Them to Step Back

By Jerome A. Cohen

In less than half a century, has the wheel come full circle? Nixon used the China issue to reassure his reelection in 1972. Trump is using the China issue in an effort to reassure his reelection in 2020. Unfortunately, contrary to the protests of innocence from the Chinese Government, it has played right into the hands of the Trump “warhawks” now riding high, offering them much to feed upon. What we need today is governments on both sides that will step back from the brink and seek a new modus vivendi, one that will endure for the next, even more complicated half century. Balance – not all-out nationalistic enmity – is what is called for. 

Each side should practice what I call the Four C’s: Cooperation in areas critical to world progress and survival; Competition in business, science, education, the arts and sports; Criticism of each other’s many faults and failures in government, human rights and international relations; and Containment of its own military forces and goals as well as those of the other side. The next six months may be the most challenging to get through. One can only hope that next January will witness the charting of a new path. It will be a long road back.