Seven Acquitted of "Rioting" Charges in Hong Kong

By Jerome A. Cohen

This is wonderful news to learn about the acquittal of seven accused protesters who were charged with “rioting” under traditional HK legislation that is separate from the new National Security Law for HK. One has to admire the courage as well as the analysis of Judge Sham in concluding that the HK Government failed to meet its burden of proving the offense beyond a reasonable doubt. One also has to recognize the vigorous, talented defense presented by able HK barristers, who are still free to challenge the prosecution, at least in cases that are not brought under the NSL.

We won’t have to wait long to learn the consequences of Judge Sham’s decision. Judge Sham can expect to be excoriated by pro-government critics such as Tony Kwok, Grenville Cross and Henry Litton.

Will HK’s judicial administration, which is trying to support the independence of its judges without increasing Beijing’s hostility toward the courts, treat Judge Sham the way it did his colleague Judge Ho, who, after deciding against the prosecution in another recent case, was transferred to a higher-paying job that removed him from deciding cases? To engage in such a ploy again would subject the court system to justifiable criticism from liberal observers as well as from HK judges themselves.

What impact Judge Sham’s decision will have on the HK Department of Justice and its Director of Public Prosecutions (DPP) will be important to note. There are almost 700 more “rioting” cases slated to come before the courts. Will the DPP review them all in the light of Judge Sham’s decision and give up on prosecuting those cases that seem as unpersuasive in their evidence against the accused as in the acquittal of the “Hong Kong 7”? Will the DPP instead try to prosecute some of these remaining cases as lesser offenses? 

The DPP himself has been under enormous pressure from the pro-Beijing camp because of public criticism of his department, by former deputy police commissioner Tony Kwok and others, for allegedly being insufficiently zealous in bringing prosecutions against so-called “rioters” and other protesters. Indeed, the DPP has announced his resignation, to take effect at year’s end, apparently because, among other things, he has been frozen out of prosecutions to be brought by the DOJ against alleged violators of the NSL at the behest of the new security-focused unit that the NSL has implanted in the DOJ.

Questions abound. Will other HK judges follow the example of Judges Sham and Ho? And how much pressure will now be brought on HK human rights barristers and the very dynamic Bar Association that has repeatedly pointed out the many legal failings of the NSL?  

Given their long record of repression of human rights lawyers in Mainland China, the agents of the Ministry of Public Security and Ministry of State Security now publicly ensconced in HK by the NSL are not likely to show much tolerance for continuing shows of independence by HK’s human rights lawyers and judges.

The Latest from Grenville Cross on the HK 12

By Jerome A. Cohen

Here is another piece in China Daily by the former Director of Public Prosecutions for the Hong Kong Government, the formidable lawyer and defender of the new national security regime in the SAR, Grenville Cross. He is always worth reading, since he offers detailed insights into the operations of HK’s justice system and also into prospects for future enforcement. Although much of the current piece becomes a diatribe against protests in America and the UK and their unrealistic appeals for the immediate return of the HK 12 to HK, there are a few points worth noting.

Cross makes a valiant effort to equate criminal justice in Mainland PRC with criminal justice in HK, America, and the UK and makes the obvious point that “criminals who break the law in China must expect to face justice…Those who commit grave offenses will be placed on trial, and it is no different in China. Criminal justice must be respected and politicking by malevolent foreign forces can never be allowed to interfere with the due process of law in any part of China.”

Ringing words but abysmally hollow in their application to Xi Jinping’s PRC regime. Criminal justice is very different in China!

In his recitation of relevant facts, Cross mentions the shock and concern expressed by the HK families of the detainees but he fails to mention that a basic reason for their anguish was that, on September 30, five weeks after their family members had been detained incommunicado, the PRC was still preventing their access to Chinese defense lawyers the families had retained. Nor does Cross mention that now, another month later, the PRC has formally forbidden involvement of the five Chinese law firms that have been retained to assist the suspects. And he says nothing about the government’s promise to appoint defense lawyers satisfactory to the government (if not the accused). That, as often occurs, will happen once the police investigation is complete and the suspects, often after torture and other pressures, have been forced to confess, sometimes on TV.

It would indeed be wonderful if those detained in China could expect “justice.” It would indeed be wonderful if a PRC trial were a fair trial and if PRC criminal justice deserved respect, but it is the current Communist leaders, not foreign politicians, who are interfering with “due process of law” in China. If Xi Jinping, given his efforts to rely on China’s past as justification for its present, were to openly justify torture, which was first legally abolished by Chinese reformers over a century ago but is still widely practiced on the Mainland, would Cross continue to ask the world to respect “Chinese justice”? And Xi does openly preach and practice Party control over the courts.

Yet the families of the detained might glean some glimmer of hope from the Cross essay. Although Cross fails to mention that, at the outset of the case, the PRC could have exercised its right to send the suspects back to HK for prosecution on the more serious charges facing them there, he does mention that they will be sent back after the Mainland criminal “proceedings” are over. The PRC has discretion, of course, to decide the point when that will be. The defendants could be returned to HK to serve whatever punishments are meted out by the PRC courts or they could be made to first complete their sentences in the Mainland. 

For most defendants in this case the difference may not be great. By the time the trial proceedings are concluded, the one-year prison sentences that most of the 12 can expect may almost have already been served while awaiting trial, since none has thus far been granted the PRC equivalent of bail. But the difference could be significant for the two suspects who have been charged with organizing the illegal border crossing, not merely taking part in it, since they face a maximum seven-year sentence.

Recent Hong Kong Developments

By Jerome A. Cohen

A variety of developments during the past  day or so. 

The most sinister is the announcement of the new hotline established by the national security police so that HK residents can make secret phone calls to inform the Mainland police about suspicious people and activities, with confidentiality guaranteed. This is an expected, further step toward bringing Mainland fear and repression to HK. I wish HK cinemas, TV and social media would broadcast the great German movie about the notorious Stasi–the former East German secret police–titled “The Lives of Others.”

Although the unsuccessful attempt by several HK protesters, already under indictment for summer NSL offenses, to gain asylum at the US Consulate General in HK understandably attracted publicity, even more significant is the associated news that they now will also be charged with violations based on more recently sent electronic messages.  As the hotline announcement boldly stated, the government’s eyes and ears are now everywhere!

The US Consulate General’s refusal to grant asylum was correct and predictable. Can we imagine how many other Hong Kongers might have wanted to follow suit? And recall the recent San Francisco PRC Consulate’s refusal to claim asylum for the PRC scientific researcher who, after sheltering there for a few controversial days, left the PRC mission and was then detained by the FBI. Reciprocity continues to be an important factor in US-China relations. Diplomatic asylum in someone else’s country can only be exercised in extraordinary and limited circumstances, as the US has famously done twice in Beijing, first in the 1989 case of  the popular human rights  speaker, Prof. Fang Lizhi, and then in the 2012 case of the blind barefoot lawyer, the courageous Chen Guangcheng.

The report that the Shenzhen Judicial Bureau has formally prohibited the activities of the five PRC law firms that have been trying to help the detained “HK 12” at the request of their families merely confirms earlier complaints expressed by the families. The hapless detainees, charged merely with “illegal border crossing” rather than more severe national security offenses, nevertheless remain incommunicado over two months after their detention began. The inscrutable and unfair processes of PRC justice grind on “in accordance with law,” as PRC spokespersons always assure us.

Hong Kong University's Uncertain Path Forward

By Jerome A. Cohen

The appointment of Fu Hualing as Dean of the Faculty of Law of Hong Kong University is gratifying not only because of widespreadas acting dean respect and friendship for Dean Fu but also because of its possible positive significance for Hong Kong's continuing struggle. The dean of HKU's impressive law school has long been in a position to have an important public impact. This imposes a responsibility that Hualing is admirably equipped to fulfill, especially after two years as acting dean that have been a "trial" in more ways than one. 

On the same day as the above announcement, two scholars from mainland China were appointed as vice-presidents of HKU. It is ironic that the news of these two university-level appointments, both scholars formerly associated with the University of California at Berkeley, came out just as we learned of Dean Fu’s appointment. Interestingly, all three people involved are “mainlanders” well-known outside of the mainland.

HK has long drawn upon former Berkeley scholars for educational leadership. In the early ‘60s it invited the distinguished economist Professor Li Choh-ming, then chairman of Berkeley’s Center for Chinese Studies, to be the first head of the then new Chinese University of Hong Kong. (He would be deeply saddened to see the damage recently inflicted on the beautiful campus he fostered.)

I do not know the two new HKU vice-presidents, but I do know Law Dean Fu Hualing and echo the many voices that welcome his appointment as the best possible choice for an important institution. For two years, Professor Fu has been ably serving as acting dean as HKU floundered in its deliberations over the deanship.

How he will choose to exercise his new authority and prestige in the current HK crisis will be very much worth watching. He is well aware, of course, that one of his many distinguished predecessors in the post, another leading expert on justice and human rights in China, Professor Johannes Chan, was later denied a more senior university-wide position and then couldn’t even obtain a visa to enter Macao!

So often, wonderful scholars are selected to be law school deans in difficult circumstances that significantly diminish their possibilities for further scholarly attainment. Let's hope that Hualing can continue to follow Chairman Mao's admonition to "walk on two legs". Good luck, Hualing!!

Threats to Sinology–In and Out of China

By Jerome A. Cohen

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

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

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

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

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

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

Professor Yu Ying-shih on the Roots of Chinese Totalitarianism

By Jerome A. Cohen

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

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

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

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

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

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

Update on Last Week's NPCSC Meeting

By Jerome A. Cohen

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

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

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

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

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

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

Should the US Take China's Threats of Arbitrary Detentions Seriously?

By Jerome A. Cohen

This recent Wall Street Journal article reports that Chinese officials have threatened to detain U.S. citizens in response to the Justice Department’s prosecution of Chinese military-affiliated scholars. The case of the two Canadian Michaels shows that this may not be an empty threat. Both men were swiftly detained following the initiation of extradition proceedings against Huawei’s Ms. Meng in Vancouver. It will be two years in December and there is no prospect of their release since the Canadian case moves forward at a snail’s pace. So, we know that the PRC may well mean business in threatening to detain Americans in retaliation for prosecutions in the US.

Yet the PRC has suffered a huge amount of international condemnation for this blatant example of “hostage diplomacy,” and an obvious effort to extend this practice to a number of Americans will outrage and disgust the liberal democratic world while perhaps pleasing many other nations in the UN that support or fail to criticize the PRC’s human rights violations.

The PRC appears to recognize the grave consequences that would result from a blatant resort to detentions as threatened, which may be why several months have passed with no obvious retaliatory detentions. Perhaps, as with so many other aspects of Sino-American relations, Beijing is awaiting the outcome of the American election. If it should follow through on these threats, it would be providing an enormous stimulus to significant further “decoupling.” Can that be in Beijing’s interest? There must be intense debate at the top.

Did not the 1979 US establishment of diplomatic relations with the PRC alter America's course?

By Jerome A. Cohen 

I enjoyed Professor David Greenberg’s positive evaluation of Jonathan Alter’s new biography of Jimmy Carter, His Very Best, in Sunday’s NYTimes Book Review. I was glad to see that Greenberg–and apparently Alter–appreciate President Carter’s numerous “unsung policy achievements”, since I believe that the Carter administration, although mistaken on some important issues, has been unfairly underestimated. One of its too often “unsung” achievements was Carter’s completion of the task Watergate left unfinished – the “normalization” of Sino-American relations. In February 1972 Nixon left the domestically controversial issue of Washington diplomatically abandoning its KMT ally on Taiwan, the Republic of China, until after he had used the prospect but not the conclusion of normalization to assure his 1972 re-election. Ford did not follow through, and it was difficult for Carter to do so, but he managed. I was surprised, therefore, that Professor Greenberg, in listing the Carter accomplishments that “altered the course of our nation,” did not even mention China policy.

I have not yet seen Alter’s book but assume he gives ample treatment to the subject that has helped keep many of us off the streets for the past five decades. I hope others can tell me more about Alter’s coverage.

The Ongoing Detention of Lawyer Li Yuhan

By Jerome A. Cohen

Lawyer Li Yuhan, image taken from Front Line Defenders.

Recently, Lawyers for Lawyers wrote a letter calling for the release of Li Yuhan, a Chinese human rights lawyer who was detained three years ago for “picking quarrels and provoking trouble.” The letter cites urgent medical conditions and calls for her immediate release. The case of Li Yuhan is another sad example of how in the PRC the Communist Party, police, prosecutors and judges continue, despite various legislative reforms and Xi Jinping’s frequent orders to “do everything according to law,” to act “as a single fist” in coercing confessions, even from human rights lawyers. In every political system, vigorous lawyers are sometimes thought by some people to “provoke trouble.” This is what happens to them in the PRC.

I don’t know Ms. Li Yuhan but she is apparently among the many courageous Chinese lawyers who, despite severe health disabilities and massive physical and psychological pressures, has persistently sought to resist being coerced into false “confessions.” What seems to be unique about this case is the reported promise – made not by Party, police or prosecution but by the very court scheduled to determine guilt or innocence in a supposedly impartial public trial – that, if only she would finally “confess,” they would restore her right to practice law again after her release. I have never heard of this mode of coercion before, a new addition to the repulsive bag of tricks that the PRC has perfected into an art form. How and why Ms. Li has managed to hold out against these horrendous pressures remains a mystery, of course, and I wonder how much longer she can do so, with what consequences. One reason why she has not succumbed to this promise may well be an understandable skepticism that the promise would be fulfilled.

Also notable about this case, although certainly far from unique, is the length of time she is being detained prior to “trial,” far exceeding the maximum prescribed in  the Criminal Procedure Law unless special approval has been obtained from the highest national government authority. I wonder whether evidence of such approval exists. Here one also has to wonder about the restrictions imposed on the lawyer allowed to represent her, who apparently has finally had access to her and learned about the unsuccessful judicial coercion almost a year ago.

Perhaps the only recourse available to Ms. Li’s family and others seeking her freedom is to invoke the ancient Chinese legal tradition of seeking to block the emperor’s procession in order to have him hear their cries of injustice. But, as they well know, this would only lead to the endless detentions of those engaged in the effort. So much for the vaunted “trial-centered justice” that current reforms claim to implement!

I assume (and hope), because of the publicity surrounding the detention of the “Hong Kong 12,” that they will not receive similar treatment to Ms. Li’s.

More about the prosecution of the "Hong Kong 12"

By Jerome A. Cohen

Now that the arrests of the Hong Kong 12 have been approved, after 37 days of incommunicado detention, there is not likely to be much news about the case emanating from the PRC for a few months, unless international pressure stimulates Beijing to a quicker than usual response. But the pot continues to boil on the HK side. 

Yesterday’s Wall Street Journal has a good article entitled “China Snatched the ‘Hong Kong 12’ Off a Speedboat, Giving Protest Movement New Life.” It reports that families of the detainees continue to call for their return to HK (instead of being prosecuted in the mainland), a fruitless demand at this point. More interestingly, it notes that the families claim that it took five days before they learned that the suspects were being held in Shenzhen and quotes the father of one of the suspects to the effect that the families have still been told nothing about their case, apparently either by the HKG or PRC officials. 

It has previously been reported that the PRC has not allowed PRC lawyers retained by the families to enter the case and indeed has used the usual methods to prevent their participation. More recent, however, is the father’s claim that the PRC lawyers reportedly imposed on the suspects “have never contacted us. They wouldn’t even tell us the lawyers’ names.”  

It is quite possible that no lawyers have yet been assigned to the case, since the interrogations of the suspects and investigation are apparently not yet complete. Usually in the PRC, as a matter of practice, defense lawyers are not permitted to enter the case at least until the police have obtained confessions and believe the basis for indictment is well-prepared. At that point, there is little that lawyers can do to advise the suspects except to prepare them for what is to come, and the possibilities for lawyers to conduct their own investigation from witnesses and obtain other relevant defense information are highly restricted. Even then, lawyers are often not permitted to try to act until after indictment, and only cursorily, before being permitted to appear in the eventual trial, largely as window dressing.

In the meantime, HK attention is growing with respect to reports that the HK police may have played a secret but active role in alerting PRC police colleagues to the suspects’ plan for escape from HK to Taiwan. It will be important to see how the story unfolds.

Henry Litton's Attack on HK Courts

By Jerome A. Cohen

Here is a recent attack on HK courts, by one of its most well-known retired judges. Henry Litton, formerly of the Court of Final Appeal, is a respected and able legal analyst who publicly called for the establishment of an independent commission to deal with the city’s chaos in the summer of 2019, a call that was not acted upon. Since then he has increasingly been critical of opponents of the HKG’s turn toward repression and implementation of the new NSL. Almost in tandem with former HK prosecutor Grenville Cross and former police investigator Tony Kwok, he has issued various op eds seeking to “reform” HK’s judicial system. It reminds me of the Mainland’s hoary admonitions that police, prosecutors and judges should operate like a single fist to suppress the opposition.

 This op-ed goes further than previous criticisms. It condemns the HK appellate court handling the region’s first NSL prosecution even though the court made a decision that the pro-Beijing forces deem correct! Why? Because Mr. Litton claims that the judges should not have given extensive consideration to the constitutional challenges that the President of the HK Bar Association and his colleagues launched against relevant provisions of the NSL on behalf of the accused, despite the fact that the judges ended by rejecting those challenges.

What seems to upset Litton is that the judges carefully considered and publicly commented on the arguments of defense lawyers who, he maintains, were “seeking to impeach national legislation in the regional courts.” This, rather than the lack of judicial clarity ostensibly revealed in the court’s judgment, seems to be what Litton mainly condemns. At stake is the legal power of HK courts to consider the constitutionality of a new PRC law specifically enacted for HK that cries out for invalidation in various respects. As Litton points out, the NSL itself makes clear that Beijing mistrusts the independence of HK judges, which is why so much propaganda is being mobilized to further curb their independence in various ways.

Updates on the Case of the Hong Kong 12

By Jerome A. Cohen

Here is the SCMP’s rapid reporting on the case of the Hong Kong 12. Mainland Chinese authorities have accused them of illegal border crossing and organizing crime. This is just the closing of the first phase of the long criminal process that lies ahead. We now know at least a few things about the case.

The “HK 12” were apparently not subjected to “residential surveillance at a designated location” on suspicion of national security violations. That could have kept them in incommunicado detention for up to six months before the regular criminal process began. Indeed, as the charge approved by the procuracy confirms, they are not being charged with national security violations under either PRC national law or the new NSL for HK, as some had speculated they might be and as a Wolf Warrior of the Ministry of Foreign Affairs seemed to suggest would be appropriate. That would have raised legal complexities of a controversial nature as well as international political temperatures.

Instead, the case seems en route to being treated as a regular criminal case of illegal border crossing, a crime, to be sure, but not ordinarily a major one. Of course, after up to seven more months or so of police investigation, the police, when they seek the procuracy’s approval of indictments, may decide to change the charges to harsher offenses or add further offenses to the current charge of illegal entry. The procuracy might or might not agree or may, on its own volition, change or add to the charges. But it is unlikely that this will happen, especially since the local Party political-legal committee, under central Party guidance, has undoubtedly arranged matters between police and procurators (prosecutors) so far as the evidence has been revealed.

At this stage, it is likely that ten of the twelve will receive one-year sentences after conviction by the local district or even intermediate court, with the sentence running from the date of detention. That sentence can be suspended or reduced, however, depending on a variety of circumstances including the extent of the defendant’s confession, contrition and cooperation with the investigation as well as the defendant’s health and willingness to forego an appeal.

The two accused of organizing may well draw three-year sentences and possibly longer ones, although, again, much depends on their post-detention behavior and physical and mental condition. The most immediate challenge for the PRC is how to deal with the embarrassment created by the denial of access to defense lawyers chosen by the families of the suspects. Further steps may be taken to silence the lawyers chosen by the families. Those can range from detaining the would-be lawyers, threatening them with disbarment and closing of their law firms as well as harm to their families etc. The authorities will surely attempt to deny the would-be lawyers further access to the families and the media. The Party may decide to have the lawyers chosen by the police put on a show designed to create a more favorable impression than usual. Possibly the families may be allowed a visit or a representative of the HK government might even be permitted to visit, but the latter seems unlikely. Too many departures from the usual practice might be seen as setting unfavorable precedents for future cases and not establishing sufficient deterrent against future offenses of this type. 

At this point there is not much that any defense lawyer can accomplish in a case of this nature except to perhaps reduce the likelihood of any further torture and coerced confessions by meeting with and observing the suspect, if only in the circumscribed circumstances allowed. Eventually, if permitted, defense lawyers might prove helpful at whatever type of “trial” is allowed, and this will be another challenge for the Party. 

Hong Kong Further Erodes Freedom of Speech

By Jerome A. Cohen

Tam Tak-chi. Photo: Tam Tak-chi, via Facebook.

Earlier this week, the activist Tam Tak-chi was denied bail after being charged with “uttering seditious words and disorderly conduct.” Tam is reportedly the first person charged with sedition in Hong Kong since its 1997 “handover” to China. There is a risk for the Hong Kong government in bringing this case under pre-existing local sedition legislation, since the facts cry out for judicial protection of speech, and the HK courts may seize the occasion to demonstrate that, no matter the constraints imposed on them by the new National Security Law (NSL), when not under the NSL, they still maintain their independence despite HK’s newly-repressive climate. Two points are worth emphasizing.

First, it would be interesting to know how the decision to prosecute was made in the Department of Justice (DOJ), specifically whether it was approved by the current Director of Public Prosecutions, who has announced his resignation as of the end of the year because of apparent DOJ refusal to allow him, rather than the special NSL group newly-established within the office, to deal with NSL cases. He reportedly hasn’t even been allowed to know about NSL decisions concerning prosecution until they have been made. I wonder how optimistic he is about the successful prosecution of Tam under ordinary, pre-NSL HK law.

The second point to focus on is the denial of bail, which to me is the most immediately disturbing aspect of the case. I hope to know what’s been made public about the denial of bail and whether the bail appeal process has now run its course. The outcome of the legal contest that lies ahead is uncertain and will tell us a lot about the impact of recent events on HK’s judiciary and the extent to which Beijing will tolerate HK judges’ independent responses to the new challenges. In the interim, however, this HK political activist will be detained in jail, at least for two more months, and is already being punished long before it is determined whether he deserves it. This certainly prevents him from further exercising freedom of speech, inhibits his full opportunity to fashion his legal defense and disrupts his normal life and work and that of his family and colleagues. The prosecution power is a dreadful one.

Law, Justice, and Human Rights in China Seminar

By Jerome A. Cohen

On September 16, we held the first session of a New School-sponsored seminar “Law, Justice, and Human Rights in China,” co-taught with Teng Biao, a famous but exiled Chinese law professor, lawyer, law reformer and human rights activist, and moderated by Katherine Wilhelm, executive director of the U.S.-Asia Law Institute at NYU Law School. The seminar introduces the legal system of the PRC with a focus on constitutional law, legal institutions, criminal justice, and human rights. The first session covered pre-Communist legal history in China, and the recording can be heard here. The seminar will take place every Wednesday from 2pm-4pm EST through November 18, 2020. You can register here.

China's Criminal Justice System Again Takes Center Stage

By Jerome A. Cohen 

I just published an article in The Diplomat discussing many of the questions that are raised by the Chinese criminal justice system. The recent detentions of Professor Xu Zhangrun and Ms. Geng Xiaonan and her husband, the continuing repression of mainland Chinese dissidents and minorities, and the plight of the “Hong Kong 12,” detained while fleeing to Taiwan, illuminate some of the system’s many problems. You can read the article here.

China's Troubling Limitations on Consular Visits

By Jerome A. Cohen

Mark Swidan, an American detained in China since 2012.

This is an excellent, if disconcerting, Guardian report on the case of American Mark Swidan, who was detained in China in 2012 and sentenced to death for drug trafficking. Although the UN has declared that Swidan was arbitrarily detained in violation of international law, consular visits do not appear to have been denied in his case. As I pointed out last week in discussing the case of Australia’s Cheng Lei, video consular visits are de rigueur in China during the virus crisis. I don’t think the refusal to allow in person consular visits is a reasonable ground for protest in the current circumstances under either the Vienna Convention or the bilateral US-China consular agreement as long as credible video visits are provided. As in Cheng Lei’s  case, they are not as satisfactory as in person visits, if only because of the more limited basis for close personal observation of the detainee. But, and this should be emphasized, the health restriction is recognized as acceptable as long as it seems genuinely required and not an implausible excuse.

For Cheng Lei, I wonder whether it would be possible for groups to ventilate PRC action against her in a way that might lead to her release before Christmas or at least Chinese New Year, by which time the initial RSDL detention limit will have almost been reached. When Ai Weiwei was detained under RSDL in April 2011, before it was legislatively authorized in  cases like his and now Lei’s, his many friends and admirers made several PR efforts of various kinds that helped secure his release after a bit over two months of unpleasant confinement. But that was just before Xi Jinping’s ascension, and Ai was not the national of a government at odds with the PRC, as Lei is. I assume someone has retained an experienced Beijing lawyer for Lei, not that much can be done at the moment by even the best criminal lawyer in China. Of course, after many RSDL detentions have expired, the suspect is not released but sent for the start of the usually much longer, conventional criminal process detention. That may or may not permit identification of the suspect’s location, the anticipated  basis for prosecution and eventually even the first restricted contact with a defense lawyer. 

Regarding consular visits pre-Covid, in the Chinese practice, which has allowed consular visits even for the two Canadian Michaels, what is unacceptable is the narrow scope permitted to each visit. It is generally brief, and the visitor is not allowed to discuss the case that landed the hapless detainee in detention! In the Swidan case – another self-inflicted black-eye for the PRC’s reputation for non-consular reasons – the mother has a lot more to worry about than possible closure of the Guangzhou US Consulate, which is not yet on the cards, since, even if it were closed, video and eventually in person visits will continue to be possible, with diplomats sent as necessary from some other US post including the embassy in Beijing.

I admire John Kamm, the chairman of Dui Hua, for his persistent and outspoken efforts in Swidan’s case, as in so many, but wonder why Trump’s State Department is not making more of a fuss in public. Kamm and Swidan’s mother have criticized the US government for its lack of action on the case. Of course, we don’t know about the merits of the PRC accusation against the detainee, but the PRC criminal procedures against him have been a cruel scandal. We should note, however, that the mother, but not the brother, has had phone contacts with her detained son, at least on occasion. 

The PRC’s use of criminal justice and other excuses for detaining foreigners, even some civil cases in various ways, is a topic that deserves extended analysis, especially since arbitrary detention now is frequently in vogue in Beijing in order to gain international relations leverage. Foreign relations often affect a country’s justice system. In my youthful prosecutor days, I saw how American juries could be affected by headlines about relevant international crises. But Hostage Diplomacy, as practiced by any state, is beyond the pale.

Tony Kwok Calls for the Erosion of Hong Kong's Judicial System

By Jerome A. Cohen

Here is the latest China Daily defense of the Hong Kong National Security Law, featuring an attack on HK’s judiciary as well as on Taiwan’s willingness to accept HK refugees. Former HK Independent Commission Against Corruption leader Tony Kwok, now at least nominally retired but long a cheerleader for harsh enforcement of a stern NSL, is not content with the restrictions that the NSL places on local judges handling NSL cases. He now advocates restricting the independence of those HK judges who continue to handle local cases of alleged “rioting” that do not fall under the NSL.

Earlier this year many pro-Beijing supporters assured us that there is no reason to fear an NSL, since there will always be the protection offered by the independent HK judiciary required to interpret and apply the law. Yet brief experience later this year has led to Beijing’s supposed “loss of trust” in HK’s judiciary, which is now being accused of standing between the people of HK and their peace and stability. A similar argument has recently been made in the SCMP by long-retired Court of Final Appeal judge Henry Litton, a pro-Beijing favorite of the HK business elite. I plan to comment separately on the Litton op-ed.

Kwok condemns a number of HK judges, none of them foreigners it should be emphasized, for granting bail to some accused and acquitting others. There is, he maintains, “clearly a prima facie case that these judgments are tarnished by their political bias in favor of the rioters.” The Chief Justice, he argues, should order an internal inquiry “to ascertain whether these judges are politically biased, or worse still, have questionable relationships with the defense counsels which they did not declare.” This suggestion, made wholly without evidence, is, of course, an outrageous slur not only against the judges but also against the  gallant HK bar that, together with the judiciary, represents the city’s last line of peaceful defense against Beijing’s new oppression.

Yet Kwok goes further, urging that HK judges be specially approved not only for handling NSL cases, as required by the new law, but also for dealing with ordinary “riot-related” cases. That would make it certain, he claims, that only “apolitical judges” would become involved, i.e., those who are likely to deny bail and to convict accused.

Most alarming among Kwok’s many recommendations and insinuations is his confidence in the interrogation methods that Mainland police are very probably using to “interview” the HK fugitives recently caught as they sought escape to Taiwan. Although Kwok seems understandably uncertain whether the suspects will be prosecuted in HK or the Mainland and for which offenses, he is in no doubt, quite correctly, that “these fugitives would unlikely keep their mouths shut under interrogation by Chinese mainland enforcement officials.” Kwok, never alluding to the well-documented incommunicado detention, torture, and coerced confessions that characterize mainland police “interviews,” as he prefers to call the process, tells us that such interrogation will be “fair because the mainland has long adopted a video recording system for all interviews of suspects.”

This assertion is the height of mischievous cynicism, since police easily evade that requirement. Moreover, PRC police – both ordinary and secret police – actually use extreme, persistent physical and mental tortures to force their captives to give pre-scripted video “confessions” that are then often televised in an effort to support the PRC’s false claims. Kwok should acknowledge, for example, the extraordinarily long and detailed statement issued November 20, 2019 by Simon Cheng Man-kit, the local employee of the HK British Consulate who, as he left the mainland, was forcibly detained last August for ostensibly “soliciting prostitution.” Cheng, now having obtained political asylum in the UK, was actually subjected to obscene tortures for two unbearable weeks in Shenzhen in “interviews” designed to extract information about the origins of last summer’s HK protests. His emotionally moving post-release account came as no surprise to students of PRC criminal justice.

A Reflection on Multinational Law Firms and Their China Practices

By Jerome A. Cohen

Here is a useful update on the fate of foreign law firms that began to venture into the PRC in 1979. In 2020, four global firms have either closed offices or severed ties with a partner firm in mainland China, and in the last five years, eight top firms have closed at least one China office. This news has led me to reflect on the topic, since I was in on the start, before Chinese firms, which have now become such formidable competitors and partners, had even been formally re-established after the end of the Cultural Revolution. This story has to be viewed as part of the broader efforts by American and other Western firms to establish offices throughout East Asia after the end of World War II and especially following the Korean war. Local lawyers in each of the East Asian countries, some freshly returned from study in North America, the UK and the Continent, often did their best to resist the foreigners’ entry into practice, although many in the governments of those countries often saw the desirable aspects of foreign entry for the modernization and internationalization of their economies and legal systems. There was a long, gradual acceptance of foreign firms, usually under careful restrictions that represented compromises with the local bar and under WTO and bilateral trade arrangements. These still exist to varying degrees.

Two anecdotes, both from the 1973-74 period, illustrate the situation. Japan’s quickly developing market was the first target of Western law firms. After Isaac Shapiro, then leading Milbank Tweed’s international efforts in Asia, persuaded the Japanese Foreign Ministry to allow him to set up shop in Tokyo -- NOT as a law firm but as the representative of the firm’s major client, The Chase Bank, I called on MOFA’s head of North American Affairs on behalf of Coudert Brothers, then another top international firm. Now that we had this favorable precedent, I said, was it not time to allow foreign law firms to establish Tokyo offices in their own names? With a straight face, this able Yale Law graduate, an evident sympathizer with the local bar, replied: “That was no precedent. That was a mistake!” Eventually, however, the situation In Japan improved for international law firms and that gradually had an influence elsewhere in the region.

In 1973, I met with Prime Minister Lee Kuan Yew on the subject in the hope of breaking the barrier Singapore lawyers had presented. Lee saw the utility of gradually introducing foreign firms in order to improve the legal services for international transactions in the rapidly developing area and to stimulate the rather sleepy local bar to higher standards. But he also did not want to suddenly break the rice bowls of local practitioners, especially since his wife and brother were running a profitable international law office. So, he decided to admit one foreign firm, Coudert Brothers, with a determination to admit others over time as conditions warranted, which is what happened.

It is notable that, even after that, the UK’s colonial government limited the entry and practice of non-UK firms in Hong Kong, and that only the 1997 “Handover” of HK to the PRC opened the way to the current more competitive situation in which PRC law firms have also played an increasing role.

One point to stress in evaluating the withdrawal of some foreign law firms from China is that some may have withdrawn for reasons unrelated to their China practice. The late, lamented Coudert Brothers, for example, which led the way for foreign law practice in Beijing beginning 1979, left the field because problems largely unrelated to China led to the firm’s dissolution!

Now Is Not the Time to Fully Normalize Relations with Taiwan

By Jerome A. Cohen

Today Newsweek published my article, “Don’t Rush to Fully Normalize Relations with Taiwan,” beside Gordon Chang’s article, “Avoid War, Defend America, Recognize Taiwan,” as part of The Debate, a Newsweek op-ed series. Although our conclusions differ on the formal diplomatic recognition issue, both articles emphasize the need for clear US policy on the defense issue, arguing that the United States should abandon the policy of “strategic ambiguity” that fosters uncertainty and instead make a clear promise to defend the island. You can read both articles here.