Pressure Mounts on the Hong Kong Bar Association

By Jerome A. Cohen

Here is an important report summarizing the many efforts being made by Beijing and its Hong Kong minions to press Paul Harris into resigning from his new post as chairman of the Hong Kong Bar Association. This is only part of the broader campaign to try to neuter the Bar Association. If that proves successful, it will limit the capacity of independent courts to fulfill their duties. Judges need the help of good litigating lawyers in all controversies.

I don’t know Mr. Harris, but by all accounts, he is a very able lawyer, a dedicated law reformer, and a vigorous proponent of human rights. Beijing and the Hong Kong  government see him as a force to be crushed, especially after he began his tenure as Bar chairman by suggesting that certain provisions of the new National Security Law for Hong Kong be amended in order to make them consistent with Hong Kong’s constitutional values, the Basic Law, and the International Covenant on Civil and Political Rights that the Basic Law makes applicable to Hong Kong.

Harris, as the article points out, has the confidence of most members of the Bar Association. No one ran against him in the chairmanship election. One has to ask, however, why once again is the Bar chair not a local ethnic Chinese, as so often was the case in earlier years?  Is it because the Bar is already feeling intimidated by Beijing’s political pressures and abilities to restrict the professional prospects and even the personal freedom of even the ablest barristers in the city? We should note that the great legal light Martin Lee and Margaret Ng, another able lawyer and liberal political leader, stood trial today on charges of organizing and participating in unauthorized assembly. Both pleaded not guilty, and the trial has been adjourned until next month. At least they, unlike Jimmy Lai, are out on bail.

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

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

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

By Jerome A. Cohen

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

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

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

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

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

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

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

By Jerome A. Cohen 

Richard O’Halloran and his wife Tara.

Image: SaveRichardNow/Twitter

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

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

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

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

Fight or Flight? Hong Kongers Debate Whether to Leave for the UK

By Jerome A. Cohen

Here is an important and largely encouraging story. A Perfect Storm is brewing in both Hong Kong and the UK over emigration to the UK, and it has major lessons for all other liberal democracies that are, rightly, concerned about Beijing’s oppression and the plight of Hong Kong people. 

This is Boris Johnson’s finest hour, and I hope that he and his Cabinet can follow through on not only welcoming people who wish to flee PRC dictatorship but also working hard to resolve the many challenges these newcomers face in a UK beset by the pandemic and its long-existing economic and sociological problems in dealing with racial minorities.

The US should immediately follow suit, as should the other obvious preferred destinations of self-exiling Hong Kongers. Here is a huge potential role not just for governments but for charitable foundations like Ford and Rockefeller and the newer ones spawned by immense wealth in America and elsewhere.

Here is also a great opportunity for the many foreign observers of the tragedies being inflicted by Xi Jinping who feel frustrated by their apparent inability to respond in opposition. We can reach out in our own communities to facilitate the arrival and assimilation of the newcomers. This will also belatedly sensitize us to the need to reach out to immigrants from other countries who have done so much to contribute to our domestic welfare.

Perhaps the most encouraging recent report from the UK is the one that demonstrates the net economic and talent benefits that Hong Kong arrivals will contribute to Britain’s struggling economy.

Genocide, crimes against humanity, and common sense

By Jerome A. Cohen

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

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

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

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

Our edited volume on "Taiwan and International Human Rights: A Story of Transformation" has won an American Society of International Law award

By Jerome A. Cohen

The good news from Washington two days ago was notice that the book edited by Professors LO Chang-fa, Bill Alford and myself—"Taiwan and International Human Rights: A Story of Transformation"—has just received an award from the American Society of International Law (the “2020 Certificate of Merit in a Specialized Area of International Law”). This is welcome recognition of Taiwan’s enormous human rights progress since the mid-‘80s. I hope that someday there will be a similar collection of edited essays about the progress yet to come on the Mainland!

Here’s the report of the American Society of International Law’s 2020-2021 Book Awards Committee about "Taiwan and International Human Rights: A Story of Transformation":

“This edited volume addresses a fascinating, challenging, and understudied story in international human rights law – how Taiwan, whose very status as a party to human rights treaties remains contested, engages with and internalizes human rights into domestic laws and practices. The editors have gathered leading scholars and practitioners, mostly from Taiwan, to offer a comprehensive assessment of Taiwan and human rights that manages to steer clear of ideological cleavages over Taiwan's status. The book covers a broad gamut of topics, including Taiwan's transition from authoritarianism, conceptual questions such as Taiwan's approach to Asian values and constitutionalism, the institutional challenges of incorporating and monitoring treaties, and the status of various protections in domestic law. By showing how this sui generis entity has engaged with international rules in a legal gray zone, the book offers profound insights into international law’s effects on states’ internal practices and international reputations.”

December Was a Bad Month: We Lost Three Important Senior Figures in East Asian-American Relations

By Jerome A. Cohen

Clockwise from Left: Minoru Makihara, Takashi Oka, and Ezra Vogel

One was the distinguished scholar Ezra Vogel of Harvard, about whom I wrote last week. Another was the respected journalist Takashi Oka of the Christian Scientist Monitor and, for some years, The New York Times. The third was the dynamic international business leader Minoru Makihara of the Mitsubishi Corporation. The Times and many other papers carried individual extensive obituaries about each one. I was fortunate to know and admire all three. 

Ezra, as so many have now agreed, was the model American scholar of East Asia. He was one of that rare breed who could actually do research in both Chinese and Japanese sources and conduct interviews in both languages. His many books have made significant contributions to our understanding of each country’s modern development, and his recent published volume on Sino-Japanese interactions from the beginnings of civilization is an ambitious, innovative and highly readable study that provides invaluable background for the complex, intermittent negotiations again under way. Ezra will also never be forgotten by the generations of students and younger scholars whom he so generously nurtured.

Ezra, I and our spouses knew Takashi Oka and his charming wife Hiro from the year 1963-64 we each spent in colonial Hong Kong on our separate research projects interviewing refugees from the China Mainland from which Americans were then still banned. Tak was covering Mao’s China and proved an informed, balanced, insightful and helpful friend. He had a sense of equanimity as well as humor that made it a joy to share his company. The Okas produced two beautiful girls who became talented young women and eventually friends of the three sons whom Joan and I spawned. I recall seeing the whole family eight years later when our family spent the year in Japan and Tak was based in Tokyo as Times Bureau chief, and the Okas, who had many links to Harvard, overlapped with us again in Cambridge during my tenure at the Law School.

I had a closer friendship with “Ben” Makihara, whose career, like Tak’s, embodied the best aspects of the post-World War II US-Japan relationship. Ben’s upbringing and education in the UK, Japan and the US had given him the perfect background for the international roles he was to play. He had many attributes similar to those of Tak and could be extremely lively on occasion. I will never forget the motorcycle ride he insisted I share with him in the early ‘80s to facilitate his introduction of some little-known Tokyo areas. Never having been on a motorcycle before, I was scared stiff, but Ben proved a reliable guide.

Always a loyal Harvard grad, Ben was supportive of the Mitsubishi Group’s establishment of a chair in Japanese law at Harvard Law School.  Like the Okas, Ben and his able wife Kikuko, great-granddaughter of the Mitsubishi Group’s founder, had two talented children. I got to know their son Jun better than their daughter Kumiko because he proved to be a top student at the Harvard Law School while I was still teaching there, and it occurred to me that he would make an excellent and most appropriate first occupant of the Mitsubishi professorship in Japanese law. But Jun decided that he preferred an investment banking career with Goldman Sachs and then others in New York instead of either perpetuating the family tradition at Mitsubishi or embarking on an academic career in comparative law.

Interestingly, the Okas and the Makiharas became linked through the marriage of Mimi Oka to Jun, and the illustrious young couple and their own family have made a much-admired contribution to New York life. Early this month, however, both Tak and Ben passed away within eleven days of each other, and Ezra followed last week. Sic Transit Gloria! Without this extraordinary trio of wonderful human beings East Asian-American relations will be more challenging than ever.

In Memory of Ezra Vogel

By Jerome A. Cohen

Two reliable sources have just told me the sad, shocking news that my old friend and dear former colleague Ezra passed away yesterday after surgery in Cambridge. No details have been provided, but this surely was not long foreseen. We were supposed to join forces in a January 21 program for the National Committee on US-China Relations. Ezra, as many know from personal experience, was not only a wonderful scholar of East Asian studies but also a marvelous mentor and friend to generations of Harvard students and others, as well as an important public intellectual. So many will miss his warmth, humor and generosity.

I never had the benefit of a Harvard East Asia education and only met Ezra in August 1963 when I was starting a research year in Hong Kong en route to teaching at Harvard. John Fairbank put us in touch since he had just dispatched Ezra to Hong Kong for a similar year. Ezra got there a bit earlier than I and was kind enough to solve my housing problem by telling me there was an apartment available across the street from his own on Marigold Road in Kowloon. Our families spent a friendly year together while Ezra and I interviewed refugees for our respective books. Ezra’s older son David and our eldest Peter still are friends in Cambridge.

Trying to muster humor on this grim day, I recall the time Ezra asked me to give a lecture on law to his class on Chinese society in William James Hall. Since I lived nearby and always had my charming dog Simhala walk me to the law school every day, I made the mistake of bringing him with me that morning, tying him up outside the building. As I started to hold forth to about 80 students in the auditorium, I spotted Simhala coming down the center aisle like a late student. He promptly ascended the stage to the evident amusement of the students and started pacing back and forth across the stage. I utterly failed to capture the students’ attention and watched in frustration as their eyes shifted from left to right with Simhala’s movements. Ezra was seated in the first row, observing the spectacle with his usual bemused tolerance. Neither of us knew what to do. At that moment, however, Simhala, who must have been listening to the lecture, fell asleep, like some of the students, and the crisis was resolved! Ezra was too kind to ever mention the incident again. He will be greatly missed.

CFR Article: How 2020 Shaped U.S.-China Relations

Here is an end of the year China greeting from CFR. My colleagues and I discuss the impact of 2020 on U.S.-China relations and what lies ahead. It includes commentary by Elizabeth Economy, Yanzhong Huang, Adam Segal, and Julian Gewirtz. Being an optimist, I like the Chinese popular song “Tomorrow Will Be Better.” You can read the article here.

The Detained Canadians Need More Than Christmas Cards

By Jerome A. Cohen

I’m sure that the detained Canadians, Michael Kovrig and Michael Spavor, will be bolstered by the moral support they will feel from any holiday greetings and sympathy they might receive. But I would like now to focus on trying to think of practical ways of freeing them. 

There has been no word in the past few days about reported meetings between US authorities and Ms. Meng of Huawei’s lawyers. Supposedly the US extradition proceedings in Vancouver can be dropped in favor of “deferred prosecution” if Ms. Meng admits to the offense charged. She apparently is reluctant to admit to the charge, leading to further stalemate.

If this is indeed the situation, it occurred to me that the case might be resolved by President Trump granting her a pardon. This would require no admission or agreement on her part. Pardons are political acts in the US, Trump has made outrageous use of them, with more to come, and this case, implicitly involving as it does the PRC’s hostage diplomacy re Canada as well as the American initiation of the prosecution itself, is plainly political as well as legal.

Ms. Meng might be reluctant to be regarded as in a class with Trump’s felonious friends, but Huawei may welcome the opportunity to end the case, as might the PRC. Of course, any pardon would have to be preceded by an agreement between Canada and the PRC, as well as the US, that the pardon would be followed, after a brief “decent interval”, by the release and deportation of the two Michaels. Probably, to vindicate the appearance of justice in the PRC, each Michael would be required to plead guilty to what indeed might be termed a Trumped-up charge.

Complicated? Yes, but not unrealistic. I have taken part in negotiations somewhat analogous that led up to the release by the PRC of alleged offenders accused of serious crimes. The notorious Ms. Gao Zhan, for example, who turned out to be what might be called a “triple agent”, was, as a result of a quiet agreement between the US and the PRC, sentenced to a long prison term by a PRC court, but released within 48 hours on ostensible medical grounds.

I briefly floated this idea in an interview with David Wertime in Politico the other day, but thus far there has been no reaction. Is it zany? Can we come up with other ways to free two unfairly treated captives?  Christmas cards won’t do the trick. 

Free Speech in Hong Kong is Further Eroded

By Jerome A. Cohen

Activist Tam Tak-chi was arrested in September of this year

Here is an important Hong Kong Free Press essay on the case of activist Tam Tak-chi who was arrested in September of this year on a sedition charge. It is by Tom Kellogg and a Georgetown colleague who feels the need to adopt a pen name. Several points strike me as worth emphasizing.

One is how difficult it will be to maintain public attention and understanding as these HK prosecutions proliferate. Publicity about one case obscures developments in others. Joshua Wong, Agnes Chow, and Ivan Lam were sentenced the same week that information about Tam’s case came out, and those cases drew attention away from Tam’s. 

Moreover, as the Kellogg essay points out, it is increasingly difficult in practice to observe a distinction between prosecutions brought under regular Hong Kong laws and those now emerging under the new National Security Law. The Tam case is shocking in this respect. Tam is not being tried under the NSL. Yet the judge assigned to try his case is one of those judges on the tiny list of those sufficiently government-minded to be eligible to try NSL cases.

The denial of bail to Tam for the eight months before his scheduled trial means that he is already being severely punished for “crimes” for which he has not been convicted. Even the judge who inspires government confidence will have to contend with the presumption of innocence at trial and the further requirement that proof of conviction must be “beyond a reasonable doubt”.

It is troubling that Hong Kong criminal trials have distant trial dates while the accused are required to remain in jail. Jimmy Lai is also surely being punished during the long period before his trial, even though he too, at least in principle, may not be found guilty.

It is encouraging to see that some Hong Kong magistrates, despite the immense pressures that now descend on them, are still strictly putting the prosecution to its proof in accordance with the law. They undoubtedly will not be added to the list of approved national security judges.

Sadly, it is pathetic that pure speech, unlinked to acts or threats of violence, is now being punished in the name of “national security”, even if the speech is on college campuses. A Communist Party that used to preach the virtues of “criticism and self-criticism” is ridiculously fragile.

Simon Young Response Regarding Freezing Assets in Hong Kong

Here is an informed expert analysis by Associate Dean Simon Young of the HKU Faculty of Law. He said that I can make it available to interested parties.

Under our anti-money laundering laws, the police have a wide power to effectively freeze funds in bank accounts by writing a letter to the bank.  The letter will normally state the police reasonably suspect the funds to be proceeds of an indictable offence and, unless the police grant the bank consent, the bank may be guilty of money laundering if they allow the customer to deal with the funds.  This effectively freezes the funds and the bank cannot tell the customer why (as there is a tipping off offence in the legislation).  One might think this is a police power that could be abused especially since there is also a power for prosecutors to apply to a court to restrain property reasonably believed to be proceeds of crime.  However, our Court of Appeal has upheld the constitutionality of this ‘no consent’ police power so long as it applies only during the investigatory stage, which must proceed without unreasonable delay and only on the basis of reasonable suspicion.  Here is the link to the decision: https://www.hklii.org/eng/hk/cases/hkca/2019/70.html

From Nixon to Biden, Kissinger's Role in US-China Relations

By Jerome A. Cohen 

Here is Joe Bosco’s brilliant analysis in today’s The Hill.

I wish the author had not inserted the supposition that Henry Kissinger might have told his PRC friends that flattery of presidents was necessary in order to be persuasive. Although Henry might well have, it would be better to have evidence to support the thought, a quite plausible one in light of Henry’s public flattery of Nixon.

I have not reviewed the Nixon tapes but know, from my own experience in occasional discussions with Henry in the period 1969-71, of his ability, on the one hand, to make fun of the president in private and, on the other, to behave in the most obsequious manner when the boss summons by phone. As many may know, Henry has often been an outrageous flatterer to others, not only presidents. He has long been a sometime practitioner of the maxim that “flattery will get you everywhere”.

More substantively, unlike Joe Bosco and, today, many others, I do not agree that the 1971-72 Nixon-Kissinger momentous breakthrough with the PRC was mistaken, and not only because it was desirable at the time to seek to balance Soviet power. Many of the other reasons that made it desirable for the US and the PRC to begin to cooperate remain valid today. Indeed, in view of China’s progress, those reasons are more important than ever and should not be obscured by the many challenges that China’s increasing prominence inevitably presents.  

I share the author’s great concern for what to do about the PRC’s many outrageous human rights abuses and agree that Henry’s prescriptions utterly fail to respond to those challenges. I wish that Joe had mentioned Henry’s enormous success in maintaining a business consulting enterprise that has rested in important part on his access to PRC leaders.

I was amused by the reference to Henry’s alleged maneuvering to make sure that Nixon would designate him as the presidential agent for the July 1971 secret trip to Beijing.  The first draft of the Harvard Kennedy Institute of Politics private memorandum on the need for a new China policy, prepared for whoever might be elected president in 1968, suggested, in its first recommendation, that the new president select the secretary of state to carry out secret, if need be deniable, conversations with the Beijing leadership. Our Harvard-MIT group of Asia specialists, convened by Kennedy Institute leader Dick Neustadt, intended to submit that memorandum right after the election.

After Nixon won, it became clear that William Rogers would become secretary of state and that our colleague Kissinger would become national security advisor. Because Henry, although not a member of our committee since he had not been associated with Asia, was known to some of our group, we decided to submit our memorandum via Henry. It was suggested by some who knew Henry that we change the first recommendation in the final draft to eliminate the specific reference to the secretary of state and instead to suggest that the president select someone in whom he had the greatest confidence for the stealthy China mission. Those who knew Henry, as I then did not, felt confident that he might maneuver to qualify for the extraordinary opportunity. 

The rest, as they say, is history!

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

By Jerome A. Cohen

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

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

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

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

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

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

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

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

Hong Kong is not likely to be spared.

What Is the Significance of Sun Dawu's Arrest?

By Jerome A. Cohen

Chinese billionaire Sun Dawu

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

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

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

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

Hong Kong's New Secret Police "Hotline"

By Jerome A. Cohen

This article helps put flesh on the bare bones of the initial announcement of the unprecedented secret, anonymous HK “hotline” for reporting suspected NSL violations to Hong Kong’s new secret police. For the first week of implementation, harvesting an average of 1,400 pieces of information per day seems to be a promising start for the Mainland-dominated national security unit.

There is evident Hong Kong Government interest in seeing whether this local equivalent of the former East German “Stasi” secret police “hotline” might soon equal or surpass the “hotline” HK police established last year for tips concerning alleged acts of violence, which is now up to 3,000 tips per day!

Yet this HK secret police innovation need not look to the practice of the discredited and overthrown East German regime. As the report points out, the PRC’s Ministry of State Security (MSS), which controls the new HK unit, has been successfully running a similar operation throughout the Mainland since 2017. However, that institution has apparently been so troubled by the receipt of many “malicious reports” that it issued a warning in April that such anonymous accusations could result in “legal consequences”. Nevertheless, the MSS does not want to discourage would-be tipsters and has begun to pay cash rewards to reliable informers. It would be good to know the criteria for compensating informers.

I wonder how long it will be before the HK counterpart offers similar cash rewards and follows another MSS precedent by establishing “a reporting platform” like the one the MSS established in the Mainland soon after it began operating the national “hotline”.

The Continuing Attack on China's Human Rights Lawyers

By Jerome A. Cohen

Human rights lawyer Ding Jiaxi

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

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

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

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

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

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

Some Post-Election Thoughts

By Jerome A. Cohen

The next two-plus months will be politically fascinating, in terms of both domestic politics and US foreign policy. The Biden people have an enormous challenge before them in planning and staffing a comprehensive new government and reconciling conflicting pressures within the Democratic Party regarding personnel choices as well as policies.

It will be even more interesting to watch the immediate maneuvers within the Republican Party elite and to consider their implications for Republican leadership in the next few years and the emerging rivalries for 2024 presidential candidacy.

How uncomfortable Trump must be to face post-January 20 legal problems! Will he follow the Nixon precedent and resign before his term ends in order to allow Pence to succeed him and then pardon him for all federal offenses? No such sleight of hand can readily eliminate the threat of serious state prosecutions. And Trump is undoubtedly thinking of running again in 2024.

Pence is now in an awkward position. His contrasting behavior with Trump’s has made him look conventionally respectable and a possibly serious 2024 candidate himself. But how should he conduct himself in the next weeks if Trump continues his objectionable behavior? Will Pence look too similar to Gerald Ford if he agrees with the pardon ploy? At least Ford knew that Nixon would not run against him in the 1976 election. If Trump’s health holds up and he is not convicted of state or federal crimes, Trump may well run again. Moreover, a host of other Republicans will now emerge as possible 2024 contenders, trying to build on the huge Republican turnout of this past election. And will the likes of Mitt Romney, Susan Collins and other non-Trumpists within the party do anything other than react with ineffectual gestures? 

Despite all these domestic preoccupations, foreign policy issues will need immediate attention. We will have much to chew over very soon, with considerable attention increasingly centering on the monumental January 5 run-off elections for both Georgia senators. Because control of the Senate is at stake, the outcome will be important for both domestic and foreign policy issues, and huge resources will be brought to bear.

Case of Chinese Lawyer Qin Yongpei Submitted to Seven UN Offices

By Jerome A. Cohen

Lawyer Qin Yongpei

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

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

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