Hong Kong's Transformed Criminal Justice System: Instrument of Fear

Several of us were recently asked to write essays for Taiwan’s Academia Sinica on developments in Hong Kong. These will be formally published in March but, in view of the pace of events and the importance of the topic, we have been authorized to make our views available now.

HONG KONG’S TRANSFORMED CRIMINAL JUSTICE SYSTEM: INSTRUMENT OF FEAR

By Jerome A. Cohen*

Abstract

This essay demonstrates how recent, comprehensive changes in Hong Kong’s criminal justice system have transformed it into an instrument of fear that has understandably intimidated a formerly vibrant society into political silence. An intensive surveillance system now reaches every aspect of society. Aggressive criminal investigation techniques now invade formerly protected freedoms of expression. Aided by reversal of the traditional presumption in favor of bail pending trial, government now punishes people under the new National Security Law (NSL) by detaining them for months or years before cases are finally decided. Recent restrictions on Legal Aid limit prospects for independent criminal defense. Political operatives now decide whether and what types of NSL prosecutions should be brought. Trial by jury has been eliminated for major NSL offenses, and only judges who are deemed politically reliable can adjudicate such trials. Also, appellate judges are under various pressures, and constitutional issues that were formerly thought to be the exclusive province of the Hong Kong courts are now dictated by the Standing Committee of China’s National People’s Congress. Moreover, increasingly, local criminal procedures that do not fall under the NSL are nevertheless being adversely affected by the current obsession with national security. The NSL era’s transformation of criminal justice has effectively suppressed popular protests and democratic practices.

KEYWORDS: national security, surveillance, criminal justice, investigation, bail, jury, defense lawyers, prosecutors, judges, Constitutional Law, human rights.

Full text (PDF): http://publication.iias.sinica.edu.tw/60105122.pdf.

A Global Times Article Challenges Foreign Scholars of China

By Jerome A. Cohen

Here is an interesting piece from the PRC’s leading international newspaper. I suppose the headline (“Western intellectuals now have weak minds to grasp China's might”) means we have weak minds because we are ill-prepared and lack appropriate means of analysis for what the author confusingly claims is either a new, unprecedented phenomenon or a reworked version of traditional China, in either event a different civilization from that of the “West”. Do we need the late Sam Huntington, Yu Ying-shi and John Fairbank more than ever? Can today’s scholars in China help us avoid the stigma of “historical nihilism” that is applied by the PRC to honest efforts to produce objective scholarship? What concepts need to be developed to describe and analyze the PRC?

Specialists in various fields of China studies, while unwilling to discard those frameworks that have thus far proved helpful in analyzing various societies, including China’s, have sought to adapt to the distinctive challenges the PRC presents in their respective fields. Indeed, it is those challenges that make the study of China so exciting – the opportunity to unearth new facts and to determine the extent to which new ideas and modes of analysis are required to do justice to those facts.

In the field of Chinese law, many of us, going back to the early 1960s when Stanley Lubman, William Jones, Randle Edwards, David Buxbaum, Anthony Dicks, I and others first tried to take up the challenge, we did not attempt to squeeze the Chinese experience into existing comparative categories, although we did not ignore those stimuli. We sought to analyze it for what it appeared to be. Researching and writing my 1968 book on the PRC’s criminal process proved for me to be a memorable effort to impose an interpretation on previously unperceived facts that distinguished the Chinese Communist system from those of imperial China, Chiang Kai-shek’s Kuomintang regime, and Stalin’s Soviet Union that evidently influenced it. Our efforts continue today, as does the PRC’s evolution. Many, but surely not all, legal scholars in mainland China, Hong Kong, and Taiwan seem to appreciate our work more than the Global Times author implies.

Professor Mearsheimer's "Foreign Affairs" Essay on US-China Relations

By Jerome A. Cohen

Professor Mearsheimer’s recent essay in Foreign Affairs deserves careful analysis from many viewpoints. Here are some of my initial reactions:

He does not examine the difficulties China is encountering and will increasingly encounter in maintaining its phenomenal economic development. Nor does he give weight to the challenges the regime will confront on the domestic social and political fronts, not only because of economic dissatisfactions. Of course, because of the PRC’s non-transparency, it is far more difficult for foreign observers to evaluate these factors than to measure the impact on foreign policy of the domestic disarray confronting the United States and other liberal democracies. Yet one hopes that the openness of the liberal societies will eventually improve their relative prospects for coping with domestic challenges that inevitably affect foreign policy.

I wish he would discuss in greater detail the challenge of peacefully getting through the next decade by successfully managing relations with China. What steps to bolster Taiwan might legitimately be perceived to cross Beijing’s “red line” and violate US assurances to Beijing? Can crucial progress be made on climate, health and other rapidly emerging issues while the liberal democracies belatedly strengthen their positions on Beijing’s periphery and properly denounce Beijing’s many provocations? Should they continue the struggle to maintain existing cooperation with the PRC in such fields as business, education, scientific and socio-economic research, and law reform?  Much food for thought.

The sensational police detention of famous pianist Li Yundi on charges of soliciting a prostitute

By Jerome A. Cohen

Li Yundi

There are obviously so many unanswered questions at this early stage of learning about the most recent manifestation of Xi Jinping’s New Era. The release by the Beijing police of the news that they have detained someone – anyone – by the shabby method of unofficially posting and reposting broad “hints” on Weibo must be nauseating to disinterested observers of comparative criminal justice. I assume there will soon be a formal official announcement clarifying the degree of punishment to be imposed on the hapless pianist. The reference to “administrative detention” suggests that Mr. Li may “only” be charged with a violation of the supposedly “non-criminal” Law for the Punishment of Violations of Public Order, which enables the police alone to punish minor offenders without the need to obtain approval from the procuracy and the court and without any significant guarantees of fair treatment. That would subject world famous Li  to a fine and a maximum of 15 days in a very unpleasant police detention cell. It is also possible, yet unlikely, that he could be prosecuted for a formal “crime” that could result in a prison sentence as well as a long period of pre-trial police detention. If he proves as cooperative in responding to the accusation as reports suggest, no “criminal” charge may be brought, especially since enough has already been done to damage his reputation and perhaps end his career in China.

But why has he been singled out for detention on a prostitution charge when huge numbers of prostitutes’ customers are not pursued? Did he offend a leader by some remarks of a political or personal nature? Was he “set up” for this charge? Can one be confident that the facts alleged are true?  Is this the use of the police as an instrument of revenge by some powerful person? Is this simply a part of the current campaign to transform and “purify” the entertainment and other industries? Will Li be allowed to leave the country after serving his punishment to pursue his career abroad? That seems unlikely.

Prostitution is such a time-honored Communist Party claim against political opponents that one has to be suspicious of this case. In any event, the manner by which the police have made the matter public only adds to the unsavory story.

Extradition and judicial independence–how are countries addressing these issues?

By Jerome A. Cohen

This article on the conversation between Wenran Jiang and former U.S. ambassador Chas Freeman makes apparent the need for a Canadian legislative inquiry into the Article 4 exemption issue. In the interview, they discuss whether Ottawa should have arrested Meng in the first place. Should Canada have released Meng after Trump openly politicized the case? Did Canada’s Executive in effect remove the political question from the Vancouver court’s jurisdiction? How was the court expected to deal with the question? What arguments did the respective counsel make regarding this question? 

I had long advocated that the court resolve the case by denying extradition on the ground that Trump had rendered it political. Were China and the US each worried about what the court would decide? Was Canada leaving the hot potato to the court, at least in the first instance, to the prejudice of the two Michaels? What is the nature of the relationship between the courts and the government in Canada regarding extradition? This must be a common problem. New Zealand has been struggling with it in the ongoing PRC request to extradite a Korean national named Kim who is charged with murder in Shanghai. And, of course, there is the unresolved effort of Taiwan to extradite the Hong Kong citizen accused of murdering his HK fiancée in Taiwan, which raises other mysterious political issues. What a great subject for comparative and international analysis!

Additionally, the struggle for “judicial independence” is an ongoing challenge in all countries I know something about, but it is varied and exists to many degrees. There is surely no equivalence, for example, between the situations in the United States and in China. The systemic, regime-imposed, incessantly articulated Communist Party control of the Chinese judiciary renders it immensely different from the American situation where there is a continuing struggle over the extent to which courts in fact comply with constitutional norms and societal expectations. Since the US has a federal system, we must take account of the differences in this respect that exist between the federal courts, which generally have a higher reputation, and at least some state courts, especially those that are subject to direct election. I just voted for some local New York City judges and noted that the candidates nominated by the Democratic Party’s primary election are running unopposed in the general election. In some parts of northern NY State, I believe Republican nomination assures election. 

Corruption is seldom encountered in our federal courts.  Lately there has been a minor scandal initiated over the revelation that some federal judges fail to recuse themselves from cases involving companies in which they own stock. Media publicity is expected to put an end to this dubious practice. Political bias, of course, is a more serious and continuously debated public problem, as controversy over Trump’s US Supreme Court appointments and Senator McConnell’s refusal to consider Obama’s last nomination highlighted. There is daily, useful analysis and argument in the media over this problem, which is raised by the flow of cases at all levels of the federal and state systems.

In China, the overt political command of the judicial system often obscures other perhaps more widespread problems of independent judicial conduct, including massive corruption, strong local protectionism and, above all, personal biases deriving from individual relationships (guanxi) that distort court decisions.

I would love to know what pressures the Canadian judge in the recent Meng extradition case felt and how she would have dealt with that very hot potato. Apparently neither China nor the US wanted to gamble on the outcome.

New HK Anti-Doxxing Law Gives Government Sweeping Powers

By Jerome A. Cohen

Day after day the legal outrages pile up as Beijing tightens the noose on Hong Kong. Ten more freely elected, pro-democracy district councilors have just been disqualified from office. The local government simply ruled, without any explanation whatever, that their oaths of office were invalid!

At the same time, the prosecutions of six former staff members of Apple Daily and Next have been transferred by the government from the HK Magistrates Court to the HK High Court, thereby making them eligible for potential life sentences if, as likely, they will be convicted of violating the National Security Law for HK.

Most surprising and shocking is HK’s new anti-doxxing law amendment. It makes disclosure of personal data without consent, with an intent to cause psychological harm, a crime punishable by a fine up to HK $ 1 million and five years in prison. It also expands the punishment process beyond the existing HK legal system by empowering an administrative official new to criminal justice – the Privacy Commissioner for Personal Data—to initiate and undertake criminal investigation of possible violations. The amendment only vaguely defines the offense, and the Commissioner does not have to go through the better-regulated police. The department is empowered to bypass the Department of Justice by itself making the decision to initiate prosecutions. 

The new law also authorizes the Commissioner to access electronic devices without a warrant in “urgent circumstances” (as defined by the Commissioner). Moreover, the new law purports to have extraterritorial effect, authorizing the Commissioner to notify internet service companies anywhere in the world to take down material the Commissioner deems to be doxxing! This report summarizes this development and the earlier warning issued by tech companies against adoption of this amendment because of its curbing of free expression. It will be important to see how Google, Facebook, Twitter, and others react now and whether the Commissioner will move to suppress doxxing by pro-Beijing forces as well as pro-democracy elements.   

Assessing the Meng Case

By Jerome A. Cohen

It is too early, of course, to adequately evaluate the outcome of the Meng Wanzhou extradition case. The PRC Government has not yet issued any explanation of its release of the two Michaels, and we do not know what will be done about the hapless Schellenberg’s politically-inspired death sentence still pending final review. We do have Hu Xijin’s warning in Global Times that the prosecutions of the two Michaels should alert other countries that they shouldn’t seek to detain Chinese international business personnel even in the course of a conventional extradition proceeding. Ironically, the PRC’s arbitrary detentions of the two Michaels warned the world’s law-abiding business people that they are risking their personal freedom by traveling to China. Moreover, the PRC itself  has been very active, although often frustrated, in seeking to employ extradition and detention of suspects in many countries. A more civilized response to the US effort to extradite Ms. Meng than abusing the two Michaels in ways that have shamed the PRC before the international community might have been, if justified, for it to seek the extradition from a third country of Americans suspected of violating China’s criminal law, such as it is. 

Although the US Government apparently settled the case more leniently than in some of the usual deferred prosecution agreements, these decisions have always involved a broad exercise of prosecutorial discretion, as do similar decisions not to proceed with prosecution of other cases that appear to meet the technical prerequisites to criminal conviction. (Full disclosure, long ago I served briefly as a federal prosecutor in Washington, DC). Yet anyone who reads the DOJ’s summary of the case and the statement of facts accepted by Ms. Meng will see that the DOJ received from her a powerful admission of intentional, continuing deceitful international business misconduct that should be noted by any foreign entity and executives doing business with China. This is also a vivid illustration and concrete explanation of why the USG seeks to punish foreigners – corporate and individual – who seek to use the US financial system while abusing it in violation of the laws that enable that system to be so valuable to the world.

Another aspect worthy of consideration is what the case implies about the independence of the judiciary in Canada. Liberal democracies occasionally experience embarrassing exceptions to their practice of judicial independence of political authority. Yet in those countries whose legal systems generally inspire respect, judicial independence does exist in practice, especially in the national and prominent state or provincial court systems and despite judges’ varied philosophical predispositions in outlook. The Canadian system certainly seems to take judicial independence seriously. Indeed, in the Meng case none of the three governments involved in the dispute seemed eager to allow the matter to be decided, at least in part, by the Canadian courts. The Canadian hearing judge was in a very tight spot. She reportedly conducted the hearings fairly and intelligently, although I personally thought she allowed the proceedings to drag on at too great length, given the consequences for the unfairly detained Michaels. My hope was that, in the absence of a political settlement, she would soon decide to deny extradition on the ground that President Trump had converted an originally legitimate request into a political act that justified denial in accordance with accepted extradition law and practice. That might have been thought by some to be stretching traditional extradition jurisprudence and the USG might have felt obligated to spur the Canadian Government to appeal the decision, which could have made the case drag on for a couple of more years. Yet the Biden administration might instead have gratefully acquiesced in the decision, which would have put the onus on Trump rather than the DOJ. But that would have resulted in no powerful admission of wrongdoing by Ms. Meng.

Let’s see how the PRC spins the immediate release of the two Michaels. It will be difficult to conceal the implicit repudiation of its previous pretense that its legal system had been operating without regard to the Meng case. The PRC’s actions in this case have revealed for all to see that its criminal justice system is cruel and arbitrary in many respects, despite halting legislative and administrative reforms. The US DOJ can now go back to its preoccupation with trying to cure the injustices of America’s superior, yet deeply flawed, system. Canadian justice, which treated Ms. Meng admirably and made available very able defense lawyers, seems to have vindicated Prime Minister Trudeau’s oft-expressed confidence in the judicial system. Yet it too must wrestle with the perennial challenges of racism, poverty and inequalities of various kinds.

Can foreign journalists curb arbitrary detention in China?

By Jerome A. Cohen

Usually, media reports on “disappearances” such as have been suffered by well-known people as diverse as Xiao Jianhua and Gao Zhisheng, and on arbitrary use of the formal criminal process as in the case of the two Michaels, do not provide sufficient pressure to effect release of the victims or even produce a credible explanation from PRC officials. But Red Roulette, the new “tell all” book by Desmond Shum, lays the groundwork for what could become a persistent barrage of questions to MOFA press conferences and the Q&A following the speeches of high Chinese officials that might eventually yield some response.

MOFA spokespersons usually dust off the initial question about a fresh detention by assuring the assembled journalists that the case of the person in question is being processed by “the judicial organs in accordance with law”. This is a misleading answer since it evokes the falsely reassuring image of Chinese courts, while the actual situation is even worse. The detainee is normally in the custody of the police. Unless, of course, the detainee has been kidnapped and is therefore indefinitely, lawlessly held by special Party or military minions. 

Yet sometimes journalistic efforts, including op eds, can make a difference, as they did in the release of Ai Weiwei in 2011 after his 81-day incommunicado confinement in the guise of “residential surveillance”.  What belatedly and briefly smoked out the missing Whitney Duan after four years of enforced silence was the imminent publication of her ex-husband Shum’s book. I hope that PRC officials will be peppered with questions about Ms. Duan’s mysterious case since she is still obviously being secretly detained.

Newly-Published Essay–"Rule of Law" with Chinese Characteristics: Evolution and Manipulation

By Jerome A. Cohen

Here is my essay (linked here, abstract below) commenting on the analysis of a fine Chinese scholar now teaching law in New Zealand, Professor Ruiping Ye. Professor Ye's article, “Shifting meanings of fazhi and China’s journey toward socialist rule of law,” is available here.

“Rule of law” with Chinese characteristics: Evolution and manipulation

Abstract: Government under law or law under government? Rule of law or rule by law? That was the hotly debated constitutional law topic in China during the last two decades of the twentieth century. In her article, “Shifting Meanings of Fazhi and China’s Journey toward Socialist Rule of Law”, Professor Ye gives us a careful and thoughtful analysis of relevant developments that includes the decisive outcome reinforced by current Communist Party chief Xi Jinping. Drawing upon China’s imperial traditions and dictatorial Legalist philosophy, Xi wields law as an instrument of comprehensive official power, although in practice his repression strays into Communist lawlessness.

My Thoughts on "The Sino-American Split"

By Jerome A. Cohen

I recently read Ambassador Chas Freeman’s remarks to the Institute for Peace and Diplomacy in Toronto. It is a brilliant, well-written overview that Biden and his aides should surely benefit from. I think his “post-colonial hangover” analysis is a wonderfully helpful lens with which to view the world. Yet the refinement of general principles does not eliminate the need to deal with concrete cases.

What are the implications of the Freeman overview for confronting the specific issues before us? Chas is surely right about what war would mean for Taiwan, the US, and the PRC (and many other nations), and implicit in his view is the need for extreme caution in dealing with this challenge. But what about other issues to which at least some other important countries look to the USG for a response?

Many mention the Xinjiang obscenity when discussing China, an example of the PRC’s gross violations of international human rights. Should we give it and Tibet a pass as well as the takeover of Hong Kong since warlords, kings, dictators, and other despots have always dominated in most countries? What about the repression of basic freedoms for the rest of the Chinese people? Should nothing be said or done about the practice of arbitrary detention on which Communist control is based? Western colonialism had many vices, but it did leave in many of its victims, by negative as well as positive example, an abiding residue of appreciation for the importance of erecting protections against arbitrary detention. But, as Lenin famously asked, what is to be done?

Of course, the premise for effective American response is the ending of dysfunctional democracy at home. In the meantime, however, should the USG withdraw from the South China Sea? If not, how do we achieve a modus vivendi with China’s expanding power, even while Xi Jinping “struggles” to cope with increasingly serious internal problems of his own country?

We need to improve our general principles. We need to pull up our own socks. But nothing stands still for long. We also need to deal with the complex concrete cases that daily confront us, if only by well-considered inaction. 

Is this a crackdown on Hong Kong civil society or simply justifiable rule of law?

By Jerome A. Cohen

Here is the latest disturbing news from Hong Kong. After refusing a police demand for information, four members of the group that plans the city’s annual Tiananmen Massacre vigil were arrested. Note in the HKFP's story Carrie Lam's defense of this attack. It is not, she claims, a crackdown on civil society since, by definition, civil society does not include any organization that refuses to comply with the interpretation of "the law" asserted by the government and the police. I heard a similar defense from the deans of Beijing's five major law schools when in 1992 they came to my hotel to protest a speech I had just made to the Foreign Correspondents Club condemning the PRC courts for becoming an instrument for suppressing the Chinese people. How could "a friend of China" make such an outrageous charge, they asked, since "counterrevolutionaries" were not within the definition of "the people"!

This latest HK case will accelerate the pressures on both the HK Bar and the courts. Ms. Chow, one of the people arrested, is a barrister who today was scheduled to defend one of the 47 human rights activists already being prosecuted for violating the new National Security Law. Her case and that of her newly-arrested colleagues raises critical legal issues. I assume that some fellow litigating lawyers, undeterred by the recent submission to political pressures of the HK Law Society composed of office lawyers, will present, as usual, a vigorous and able defense. What a challenge for the beleaguered judges!

Red Roulette gives readers vivid insight into PRC corruption, Beijing politics and much else

By Jerome A. Cohen

Here is an excerpt from Red Roulette. It is a “must” read on China for many reasons. Publicity in the London press on Friday stimulated a secret PRC response that, having quickly been revealed by the book’s author, will enhance its prominence. As I have previously noted, the book’s scheduled publication today (Sept 7) required some sort of response from Beijing, one that would reluctantly confirm the continuing existence of the “disappeared” Ms. Whitney Duan. The ex-wife of author Desmond Shum was kidnapped in Beijing by Communist Party agents four years ago. Shum’s courageous determination to finally expose this important story will now be tested as he awaits further PRC reactions, secret and public. In view of obvious concerns for the safety and welfare of his family, his ex-wife, his friends, and himself, this could not have been a simple decision. The second of the two phone calls that he just received from his suddenly-emerged ex-wife, still a captive of the Chinese secret police, was especially sinister in explicitly threatening the harm that may occur to Shum, his ex-wife and even their 12-year-old son if Shum failed to stop publication of the book, an obviously impossible task on the very eve of publication.

The oddest thing about ex-wife Whitney Duan’s emergence to make two last-minute phone efforts to stop publication of Shum’s book is indeed its timing.  What might this tell us about elite politics in China? Was this a mere pro forma protest? An advance reader’s edition of the book has been circulating for weeks. Moreover, Shum has been a person of interest to PRC security people for some time, at least for almost five years since his business partner and former wife was first banned from leaving China and then kidnapped. Undoubtedly, he was long under scrutiny by PRC security agents, and his communications must have been sufficiently monitored to indicate that he was seriously at work on a tell-all book. Why, then, did the security people wait to intervene until the day before the book’s formal publication?

A second question worth pondering is why the ugly explicit threats to harm Shum, his son and the ex-wife were made and why not until the second phone call. The callers (Ms. Duan was obviously not alone and apparently in the hands of captors who dictated the bulk of the script) must have anticipated that the sinister threats would be made public, enhancing the current Chinese Communist Party leadership’s foreign image as a band of ruthless thugs.

It seems appropriate that The Wire should publish an excerpt of the book since Shum describes the impact on China’s elite politics of the remarkable reporting by David Barboza before he left the NY Times for The Wire. 

This book may well be regarded as one of the very best popular accounts ever to be published about the PRC in English. (Recall Robert Loh’s “Escape from Red China” of the 1950s; Jean Pasqualini’s “Prisoner of Mao” in the ‘60s; and Chen Guangcheng’s more recent memoir of escape from arbitrary imprisonment almost a decade ago). It not only gives a vivid, detailed picture of the corrupt nexus between business and the Communist Party’s ruling class, but also offers a persuasive interpretation, backed by facts, of how Xi Jinping ruthlessly moved to eliminate all rivals to his exclusive power. In addition, it provides real insights into upper class contemporary Chinese social life and the complex human relations of a high-powered married couple bent upon manipulating the system to their greed. I also especially appreciate both the book’s eloquent condemnation of a regime grounded in blatant resort to lawless arbitrary detention and its requiem for the now dead Hong Kong freedoms that benefited many of Shum’s formative years. His story reeks of authenticity and is a wonderful read, thanks in part, as the author makes clear, to the skillful cooperation of the distinguished journalist-scholar John Pomfret. 

Beijing has a lot to answer for, and Shum has made it impossible for the PRC to continue keeping silent.

Art and the Chinese Democracy Movement

By Jerome A. Cohen

Here is a link to the trailer of Beijing Spring, a movie that includes never-before-seen footage of China's first democracy movement. This brings back an exciting era in which art was at the forefront of domestic politics in China and foreign specialists were beginning to play a stimulating role. My wife, Joan Lebold Cohen, was prominent among them. Her three public lectures at the Central Arts Academy in Beijing in February, early March 1979 – the first by any American – were the most exciting events I have ever witnessed in the PRC, especially the first two, which were delivered to hundreds of excited artists, faculty, students and activists who had never before had the chance to see and hear much about Western art. Their questions were endless, and the atmosphere was electric.

The third lecture was held in highly constricted circumstances before about thirty students after the Party line had changed. Deng had decided that his trip to the US had led to too much enthusiasm for the US, and the PRC had gone to war with Vietnam. It was of great interest to witness how constrained the atmosphere had become almost overnight. No electricity in the air from dozens of audience questions, since the Academy Director, who was courageous to even show up, announced at the outset that he was certain Joan would be too tired to answer questions. No more announcements that her lectures would be published in the Academy’s magazine – they weren’t. I wondered how he would thank her at the conclusion. “Students”, he said, “It is always good to learn about the art of another country. It is especially good to learn about that art from someone from that country. Of course, dear students, what they say about their art and what we say about it may be entirely different things. Thank you very much, Mrs. Cohen”!

In May 2012, when some of the by then famous artists and teachers at the Academy managed to put on a program there commemorating Joan’s lectures and her subsequent help to many of them (her op-eds about their work that appeared in the then new Asian Wall St. Journal were translated and widely circulated in the internal “Reference News”), she was told she could invite anyone she wished as her guest. When our old friend Ai Weiwei accepted the invitation, the School promptly prohibited any of its current students from attending the program!

Singapore NUS and cooperation with legal education in China

By Jerome A. Cohen

On hearing the news about the end of the Yale-NUS collaboration in 2025, I thought about my own efforts to develop a legal education program in China. About 20 years ago, colleagues at NYU Law School established an innovative five-year program of cooperation with the Law School of NUS. It was financed by the Singapore Government and brought many NYU law professors to Singapore, usually for the first time. I was trying to develop similar programs in China. Our China activities benefited from the stopovers some of my colleagues made en route to or from Singapore. Those visits, often their first to China, enhanced their interest in the PRC’s unique legal phenomena and in the many PRC students eager to study American law.

Almost a decade earlier, encouraged by my 1979-81 teaching of international business law to Beijing City officials, I tried but failed to unify our NYU law faculty in supporting a proposed program for establishing graduate law programs in both Beijing and Shanghai. Although many were eager to make a first visit to China, quite a few colleagues would not commit to a second stay, which made long-run planning difficult.

In 2004, after a stimulating stay in NY, a leading Shanghai Jiaotong University law professor urged me to set up some sort of cooperation with his law school. I told him that, although our new NYU US-Asia Law Institute could be relied on for support, I doubted whether he could obtain approval of Jiaoda’s participation because of USALI’s rule of law and human rights publications and programs. To demonstrate his school’s enthusiasm, he invited me to meet on campus with his university’s Party secretary and other leaders. At the meeting I reminded the Party secretary of my criticisms of the existing legal system. He responded that they had carefully checked my record and assured me there would be no obstacle. On that basis we went ahead and for a time I had a beautiful office in the law faculty’s handsome building on the new campus on the outskirts of Shanghai. Although we did manage to have a few programs, including a significant one at the Shanghai Stock Exchange and another that we convened on International Human Rights Day (the date’s significance did not dawn on our hosts til speeches began), our cooperation soon broke down because higher-ups within the Shanghai Party organization insisted that I withdraw from our joint efforts.

Subsequently the NYU Law School did establish a modest teaching program in Shanghai as part of the larger NYU-Shanghai project. It was one of several “Law Abroad” programs established by our law school. However, staffing it with regular NYU professors, and even enough students from NYU, soon proved a problem, and the effort gradually withered away. Our students preferred a semester in Paris and even Buenos Aires to one in Shanghai.

My forthcoming article on “'Rule of Law' with Chinese Characteristics: Evolution and Manipulation”

I was reluctant at first to consider the invitation of the International Journal of Constitutional Law to comment on a Chinese scholar’s disquisition on the “socialist rule of law” in the People’s Republic of China (PRC). What might I expect? Another legal rationalization of the latest developments in China’s “people’s democratic dictatorship” by a scholar demonstrating regime loyalty in the tradition of the intellectual servants of the country’s millennial emperors? Or another ingenious attempt by one of the country’s liberal law professors to concoct a subtle theory that purports to remain consistent with the current Communist Party line while actually seeking to constrain it? [continue reading here]

Hats off to Academia Sinica’s Institute of Law on its tenth birthday!

This is one of a number of essays that will be soon published to celebrate the tenth anniversary of Academia Sinica’s Law Institute. I offer my wholehearted congratulations to the Institute!

A Happy and Meaningful Occasion

Jerome A. Cohen*

Hats off to Academia Sinica’s Institute of Law on its tenth birthday!  Although a decade is a very short time, the Institute has already made a significant impact not only at home in Taiwan but also increasingly abroad. The publications of its staff, its learned law journal, its conferences and round tables and its hosting of a variety of distinguished scholars and professionals from many countries have gradually served to put this young and distinctive group on the world’s legal map.

Of course, in 2011 the Institute did not suddenly spring full-blown from the head of Zeus. Its roots trace back to the turn of the current century. Reflecting the island’s then stunning recent progress toward democratic government, the rule of law and respect for human rights, a far-sighted group of local scholars initiated the process of establishing a research institution commensurate with the encouraging political-legal developments and the enhanced legal education that had begun to bolster this progress. The current accomplishments of the Institute must be a source of great satisfaction to Professors and former Constitutional Court Justices Herbert Ma Han-pao and Wang Tez-chien and their colleagues who, over twenty years ago, began to discuss plans for what eventually developed under the leadership of Professor Dennis Tang, the Institute’s first Director, and his successors Professor Lin Tzu-yi and now Professor Lee Chien-liang.

To be sure, scholars in other departments of Academia Sinica had already made significant contributions to various fields of legal research. I especially recall the very important work in China’s legal history that the Institute of History and Philology undertook beginning in 1968 under the guidance of its recently- appointed member, Professor Chang Wejen. Building upon the Institute’s collection of materials from the judicial archives of the Qing (Manchu) imperial government and other Qing legal documents that were soon gathered from basements around the island where they had been disintegrating,  that Institute preserved these invaluable records, organized and reprinted them for public distribution and then produced scholarly analyses that enhanced our understanding of Chinese law and society on the eve of twentieth century modernization. I eagerly await publication of the book that Professor Chang has completed, which shows how the Qing judicial system was designed and actually functioned.

Perhaps Academia Sinica’s records can confirm whether I can legitimately claim a bit of indirect credit for Professor Chang’s worthy project. Earlier in 1968, I was a member of a three-person joint delegation to Taiwan of the American Council of Learned Societies and the Social Sciences Research Council. We were granted a ninety-minute interview with then President Chiang Kaishek and Madame Chiang. Just before the meeting, a presidential advisor alerted us to the likelihood that President Chiang would ask us for suggestions as to how conditions in Taiwan might be improved.  When in fact he did pose the question, I was tempted to urge him to end his harsh military dictatorship and establish political freedom and democracy. Instead, however, with practical considerations in mind, I somewhat sheepishly asked the President to do more to support the development of studies of China’s rich legal traditions.

After acknowledging his frequent public endorsements of the unique contributions to mankind of Chinese civilization — in contrast to Chairman Mao’s Cultural Revolution that was then ransacking the Mainland’s past, I mentioned the opportunity that Chang Wejen’s recent return from Harvard Law School presented for making a great leap forward in Taiwan’s research in the nation’s legal history. Chang, who had met me as I arrived at Taipei airport a few days earlier, was discouraged by the lack of response to his efforts to find a legal history teaching job at the island’s law schools and had indicated that Academia Sinica might be a more appropriate host for his research, a suggestion that I passed to the President. On my next visit to Taiwan, I was thrilled to visit the Institute of History and Philology to witness Chang Wejen in action and become acquainted with the output of the productive research team that he had assembled.

During the long era of “White Terror” presided over by the Chiang Kaishek family,  research in legal history was not perceived to be as threatening as contemporary public law topics, which were not then allowed to be freely pursued. The end of that era, as the newly-established Institute of Law has demonstrated, made it possible to open up many formerly restricted subjects to unfettered analysis. I hope that in its second decade the Institute of Law will continue to build on these recent accomplishments in the public law arena.

Taiwan’s academic community does not need my advice about what topics are most important to now pursue for domestic purposes. But I trust that a few comments about the international significance of the Law Institute’s future preoccupations will not be deemed out of line.

First of all, it seems desirable for the Institute and other Taiwan scholars to do much more to inform the world – in English – about Taiwan’s most distinctive and important legal challenges and achievements of recent decades. Not enough is known abroad, for example, about the operation and accomplishments of  what has come to be called the Constitutional Court. At a time when judicial independence is increasingly under attack in countries that are descending from democracy to autocracy, the Taiwan experience offers welcome encouragement and stimulus. Similarly, efforts should be made to publicize studies of the current efforts to come to grips with the complexities of dealing with “transitional justice” that trouble all countries that are struggling to securely emerge from dictatorial regimes.

I hope that the Institute will also be able to deploy the resources necessary for expanding its valuable studies of comparative law. Taiwan’s new “Southern policy” highlights the possibilities for delving more deeply into the legal systems of Southeast Asia and South Asia.

Above all, the Institute should devote much greater attention to the situation in China that it is uniquely positioned to analyze. Until now, Hong Kong, despite its handover to China in 1997, has maintained a vibrant academic community that has done great service to foreign understanding of the momentous legal developments in the Mainland. Sadly, for the foreseeable future, the many able legal experts in the Special Administrative Region who have done such outstanding work will be subjected to growing pressures and restrictions that will require the rest of us who study the Mainland to strive harder to fill the gap being created. Taiwan scholars should be best qualified to undertake this responsibility, and the Institute appears to be in a position to lead the way.

There are many reasons, of course, for China to become a more prominent area of the Institute’s activities. Looking back at the history of another island seeking to cope with a dynamic, continental neighbor, I recall that, as early as the reign of Henry the Eighth, wise governors recognized that study of the French and other European legal systems by scholars at Oxford, Cambridge and other distinguished places of learning could offer invaluable insights into the challenges before the country. To be sure, for legal scholars not only national security is at stake. Contemporary China is an unprecedented phenomenon that urgently warrants more, and more sophisticated, analysis by the masters of many disciplines, not the least of which is law as sensitized by the social and even natural sciences.

So many topics cry out for attention. In recent years my own preoccupation has been the variety of coercive processes and pressures by which the Communist Party and the state have sought to bend the will and direct the energies of their people. Determined not to suffer the fate of the Soviet system that spawned it, the Xi Jinping government has created new legal institutions and practices that have embellished the Leninist model imported by Chairman Mao. The National Supervision Commission established in 2018 is the foremost illustration.

One fascinating study for which Taiwan experts are especially equipped might be a comparison of the evolution of the criminal process in China with that in Taiwan beginning with the imposition of the long nightmare of Chiang Kaishek’s version of Leninism. In 2013 Margaret Lewis and I published a study of Taiwan’s abolition of its infamous truncated judicial procedures for punishing alleged “liumang” (hooligan) offenders. As we pointed out, this had obvious implications for contemporary Chinese efforts to abolish, at least in name, the extrajudicial punishment system of “re-education through labor”.[1]

Yet it would be a mistake for the Institute to limits its focus to the repressive aspects that underlie China’s progress. Law plays increasingly important roles in the country’s economic and social development as well as in its now totalitarian controls.  Xi Jinping’s frequent calls for “the rule of law” surely do not advocate “government under law” but rather “law under government”. Despite continuing lawlessness on the part of the Party-state’s ubiquitous police, Beijing’s legislative and administrative productivity and judicial activity in many fields, including regulation of the nation’s intellectual property and its new technology and industries, has been impressive and deserves greater scrutiny.

Given current measures to prevent transparency, evolving methods of attempting to resolve disputes among the people and particularly between the people and local governments are not easy to study, but the effort should be made. Certainly the PRC’s energetic and overextended Belt and Road Initiative has sparked the establishment of new Chinese legal institutions that are somewhat more possible to research, although one should not overlook the obstacles.

The work of the Supreme People’s Court, striving for judicial reforms that might inspire popular confidence especially in civil and economic matters, while openly serving as the obedient instrument of the Party, offers further opportunities for analysis. The Institute should also not neglect the transformation of education that has been less obviously taking place in the nation’s more than six hundred law schools and that will profoundly influence the future.

I could go on and list the distinctive features of the PRC’s preaching and practice regarding public international law as well as the currently suspended role of law in cross-strait relations, but I hope that the point has been made.

I am confident that, to the extent that in pursuit of its agenda the Institute finds it useful to expand its cooperation with foreign counterparts and scholars, it will meet with an enthusiastic response. I am glad to have been asked to serve as a cheerleader of the future. Very best wishes to the Institute for the coming decades.

* Founding Faculty Director Emeritus of New York University Law School’s US-Asia Law Institute; Adjunct Senior Fellow for Asia, Council on Foreign Relations.

[1]. Jerome A. Cohen and Margaret K. Lewis, Challenge to China: How Taiwan Abolished Its Version of Re-Education Through Labor (Berkshire 2013).

What price martyrdom?

By Jerome A. Cohen

Recent events should make us reflect again on the costs of voluntary martyrdom. Ms. Zhang Zhan, the Shanghai lawyer-journalist who is serving a sentence of four years in prison for reporting on Wuhan’s early mishandling of the Coronavirus, is currently hospitalized and approaching death as a result of the determined hunger strike that she hopes will inspire further protests against dictatorship. Professor Xu Zhiyong has again recently been indicted for another supposedly subversive offense that may ensure his continuing imprisonment and torture, this time for perhaps twelve years.

On the other hand, the distinguished journalist and author Stephen Vines has wisely decided to leave Hong Kong for London rather than risk prosecution, like so many other critics have already suffered, for exposing the Handover that has now become the Takeover.  Just before leaving, he published an excellent book entitled “Defying the Dragon; Hong Kong and the World’s Largest Dictatorship”. One of the distinguished observers who have endorsed this book is Joshua Wong, whom the book’s publisher rightly identifies as “Hong Kong’s most famous democracy advocate”. Joshua, sadly, seems destined to spend the coming years in prison.

Wouldn’t Zhang Zhan, Xu Zhiyong and Joshua Wong do more for human rights if they were free and abroad rather than silenced in prison? Was Liu Xiaobo right in believing that political martyrdom would inspire future generations sufficiently to warrant the loss of his further contributions, if only from exile?

I had this kind of conversation with the famous Chinese human rights lawyer Gao Zhisheng in 2005. He chose martyrdom rather than the less heroic, more practical path that I suggested. Tragically, he has long since been “disappeared” and joined the forgotten.

Should foreign judges continue to serve in Hong Kong?

By Jerome A. Cohen

Here is an important article worthy of broader attention. It was recently reported that Canada’s ex-chief justice, Beverley McLachlin, has renewed her term on the Hong Kong Court of Final Appeal. Until this past year, I thought that, on balance, it was desirable for the overseas non-permanent judges of Hong Kong’s Court of Final Appeal to cling to their cushy and limited responsibilities. But the balance appears to have shifted. Increasingly they seem mere ornaments whose largely nominal presence in major controversial cases misleads the public at home and abroad into believing that all continues to be well with the Hong Kong courts.

In assessing the wisdom of their continuing participation, one should ask questions such as: Do they take part in the new national security cases that are beginning to occupy the courts? What role did they play, for example, in Jimmy Lai’s bail case?

Canada’s Professor Alford and Lawyer Shi are surely right in regretting that former Chief Justice McLachlin renewed her appointment at this time, lending her great prestige to what must now be called the Takeover rather than the Handover of Hong Kong. Will she and her white, male overseas colleagues analyze and expose the restrictions being imposed on the Hong Kong judiciary?

There is no risk that American non-permanent overseas judges will inform the public of the true situation since the Basic Law has been interpreted to exclude Americans from selection among the “common law” judges from which this elite is chosen. “Commonwealth” has replaced “common law” in practice. Yet, building on the English experience that dates back to Lord Coke, the United States also offers useful examples of the complex political-legal struggles to establish and maintain judicial independence.

Focus on the Court of Final Appeal seems to divert attention from the more important and difficult dilemmas of the many Hong Kong judges with foreign nationality who serve on the lower courts that bear the principal burdens of coping with Beijing’s restrictions.

Is there an irreconcilable gulf between the US and China?

By Jerome A. Cohen

Here is Michael Cole’s excellent analysis of the current Sino-American crisis. I would only add the following:

We should note the very nice statement by China’s new Ambassador Qin as he arrived in Washington, a vivid contrast with everything else coming out of the MOFA that sent him and at odds with his own reputation. He stated that “the China-U.S. relationship has once again come to a new critical juncture, facing not only many difficulties and challenges but also great opportunities and potential.”

I wish that Michael, in his helpful list of the issues, including human rights, that divide the PRC from the West had made explicit reference to the suppression of human rights lawyers and the abusive criminal justice system that enforces the repression of free expression.

PRC rhetoric does not rail against the current system of international law as much as the alleged manipulation by the US and allied governments of that system and the need to mobilize the non-liberal states to overcome that manipulation, a process that is well under way.

The crucial element in Sino-Western relations now is what to do about Criticism. Although the Biden administration has advocated a balanced China policy that consists of Cooperation, Competition and Confrontation, it did not adopt the fourth “C” that I have been advocating – Criticism, even though it has properly been engaging in a good deal of it. That Criticism should be mutual, not unilateral, of course, since, although the valid aspects of the PRC’s responsive criticisms sting, they provide useful additional stimulus to the necessary domestic debates that currently roil the US, Canada, Australia, the UK and other liberal democracies striving – in public – to address their failings. As many of us have recognized and as the PRC now makes plain, it is easy enough to articulate the elements of a balanced policy, but difficult to execute in practice since Criticism - devastating, rightful condemnation - gets in the way of Cooperation. 

Nevertheless, despite a similar challenge in Soviet-Western relations, Moscow and Washington and its allies did manage to reach a number of important agreements and practices that were crucial in avoiding a conflict that many observers thought inevitable. That record should be re-studied. The PRC, despite its current hostility, will recognize its security interests in resolving certain universal problems regardless of its preference for all-out opposition to the West. That’s what Wendy Sherman was emphasizing the other day. But we need to be patient and anticipate a long period of stalemate before that recognition is translated into action. That is why during the immediate period of the Xi Jinping years we have to avoid unnecessary provocations and excessive nationalism that plays well in domestic politics but can lead to disaster. I don’t like Confrontation and prefer Deterrence, although it does not begin with “C”.  Containment, which I previously invoked, might also be preferable, although it hearkens back to the Cold War and seems to vindicate the PRC charge that the US wants to contain China’s progress. Biden and allies should make clear that we do not want to contain the PRC’s progress, which should be evident to objective analysts, but to contain its destabilizing aggressiveness, just as the PRC rejects the destabilizing actions of the US in recent years. Further analysis of the Cold War and anti-Soviet Containment seems to be warranted, and there is no time to be lost.

Tibet and Xinjiang: A Case of Ping Pong Repression

By Jerome A. Cohen

Here is a Wall St. Journal with an unusually good review of the PRC’s recent actions in Tibet and their relation to and comparison with developments in Xinjiang. Several interesting observations were made, including the following:

Just as earlier successful repressive measures in Tibet were then applied and expanded in Xinjiang, now cutting edge technologies applied in repression in Xinjiang are being applied and adapted in Tibet. Ping pong repression! 

The Han majority continues to have more interest in and sympathy for Tibetans than for people in Xinjiang, a point that the article properly credits Professor Robbie Barnett for emphasizing in his continuing invaluable studies of Tibet. Many of us can personally testify to this from our own anecdotal experience in China.

A good reminder of the Dalai Lama’s advancing age and the impending crisis over his succession. He seems to have been less in the public eye of late and his repeated calls for autonomy for Tibet rather than independence, which have never reassured Beijing, would ring especially hollow to the world as well in light of recent events in Hong Kong, Xinjiang and Tibet. I recall the conversation about Taiwan that I had in 1964 with a Communist Party member in Hong Kong who tried to convince me that the Party would guarantee Taiwan the same degree of autonomy as granted to Tibet. That, I said, was exactly the fear that many of us had.

The article reports that the Tibetan government in exile has stated that it was originally optimistic about Xi Jinping’s assumption of power because Xi’s father “had a close relationship with the Dalai Lama," something I had not heard before. Of course, many of us have been disappointed about XJP’s rejection of his father’s final admonition to the Party to allow “differences of opinion” or risk failure.

Finally, the WSJ article refers to recent work by Adrian Zenz on Tibet, which I had not noted. He keeps giving the Party more and more reasons to try to discredit him.