Wu Gan’s “Trial”—Yet Another Sad Example of China’s Political “Justice”

Wu Gan has been for many years one of the leading and most-admired human rights activists in China. After criminal detention for over two years he will finally be brought to “trial” August 14 in a secret proceeding.

Wu Gan’s pre-trial statement is surely one of the most moving and accurate descriptions I have read of the Chinese government’s manipulation of its legal system to stamp out freedoms of expression. This account of his personal experience encapsulates virtually all the abuses that the Xi Jinping regime has been committing against human rights activists and their courageous lawyers. It is tragic testimony to the pathetic attempts of the Communist Party to drape its oppression in the mantle of “law”. To me the saddest aspects are its reminder of the forced collaboration of China’s judges with its police, prosecutors and Party legal officials in suppressing the constitutionally-prescribed rights and freedoms of the Chinese people.

Wu Gan’s statement ranks with those of China’s greatest martyrs to the cause of democracy, human rights and a genuine rule of law, including the late Liu Xiaobo. It will inspire those few activists inside and outside the country who still dare resist the current onslaught. Unfortunately, because of the regime’s monopolization of the media, its message will not be seen by most Chinese. Nor is it likely to be noticed by much of an outside world distracted by too many crises closer to home.

Wu Gan's pre-trial statement in Chinese, source: China Change.

Wu Gan's pre-trial statement in Chinese, source: China Change.

Hong Kong Government Seeks Harsher Sentence for Democracy Activists

Left to right: Joshua Wong, Nathan Law and Alex Chow, outside Eastern Court in August 2016. Photo: Sam Tsang/SCMP

Left to right: Joshua Wong, Nathan Law and Alex Chow, outside Eastern Court in August 2016. Photo: Sam Tsang/SCMP

The Hong Kong Government is pressing the judiciary for much harsher sentences for Joshua Wong, Nathan Law and Alex Chow. Immediate imprisonment and 5-year disqualification from office are likely.

The court case against these leading activists has just taken a turn that surprised the accused. The Hong Kong Department of Justice, dissatisfied with the original court sentence to “community service”, appealed for a much harsher, immediate prison sentence. Defendants may now get sentenced to between two and six months by the appellate tribunal. The length of the sentence is crucial not only because of the duration of the physical and mental punishment inflicted but also because a sentence of three or more months will disqualify the convicted from standing for office for the next five years! Hong Kong’s judges are coming under increasing political pressure. The outcome in this appeal will tell us more about their response.

Beijing is going all out to destroy the democracy movement and the Hong Kong courts are increasingly under pressure. Those who haven’t seen the Netflix video “Joshua: Teenager versus Superpower” may want to do so before the outcome, which is imminent. In October Joshua may be marking his 21st birthday in prison!

Liu Xiaobo’s death

Liu Xia holds a portrait of Liu Xiaobo during his funeral. AP: Shenyang Municipal Information Office

Liu Xia holds a portrait of Liu Xiaobo during his funeral. AP: Shenyang Municipal Information Office

The propaganda struggle over Liu Xiaobo’s demise was a sad but fascinating spectacle. The PRC’s distorted video broadcast of his medical examination was a ghoulish sight as well as a horrible invasion of his privacy and violation of arrangements made with the German government. The truncated, swift and restricted funeral arrangements were a farce.

Yet, as some observers have come to recognize, if only as inadequate consolation, the extraordinary circumstances of this Nobel laureate’s departure may prove his greatest contribution to the cause of free speech he so gallantly served. Liu’s final tragedy has alerted the world, to an extent even greater than did the empty chair in Stockholm, to the Chinese Communist Party’s inhumane oppression.

Despite the enormous international pressures on Xi Jinping, China’s ruthless leader insisted on Liu’s last pound of flesh. Xi was bent on heartlessly punishing Liu to the end for following the admonition of Xi’s own father, a famous first generation Communist leader who, after suffering 16 years in political exile, urged the Party to allow freedom of speech not only among the elite but also for all Chinese people. Today in China such advice constitutes “incitement to subversion.”

In terms of its immediate impact, Liu’s death has energized human rights activists outside China, at least for a time. Unfortunately, however, I don’t think his death will have a major favorable impact on human rights activities inside China, since he had already been silenced for a long time and most people in China don’t know about him, at least in a positive way. To the extent people do know about him and care, many will be further intimidated by his fate, while some others may be inspired to enter the human rights field, if only cautiously.

On the surface the human rights/political reform movement in China is in dreadful shape. It obviously has got this way because of extraordinary massive, ruthless and efficient repression that has understandably deterred the many liberal elements in Chinese society and government. Yet, quietly, quite a lot of professional legal reforms are still under way. They do not affect the many political prosecutions that take place or the unauthorized, illegal restrictions that are indefinitely imposed on human rights activists, outside the formal legal system, by police and their thugs. But they gradually improve procedures in ordinary criminal cases and lay the groundwork for more comprehensive reforms to occur when the political climate becomes less repressive, as it may well after Xi Jinping’s eventual departure from office.

Human rights issues will not disappear from the media with Liu. The cases of his wife Liu Xia and just released from formal prison Xu Zhiyong will highlight what I call NRR – “Non-Release ‘Release’”, another, lesser-known but insidious form of oppression. These are home prisons of an indefinite duration, and they restrict not only the activists but also their families, relatives and friends. Usually there is no legal authority for such repression. Ask Cheng Guangcheng, Gao Zhisheng, Li Heping and Li Chunfu, for example, or their families! There are too many examples.

When Liu Xiaobo was treated in the hospital, Chancellor Angela Merkel called upon the Chinese government in vain to release him to go abroad for his final moments “as a signal of humanity”. Can we expect foreign governments to do more? Will they be more effective? Many governments feel that their human rights protests against Beijing will have no positive impact on the PRC and will have a negative impact on other aspects of their relations with China. To the extent they do protest, it is often more a response to their own citizens’ pressure for action than to genuine concern for human rights, and their domestic business constituents usually have more clout than their human rights community. Compassion fatigue and realistic hopelessness about the Xi Jinping regime are also factors. 

Yet those of us on the outside have to persist in our efforts to directly influence developments in China and to put pressure on our own governments not only to influence China but also improve their own human rights performance.

 

Liu Xiaobo’s passing and China’s human rights violations

Foreign governments have the right to complain about the People’s Republic of China’s denial of internationally-guaranteed human rights to the Chinese people. The PRC, for example, in the exercise of its vaunted sovereignty, chose to limit its sovereignty by ratifying the UN Convention against Torture that spells out in detail all the kinds of conduct that constitute internationally forbidden torture, mental as well as physical. The PRC’s mistreatment of its many political dissidents plainly violates this Convention in many respects.

The case of Liu Xiaobo’s widow, Ms. Liu Xia, is an obvious example of the PRC subjecting to forbidden torture someone who has not even been accused of a crime or even legally detained. As to her husband, we don’t know the facts of his final imprisonment and the extent to which he was denied adequate medical treatment but it is widely suspected that the authorities at least demonstrated indifference to his increasingly dangerous medical condition and that its mistreatment of Liu Xiaobo could well be deemed a violation of the Convention against Torture.

Of course, Liu Xiaobo’s criminal conviction was based on the regime’s suppression of his freedom of speech and the violations of criminal justice protections that marked his prosecution. Both of these categories of rights are protected by the International Covenant on Civil and Political Rights, which the PRC has signed but not yet ratified. The PRC has, however, ratified the International Covenant on Economic, Social and Cultural Rights, which requires it to respect the freedoms of expression denied to Liu Xiaobo. It is nonsense for the PRC, on the one hand, to commit itself to international rights protections in the exercise of its sovereignty and then, on the other, to say that holding it to such commitments is a violation of its sovereignty.

Not only should foreign governments condemn China for its violations of human rights that led to Liu Xiaobo’s imprisonment and death, but they should also press the Chinese government to give Liu Xia, who has been put under severe illegal house arrest for the past seven years, the option to leave China. If she chooses to remain in China, the Chinese government should, in accordance with its international human rights obligations, immediately lift all the oppressive conditions that she has suffered.

However, the chance that Liu Xia will be allowed to leave China or have genuine freedom at home in the near future may be slim. The Chinese regime was obviously extremely reluctant to release Liu Xiabo, whether at home or abroad, because of understandable fear of what he would choose as his final words. At home, if he had been allowed to leave the hospital, he would have been kept under strict guard to prevent media contacts, as so many other human rights victims currently are. This is what I call “Non-release ‘release’”.  Release abroad would have permitted him to indict the Chinese Communist Party dictatorship before the world, unless the Party insisted on keeping Liu Xia and her brother as hostages.

The PRC is also very sensitive about being seen to allow what it calls “foreign interference with its judicial sovereignty”. As noted above, however, this is a spurious argument in those cases where it has exercised its sovereignty to commit itself to the international standards it has violated.

While it is easy to conclude, given the current relentless repression, that the Chinese Communist Party cares little about what the world thinks of it, I believe that it actually cares desperately, even today. That’s one of the reasons why it confined Liu Xiaobo, despite the great “soft power” cost in doing so. Allowing him to be free would have been even more costly in ”soft power” terms because of his withering criticism. Moreover, it would have allowed him to “subvert” its dictatorship by challenging it on democratic grounds before the Chinese public.

Liu Xiaobo and Liu Xia, cartoon by Badiucao

Liu Xiaobo and Liu Xia, cartoon by Badiucao

Liu Xiaobo’s fate: the painful choice of exile or extermination

Liu Xiaobo and his wife Liu Xia at a hospital in China; source: Associated Press

Liu Xiaobo and his wife Liu Xia at a hospital in China; source: Associated Press

The world has been watching whether Chinese Nobel laureate Liu Xiaobo, who has been diagnosed with last-stage liver cancer, will regain some final moments of freedom in order to receive adequate medical treatment abroad. His friend, Liao Yiwu, wrote a moving tribute (Chinese here) during the weekend, stressing Liu’s wish to leave China with his wife and brother-in-law for medical treatment, preferably in Germany with the U.S. as another possible destination.

Liao Yiwu himself is a splendid writer and also a poet. He is alive and active today because, after enduring harsh punishment in China, he made the decision to go into exile in Germany and, like the Chinese who assembled in Washington, DC and other places outside the Mainland July 9th to mark the second anniversary of the start of Xi Jinping’s continuing 709 purge of human rights advocates, he is free to express his views.

The dissimilar fates of Liao and Liu Xiaobo illustrate the painful choice (if they have that choice) that has always confronted civil libertarians from dictatorial regimes – exile or extermination. Ninoy Aquino, Kim Dae-jung, Annette Lu, Ai Weiwei , Chen Guangcheng and so many others have earned our sympathy and support, whatever their ultimate decision.

Many foreign scholars have agonized with and advised those who have had to confront this decision. The 1979 prosecution of Annette Lu in Taiwan under the KMT caused me to write a very long piece in the Wall St Journal, Asia – “A Taiwan Dissident’s Long Road to Prison” – describing the dilemma in particular of foreign students who choose to strengthen their human rights commitments by studying in democratic countries and then face the dilemma of whether and when to return home to dangerous dictatorships.

When on July 15 legal scholar/activist Xu Zhiyong is released from Chinese prison, I hope he will have the choice whether to stay in China or go abroad for a time. It is far more likely that Xi Jinping will decide to continue Xu’s confinement by other means via what should be called “the Non-Release Release” (NRR) that currently keeps so many supposedly “free” ex-human rights prisoners and their families effectively under political restraints.

On a lighter note, Liao Yiwu’s message reminds me of a passionate lecture he gave in Chinese to a packed house at the New School in NY about five years ago during his first American visit. The first questioner asked him: “What do you think of the U.S,?” Liao answered: “ I’ve only been here four days and I’ve spent them all in Flushing.” Undeterred, the questioner said: “So what do you think of Flushing?” Liao flashed a smile and responded: “That’s easy. Flushing is China without Communism!”

Second Anniversary of the 709 Crackdown on Chinese Lawyers and Activists

Today is the second anniversary of China’s “709 crackdown” on human rights lawyers and activists. ChinaChange published a statement by the The China Human Rights Lawyers Group here.

This statement is sad but important (I almost mistyped “impotent”). It is noteworthy in many respects but two stand out to me. The first is an extensive note of bitterness not only, as usual, against the Party and government responsible for this obscenity but also against the legal scholars, professors and lawyers in and out of government who have lent their cooperation or blessings to the repression.

The second is the absence of any optimistic prediction that, at least in the near future, the numbers of human rights lawyers will be expanding in response to the effort to suppress them.  This is a grim, realistic assessment of the situation. Those of us lucky enough to be on the outside can only hope that the programs being held today to commemorate 709 will stimulate greater support for this gallant, besieged group and their families, inside as well as outside China. I share the statement’s confidence that, in the long run, the Chinese pendulum will again swing in the direction of freedom and that the historic role of the human rights lawyers will be vindicated. 

Establish Yourself at Thirty: My Decision to Study China's Legal System in 1960

This is the first chapter that I have written for my memoirs. It has just been published in the Chinese (Taiwan) Yearbook of International Law and Affairs (vol. 33). It tries to answer the question I am most often asked: why and how did you decide to take up what was in 1960 an extremely arcane, indeed an unknown, subject. It also necessarily seeks to provide a picture of the state of Sino-American relations at that time and of American attitudes toward and understanding of what was still called “Red China”. I will eventually give an account of my roots and development prior to 1960 but it seemed most appropriate to start with the decision to study China.

A few thoughts on Chinese Nobel Laureate Liu Xiaobo’s “release” from prison

The sad fate of Liu Xiaobo deserves our consideration. Some immediate random reflections:

  1. Given the increasingly frequent Chinese police practice of what I call “non-release ‘release’”, which usually means formal release from prison into another form of coercive confinement, one wonders how much freedom Liu will have to give us his final thoughts. The facts that it took a month for the news of his hospitalization to leak out and that he is confined in a Liaoning hospital rather than in Beijing suggest that he is far from a free man. Indeed his physical condition, as well as the conditions of confinement, may prevent access to the international and national media.

  2. The world community had largely forgotten Liu Xiaobo. The People’s Republic, through its economic prowess, its assertiveness in the South China Sea and its inability to bring North Korea to heel has managed to divert international attention from its vicious attack on the country’s human rights lawyers and others who have sought to follow Liu Xiaobo’s courageous example in promoting freedoms of expression.

  3. Liu’s fate is a sad reminder of two things: oppression in China did not begin with Xi Jinping, and things have become even worse under Xi.

  4. One hopes that this tragic situation will at least lead to the release of his wife, Liu Xia, from the totally lawless suppression of her freedoms that she has long suffered.

As a tribute to the absent Nobel Laureate, Liu Xiaobo's Nobel Medal and Diploma were placed on an empty chair during the Nobel Peace Prize Award Ceremony in Oslo, Norway, 10 December 2010. Copyright © The Nobel Foundation 2010 Photo: Ken Opprann

As a tribute to the absent Nobel Laureate, Liu Xiaobo's Nobel Medal and Diploma were placed on an empty chair during the Nobel Peace Prize Award Ceremony in Oslo, Norway, 10 December 2010.
Copyright © The Nobel Foundation 2010
Photo: Ken Opprann

China’s state compensation for illegal detention

Photo: 中國維權律師關注組 China Human Rights Lawyers Concern Group

Photo: 中國維權律師關注組 China Human Rights Lawyers Concern Group

Last week we had news that the courageous lawyer Jiang Tianyong has been formally “arrested” after being held incommunicado since last November. It is sadly ironic that, on the same day, the Supreme People’s Court and the Supreme People’s Procuracy announced a new standard for compensating citizens who have been illegally deprived of their personal freedom (see HRIC Daily Brief here). At 258.89 RMB (USD38) per day my friend Jiang may someday receive more compensation than he earned as a great human rights lawyer!

What Ivanka Trump’s company should do for labor conditions in Chinese factories making the brand’s shoes

Here’s a good report by Keith Bradsher looking into labor conditions in a Chinese factory making Ivanka Trump shoes, a sequel to his report on China’s detention of labor activists who went undercover at Chinese factories making shoes for Ms. Trump and other brands.

For the detained labor activists striving to improve working conditions, Ivanka Trump’s company has a moral responsibility to speak out. It would be helpful to the situation of the activists if the company would issue a statement expressing deep concern over their detention. That alone might bring about their release. In any event it would stimulate local police to treat the detained better than otherwise; detention house conditions in China are often appalling with a large number of suspects confined in a single cell in an often disgusting and personally dangerous environment. A Trump expression of concern might well result in a faster, more lenient decision about how to deal with the case.The Marc Fisher company at least made a prompt statement promising to inquire into the facts.

Ivanka’s company has a moral responsibility not only to those detained but also to all workers who are exploited by Chinese companies striving to make a profit while competing with rivals to successfully respond to the demands of foreign companies for ever cheaper prices. It would also be good public relations for Ivanka to take the lead in supporting more humane working conditions. She should not see the human rights monitors as antagonists but as collaborators in the difficult effort to assure improved labor conditions.

Profound implications of the ruling of Taiwan’s Constitutional Court in favor of same-sex marriage

Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)

Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)

Taiwan’s Constitutional Court issued a groundbreaking decision yesterday in favor of same-sex marriage (the decision, its summary and an English press release prepared by the Court can be found here).

This decision will have profound implications in many respects, as others have recognized in various fora. Domestically in Taiwan it will spur the Executive and the Legislature to fulfill their constitutional responsibilities within the two-year time frame prescribed by the Court. The Constitutional Court has done this before in controversial situations. For example, as Margaret Lewis and I described in our 2013 book (CHALLENGE TO CHINA:HOW TAIWAN ABOLISHED ITS VERSION OF RE-EDUCATION THROUGH LABOR), the Court’s decisions played the critical role in ending the power of Taiwan’s police arbitrarily to imprison “hooligans” outside the regular judicial system. The Court stimulated the Executive and the Legislature to finally end an abuse similar to “laojiao” on the Mainland.

Yesterday's much more controversial decision reminds me of the landmark US Supreme Court decision Brown v. Board of Education that in 1954 led a divided American society away from segregated schools and from other previously legal segregation practices. Yesterday's decision will generate backlash in Taiwan and elsewhere but it is a major step toward social progress everywhere.

Of course, the decision vividly highlights the sad contrast between Taiwan’s version of the rule of law, democracy and human rights and the Mainland’s, which has become ever more repressive. I think the decision’s positive impact on China as well as other countries far outweighs any modest additional, short-run, adverse impact on cross-strait relations. The Mainland’s strict censorship and manipulation of the media will not entirely prevent people from knowing about the decision and its meaning. Although many in the Mainland may not welcome the decision, China traditionally has been more open to same sex relations than more Christian-dominated countries, and the more educated classes will appreciate not only the wisdom and fairness of the decision on the merits but also the significance of the role of the judiciary in a genuine government under law country. It is a sobering fact that 68 years after its establishment the People’s Republic of China does not have a special constitutional court, does not permit its regular courts to apply constitutional protections and has failed to make significant use of the Standing Committee of the National People’s Congress for this purpose, even though the SCNPC is the institution authorized to apply the PRC constitution.

More broadly, this decision is a shot in the arm for Taiwan’s standing in the world, reminding people of the immense progress it has made, although a Chinese civilization, in instituting legal protection for human rights, judicial independence, separation of powers and all the other “Western values” openly condemned on the Mainland at present. Until now Taiwan’s establishment and implementation of the major international human rights covenants has been too little recognized abroad. Yet its national security and survival depend on the willingness of the United States, Japan and other democratic countries to continue to guarantee it protection against the increasing threat of military action by China, and that willingness will turn in large part on the extent to which those countries are aware of Taiwan’s accomplishments in achieving political freedoms.

Collective Family Punishment - Challenge and Response

Greg Baker/Agence France-Presse — Getty Images

Greg Baker/Agence France-Presse — Getty Images

New York Times’ Chris Buckley and Didi Kirsten Tatlow wrote a good story a few days ago about the resistance and resilience of the wives of Chinese human rights lawyers who have been detained.

These recent spousal responses do represent something new because they are frequently collective or joint rather than individual actions as occasionally occurred in the past and also because the Internet and social media offer opportunities for protest that were not previously available.

Moreover, each such spousal protest stimulates others, even in Taiwan. The Mainland protests of Xie Yang’s wife and Li Heping’s wife, for example, seem to have inspired the feisty wife of Li Ming-che, the Taiwan activist who has been detained in China since March 19.

Another new aspect of current protests is a greater willingness of the spouses to go to Washington in an effort to light fires under the Congress and the Executive Branch. Families of jailed dissidents and their jailed lawyers have long fled to the U.S. for refuge, as some oppressed lawyers have also, but, prior to the 2015 crackdown, they did not generally stir up protests here. And recent protests here have not been limited to Washington but have also taken place in New York and other cities, with college-age children often joining mothers whose English is not fluent.

So one might say that Xi Jinping’s resort to collective family punishments, which were formally abolished at the end of the Manchu dynasty, has evoked a collective family response.

How I started studying Chinese law at Berkeley from 1960 to 1963

As some of you know, I’ve begun writing my memoirs. Here is the second chapter - on how I started studying Chinese law at Berkeley from 1960 to 1963, my first three years of being a student of China. The Center for Chinese Studies of the University of California, Berkeley, which gave me my start, has published it on the website here.

Let me put a plug in for the beginning chapter as well -- the story of how I made the difficult but exciting decision to study China when it seemed to offer an unpromising career 57 years ago! This first chapter will be out in English in the Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 33 (shortly). Its Chinese translation has alreasdy been published by the Financial Times Chinese, “三十而立:1960年的我是如何投身中国研究的.”

Two important developments in China-North Korea relations and another significant DPRK human rights event

Increasing tensions in the North have led to two new under-discussed developments worth noting. The Chinese Embassy in Pyongyang has recently urged its citizens in the DPRK to return home because of the increased danger of attack. According to the May 2 Korea Times, one Chinese who took the warning seriously and returned home reportedly said that most Chinese in the capital were ignoring the message because the atmosphere there seemed peaceful despite the threats emitted in the global crisis. This is the first time such a warning had been issued, according to this informant.

Even more interesting is the April 26 report in Seoul’s “Daily NK” that the government has ordered the police, including the secret police, to “refrain from warrantless arrests” and house searches because such police crackdowns are not in accord with the intentions of the Party and estrange the people from the Party. People reportedly have recently shown intense resistance to the formerly unlimited exercise of police power. There is speculation that the authorities, in anticipation of possible Chinese cessation of oil supplies, may be trying to prevent internal unrest. But this restriction of the power of the secret police has supposedly had an adverse effect on the morale of the agents of the Ministry of State Security since some of them have been purged for apparently not heeding the restrictions out of “excessive loyalty” to Kim Jung-Un.

I have always wondered about how relatively unimportant the problem of illegal search and seizure has seemed to the Chinese people in comparison with other violations by police. 

Another human rights event worth noting is the DPRK’s first ever welcome to a Special Rapporteur appointed by the UN Human Rights Council. The Special Rapporteur on the Rights of Persons with Disabilities arrived in North Korea today, May 2, for a six-day tour.

 

The Courageous Spouses of Human Rights Lawyers and Activists

Prominent rights lawyer Li Heping, who has been held in detention since the “709 crackdown” in July 2015, received a sentence of three years in prison but with a four-year suspended sentence, and deprivation of his political rights for four years, for subverting state power in a secret trial followed by a public sentencing on April 28.

Video statement by Wang Qiaoling and Li Wenzu, April 28, 2017

Li’s wife, Wang Qiaoling, and Li Wenzu, the wife of detained lawyer Wang Quanzhang, issued a powerful and revealing video in response (watch here; see here for the translation by China Change). Both women have been outspoken throughout their husbands’ detention.

Beijing is facing a new phenomenon – the effective outrage of the brilliant and courageous wives of tortured human rights lawyers. One can only admire the bold stand of these long-suffering women.

Moreover, their statement of today lays bare a relatively unknown punishment for “released” activists and their families – “house arrest” for the entire family but not in their house but in that of the police. And without even the formal fig-leaf of the Criminal Procedure Law’s “residential surveillance”, which the police have been using more and more to lock up human rights lawyers in incommunicado detention for initial periods of six months.

Perhaps the righteous collective opposition of these and other spouses of detained human rights lawyers and activists has inspired the continuing public protests in Taiwan by the able wife of Lee Ming-che against her activist Taiwan husband’s detention on the Mainland since he was “disappeared” on March 19. This has given Beijing another well-deserved headache, one that is having a big negative impact on cross-strait relations.

What journalists can do in the case of Lee Ming-che

Here is an article that Yu-Jie Chen and I wrote on China’s secret detention since March 19 of Taiwan rights and democracy advocate Mr. Lee Ming-che. We argue that China’s handling of the case violates Mr. Lee’s human rights and a cross-strait agreement Beijing and Taipei signed in 2009. This incident has dealt a serious blow to the reliability and legitimacy of cross-strait institutions, which is not in Beijing’s interest.

(Voice of America—Wikimedia Commons)

(Voice of America—Wikimedia Commons)

Where is Lee? Journalists, especially Taiwanese journalists, should keep asking questions about his fate, including in the press conferences of China’s Taiwan Affairs Office and the Foreign Ministry. In particular, we still don’t know whether he is detained under “residential surveillance at a designated place” (指定監視居住) or normal criminal detention (刑事拘留) (although as we pointed out in the article, the charge of “endangering national security” suggests that Chinese police may have invoked the former procedure).

If it’s criminal detention, the police can hold the suspect as long as 30 days, by which time they have to ask the approval of the procuratorate to formally arrest (逮捕) the suspect in order to keep him in custody. The prosecutors have up to 7 days to make their decision. The 37-day mark for Lee’s detention is April 25 (counting from March 19). If there is any formal arrest in Lee’s case, it should be made by April 25. At that point journalists should ask whether a formal arrest has been approved. If it has, where is Lee being held? Why? Can he see a lawyer? Will Taiwan officials have access to him?

If there is no formal arrest, Chinese spokesmen should be asked whether Lee is under “residential surveillance,” according to which the suspect can be held for up to six months in an undisclosed place (i.e., without the protections of a formal detention center) and has no access to the outside. Torture is commonplace in such circumstances.

Symbolic dissenting votes of China’s National People’s Congress

Here is a nice Bloomberg report noting the decline of dissenting votes in China’s National People’s Congress (NPC) since Xi Jinping’s ascendance.

In a China Quarterly article written right after the 1978 Constitution’s appearance, China's Changing Constitution, I predicted that the then dormant NPC might not always remain dormant. Gradually, especially beginning in the ‘90s, the NPC came to enjoy considerable life as open struggles developed over important economic legislation such as the Company Law, Securities Law and Labor Law. I came to believe that the journalists’ favorite term for the NPC - “China’s rubber-stamp legislature” – was no longer accurate.

Moreover, the votes on various annual work reports permitted legislators to register their dissatisfaction and criticisms of how the laws were being administered. The number of votes after each report, including those by the Supreme People’s Court and the Supreme People’s Procuratorate, were at least a modest indication of the growth of intra-Party democracy and the seeds of possible legislative independence of the Executive, the Courts and the Procuracy, branches of government that the Legislature in theory is supposed to control.

Since Xi Jinping’s ascendance and particularly today, it is clear that the Party has brought the Legislature to heel as part of Xi’s drive to subject all institutions, including government, the media, the legal profession and civil society, to the Party’s unbending will as he interprets it. 

Letter to the NYT Editor on North Korea

Below is a response by me and Edward Baker to the New York Times March 8 op-ed on North Korea: https://www.nytimes.com/2017/03/13/opinion/talk-with-north-korea.html?ref=topics.

Talk With North Korea

MARCH 13, 2017

To the Editor:

Re “North Korea’s Scary Show of Strength” (editorial, March 8):

Your analysis and recommendation that only a new round of negotiations between the United States and North Korea “holds any reasonable promise of working” are correct, but you don’t mention the incentives necessary to get the North to return to the table.

The United States, instead of rejecting renewed negotiations, as it did on March 8, should make clear that it will be willing to discuss not only a halt to joint military exercises with the South and the installation of the Thaad missile defense system but also conclusion of a treaty that will finally formally end the Korean War.

In Churchill’s famous phrase, it is better to “jaw-jaw than to war-war.”

JEROME A. COHEN, EDWARD J. BAKER
NEW YORK

Mr. Cohen is faculty chairman at N.Y.U.’s U.S.-Asia Law Institute, and Mr. Baker is a special adviser at Harvard’s Korea Institute.

China’s latest legislative effort and the rule of law

Here’s a good report by Josh Chin at WSJ about the new legislation that China’s National People’s Congress is expected to pass next week – a set of general provisions of the Civil Code.

Chinese media generally praise this as a breakthrough in the rule of law. I do think that enactment of part of the forthcoming Civil Code will be an important step in the further development of civil and commercial law in China and promote China’s economic and social development and its business and personal and private interactions with the rest of the world. It will further evidence the important work of legal scholars, law teachers, lawyers and government officials to build a rule of law in China. Since 1978 they have already made major contributions that have helped create a legal environment to foster China’s remarkable economic and commercial progress and its cooperation with the world. In addition, the promulgation of the Contract Law, an impressive achievement, is also one of the building blocks of this evolving system. The Company Law and related legislation should also not be ignored.

Yet those who say it is window dressing are also correct because, while all this drafting, enacting and implementing of civil law-related subjects has been going on, aspirations toward what is popularly understood to be the “rule of law” have obviously been frustrated by Xi Jinping’s increasing oppression of political and civil rights and the arbitrary actions of a police state that has returned fear to the daily lives of many Chinese. The most fundamental aspect of the rule of law is protection against arbitrary detention and imprisonment and other official actions that restrict basic personal freedoms. Here, despite some legislative progress in this area, is where the current regime has ostentatiously failed to respect the rule of law in practice.

Many courageous legal reformers in China today, unable to combat the severe repression, have focused their energies on drafting better pieces of paper – legal rules – especially in the civil area where it has been possible to make progress in practice. Thus one can say that, generally speaking, the PRC has been slowly vindicating the hopes inspired by its ratification of the International Covenant on Economic, Social and Cultural Rights. Yet it is light years away from being able to credibly ratify the International Covenant on Civil and Political Rights that it signed so many years ago.

Video memoirs: Life, Law and Asia

At the suggestion of Ken Wasserman, instead of serving in my usual role as Grand Inquisitor of our weekly NYU U.S.-Asia Law Institute lunch guests, I submitted to an interview on Monday, fielding questions from my colleagues (video link here). I had a great time but was slightly distressed that we covered so little, even concerning the questions that we did get to discuss. I would gladly have gone on for several hours more but probably exhausted the audience, if not the subjects!

For those who may enjoy more stories, I've done 16 video memoirs, which can be watched on my website here. They encompass many interesting, fond memories of my experiences in the United States, China, Taiwan, Japan, South Korea and North Korea over the last five decades (and counting)!