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on recent developments in the rule of law in Asia and China
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Photo: Joan Lebold Cohen ©
By Jerome A. Cohen
The April 1 Wall St. Journal has a good front page story discussing exit bans issued by Chinese courts in civil disputes involving foreign companies and personnel. This is a real risk for foreign business people that is too often ignored until too late. There should be a follow-up story not about the PRC courts but the PRC police, who are often invoked by local powerholders to detain or harass foreigners involved in a local business dispute.
By Jerome A. Cohen
Thanks to Professor Perry Link of UC Riverside and the Committee for Freedom in Hong Kong Foundation for their continuing effort to support the nomination of five Hongkongers (Chow Hang-tung, Gwyneth Ho, Jimmy Lai, Lee Cheuk-yan, and Joshua Wong) for the Nobel Peace Prize.
Geremie Barme’s splendid translation of Professor Xu Zhangrun’s latest poem honors the memory of Navalny. Xu’s “suffocating surveillance”, as Geremie puts it so well, is one of China’s more curious punishments, imposed outside the legal system. Xu is not formally imprisoned but, fired from his Tsinghua Law professorship and deprived of all income, he lives in shunned isolation. I and probably others urged him not to return to China from cancer treatment in Japan a couple of years ago following publication of his memorable critiques of Xi Jinping but he persisted. How long he can hold out and what will become of him remain to be seen.
Interesting that soon after the publication of Minxin Pei’s recent book on the importance of human spying to China’s security services now comes a NYTimes story by Julian Barnes that the US CIA also believes that human sources are still the best insight into what dictatorships are seeking to hide.
The February 24–25 Wall St. Journal’s Book Section has a nice review by L. Gordon Crovitz of The Sentinel State by Minxin Pei. The book reportedly emphasizes the continuing prominence of China’s vast network of human informants despite the advent of new high-tech instruments of repression.
By Jerome A. Cohen
I cannot resist commenting on today’s biggest China news, even though I am sure this is not my first mention of those potent symbols of the PRC’s good will. I tried to use purchase of a panda as a means of getting to China in 1963-4 while in Hong Kong. My wife’s uncle was chairman of the St. Louis Zoo and authorized me to spend US$25K if I could bring one back. As the NYTimes reported, the effort failed.
But things went better over two decades later when NY mayor Ed Koch asked me, as chair of the NY-Beijing Sister City Friendship Committee, to join him in a last-ditch effort to bring pandas to the Bronx Zoo by negotiating with a delegation visiting NY from the Chinese Wildlife Association. Koch had long been asking every PRC group that came to NY to give us a panda or two. At first it had been a standing joke. These visitors explained that there were only enough pandas to allow gifts to a nation’s capital. They would bring him panda sweatshirts, panda dolls and a range of other poor substitutes, but the issue became increasingly sensitive.
The Wildlife group’s arrival gave us a final chance. After a tense hour or two, during which they explained there could be no NY gifts nor could they sell us any pandas, I got the idea: Why not lease pandas for a limited period, knowing that the PRC at that time was eager to earn foreign exchange? They had not considered this possibility and were plainly interested. Then, as they said, it became a matter of determining how much NY City was willing to contribute to their funds “in the name of friendship”.
When I told them we would put up half a million dollars for a rental of two pandas for six months, they responded that “That doesn’t sound very friendly”! We ended up paying roughly twice as much and the Zoo nevertheless made money because of the popularity of the bears. This started a trend, which San Diego was the first to build upon.
By Jerome A. Cohen
It came as a welcome surprise and honor to learn that the Association of American Law Schools Section on East Asian Law & Society has renamed their Lifetime Achievement Award as the “Jerome A. Cohen Lifetime Achievement Award". Many thanks to the work of many professors for making this happen, including Professors Margaret Woo, Mark Levin, Don Clarke, Xuan-Thao Nguyen, Mary Szto, Irene Calboli, Xiaoqian Hu, Tim Webster, and Craig Martin. The last award recipient in 2023 was Professor John Haley at the Washington University in St. Louis School of Law.
On the topic of law schools, I thought I would share a very kind article here that Judge Jed Rakoff of the U.S. District Court for the Southern District of New York wrote about his time as my law student. I not only enjoyed being his professor, but I also enjoyed later working with Judge Rakoff on a program designed to help Chinese criminal defense lawyers learn new Chinese criminal procedures patterned in some respects on U.S. law.
By Jerome A. Cohen
Navalny’s death, like the previous years of his life, illustrates the differences that still exist between the PRC’s currently totalitarian criminal justice system and Russia’s authoritarian counterpart. Can you imagine the PRC giving noted political prisoners the continuing access that Navalny had to public opinion via various direct and indirect methods? What has happened to the outspoken public lawyer Gao Zhisheng, “disappeared” many years ago? We know what has finally happened to Xu Zhiyong and some of his public interest lawyer colleagues now serving long criminal sentences after extended pre-trial detention, but we do not hear from them. Of course, the PRC no longer pretends to have even Russian-style “free elections” that might require the appearance of opposition and any suggestion of independent media opinion.
By Jerome A. Cohen
Here is the announcement of a dynamic new organization, the Center for Asia-Pacific Resilience and Innovation USA Foundation (CAPRI USA), that adds to our understanding of Taiwan and its relations with other jurisdictions including the US and the PRC.
By Jerome A. Cohen
This case is important for understanding the contemporary PRC criminal justice system. Yet so little is known to the public about it, and it raises so many questions. Perhaps our Australian colleagues, in and out of government, can tell us more. Is the conviction based on conduct committed over 30 years ago in Hong Kong? Is Yang, as reported, too weak to lodge an appeal? That seems surprising. Has Australia retained PRC counsel well-connected to the Ministry of State Security? On occasion I have found that useful in arranging, for example, release on medical grounds for prisoners who have been harshly sentenced in a first instance trial.
It is evident that there has been a long struggle within the PRC bureaucracy over this case, which is why it took three years to announce a sentence after "trial". Has Australia released the record of its contacts with Yang including consular access, retention of counsel, efforts to attend the "trial" and to obtain relevant documents including the indictment and the court's judgment, and conversations with his "defense counsel"? If Yang is very seriously ill, there is a chance of medical release since the PRC does not like political prisoners to die on its premises, and in any event an appeal might reduce the sentence to something more conventional like a dozen years.
An adverse world reaction can occasionally overcome even the preference of the Ministry of State Security. So this case goes far beyond the fascinating details of Australia-China relations.
By Jerome A. Cohen
I would like to share with you the recording of my latest program in the Council on Foreign Relations Winston Lord Roundtable Series. This is an up-to-date and deep analysis of the January 13 Taiwan elections and their implications for cross-strait relations and U.S.-China policy. Shirley Lin, our speaker, is a force of nature not to be missed!
Hope you enjoy our discussion.
By Jerome A. Cohen
Here is a very important and interesting discussion of a legal phenomenon that should be of great interest to economists and other social scientists. The author, Ms. Chi Yin, was an appellate judge in Chengdu for six years before coming to the US to study at NYU and then join NYU’s US-Asia Law Institute.
By Jerome A. Cohen
Here is some good news. Hope the effort is successful.
By Jerome A. Cohen
It will be interesting to see Chief Executive John Lee's enforcement efforts of the proposed law and how they relate to the PRC Central Government's National Security Law efforts, especially regarding the dubious claimed exercise of jurisdiction over "external" activities in other countries. Watch out everyone, wherever you are!
By Jerome A. Cohen
Human Rights in China has made an important statement about a little-discussed but serious problem - the targeting of Chinese human rights defenders outside of China.
By Jerome A. Cohen
Many thanks to John Kamm and the Dui Hua Foundation for the important analysis of China’s Universal Periodic Review taking place at the UN in Geneva. This is China’s fourth UPR, and the last review took place in 2018.
How much better is Taiwan's periodic international committee scrutiny of its own human rights progress and failings! I served for the first two terms of Taiwan's National Human Rights Commission Experts Committee, which has held a third term. I was the only American on my committees, but my NYU colleague Philip Alston of Australia served with me.
Unlike the 45 seconds each country will have to discuss China’s conduct at the UPR, we had the luxury of several days to monitor Taiwan’s record, receiving documents and statements, questioning witnesses from both official and NGO sources and having informal tea-type exchange with representatives of both sides, especially the dynamic local NGO people who even chased me during bathroom breaks.
We, of course, issued a report each time containing criticisms and recommendations. An exhilarating experience!
By Jerome A. Cohen
The new regulations on discipline from the CCP's Central Commission for Discipline Inspection are fascinating and worthy of serious research. How are targets of discipline selected? Is the clause on prohibited reading merely used as an add-on in cases where other charges are brought or is it sometimes applied independently? What procedures apply and how is evidence introduced and evaluated? What Communist Party and administrative sanctions are applied in what circumstances? To what extent does the CCDI system send cases to the courts for criminal punishments? To what extent does the CCDI system influence the handling of such criminal cases by the police, the procuracy and the courts?
I believe that, under the awning of the National Supervisory Commission, certain non-Party members are also subject to these strictures if they are government officials of one kind or other. Is there anyone out there who knows and is free to tell us? It must be a matter of considerable interest to the millions who are subject to this discipline.
By Jerome A. Cohen
In light of this year’s result, I wonder how much effort will be made to change Taiwan’s election system by adopting a run-off process in situations where, as this year, no candidate wins a majority vote in the first election. If Lai and Hou had to face the voters again without a third candidate, who would win?
Is this year’s election of Lai such a depressing loss for Beijing? 60% of the voters rejected Lai. And, as has been pointed out, the DPP will have to struggle with the Legislature.
By Jerome A. Cohen
Like so many, I admired Professor Jiang Ping, and we seemed to have a special bond even though we seldom actually got together. It seemed to be based on our similar ages and our mutual concern for China’s legal profession. In many ways he was a courageous person as well as an influential developer of China’s civil law.
I greatly respected his decision to return to China despite June 4th, which occurred while he was abroad, in Hawaii, I believe. He was always supportive of attempts to defend the PRC’s criminal defense lawyers, and I liked his ability to retain his sense of humor in difficult circumstances. He made a great impact on my class when I invited him down to lecture at NYU while he was visiting at Columbia. His career encapsulated the PRC’s legal progress and problems from the early 1950s.
Even in death the Party seeks to benefit from Professor Jiang Ping and keep him under control. As experience in China has shown, funerals can sometimes provide the single spark that lights a prairie fire. Both the Supreme Court and the Supreme Procuracy sent tributes. I didn’t see anything from China’s lawyers association but there may well have been, if only discreetly. I hope someone will analyze the symbolism and significance of this occasion.
By Jerome A. Cohen
The media coverage of the conviction of John Shing-wan Leung contains similar accounts of the PRC sentencing an American national of Chinese descent to life in prison on espionage charges. This case is worthy of continuing media investigation since it raises many issues. What was the behavior that constituted “espionage”? The question here is unusually interesting since Mr. Leung was a very active player in the US in promoting Sino-American relations. Although it may be thought that the case is part of the new campaign against Western espionage reflected in the recent amendments to the PRC anti-espionage law, the severity of the sentence and the fact that Leung was detained more than two years ago suggest that more may be at stake.
Some speculation, fueled by the PRC’s recent indecent detention of the two Canadian Michaels, has also focused on possible hostage diplomacy. The Leung case has to be treated with caution in this respect since some previous PRC accusations of espionage have been shown to be true, going back at least to the Jack Downey/Richard Fecteau case of the 1952-54 era. I myself was deceived some years ago in the case of a woman scholar of sociology with permanent US residence whose research in the Mainland was secretly sponsored by Taiwan.
These cases are always shadowed in secrecy in the PRC but the Leung case is more opaque than most. The silence of the US Government is an important reason for this. US law requires the consent of the detained citizen before our government can reveal facts to the public. We are left to infer that Leung has denied his consent and are not even told whether the PRC has allowed the regular consular visits with him and the diplomatic attendance at the trial permitted by the US-PRC consular relations treaty. Leung, being ethnically Chinese and very savvy about the PRC, may believe that publicity, especially if authorized by him, would only worsen his prospects for sentencing or his mistreatment in captivity. He apparently was assigned local lawyers, but they too have been silenced.
Finally, there is the fascinating question of possible linkage between this case in China and the recent US prosecution in Massachusetts federal court of Mr. Liang Litang, who co-chaired the Boston branch of the same organization Mr. Leung headed in Texas. So much is going on behind the scenes!
