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)!

A Conversation With Ma Ying-jeou

On March 1, Asia Society hosted a program where I had a 80-minute interview with my friend, Taiwan's former President Ma Ying-jeou. You can watch the program online now (link here).

His performance was impressive and obviously appreciated by an overflow audience with diverse views. As he contemplates an important and useful future, he should not neglect occasional gigs as a stand-up comedian!

Review of Taiwan's implementation of the two major UN human rights covenants

Photo credit: Taiwan's Presidential Office

Photo credit: Taiwan's Presidential Office

The week January 15 to 20 was a busy week in Taiwan for our ten-member committee of international human rights specialists who were invited by the ROC Government to review its progress in implementing the two major UN human rights covenants.

This was the second such review, the first having been in 2013. It was an impressive exercise and culminated in a stimulating lunch with ROC President Ms. Ing-wen TSAI. After lunch my wife, Joan Lebold Cohen, who specializes in Asian art history and photography, my very able colleague, Ms. Yu-jie CHEN, who just received her doctorate in law from NYU, and I spent another hour exchanging ideas with President Tsai. The Concluding Observations and Recommendations of the Second Review Committee can be found here.

China’s Chief Justice’s Extraordinary Statement: The Most Enormous Ideological Setback for a Professional Judiciary

Here is Flora Sapio’s original blog post about China’s Supreme People’s Court Chief Justice Zhou Qiang’s recent statement, which has provoked some unusual public opposition from China’s law reformers. Several aspects distinguish Zhou Qiang’s new and surprising statement.

It is much more threatening to the judicial cadres than the usual recitation about the importance of following the Party line. It focuses almost exclusively on “morality” and political reliability.  Its reference to heroic historical figures is surely bizarre and suggests that the recent investigation of the Supreme People’s Court by the Central Discipline Inspection Commission must have uncovered judges’ lack of reverence for Chairman Mao as well as their continuing desire for judicial independence from Party interference. This statement is the most enormous ideological setback for decades of halting, uneven progress toward the creation of a professional, impartial judiciary. It has already provoked some of China’s most admirable law reformers and public intellectuals to speak out in defiance, and, despite their prominence, I fear not only for their careers but also for their personal safety. 

I see Zhou’s statement as possibly necessary in order for Zhou Qiang, an enlightened and progressive Party leader,  to have his appointment renewed by the 19th Congress. There is immense dissatisfaction among many judges, especially the younger judges, over Xi Jinping’s restrictive, anti-Western legal values being imposed on them, contrary to their largely-Western-type legal education. This comes at a time when the courts are undergoing reforms designed to reduce the numbers of officials called “judges” by as much as 60% in order to make the remaining judges more of an elite, receiving greater prestige and compensation and a better reputation for competency. Many younger officials are leaving the courts, and the procuracy too, for work in law firms, business and teaching. They do not want to spend their lives applying legal principles opposed to their largely Western-type legal education.

Disappearance of Chinese human rights lawyer: what it means to be placed under “residential surveillance” in China

It’s been reported that (ex) human rights lawyer Jiang Tianyong, who disappeared on November 21, has been placed under “residential surveillance” (RS) by Chinese police. This sad experience shows how the new provision in the 2012 Criminal Procedure Law (CPL) – Article 73 – regarding RS has been abused by the police and the Party.

Lawyer Jiang Tianyong

Lawyer Jiang Tianyong

My hope, rather vain in the current political climate, is that Jiang’s case will ventilate the problem of “residential surveillance” so thoroughly that it will create pressure for reform, as did Ai Weiwei’s case in 2011. At that time, if the government’s target maintained a residence in the jurisdiction of the police, the police were forbidden by Ministry of Public Security (MPS) rules to detain him in any residence but his own, i.e., to restrict him to genuine house arrest. What the police often did, however, as in Ai’s case, was to detain suspects they deemed undesirable in places designated by the police that were neither suspects’ homes nor regular police detention houses that, whatever their failings, were at least regulated by normal criminal procedures and protections. This was a plain violation of MPS regulations if the suspect maintained a local residence.

As a result of the Ai case and others that resulted in protests, when the CPL was revised in 2012 a specific provision was inserted into the new code authorizing RS “at a designated location”, i.e., in police custody, even in cases where the suspect maintained a local residence, but limiting this new authorization to three circumstances, i.e., cases involving national security, terrorism or serious bribery. As is so often the case, the relevant legislative language is vague, especially the provision that permits police to impose this six-months incommunicado sanction whenever they decide that the suspect may have committed a crime related to “national security”, an exercise of discretion that, unlike their desire to formally “arrest” someone, which must be approved by the procuracy within a 37-day period, the PRC system does not permit any other agency to review. Thus, as in Jiang’s case, all they need to do to inflict RS is assert a suspicion that the case might involve some aspect of national security.

Without even meeting any standard such as “probable cause” to believe the crime was committed by the suspect, the police detained Jiang ostensibly because he might have “incited subversion of State power”. This gives the police six months, without interference from any lawyer, family, friends or media, to subject the suspect to a whole range of pressures and punishments including torture in a highly coercive, sealed-off environment.

At the end of that very long period the police decide, based on the suspect’s degree of “cooperation” as well as other factors, whether the evidence elicited via their techniques warrants criminal prosecution in accordance with prescribed procedures leading to “arrest”, indictment, trial, conviction and sentencing. The final formal charge may indeed claim a violation of “national security” such as “subversion of State power” or merely “incitement” to such subversion. But the charge may turn out to be for a lighter offense the long incommunicado investigation of which would not have been authorized by the RS legislation.

So was the 2012 revision a reform? On the one hand, it prohibits police from giving RS in a “designated location” to a local person suspected of tax irregularities, for example, as Ai Weiwei supposedly was. On the other, it now for the first time authorizes incommunicado RS for local people any time the police choose to investigate conduct they wish to claim might constitute a type of “national security” violation (or a serious bribery or terrorism-related case). The result is that police, and the Party, now enjoy virtually unlimited freedom to arbitrarily detain and punish for six months anyone they think may be a dissident. This needs to be kept in mind when considering the progress made by the formal abolition of the police administrative punishment of “reeducation through labor”.

It should also be pointed out that Party members, who are subject to the feared Party “discipline inspection” procedures of “shuanggui”, which can extend incommunicado detention for longer periods than RS, are not immune from RS either, although it would take unpermitted empirical research to determine how often this type of RS is used against them.

China’s seizure of underwater US drone and implications

China has returned the U.S. underwater drone (“unmanned underwater vehicle” or UUV) that it seized in the South China Sea last week. Plenty has been said about the illegality of China’s seizure, such as Julian Ku’s analysis here and that of James Kraska and Pete Pedrozo here. The PRC’s feeble and vague attempt to justify its action legally and the immediate move to return the drone certainly reflect its awareness of its poor legal position.

Politically China is using this incident to make the broader point of seeking to halt U.S. surveillance closer to China in what is plainly China’s Exclusive Economic Zone (EEZ), whether or not the PRC’s minority legal position prohibiting EEZ surveillance is acknowledged. The UUV incident is undoubtedly an effort to remind us of PRC objections to what is really “close in” surveillance.

Obviously, the attitude of the Trump administration will be crucial in determining whether the U.S. and China are headed toward military conflict. The U.S. government should devise plans for a more vigorous effort to negotiate detailed understandings about UUV and other surveillance activities. The PRC is likely to continue its resistance to such efforts unless it decides to follow Russia’s example by belatedly acceding to the majority rule permitting EEZ surveillance. Such a change in principle is unlikely in the foreseeable future because of the immediate importance to the PRC of insulating from American scrutiny the movements of its submarines in the South China Sea and because the tides there seem to be moving in China’s favor at the moment.

There is also the broader and even more dangerous problem America faces of continuing to protect Taiwan’s security as tensions mount in the Taiwan Strait. The Taiwan and South China Sea issues are related since they both involve the major question of the extent of the U.S. government’s continuing involvement in East Asia. Will there be any possibility of serious negotiations with Beijing on these matters in the near term? First, the U.S. government will have to prepare a strategy, one that will have the backing of a divided American people long tired of foreign wars but aware of East Asia’s importance to our security, of our accomplishments in the post-WW II era and of our values.

International Human Rights Day

Reports about human rights advocates in China suffering in detention and abuse such as this one on Hada, an Inner Mongolian dissident and this one on rights lawyer Wang Quanzhang certainly inspire feelings of sadness and even hopelessness. Yet the odd thing is that many Chinese human rights lawyers and other advocates continue to enter the fray, even though now fully aware of the potential consequences. Efforts are gradually being made to learn what makes them tick. Infectious Western political ideology? Religion, Eastern or Western? The psychology of martyrdom?

Some even now maintain that the numbers of human rights activists are growing, a claim that is plainly difficult to verify. It all reminds me of the situation in South Korea in the ‘70s under General Park while China was still in Cultural Revolution. The late Kim Dae-jung seemed to be motivated by Jeffersonian democracy, indeed believed that the tree of liberty has to be periodically nourished by the blood of patriots, and was prepared to die for the cause, as he almost did on at least three occasions. He was also a devout Roman Catholic and strongly supported by his highly religious wife. South Korea, well over a decade later, experienced a stressful but largely peaceful revolution, and Dae-jung was liberated, vindicated and empowered.

Prospects for his Chinese heirs seem very gloomy at present. Yet, as we mark International Human Rights Day today, we should admire them, wish them well and hope that the UN Declaration on Human Rights, which was adopted with considerable pre-1949 Chinese input, will soon prevail in China too.

Video of my talk with Scott Savitt about his new book, Crashing the Party, An American Reporter in China

Here’s the video of my talk on November 22 with Scott Savitt about his new book, Crashing the Party, An American Reporter in China, which I highly recommend. Thanks to the China Institute in America for hosting the event and recording it.

Youtube:

Part 1: https://www.youtube.com/watch?v=5zIjeVjcQ0Y

Part 2: https://www.youtube.com/watch?v=eS9RLF6JRGE

 Part 3: https://www.youtube.com/watch?v=QIQn8fi9vbI

Donald Trump's telephone call with Taiwan's President Tsai Ing-wen

China plainly cannot be happy with this direct telephone contact between Taiwan’s President Tsai and President-elect Trump. Of course, Trump is not yet president, so the contact can be regarded as unofficial. Yet it suggests the possibility that the Trump administration may to some extent alter the long-standing policy of the U.S. Government of not maintaining official contact with the Taiwan government.

Photo credit: Reuters, ABC News

Photo credit: Reuters, ABC News

Pressures have been building during the Obama era to abandon the strict US policy of not permitting the president and vice president of Taiwan to do more than transit the U.S. Indeed, I have advocated allowing them free access to every place in America except Washington, D.C., especially since the current rule restricts my freedoms of speech, information and association unnecessarily and undesirably. A similar rule has prevented the highest American officials from visiting Taiwan, again an inappropriate restriction, especially when the security of Taiwan will soon become a major issue in Sino-American relations once again.

Of course, administrations often change course in light of events. In April 2001 I recall watching George W. Bush, as part of what appeared to be a pugnacious stance toward China, declare on TV at the outset of his administration that he would do ”whatever it takes” to defend Taiwan. Once 9/11 occurred, his administration moved much closer to the People’s Republic and began to avoid provocative statements.

North Korea policy: how about some imaginative variant thinking?

Here’s a piece by Gordon Chang last week on North Korea, To Disarm North Korea, Wage Trade War On China, advocating waging a trade war with China to make it stop from supporting North Korea.

What about trying a different policy toward North Korea, going to the other extreme from Gordon Chang’s proposal? I refer to a systematic effort to bring the North Korean regime fully into the world community and meet its security needs.  US policies toward Vietnam, China, Burma, Cuba and even Iran have changed remarkably and favorably, with varying degrees of success. North Korea would be the ultimate challenge, and implementation would require enormous patience, imagination, flexibility, public education and expenditure of considerable political capital at home and abroad, especially in Northeast Asia. But no other course seems promising. On and off, I have had a number of contacts with the North since 1971, enough to make me think that such an unlikely suggestion may well be worth considering. 

Human rights lawyer Jiang Tianyong has disappeared for nine days after visiting 709 family in Changsha

Photo: China Human Rights Lawyers Concern Group

Photo: China Human Rights Lawyers Concern Group

Jiang Tianyong, a prominent Chinese human rights lawyer, was apparently abducted on November 21 after visiting the family of another human rights lawyer who has fallen victim to China’s crackdown starting from July 9 last year (709 crackdown). Jiang’s wife as well as family members of the rights lawyers who have been detained since the crackdown and fellow lawyers have issued a statement demanding the Chinese government to launch an investigation and reveal Jiang’s whereabouts.

Let us hope that Jiang will soon be released. He is a hardy veteran of such intimidations but this time he may be held for much longer than before. The police may have secretly detained him in the guise of “residential surveillance”, which would give them the power to hold him incommunicado for six months if they claim that he falls into one of the three categories of supposedly exceptional circumstances that allow detention apart from the conventional criminal process. Or he may be detained in the guise of the regular criminal process, according to which the police, again because of their very broad interpretation of another narrow legislative exception, allow themselves 30 days to hold a suspect before being required to charge the suspect before the prosecutor’s office or release him. Or, as often happens, the police or their hired thugs may have simply detained Jiang with no legal authority, in effect kidnapping him as they have so many others including one of his early clients, the blind “barefoot lawyer” Chen Guangcheng.

I first met the courageous Jiang in Beijing in 2005 when he and his law partner Li Heping, who has long since been confined as a result of criminal prosecution, were representing Chen, and we all lunched together. Jiang told me at that time how, as a young public school teacher, he had decided to become a lawyer in order to try to improve China’s human rights situation.  Shortly after lunch, Chen was abducted by Shandong police who had come to Beijing without seeking permission of their local counterparts.

For more than a decade since that meeting Jiang himself has had to play “cat and mouse” games with the security police in an effort to avoid the long-term detention that would stop his human rights work. For example, a few weeks after Chen’s abduction I telephoned Jiang to tell him that Chen, in a quick, furtive call to me, had asked that Jiang take the night train from Beijing to Shandong to try to visit Chen. Jiang agreed to try, despite the serious risk that he would be beaten by police thugs who were guarding Chen’s village. An hour later, however, Jiang called me back to report that he had received a call from the local judicial bureau ordering him not to travel to Shandong. The judicial bureau had evidently been contacted by whoever had been listening to my first call with Jiang. As a result, he did not make the trip but did manage to send an assistant, who was indeed abused by the local Shandong thugs.

Similarly, some years later, shortly after arriving in Beijing, I called Jiang to invite him to dinner that night. He said he would have to call me back in half an hour because he needed to ask for permission from the police “minder” stationed outside his law office. When he did call me back, he declined my invitation because the “minder”, whom Jiang evidently knew quite well, said that if Jiang wanted to return to the office the next day he had better not see me that night. Jiang, however, told me that his assistant would be permitted to join me for dinner, as he did, undoubtedly under surveillance.

Yet, despite such commendable caution, police have on some occasions detained and abused Jiang, but not for the long term that he might now confront.

Scott Savitt’s new book, Crashing the Party: An American Reporter in China

Last night I had the privilege of interrogating Scott Savitt about his new book, Crashing the Party: An American Reporter in China, in a 90-minute program at the China Institute’s new residence in New York.

The book is a highly informative, great read about China in the period 1983-2000 when Scott succeeded in immersing himself in Chinese life in various ways starting as a student and ending as a newspaper publisher.

The book begins and ends with a vivid, still relevant description of what it’s like to be detained by the secret police for 30 days in the year 2000, so perhaps I am biased in its favor because of concern for “the rule of law”, but there’s much else in it of interest to a broad audience, and it’s painfully honest.  Scott, whom I had only met occasionally over the years until last night, proved to be a lively and stimulating witness before a good-sized crowd. It’s a shame he has been on China’s black list for so many years but, even without the opportunity to return to China, I’m sure he can write a sequel to this just-published book detailing China’s progress and his many China-related activities since 2000.

For those who will be in the NY area sometime between now and late March, I urge you to make the trek to the China Institute’s new downtown Manhattan location in order to see the really spectacular and quite large exhibition of celadon masterpieces from the Six Dynasties period. This could never have been shown in the Institute’s previous, much smaller space on 65th St. 

Eric Li’s flawed arguments in a recent NYT Op Ed, “How Trump Is Good for China”

Eric Li, who made his name in the US with a TED talk in which he praised China’s political system, published an Op Ed in the New York Times on Monday, “How Trump Is Good for China.”

I do not object, as some have, to the Times publishing his one-sided piece because its Op Ed Page has favored strong “attack” columns since its inception under Harrison Salisbury in the early 1970s, and it’s good to know what a significant body of people in China are said to be thinking.

I liked Li’s idea of trying to find a “silver lining” by turning the vice of Trump’s election into the virtue of improved Sino-American relations, but his arguments are deeply flawed, as many have pointed out. Two aspects especially struck me.

One is his forceful summary of the ailments of American society and politics while totally ignoring the very serious challenges confronting a China that is gradually weakening, not only economically but also politically and socially.

The second aspect is related to the first. He completely ignores Xi Jinping’s increasingly severe suppression of internationally–recognized civil and political rights. Instead, Li seeks to convey the impression that those inside and outside China who protest Xi’s oppression are tools of aggressive American cultural imperialism rather than reflecting widely-shared universal, civilized values. Even the Times op ed editors, despite their preference for controversy, might have questioned these glaring defects.

Death sentence, sense of injustice and public opinion in China

Jia Jinglong

Jia Jinglong

The sense of injustice is spreading in China, and it is always fueled by cases that ordinary Chinese can grasp that violate their basic, widely-shared principles of fairness and humanity. This case blatantly demonstrates the inequality of the system. Another poor villager executed while well-connected murderers are often spared. Killing an official, however cruel or arbitrary his misconduct may have been, usually results in harsher punishment than killing a farmer. But much more is involved in Jia’s case. Housing demolition and its association with corruption and failure to observe prescribed acquisition procedures have sparked huge resentment and popular reactions, of course.

Moreover, there is often a denial of due process – fair criminal procedure – in this instance reportedly by not allowing competent counsel to take part in the defense in a timely manner and by denying defense counsel adequate time to prepare the defense.

In this case another aspect that should have been considered by the courts was the defendant’s mental state. Here, as in some earlier well-known cases, the accused had obviously been brooding for a long time about the unfairness of being deprived of his home without adequate compensation and, consequently, losing his anticipated marriage. Had this aspect been investigated by the court and psychiatric experts, as Chinese law makes possible, it might well have resulted in a diminished sentence. But Chinese courts are reluctant to inquire into the defendant’s mental condition if the victim was an important local official or a police officer..

There is also the broader question of the courts and public opinion. There have been many examples of bloodthirsty public opinion causing lenient courts to reverse their verdicts and there have been many cases of sympathetic public opinion successfully pressing courts to reduce harsh sentences. Sometimes the Party mobilizes the media in a preferred direction or at least allows a mass sentiment to develop. Chinese judges have sometimes discussed with foreign specialists the sentencing dilemmas confronting them and asked for advice and information about how other countries, including the U.S., deal with the problem.

This case may also add to the pressure in China for finding some effective way to allow ordinary people to have a say in the administration of justice. This problem has been important throughout East Asia - in Japan, South Korea and Taiwan, each of which has resorted to different solutions. In China’s Henan Province, the High Court at one point claimed it was introducing an American-style jury system, but that, of course, turned out to be misleading. China’s “people’s assessors” system, imported from the USSR in the ‘50s, has long been recognized as an insignificant and inadequate way to allow laymen to sit and vote with professional judges.

Finally, as the Jia case illustrates, public speech in China is, once again, being increasingly suppressed. Will people soon be afraid of even expressing themselves in private conversations, as during the Cultural Revolution?

GlaxoSmithKline’s corruption in China

Here is an interesting and thoughtful piece by David Barboza in today’s New York Times about GlaxoSmithKline’s bribery scandals in China. The piece raises the question of why Glaxo, as a multinational company, had been so incredibly slow to investigate corruption of its own employees abroad.

I can add a few words based on my own experience as a lawyer advising foreign companies seeking to do business in China from 1979 to 2001. Multinationals, in dealing with China, often reflect their national corporate cultures as well as their own distinctive ones. Among the key factors are, at headquarters, the position enjoyed by the legal department in relation to the company’s overall management and, in the field, the extent to which the headquarters legal department seeks to keep informed about and influence what the company’s representatives in China are up to.

Some American-headquartered companies’ general counsel play very prominent roles both at home and in China and nip in the bud any evidence that the company’s staff in China might be engaging in illegal conduct, whether initiated by the staff or in response to the blandishments of local officials. Attitudes among European companies vary, of course, but there has been, and perhaps even today is, a tradition of somewhat greater tolerance for bribery when competing in a foreign business environment, despite legal regulations that ban it. Japanese companies, although notorious for the methods often used in some Asian countries, seem to demonstrate considerable ambivalence in China, frequently smoothing their way with the usual array of gifts and other “friendly” gestures but showing sometimes exaggerated sensitivity at headquarters about avoiding actions that could be interpreted as corrupting in a major way. Japan’s wartime history in China still makes them more sensitive than most other foreign competitors. 

This is a great and important subject worthy of scholarly and journalistic research. Unfortunately, my own experience with multinationals is relatively limited and long out of date.