China’s “Police Law”—An oxymoron?

By Jerome A. Cohen

Here is an excellent report from China Change—China’s Little-Noticed ‘New Police Law’ Gives Vastly Expanded Legal Powers to Public Security Apparatus. China Change has done a terrific job in its exegesis, which is worth studying even though frightening.

The fact that this forthcoming new legislation authorizes what has been practice in many places and many respects does not diminish its significance. It is the embodiment of Xi Jinping’s insistence that everything be done “according to law”. It also illustrates how little this slogan means in reality when the law is so vague, broad and permissive as to pose no important restraint on the police. But for those who try to understand what is taking place in a non-transparent society these laws and regulations are useful in helping to confirm what practice already is, can be and is likely to become. China’s Orwellian developments make quite a contrast with the U.S. Supreme Court’s current and continuing struggle to accommodate police needs in an increasingly high-tech world without surrendering the power to restrain what police may properly do in a democratic country. 

How to describe what's happening in Xinjiang?

By Jerome Cohen

Earlier this month, Josh Rogin wrote in the Washington Post­, Ethnic cleansing makes a comeback — in China, which provoked quite a lot of discussion, especially with regard to Rogin’s use of “ethnic cleansing” in describing China’s continuing campaign to abuse hundreds of thousands of Uyghurs in “re-education camps“ in the Xinjiang region as well as other efforts to destroy the social and religious life of Uyghur communities.  

Should we use ethnic cleansing to describe this horrendous situation? It is important to “rectify names” (zhengming), but there are so many aspects to this repression that it is not possible to find words that can adequately encapsulate it. What, for example, about reports that large numbers of Uyghurs from certain areas are being displaced and sent elsewhere outside of Xinjiang?

I personally believe, despite the views expressed otherwise, that we should not confine “ethnic cleansing” to its past notorious uses, for what is taking place is the attempted destruction of an ethnic group. This attempt has about as good a chance of success as the attempts to “convert” LGBT people to heterosexuals, and perhaps that is where we should look for better vocabulary!  

Chinese police's recent re-detention of Swedish Citizen Gui Minhai: What’s the story?

By Jerome A. Cohen

Gui Minhai. Photo: Hong Kong Free Press, screenshot/CCTV.

The recent Chinese police re-detention of Mr. GUI Minhai, a Swedish citizen, when he was on the train with Swedish diplomats escorting him to Beijing, deserves more public attention than it has received. China’s action must be questioned and protested by the international community, as argued by last week’s Washington Post editorial, China’s violation of rights grows ever more brazen.   

The People’s Republic of China leaves itself open to condemnation by failing to give a public explanation of its dramatic and unusual deprivation of Gui’s freedom. This is probably because there has been some disagreement or lack of coordination in the PRC government’s control of Gui. What may have happened is that the local security police in Ningbo may have approved Gui’s trip to Beijing for medical reasons, as apparently it had approved his Shanghai trips to the Swedish Consulate there. But the central authorities, when they learned of the plan, may have panicked at the possibility that Gui might seek embassy asylum, as the blind barefoot lawyer CHEN Guangcheng did in 2012, and decided to detain Gui again to prevent that possibility. There may also have been, and still might be, a struggle between the Ministry of State Security and the Ministry of Public Security concerning jurisdiction over Gui.

I suspect we will soon see the following explanation from the PRC: Gui was living in Ningbo under “qubao houshen” (取保候审), a Chinese type of bail requiring the “released” suspect to remain in the city where he has been released and requiring him to obtain special permission for any outside trips. Although Gui has apparently completed his sentence for his earlier traffic offense, his bail must relate to the unfinished current charges for which he apparently has not yet been tried.

It is possible, of course, that the Swedish Embassy may have decided to follow the U.S. example in the Chen case and make positive efforts to spirit Gui to the embassy’s custody, but, given the Swedish Government’s quiet, conventional efforts to aid Gui to date, and to aid Peter Dahlin after his detention, that seems unlikely.

Yet, given the escort of two Swedish diplomats accorded Gui, one has to give Sweden credit at least for seeking to assure Gui better medical treatment in Beijing and for anticipating possible obstruction.

Reportedly the PRC and Sweden have differed on the degree of consular access to be permitted to Gui at various times, and these issues probably have a history going back to the original detention of Gui in Thailand, which was a brazen kidnapping. It should be noted that Sweden and China apparently do not have a bilateral consular agreement, which is odd, but both adhere to the multilateral Vienna Convention on consular relations.

These incidents involve so many as yet unanswered questions. The PRC should not remain silent even if its agencies have not yet coordinated. The Ministry of Foreign Affairs, as so often in these cases, was publicly embarrassed when its spokesperson implicitly admitted that it really did not know what was going on.

Certainly, the Swedish Government should reveal the full story behind its frustrations in this case and in others involving China, and Swedish public opinion should demand that the Government tell the truth now. 

Orwell has arrived: China’s surveillance of social media

China’s cyber monitoring leaves little room for free expression even among small groups.

Eva Dou of the Wall Street Journal has a great report on “Jailed for a Text: China’s Censors Are Spying on Mobile Chat Groups.” It is worthy of a Pulitzer Prize for the insights it gives into contemporary China and its legal system. It illustrates the currently enhanced degree of repression and the impact it has on ordinary citizens. Orwell has arrived. The increasingly smooth integration of China’s cyber monitoring systems, its various police organizations, its “Justice” Ministry, its prosecutors and its judges – no small feat – now leaves little room for free expression even among small groups.

Of course, as Mr. Chen, the protagonist in Eva Dou’s story, discovered, one is really tempting punishment by joking on WeChat about one of the most powerful officials in China, Mr. Meng Jianzhu, who had served as chief of the Ministry of Public Security before becoming czar of the Party’s all-powerful Political-Legal Commission that controls and coordinates all the institutions that comprise the legal system.

This story has so many implications. It shows how many intelligent, ambitious Chinese who have improved their lives under the Communist system have gradually awakened to its methods and costs and come to question and even modestly challenge it. The story also illustrates the fate that many challengers, and the lawyers who are asked to help them, quickly suffer.

Large numbers of Chinese like Mr. Wang are nagged by a sense of injustice that is universal, no matter what Xi Jinping preaches, and become petitioners who find no relief in the system. Many lawyers who have never thought of themselves as human rights advocates nevertheless become drawn into situations that make them feel compelled to vindicate the lawyer’s obligations and then are disbarred and often arbitrarily detained, criminally punished and then eternally harassed after serving their formal jail terms.

Even Mo Shaoping, a lawyer brave enough to have signed Charter 2008, whose prominence as China’s most famous human rights lawyer has allowed him more continuing scope for courageous defense than many other colleagues, has now lost his WeChat account. This is a warning shot across the bow from the Party, which has long restricted his professional activities without risking the domestic and foreign condemnation that his detention would incur.

Of course, if the draft law to formally establish the National Supervisory Commission is enacted next March, it will be even easier for the Party to detain rights activists, including lawyers, without having to violate the country’s laws that are now so blatantly ignored or distorted.

A noteworthy new book: “The People’s Republic of the Disappeared”

The New York Times Sunday Review has an important article--In China, the Brutality of ‘House Arrest’--by Steven Lee Myers featuring excerpts from three of the twelve essays in the new book “The People’s Republic of the Disappeared” organized and edited by Michael Caster. They all are about personal experiences in the torture chamber parading under the bland title “Residential Surveillance at a Designated Place” (see below for an explanation of the RSDP in relation to the world-renowned artist Ai Weiwei’s 2011 detention*).

Ex-law professor/lawyer Teng Biao, himself one of the victims of these official kidnappings, contributed the Foreword to the book. One of the most chilling of many quotable statements comes from human rights activist Tang Zhishun:

“At times the guards warned me that my wife and child, despite being in the United States, were not as safe as I might think they were. Chinese agents could still kill them. They said the same thing about my mother.”

I used to regard such often irresistible warnings as mere interrogators’ threats, but no longer, and they are reminiscent of the words and deeds of the KMT as recently as the late 1970s!

I hope this NYT Review, even though buried in the Sunday paper on Thanksgiving weekend, will enhance interest in a deserving book that is likely to be ignored by the media without this kind of help. 

* Residential Surveillance at a Designated Place (RSDP) and Ai Weiwei

Ai Weiwei, who suffered RSDP in the spring of 2011 before it was even formally authorized for people who maintain residence in the jurisdiction, has done a lot through imaginative art and theater to publicize RSDP’s true nature. The publicity efforts of some of us about his case and the massive foreign petition from the foreign art community that the publicity inspired provided some of the pressure (there was also domestic pressure) that caused Party legislators to deal with RSDP in the 2012 new criminal procedure code.

Since Ai was supposedly investigated and detained for alleged tax violations, he could not be legally detained via RSDP on similar charges even today since that charge does not fall within the three circumstances ( i.e., cases involving national security, terrorism or serious bribery) that have authorized RSDP since the 2012 new criminal procedure code (Art. 73) was enacted. Of course, all the police need for “justification” is a suspicion that his conduct might be against “national security”, a suspicion the reasonableness of which cannot be effectively challenged in the PRC today.

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.

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.

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.

Random Thoughts on the reach of China’s law enforcement – lawlessness – across borders

 Photo source:  inmediahk , flickr

Photo source: inmediahk, flickr

How far is the reach of China's law enforcement or lawlessness? All eyes, particularly those of Hong Kong people, are now on the case of the five missing Hong Kong publishing company managers. Among them, Mr Lee Bo apparently was secretly taken away in Hong Kong and transported to Shenzhen. If indeed the PRC secret police kidnapped this fellow and played similar illegitimate roles in detaining some of his publishing colleagues, one would want to know what caused the police to take such daring and unwise measures. Was this "bookstore" about to come out with a book PRC officials are desperate to prevent?

This incident makes me recall the infamous Jiang Nan murder case (Gangnam murder) when Taipei mobsters, in cahoots with the Republic of China's Ministry of National Defense intelligence chief, rubbed out the Chinese-American journalist Henry Liu on Oct 15, 1984 in San Francisco because he was preparing a book that would have come out with more dirty laundry about the Chiang Kai-shek family. That case added to the pressures for political reform of the Chiang family dictatorship in Taiwan. The current Lee Bo abduction case also has potentially broad implications possibly going beyond its great importance to Hong Kong.

It was reported that Lee Bo sent a handwritten note back to HK claiming that he had voluntarily returned to the mainland and was "assisting" in related investigations If the HK police believe this one, perhaps the famous - now crushed - human rights lawyer Gao Zhisheng should write a letter to his wife telling her that he has been cooperating with an investigation all these years and is really in splendid shape. I have been advisor in a number of PRC criminal cases where the Lee Bo technique has been used not only in an effort to squelch publicity abroad but also to circumvent the PRC criminal procedure protections that are supposed to come into play if someone is formally detained under the criminal law rather than "volunteering" to cooperate. Kidnappers often use a similar technique to communicate with the victim's family.

We should ask why the PRC occasionally succumbs to the temptation to kidnap its citizens from HK or even foreign countries. It is because there are legal procedural barriers to transferring alleged offenders from Hong Kong or foreign jurisdictions to the Mainland. Even thoughHong Kong was returned to the Motherland in 1997, no agreement for "rendition" of wanted suspects between the two jurisdictions has yet been concluded. Hong Kong, like the US and many democratic countries confronted by the PRC's desire for an extradition-type agreement, has not found it politically possible to consent to send people to the Mainland for criminal trial because of the failure of Mainland justice to reach international due process standards. In the absence of an extradition-type formal agreement, sometimes the PRC and other jurisdictions are able to work out mutually acceptable ad hoc arrangements of an informal, but legal, nature. (See the recent ChinaFile discussion of this very current problem between the PRC and the US.) When that proves impossible, the PRC, and not only the PRC (cf. some US CIA "renditions" and kidnappings and remember Israel's pursuit of Eichmann), resorts to cruder techniques of various kinds, as Lee Bo's case demonstrates.