My Sept. 12 talk at Yale on “Law and Power in China and its Foreign Relations”

Jerome A. Cohen

I gave a talk last month at Yale’s Paul Tsai China Center [link here]. It’s about an hour long, and tries to contrast the differences between PRC theory and practice regarding domestic and international law. It also started with a protest against what the PRC is doing against Muslims in Xinjiang.

Jerome A. Cohen ’55, a professor at NYU School of Law and founding director of its U.S.- Asia Law Institute, discussed China and foreign relations on September 12, 2018. The event was hosted by the Paul Tsai China Center.

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. 

Perennial problems with corruption cases in China

By Jerome Cohen

There have recently been increasing signs of popular dissatisfaction with judicial handling of corruption cases in China. Of course, corruption cases are politically sensitive in every country and often involve influential defendants as well as accusers. Chinese courts are generally weak and unable to withstand political pressures to go along with what the Party-state demands. How can they overcome the instruction of the Party discipline and inspection teams and now the Party-run government supervisory commissions? It is much harder to vindicate rights in China’s corruption cases than in ordinary criminal cases, even if the case really involves only corruption rather than the continuing, if non-transparent, political struggle, local or national.

Thus far specific legislative improvements do not have much effect in Chinese practice. Moreover, it’s like putting a band-aid on a gaping wound. The new supervisory system does not offer significant protections against the arbitrary and lengthy incommunicado detention and torture that mark the criminal process even now, almost 70 years after the founding of the People’s Republic of China.

The fear that the current corruption investigation system engenders in the business and bureaucratic elites is undoubtedly slowing economic development. Certainly, democratic countries that are the principal hiding places for absconding corrupt elements are very reluctant to return fugitives to a country that plainly will not allow them a fair and independent criminal process.

China should face up to the need for genuine reforms in the administration of justice from the moment of detention through the appeal procedure. China should consider establishing special procedures for the handling of cases of returned suspects that could inspire the confidence of foreign countries and provide a model for reforming the regular criminal process.

Trump-Kim summit: possibility of North Korea’s developing a credible legal system?

By Jerome A. Cohen

With all the speculation about what positive outcomes might emerge from the Trump-Kim Singapore Summit, we might include the possibility that steps might well be taken to establish a more credible legal system in the DPRK, if only to enhance its economic development and its felt need to establish business cooperation with other countries that have until now understandably shunned the North.

There is no doubt that there has long been DPRK interest in developing a credible legal system, at least for the purpose of attracting foreign business. Both from 1998 to 2001 at Beijing University and in 2013-14 at Hong Kong University, with the collaboration of the Asia Foundation, my NYU colleague Dr. Myung-Soo Lee and  I organized, on behalf of our US-Asia Law Institute, a series of occasional small training programs for North Korean business officials eager to learn how to attract foreign trade and investment to their country. Also, in 1998 I twice took foreign investors that had successfully done business in China to Pyongyang for preliminary business discussions.

While North Korean economic officials had considerable experience with ordinary export/import transactions, they seemed totally unprepared for the complexities of Foreign Direct Investment projects. When at the start of our 2013 sessions I asked the group what they wanted to learn, their initial response was “Why doesn’t Coca Cola want to invest in Korea?” I replied, my head in my hands, by saying “Where to begin?”

Although the North was generally super-cautious about not letting us know the fruits of our labors, I know that our 1998 effort did produce an international commercial arbitration law, and I believe the DPRK did subsequently establish a law firm in Pyongyang to advise on foreign-related business after we spent a couple of days visiting Chinese and foreign law offices in Beijing.

Business law inevitably introduces the notion of government under law. Although the North Korean officials were incredulous about the glamourous offices of one of China’s leading international law firms, they were really stunned when a less prosperous government-owned law firm told them that one of their functions in representing Chinese people was to sue the government for arbitrary violations of administrative law. The chief Korean delegate’s reaction was: ”We don’t have that concept in our country.” Yet we know from infrequent recent reports that some Pyongyang residents have protested against arbitrary actions by the secret police and that their government has tried to improve the situation..

It will be interesting and significant to see whether, in legal aspects as in others, the DPRK will finally follow the paths of China and Vietnam. 

Xi Jinping Amends China's Constitution

This is my take on the controversial issue of China’s recent move to amend the Constitution. It is just out on the Lawfare blog

Xi Jinping Amends China's Constitution

By Jerome A. Cohen

 Wednesday, March 7, 2018, 12:21 PM

The instantaneous reaction to the momentous news that Xi Jinping will be eligible to serve a third term and beyond as chairman of China’s government is the most recent demonstration that we live in a connected world. Domestically, Xi’s bold move to amend his country’s Constitution, although undoubtedly popular with the masses, has clearly generated significant elite opposition. This has been visible even in non-transparent China, despite Xi’s stifling of information and free expression. Indeed, adoption of what could be life tenure for Xi apparently inspired considerable opposition even within the secret confines of the Communist Party Central Committee, which reportedly had to be dragooned into supporting his political coup.

The elimination of term limits for what are usually translated into English as China’s presidency and vice-presidency is only one of three crucial constitutional amendments about to be adopted. The other two are the enshrinement of “Xi Jinping Thought” and the formalization of government “supervisory commissions” that will strengthen what should be called the Inquisition with Chinese characteristics. Together they will expand Xi’s already fearsome powers over his countrymen and potentially extend his dictatorship into the indefinite future.

The outside world, until now, has shown insufficient interest in the Xi regime’s shocking violations of the human rights supposedly guaranteed by both Beijing’s Constitution and the more than twenty international legal documents to which the People’s Republic of China (PRC) has surprisingly adhered. Sunday’s announcement, however, has awakened deeper concern about Xi’s steadily increasing repression. Foreign observers, for example, have finally begun to focus on the fact that hundreds of thousands of Muslim Chinese citizens are today detained in “political education” camps designed to destroy their religion and customs—camps suspiciously similar to the “re-education through labor” sites that were ostensibly abolished several years ago.

To be sure, Xi Jinping’s constitutional coup has given the world other more prominent concerns—foremost among them its implications for international security. This electrifying elimination of the formal barrier to Xi’s life tenure as chief of China’s government crystallizes developments over the past five years that have resurrected foreign worries about a “China threat.” It coincides with, and further fuels, the intense criticisms by many American policy makers and foreign affairs experts who now question the premises of Washington’s China policy of the past half century.

Only months ago this attack seemed the monopoly of right-wing critics, egged on by the likes of Steve Bannon, who were preparing to mobilize the nation against the perceived growing power of the Beijing regime. Now the attack—and the resistance it has begun to inspire—have moved to center stage.

I am one of those who, in the late 1960s, urged the Johnson and Nixon administrations to abandon U.S. hostility toward the PRC, even though it was in the throes of Mao’s Cultural Revolution. Looking back, I do not think our policy was wrong. Surely continuation of the policy of containment and isolation would have been worse. Of course, different supporters of the then-new policy of luring the PRC into the world community had different primary motivations. Many of us who specialized in Chinese studies were not only interested in the realpolitik of using Beijing to balance Moscow and to extract the U.S. from its mistaken foray into Vietnam. We also believed that ending China’s isolation and promoting its active participation in the world community would be a boon to peace and to the well-being of the long-suffering Chinese people.

That belief has been vindicated by the impressive progress that has been made both in international relations and China’s domestic life since the PRC’s entry into the United Nations in 1971 and the establishment of diplomatic relations between Washington and Beijing in 1979. Now, however, we are confronted by the consequences of success and at a bad time because the helm of the Chinese Communist Party has been seized—perhaps only temporarily—from more moderate leaders. Xi Jinping is a dynamic, able, ruthless and nationalist leader embarked on a mission to restore the greatness of the “central realm” after two centuries of felt inferiority and grievous struggle.

Xi is a risk-taker with a vision backed by a coherent, long-run strategy and tactics to match. His endless speech to the 19th Party Congress last October is a document worthy of serious attention. It showed no interest in either human rights or international law but is destined to have a huge impact both at home and abroad. At the time, Steve Bannon—by then no longer an adviser to the president but still a prominent voice on the right—called it "the single most important speech of the twenty-first century."

The sudden prospect of Xi’s indefinite rule may have a stunning effect on the American public comparable to the Soviet Union’s successful launching of Sputnik. In China its impact on the educated classes may approach that of the Party’s June 4, 1989 military slaughter of students, workers and intellectuals near Tiananmen Square. There has already been a spike in Chinese interest in emigration, and many of the hundreds of thousands of Chinese students in North America, Europe, Australia and other countries appear to have been jolted into reconsidering their plans to soon return home. To the extent we are allowed to know, Xi, a master of propaganda, remains broadly popular with the less-educated population despite growing dissatisfaction with the income inequality, rural-urban divide, labor conditions, real estate bubble, horrendous pollution, male-female imbalance and other problems that trigger the sense of injustice and an extraordinary number of “mass incidents.”

Of course, many Western observers hope that America’s response to this week’s news will stimulate not only abandonment of President Trump’s pathetic and costly attempts at foreign policy but also a resurgence of bipartisan support for strengthening the cooperation of democratic nations and the further development of international institutions and practices capable of meeting Beijing’s political, military, economic, diplomatic and human rights challenges in firm but fair and reasonable ways.

Those challenges may not turn out to be as fearsome as widely anticipated. China’s liabilities are increasing more rapidly, although less obviously, than its assets. This is surely one of the major factors that has led Xi Jinping to play the role of the merciless dictator vigorously suppressing and unfairly punishing mere domestic criticism as well as overt dissent.

Yet it has proved impossible for him to completely hide the difficulties that his bid to end term limits has encountered, even within the Party’s loyal Central Committee. China watchers will now focus on the size of the vote by which the upcoming National People’s Congress (NPC) approves the Party’s proposal to amend the Constitution. Will there be only a handful of token dissenters, just enough to give the appearance of a credible free vote and overwhelming support for Xi’s bid for unrestricted power? Or will there be one hundred or more negative votes or abstentions, as there sometimes have been for the annual reports to the NPC of the Supreme People’s Procuracy and the Supreme People’s Court in protest against blatant failures to honor the rule of law? If a significant minority of the NPC’s roughly 3,000 delegates should muster the courage to register their open disagreement, will their vote be revealed in accordance with customary practice? Or will the published result be doctored to save Xi Jinping’s face?

Experience suggests that the Chinese equivalent of intense lobbying must be under way as the NPC session unfolds, in order to assure the Party leadership’s desired outcome. Skilled Party minions have many tools for enforcing the leadership line through combinations of intimidation and persuasion. Yet, as the process of enacting a number of controversial statutes has demonstrated in recent decades, it is no longer entirely accurate to dismiss the NPC as “China’s rubber-stamp legislature.”

Whatever the vote, it is already clear that Xi Jinping is paying a high price at home as well as abroad for his understandable wish to avoid becoming a final-term lame duck.  Although the anticipated constitutional amendment will add to his power in the short run, it is likely, as many predict, to produce greater political instability before long. If the supreme leader fails to cope with the problems that he will inevitably confront in the next few years, his constituents will know whom to blame, and rivals will be all too eager to seize the advantage.

There is especially high risk of an important mistake in international affairs. Xi, for example, may overplay his current efforts to increase pressures on Taiwan to rejoin the Motherland before the 100th anniversary of the Communist Party’s 1921 founding. A shootout with the U.S. in the South China Sea could also have embarrassing reverberations, as could chaos or war on the Korean Peninsula. We should not assume that the new possibility that Xi can continue to lead the government after 2023 means that he is necessarily destined to do so. As Matthew Arnold wrote long ago, “Only the event will teach us in its hour.”

China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

Term limits for the leadership are not usually found in dictatorships. The Chinese Communist Party’s proposed abolition of China’s presidential term limit means that it has forgotten one of the main lessons of Mao’s long despotism. The two-term limit was inserted into the People’s Republic of China Constitution after the Cultural Revolution ended and reflected a widespread desire to prevent the return of one-man dictatorship. Its abolition signals the likelihood of another long period of severe repression. This should prompt us to think of Chiang Kaishek as well as Mao and Yuan Shikai and, in a comparative Asian vein, of Marcos and Park among others. Of course, some recognize that Putin’s example may also have significantly influenced Xi Jinping.

Xi’s move will have a profound effect on world order. It will enable him to move more boldly and increases the risk of his acting arbitrarily and perhaps mistakenly in international relations. It will surely hinder China’s efforts to be respected for “soft power” as well as military and economic prowess.

Xi decided to strike while the iron is hot rather than wait for later in his new term when increasing problems might have made the change more difficult. His brash step has undoubtedly aroused profound concern among the elite. Many high Party personnel, bureaucrats, judicial officials, lawyers, intellectuals, academics and business people, mindful of the past Maoist dictatorship and the increasingly repressive and arbitrary government under Xi, have seen this coming and now, in social media and other informal ways, are showing their anxieties and opposition.

But not many public signs of protest can be expected, since he has stifled free expression in the past few years. There must be great grumbling and concern among the country’s elite and educated, especially since the same Party “proposals” that have eliminated term limits have also confirmed the establishment of the National Supervisory Commission that will make the regime more repressive and more free of legal restraints than ever, imposing what amounts to “the Inquisition with Chinese characteristics.”

There is big risk for Xi at home since, as it becomes more obvious that China’s problems are catching up with its achievements, the government will look less impressive and the masses will begin to lose their enthusiasm and hold the great leader responsible. The elite will be less surprised but less forgiving.

The external risk is more immediate. Xi’s bold consolidation of power will enhance fear of “the China threat”, and his ever greater repression will make people think of Stalin’s decades-long centralization of power, even though, one hopes, Xi will not engage in mass executions. He already is engaging in mass detentions in Xinjiang even though “re-education through labor” was abolished in name a few years ago.

These “proposals” are at least a 1-2 punch against the Constitution when we consider the simultaneous establishment of the National Supervisory Commission. People often wonder—even now—how in 1937 Stalin could have said: “We need the stability of the law more than ever.” while at the very same time displaying the infamous “purge trials” to the world and lawlessly executing huge numbers of people. Xi claims to be strengthening the “rule of law” while making certain that it will never get off the ground. Tell it to all the tens of thousands in Xinjiang who are locked up in Xi’s successor camps to the supposedly abolished “re-education through labor”.

Carl Minzner’s new book: End of an Era: How China's Authoritarian Revival is Undermining Its Rise (Oxford 2018)

By Jerome A. Cohen

Fordham Law School’s prestigious Leitner Center for Human Rights gave Professor Carl Minzner’s book—End of an Era: How China's Authoritarian Revival is Undermining Its Rise—a splendid launch in an all-day program on Monday that focused on its implications for the future of  “rights lawyers”.  At lunch Carl gave an eloquent overview of the book, which is learned, analytical and stimulating while maintaining a highly readable style throughout. It is plainly directed at a broad and influential audience and likely to have a significant impact on the current reevaluation of the PRC’s power. Teng Biao and I made subsequent comments.

Teng emphasized the totalitarian aspects of the Xi Jinping era and maintained that the U.S. has a special duty to promote democracy in China and that the political costs of transition to democracy have been exaggerated. Among a number of other points he also urged Western nations to defend against PRC efforts to undermine their own democracies.

I focused on the implications for rights lawyers, urging them to recognize that the current era of extreme repression will pass, just as the Cultural Revolution did, and that they should in the interim try to avoid martyrdom by pursuing their craft within the unfair restrictions imposed by the regime in order to survive and recruit others to prepare for the better days to come. Too many brave and able lawyers have already been eliminated as functioning professionals as a result of torture and other punishments including “medication” designed to destroy their mind as well as their will, with corresponding harm to their families. 

My final point branded Xi Jinping’s efforts to justify his repression by invoking China’s authoritarian “Confucian” past as ineffective and hollow, as demonstrated by today’s Taiwan and South Korea in addition to Japan and by the prominent roles that rights lawyers are playing in those societies. China’s present leader seeks “soft power” as well as military and economic power but does not seem to realize that his repression of rights lawyers is increasingly earning the world’s ridicule and scorn.

Teng Biao made the proper point that it is very difficult for even cautious rights lawyers to always know where the regime is drawing the line at any given time, and thus some have become unwilling martyrs to the rule of law.

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. 

National supervision commission and China’s silenced legal elites

By Jerome A. Cohen

The second plenum of China’s 19th Party Congress was concluded last week. It paved the way for amending the Constitution to establish a National Supervision Commission. But this proposed “reform” has encountered fierce misgivings, especially among three expert groups: members of the Procuracy, i.e., the national and local prosecutors; influential scholarly specialists in constitutional law and criminal justice; and human rights and criminal defense lawyers.

The anticipated Constitutional and legislative changes represent a huge setback for almost four decades of official, scholarly and professional efforts to establish a rule of law that will protect the rights of individuals in their dealings with the government and the Communist Party. The Procuracy has major institutional reasons for opposing the new situation, since many of its personnel will be reassigned to investigative work in the supervisory commissions that will in effect be largely lawless in terms of meaningful procedural protections for suspects. Moreover, the powers of those prosecutors who remain in the Procuracy will certainly be limited in their handling of cases sent to them by the supervisory commissions. Also, procurators, scholars and lawyers are plainly opposed to the changes for many other good reasons including the length of incommunicado detentions possible without any other check or restraint, the absence of access to counsel, the very broad scope of the conduct that can be punished, even going beyond the criminal law’s prohibitions to include alleged violations of Party discipline and public morality, and the very large numbers of people—far beyond only Party members—who will be subject to repression and fear.

These changes will create a nightmarish scenario that will counteract many of the genuine reforms to the criminal justice system that are being developed and currently discussed. Yet, after a courageous academic protest meeting drew harsh official reaction, no one has dared to speak out in a public way despite great hostility to the changes continuing to be expressed on a confidential basis.

Xi Jinping regards formal authorization of these changes, which have already taken place in practice in many places, as positive because it will give an official fig-leaf to a terrifying investigatory/punishment process that until recently has been largely practiced by the Party against Party members and that has been widely condemned as lawless by many critics at home and abroad. But this new attempt at official veneer is plainly not authentically legal, even in terms of the government’s existing legal system. The anticipated constitutional amendments cannot remedy the situation and will make major alterations in the governmental system that the People’s Republic imported from the former Soviet Union..

What is at stake here is the legitimacy of the country’s legal system in the eyes of the educated, articulate but currently silenced, influential elites. Political leaders, bureaucrats, business figures and their employees, prosecutors, judges, legislators, professors and especially lawyers have good reason to fear that they may be the next victims of a plainly arbitrary system. This is the Inquisition with Chinese characteristics!

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!

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.

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.

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.

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.

Non-release “release” of human rights activists and their confessions

 Photo: Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Photo: Wang Yu and her son Bao Zhuoxuan, Photo courtesy of Bao Zhuoxuan

Chinese human rights lawyer Wang Yu has been “released” on bail, as reported in today’s Wall Street Journal. Wang Yu was seen in a video making a confession. “I also wrote inappropriate things online and accepted interviews with foreign media. For this, I feel ashamed and express remorse,” She said. As to the inaugural American Bar Association (ABA) International Human Rights Award given to her, she was quoted as saying she did not “acknowledge, recognize or accept” the award.

It’s obviously too soon to analyze with confidence but it sounds like another of the curious deals that are being struck between PRC oppressors and courageous but hapless human rights victims, deals involving the welfare of spouses, children, parents, lovers etc as well as the target whose captivity and torture are at stake.

This is all so sad, not only for the oppressed, broken victims but also for China and its standing in the world. These pathetic, ludicrous “confessions” and charges are obviously designed for a Chinese audience, but tens of millions of Chinese are not foolish enough to believe these farces.

Yet the damage to China that these torture-inspired fairy tales inflict abroad is incalculable. Does the Chinese leadership not see this? Xi Jinping is holding himself and the country up to increasing worldwide ridicule. This is the Chinese Communist Party’s distinctive contribution to the playbook of international Communist abuse of the legal system and promises to rank in notoriety with Stalin’s infamous purge trials, although so far no Chinese victims have been formally executed!

I’d like to think that if the ABA, in its new vision, could honor every detained human rights lawyer in China, it could guarantee them some minimal concession from their oppressors, but we know that international prizes can only be helpful in a few cases and certainly cannot free even Nobel Prize winners!

I don’t know what this foretells re the ABA’s work in China. Certainly it adds fuel to the fire of the continuing debate over what the appropriate ABA response to the vicious repression of human rights lawyers should be. If this case results in the termination of the ABA’s praiseworthy activities in China, it would be another classic instance of what Beijing propagandists like to call “dropping a rock on your own foot”.

Support silent supporters of the rule of law in China

 Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Human Rights lawyer Teng Biao, Photo credit: May Tse/South China Morning Post

Here is a stimulating op-ed by Chinese law scholar and activist Teng Biao. I hope US funders, public and private, will take it into account. I believe, after giving due regard to Teng Biao’s admonition against funding the oppressors, funders should continue to support those non-Chinese institutions that do not pull their punches in studying and reporting on legal developments in China while also continuing to conduct legal and human rights education of not only Chinese lawyers but also Chinese judges, prosecutors, justice officials and even police.

The point that needs greater recognition here is that hundreds of thousands of legal specialists in China are extremely unhappy with Xi Jinping’s oppressive policies, policies that they feel forced to live with and practice while awaiting a less repressive regime and the renewal of true legal reforms. At a time when they are being ordered to reject universal human rights values, we should not abandon these silent supporters of the rule of law, but should keep up contacts and professional nourishment that will sustain them until a better day dawns.

Years ago, the late Senator Arlen Specter asked me to emphasize this point in a letter to then House Majority Leader Nancy Pelosi, recalling the importance of foreign funded legal education and training given to officials of the Chiang Kaishek dictatorship in Taiwan and the Park Choon-Hee dictatorship in South Korea. Those efforts paid rich dividends when political circumstances permitted legal liberalization. Indeed, they helped fuel legal officials’ opposition to dictatorship, as occurred when Taiwan prosecutors and judges rebelled against their masters and successfully established their independence of political interference.

The U.S. Congress, other countries and private foundations should also fund basic research on the many complex aspects of the evolving Chinese legal system, not only education and training in China but also efforts to enhance foreign understanding of both contemporary events and the country’s political-legal culture.

In addition, there is a great need to fund the support and activities of the increasing number of Chinese refugee lawyers, law professors and human rights activists who, like Professor Teng, are turning up outside China as a result of the terrible situation they confront in China.

Finally, in fairness to the America Bar Association, we should note that, after long internal debate spawned by external criticisms, it has decided to establish an international human rights award and next week at its annual meeting in San Francisco this new award will be bestowed, in absentia, on another of China’s courageous human rights lawyers, Ms. WANG Yu, who, sadly, is jailed in China and awaiting criminal conviction and a long prison sentence. 

China’s Disregard for the International Rule of Law

Here’s William Nee’s first-rate essay on the insights into criminal “justice” in China offered by the Booksellers’ case.

 Photo Credit: Flags of member nations flying at United Nations Headquarters ,   United Nations Photo , Flickr

Photo Credit: Flags of member nations flying at United Nations HeadquartersUnited Nations Photo, Flickr

I would only add: The Chinese Government can too often hide its disregard for international human rights standards as well as its own national laws. Yet we must continue to expose such violations as much as possible. For example, as John Kamm points out, the UN Working Group on Arbitrary Detention has once again condemned PRC criminal procedure abuses, on this occasion for the first time involving an American citizen.

This Tuesday’s decision by the UN arbitration tribunal in the Philippine maritime dispute with China will highlight another area in which the PRC has shown its contempt for the international rule of law. Unfortunately, in its defense, all too often the PRC is able to cite previous United States violations.