China-Taiwan Relations Re-examined: The '1992 Consensus' and Cross-strait Agreements

By Jerome A. Cohen

Given the recent dueling speeches of Xi Jinping and Tsai Ing-wen, readers might be interested in my forthcoming article co-authored with Yu-Jie Chen on the “1992 Consensus” and cross-strait agreements (Our assessment of the “1992 Consensus” can be found in Section I).

This article was completed in December 2018, but the New Year speeches of Xi and Tsai only vindicate our analysis about the divergent views of the “1992 Consensus.” Their speeches, together with the response from the Kuomintang (KMT) rejecting Xi’s proposal of “One Country, Two Systems,” make it ever clearer that there was no genuine “consensus” about sovereignty issues disputed by the PRC and ROC governments. Notably, Xi Jinping’s remarks, linking “One Country, Two System” with the “1992 Consensus,” depart from China’s previous implicit practice not to publicly challenge the KMT’s position of “One China, Respective Interpretations.”

Kim Jong Un’s third trip to China!

By Jerome A. Cohen

Today’s Washington Post reports that Kim Jong Un has made a third trip to China for meetings today and tomorrow. He ought to get a commuter ticket and is beginning to look like a Chinese yoyo! John Fairbank must be smiling from the grave at this blatant resurrection of the Sinocentric world.

For Kim Jong Un to do this, without more than talk of a reciprocating visit by Xi Jinping, the stakes and pressures must be very high! For those who debate the importance of personal diplomacy this series must have great interest. Tune in tomorrow! 

Xi Jinping’s aspirations

We are witnessing an important modification of the Deng Xiaoping era, personalistic one-man rule enhanced by efficient Party controls of all aspects of life.

By Jerome Cohen

On Sunday, China’s National People’s Congress passed the comprehensive constitutional amendment proposed by the Communist Party under Xi Jinping’s leadership. The vote, which had the support of 2,957 delegates (with only two “no” votes and three abstentions), is what I anticipated. The leadership had to show a few dissenting voices among the almost 3,000 delegates in order to give the appearance of freedom on the part of the delegates. But it wanted, at the same time, to have a show of overwhelming support for the constitutional changes, unlike on some occasions where as many as 100 delegates have either voted against or abstained from voting with respect to certain reports on the legal system. 

The leadership had to work hard in recent weeks first to press the Communist Party Central Committee to go along with its proposal and then the National People’s Congress delegates. Without the advance approval of the leadership it would have taken a brave, indeed foolhardy, person to express dissatisfaction in the current circumstances where the Xi Jinping machine had gone all out, using fear, intimidation and incentives, to achieve its goal. 

We are witnessing an important modification of the Deng Xiaoping era, personalistic one-man rule enhanced by efficient Party controls of all aspects of life, increasing intolerance of dissent, more direct government controls of business and ever greater repression through the new supervisory commissions.

Ironically, this Constitutional amendment changed the wording in the Preamble from ”健全社会主义法制” to “健全社会主义法治.” I have always understood the newly-inserted last character in the phrase to symbolize the aspiration for China to achieve government under law (法治) rather than merely rule by law (法制). I think its insertion in the current circumstances is an attempt by the Xi Jinping crowd to hijack the term in accordance with his clear preference to rule the country by law rather than continue the reality of lawlessness in some crucial respects, as in shuanggui (双规), the party punishment that lacks any legal basis.

That is why we are getting the supervisory commissions fig-leaf of officiality and that is why, in order to feel comfortably free to plan on indefinite tenure as “president”, Xi insisted on amending the Constitution so everything can be done “according to law”.

Of course, there is no intent to place his actions under the law, and it is disappointing that the amendment does not come to grips with the Constitution’s Article 37 in an attempt to reconcile the National Supervisory Commission’s (NSC) “liuzhi” (留置) detention with Article 37’s restrictions on detention and arrest. (Perhaps that is being left to forthcoming relevant legislation—the NSC Law and a possible Organic Law of the NSC system to match the organic laws of the other institutions that purportedly fall under the National People’s Congress. Or it can be done later via a National People’s Congress Standing Committee interpretation or perhaps even a Supreme People’s Court’s interpretation if necessary.)

Everyone talks about Xi Jinping wanting to be another Mao Zedong. Some observers compare Xi’s ascent to the story of Putin. I have been saying for a long time that Xi’s goal is to out-do Stalin, without all the killing, and he may well succeed. He really is following the Stalin centralization of power, suppression of dissent, model that emphasized “the stability of law” even as Stalin used it as an instrument to promote the slaughter of millions.

My interview with the Diplomat: Xi and CCP Aim for Unchallenged Power

This is my interview of last week with the Diplomat on the continuing discussion of Xi Jinping's ending the President's term limits.

https://thediplomat.com/2018/03/jerome-cohen-xi-and-ccp-aim-for-unchallenged-power/ 

Jerome Cohen: Xi and CCP Aim for Unchallenged Power

To whom much is given, much will be required.

By Maurits Elen

March 07, 2018

The Chinese Communist Party (CCP) has contributed much to the success of the modern Chinese nation — a gradual liberalization strategy of the economy has produced widespread growth and raised the standard of living for millions of people. If China continues its current trajectory, it will be crowned the world’s largest economy not long from now.

No one would disagree, however, that China has also become an increasingly oppressive society, with an ever more authoritarian government suppressing the freedoms of its 1.4 billion citizens in order to meet policy objectives. The trend does not seem likely to be reversed anytime soon. In this interview, Jerome Cohen, a Professor of Law at New York University and lifelong friend of China, shares his views on the National People’s Congress’ upcoming decision to remove the presidential term limit from the Chinese Constitution.

Maurits Elen: Are peaceful power transitions in China, as seen since Deng Xiaoping, now less likely to occur without clear succession mechanisms in place?

Jerome Cohen: As many observers agree, ending the term limit is a recipe for increasing political instability and weakening, and perhaps even ultimately dividing the Party. With no designated successor, serious illness or death of the leader could lead to chaos long before the end of the second term, not to mention beyond that.

There are Western leaders who have served a prolonged time in office, sometimes more than a decade. How does this compare to Xi?

Long leadership in a democratic country places the leader and his party in an entirely different position. As the British public demonstrated after World War II when it repudiated the great Churchill after he led the country to victory, even the greatest leader can be replaced in a democracy. And remember the British decided to bring Winston back after they got a dose of Clement Attlee. It was all very orderly, even despite the fact that the U.K. was in a bad domestic shape and was losing its international power at the time.

[Click here to continue reading this interview.]

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”.

An excellent ChinaFile Conversation: Is American Policy toward China Due for a ‘Reckoning’?

By Jerome A. Cohen

ChinaFile is usually very good value but this week’s Conversation on American policy toward China is of an especially high quality, and what topic is more important and timely, given the current state?

Perhaps enough ink has already been spilt in response to the brilliantly provocative essay by Kurt M. Campbell and Ely Ratner, and I found myself in agreement with all the commentators in the Conversation. Of course, I enthusiastically endorse what Liz Economy and Andy Nathan have written and also particularly benefited from the wise counsel of Lindsey Ford and Robert Daly, whose views I had not heard before. Yet a few additional remarks may be helpful in adding perspective to our dilemma. Therefore, I have chimed in with a comment (attached below with a number of links that might be useful as background).

Best wishes to my blog readers for the Year of the Dog. Hope Springs Eternal!

--------My comment in the ChinaFile Conversation--------

The problem of exaggerated expectations is not a new one for China policy. We only need to recall Franklin Roosevelt’s insistence that the Republic of China (R.O.C.) be accorded permanent membership in the U.N. Security Council. I wonder how much more complicated People’s Republic of China (P.R.C.) participation in the U.N. might have become if it had not been able to step into the R.O.C.’s Security Council shoes.

I think the hopes that motivated the U.S. effort to initiate a new China policy in the late ’60s and ’70s were more varied and complex than often recognized. There was realpolitik as well as wishful thinking. Have we given enough weight, for example, to the importance of obtaining P.R.C. support to counter the Soviet Union and to ease us out of Vietnam? Many China watchers had broader considerations than those in mind when advocating change, but I don’t recall many of my own colleagues saying that we would create China in our own image. I think, for example, of the memorandum that our Harvard-MIT group submitted to Nixon and Kissinger under the awning of the Kennedy Institute of Politics in November 1968 after many discussions. I also want to excavate my 1971 and 1976 Foreign Affairs articles to see the extent to which convergence was a stated goal. We plainly thought that rapprochement would improve international relations as well as the lives of the Chinese people.

We should not underestimate the extent to which the new policy did effect positive change, certainly in the lives of the Chinese people. Anyone who worked in China in the ’70s and even the ’80s can attest to the enormous progress in social and economic conditions that gradually resulted from the Open Policy. And, after a hiatus of several years following June 4, the renewed and wider engagement proved to be successful in many respects, including education and communication, and many Chinese elites today reflect the enormous progress that has been made, which is why Xi Jinping has to fight so hard against “Western values” and to repress and punish free expression.

We should keep in mind that Xi will eventually pass from the scene, at which time we can expect a reaction against his harsh rule. Many in China today are very unhappy about both the domestic oppression and many aspects of Xi’s foreign policy. The P.R.C.’s response to the Philippine arbitration was extremely controversial within expert circles, just as is the imminent enactment of the new “Supervisory Commission” system of arbitrary detention that will confirm what I call “The Inquisition with Chinese characteristics.”

I favor the measures suggested by so many of the commentators in this discussion to reinvigorate American policy in diplomatic, economic, and military terms and to revive our society. But in doing so we should not foster the misimpression that the P.R.C. will remain frozen in the Xi Jinping mold. I still like Joseph Nye’s admonition to “keep open the possibility of more benign outcomes.” Indeed, we need to do more to stimulate such possibilities by enhancing our competitiveness without, as the phrase goes, being confrontational. Given the situation in the South China Sea and in the Taiwan Strait, this will not be easy.

Liu Xiaobo’s death

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

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

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

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

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

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

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

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

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

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

 

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. 

China’s miraculous recent efforts to reform people into “socialist new men”!

Photo: Voice of America, January 2016

Photo: Voice of America, January 2016

Lee Bo, one of the Hong Kong Publishing Five whose disappearances last year have been widely reported, now says he will never publish banned books again.

Let’s try to look at the possible bright side to the PRC’s recent successful attempts to insult our intelligence and challenge our credulity. One of the more idealistic aspects of the Bolshevik Revolution was the honest aspiration of Lenin’s first Minister of Justice to create a new, truly revolutionary system of punishment that would transform criminals into “new socialist men”. Chairman Mao’s first decade in national power prominently featured a similar goal, one that gradually, almost imperceptibly, yielded to the reality that it is easier for governments to kill people than transform them.

But is it now possible that Xi Jinping has outdone his much-admired Helmsman by miraculously transforming, in jig time, the Hong Kong Publishing Five and other alleged offenders who have recently confessed their sins in public, even without being prosecuted, not to mention convicted? By the time we mark the 100th anniversary of the Bolshevik Revolution next year, will there be further evidence that it has belatedly achieved one of its most ambitious goals?  

My video talks on “The Governance of China”

Here are my video talks for the New York Review of Books conference in Hong Kong on “The Governance of China,” which just took place over the weekend. Congrats to the organizer for a successful conference. 

1. Some Legal Vignettes about China (12 minutes):

How China’s ideology has affected its legal development and the current challenges facing the legal profession

2. Legal and Constitutional Reform (24 minutes):

How the Chinese Communist Party maintains unfettered power and how law reformers hope to restrain it


Chinese Communist Party’s Persecution of Churches: China Change’s Interviews with “Pastor L”

By Jerome A. Cohen

Photo from  ChinaChange : "Believers and SWAT clashed when the cross of this church in Wenzhou was removed on July 21, 2014. TIME Magazine has a video report  here "

Photo from ChinaChange: "Believers and SWAT clashed when the cross of this church in Wenzhou was removed on July 21, 2014. TIME Magazine has a video report here"

China Change has just released a remarkable interview with “Pastor L.” The interview not only updates us about the plight of Christianity in an important area of China but also offers a persuasive analysis of what underlies the Chinese Communist Party’s persecution of religions generally. Indeed, it demonstrates the similarities between the CCP’s persecution of religions and its systematic attacks on all freedoms of expression, media, teaching, research and publication, and the legal profession to which victims of suppression vainly turn for protection against an arbitrary and repressive state. This interview deserves widespread dissemination. One need not be a religious person – and I am not – to appreciate its significance.

The interview does prompt a few immediate thoughts. It consistently refers to “Christianity” without distinguishing among the varieties of organized believers who have earned that designation. Readers who are interested in how many of the affected church groups are “Protestants” of one kind or other and how many are “Catholic” can find more information in the first interview China Change released here.

The interview’s account of how local business people, a formidably successful group, have helped to spread the faith during their business trips throughout China evokes thoughts of Max Weber and the connections between capitalism and religions.

It also offers the pathetic story of how Beijing lawyer Zhang Kai, one of several counsel seeking to defend the churches but secretly detained like many of his clients, has been coerced, like them, to issue a jailhouse statement claiming that he no longer wants the help of defense lawyers. This is a vivid illustration of the “rule of law” in practice, as distinguished from the speeches of Xi Jinping, the preaching of the Party plenums and the reformist norms of the National People’s Congress and the Supreme People’s Court. Church believers could render further service by doing empirical studies of the many cases involving interaction of the legal system with their daily lives.

I look forward to further reports from the estimable “Pastor L” and China Change. 

“He said, Xi said”: the press conferences after the Xi-Ma meeting

Photo by the Office of the President of Taiwan

Photo by the Office of the President of Taiwan

by Jerome Cohen

The much-anticipated meeting between China’s President Xi Jinping and Taiwan’s President Ma Ying-jeou took place today. Here are the statements from Xi Jinping and Ma Ying-jeou and the subsequent remarks of Tsai Ing-wen, Taiwan’s political opposition party’s leader and presidential candidate.

We will see more analysis by political commentators, especially those on Taiwan from the opposing KMT and the DPP camps. But one thing we can all agree upon is that the press conference of Zhang Zhijun, the head of China’s Taiwan Affairs Office, gave the world a new example of “He said, Xi said.”

Seriously, I think Ma’s decision to do his own press conference rather than leave it to the very able Andrew Hsia, the head of Taiwan’s Mainland Affairs Office, which would have comported with Taiwan’s other efforts to demonstrate equality with the PRC, was a wise one, demonstrating how democratic leaders expose their conduct to the public. Xi’s consistent reluctance to face questions and the pathetic three questions staged for Zhang, together with the shielding of the Chinese people from Ma’s initial speech and then his press conference, undoubtedly left a vivid impression on many Chinese.

Who gets punished?: Sons and daughters of rights lawyers - Collective punishment in China

by Jerome Cohen

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

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

Wang Yu, a leading rights lawyer detained in July during a large-scale crackdown on lawyers, must be under greater pressures than ever. Not only is she detained, but also her teenage son Bao Zhuoxuan has been prevented from leaving China to study abroad. When the boy tried to escape China days ago, he was caught in Myanmar and brought back to the country. Chinese media now claim that this is “a plot by external forces, who forcibly drew a minor into the vortex of politics and used the case to vilify China's rule of law.” Wang Yu, detained for more than three months now, appeared on state TV to condemn the supposed smuggling of her son (See Verna Yu’s report here). Meanwhile a son of another prominent rights lawyer, Liu Xiaoyuan, has also been denied permission to leave China to pursue an overseas education.

There is no doubt that in fact, not in formal law, the Chinese Government has been resorting to collective punishment of the family members of those it regards as political offenders. Indeed, the People’s Republic has been doing this for a long time in order to punish people it deems to be dissidents and to force them to “confess” to alleged crimes they have not committed.

Such formal collective punishment was abolished over a century ago in China as part of reformers’ efforts to bring Qing dynasty justice up to the standards of the Western imperial powers and end the incubus of “extraterritorial” foreign jurisdiction. Yet it persisted in practice under China’s post-imperial, pre-Communist regimes. Chiang Kai-shek’s government continued to secretly mete out collective family punishment on Taiwan. Many still recall how Kuomintang (Nationalist Party) police even killed the children and mother of a distinguished Taiwan independence advocate while he was in prison.

Is collective punishment happening more often in the PRC today than in the past? It’s impossible for outside observers to know. Surely the Internet and social media keep us better informed than in the past.

The authorities evidently think it is an effective tool, since it can transform even the most courageous dissident into the Communist Party’s compliant victim.

This vicious practice may soon backfire, however, since knowledge of its use is increasingly widespread and leaves in tatters any further attempt by the Xi Jinping regime to resort to “soft power”. I am glad Xi’s daughter had the opportunity for a Harvard education. It is a disgrace that he so often denies this opportunity to the children of so many worthy citizens.

Can the Press get Chinese President Xi Jinping to answer an impromptu question?

by Jerome Cohen

Chinese President Xi Jinping arrived in Seattle on Tuesday for his first state visit to the US. Now that he is in America, can the press ask him unscripted questions? In fact, these visits from PRC leaders are staged to avoid direct, unapproved questions. Things are generally scripted to go smoothly and “avoid offense”. Yesterday’s WSJ interview, in writing (EnglishChinese), is generally the best one can get, and that is a coup. Even his dinner hosts will find it hard to find a moment for a real conversation. Former Prime Minister Zhu Rongji was a rare exception because he could field public questions, even in English, and often gave bold, off the cuff answers.

Guo Yushan (郭玉閃) "released" prior to Xi Jinping's visit to the US

by Jerome Cohen

Less than ten days before Xi Jinping's visit to the US, scholar Guo Yushan (郭玉閃) and his colleague He Zhengjun (何正軍) have been released after almost a year’s detention (see the SCMP report here). Guo is now placed under "qubao houshen (取保候審)" (obtaining a guarantee pending further investigation), which is often a face-saving device for the Chinese authorities if they want to release someone during investigation. 

This form of “release”, while not as severe as “home confinement”, means that for one year the released people are under various constraints including continuing stigma although they have not been found guilty of anything or even prosecuted. They cannot leave their city without police approval, they have to report regularly on their activities, they are often shadowed and can be taken back into custody and prosecuted at any moment. The police often silently drop the case at the end of the year unless they come up with evidence, but unauthorized surveillance often continues. Plainly, this is very different from a true release and termination of police interference with one’s life. 

Guo Yushan (photo by BBC中文網)

Guo Yushan (photo by BBC中文網)

Guo is a great person. He found himself in the public eye after his role in rescuing the blind barefoot lawyer Chen Guangcheng became known, but in fact he's done much more than that. His research NGO, the Transition Institute (傳知行), has conducted a lot of good studies on social issues. As the Transition Institute was already shut down by the authorities, and Guo is now under "qubao houshen", it’s unlikely his research work can continue.