What thoughts should be inspired by the prosecution of Meng Hongwei, the former Interpol chief from China?

By Jerome A. Cohen

The Wall Street Journal had a report on the prosecution of Meng Hongwei a few days ago (“Former Interpol Chief Admits to Taking Bribes, Chinese Court Says”). Here is someone who allegedly received over US$ 2 million in bribes from 2005 to 2017 and nevertheless was selected by the People’s Republic of China in 2016 to be one of its most prestigious representatives abroad. So many questions should be raised about this case.

Were Meng’s alleged misdeeds, committed over a decade, not known at the time of his selection? How could he have previously risen to the top of his PRC institution, the Ministry of Public Security itself, without having been vetted and discovered through its formidable and frightening investigative powers? Were his misdeeds known and not considered troublesome because so common that they did not go beyond the bounds of acceptable behavior? Were they held in abeyance in order to guarantee his compliance with Party demands while at Interpol? Was it inability or refusal to execute Party demands at Interpol that led to his disappearance and prosecution?

Why did Meng return to Beijing when he could have become one of the very people the PRC has unsuccessfully sought to have Interpol help forcibly return to China? Although France has an extradition treaty with the PRC, Meng could easily have gone elsewhere. Moreover, France has signaled that it will not extradite his wife and that she warrants political asylum.

What about Meng’s prosecution? Why did the PRC choose to prosecute him and expose itself to greater international embarrassment when it could have simply kept him “disappeared” like some other sensitive “offenders” who are simply not heard from after their return to the Motherland, voluntarily or not, and who are soon forgotten abroad as well as at home?

Will the court’s forthcoming judgment reveal the details of Meng’s offenses? Will it reveal the identity of the lawyer reportedly assigned to him and the extent of the lawyer’s role both during the many months of presumably incommunicado detention Meng suffered before being brought to trial and during the trial? Did government witnesses testify at trial or were their statements merely introduced in writing? If any appeared in court, were they subject to cross-examination? Was the defense allowed to present its own witnesses in court or even gather evidence before the trial began? Will the court’s judgment be made public as ordinarily required even though the trial was closed to the public? Will Meng be allowed to appeal his anticipated conviction? Will any relatives or lawyers be allowed to visit him once he is transferred from detention to prison at the close of his case?

Will the outside world, the Chinese people or even the overwhelming majority of the Communist Party ever know the answers to these questions?

My take on Hong Kong's extradition bill

By Jerome A. Cohen

I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.

Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it

Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong.

[New Article] Law's Relation to Political Power in China: A Backward Transition

By Jerome A. Cohen 

I've just uploaded on my SSRN my latest article—"Law's Relation to Political Power in China: A Backward Transition," which is slated to appear in Social Research: An International Quarterly in the Spring of 2019.

In the article, I examine China's legal progress and regress in recent years. While noting certain legislative and judicial advances, I discuss the continuing reality of the unchecked powers of the police, the plight of Chinese human rights lawyers and the newly established National Supervision Commission that significantly expands the Chinese Communist Party’s incommunicado detention system to all deemed to be government officials.  

I'm pasting the introduction below. Comments are welcome!

Law's Relation to Political Power in China: A Backward Transition

Social Research: An International Quarterly, forthcoming 2019

Jerome A. Cohen New York University School of Law

Introduction

By and large, for the past dozen years, China’s professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earthshaking impact of Donald Trump’s election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China—with more than four times the population of the United States and almost as much economic strength—respects the “rule of law” at home and abroad.

This essay, building on the excellent analysis by Jean-Philippe Béja (Social Research: An International Quarterly, this issue) updating his earlier overview of the political situation in the Central Realm, will focus on China’s domestic legal situation. In doing so, we must be fully aware that the People’s Republic of China (PRC)—an increasingly oppressive Marxist-Leninist dictatorship—denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.

Keywords: China, rule of law, legal reforms, human rights lawyers, police powers, National Supervision Commission

China’s ADD: Arbitrary Detention Deficit

By Jerome A. Cohen 

Cao Shunli, Courtesy of openDemocracy

Cao Shunli, Courtesy of openDemocracy

Year after year Chinese Human Rights Defenders has done a marvelous job of flagging the PRC’s human rights violations. This most recent report, 5 Years After Death in Custody of Cao Shunli, Human Rights Defenders in China Continue to Face Same Pattern of Abuse, taking off from the anniversary of one of many infamous instances of arbitrary detention and coming on the eve of next week’s UN Human Rights Council session (the Ides of March!), is long but definitely worth the time. 

Canada’s just begun extradition proceeding in Vancouver illustrates what the antidote to arbitrary detention should be — a fair and public judicial hearing. The embattled Prime Minister Trudeau was surely right in condemning the PRC for its arbitrary detention of the two Canadians in retaliation for Canada’s civilized legal process. The PRC and every other country that engages in systemic arbitrary detention give new definition to ADD, which should stand for Arbitrary Detention Deficit! For this the PRC should be brought to account in the media as well as in international legal institutions. In our interdependent world, extradition and its functional kin, whatever the label employed such as rendition, repatriation, deportation, removal etc, is intimately related in many ways to ADD, as currently illustrated in the PRC’s relations with not only Canada but also the United States, Sweden, Hong Kong, Taiwan and other jurisdictions. (See my article co-authored with Yu-Jie Chen on how the two questions are closely connected in the context of Taiwan-China cooperation as an example.)

Hong Kong, China, “Rendition” and Human Rights

By Jerome A. Cohen

Officials in Hong Kong are now planning to allow “rendition” (the Hong Kong-Mainland equivalent of  international “extradition”) of criminals to China. This would be a major change and a development that concerns Hong Kong’s special human rights protections.

The United States, Canada, the United Kingdom and Australia have not finalized extradition treaties with China largely because of their concerns about the pervasive problems in China’s criminal justice system, including arbitrary detention, torture and other cruel treatment, coerced confessions, political prosecutions, unfair trials and capital punishment, especially for nonviolent crimes. For similar reasons Hong Kong—China’s Special Administrative Region—has not been able to conclude a “rendition” agreement with the PRC Central Government.

Hong Kong’s current plan to finally move towards a full rendition agreement with the Mainland must not violate the human rights protections that it acquired while still a UK colony under the International Covenant on Civil and Political Rights. The PRC promised to honor these protections after the former colony’s return to the Motherland. They include the non-refoulement principle, which requires governments not to expel any person to another territory if this would result in exposing him to the danger of arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment (and other serious violations of human rights, including, notably, expected violations of the right to a fair trial).   

My colleague Yu-Jie Chen and I have written an article on the human rights problems in Taiwan’s cross-strait “repatriation” agreement (also similar to an extradition arrangement but, like “rendition”, applicable to relations between governments of different parts of China) with Mainland China (see Yu-Jie Chen & Jerome Cohen, "China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?," Hong Kong Law Journal (2018), SSRN link here). The lessons learned from Taiwan’s experience with the Mainland should be of interest to those who are considering whether Hong Kong should strike a“rendition” deal to send fugitives to suffer the fate of those subjected to Mainland justice. Analogies to the protections provided in conventional international extradition treaties also must be considered.

 

Conviction of Chinese human rights lawyer Wang Quanzhang

By Jerome A. Cohen

Chinese human rights lawyer Wang Quanzhang has been sentenced to four and a half years in prison for subversion. But, since we have not yet seen the court’s judgment and don’t know the details of his long detention, we cannot be certain what this sentence means.

Wang has been held in pre-trial and post-trial detention since July 2015, and detention time served is usually deducted from the sentence (with one-to-one credit for the days of regular detention and only half a credit for the days during which he was held in “residential surveillance at a designated location” or RSDL). This probably means that Wang can be expected to be released in April 2020 and perhaps even earlier, depending on how long he was confined in RSDL rather than regular criminal detention.  BUT the court may have deviated from the practice of giving credit for time already served prior to sentence, which would mean no release until mid-2023!

In light of the harsh sentences rendered to some other lawyers punished in the 709 crackdown, IF the court has followed the standard sentencing practice, it appears that the Chinese Communist Party/government has gone relatively (and unexpectedly) light on Wang. So many factors go into the sentencing decision. How has he behaved? What shape is he in? Has he made any apparently sincere commitment to abide by the secret promises usually extracted from a convicted person to be a “good boy” upon release? Has the Party decided to look lenient because of the intense world interest, the abusive and unusually lengthy pre-sentence detention Wang suffered and the current widespread international condemnation of China for its abominable misbehavior toward the three Canadians who are being punished in retaliation for Canada’s handling of America’s extradition request of the Huawei executive? 

Pressures on Wang not to appeal must be very great. Some convicted defendants decline to appeal because they know that the appeal process will not result in a favorable outcome and only extends the time they will remain confined in conditions that are often much more uncomfortable than the prison cell that awaits them once the appellate process has run its course. To be sure, we don’t know in what kind of shape Wang is mentally and physically and whether he has been subjected to any of the horrific “medical” treatment designed to break the will of so many political defendants. He may not be in condition to carefully weigh the wisdom of an appeal. If he is still capable of rational decision and retains his courageous determination, he may wish to appeal simply to avoid the inference that he accepts the decision as a correct and just one.

In any event it should be noted that only giving half sentencing credit for time served in RSDL is grossly unfair, since conditions tend to be more coercive than if the suspect is detained in an ordinary jail, even though an ordinary detention cell can be extremely uncomfortable. RSDL is not “house arrest” in one’s own home but in that of the secret police. I think double credit should be given for every day of RSDL until that vile detention practice is abolished, as it should be!!

The Code of Criminal Procedure limits RSDL to a three-month term that can be renewed once. Yet I have long suspected that police have meted out more than the maximum six-months RSDL term on some occasions by purporting to charge the hapless suspect with another “national security” offense that supposedly deserves their investigation. This may have occurred in the Wang case and perhaps the delay in issuing the judgment is related to an attempt to obscure that situation.

Wang Quanzhang, wife and son (Wang Quanxiu via AP)

U.S. should impose Magnitsky Act sanctions against China’s human rights violators

Jerome A. Cohen

Amnesty has just issued a plea for urgent action on behalf of what remains of lawyer Jiang Tianyong. Amnesty’s announcement seems understated despite the large cap title. Jiang is exposed to more than the “imminent risk of torture and other ill-treatments”. He has in actuality long been suffering from such abuse that is designed to break him as a person, to destroy him both mentally and physically. And, as we know from many cases including those of Gao Zhisheng and Wang Quanzhangthis calculated campaign to end China’s human rights lawyering seems to be gradually thinning the ranks of human rights lawyers. The many, sometimes bizarre, procedural violations in Jiang’s case are a reminder of the realities of Chinese justice when it comes to those who challenge the regime. His captors should be investigated on charges of what may well amount to “attempted murder”.

I know Jiang but have never cooperated with Wang Quanzhang, whose case appears to be even more outrageous. After three years of absolute silence about Wang’s fate the Party has reportedly decided to finally bring him to “trial” in the near future but his mental and physical condition are both in doubt, and he has not been allowed to retain his own lawyer but must accept a government-selected one.

Despite Chinese Government maneuvers to gain control over the international human rights institutions and the current relative indifference of the U.S. Government to human rights issues, greater efforts must be made to try to stop the PRC campaign against human rights lawyers. One important, if largely symbolic, response would be for the U.S. to impose Magnitsky Act sanctions against those Chinese officials who are directly responsible for executing this notorious campaign, starting at the top of the Communist Party.

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!

(In)justice with Chinese characteristics: the twinned stories of two human rights activists, Wu Gan and Xie Yang

By Jerome A. Cohen

Wu Gan; source:  China Change .

Wu Gan; source: China Change.

Xie Yang; source:  Changsha Intermediate Court .

Xie Yang; source: Changsha Intermediate Court.

The two Christmas cases of Wu Gan and Xie Yang—victims of China’s 709 Crackdown on human rights activists and lawyers in 2015—demonstrate the continuing importance and benefits of pleading guilty. “Leniency for those who confess, Severity for those who resist.” (坦白从宽,抗拒从严) has been the fundamental maxim of criminal justice in the People’s Republic of China. The Chinese Communist Party (CCP) erected into high public principle what has long quietly been the practice of many legal systems. The insistence on confession characterized Chinese justice centuries before the rise of the CCP and for many reasons.

Confession admits the correctness of the government’s charge and helps to relieve those who administer the system of doubts or feelings of guilt they might harbor. Confession reinforces prevailing ideology. It also avoids the embarrassment and risks to administrators that appeals can cause and the delay and administrative costs involved. In China refusal to confess and insistence on appeal are seen to constitute an attack on the prosecution and the government. Confession encourages others to follow suit, and it is viewed as the first step toward the reform of the accused.

Yet how persuasive can any of these factors be when torture is so often the stimulus for confession and everyone knows this? Moreover, at least in non-political cases, the CCP is increasingly concerned about the frequency of wrongful convictions caused by coerced confessions.

The Christmas timing of the two cases is worth noting. There is no doubt the PRC government wants to be thought well of abroad as well as at home, which is why it spends so much on a worldwide system of propaganda and seeks to control the UN and other organizations regarding the PRC’s suppression of human rights. Of course, it prefers not to reveal many abominable acts, which is often possible because of its domination of the media and even social media.

The timing of its repressive human rights acts depends on many factors. Certainly, when it’s possible to manipulate the timing of acts of repression that are likely to be condemned by the world, the PRC is eager to do so in order to reduce publicity and minimize harm to its quest for soft power. The dates of trial hearings and sentencings are one example among many others.

The twinned stories of Wu Gan and Xie Yang may be destined to continue and provide more grist for the mills of those who study the PRC’s expansive and imaginative detention policies. It will be important to see, of course, how long Wu Gan can remain alive and resistant in captivity. It will also be important to see to what extent Xie Yang, having reversed his previous stand under torture, “confessed” on demand and thereby won exemption from further formal imprisonment, will be allowed to resume his former human rights advocacy or, like most of his comrades, remain in what I call “non-release ‘release’”.

The misleading term “house arrest” no longer does justice to the varieties of informal, unauthorized, suffocating restrictions on their freedom that most “released” human rights advocates are suffering. Indeed, many human rights activists suffer such restrictions even before they are formally detained! The PRC has blurred the line between “detention” and “freedom”, giving new meaning to these words.

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.

Wu Gan’s “Trial”—Yet Another Sad Example of China’s Political “Justice”

Wu Gan has been for many years one of the leading and most-admired human rights activists in China. After criminal detention for over two years he will finally be brought to “trial” August 14 in a secret proceeding.

Wu Gan’s pre-trial statement is surely one of the most moving and accurate descriptions I have read of the Chinese government’s manipulation of its legal system to stamp out freedoms of expression. This account of his personal experience encapsulates virtually all the abuses that the Xi Jinping regime has been committing against human rights activists and their courageous lawyers. It is tragic testimony to the pathetic attempts of the Communist Party to drape its oppression in the mantle of “law”. To me the saddest aspects are its reminder of the forced collaboration of China’s judges with its police, prosecutors and Party legal officials in suppressing the constitutionally-prescribed rights and freedoms of the Chinese people.

Wu Gan’s statement ranks with those of China’s greatest martyrs to the cause of democracy, human rights and a genuine rule of law, including the late Liu Xiaobo. It will inspire those few activists inside and outside the country who still dare resist the current onslaught. Unfortunately, because of the regime’s monopolization of the media, its message will not be seen by most Chinese. Nor is it likely to be noticed by much of an outside world distracted by too many crises closer to home.

Wu Gan's pre-trial statement in Chinese, source:  China Change .

Wu Gan's pre-trial statement in Chinese, source: China Change.

Hong Kong Government Seeks Harsher Sentence for Democracy Activists

Left to right: Joshua Wong, Nathan Law and Alex Chow, outside Eastern Court in August 2016. Photo: Sam Tsang/SCMP

Left to right: Joshua Wong, Nathan Law and Alex Chow, outside Eastern Court in August 2016. Photo: Sam Tsang/SCMP

The Hong Kong Government is pressing the judiciary for much harsher sentences for Joshua Wong, Nathan Law and Alex Chow. Immediate imprisonment and 5-year disqualification from office are likely.

The court case against these leading activists has just taken a turn that surprised the accused. The Hong Kong Department of Justice, dissatisfied with the original court sentence to “community service”, appealed for a much harsher, immediate prison sentence. Defendants may now get sentenced to between two and six months by the appellate tribunal. The length of the sentence is crucial not only because of the duration of the physical and mental punishment inflicted but also because a sentence of three or more months will disqualify the convicted from standing for office for the next five years! Hong Kong’s judges are coming under increasing political pressure. The outcome in this appeal will tell us more about their response.

Beijing is going all out to destroy the democracy movement and the Hong Kong courts are increasingly under pressure. Those who haven’t seen the Netflix video “Joshua: Teenager versus Superpower” may want to do so before the outcome, which is imminent. In October Joshua may be marking his 21st birthday in prison!

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!

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.

Death sentence, sense of injustice and public opinion in China

Jia Jinglong

Jia Jinglong

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

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

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

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

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

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