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.

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

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

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

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

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

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

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

China’s seizure of underwater US drone and implications

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

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

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

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

International Human Rights Day

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

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

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

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

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

Youtube:

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

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

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

North Korea policy: how about some imaginative variant thinking?

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

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

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

Photo: China Human Rights Lawyers Concern Group

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Conversation With Ai Weiwei

Here are the video and transcript of a conversation I had yesterday at the Council on Foreign Relations in New York with the courageous and outspoken Chinese artist/activist AI Weiwei.

GlaxoSmithKline’s corruption in China

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

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

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

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

Working Towards Peace in the South China Sea

For those who follow South China Sea issues, I gave a talk on Oct. 18 at the National Committee on US-China Relations on " Working Towards Peace in the South China Sea," discussing the ramifications of the present situation in the region and offering some policy recommendations. Here is the video.

Streaming of Chinese court trials

Xinhua just  reported that China has launched a website broadcasting court trials. Live streaming of court hearings, despite its obvious restrictions and selectivity, is a good step forward in expanding public awareness of China’s courts and of various legal principles and their application in daily life. This is part of an effort to increase popular respect for the judicial process, which has been widely mistrusted.

This welcome initiative should be understood together with the recent effort to increase the prestige of judges and prosecutors by winnowing out many official legal staff who bear the label of “judge” or “prosecutor” but who do not have the competence or seriousness to carry out the work expected. The idea is to create a judicial elite separate from the regular bureaucracy and to try to reduce the roles of corruption, “guanxi” (relationships), local protectionism and local Party and government influence upon court decisions.

Streaming will not only challenge prosecutors and judges to look and do better in action but also lawyers. It will be interesting, for example, if lawyers in the new spotlight will learn to cross-examine witnesses in court. But that will require changes in the system requiring witnesses to show up in court rather than merely give written testimony that allows them to escape cross-examination, which has often been called the greatest instrument for the discovery of truth in a legal system. 

P.S. I don’t believe the court hearing reported here ("China jails women's rights campaigner after torture in detention") was selected for live streaming!    

Peter Dutton's commentary on the significance of China’s response to the South China Sea arbitration award

Here is a brief comment worth reading on the PRC's response to the recent UNCLOS arbitration award. As Peter makes clear, the significance of China's response goes far beyond the specific dispute and raises the question of the reliability of any PRC international legal commitment including its economic pledges relating to One Belt One Road and Asian Infrastructure Investment Bank.

One hopes that the PRC will begin to recover from its major blunder through the quiet discussions that have begun with the Philippines. Previous PRC leaders have shown the capacity to modify unwise attitudes toward international law. Whether the current leadership is up to the task is probably doubtful but may depend on the extent to which other influential nations seek to demonstrate the undesirable consequences of Beijing's stance.

One important topic that has not received enough attention is where Taiwan fits into the equation. Unlike the PRC, the ROC was eager to take part in the Philippine arbitration proceedings. The UNCLOS tribunal, well aware that its decision on the merits of the many sensitive issues at stake would infuriate Beijing, went out of its way to avoid further offending the PRC in its handling of Taiwan's efforts to be heard. Taiwan could not take part in the proceedings, and the tribunal even refused to allow Taiwan observer status at the hearings, which had been granted to several interested Southeast Asian states. Moreover, the tribunal's opinion referred to Taiwan in a way that would not offend Beijing (but was sure to offend Taiwan). To its credit, and perhaps in order to please Beijing, the tribunal, while not formally accepting the strong "friend of the court" brief submitted by Taiwan's leading NGO - the Chinese (Taiwan) Society of International Law, on whether Taiping island (Itu Aba), the largest of the Spratlys and the only one occupied by Taiwan, is entitled to an Economic Exclusive Zone, did make the brief available to the parties and surely considered it before disagreeing with Taiwan's (and Beijing's) position. Taiwan's new government is now struggling with the dilemmas of how to respond to the tribunal's decision, which offended it not only in substance but also in procedure.