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!

"Just Fifteen Books" on China? A historic reading list!

By Jerome A. Cohen

I just discovered an essay that I much enjoyed writing done at the request of Harvard Magazine in 1974—Just Fifteen Books on China?. Apart from an inexplicable blooper over the name of author Hsu–not Kai, I can live with almost every word even today. The list, while compiled over forty years ago, would still be of interest to those who have made new year resolutions to read more books on China. Of course, now there are many more good books, which is a testament to how much this field has grown and the world changed. Belated Happy New Year!

Just Fifteen Books on China?

"It would be a delightful summer diversion. What China-watcher wouldn’t relish an assignment to select fifteen good books to introduce general readers to contemporary China? It promised to be easy. After all, I had recently reviewed the state of the art while my wife and I were working on our last book, China Today (Harvard Magazine, February 1975, Page 31). And the assignment would be worthwhile, spurring me to catch up on a flurry of new books. I had visions of days spent reading in the hammock or on the beach, and the evenings devoted to the new parlor game of challenging fellow Sinologues to name their fifteen favorites…"

Click here to read the rest of the article.

(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.

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.

Chinese students adjusting to American campus

By Jerome A. Cohen

The New York Times had a good op-ed over last week, “Chinese, Studying in America, and Struggling.” This is such an important topic that raises so many issues that we all confront today as teachers and have earlier confronted as students, whether in China or elsewhere.

I was an early Fulbrighter to France in 1951-52, a time when many French university students were hostile to Americans (Yankee, Go Home was a popular slogan) and some French professors, not only “leftists”, were not welcoming (One day in Lyon I greeted my professor of French history on the street and he said: “Mr. Cohen, I will forgive you since you are a foreigner unfamiliar with French customs, but in France a student does not accost a professor on the street”. I especially liked his use of the word “accost”. I used to tell this story at our Harvard opening day welcome to foreign LLM students in order to alert them to our differing custom!)

Chinese law students are generally a bit more mature than undergrads but obviously also have adjustment difficulties, many of them similar to those of other foreign students not native speakers of the English language, especially those from elsewhere in East Asia, and the more time we as educators can spend with them outside of class the better.

But I may add to the depression of some of the graduate students from China, not only in my classes but also when talking at Yale, Harvard and other schools, by giving frank assessments of the legal situation in China. I really hope to inspire them but see their deflated faces as I leave the room, which saddens me. They don’t argue back, perhaps because of my age, the way some other foreign students and American scholars occasionally do and are probably understandably conflicted and uncertain.

In class their silence often presents a challenge for their American instructors, particularly in seminars dependent on student participation. When I co-teach I always admire the greater success my faculty colleague seems to have in gradually stimulating Chinese participation. I find that Chinese women students generally— not always—are more reluctant to speak up than men, even though they are at least just as capable.

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.

The sentencing of Chinese human rights lawyer Jiang Tianyong: a tragic farce

Jiang Tianyong was sentenced to two years on the charge of “inciting subversion of state power.” His prosecution/persecution has been a tragic farce from the day he was detained a year ago. 

Jiang was a primary school teacher who decided that he could do more for his country if he studied law and learned how to defend human rights. After doing so he became a partner of the dynamic human rights lawyer Li Heping, and I met them both at a lunch meeting with their client, the blind “barefoot lawyer” Chen Guangcheng, just, a couple of hours before Chen was literally seized by Shandong police who came to Beijing without notifying their local counterparts. Chen was about to meet with the then Washington Post reporter Phil Pan.

Li Heping was prosecuted earlier than Jiang, was convicted and served terrible prison time before being “released” in a now typical NRR (“non-release release”) and is now inaccessible while recovering at home.

Li’s younger brother, Li Chunfu, also became a human rights lawyer and met the same fate as the older brother on whom he had modeled his career. Li Chun-fu was “released” from prison before his brother and returned home a virtual vegetable suffering from severe mental illness induced by his prison experience, where he had been forced to take debilitating drugs in the guise of (un)necessary medicine for non-existent illness.

Jiang Tianyong, despite disbarment, was able to elude formal detention for a longer period than the other lawyers and still be helpful to detained human rights advocates and their oppressed families. Jiang knew how to work within the limits for a long time. I recall inviting him to dinner one night in Beijing before the 709 campaign began. He said “I’ll have to call you back to confirm in half an hour, since I have to go outside and ask my security police minder for permission”. He later called back and said that the minder told him “If you want to go to the office tomorrow, you should not go to the dinner.” So instead he sent an assistant. This was an illustration of the restrictions on many human rights activists that might be termed PDD (“pre-detention detention”)!

Another, more ordinary pre-detention restriction of Jiang’s freedom was earlier illustrated when Chen Guangcheng, after his forced return to his rural home, was subjected to severe house arrest. Chen telephoned me in Beijing and asked me to persuade a lawyer to travel to his Shandong village that night in an effort to break his illegal confinement. I telephoned Jiang Tianyong, who agreed to book a train ticket. He later called me and said that the police, having listened to our phone conversation, had forbidden him from making the trip. At least that spared Jiang the beating by village thugs who, under police guidance, always used violence to prevent outside contact with Chen.

Dialogue with Cardinal Joseph Zen of Hong Kong

On Tuesday, October 3, 2017, retired Cardinal Joseph Zen of Hong Kong came to NYU Law School to take part in the weekly dialogue on Asian law and society of the US-Asia Law Institute. For over an hour, in an informative and lively session, Cardinal Zen answered questions from me and other USALI colleagues and students concerning the plight of the 12 million Catholics in Mainland China and the long-running negotiations over the normalization of relations between the Vatican and the People’s Republic of China.

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.

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

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!

Liu Xiaobo’s death

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.

Liu Xiaobo’s passing and China’s human rights violations

Foreign governments have the right to complain about the People’s Republic of China’s denial of internationally-guaranteed human rights to the Chinese people. The PRC, for example, in the exercise of its vaunted sovereignty, chose to limit its sovereignty by ratifying the UN Convention against Torture that spells out in detail all the kinds of conduct that constitute internationally forbidden torture, mental as well as physical. The PRC’s mistreatment of its many political dissidents plainly violates this Convention in many respects.

The case of Liu Xiaobo’s widow, Ms. Liu Xia, is an obvious example of the PRC subjecting to forbidden torture someone who has not even been accused of a crime or even legally detained. As to her husband, we don’t know the facts of his final imprisonment and the extent to which he was denied adequate medical treatment but it is widely suspected that the authorities at least demonstrated indifference to his increasingly dangerous medical condition and that its mistreatment of Liu Xiaobo could well be deemed a violation of the Convention against Torture.

Of course, Liu Xiaobo’s criminal conviction was based on the regime’s suppression of his freedom of speech and the violations of criminal justice protections that marked his prosecution. Both of these categories of rights are protected by the International Covenant on Civil and Political Rights, which the PRC has signed but not yet ratified. The PRC has, however, ratified the International Covenant on Economic, Social and Cultural Rights, which requires it to respect the freedoms of expression denied to Liu Xiaobo. It is nonsense for the PRC, on the one hand, to commit itself to international rights protections in the exercise of its sovereignty and then, on the other, to say that holding it to such commitments is a violation of its sovereignty.

Not only should foreign governments condemn China for its violations of human rights that led to Liu Xiaobo’s imprisonment and death, but they should also press the Chinese government to give Liu Xia, who has been put under severe illegal house arrest for the past seven years, the option to leave China. If she chooses to remain in China, the Chinese government should, in accordance with its international human rights obligations, immediately lift all the oppressive conditions that she has suffered.

However, the chance that Liu Xia will be allowed to leave China or have genuine freedom at home in the near future may be slim. The Chinese regime was obviously extremely reluctant to release Liu Xiabo, whether at home or abroad, because of understandable fear of what he would choose as his final words. At home, if he had been allowed to leave the hospital, he would have been kept under strict guard to prevent media contacts, as so many other human rights victims currently are. This is what I call “Non-release ‘release’”.  Release abroad would have permitted him to indict the Chinese Communist Party dictatorship before the world, unless the Party insisted on keeping Liu Xia and her brother as hostages.

The PRC is also very sensitive about being seen to allow what it calls “foreign interference with its judicial sovereignty”. As noted above, however, this is a spurious argument in those cases where it has exercised its sovereignty to commit itself to the international standards it has violated.

While it is easy to conclude, given the current relentless repression, that the Chinese Communist Party cares little about what the world thinks of it, I believe that it actually cares desperately, even today. That’s one of the reasons why it confined Liu Xiaobo, despite the great “soft power” cost in doing so. Allowing him to be free would have been even more costly in ”soft power” terms because of his withering criticism. Moreover, it would have allowed him to “subvert” its dictatorship by challenging it on democratic grounds before the Chinese public.

Liu Xiaobo and Liu Xia, cartoon by Badiucao

Liu Xiaobo’s fate: the painful choice of exile or extermination

Liu Xiaobo and his wife Liu Xia at a hospital in China; source: Associated Press

The world has been watching whether Chinese Nobel laureate Liu Xiaobo, who has been diagnosed with last-stage liver cancer, will regain some final moments of freedom in order to receive adequate medical treatment abroad. His friend, Liao Yiwu, wrote a moving tribute (Chinese here) during the weekend, stressing Liu’s wish to leave China with his wife and brother-in-law for medical treatment, preferably in Germany with the U.S. as another possible destination.

Liao Yiwu himself is a splendid writer and also a poet. He is alive and active today because, after enduring harsh punishment in China, he made the decision to go into exile in Germany and, like the Chinese who assembled in Washington, DC and other places outside the Mainland July 9th to mark the second anniversary of the start of Xi Jinping’s continuing 709 purge of human rights advocates, he is free to express his views.

The dissimilar fates of Liao and Liu Xiaobo illustrate the painful choice (if they have that choice) that has always confronted civil libertarians from dictatorial regimes – exile or extermination. Ninoy Aquino, Kim Dae-jung, Annette Lu, Ai Weiwei , Chen Guangcheng and so many others have earned our sympathy and support, whatever their ultimate decision.

Many foreign scholars have agonized with and advised those who have had to confront this decision. The 1979 prosecution of Annette Lu in Taiwan under the KMT caused me to write a very long piece in the Wall St Journal, Asia – “A Taiwan Dissident’s Long Road to Prison” – describing the dilemma in particular of foreign students who choose to strengthen their human rights commitments by studying in democratic countries and then face the dilemma of whether and when to return home to dangerous dictatorships.

When on July 15 legal scholar/activist Xu Zhiyong is released from Chinese prison, I hope he will have the choice whether to stay in China or go abroad for a time. It is far more likely that Xi Jinping will decide to continue Xu’s confinement by other means via what should be called “the Non-Release Release” (NRR) that currently keeps so many supposedly “free” ex-human rights prisoners and their families effectively under political restraints.

On a lighter note, Liao Yiwu’s message reminds me of a passionate lecture he gave in Chinese to a packed house at the New School in NY about five years ago during his first American visit. The first questioner asked him: “What do you think of the U.S,?” Liao answered: “ I’ve only been here four days and I’ve spent them all in Flushing.” Undeterred, the questioner said: “So what do you think of Flushing?” Liao flashed a smile and responded: “That’s easy. Flushing is China without Communism!”

Second Anniversary of the 709 Crackdown on Chinese Lawyers and Activists

Today is the second anniversary of China’s “709 crackdown” on human rights lawyers and activists. ChinaChange published a statement by the The China Human Rights Lawyers Group here.

This statement is sad but important (I almost mistyped “impotent”). It is noteworthy in many respects but two stand out to me. The first is an extensive note of bitterness not only, as usual, against the Party and government responsible for this obscenity but also against the legal scholars, professors and lawyers in and out of government who have lent their cooperation or blessings to the repression.

The second is the absence of any optimistic prediction that, at least in the near future, the numbers of human rights lawyers will be expanding in response to the effort to suppress them.  This is a grim, realistic assessment of the situation. Those of us lucky enough to be on the outside can only hope that the programs being held today to commemorate 709 will stimulate greater support for this gallant, besieged group and their families, inside as well as outside China. I share the statement’s confidence that, in the long run, the Chinese pendulum will again swing in the direction of freedom and that the historic role of the human rights lawyers will be vindicated. 

Source: China Human Rights Lawyers Concern Group, July 6, 2017

Establish Yourself at Thirty: My Decision to Study China's Legal System in 1960

This is the first chapter that I have written for my memoirs. It has just been published in the Chinese (Taiwan) Yearbook of International Law and Affairs (vol. 33). It tries to answer the question I am most often asked: why and how did you decide to take up what was in 1960 an extremely arcane, indeed an unknown, subject. It also necessarily seeks to provide a picture of the state of Sino-American relations at that time and of American attitudes toward and understanding of what was still called “Red China”. I will eventually give an account of my roots and development prior to 1960 but it seemed most appropriate to start with the decision to study China.

China’s state compensation for illegal detention

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!

What Ivanka Trump’s company should do for labor conditions in Chinese factories making the brand’s shoes

Here’s a good report by Keith Bradsher looking into labor conditions in a Chinese factory making Ivanka Trump shoes, a sequel to his report on China’s detention of labor activists who went undercover at Chinese factories making shoes for Ms. Trump and other brands.

For the detained labor activists striving to improve working conditions, Ivanka Trump’s company has a moral responsibility to speak out. It would be helpful to the situation of the activists if the company would issue a statement expressing deep concern over their detention. That alone might bring about their release. In any event it would stimulate local police to treat the detained better than otherwise; detention house conditions in China are often appalling with a large number of suspects confined in a single cell in an often disgusting and personally dangerous environment. A Trump expression of concern might well result in a faster, more lenient decision about how to deal with the case.The Marc Fisher company at least made a prompt statement promising to inquire into the facts.

Ivanka’s company has a moral responsibility not only to those detained but also to all workers who are exploited by Chinese companies striving to make a profit while competing with rivals to successfully respond to the demands of foreign companies for ever cheaper prices. It would also be good public relations for Ivanka to take the lead in supporting more humane working conditions. She should not see the human rights monitors as antagonists but as collaborators in the difficult effort to assure improved labor conditions.

Collective Family Punishment - Challenge and Response

Greg Baker/Agence France-Presse — Getty Images

New York Times’ Chris Buckley and Didi Kirsten Tatlow wrote a good story a few days ago about the resistance and resilience of the wives of Chinese human rights lawyers who have been detained.

These recent spousal responses do represent something new because they are frequently collective or joint rather than individual actions as occasionally occurred in the past and also because the Internet and social media offer opportunities for protest that were not previously available.

Moreover, each such spousal protest stimulates others, even in Taiwan. The Mainland protests of Xie Yang’s wife and Li Heping’s wife, for example, seem to have inspired the feisty wife of Li Ming-che, the Taiwan activist who has been detained in China since March 19.

Another new aspect of current protests is a greater willingness of the spouses to go to Washington in an effort to light fires under the Congress and the Executive Branch. Families of jailed dissidents and their jailed lawyers have long fled to the U.S. for refuge, as some oppressed lawyers have also, but, prior to the 2015 crackdown, they did not generally stir up protests here. And recent protests here have not been limited to Washington but have also taken place in New York and other cities, with college-age children often joining mothers whose English is not fluent.

So one might say that Xi Jinping’s resort to collective family punishments, which were formally abolished at the end of the Manchu dynasty, has evoked a collective family response.

Two important developments in China-North Korea relations and another significant DPRK human rights event

Increasing tensions in the North have led to two new under-discussed developments worth noting. The Chinese Embassy in Pyongyang has recently urged its citizens in the DPRK to return home because of the increased danger of attack. According to the May 2 Korea Times, one Chinese who took the warning seriously and returned home reportedly said that most Chinese in the capital were ignoring the message because the atmosphere there seemed peaceful despite the threats emitted in the global crisis. This is the first time such a warning had been issued, according to this informant.

Even more interesting is the April 26 report in Seoul’s “Daily NK” that the government has ordered the police, including the secret police, to “refrain from warrantless arrests” and house searches because such police crackdowns are not in accord with the intentions of the Party and estrange the people from the Party. People reportedly have recently shown intense resistance to the formerly unlimited exercise of police power. There is speculation that the authorities, in anticipation of possible Chinese cessation of oil supplies, may be trying to prevent internal unrest. But this restriction of the power of the secret police has supposedly had an adverse effect on the morale of the agents of the Ministry of State Security since some of them have been purged for apparently not heeding the restrictions out of “excessive loyalty” to Kim Jung-Un.

I have always wondered about how relatively unimportant the problem of illegal search and seizure has seemed to the Chinese people in comparison with other violations by police. 

Another human rights event worth noting is the DPRK’s first ever welcome to a Special Rapporteur appointed by the UN Human Rights Council. The Special Rapporteur on the Rights of Persons with Disabilities arrived in North Korea today, May 2, for a six-day tour.

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)

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.

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.