China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

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

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

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

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

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

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

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

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

By Jerome A. Cohen

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

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

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

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

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

Chinese police's recent re-detention of Swedish Citizen Gui Minhai: What’s the story?

By Jerome A. Cohen

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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.

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.

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.

The reality of attempting to defend human rights in China

Zhu Shengwu. Credit: China Change

This sad tale reported by China Change (link here) offers vivid insight into the reality of attempting to defend human rights in China. The story of young lawyer Zhu Shengwu, who started as a commercial lawyer but whose exposure to injustice led him to professional suicide, is really the story of two other lawyers as well. It is good to know that the famous defender Pu Zhiqiang, despite disbarment and living under the coercion of a three-year suspended prison sentence, still manages to be heard from on occasion in his own clever way. And his recollection of Su Bo, the idealistic human rights firebrand of Peking University law students in the heady days before June 4 who is now an instrument of oppression as head of the local Lawyers Association, makes one want to cry and cry out. 

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.

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

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.

Profound implications of the ruling of Taiwan’s Constitutional Court in favor of same-sex marriage

Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)

Taiwan’s Constitutional Court issued a groundbreaking decision yesterday in favor of same-sex marriage (the decision, its summary and an English press release prepared by the Court can be found here).

This decision will have profound implications in many respects, as others have recognized in various fora. Domestically in Taiwan it will spur the Executive and the Legislature to fulfill their constitutional responsibilities within the two-year time frame prescribed by the Court. The Constitutional Court has done this before in controversial situations. For example, as Margaret Lewis and I described in our 2013 book (CHALLENGE TO CHINA:HOW TAIWAN ABOLISHED ITS VERSION OF RE-EDUCATION THROUGH LABOR), the Court’s decisions played the critical role in ending the power of Taiwan’s police arbitrarily to imprison “hooligans” outside the regular judicial system. The Court stimulated the Executive and the Legislature to finally end an abuse similar to “laojiao” on the Mainland.

Yesterday's much more controversial decision reminds me of the landmark US Supreme Court decision Brown v. Board of Education that in 1954 led a divided American society away from segregated schools and from other previously legal segregation practices. Yesterday's decision will generate backlash in Taiwan and elsewhere but it is a major step toward social progress everywhere.

Of course, the decision vividly highlights the sad contrast between Taiwan’s version of the rule of law, democracy and human rights and the Mainland’s, which has become ever more repressive. I think the decision’s positive impact on China as well as other countries far outweighs any modest additional, short-run, adverse impact on cross-strait relations. The Mainland’s strict censorship and manipulation of the media will not entirely prevent people from knowing about the decision and its meaning. Although many in the Mainland may not welcome the decision, China traditionally has been more open to same sex relations than more Christian-dominated countries, and the more educated classes will appreciate not only the wisdom and fairness of the decision on the merits but also the significance of the role of the judiciary in a genuine government under law country. It is a sobering fact that 68 years after its establishment the People’s Republic of China does not have a special constitutional court, does not permit its regular courts to apply constitutional protections and has failed to make significant use of the Standing Committee of the National People’s Congress for this purpose, even though the SCNPC is the institution authorized to apply the PRC constitution.

More broadly, this decision is a shot in the arm for Taiwan’s standing in the world, reminding people of the immense progress it has made, although a Chinese civilization, in instituting legal protection for human rights, judicial independence, separation of powers and all the other “Western values” openly condemned on the Mainland at present. Until now Taiwan’s establishment and implementation of the major international human rights covenants has been too little recognized abroad. Yet its national security and survival depend on the willingness of the United States, Japan and other democratic countries to continue to guarantee it protection against the increasing threat of military action by China, and that willingness will turn in large part on the extent to which those countries are aware of Taiwan’s accomplishments in achieving political freedoms.

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.

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)

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.

Review of Taiwan's implementation of the two major UN human rights covenants

Photo credit: Taiwan's Presidential Office

The week January 15 to 20 was a busy week in Taiwan for our ten-member committee of international human rights specialists who were invited by the ROC Government to review its progress in implementing the two major UN human rights covenants.

This was the second such review, the first having been in 2013. It was an impressive exercise and culminated in a stimulating lunch with ROC President Ms. Ing-wen TSAI. After lunch my wife, Joan Lebold Cohen, who specializes in Asian art history and photography, my very able colleague, Ms. Yu-jie CHEN, who just received her doctorate in law from NYU, and I spent another hour exchanging ideas with President Tsai. The Concluding Observations and Recommendations of the Second Review Committee can be found here.