Hong Kong High Court rejects "mask ban" as "unconstitutional" and Beijing reacts instantly!

Jerome A. Cohen

While it’s possible that the statement just issued by the spokesperson of the National People’s Congress Standing Committee’s Legal Work Committee is merely designed to test the reactions in Hong Kong and elsewhere, that could have been done less riskily by Xinhua or various PRC media. This is rather official and seems to forecast NPCSC action invalidating the Hong Kong Court decision, which would be incendiary. It may be designed simply to warn all about what is to come as soon as the NPCSC’s ducks can be placed in order and to soften the severe public shock by anticipating it.

There is the curious final sentence stating that the legal work committee is studying the opinions and proposals put forth by some NPC delegates. This may only mean NPCSC deliberations are underway but it might leave open the way to forestall or avoid an invalidating NPCSC interpretation if reactions to the spokesperson’s announcement are severe enough.

The Hong Kong High Court’s judgment on the mask ban is a splendid example of what it means to put “government under law”

Jerome A. Cohen

Yesterday the Hong Kong High Court declared the Government’s mask ban unconstitutional. Here’s the full text of the judgment.

It is a great and important opinion by the two-judge court of first instance. It is a supreme example of the excellence of the Hong Kong court system and the flesh that it puts on the general bones of the rule of law. It demonstrates “government under law” in a vivid, albeit lengthy, way that is wholly alien to the People’s Republic of China. The reasoning and analysis on display here are a tribute to the Hong Kong Judiciary and to the members of the Bar and the Law Society who facilitated the Court’s remarkable response in so short a time.

Of particular interest are the Court’s references to the International Covenant on Civil and Political Rights, the UN Human Rights Committee and the European Court of Human Rights, although the decision is based on traditional English and Anglo-American legal principles and practices. It is inconceivable that a PRC court might invalidate a formally promulgated government norm on the ground that it constitutes an insufficiently justified infringement on freedoms of expression. Indeed, Chinese courts are not even allowed to consider any Constitutional issues. What a contrast with the Taiwan Constitutional Court that in recent years has done so much to protect political and civil rights!

Important leaks to New York Times on China's policy in Xinjiang

Jerome A. Cohen

 Today’s New York Times reports over 400 pages of internal Chinese documents about the policy and practice regarding Xinjiang’s internment camps. Bravo for Austin, Chris and the NY Times for a superb job.

I previously raised the issue several times whether Xi Jinping —not merely his principal henchman, Chen Quanguo — should, at least in principle, be recognized as the leading Chinese candidate for the application of Magnitsky Act sanctions by the USG. Here is persuasive supporting evidence. We have always known where the buck stops, but this is ample confirmation.

The documents also confirm how irrelevant the formal criminal justice system is in the People’s Republic of China for most cases involving people — one should say “enemies” rather than “people” — suspected of impure political conduct or even thoughts. The documents, to the extent a quick perusal permits, apparently tell little about the extent to which the formal criminal process is actually used in Xinjiang. We know that it has often been used there to handle the most serious cases, but the majority of detained persons seem to be victimized by the elaborate system of “non-criminal” administrative detentions that the PRC has perfected to an art form in various ways since the 1950s and that is mentioned here. Can one say that “re-education through labor” (RETL) was really abolished in 2013? As Maggie Lewis and I anticipated at the time, it has continued to rear its ugly head in many ways and names throughout the country.

Also note the reference to the continuing need for restrictive “transformation” education even after the hapless detainees are formally released, further evidence of what I call the non-release “release” (NRR) that has increasingly marked both criminal and administrative punishments throughout the PRC under Xi Jinping.

Time for Citizens to Save Hong Kong

By Jerome A. Cohen

I've just published an op-ed in South China Morning Post, in which I argue that Hong Kong urgently needs an independent investigation commission to prevent an even more catastrophic crisis. Community leaders in Hong Kong should take the initiative to set up such an institution and to persuade the Hong Kong government to empower it with necessary powers for effective investigation. They must do so before it's too late. Time is running out.      

Hong Kong Human Rights and Democracy Act: Why Should Americans care?

By Jerome A. Cohen

We live by symbols, and enactment of the Hong Kong Human Rights and Democracy Act would be a strong expression of American support for the protesters in Hong Kong. The United States Government is limited in its capacity to influence events in Hong Kong. We cannot go to war to “save” Hong Kong’s democratic protesters, but adoption of this new law would be one of several peaceful steps that the U.S. Government can take to deter the PRC from further oppression in Hong Kong.

Of course, it would be a sad step if the U.S. Government ever had to cancel Hong Kong’s special status, but the newly-authorized capacity to do so would be a powerful incentive for the PRC not to take steps to further shrink Hong Kong’s declining autonomy. Hong Kong’s current special privileged status rests upon the assumption that it enjoys a high degree of autonomy, as solemnly promised by the PRC in the Joint Declaration with the UK and the PRC’s Basic Law for Hong Kong.

If it does not, the basis for the special treatment disappears. I believe the President is likely to sign the bill, which gives him broad discretion in how to apply it. If he refuses, the Congress will override his veto. He would then be under great political pressure to implement its provisions, however cautiously, and Congress itself, of course, will have continuing freedom to react.

Harvard Book Event: Taiwan and International Human Rights

I'm delighted to announce the publication of a new edited volume, Taiwan and International Human Rights: A Story of Transformation. I admire the hard work of my co-editors and dear friends, Professors Bill Alford of Harvard and LO Chang-fa, former Taiwan Constitutional Court Justice and National Taiwan University Law Dean, that made this book possible.

It's a blockbuster that meets the weight test and covers many important topics of Taiwan's progress and challenges in human rights, offering vivid contrasts with China. Thanks to Bill, the Harvard Law School Library has just hosted an impressive event for the book. The full program is available on Youtube here. We have also held stimulating events at NYU’s US-Asia Law Institute and the Council on Foreign Relations in NY.

PRC Ministry of Foreign Affairs spokesperson should read human rights treaties China has ratified

PRC Ministry of Foreign Affairs spokesperson should read Human rights treaties China has ratified

By Jerome A. Cohen

 I’ve been following the case of Yang Hengjun, an Australian blogger detained in China since January this year. Here’s the latest excellent Guardian piece on Yang’s case.  It vividly brings home the millions of individual, unfair tragedies inflicted by PRC criminal justice. 

Once again, the PRC has issued a preposterous response to the Australian Government’s condemnation of the terrible abuse of one of its nationals. Can the Ministry of Foreign Affairs spokesperson not realize how ridiculous his statement makes his government appear? To say that Australia is interfering with China’s “judicial sovereignty” by protesting the PRC’s violation of the international human rights to which the PRC has freely committed itself in the exercise of its sovereignty is nonsense. Perhaps PRC spokesman Geng should be reading the UN Convention against Torture in addition to the latest words of Xi Jinping. To say that Yang has been treated in accordance with Chinese law is a shocking, frank indictment of the PRC legal system before the world. It is good to have a recently-published retranslation of DARKNESS AT NOON, since the Chinese Communist Party’s daily actions illustrate how it perpetuates the tradition of endless incommunicado detentions and coercive interrogations. What a perfect way to celebrate the PRC’s 70th anniversary!

Communist China’s Painful Human Rights Story

By Jerome A. Cohen

On the eve of the PRC's celebration of the Oct. 1 National Day, I wrote this piece at the invitation of the Council on Foreign Relations, "Communist China’s Painful Human Rights Story." I hope, after the Chinese government celebrates this holiday, it will genuinely seek to improve its soft power by ending the many human rights abuses that have outraged the world.  

A Spanish extradition case that sheds light on Canada's forthcoming Huawei decision

By Jerome A. Cohen

A very good report by Raphael Minder in today’s NY Times about a Madrid court decision rejecting the U.S. request to extradite the former Venezuelan intelligence chief, politician and alleged drug runner Hugo Carvajal. The defense claimed that the U.S. request was made for a spurious purpose, using drugs as an excuse to get its hands on the suspect for political purposes involving U.S. policy towards Venezuela.

Minder correctly points out the relevance of this international precedent to the Meng Wanzhou court battle coming up in Vancouver. Meng’s lawyers must be very happy. Of course, the United States may appeal the Madrid decision. The amount of time that a suspect subject to extradition proceedings is restrained is a disturbing aspect of the process. Carvajal was locked up for six months pending this initial decision. Fortunately, the judge has released him from prison pending appeal but subject to remaining in Spain and biweekly reporting to the government. Carvajal, who sounds like a serious drug offender from the U.S. charges, has a great Reuters family photo in the Times that would support a political campaign back home.

Although Ms. Meng has been quite free and comfortable on high bail from the start of the Vancouver legal process, she has not been free to leave Canada to pursue her business and life. She must work via the Internet and other communications facilities, which presumably are monitored. The Canadian process is moving very deliberately and the final extradition decision remains a long way off. If extradited, she faces another long criminal process in the United States unless a plea agreement is negotiated, perhaps as part of a broader Huawei settlement or an even broader US-PRC trade agreement. But don’t hold your breath!

Why people subject to the possibility of US extradition continue to take the chance of passing through countries that have extradition arrangements with the United States remains a mystery to me, even though avoiding all such countries is a significant inhibition on their travels.

Taiwan’s loss of one more diplomatic ally to China: my thoughts on how Taiwan can strengthen its ties with the outside world

By Jerome A. Cohen

Solomon Islands has shifted recognition from Taiwan to China. At a time when the PRC is aggressively luring away Taiwan’s diplomatic allies, Taiwan more than ever needs the support of the U.S. Government and non-governmental institutions as well as other countries. Much more can be done, starting with a U.S. Presidential speech that recognizes not the R.O.C. government but the achievements that the people of Taiwan have made toward the rule of law, democracy and protection of human rights in cooperation with the many governments that have continued to foster cooperation with the island in the absence of formal diplomatic relations.

Some observers have also suggested that U.S. arm sales to Taiwan should be boosted but I would not unduly emphasize further arms sales, which are reportedly under way and which in any event feature the sale of high prestige weapons that are not well adapted to Taiwan’s actual defense needs.

Some have also proposed that an invitation should be extended to President Tsai to speak at a Washington think tank on the same program as a prominent U.S. official. I don’t know whether the current U.S. Government can either arrange for her to have an exceptional “stopover” in DC or to lift the obnoxious ban against having Taiwan’s president visit any American city on a normal basis. I have suggested that Tsai speak, either in person or via Skype, at the Council on Foreign Relations in NY both before and after she ascended to the presidency but she has never given a positive response. But I have never tried the idea of a companion presentation from a leading American foreign policy official. That idea is worth pursuing both in DC and elsewhere in the United States and in a way that could not be seen to imply official U.S. Government “recognition”. On several occasions the Council on Foreign Relations has used electronic means to interview Taiwan’s leaders, including President Chen Shui-bian and President Ma Ying-jeou as well as Vice President Annette Lu.

Any restriction on the appearance of Taiwan leaders in person before American think tank or other audiences is a restriction on Americans’ freedoms of expression and assembly that seems unwise from the viewpoint of American constitutionalism as well as foreign policy.

Finally, Xi Jinping has talked about the PRC developing a new model of diplomatic relations. Actually, the PRC has inadvertently begun to do so by denying Taiwan the possibility of formal diplomatic relations, thus requiring it and the major powers of the liberal world to interact and cooperate on a new basis. This process is already underway and should be built upon, as the U.S. Government has recently been doing. Many bilateral actions can be taken relatively easily, if discreetly. Much more difficult will be the process of integrating unrecognized Taiwan into multilateral organizations that limit full participation to recognized “states”. But much greater efforts must be made to do so by the democratic powers.

Hong Kong, China and the United States: A Major International Issue

By Jerome A. Cohen

As widely expected, Hong Kong Chief Executive Carrie Lam’s very late withdrawal of the notorious extradition bill has had no pacifying effect. Perhaps it has even exacerbated the situation by demonstrating how reluctant the Hong Kong government and the Central Government are to make any reasonable concession to local public opinion. They are still relying on the attrition strategy that eventually ended the 2014 Umbrella Movement. They hope that even the most dedicated protesters will eventually wilt from exhaustion and despair.

Events in Hong Kong may someday add to the internal pressures for improving the Mainland system of criminal justice in practice as well as law but any significant changes will have to await a radical shift in the policies of the Chinese Communist Party, and that shift seems far from today’s horizon.

The currently contemplated Hong Kong Human Rights and Democracy Act in the United States is immediately of symbolic importance but will also add to American leverage over Beijing in practical terms because of its threat to eliminate Hong Kong’s special status under American law. The so called “nuclear option” it authorizes would significantly add to Hong Kong’s protection against the PRC’s use of military force to govern Hong Kong, but, as the “nuclear” name suggests, actual resort to this deterrent would substantially harm Hong Kong economically in order to “save” it politically.

It reminds me of the annual Congressional Most Favored Nation (MFN) review of China’s human rights actions that took place in the 1990s before Congress agreed to approve PRC entry into the WTO. Many in America regret the U.S. surrender of that option to withdraw the MFN access to the U.S. market of a China whose exports required it. The annual threat to deny the PRC this MFN treatment was one of the few tools the U.S. Government had to effectively express its support for human rights in China. While not as profound in its impact on China as the withdrawal of MFN might have been, the proposed Hong Kong Human Rights and Democracy Act would nevertheless  threaten to inflict serious damage on the PRC’s national economy as well as on Hong Kong by ending Hong Kong’s special customs status.

Hong Kong is surely not a matter of China’s exclusive domestic concern, as the PRC claims, but obviously a matter of great and legitimate international importance for many reasons. Not the least is the applicability of the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong and the PRC’s obligations under various human rights treaties it has ratified, including the Convention against Torture and the International Covenant on Economic Social and Cultural Rights.

Hong Kong’s protesters are today’s greatest challenge to PRC efforts to persuade the world of its “soft power.” The outrageous suppressions of freedom, human rights and the rule of law throughout the Mainland and even the increasingly well-known repression in China’s Xinjiang as well as Tibet have not had as big an impact on world opinion as present events in Hong Kong. It is time for the PRC to recognize this, and it is time for President Trump to consistently communicate this to Beijing in public as well as in private.

Why were Joshua Wong, Agnes Chow and others arrested today?

By Jerome A. Cohen

Here’s a good story from today’s Washington Post on the arrest of Joshua Wong and other Hong Kong young democracy activists. I note that Joshua and Agnes were very promptly released on bail, in contrast to some arrests where Hong Kong police and courts have seemed very slow in granting bail. That was probably in order not to add to the provocation that the arrests would cause, increasing the likelihood that people will spill into the streets on Saturday.

Ironically, the timing of the arrests was evidently inspired by the desire to diminish the possibility of a major demonstration in defiance of the disapproval to hold it. The events that led to the arrest reportedly occurred on June 21. Why on August 30 did the arrests suddenly occur as everyone was preparing to hold the new demonstrations despite the refusal of approval? Not because Joshua et al were leading this Saturday’s preparations but because the authorities wanted to make clear to prospective violators what lies ahead for them if they take part despite non-approval. This is classic deterrence strategy.

Was the denial of approval of tomorrow’s events reasonable? For the assembly as well as the march? Are there leaders who intend to violate the prohibition? The Washington Post story notes that a prominent organizer disclaims any intent to go forward contrary to the denial of permission. Will thousands of ordinary people, without apparent leaders, nevertheless move forward to hold a rally and inevitably leave together in the streets after its conclusion?

The police have already arrested 800 over the past three months. Will they arrest several hundred thousand tomorrow for flagrantly violating a prohibition that huge numbers of people deem unreasonable? The legitimacy of the government refusal depends on its reasonableness in light of community values and customs.

And what about October 1? If two million citizens violate the denial to protest, can they all be arrested, detained and punished? This is where the system breaks down and where things are heading, and that is why Joshua et al were arrested today, seemingly irrelevantly on the brink of tomorrow’s events, for events that occurred June 21.

Finally, Beijing is of course calling the shots about the action of the Hong Kong police, although I hesitate to use that metaphor.

Arrest of Australian citizen in China: Beijing-Canberra tension

By Jerome A. Cohen

Protests against the formal “arrest” of former diplomat Yang turned Australian citizen are beginning to mount. Australian officials have vigorously denied the espionage charges and condemned the PRC prosecution. The PRC’s Ministry of Foreign Affairs has accused Canberra of impermissible interference with PRC justice. It claims that Yang, who has been held incommunicado for more than 6 months, is being treated in accordance with Chinese law. This is true. The problem, of course, is that Chinese law violates basic precepts of international human rights law.

Although, in conformity with the Sino-Australian consular treaty, Yang’s jailers allow him monthly half-hour consular visits that are strictly limited in topics that can be discussed and monitored, they have yet to permit him access to a lawyer, even one chosen by the jailers. “Arrest” usually means the detained suspect is headed for indictment, trial, conviction and imprisonment, and the espionage charge guarantees a very long sentence, although the death penalty is always a threat.

A lawyer will eventually be provided to decorate the proceedings if the authorities refuse to allow the accused a counsel of his choice. In any event the defense lawyer’s role will be restricted and the Party-controlled court will reach the conclusions instructed by the Party leadership.

One practical issue of special interest to international lawyers is whether the PRC will allow Australian consuls to observe the trial to the extent it is deemed “secret”. In the Stern HU case some years ago the PRC violated even its own internal regulation in refusing Australia access to the secret parts of naturalized Australian Hu’s trial. The PRC should have based that determination on a valid interpretation of a disputed provision of the bilateral consular convention but instead simply sought to justify it with a reference to China’s supposedly untrammeled judicial sovereignty. Apparently that sovereignty is not even subject to international commitments made by the PRC in the exercise of its sovereignty!!

Sidney Rittenberg

By Jerome A. Cohen

Yesterday’s wonderful obit in the New York Times was a balanced presentation of Sid’s long and complex life. I especially liked its references to his experiences on both sides of the scourge of mankind — arbitrary detention. Although, soon after his final release from prison, he and I discussed the prospects for his becoming a consultant to international business and I encouraged him to try, due to Sid’s modesty, I hadn’t realized the extent of his ultimate success. Also see the WashPost fine obit including Sid’s embellishment of a Confucian maxim, “Man who climbs out on limb should listen carefully for sound of saw.” Of course, like so many of us in the China field, I appreciated his contribution, intelligence and insights.

Has Simon Cheng been forgotten? Does he want to be?

By Jerome A. Cohen

Cheng returned home from Shenzhen to Hong Kong Saturday afternoon, apparently by car. The only reports I have since seen noted an understandable request from his family for a period of repose before being subjected to media interviews or other enlightenment of the public about the mysteries surrounding his detention and punishment for allegedly consorting with a prostitute. Has anyone had any subsequent news about the case? Has Cheng emerged? Returned to work at the UK Consulate? Told friends about his ordeal?

Has the media made attempts to interview him or otherwise obtain an explanation of one of the more unusual recent cases of PRC justice? How long can journalists and the public, at home and abroad, be expected to wait? HK must be a far more polite and thoughtful media environment than other cities of comparable size. Will the UK Consulate General issue an explanation? The Hong Kong Government? Cheng’s lawyers? Family or girlfriend?

Is there some widely-shared community expectation that we should forget about this important and curious incident that might tell us a great deal about PRC justice? Should we all act like it never happened? Can anyone recall similar situations? Do people only care about the extent of violent protests in Hong Kong and the US-China economic war? 

I understand the UK Government’s concerns, which is why I did not expect a statement from it, but that is only a part of the overall picture. What inference should the public draw from the eerie silence?

Do Hong Kong people just believe whatever they normally do about such incidents, with PRC sympathizers putting their faith in the China Daily and democrats passing the case off as another instance of phony Communist charges?

And what should the rest of us infer from the strange circumstances? Should we assume that Cheng’s silence means he was indeed guilty of colossal misjudgment -  from several perspectives? Should we assume that he is innocent but willing to accept scandalous defamation and to fall on his sword to avoid further damage to Sino-British relations and HK’s incendiary plight?

And what should we infer from the apparent passivity or lack of interest of the media? Are the London tabloids content with once again raking the Duke of York over the coals? Summer doldrums? Compassion fatigue? Overwork?

Is my impatience unique?

Trump and U.S. policy towards China

By Jerome A. Cohen

Trump’s remarks on having “second thoughts” about the U.S.-China trade war remind me of the old saw: “How do I know what I think til I hear what I say?” Of course, it is easy to joke aboutthis literally incredible person.

Yet we all know what disasters he is inflicting and are frightened at the significant possibility that he might be re-elected. I thought the American people would repudiate George W. Bush after his first four years and was stunned by Trump’s election. Similar leadership problems exist in other major countries. Politics is too serious to be left to national leaders anywhere.

But we need to spend more time analyzing Trump’s thoughts, such as they are. Are they rooted in his experiences? His canny plotting for financial gain? His fear of criminal prosecution? His desire to leave a lasting mark on world politics? His many prejudices? His lack of relevant knowledge? His social life? His insatiable narcissism? His inability to tolerate many advisors? Is he declining further mentally?

It’s this last question that troubles an increasing number of jaded American observers. If Trump is reelected, what steps might be taken to guard against a second term’s further decline? Reagan had some able advisors. We would not want the group currently around Trump to be acting in his name, even if they could agree on a China policy for one day, if not the next.

More important than Trump or any single leader is whether the US is being mobilized to counter China in every way, to what extent and with what likely consequences. Xi Jinping undoubtedly realizes the situation. I wish he would respond by removing some of the obvious causes of our concerns instead of expanding the charges in our indictment. One way or the other I’m sure he is preparing for the worst, as the US Government is gradually doing, which, of course, may increase the prospects for unhappy outcomes. Trump is only the most immediate potential spark in what would be more than a prairie fire.

Of course, it is possible that we can find international stability by reverting to the Cold War pattern of “Two scorpions in a bottle”, but that was always an unpleasant and uncertain way to live. 

UK Consulate General employee Simon Cheng's case

By Jerome A. Cohen

This story in Global Times that the UK Consulate General employee Simon Cheng was detained for dallying with a prostitute was astounding. What a sensational mystery!

Cheng reportedly has been released today and returned to Hong Kong, after 15 days since his August 8 detention. I hope he will have the opportunity to make public his version of events. So many questions to answer.

If, as reported by his girlfriend, he was on a one-day visit to Shenzhen for a trade meeting on behalf of the UK Consulate General and if he was anxious about his prospects for being permitted to return to HK that night, when did the alleged contact with a prostitute occur? Was it a lunchtime quickie? A taxi rendezvous? A post-prandial digestif? A Soviet-style ”honey trap”? Could Cheng actually be guilty of such a colossal misjudgment?

Why did it take the Shenzhen police 13 days to come out with this story of what they now claim is the most ordinary type of tawdry violation?

Why did Cheng receive a sentence of 15 days rather than 5 or 10? Was he also fined?

What roles did his lawyer, UK consular authorities and the Hong Kong Government play? Was there an attempt to obtain court review?

Did the Shenzhen police and Ministry of Foreign Affairs comply with relevant law and agreements about timely notice of detention to the Hong Kong Government and to family? Will the police give the usual excuse that to have done so would have interfered with the investigation of the case?

Wasn’t there a case some years ago where the Shenzhen area authorities locked up a rising young HK politician for six months on a prostitution charge so that he couldn’t take part in a scheduled election? That case at least seemed less implausible than this one.

If the PRC is caught staging a phony charge in this one, it would be the scandal and laughing stock of the world, a risk that it would be unlikely to take after almost two weeks of consideration. What a case!! I wish I could join Cheng’s questioners today!

China’s detention of a Hong Kong employee of the UK’s Hong Kong Consulate: a preliminary explainer

By Jerome A. Cohen

The news that a Hong Kong employee of the UK’s HK Consulate (Guardian story) has already been detained by the Shenzhen police for 10 days is alarming and makes one wonder why it has taken so long to become public. The answer probably lies in the common reaction to such events in the Chinese context—the hope that quiet negotiations might resolve the problem while publicity might exacerbate it.

The Guardian story seems to be understandably confused by the use of the term “administrative detention” (AD) to characterize this deprivation of freedom and its possible link to “national security”. AD traditionally has referred to detention, now for a maximum of 15 days for each suspected offense, in accordance with China’s Security Administration Punishment Law. That law, the origins of which go back to the Anti-Rightist Campaign of 1957-58, allows the police to detain and punish anyone for a very broad range of possible offenses that are considered too minor to be deemed “crimes”. Police often resort to it as a preliminary processing device that allows them to interrogate and investigate a suspect for up to a couple of weeks before deciding whether to release the person or whether further steps may be necessary, usually prosecuting the suspect for a crime.

If they decide on the latter, they may choose to bring the prosecution under the usual criminal process or under the special provisions for prosecuting certain cases, often suspected of violating “national security”. If they choose the latter, the suspect can be transferred to “residential surveillance at a designated location” (the now notorious RSDL), under which the Criminal Procedure Law permits the police to hold someone incommunicado for up to six months before deciding whether to process the case further as a regular criminal case. In either case this further detention should be called “criminal detention” rather than AD.

Yet the Guardian’s reference to “national security” makes one wonder what is the status of this HK employee of the UK Consulate. Undoubtedly those who are seeking to assist him know the answer to this question, since visitation rights, access to counsel and other issues turn upon the status.

Chinese employees of foreign governments are especially vulnerable to suspicions of serving as foreign espionage agents since in practice the PRC applies a very broad and flexible definition of “espionage”, and it only takes a mere suspicion of such conduct to justify in PRC law a criminal detention of up to 6 months in RSDL before the regular criminal procedures (themselves deficient) come into place.

Let’s hope that this case is genuinely AD at this point, and that the detained person will be released today. AD detention itself is generally very unpleasant, even if often coercive interrogation techniques are not applied, since cells are crowded, conditions “basic” and the many companions not those one might choose.

Some proposals for resolving the government crisis in Hong Kong

By Jerome A. Cohen

Given the way things have now turned in Hong Kong, there will be no need for PRC intervention via the People’s Liberation Army and People’s Armed Police so long as momentum will develop toward an apparent improvement in the situation.

If the Hong Kong Government comes forth with a plausible platform for independently reviewing allegations of police misconduct, that will be a start. It could be accompanied by or followed by withdrawal of the extradition proposal and the retirement of Carrie Lam. If the courts begin to exercise more leniency in evaluating and sentencing cases brought before them, soon reversing the conviction or reducing the sentences of Benny Tai and others, for example, and if the Secretary for Justice becomes less zealous in pursuing new cases, that will help.

Further peaceful and massive demonstrations will be desirable to keep the pressure on. But still necessary, besides the newly-formed Neutral Legal Observers Group, will be establishment of an independent Citizens Reconciliation Group or similar institution to move the process forward to achieve the positive reforms required.

Of course, we cannot naively expect the Hong Kong Government not to investigate, identify and perhaps informally seek to intimidate and even punish people it labels organizers. That would be a setback, if not a disaster. And Beijing’s barrage of fake news is surely likely to continue.