Jimmy Lai's Arrest and the Future of Hong Kong Criminal Procedure

By Jerome A. Cohen

PAUL YEUNG/BLOOMBERG

The recent arrest of Jimmy Lai for “alleged foreign collusion” is of special interest to me since I invited him and Martin Lee to join me in a breakfast discussion of Hong Kong at the Winston Lord Round Table on the Rule of Law and US Foreign Policy in Asia at the Council on Foreign Relations on October 25, 2019. I had never met Lai and was hoping that he would be as feisty as his reputation. I was disappointed because, although he was perfectly intelligent and thoughtful in his remarks, he was quite restrained, even though I urged him to speak out more vigorously. Martin, on the other hand, fortunately, was his usual dynamic, informative and outspoken self. 

Over the next few months, it will be very important to try to observe the procedures in these new types of Hong Kong criminal cases. To what extent will court procedures be open for public observation? Will prosecutors be obligated to reveal in open court the bases for the  arrests? Will defense counsel be allowed to inform the public about the details of the proceedings? Many questions have already arisen. For example, regarding the six overseas activists abroad recently placed on the Wanted for Arrest list (one is a US citizen), has the PRC implemented the Interpol notification process? If so, with what responses from various countries thus far? 

For Lai’s case, will there now be a move to transfer him and his co-defendants to the Mainland for investigation and trial? By what procedures? Secret or public? With any possible resort to HK courts? In a case that arose a few days earlier, are the four arrested suspects who are 21 and younger to be charged for their Internet messages alone or for other conduct? How will their cases be processed? If HK’s Director of Public Prosecutions has just resigned because of the refusal of his bosses in the Department of Justice and higher in the HK Government to allow him to know about NSL prosecutions, how much will the HK Bar, the media and the public be allowed to know about such matters?

I hope the courageous Jimmy Lai’s confidence in his prison future is not misplaced. In an interview with AFP, he said that “he is prepared for prison. If it comes, I will have the opportunity to read books I haven’t read.” He has said he will not leave Hong Kong. But can he be sure? If transferred for detention, interrogation and trial on the Mainland under the NSL, he will leave HK against his will.

Moreover, is he correct in assuming that, if imprisoned, he will catch up on his reading? Mainland jails and prisons are not as lenient as some Hong Kong counterparts. Ask the two Canadian Michaels what books they have been reading, even though the lights may still be kept on in their cells 24/7! Ask human rights lawyer Wang Quanzhang what he read during his five years of torture. Ask artist Ai Weiwei what he read during his months of “residential surveillance” at a designated location, even though he had to be released before prosecution because of political pressures.

If Apple Daily manages to continue to publish, I hope it can report on what has been too largely ignored to date— the underlying reasons why the HK Director of Public Prosecutions (HKDPP) resigned. What does this foretell for Jimmy Lai and many others that the HKDPP is not only not allowed to decide who gets prosecuted under the NSL, but he is not even allowed to know what is going on in the decision-making process! Good luck, Jimmy!!

What Now? A Conversation on the Future of US-China Relations

By Jerome A. Cohen

I recently joined Scott Kennedy, Rui Zhong, Robert Daly, Sophie Richardson, Yangyang Cheng, Tong Yi, Andrew J. Nathan, Pamela Kyle Crossley, and Alex Wang for a ChinaFile conversation on the future of US-China Relations. I discuss the Trump administration’s dangerous China policy and offer my own ideas on how to improve relations. By adopting “The Four C’s: Cooperation, Competition, Criticism, and Containment,” I believe that Washington and Beijing could improve relations and avoid a further worsening of the situation. You can read the article here.

The Reemergence of the Phrase "Communist China"

By Jerome A. Cohen

I was recently asked about China Daily’s use of quotation marks around “communist China” in this piece, which is much more worth reading and thinking about than most of the articles that CD puts out. The article discusses limitations on Chinese journalists in the US, notably calling the US administration a “cabal of wackadoodles” and criticizing the severance of ties between the US and China.

The Trump people’s resurrection of “Communist China” (I am accustomed to capitalization of Communist when linked to China) as the term for identifying the Government of the People’s Republic of China (PRC) rings many bells with the old cadre of American China-watchers and is a contemporary attempt to help Americans and other people see the differences between the Party and the people in China. “Communist China” was an early, transitional term that served another function – to distinguish Mao’s regime from that of Chiang Kai-shek’s “Nationalist China” sheltering on Taiwan. It was sometimes considered an upgrade of the earlier, more politically emotive term “Red China” that overlapped with “Communist China” in American policy parlance in the ‘60s and early ‘70s. For example, the Harvard-MIT group of China specialists that sent a memorandum to President-elect Nixon via Henry Kissinger in November 1968 used the term “Communist China”.

I remember how startled the journalist Lawrence Spivak, who ran Meet the Press, was when, in an April 1971 TV interview with John Fairbank and me, I admonished him for constantly using “Red China” at that late date and urged him to clean up his language and recognize that the Communist government was indeed the government of mainland China. I have always liked to refer to it as the PRC, which accords it its self-described name and yet has the ring of a Communist regime. I don’t object to the use of Communist China today, during Xi Jinping’s Party-obsessed era, as I didn’t object to it during Mao’s era, because it is a useful reminder of the distinctive regime that controls the Chinese people. That, of course, is why Pompeo and company are using it today. The term has genuine factual connotations and also serves a delegitimizing function in describing a dictatorial system. 

Grenville Cross for the HKG's Defense...or Offense?

By Jerome A. Cohen

Once again, a pro-PRC publication offers us the opportunity to hear from Mr. Grenville Cross, a very able lawyer and former Director of Public Prosecutions for Hong Kong, in defense of the latest restriction on political freedoms in the SAR. This time the issue discussed – the one-year postponement of the Legislative Council (LegCo) election – presents the occasion for a more plausible excuse than some of the other HKG and PRC actions Cross has advocated and defended. What is most notable here is that, rather than devote space to the more detailed consideration of the postponement that the issue merits, Cross extends his brief to an attack upon the Pompeo-led US condemnation of PRC actions re HK including the election’s postponement. Many in the US may find this diversionary attack more persuasive than his defense of the election postponement decision.

In discussing the postponement, Cross cites examples of similar decisions having been made in other countries including the UK. Yet he fails to mention the several recent contrary examples closer to HK where East Asian countries have successfully held elections after taking due precautions to prevent dangerous increases in the spread of Covid-19. Moreover, he also fails to mention anything about the pros and cons of resorting to written ballots. Certainly, written ballots, despite Donald Trump’s pathetic attempts to discredit them, could be used to accommodate those Hong Kongers who wish to stay home but nevertheless vote and those who cannot or will not return from residence on the Mainland or elsewhere. Indeed, since I give great weight to the risks that crowds bring to spread of the virus, I have expressed wonder about the merely modest attention that has been accorded the feasibility of resort to written ballots for everyone eligible to vote in HK. (In November, my wife and I will use written ballots to vote against Trump in NY!)

In the second part of his essay, where Cross extends his brief, or his mandate, to the USG counterattack, he demeans his arguments and himself by referring to critics of the postponement at home and abroad as “anti-China elements” who have “attempted to make sordid political capital” out of a government decision that supposedly had nothing to do with politics, only public safety. The criticisms of democratic Legislator Claudia Mo and disqualified candidate for LegCo Joshua Wong, instead of being answered, are dismissed as “the poisonous ramblings” of people who are simply “grandstanding and pleasing their foreign backers”. Any responsible opposition leader would not oppose but would agree with the government, Cross maintains.

If, as he claims, Joshua Wong is merely “a professional agitator”, should we dismiss Cross as “a professional apologist”? It would be good to know the extent to which he may be influencing the new office within the HK Department of Justice that decides on NSL prosecutions and that excludes the current Director of Public Prosecutions, a more independent-minded successor to Cross who has just announced his resignation, from even knowledge of the prosecutorial decisions being made.

As a final point in his argument, Cross abandons his broader political slashing and returns to political-legal analysis, implying, undoubtedly correctly, that the forthcoming special session of the NPCSC, in extending the current LegCo’s term by the necessary one year to fill the postponement gap, will disqualify from further LegCo service all current LegCo members who have been or will be disqualified from standing for election in the postponed LegCo election. What responsible opposition leader can complain about this further example of the new HK “rule of law”?

“Intellectual Property Theft” Requires Some Clarification

By Jerome A. Cohen

Here are some thoughts inspired by one American investor’s experience in China as related in Steve Saleen’s Wall Street Journal article. 

Today it is commonplace to read about alleged PRC theft of intellectual property. Often, however, it is unclear what this phrase means. Sometimes it merely refers to PRC insistence that would-be foreign investors transfer valuable IP to their investments in China, whether a joint venture of some type or a wholly foreign-owned enterprise. Sometimes it merely means that a would-be licensor of technology transfers its best IP at a favorable price in return for access to the China market. Such market access in return for technology deals are part of the ordinary commercial bargaining process, and theft seems a misnomer in those circumstances.

At the other end of the spectrum is genuine outright theft via various means including cybertheft. In between, there are many variants, one type of which the sad Saleen story recounts. My three decades of practical experience dealing with PRC business as both a lawyer and an arbitrator, as well as an academic, ended around 2010 and included many situations that qualify for the appellation “theft”.  One standard pattern was for one or more local employees of a Chinese-foreign joint venture to secretly abscond with IP, including trade secrets, contributed by the foreign investor in order to quietly set up a competing venture. Another technique was for the local joint venture (JV) partner or licensee to secretly register the foreigner’s IP in its own name. This was easily done for trademarks as well as patents. A third common technique was for the local licensee to refuse to pay license fees and claim that the foreigner’s licensed technology failed to meet the contract’s prescribed standards, even while the licensee secretly was successfully using it in production and sales. A fourth technique was for the local JV partner simply to take advantage of the foreigner’s helplessness in a remote area where the local authorities were cooperating with the local venture and would permit the local partner, often a government agency itself, to squeeze the foreigner out of control. Sometimes the local police would detain one or more foreign owners or employees and “renegotiate” the relevant contracts in the detention house of the Public Security Bureau! Yet another technique, where the foreign investor or licensor unwisely decided not to keep one of its employees on the ground in China – a basic error, was for the local employees of the JV to keep two sets of books so that local interests could secretly pocket some of the JV profits.  

Sometimes the foreign company could obtain legal relief at considerable cost. But local courts are, of course, under local Party control, and reliable, independent local lawyers may be hard to find. Local protectionism is strong, and corruption rife. Beijing’s central agencies may have limited influence and interest in far-off disputes, and I have been an arbitrator in Chinese arbitrations, even in Beijing, that were plainly stacked against the foreign company that sought relief. 

So “theft of intellectual property” requires some details. 

The Telling Resignation of Hong Kong’s Director of Public Prosecutions

By Jerome A. Cohen
David Leung has resigned as Director of Public Prosecutions (DPP) and will leave on December 31, citing disagreements with the Secretary of Justice. The most important functions of the Office of Hong Kong’s Secretary of Justice are carried out by the DPP and his staff. With respect to HK’s rule of law, that job has been more important than any judgeship or other judicial work. The DPP’s office is the most important place where discretion has to be exercised regarding whether or not someone in HK should be punished and, if so, for what offense. Prosecutors often have enough evidence to technically justify a conviction, but, as the head of the HK Bar Association recently recognized, there are often good reasons for not bringing a prosecution. Courts and even juries often have little discretion in deciding the cases brought before them. That’s why, once prosecutors decide to indict, conviction rates are generally very high not only in dictatorships like China and Russia but also in democracies like Japan and the United States (where plea bargaining generally prevails in practice rather than trial on the merits).

David Leung’s resignation as DPP tells us a lot about the changes required in HK justice under the National Security Law. Although during his leadership his office successfully carried out many unpopular prosecutions because, after independent examination of each case, he decided, rightly or wrongly, that respect for the rule of law, including the exercise of discretion, justified prosecution. He steadfastly argued against police or politicians influencing the decisions to prosecute. That independence apparently led Beijing and its local minions to lose confidence in him. The NSL removes NSL prosecutions from the DPP’s consideration and places them under special Beijing-controlled arrangements. The new regime refuses to allow him to even know about the operations of the new unit within the DOJ for the handling of NSL offenses. This is a pathetic situation. We are not yet told who is making the decisions about whether to prosecute alleged NSL violations. Who has been appointed to head the new special NSL office within the DOJ, and what influences is that person subject to? This is the real crux of the struggle for judicial independence, although the NSL has also taken steps to curb the powers of HK judges and juries to the extent they will still be allowed to handle NSL cases.

Postponement of the Upcoming Hong Kong Legislative Council Election

By Jerome A. Cohen

It was recently announced that Carrie Lam has invoked an emergency ordinance to postpone the September Legislative Council (LegCo) elections by one year. This follows the disqualification of twelve opposition candidates earlier this week. But if the Hong Kong government was going to postpone the election, why bother to disqualify candidates? That seems an unnecessary addition to the challenges with which the HKG and its Beijing masters are confronting their people and the democratic world, since the disqualifications drew significant international condemnation. But the disqualification decisions should be seen as one further step in an unfolding campaign to establish Beijing’s new Hong Kong regime beyond peradventure. 

There may well be more disqualifications, for example, even though the election has been postponed. That may be followed by a decision that current members of LegCo who have been disqualified for the next election will not be allowed to continue to serve in the newly-extended one-year LegCo term. Moreover, the reasons given for the disqualification of these candidates fit them easily into the categories of conduct now made criminally punishable by the National Security Law (NSL), especially inciting secession, subversion and foreign interference. 

The latest statement of the PRC’s HK Liaison Office makes clear its felt need to entirely eliminate these supposedly unpatriotic people from the political process. So this may be the prelude to further prosecutions of democratic figures, not for relatively minor alleged violations of assisting in unlawful public assemblies prior to July 1, but for far more serious NSL crimes. Of course, as the HKG brazenly assures us, supposedly none of these actions in any way restricts the political freedoms of the HK people! 

Furthermore, authorities have now released a wanted notice for six political figures outside HK who are suspected of inciting secession and colluding with foreigners to harm national security. What does this portend for their colleagues now in HK? Even those in HK who are barristers had better seek out local counsel specializing in the HK criminal process as now drastically altered by the NSL. Hope for the best but prepare for the worst. 

The PRC Legal System’s Unobtrusive International Impact

By Jerome A. Cohen

Agreements between the Chinese Communist Party’s Central Political-Legal Commission (CCPPLC) and foreign governments are a little-known but important aspect of the PRC legal system’s quiet international impact. The agreement between China and Belarus (中共中央政法委员会与白俄罗斯总统办公厅法治领域合作协议) is an interesting example of the CCPPLC directly making an agreement and cooperating with the President’s Office of a foreign government. The agreement was made between Meng Jianzhu, then Secretary of the CCPPLC, which controls the judiciary and Chinese intelligence and security services, and Stanislav Zas’, State Secretary of the Belarusian Security Council. Although the report published in the PRC court newspaper gives this interaction the appearance of innocuous and benign support for the “rule of law” and “judicial reform,” the excellent scholarly analysis by Ms. Nadège Rolland makes clear that this cooperation is an example of the export of the PRC’s surveillance and internal security system of repression. Belarus appears especially concerned with improving its censorship and cybersecurity, which the PRC is famed for perfecting.

From the diplomatic point of view, it is striking to see a Chinese Party organization concluding an agreement with a foreign government. Functionally, of course, this makes perfect sense since the Party organization controls the PRC government agencies involved, in this case the ministries for national security, state security and justice, as well as the procuracy and the courts. How much influence the CCPPLC has over other related government security and military agencies is also worthy of study. In the days of the USSR, the CCPPLC might have made a comparable Belarus agreement with that country’s Communist Party counterpart.

The PRC-Belarus cooperation cited above took place in 2016-2017. That was just before the PRC established its innovative National Supervisory Commission (NSC), a powerful new government institution for investigating and disciplining not only all Party members but also a broad swath of non-Party officials. Since the NSC seems to be more powerful than the government’s political-legal system, it would be good to know the extent to which the NSC might be affecting current cooperation with foreign governments regarding the “rule of law” and “judicial reform” as well as the CCPPLC’s present role in this respect.

Hong Kong Universities Ramp Up Suppression of Dissident Views

By Jerome A. Cohen

This is a helpful report on the Shiu Ka-chun case. Hong Kong Baptist University recently told Shiu, an opposition lawmaker who was involved in the 2014 Occupy Central protests, that it would not renew his lecturing contract, with no reasons given and no opportunity to be heard. I know nothing about Shui but sympathize with his comments about HKBU’s refusal to renew his teaching contract. He described the decision as “political persecution.”

Activists Lee Wing-tat, Chan Kin-man, Benny Tai, Chu Yiu-ming, Tanya Chan and Shiu Ka-chun arrive at the court for sentencing in Hong Kong in April 2019. Reuters

Indeed, no opportunity for him to ask why or present his case? No waiting until the judicial appeals process on his criminal conviction for participating in the Occupy Central movement has run its course? No reasons for HKBU’s decision, even though it is a publicly funded university? The university is hiding behind the shameful excuse that it is remaining silent in order to protect the “privacy” of the harmed teacher, while hiding its reasons from the very person whose privacy is ostensibly being protected. “Privacy” is a pathetic excuse for the public university to hide behind.

Simultaneously, pro-democracy activist Professor Benny Tai was fired today from Hong Kong University by a HKU council vote of 18-2. Note that Nathaniel Lei, an undergraduate representative on the council who spoke out against the decision, pointed out that if Tai wins his appeal, the council decision “may be reviewed.” We should not hold our breath, of course, that the appeal will be successful or that success might lead to reversal of the academic decision. Additionally, how should we interpret the failure of Vice-Chancellor Zhang Xiang to vote? A gesture of opposition to the council action? Or of impartiality or political paralysis? Note the hypocritical discretion of the university council in identifying the matter solely as “a personnel issue concerning a teaching staff member.” What a joke to claim that this is purely an internal matter and that outsiders should respect the university’s autonomy! Cheers for the council’s endorsement of “impartial due process”! And recall the rejection by the council of the nomination of former law Dean Johannes Chan, a great person, for higher university responsibility!

For me these cases are a matter of special interest because of the contrast it presents with my own experience at Harvard during the height of the Vietnam war controversy in America. In 1968, I believe, the TODAY show asked me to debate with Assistant Secretary of State Averell Harriman the right of the US air force to bomb Hanoi hospitals that reportedly were plainly marked with Red Crosses on the roof. Harriman himself and some wealthy Harvard alumni reacted strongly to various university authorities the next day about my criticisms of the US government. However, Harvard President Derek Bok told me to go on doing what I thought was right. He did not abstain!

What Will Become of HKU’s Law School?

By Jerome A. Cohen

Tomorrow’s decision about the sacking of Professor Benny Tai will have significance well beyond the Law School and Hong Kong University. Last April, Professor Tai was convicted on two charges of causing a public nuisance during Occupy Central in 2014. On Tuesday, HKU’s governing council will decide whether he can keep his job as an associate professor of law. HKU’s increasingly distinguished Law School, a bit over fifty years since its belated founding, has been struggling for several years over how to cope with all the pressures inflicted by 1 Country, 2 Systems. The implications of tomorrow’s decision will be profound. Although the university faculty has recommended against sacking, it is widely expected that the governing council, stacked with pro-Beijing political figures, will reject that recommendation. Either way, the ripple effects of the decision will reach much of the entire community, certainly the educational establishment at various levels.

Professor Benny Tai PHOTOGRAPH BY BOBBY YIP/LANDOV

One of the most immediate questions is whether it will affect the forthcoming decision to formally confirm the acting deanship of the exceptional Professor FU Hualing, who has nobly sought to hold the school together for the past two years following its inability to select an outside candidate. Whatever the outcome of tomorrow’s decision, and I am rooting for Professor Tai, I hope it will free the voices of many of the able, multinational law faculty, who until now, for both personal and professional reasons, have tried to remain relatively discreet in the face of doubts and provocations relating to the new National Security Law. Hong Kong needs the benefits of their robust public legal debate.

The US and China Near the Brink—We Need Them to Step Back

By Jerome A. Cohen

In less than half a century, has the wheel come full circle? Nixon used the China issue to reassure his reelection in 1972. Trump is using the China issue in an effort to reassure his reelection in 2020. Unfortunately, contrary to the protests of innocence from the Chinese Government, it has played right into the hands of the Trump “warhawks” now riding high, offering them much to feed upon. What we need today is governments on both sides that will step back from the brink and seek a new modus vivendi, one that will endure for the next, even more complicated half century. Balance – not all-out nationalistic enmity – is what is called for. 

Each side should practice what I call the Four C’s: Cooperation in areas critical to world progress and survival; Competition in business, science, education, the arts and sports; Criticism of each other’s many faults and failures in government, human rights and international relations; and Containment of its own military forces and goals as well as those of the other side. The next six months may be the most challenging to get through. One can only hope that next January will witness the charting of a new path. It will be a long road back.

The NSL Is Already Changing Hong Kong. How Far Will It Go?

By Jerome A. Cohen

Although I always thought that the 2005 Anti-Secession Law was much-ado-about-nothing, the National Security Law (NSL) is very different. Whereas Taiwan was relatively unaffected by the passage of the Anti-Secession Law, the NSL is already having a huge impact on many aspects of life in HK, but quietly. For example, will scheduled courses in Chinese politics and modern history be taught in the coming academic year and how? Appointments and promotions made as originally anticipated? Will people exercise their freedoms as before? Beijing is waiting to assess the immediate impact. 

In the meantime, the NSL has aroused far greater international concern than perhaps anticipated, so Beijing has another motive for proceeding slowly rather than via the “Operation Thunderbolt” that former Hong Kong deputy police commissioner Tony Kwok recommended. Prosecutions under the NSL may be a later manifestation of the new regime. Besides, there are the existing prosecutions under the pre-July 1 regime. E.g., Benny Tai may lose his appeal. Joshua Wong may also go to prison without the need to apply the NSL. But the clock is ticking on the September Legislative Council election, and this will likely be the first public shoe to drop in seriously implementing this all-encompassing, vague NSL. No nasty Central Government criminal prosecutions are yet necessary, but “merely” a succession of technical, administrative steps that will ultimately emasculate the election. The process will seem relatively soothing and assuring compared to the spectacle that would be created by dragging Martin Lee and Dennis Kwok to Beijing for incommunicado detention and secret trial.

The Case of Chinese Public Intellectual/Lawyer/Activist Xu Zhiyong Raises Questions About PRC Police Discretion to Detain Suspects

By Jerome A. Cohen

Xu Zhiyong speaks during a meeting in Beijing in 2013. Xiao Guozhen via Reuters

The recent formal arrest of Xu Zhiyong raises questions about the relationship of the notorious Residential Surveillance at a Designated Location (RSDL) to the regular criminal process and other forms of Communist Party-police coercion. Xu has been held incommunicado since his February 15 detention. He was formally arrested for “inciting subversion of state power” last week and has now been reportedly placed under RSDL. 

I have been under the impression that, under China’s Criminal Procedure Law, supposed “national security” suspects have often first been subjected to up to six months of RSDL. Then the police decide what the next step should be. That could be release with no further criminal processing, or the granting of the PRC equivalent of “bail”, or formal “arrest” followed by continuing detention while the case undergoes further investigation in preparation for the decision whether to indict and prosecute the suspect. “Bail” can also be granted after “arrest”. Whether granted before or after “arrest”, “bail” usually means that the case will be dropped quietly if the suspect does nothing objectionable to the police within the next year.

AMNESTY’s report on the fates of various lawyers detained by the police after their informal December 2019  meeting in Xiamen is worth reading. Although the bail for lawyers Dai and Zhang and the continuing detention of lawyer Ding for apparent prosecution seem consistent with what I know of the usual practice, I wonder about Xu’s case. Is he only now being sent to RSDL and after, not before, formal arrest? If that’s the case, under what authority was he held for the months since February 15? 

The Public Order Administration Punishment Law only allows maximum police detention for 15 days for each minor offense. Might Xu have initially been held under RSDL and is he now being sent back for a second time after arrest? Such a maneuver would be a disturbing extension of police power.

Might Xu have been initially detained in accordance with the 2018 National Supervisory Law’s “liu zhi” sanction? Nominally, ”liuzhi” is not supposed to be “detention” but in fact it is another type of incommunicado confinement, one that is outside the Criminal Procedure Law. It is the successor to the Party’s long-feared “Shuanggui” that the Supervisory Law has authorized for applications far beyond those who are Party members. 

Has anyone seen any details that might help explain Xu’s detention process and how the various sanctions available to the Party-state relate to each other? I have seen no indication that Xu might have been held under other supposedly non-criminal administrative provisions authorizing detention for prostitution, drug or other anti-social behavior or because of severe mental illness. Might the Amnesty report have simply made a mistake about Xu being sent to RSDL after arrest instead of being transferred now for likely indictment and trial?

To what extent will Hong Kong's new National Security Law "educational reforms" affect its law schools?

By Jerome A. Cohen

Thus far, apart from concern over the fate of Professor Benny Tai, whose earlier criminal conviction now pending appellate review has left him free on bail but under review for possible removal from the Hong Kong University Law School faculty, little attention has been paid to the potential impact of the new NSL on the SAR’s law schools. 

Will freedom of speech continue to prevail at the many forums they sponsor? Will speaking panels be unfairly tilted in favor of pro-government advocates?  Will certain teaching appointments for untenured professors not be renewed for unspoken political reasons? Will certain courses no longer be taught, or their content skewed in response to the new situation? Will new, politically inspired courses be added? Will there be pressures on scholars not to research certain topics or to pursue others? Will classes be monitored by students who are encouraged to report discussion of forbidden topics? What topics might be forbidden? Will the criteria for enrolling undergraduate and post-graduate students be altered? For hiring teachers and research scholars? Will it be possible to continue cooperation with foreign law schools and research institutions and to attract foreign students? Many other questions might be asked. Much is at stake here.

A closely related issue is the impact of NSL Article 55 on academia more generally, making individual scholars subject to government prosecution, not merely restrictions imposed by their academic institutions. Some analyses may be drawing the potential net for prosecution too narrowly. I fear the law may go beyond the examples being discussed by expert observers. For example, in view of Article 55, many scholars now teaching in HK, whether bred in HK or arrivals from the Mainland or from foreign climes, are asking themselves, as recently as today, should they continue to grant interviews to foreign media, take part in international Zoom-type fora, write another op-ed or blog condemning the new NSL, meet with students including foreign students, etc.? Moreover, are their foreign interlocutors likely to also be pursued by the PRC as “colluders”? And will activist scholars in HK have alleged violations of the NSL used against them when they apply for promotion, course assignments and research grants? These are not merely academic questions, as many well appreciate. 

Furthermore, although I agree that it’s best for activist teachers to carry on until some specific warning is issued, it is a more difficult decision for a university professor who is not a foreign national. Yet I have even advised one who isn’t a foreigner to not significantly self-censor until a warning is issued. In response I was told that informal warnings and advice had already been personally given by university officials, even before adoption of the NSL!! In these circumstances, even the bravest are now becoming at least somewhat more discreet. 

Was Helping China Build Its Post-1978 Legal System A Mistake?

By Jerome A. Cohen

I am glad to see publication of this semi-memoir in the Virginia Journal of International Law Online, originally done for a stimulating conference reviewing the last forty years of China’s legal development convened by the University of Michigan last October. It addresses the present claim that those of us who responded to the PRC’s requests for help in reconstructing its legal system after the Cultural Revolution not only wasted our time but also helped build up a fearsome world power. I was also stung by the different claim that, in aiding China, I had become another instrument in the history of America’s legal imperialism. What puzzled me especially was that the able author of the latter claim, who previously visited my NYU office, never interviewed me or colleagues in our China effort. For some current histories the documents of the dead are insufficient. Please find the article here.

What’s Next for Xu Zhangrun?

By Jerome A. Cohen

Although Professor Xu Zhangrun, a leading and outspoken scholar of Chinese law, society, politics and history, was released after six days of detention by Beijing police, he’s now been dismissed from Tsinghua University and any public office. I wish Xu hadn’t returned from Japan and perhaps now he does too. His next move? One option is to go on occasionally publishing in China or, more likely, abroad and get locked up much more seriously like Xu Zhiyong and so many other able, outspoken reformers. Another is to try to keep silent, do serious research and contemplation to the extent extensive “non-release release” restrictions permit, and wait for a better day. The third is to leave the country at least for the immediate IF he and his family are allowed to do so. Will the Party let him go?

Former Chinese law professor Teng Biao, whose academic career followed a similar downward political spiral and who was three times actually kidnapped by PRC police in China, happened to be in Hong Kong with one of his children when the Party’s final blow landed on his career in the country. But it took his wife and their older child a year to escape and only after a harrowing 26-day trip from Beijing to Boston, including a secret motorcycle rescue via Southeast Asia.

Xu Zhangrun

The Impact of the Hong Kong National Security Law—Outside of Hong Kong

By Jerome A. Cohen

Recently, the State Department warned US citizens in China to “exercise increased caution” in light of the new Hong Kong national security law although it cautiously does not mention the law by name. We are all waiting to see how the PRC interprets Article 38 of the new NSL for HK that on its face purports to cover speech and other conduct by anyone anywhere that the PRC claims to have violated the HKNSL.

The notice is available to all Americans who might plan to travel to China as well as those already there. It is interesting that it warns that consular access might be denied. Even the two Canadians, Michael Spavor and Michael Kovrig, who were detained 18 months ago, had Canadian consular access until this past January when it was cut off allegedly because of Covid-19. The problem is that the PRC version of consular access is very limited. Meetings usually occur once a month at best, they are short, and it is not permitted to even discuss the case that led to the detention. Moreover, PRC commitments to allow appointment of a defense lawyer are not honored. 

The PRC may modify the NSL's extraordinary breadth by announcing additional prerequisites to prosecution in the law itself and/or by demonstrating in its application of the law or through informal public statements that it recognizes that the literal wording goes too far and won’t be applied. But, so far as I know, it has not yet done any of these things. PRC authorities may be scrambling to come to a conclusion about what to do to meet the rising world concern and opposition.

In the interim, Article 38 has certainly had a strong deterrent impact in many countries and is already affecting the calculations of many NGOs and ordinary citizens abroad about their plans and conduct. The State Department is of course most immediately concerned about Americans currently within China’s borders, presumably including Hong Kong, since they are subject to immediate enforcement of the broadest interpretation of 38 if that is the path the PRC decides to pursue. But it should surely notify anyone who, although not currently in China, is planning to travel there, including those who may merely be planning to pass through en route to further destinations.

It is interesting to see the emphasis on private electronic communications. The email warns citizens that they may be detained or deported “for sending private electronic messages critical of the Chinese government.” What is the State Department’s premise? That emails and phone calls wholly between persons outside China are susceptible to PRC monitoring and potentially subject to prosecution? Internet chats? Direct communications between someone outside China and someone inside? “Only” communications wholly within China? The NSL has already had an impact outside of Hong Kong, but it is still unclear what the full impact will be. However, I suppose we have to be grateful that the HKNSL has done a lot to alert the world to the dangers of arbitrary detention in China that too many have long ignored. 

The 709 Crackdown is a Permanent Process

By Jerome A. Cohen

I recently had an interview with William Yang on the fifth anniversary of the “709 Mass Arrest.” Although I do not think that the intensity has increased, this campaign has become a permanent, ongoing process. This is partially because the original crackdown did not wipe out all of its intended targets, but also because Xi Jinping is experiencing increasing pressure at home and abroad. Read the full interview here.

Our 709 commemoration evokes the memory of the 1957-58 anti-rightist movement

By Jerome A. Cohen

The ongoing suppression of human rights lawyers and legal scholars in China makes me recall the huge attack that was dramatically launched against them in early June 1957 as Mao decided to end the dangerously developing “Hundred Flowers Bloom” Campaign by launching the Anti-Rightist Movement. One of the major targets was law professor YANG Zhaolong, Harvard Law SJD and protégé of former Dean Roscoe Pound, who played a prominent role in Republican China’s legal development and who decided to stay on to help build a post-Liberation legal system. He was often attacked in existing legal publications of the day, detained and punished as an “extreme rightist” and, after his release, again punished severely during the Cultural Revolution as a “counterrevolutionary”. In 1971, Yang was first sentenced to death but, because he was so well-known abroad, this was reduced to life imprisonment. His wife and son also suffered severely. After Mao’s death and Deng’s rise, Deng, who had presided over the horrendous Anti-Rightist Movement as the Party’s Secretary-General, began the process of rehabilitating (平反píngfǎn) many of those who had been most unfairly abused. Yang died in 1979 some time after his release and was posthumously rehabilitated in 1980. In 2017, Fudan University managed to get by the censors a massive volume of Yang’s collected writings, mostly but not entirely from the relatively freer pre-Liberation days, in tribute to him but also as an impressive, implicit signal of the continuing loss to China’s rule of law efforts.

To Stay or to Go: Hong Kong Academics Face an Uncertain Future

By Jerome A. Cohen

Following the passage of the Hong Kong National Security Law, it was announced that educational materials will be subject to government “guidance,” and some libraries have begun to pull books by pro-democracy activists off the shelves. This bleak turn of events is obviously worrying to the academics living and teaching in Hong Kong and has been the subject of much discussion with some wondering if they should leave, or if it is even more important now that they stay.

These events have made me think of 1949-1950 when many able Chinese returned amid the excitement of creating a new and stronger China. Others returned later, especially during the optimistic 1953-57 period. Some important and talented people were not permitted to leave the US for China for several years after “Liberation,” especially Qian Xuesen, the Cal-Tech rocket scientist who later became famous for his role in PRC nuclear development. Some intellectuals even chose to go back in the 1960s just before the Cultural Revolution broke out. The great Harvard-based scholar Ch’u Tung-tsu, who in 1962 published Local Government in China Under the Ch’ing and who welcomed my interest in China during our brief meeting, had the misfortune to return not long after the book’s publication. I next heard of him when my wife bumped into him and a small group of Shanghai scholars climbing Huang-shan in mid-September 1979. Life would have been pleasanter and more productive for him had he remained at Harvard’s East Asian Research Center. 

My hope is that people stay if possible and continue to teach and research as they have previously done. As an example, before Hong Kong was returned to the PRC in 1997, China News Analysis chose to leave Hong Kong for Taipei, leading to the demise of the publication. Father Ladany, its editor when I was breaking into the field in the ‘60s, was a shrewd observer and critic of the PRC’s efforts to develop a legal system, and it is a shame that the publication left when it did. Of course, we all hope that those foreigners who stay on to teach sensitive subjects like history and law in HK will not suffer the fate of French academics who decided to stay on in Shanghai after “Liberation.” In a long piece that is about to be published and that is already on SSRN, I discuss, among other things, the PRC’s criminal punishment of Dean Andre Bonnichon of the Aurore University Law School in Shanghai. Fortunately, he was ultimately released and later vividly described the long incommunicado detention and coercion that he suffered, which hopefully will not happen to those who wish to stay in Hong Kong. Whatever happens, those on the outside will surely learn from the experiences of those who stay. We must wish them bonne chance!