The Ongoing Detention of Lawyer Li Yuhan

By Jerome A. Cohen

Lawyer Li Yuhan, image taken from Front Line Defenders.

Recently, Lawyers for Lawyers wrote a letter calling for the release of Li Yuhan, a Chinese human rights lawyer who was detained three years ago for “picking quarrels and provoking trouble.” The letter cites urgent medical conditions and calls for her immediate release. The case of Li Yuhan is another sad example of how in the PRC the Communist Party, police, prosecutors and judges continue, despite various legislative reforms and Xi Jinping’s frequent orders to “do everything according to law,” to act “as a single fist” in coercing confessions, even from human rights lawyers. In every political system, vigorous lawyers are sometimes thought by some people to “provoke trouble.” This is what happens to them in the PRC.

I don’t know Ms. Li Yuhan but she is apparently among the many courageous Chinese lawyers who, despite severe health disabilities and massive physical and psychological pressures, has persistently sought to resist being coerced into false “confessions.” What seems to be unique about this case is the reported promise – made not by Party, police or prosecution but by the very court scheduled to determine guilt or innocence in a supposedly impartial public trial – that, if only she would finally “confess,” they would restore her right to practice law again after her release. I have never heard of this mode of coercion before, a new addition to the repulsive bag of tricks that the PRC has perfected into an art form. How and why Ms. Li has managed to hold out against these horrendous pressures remains a mystery, of course, and I wonder how much longer she can do so, with what consequences. One reason why she has not succumbed to this promise may well be an understandable skepticism that the promise would be fulfilled.

Also notable about this case, although certainly far from unique, is the length of time she is being detained prior to “trial,” far exceeding the maximum prescribed in  the Criminal Procedure Law unless special approval has been obtained from the highest national government authority. I wonder whether evidence of such approval exists. Here one also has to wonder about the restrictions imposed on the lawyer allowed to represent her, who apparently has finally had access to her and learned about the unsuccessful judicial coercion almost a year ago.

Perhaps the only recourse available to Ms. Li’s family and others seeking her freedom is to invoke the ancient Chinese legal tradition of seeking to block the emperor’s procession in order to have him hear their cries of injustice. But, as they well know, this would only lead to the endless detentions of those engaged in the effort. So much for the vaunted “trial-centered justice” that current reforms claim to implement!

I assume (and hope), because of the publicity surrounding the detention of the “Hong Kong 12,” that they will not receive similar treatment to Ms. Li’s.

Law, Justice, and Human Rights in China Seminar

By Jerome A. Cohen

On September 16, we held the first session of a New School-sponsored seminar “Law, Justice, and Human Rights in China,” co-taught with Teng Biao, a famous but exiled Chinese law professor, lawyer, law reformer and human rights activist, and moderated by Katherine Wilhelm, executive director of the U.S.-Asia Law Institute at NYU Law School. The seminar introduces the legal system of the PRC with a focus on constitutional law, legal institutions, criminal justice, and human rights. The first session covered pre-Communist legal history in China, and the recording can be heard here. The seminar will take place every Wednesday from 2pm-4pm EST through November 18, 2020. You can register here.

China's Criminal Justice System Again Takes Center Stage

By Jerome A. Cohen 

I just published an article in The Diplomat discussing many of the questions that are raised by the Chinese criminal justice system. The recent detentions of Professor Xu Zhangrun and Ms. Geng Xiaonan and her husband, the continuing repression of mainland Chinese dissidents and minorities, and the plight of the “Hong Kong 12,” detained while fleeing to Taiwan, illuminate some of the system’s many problems. You can read the article here.

China's Troubling Limitations on Consular Visits

By Jerome A. Cohen

Mark Swidan, an American detained in China since 2012.

This is an excellent, if disconcerting, Guardian report on the case of American Mark Swidan, who was detained in China in 2012 and sentenced to death for drug trafficking. Although the UN has declared that Swidan was arbitrarily detained in violation of international law, consular visits do not appear to have been denied in his case. As I pointed out last week in discussing the case of Australia’s Cheng Lei, video consular visits are de rigueur in China during the virus crisis. I don’t think the refusal to allow in person consular visits is a reasonable ground for protest in the current circumstances under either the Vienna Convention or the bilateral US-China consular agreement as long as credible video visits are provided. As in Cheng Lei’s  case, they are not as satisfactory as in person visits, if only because of the more limited basis for close personal observation of the detainee. But, and this should be emphasized, the health restriction is recognized as acceptable as long as it seems genuinely required and not an implausible excuse.

For Cheng Lei, I wonder whether it would be possible for groups to ventilate PRC action against her in a way that might lead to her release before Christmas or at least Chinese New Year, by which time the initial RSDL detention limit will have almost been reached. When Ai Weiwei was detained under RSDL in April 2011, before it was legislatively authorized in  cases like his and now Lei’s, his many friends and admirers made several PR efforts of various kinds that helped secure his release after a bit over two months of unpleasant confinement. But that was just before Xi Jinping’s ascension, and Ai was not the national of a government at odds with the PRC, as Lei is. I assume someone has retained an experienced Beijing lawyer for Lei, not that much can be done at the moment by even the best criminal lawyer in China. Of course, after many RSDL detentions have expired, the suspect is not released but sent for the start of the usually much longer, conventional criminal process detention. That may or may not permit identification of the suspect’s location, the anticipated  basis for prosecution and eventually even the first restricted contact with a defense lawyer. 

Regarding consular visits pre-Covid, in the Chinese practice, which has allowed consular visits even for the two Canadian Michaels, what is unacceptable is the narrow scope permitted to each visit. It is generally brief, and the visitor is not allowed to discuss the case that landed the hapless detainee in detention! In the Swidan case – another self-inflicted black-eye for the PRC’s reputation for non-consular reasons – the mother has a lot more to worry about than possible closure of the Guangzhou US Consulate, which is not yet on the cards, since, even if it were closed, video and eventually in person visits will continue to be possible, with diplomats sent as necessary from some other US post including the embassy in Beijing.

I admire John Kamm, the chairman of Dui Hua, for his persistent and outspoken efforts in Swidan’s case, as in so many, but wonder why Trump’s State Department is not making more of a fuss in public. Kamm and Swidan’s mother have criticized the US government for its lack of action on the case. Of course, we don’t know about the merits of the PRC accusation against the detainee, but the PRC criminal procedures against him have been a cruel scandal. We should note, however, that the mother, but not the brother, has had phone contacts with her detained son, at least on occasion. 

The PRC’s use of criminal justice and other excuses for detaining foreigners, even some civil cases in various ways, is a topic that deserves extended analysis, especially since arbitrary detention now is frequently in vogue in Beijing in order to gain international relations leverage. Foreign relations often affect a country’s justice system. In my youthful prosecutor days, I saw how American juries could be affected by headlines about relevant international crises. But Hostage Diplomacy, as practiced by any state, is beyond the pale.

A Reflection on Multinational Law Firms and Their China Practices

By Jerome A. Cohen

Here is a useful update on the fate of foreign law firms that began to venture into the PRC in 1979. In 2020, four global firms have either closed offices or severed ties with a partner firm in mainland China, and in the last five years, eight top firms have closed at least one China office. This news has led me to reflect on the topic, since I was in on the start, before Chinese firms, which have now become such formidable competitors and partners, had even been formally re-established after the end of the Cultural Revolution. This story has to be viewed as part of the broader efforts by American and other Western firms to establish offices throughout East Asia after the end of World War II and especially following the Korean war. Local lawyers in each of the East Asian countries, some freshly returned from study in North America, the UK and the Continent, often did their best to resist the foreigners’ entry into practice, although many in the governments of those countries often saw the desirable aspects of foreign entry for the modernization and internationalization of their economies and legal systems. There was a long, gradual acceptance of foreign firms, usually under careful restrictions that represented compromises with the local bar and under WTO and bilateral trade arrangements. These still exist to varying degrees.

Two anecdotes, both from the 1973-74 period, illustrate the situation. Japan’s quickly developing market was the first target of Western law firms. After Isaac Shapiro, then leading Milbank Tweed’s international efforts in Asia, persuaded the Japanese Foreign Ministry to allow him to set up shop in Tokyo -- NOT as a law firm but as the representative of the firm’s major client, The Chase Bank, I called on MOFA’s head of North American Affairs on behalf of Coudert Brothers, then another top international firm. Now that we had this favorable precedent, I said, was it not time to allow foreign law firms to establish Tokyo offices in their own names? With a straight face, this able Yale Law graduate, an evident sympathizer with the local bar, replied: “That was no precedent. That was a mistake!” Eventually, however, the situation In Japan improved for international law firms and that gradually had an influence elsewhere in the region.

In 1973, I met with Prime Minister Lee Kuan Yew on the subject in the hope of breaking the barrier Singapore lawyers had presented. Lee saw the utility of gradually introducing foreign firms in order to improve the legal services for international transactions in the rapidly developing area and to stimulate the rather sleepy local bar to higher standards. But he also did not want to suddenly break the rice bowls of local practitioners, especially since his wife and brother were running a profitable international law office. So, he decided to admit one foreign firm, Coudert Brothers, with a determination to admit others over time as conditions warranted, which is what happened.

It is notable that, even after that, the UK’s colonial government limited the entry and practice of non-UK firms in Hong Kong, and that only the 1997 “Handover” of HK to the PRC opened the way to the current more competitive situation in which PRC law firms have also played an increasing role.

One point to stress in evaluating the withdrawal of some foreign law firms from China is that some may have withdrawn for reasons unrelated to their China practice. The late, lamented Coudert Brothers, for example, which led the way for foreign law practice in Beijing beginning 1979, left the field because problems largely unrelated to China led to the firm’s dissolution!

As Tensions Rise, Australian Citizen Cheng Lei is Detained in Beijing

By Jerome A. Cohen

On August 14, the Australian government was notified that Cheng Lei, an Australian citizen working as a TV anchor for China Global Television Network, was detained in Beijing and is being held under “residential surveillance at a designated location” (RSDL). Although Australian scholarship on comparative law and politics relating to China is impressive, no learned books, law review articles or op-eds can do as much to alert public opinion to criminal injustice in China as recent arrests of Australian citizens who were formerly PRC nationals. They highlight the regime’s resort to RSDL, which vitiates the ordinary protections prescribed in the PRC’s Criminal Procedure Law for up to six months by authorizing the incommunicado detention that has so often fostered torture and coerced confessions. Good luck to those who seek to organize legal assistance for Ms. Cheng Lei!

On August 27, Australian officials held an initial consular visit over videoconference with Cheng. It would be interesting to learn details of the consular visit remotely allowed. Did Australia press for an in person visit but was rebuffed? Was the remote visit different in substance from the usual in person visit? Still the same restrictions against discussing the case that landed the suspect in detention? Generally, one of the few benefits of the PRC’s restricted consular visits is the opportunity for the visiting diplomat to closely observe the physical and mental condition of the suspect and to detect any gestures or reactions that might reveal the true conditions of the suspect’s plight. To what extent was the remote interview satisfactory in this respect or others? I have never been happy with the refusal of the protecting foreign government, the US included, to reveal information about detention of its nationals by invoking rules against violating the detainee’s privacy. My experience in seeking to aid detainees held in China suggests that they often need and want publicity in order to generate public pressure for their release or at least the improvement of the conditions of confinement.

China's Continuing Fear of the Nobel Peace Prize

By Jerome A. Cohen

Last week, China’s Foreign Minister Wang Yi visited Norway to resume talks on a bilateral free-trade agreement, and also to warn against giving the Nobel Peace Prize to Hong Kong protesters. Ironically, Wang said that the PRC does not “want to see anyone politicize the Nobel Peace Prize.” Wang is an intelligent, sophisticated and handsome representative for China in the world, but increasingly nationalistic and prone to losing his temper at press conferences in a way that makes him look like the chief of the PRC’s diplomatic “wolf warriors”, which indeed he nominally is.  

The argument that award of the Prize to China’s international human rights warriors is “interference in China’s internal affairs” is no more persuasive today than in the past. International human rights, which the PRC selectively endorses and invokes in its dealings with other states, is by definition not an exclusively internal matter for any state. The PRC’s continued repetition of this hollow nonsense is another example of its increasing attempts to interfere with the internal and external affairs of other countries. Nothing would be more appropriate this year than for the Nobel Peace Prize to be awarded to one or more Hong Kong organizations that have been striving to protect human rights in Hong Kong and the Mainland. In addition to the obvious candidates, the Hong Kong Bar Association should be considered. Its barristers are the last line of legal defense for the city’s human rights. 

However, award of the NPP has often seemed a puzzle, if not a disappointment. I thought Kissinger’s sharing it with his North Vietnamese counterpart was odd, and Obama got it before he had a chance to do anything to earn it. Taiwan’s former President Ma Ying-jeou deserved to be considered after he started his second term as president because of the extraordinary accomplishment of concluding some 20 cross-strait agreements with a PRC that had always maintained it would never conclude agreements on an equal footing with a mere province. I said so when in 2012 Taiwan media asked how I evaluated his first-term achievements. That didn’t get Ma the Prize, but it did anger some other former students who have long advocated Taiwan independence! 

Sadly, the PRC has reneged on implementation of some of these agreements with Taiwan since the 2016 election of current President Tsai Ing-wen because of her refusal to endorse the so-called “1992 Consensus,” according to which Taiwan is part of China, although the two sides never agreed which of the contending governments should be deemed the representative of that “China.”

China's (Ironic) Role in the Law of the Sea

By Jerome A. Cohen 

It was recently reported that Duan Jielong, the Chinese ambassador to Hungary, was elected a member of the International Tribunal for the Law of the Sea (ITLOS). Although the PRC has appointed its ambassador to a land-locked country to be its representative on ITLOS, Duan is a specialist in international law, as he served as the head of the Ministry of Foreign Affairs’ Department of Treaties and Law earlier in his career. His most recent ambassadorial appointment may have been designed to broaden his experience and resume. However, many ironies remain! 

What deserves noting is that ITLOS, although named the International Tribunal for the Law of the Sea, does not get to decide all of the most important law of the sea issues, due to the flexible menu of options that UNCLOS provides member states while compelling them to accept compulsory dispute resolution of one kind or other. As some know, the 2016Philippine arbitration award that is finally being propelled to the attention it warrants was not an ITLOS decision but that of a panel of five well-known experts selected in accordance with UNCLOS alternatives to ITLOS. If, as perpetually threatened, Vietnam finally brings itself to initiate an UNCLOS arbitration against China, it, like the Philippines, may decide to avoid ITLOS.

Serving as the PRC’s ambassador to Hungary may not be the most demanding of diplomatic positions, but serving as its representative on ITLOS may seem like a well-deserved vacation, certainly compared to serving as head of the PRC’s Treaty and Law Division, which does have to deal with all law of the sea disputes as well as the multitude of other international law issues in which the PRC is embroiled.

In view of China’s prominence, I don’t think it unwise to have a permanent PRC representative on ITLOS (since the tribunal’s establishment in 1996, there have been three Chinese judges), even while the PRC flagrantly inflicts upon itself the grave wound of contemning the result of the UNCLOS dispute resolution processes to which it committed itself in ratifying the treaty. Even though both the PRC and the United States refuse to submit to the compulsory jurisdiction of the International Court of Justice, it is nevertheless useful to have their perennial able experts on the ICJ. “Hope springs eternal….”

We should recall that a major reason why the United States, unlike the PRC, the Philippines, Vietnam and so many other states, has disgracefully refused to ratify UNCLOS is the US unwillingness to submit itself to the compulsory dispute resolution system that is one of this great treaty’s most distinctive features.

Finally, it is worthwhile yet again to emphasize that the Philippine arbitration award is NOT the product of the Permanent Court of Arbitration in the Hague, which only provided its admirable facilities for the litigation.

What Big Data on China's Lawyers Fails to Mention

By Jerome A. Cohen

This China Daily story on Beijing’s lawyers has recently been called to my attention. The Ministry of Justice has published data from 2019 on the number of lawyers, law firms, and revenue generated, among other things. It shows the great growth in the legal profession since its renewal following the rise of Deng Xiaoping in 1978. Deng, of course, had been Party Secretary-General in 1957 when Mao launched the Anti-Rightist Campaign that put China’s then Soviet-style lawyers out of action for over two decades. When in August 1979 the Beijing Economic Development Corporation asked me to organize an international commercial law training program for city officials, none of whom had legal training, only a handful of lawyers had begun to reemerge and it took several years for legal education to be revived and lawyers and law firms to be formally authorized once again. 

Unfortunately, the statistics that were just released are not comprehensive. They fail, for example, to mention the number of lawyers who have been disbarred and the number of law firms that have been forced to close (many for political reasons). Some of the statistics seem surprising, such as the small number of supporting staff (this may be a definitional problem) and the small number of arbitration cases in which lawyers took part, probably a reflection of the fact that most arbitrations have not involved significant enough claims to make retention of lawyers sensible or feasible for claimants. The small number of criminal cases in which lawyers took part is not a surprise, since most Chinese criminal defendants have gone without lawyers, especially in lesser criminal cases. Note the very big jump in lawyers’ revenue (a year-on-year growth of 16.64%). It’s an incentive for them not to risk the good life by getting drawn into a range of tempting human rights matters that often end lawyers’ careers and even their personal freedom.

Indefinite Confinement under China's Mental Health Laws--Another Type of Arbitrary Detention?

By Jerome A. Cohen

Chi Yin, formerly an Intermediate Court judge in China and now my colleague at NYU Law School’s US-Asia Law Institute, and I have just published a Diplomat piece on detention in China’s mental hospitals. The article follows the case of Feng Xiaoyan, who was taken to a mental hospital by her husband after being arrested, but then released, for distributing pro-democracy pamphlets. Although she was diagnosed with schizophrenia, her daughter maintains that her mother is entirely sane and was only taken to the hospital by her husband because of the threat that her political activism posed to his career. China has a law against involuntary admission except in certain instances. Yet involuntary confinement seems to occur to a disturbing extent, and patients can end up in indefinite legal limbo with little recourse. You can read the full piece here.

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.

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?

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.

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.

The new national security law for Hong Kong: “Do what we say and you will be fine and even happy.”

By Jerome A. Cohen 

Here’s an RTHK interview with my former student Professor Albert Chen—who is a member of the Basic Law Committee—about the new national security law, 'Security law is like a new social contract'. 

As every law professor should know, a contract is one voluntarily entered into by the parties to the contract. Perhaps earlier one might have optimistically said that, despite the unequal bargaining powers of the parties, the Basic Law established a social contract since, over a very long negotiating process, the UK and even representatives of the people of Hong Kong took part in the different stages of the negotiating process. But the new national security law is in no possible sense a contract. It is a secretly drafted, extremely vague, non-negotiable political and social diktat that has immediately shrunk freedoms in Hong Kong.

The new “rule of law,” enforced by Mainland police and their local minions, is “Do what we say and you will be fine and even happy.” People will gradually lose even their freedom to be silent. Sadly, the time for benign optimism has plainly passed.  

My quick reading of the troubling national security law for Hong Kong

By Jerome A. Cohen

I have been asked by journalists about the new national security law (NSL) for Hong Kong (Chinese text here; Xinhua’s English translation here). Here are some quick comments that highlight some of the key points to be made about this new law, which bristles with legal issues. Zhang Xiaoming’s ambiguous but threatening remarks just quoted by Reuters make what is written below, written before Zhang’s latest remarks, even more relevant, beginning with the paragraph numbered 2.

The real impetus for the NSL is not the need to prohibit the offenses proscribed, although some new ones, especially relating to “foreign and external” influence, have been added to the already largely adequate Hong Kong criminal laws. 

The major changes can be summarized under four categories:

1. Institutional innovation establishing Central security and judicial controls over anything called national security and integrating Hong Kong Government firmly under control of the Central security agencies

2. Jurisdictional expansion designed to give Central security agencies, prosecutors and courts control of punishment of those deemed the most serious offenders AND the discretion to decide which of the most serious should be tried in Hong Kong but under the new system of Hong Kong “justice” for national security cases. This means that some suspects will be forced to go to the Mainland for detention, prosecution, trial and sentencing by Mainland authorities skilled in dealing with national security cases, or tried in Hong Kong under the imported Mainland system! (No reference to the nasty, inflammatory concept of “rendition/extradition” but how do the suspects shipped to the Mainland get there?)

3. This leads to the third category — Procedural innovations for suspects including not only residents but also people outside Hong Kong charged with acts abroad. For example, the new Mainland Office in Hong Kong can question, investigate, detain and deny bail to people according to Mainland practice, including Invitations to tea and no privilege against self-incrimination when police ask questions. If as prescribed the Office decides to prosecute you under Mainland processes either in Hong Kong or the Mainland, under the PRC Criminal Procedure Law, as a national security case suspect you can be locked up for as long as 6 months incommunicado, which subjects you, illegally of course, to torture and coerced confession, legally to no access to counsel or family or friends, before the police decide whether to process you for a crime according to the ordinary procedure. If the police decide instead to process you under the new Hong Kong special procedure, you get specially selected Hong Kong prosecutors and judges. And no jury trial but three judges. If selected for trial by Mainland processes, either in Hong Kong or in the Mainland, you get the usual Mainland national security processes, such as they are.

4. The fourth category is the electoral consequences of the new law. If you fail to endorse it, you can be removed from existing public offices — Legco or District Council — or disqualified from running for those offices, etc.

Much depends on the Law’s interpretation by the National People’s Congress Standing Committee (NPCSC), which has exclusive power to interpret. How should those special Hong Kong judges allowed to deal with these cases obtain any necessary NPCSC interpretation? Normally a Hong Kong court could itself interpret the Law or even invalidate a provision subject to later NPCSC reversal. But now only the NPCSC can take the first and last shot at its meaning.

There’s also the important question of how “state secrets” in many places of the Law will be interpreted. Based on the Mainland’s practice, “state secrets” are whatever the police choose to define them as in the case at hand and, despite relevant legislation, it is impossible to seriously challenge the designation in discussions with prosecutors before or after indictment or in front of judges during trial and appellate proceedings. Usually defense lawyers themselves simply have to accept the designation and certainly cannot seek help from experts or others since they are not allowed to reveal to others any information pertaining to these secret, closed trials. Years ago a defense lawyer I had recommended to a Chinese defendant in an alleged “State secrets” case could not risk discussing the proceedings with me.

As to the tricky Article 38 (“This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.”), some nations in principle claim the right to punish foreigners as well as their own nationals for acts abroad that have serious adverse consequences at home or against their nationals abroad. Others purport only to ban the adverse acts of their own nationals abroad. There will be a huge reaction to any PRC claim to punish foreigners for adverse acts committed abroad that are not proved to have serious consequences at home or against the nationals of China abroad. The international community is likely to reject any attempt at such a claim as another PRC violation of public international law. In interpreting Art 38, as it will have to, the NPCSC will undoubtedly look to the relevant provision of China’s criminal law and say that foreigners may be punished if their acts have a certain level of seriousness, such as that of similar offenses in China that call for at least three years of punishment, AND IF those acts are also punishable in their own country. Thus, Americans, for example, can safely condemn the NSL while in the US without being subject to PRC conviction for a NSL violation since such condemnation is not punishable in the US, being an act of free speech.

To me, more serious is the range of problems arising from the inevitable need to interpret the collusion with foreign forces provision. These are not merely interesting theoretical questions but of the utmost practical significance to foreign and Taiwan scholars who cooperate with HK academics, lawyers, NGOs and democratic political figures. Do I dare to host Martin Lee, Jimmy Lai, Dennis Kwok or Anson Chan (if she returns to the scene) again at the Council on Foreign Relations in New York? The legal danger will be theirs; I will probably be mentioned only as an unindicted co-conspirator!

All in all, this is a Takeover of HK, not, as billed, a “second Handover”.

For a checklist and analysis of the issues, the long piece I had in The Diplomat a couple of weeks ago may be of interest, since many issues discussed in that piece are rising daily.

Thoughts on Human Rights Lawyer Wang Quanzhang’s Interview

By Jerome A. Cohen

Human rights lawyer Wang Quanzhang

Here is the latest report on the famous, now released from prison, human rights lawyer Wang Quanzhang. Its description of the torture and many other abuses he suffered while being convicted on national security grounds in China should be of interest to all in Hong Kong who might fall into the category of “the very small number” of people whose prosecutions for violations of the forthcoming National Security Law might subject them to central authorities.

The report is a curiosity in several respects. Why has the PRC allowed this first “face to face” media interview with Wang as well as his earlier interviews with overseas media? This is not normal “non-release release” for PRC ex-political prisoners.

Why does the interview feature only the torture and other charges that Wang has already made known but says nothing about his earlier vow to pursue justice and try to review his case in PRC courts? Has Wang made any progress in this notoriously uphill struggle? How has he tried to proceed? Is he refusing to talk to foreign media about this current effort in order to avoid possibly prejudicing it because of adverse PRC official reactions?

The translation of the interview seems a bit odd in places, especially to call the abusive police, prosecutorial and judicial measures taken against Wang “sloppy.” I wonder what the Chinese term Wang used was.

A disturbing report about a ”national security court” in Hong Kong

By Jerome A. Cohen

Here is a disturbing report that is more than imaginative speculation. Hong Kong’s Secretary for Justice is expanding the effort of Hong Kong elite to prepare local and world public opinion to accept a new and special ”national security court” in Hong Kong as part of the forthcoming NPCSC legislation.

The CCP makes do without one in the Mainland, of course, since the Party controls all courts there. But Hong Kong’s common law system presents distinct challenges that are apparently deemed to require a distinct response. Perhaps experts informed about the secret and widely-criticized operations of the United States Foreign Intelligence Surveillance Court should be asked to advise the NPCSC or, better yet, comment in public. The FISA court oversees requests from federal law enforcement and intelligence agencies for surveillance warrants to secretly monitor alleged foreign spies inside the United States.

Will the HK court operate as secretly and compliantly as the FISA court in approving electronic monitoring, search and seizure, arrest and other sanctions? And, if foreign judges are allowed to participate in such a distinctive and worrisome court, how will they be selected and in what circumstances will they function?

China, Hong Kong and June 4th

By Jerome A. Cohen

Today Hong Kong police, citing the need to enforce social-distancing rules, rejected permission for the annual June 4th vigil, for the first time in 30 years. In a governmental system where too little is transparent, one thing is transparent — the excuse for the June 4th ban is not credible. The Hong Kong Government and the Central Government plainly do not want to give Hong Kongers the opportunity to express themselves about either June 4th, 1989 or June 4th, 2020.

Will Hong Kongers be able to hold the vigil next year? A year is an eternity in politics, and predictions are hazardous. Yet, unless there is an unexpected change in leadership in Beijing, it surely seems likely, especially in light of the forthcoming legislation of the Standing Committee of the National People’s Congress (NPC) and the recent NPC Decision, that Hong Kong might follow Macao in succumbing to the Amnesia that has long been forced upon the Mainland.

Such amnesia is pernicious. Mankind lives by symbols, and they often invoke the supreme sacrifice of martyrs to admired causes and revered values. Just as the Chinese Communist Party has rung the changes on the “century of humiliation” that preceded its seizure of power, we should not forget one of the greatest tragedies of what will soon be the century of humiliation that the CCP has been inflicting upon freedoms of expression and protections against arbitrary punishments for one-fifth of humanity.

Of course, it is not appropriate for an arm-chair observer far away to tell the people of Hong Kong what to do in their crisis. Yet, if it were still a free society, I would say “Let a Hundred Flowers Bloom!” Being an optimist, I hope that those who choose to stay and the majority who cannot leave will, even at this stage, find a way to make an imaginative, record-breaking, totally peaceful protest against their impending fate.

I also hope that the city’s unofficial elite, who until now have been paralyzed like deer in the headlights, will finally come together with positive, concrete proposals that might begin to restore public confidence and consensus and delay or moderate the anticipated, feared legislation of the NPC Standing Committee.

China’s Ministry of Public Security to “fully direct and support Hong Kong police”

By Jerome A. Cohen

Here’s a statement on May 29 by the Ministry of Public Security (MPS) vowing to “fully direct and support Hong Kong police” to stop violence and chaos. The timing is fascinating. At a time when some pro-Beijing elite in Hong Kong are seeking to assure the public that the establishment of national security organs in Hong Kong has minimal significance and that their offices there will only play a modest, quiet role similar to that of the Ministry of Foreign Affairs office, why does the MPS make a statement that, at least in the minds of millions, will maximize anxiety about the forthcoming national security legislation by the National People’s Congress Standing Committee?

To be sure, other millions in Hong Kong may feel greater comfort at the prospect of the notoriously efficient MPS directing the Hong Kong police and thereby enhancing prospects for suppressing violence, vandalism and even peaceful mass protests, but they are not the ones raising international alarms in opposition to the forthcoming legislation.

At a time when the forthcoming legislation is being finalized, is this a move by the MPS to assert its preeminent role in controlling Hong Kong’s security, upstaging the Ministry of State Security (MSS) that the non-Mainland media often assumes will play a dominant role? The two major PRC secret police institutions often have had difficulties sorting out their respective responsibilities on the Mainland where foreign and HK elements are involved. Although generally receiving less media attention, the “guobao”, national security division, of the MPS has seemed ever present in restricting and punishing the human rights activists and lawyers I have been involved with over the years, not the MSS. But perhaps that is because the MSS usually operates more unobtrusively.

Can the people of Hong Kong gain comfort from this MPS announcement?