Economist: (Aaron Halegua Quoted) China’s labour law is no use to those who need it most

Whether in the breathless years of double-digit economic growth or today’s more languid era, one constant in China has been the poor state of workers’ rights and the frequent outbreaks of labour unrest. From coalminers in the snowy north-east to factory staff in the steamy Pearl River Delta, workers have agitated against low pay, wage arrears, unsafe conditions and job losses. A law on labour contracts that took effect in 2008 aimed to keep Chinese hard-hats happier, and on paper it should have succeeded. Indeed, the worldwide ranking of employment-protection laws by the Organisation for Economic Co-operation and Development, a rich-country think-tank, puts China near the very top of the tables on several indicators.

In practice, however, the law has only helped a bit. The lack of independent unions or genuine collective bargaining leaves China’s blue-collar workers vulnerable and grumpy. Incidents of labour unrest remain widespread. Around 600 strikes or protests have been reported this year, according to researchers at China Labour Bulletin, a Hong Kong-based watchdog, who reckon this tally of known incidents may represent only 10-15% of the actual number. The government is trying to keep unrest in check by lowering the threshold at which the police intervene. In Beijing protests used to be broken up if 50 workers showed up; now ten will suffice.

But even though the law has left blue-collar workers in the lurch, it has brought considerable, unintended benefits for white-collar ones. Managers in all sorts of companies—Chinese, foreign, state-owned and private—complain that the law makes it difficult to fire office staff, even in cases of egregious malfeasance. “When the law was written, we didn’t anticipate this,” says Wang Kan of the China Institute of Industrial Relations.

He describes a case involving a senior executive at a big technology company who was caught subcontracting work at grossly inflated prices to a firm that he had established using a relative’s name. His employer was unable to meet the extensive documentary and procedural requirements laid out in the law, so could not dismiss him. The executive’s departure instead came on terms he dictated: he got a huge payout and the firm he was leaving even waived non-compete restrictions it would normally have imposed.

Blue-collar workers may have even less job security than before, partly because of slowing growth and the closure of some state-owned firms. Yet they are often unable to use the labour law to protect themselves. Many of them, especially the tens of millions of migrant workers who roam from job to job in construction and other lowly roles, are taken on without formal contracts, says Aaron Halegua of New York University, even though that contravenes the law in itself. If an employer denies any relationship with a worker and there are no documents to prove one, he says, the worker’s case will seldom reach a court or arbitration panel.

Professionals have also been better able to use the labour law because they are paid enough to hire legal help. Lawyers are not allowed to take on cases in exchange for a share of any settlement. Theoretically the All-China Federation of Trade Unions, an umbrella for all Chinese unions, offers legal aid to blue-collar workers as part of its mandate. Since it is completely controlled by the Communist Party, however, it typically prizes the government’s desire for stability over workers’ calls for fairness.

China does have a handful of campaigning lawyers and NGOs that seek to offer legal help to abused blue-collar workers, but they are routinely met with professional censure or worse forms of intimidation. Communist Party officials instinctively respond more fiercely to aggrieved blue-collar workers than to white-collar ones. When they lie awake at night worrying about labour unrest, they picture mobs of manual labourers with pickaxes, not swarms of pen-wielding office drones.

This article appeared in the China section of the print edition under the headline "Workers, disunited"

CFR: (Margaret K. Lewis) Why Beijing Fails to Fight Human Trafficking

Affiliated Scholar Margaret K. Lewis of Seton Hall University was interviewed by CFR about human trafficing in China.

The latest U.S. State Department report on human trafficking was notable for its harsh assessment of China’s performance and the country’s downgrade to the world’s lowest tier of ranking. This change in tone regarding human rights in China by President Donald J. Trump’s administration could complicate relations, says Margaret K. Lewis, professor of law at Seton Hall University, in a written interview. Lewis says human trafficking and forced labor are likely to remain significant problems in a society where overall human rights are under steady assault by the Chinese government. China’s leadership, she says, has chosen to decisively silence voices who advocate for the protection of human rights, which are perceived as threats to the ruling communist party.

What is the state of human trafficking, including forced labor, in China?

Deeply troubling. China remains both a country of origin and destination for cross-border human trafficking. Credible reports paint an alarming picture including forced labor, particularly among drug addicts and ethnic minorities, and repatriation of North Koreans to grim fates. There are also concerns regarding the seriousness with which the government is investigating and prosecuting sex and labor traffickers. China needs to revise its domestic laws to bring them in line with international standards and then implement those laws robustly so that they are not mere paper tigers.

The opacity of China’s criminal-justice system and government makes it difficult to define precisely the scope of the problem. Among the recommendations in the State Department’s 2017 Trafficking in Persons (TIP) Report are a call for greater transparency of Chinese government efforts to combat trafficking and better data sharing. Reports that some officials facilitate or are even complicit in trafficking heighten concerns.

How does China respond to such naming-and-shaming reports?

The current Chinese leadership has vigorously refuted all international criticism of its human rights record. The Chinese Foreign Ministry spokesperson responded to the 2017 TIP Report by stating that China is “firmly opposed to the irresponsible remarks made by the United States based on its domestic law about others’ efforts against human trafficking.”

The U.S. Trafficking Victims Protection Act (TVPA), which Congress first passed into law in 2000, mandates the tiered classifications and is a domestic law. But the fundamental standards by which China is being judged are those of international law to which China, as a sovereign state, has largely voluntarily committed itself.

China is a party to critical international agreements concerning human trafficking. The United States is not asking China to adopt its domestic laws. It is calling on China to live up to international standards.

Read the entire article here.

Aaron Halegua Quoted in Bloomberg Article About a Chinese Labor Activist Who Wants Ivanka Trump to ‘Take Responsibility’

 

The Chinese Labor Activist Who Wants Ivanka Trump to ‘Take Responsibility’

When Ivanka Trump announced in March she would take a job at the White House advising her father, labor-rights advocate Li Qiang had found his highest-profile target yet.

By homing in on factories that supply Ivanka Trump-branded products, the founder of New York-based China Labor Watch thought the daughter of newly elected President Donald Trump could become a potent illustration of the problems facing Chinese workers like those employed by one of her suppliers -- whom he said are often overworked, underpaid and unprotected.

Li’s group had begun to look for possible Ivanka Trump suppliers the previous June when her father was campaigning for the presidency. By the time Ivanka Trump made her announcement, Li’s group had spoken to more than 100 workers around China to identify Huajian Group, which supplied Ivanka Trump shoes under license to Marc Fisher Footwear.

In March, Li sent investigators to what he said turned out to be one of the worst facilities among more than 600 his group has probed, with some employees working 18 hours, six days a week, for about a dollar an hour. Management also fined workers for being late or calling in sick, Li said.

He wrote to Ivanka Trump personally in April, urging her to take action in a letter sent to the White House. A month later, Li lost contact with the three investigators. They had been held by police, the first time in the group’s 17 years that its activists had faced criminal detention.

“I feel a bit lost,” said Li, 45. “It’s hard to understand why the Chinese government wanted to lock them up.”

Labor Conditions

Though the Huajian factory in the southeastern province of Jiangxi makes shoes for other well-known companies, Li said he focused on Ivanka Trump’s brand because he believes her actions could force changes in labor conditions in China and pave the way for other brands to seek improvements. Li said he is not seeking responses from Huajian or Marc Fisher about his findings as he wants Trump “to take responsibility.”

From a 500-square-foot office near Herald Square, Li seeks out labor abuses in the country he fled two decades ago. He sends contractors, activists and sometimes volunteers to get production-line jobs, where they interview workers, take pictures and videos. Li’s group has documented child labor, inadequate safety training, excessive overtime, poor living conditions, fines for tardiness and late wages.

“Having an independent party to investigate factory conditions is invaluable,” said Aaron Halegua, a consultant on labor issues and research fellow at New York University’s School of Law. “Otherwise, there’s often no way to corroborate or challenge the claims that brands make about their supply chain.”

The group has had major successes. Violations at Apple Inc. supplier Pegatron Corp. led the tech giant to work with the manufacturer to improve factory conditions. Samsung Electronics Co. reviewed some of its Chinese factories after abuses at suppliers were exposed.

Exposing Abuses

In China Labor Watch’s latest case, Huajian denied that employees were underpaid or forced to work excessive hours. “Western media have been misled by China Labor Watch,” which has “undertaken illegal actions in China to gain twisted information, in order to profit,” the company said in a statement.

Li said his group does not seek to profit from any of its probes, including the Ivanka Trump-related investigations.

“Our goal was to use the information to expose labor abuses at the factory,” Li said. “Huajian has twisted the fact and tried to hide the truth of the breaches.”

Shanya Perera, spokeswoman for Marc Fisher, declined to comment. Abigail Klem, the Ivanka Trump brand president, has said in an e-mailed statement to Bloomberg News that its licensed products haven’t been produced at the factory since March, and that licensees are “required to operate within strict social compliance regulations.” A spokeswoman for Ivanka Trump didn’t respond to requests for comment.

View article here.

Aaron Halegua Interviewed about Saipan Workers on Voice of America

Aaron Halegua, a research fellow at USALI, appeared on Voice of America's Mandarin television news program to discuss labor conditions involving Chinese construction workers in Saipan. The interview was part of the May 16, 2017 news broadcast. The plight of these workers has received a significant amount of recent media attention, including a May 4 story by the New York Times

 

NYU Law Professor Cynthia Estlund Discusses New Book at Asia Society/ChinaFile

Aoril 21, 2017

USALI Faculty Adviser Cynthia Estlund was featured by ChinaFile regarding her new book, "A New Deal for China's Workers?" published in January 2017 through Harvard University Press. 

Read and watch at ChinaFile.com

hina’s labor landscape is changing, and it is transforming the global economy in ways that we cannot afford to ignore. Once-silent workers have found their voice, organizing momentous protests, such as the 2010 Honda strikes, and demanding a better deal. China’s leaders have responded not only with repression but with reforms. Are China’s workers on the verge of a breakthrough in industrial relations and labor law reminiscent of the American New Deal?

In A New Deal for China’s Workers? Cynthia Estlund views this changing landscape through the comparative lens of America’s twentieth-century experience with industrial unrest. China’s leaders hope to replicate the widely shared prosperity, political legitimacy, and stability that flowed from America’s New Deal, but they are irrevocably opposed to the independent trade unions and mass mobilization that were central to bringing it about. Estlund argues that the specter of an independent labor movement, seen as an existential threat to China’s one-party regime, is both driving and constraining every facet of its response to restless workers.

China’s leaders draw on an increasingly sophisticated toolkit in their effort to contain worker activism. The result is a surprising mix of repression and concession, confrontation and cooptation, flaws and functionality, rigidity and pragmatism. If China’s laborers achieve a New Deal, it will be a New Deal with Chinese characteristics, very unlike what workers in the West achieved in the last century. Estlund’s sharp observations and crisp comparative analysis make China’s labor unrest and reform legible to Western readers. —Harvard University Press

Bloomberg: Token Dissent Plummets in China as Comrade Xi's Power Grows

NYU Law Professor and USALI Director Jerome A. Cohen was quoted in this Bloomberg article. 

"China’s parliament -- never known for its independence -- saw dissenting votes sink to their lowest level in more than a decade as President Xi Jinping demands greater loyalty ahead of a crucial party reshuffle.

Only 14 of the 2,838 lawmakers who turned up Wednesday for the closing session of the National People’s Congress voted against approving the annual report on the government’s performance and targets for the coming year. That compares with the 101 dissenting votes cast in 2013, the final report presented under Xi’s predecessor, Hu Jintao. 

Other reports introduced by the supreme court, state prosecutors and the legislature all received fewer “no” votes than at any point since at least 2006. Earlier data was only sporadically available in Chinese media reports, which failed to provide a breakdown of votes in some years.

The results show how successfully Xi has curtailed public dissent as he prepares for a Communist Party gathering later this year to reshuffle much of the country’s top leadership. Xi has sought to avoid any drama before the twice-a-decade event as he seeks to win backing for his economic reform plans and secure lasting political influence.

“Since Xi Jinping’s ascendance and particularly today, it is clear that the party has brought the legislature to heel,” said Jerome Cohen, a New York University School of Law professor who has been studying China’s legal system since the 1960s. “The annual voting records provide an unusually clear symbol of what has taken place politically, just as the numbers in environmental smog reports clearly delineate increasing pollution.”"

To read the entire article, click here. 

Visit from Former President Ma Featured on NYU Law News

In his second trip to the United States since stepping down as president of Taiwan in May 2016, Ma Ying-jeou LLM ’76 visited NYU Law and spoke with Professor of Law Jerome Cohen, holding forth on topics including the dispute over the Diaoyu Islands and the challenges of bipartisanship in Taiwan. Co-sponsored by the Asia Law Society and the U.S.-Asia Law Institute, the event was very popular and featured a dynamic discussion.

Read about the event here.

Associated Scholar Yu-Jie Chen and Margaret Lewis Featured in ChinaFile

recalibrate.JPG

December 5, 2016

On Friday, Donald Trump shocked the China-watching world when news broke that he had spoken on the phone to Taiwan President Tsai Ing-wen. The call was remarkable not for its content—Tsai’s office said she told Trump she hoped the United States “would continue to support more opportunities for Taiwan to participate in international issues.” Rather, it was the way in which the call, by implicitly recognizing Tsai as a head of state, seemed to presage a radically different Taiwan policy. Is this beneficial for U.S. interests, for Taiwan, and for global stability? —The Editors

Yu-Jie Chen

Much of the American and international commentary on U.S. President-elect Donald Trump’s call with Taiwan’s President Tsai Ing-wen has focused on whether it was a strategic move or a foolish gaffe and its potential repercussions for U.S.-China relations.

It is crucial to understand not just the perspectives of Washington and Beijing but also that of Taipei. To begin with, although de jure independence would be desirable to many in the Republic of China on Taiwan, which already enjoys de facto independence, the Taiwan government is not seeking to declare independence for the obvious reason—the near certainty that Beijing would fire missiles against the island. Many Taiwanese are pragmatic in thinking about their country’s future and do not favor provoking a war. This point seems to be lost, however, on some Western media commentators who unnecessarily caution America not to recognize Taiwan as an independent state.

What Taipei seeks, at least in the foreseeable future, is to deepen its relations with the U.S. (and with other states and international organizations generally) in a functional, meaningful way. This is a reasonable, and in fact modest, goal. Contact between Taiwan’s democratically elected leaders and their counterparts in countries that do not have diplomatic ties with Taiwan has long been severely suppressed as a result of Beijing’s pressures. Taiwan’s leaders have to maneuver even for brief “transit” stops in the U.S. to conduct very limited direct exchanges with merely a few Congressmen and analysts.

Yet, effective exchanges between Taipei and other states and international organizations are important not only to Taipei but also to those that want to cooperate with Taiwan in political, economic, social, and cultural realms. The U.S., while not formally recognizing Taiwan, must find ways to conduct regular, high-level discussion with the Taiwan government for their mutual benefit. Such practice is not without precedent. From 1955 to 1970, Washington and Beijing held a series of ambassadorial-level talks in Geneva and Warsaw regarding the repatriation of nationals even though the two sides then had no diplomatic relations. (I thank Jerome A. Cohen for this point.)

Similar innovative efforts should be considered with regard to Taiwan. For example, the proposed Taiwan Travel Act introduced in the U.S. House of Representatives last September rightly points out that it should be the U.S. policy 1. to permit high-level Taiwanese officials to enter the U.S. and to meet with U.S. officials and 2. to permit the Taipei Economic and Cultural Representative Office—Taiwan’s de facto embassy—to conduct official business in the U.S. More support is needed, as a similar bill in 2013 failed. In an encouraging step, the U.S. House on Friday passed a bill that for the first time authorizes senior U.S.-Taiwan military exchanges.

More broadly, Taiwan, with its vibrant civil society, has much to contribute to global governance in an increasingly interconnected world. However, Taiwan’s outreach has long been hampered by China’s campaigns to pressure other countries and international organizations not to allow Taiwan’s participation. Examples abound. Just last month, the International Criminal Police Organization (Interpol) rejected Taiwan’s first application in 32 years to attend Interpol’s annual meeting as an observer, although Taiwan can and should play a significant role in the global fight against transnational crime with its able law enforcement forces and advanced information technology. A few weeks later, a Taiwanese NGO dedicated to the research of rare diseases, which had been invited to take part in a U.N.-affiliated meeting, was not even permitted to enter the U.N. building.

One positive thing that might come out of the fuss over the Trump-Tsai call would be much greater public attention to the predicament confronted by Taiwan and to the urgency of updating U.S. policy to expand communication with Taiwan and, more broadly, expanding Taiwan’s well-deserved participation in global affairs.

Margaret Lewis

o not know if Mr. Trump has read Analects, but if Confucius had a Twitter account, he might caution the president-elect that “Going too far is as bad as not going far enough” (過猶不及, guòyóubùjí). “Recalibrate,” as used in the prompt for this ChinaFile conversation, suggests a careful adjustment, not a rash, radical departure from current practice. While the start of a new administration is a fitting time to reassess the status quo of U.S. policy towards Taiwan, the perils of impetuous action far outweigh any potential benefits of hastily shaking things up.

I join Ms. Chen, above, in welcoming the U.S. government to consider “innovative efforts” with respect to policy towards Taiwan. But any such creative efforts require space to incubate and would be undermined, if not demolished, by a Twitter-based foreign policy.

A thoughtful recalibration of U.S. policy requires not only time but also people who are knowledgeable about Taiwan. One consequence of China’s opening to the world has been that many younger American scholars obtain language training in the mainland instead of Taiwan (myself among them). This has tremendous benefits in terms of American understanding of the People’s Republic of China; it has, however, diverted American students from Taiwan. This is a mistake. The most knowledgeable American experts on Taiwan come from the generation that often spent significant time living in Taiwan as they honed their language skills.

The flurry of interest in Taiwan over the past few days has brought into sharp relief how necessary it is for the U.S. to maintain a deep bench of Taiwan experts. Hopefully a silver lining of the kerfuffle over “The Call” (and here’s hoping that history will prove this episode to be a mere passing fuss) will be a renewed interest in academic exchanges and research projects involving Taiwan.

Read the entire article and all expert commentary here.

Associated Scholar Aaron Halegua Quoted in Bloomberg Article

The Chinese government doesn’t want labor groups organizing workers to fight for their rights.

Dexter Roberts

November 10, 2016 — 5:00 PM EST

Hong Kong activists calling for the the release of Meng Han. Source: China Labour Bulletin

Panyu, a district spotted with factories and half-finished real estate developments, is largely indistinguishable from the rest of the Pearl River Delta, China’s biggest export manufacturing hub. Until recently, though, it was recognized widely by China’s migrant workers as the home of the country’s most active independent labor rights group, the Panyu Migrant Workers’ Center, which has helped thousands of workers in their disputes with factory managers.

On Nov. 3 in the Panyu District People’s Court, China’s authorities took the latest step in crippling the growing labor movement. Meng Han, a former hospital guard turned activist at the Panyu Center, pleaded guilty to disturbing public order by inciting workers to strike. He was sentenced to 21 months in prison. Meng, who many had thought would dispute the charges, faced sleep deprivation and harsh interrogation at first, during the almost 12 months he’s been held already, says Han Dongfang, founder of the Hong Kong-based China Labour Bulletin, a workers’ advocacy organization. Meng’s parents had to move from their apartment after unidentified thugs defaced their door with axes, Han says.

Three of Meng’s colleagues at the Panyu Center, including director Zeng Feiyang, pleaded guilty to similar charges in September and were given deferred sentences. Zeng, who’s married, was also accused in state media of having at least eight girlfriends and sending sex videos to others. “They are trying to intimidate us,” says Zhang Zhiru, who heads the Shenzhen-based Chunfeng Labor Dispute Service Center.

 

Scaring labor activists into submission is part of the leadership’s strategy to tame unruly migrant workers. Increasingly educated and internet-savvy, these workers have taken to the streets over unpaid wages and social welfare benefits, as well as unsafe work conditions. The government is also working to supplant independent labor groups by reinvigorating the more than 200 million-strong All-China Federation of Trade Unions (ACFTU), the only state-approved umbrella union. “The Communist Party is trying to get rid of the existing activists that have established social networks and destroy their legitimacy,” says Wang Kan, an expert on Chinese labor activism and a professor at the China Institute of Industrial Relations in Beijing. “They want to get rid of the troublemakers and buy themselves some time” while they reform the official union.

The labor groups have already faced harassment, particularly since President Xi Jinping took office in 2013. Zhang of the Chunfeng Labor Dispute Service Center has had to move his office more than a dozen times since police ordered landlords not to rent to his organization.

Late last year, security officials cracked down on the 110 or so labor rights groups operating in China, focusing on Guangdong province, where about half of them are based. Police interrogated at least 20 individuals who promoted labor rights and detained seven. While three were released, Meng and his colleagues were charged and convicted. “The government doesn’t want workers to organize,” says Duan Yi, a Shenzhen-based labor lawyer whose firm has represented workers involved in more than 100 strikes. The labor environment has become “very, very sensitive.” Duan met a reporter in a coffee shop, saying an interview in his office would draw unwanted attention.

Labor groups including the Panyu Center have been accused in Chinese state media of being manipulated from abroad—often meaning from Hong Kong. “We must earnestly and painstakingly ensure the stability of the trade unions and watch out for infiltration,” Shanghai Federation of Trade Unions head Hong Hao told the state-backed news website ThePaper.cn in July.

 

On Jan. 1, a new law will make it much harder for Chinese nongovernmental organizations to take money from or work with organizations overseas. Chinese workers’ groups have long had a close association with Hong Kong-based activists, one reason they are suspected by officials. The labor groups played an historic role supporting the Communist Party against the Nationalists in China’s civil war. Officials worry that another party will gain strength by allying itself with worker groups, says Jane Liu, China program manager at Social Accountability International. Beijing has its hands full in Hong Kong, where it won’t allow two elected, pro-independence members of the Legislative Council to be sworn in.

Founded in 1925 as a “transmission belt” (to quote Lenin) to send worker concerns up to the party and party orders down to the factory, the ACFTU has become little more than a social association, holding the annual company Chinese New Year parties and organizing basketball tournaments for workers. When labor disputes arise, the ACFTU is often viewed by labor as siding with management over workers. “Most of what they focus on has nothing to do with what we would think a union does. They have lost their roots,” says Sheila Wong, deputy director of the Guangzhou-based Inno Community Development Organisation, which is helping a local branch of the ACFTU install a worker grievance hotline.

At a top-level meeting in July 2015 on the work of China’s three largest mass organizations—the Communist Youth League, the All-China Women’s Federation, and the ACFTU—Xi harshly criticized the union for not properly carrying out its job, says Wang of the Institute of Industrial Relations. Mass organizations must avoid “being alienated from the people,” the official Xinhua News Agency reported Xi as saying. “They are caught in a very tough place,” says Aaron Halegua, a lawyer and research fellow at New York University’s U.S.-Asia Law Institute who recently wrote about the legal representation of Chinese workers. “On the one hand, the union is supposed to represent workers, but that must be done without actually empowering workers.”

Read the entire article here. 

Associated Scholar Aaron Halegua Quoted in TakePart

Rebecca McCray, "China's Growing Labor Movement Threatens Beijing," TakePart, March 16, 2016 (quoting Aaron Halegua on the reasons for the rise in strikes and labor unrest in China, including the economic downturn, increased worker consciousness, and the lack of an effective trade union or other means of negotiating between workers and management). 

"Government-Sponsored Legal Aid and the Role of Labor NGOs in China: A Story of Displacement?", The Global Transformation of Work: Market Integration, China's Rise, and Labor Adaptation, Rutgers University (March 17, 2016).

Why Prostitutes and Not Pimps?

The following comment by Professor Jerome A. Cohen appeared in the New York Times "Room for Debate" web-feature on July 31, 2010. Professor Cohen was one of several scholars to comment upon China's recent ban on public shaming of criminal suspects.

Some years ago, I went to the city of Fushun in northeast China to meet the deputy mayor in an effort to settle a dispute that started with a Chinese company's fraud against its American joint venture partner. I was prepared to report the case to the police and prosecutors if necessary but could hardly be confident whether I would be taken seriously.

As I approached Fushun by taxi, I was passed by a long parade of open trucks that interested me more than it did the roadside pedestrians who took little note. In the open part of each truck stood three hapless Chinese, each held by the scruff of the neck by a uniformed policeman and each wearing a large sign with the name "Economic Criminal."

It was not clear where they were going or had come from. Were they en route to a public accusation, a mass trial or sentencing or even a mass execution? Or was this vehicle parade, held during one of China's periodic "strike hard" campaigns against crime, simply a public deterrent against further misconduct?

I told the mayor, who was responsible for supervising the defrauding company, how happy I was to see that economic crime was being vigorously suppressed. He got the point and settled amicably.

Every government "shames." The questions are always: how, for what purposes and with what effects? Some government actions are designed to shame, but shame is often a byproduct of other actions that serve less controversial purposes.

The Chinese people continue to be troubled by crime and need effective police protection. Yet their increasingly educated and "rights conscious" society increasingly condemns police arrogance, brutality and errors. Memories of the public humiliation, torture, suicide and killing of the Cultural Revolution are still in the minds of mature citizens, and the Internet and, occasionally, investigative journalists reveal and ridicule today's law enforcement scandals.

Ordinary Chinese who formerly had no voice are beginning to express a strong desire for equality, fairness and justice and for recognition of individual dignity in daily life. They now ask: Why are alleged prostitutes paraded before they are convicted? What about their patrons and pimps and the corrupt police who will let them work again as soon as the "strike hard" campaign is over?

Will this latest attempt by the central government to stop this form of "shaming" succeed? Those who understand China's government have a saying: "The center has its policies. The locality has its ways of evading them."

A Scholar's Insight Into China's Budding Legal System

This article was published in the New York Times on July 28, 2010 under the title, "A Scholar’s Insight Into China’s Budding Legal System."

Author: Richard Bernstein

NEW YORK — It was the early 1970s, and Jerome A. Cohen, at the time a specialist on China at Harvard Law School, was having dinner with Prime Minister Zhou Enlai in Beijing.

“I told Zhou, ‘You should put somebody on the International Court of Justice,”’ Mr. Cohen recalled. “Well, he and the other Chinese officials at the dinner laughed uproariously. They thought I was Jack Benny. Why would Communist China want to put somebody on a court where they’d be outvoted by all those capitalist judges?

“But they’ve done it,” Mr. Cohen said, illustrating one of the things that seems normal in China today but that was almost unthinkable when China’s opening to the world was brand new. “They’ve staffed all international organizations with excellent legal talent.”

Mr. Cohen, who essentially created the U.S. study of law in the People’s Republic of China, has been following developments in Chinese law for roughly half a century, lately as professor of law at New York University and as a frequent commentator on various legal and human rights cases in China.

It’s fair to say that when Mr. Cohen got started, the U.S. study of modern Chinese law didn’t exist, and neither really did law in China. And so, he’s had a privileged view of a remarkable development, the creation virtually from scratch of the entire Chinese legal system.

Mr. Cohen recently celebrated his 80th birthday, which seemed a good time to ask him to assess how China has done over the years.

Most people who follow the frequent accounts of human rights violations in China would answer that China hasn’t done very well, and when it comes to human rights, Mr. Cohen largely agrees. In the last few years he has become a major source of information about human rights, or their absence, in China, his specialty being the instances where China fails to observe its own law.

Only last week Mr. Cohen published an article on the case of Xue Feng, a naturalized U.S. citizen recently sentenced to eight years in prison in China for helping his U.S. employer purchase a commercial database on Chinese oil resources — an act that the Chinese Ministry of State Security deemed to be a violation of the country’s catchall state secrets law.

Mr. Cohen’s article, published in The South China Morning Post and in Chinese in The China Times on Taiwan — both newspapers that are paid attention to inside China — listed at least half a dozen instances in which the police or prosecutors broke China’s own law in their handling of Mr. Xue’s case.

After he was seized by the Chinese police in November 2007, for example, Mr. Xue was held incommunicado for months in a secret prison. He was tortured. He didn’t have access to legal counsel for about a year. And his trial was closed not only to the public but to Mr. Xue’s family — all in blatant violation of China’s own Criminal Procedure Law.

In addition, the U.S. Consulate wasn’t informed of the arrest of Mr. Xue for 32 days, rather than the four days provided for in the two countries’ consular agreement.

But while Mr. Cohen has the expertise to point out these violations and to publicize them, he takes a moderate and balanced view of the overall picture, seeing some promise in the creation of an entire legal culture that simply didn’t exist before.

“There are now some 200,000 judges, close to 180,000 prosecutors, roughly 170,000 lawyers, and thousands of law professors, as well as tens of thousands of people with legal training who staff local, regional and central government agencies and most large enterprises,” Mr. Cohen said. “And while they have different viewpoints, they all do have an interest in promoting a legal system that’s blatantly inadequate in some respects, but does well in others.”

Over the years, Mr. Cohen has met with members of numerous legal delegations organized by the Chinese Supreme Court that have visited the United States, including one soon to arrive to study punishment policies — “because they want to improve, and they know they are under enormous criticism abroad because of their death sentence policy.”

“Last year a delegation came to study exclusion of illegally obtained evidence, an effort to stop coerced confessions and torture,” Mr. Cohen said, pointing out that last month China published new rules trying to ensure that coerced confessions wouldn’t be admitted in courts.

“But,” Mr. Cohen said, “when it comes to the most basic questions of the fundamental decencies that every government should observe toward its own citizens, this government and this party have failed to cut the mustard.”

It’s a paradox, explained in part by Mr. Cohen as an unintended consequence of China’s efforts to build a legal system, which its leaders want for the sake of credibility and legitimacy.

“They’ve done a lot to create an awareness of law and rights, and they’ve trained a series of overlapping legal elites that want to use their legal educations to help people defend those rights,” Mr. Cohen said.

But with more and more people seeing the law as a means of challenging arbitrary authority — by protesting being evicted from their homes by real estate developers, for example — the security apparatus steps in to enforce what China often calls “social stability.”

“The first reaction of the leaders is repression,” he said. “And in cases that involve state security, they’re not too fastidious about their own law.”

Mr. Cohen has what might be called the foreigners’ advantage in calling attention to China’s human rights shortcomings. He can freely write and publish, where Chinese colleagues cannot. And, while he has no doubt angered the authorities from time to time, he is clearly held in high esteem by many in the budding Chinese legal world itself.

In May this year, Tsinghua University Law School in Beijing held a conference on criminal justice and the role of defense lawyers in honor of Mr. Cohen’s 80th birthday, which would seem to be a sign of progress in itself, even if, as is often the case in China, a note of repression marred the event. At the last minute, one leading Chinese criminal defense lawyer was removed from the program by the authorities — no explanation provided.

http://www.nytimes.com/2010/07/29/world/asia/29iht-letter.html?_r=0

Swede’s Crime Confession on China TV Rattles Foreign Groups

BEIJING—The detention and televised confession of political crimes by a Swedish activist in China has sent chills through communities of foreigners that engage in civic issues in the country.

Beijing’s public shaming of Peter Dahlin is a sign that China’s leaders may now be trying to muzzle international critics with the same tactics they’ve deployed against local dissidents, say activists, lawyers and academics.

In footage that was played repeatedly by state broadcaster China Central Television on Wednesday, Mr. Dahlin is shown admitting to having broken Chinese laws through a small legal-aid nonprofit he co-founded in 2009.

“I have caused harm to the Chinese government, I have hurt the feelings of the Chinese people,” Mr. Dahlin says in the video. “I apologize sincerely for this and am very sorry that this ever happened.”

State media reports accused the Swede of endangering state security—a serious crime that carries a potential life-sentence—by funding Chinese human-rights lawyers and compiling reports on China’s rights record. They also alleged that hostile foreign forces planted Mr. Dahlin in China.

In a statement on Thursday, a spokesman for Mr. Dahlin’s nonprofit, called the China Urgent Action Working Group, dismissed the allegations as baseless and suggested his confession had been coerced. The charges show “the authorities consider the promotion of human rights through public interest litigation to be a criminal activity,” said Michael Caster, the spokesman.

The Swedish Embassy in Beijing noted the media reports about Mr. Dahlin but declined to comment further. Swedish officials “continue to work intensively” on Mr. Dahlin’s detention, an embassy spokeswoman said.

China’s Foreign Ministry has said it is respecting Mr. Dahlin’s legal rights, including granting consular officials access to him.

Televised confessions are increasingly common in China, but rare for foreigners and even more so for political crimes. In 2013, Charles Xue, a Chinese-American businessman who criticized the government online, confessed on TV to soliciting prostitutes. The same year, Peter Humphrey, a British investigator involved in a business dispute, confessed on TV to illegally obtaining personal information on Chinese citizens for profit. Both men were detained and then released, Mr. Humphrey after nearly two years.

ENLARGE

This image from Chinese TV shows Peter Dahlin, the Swedish co-founder of a nonprofit in China, confessing to political crimes that his advocates say was coerced. PHOTO: CCTV VIA AP VIDEO

Mr. Dahlin’s disappearance in early January and subsequent reappearance on television two weeks later has stoked anxiety among other foreigners working on Chinese civil society issues, including in areas previously seen as less sensitive, such as anti-discrimination.

“This is a red alert. It’s super red,” said one former country director of a foreign nonprofit in China.

The portrayal of Mr. Dahlin as an instrument of hostile foreign forces comes amid a resurgence in Maoist ideological rhetoric and heightened concern in China over the influence of foreign ideas.

Much of Beijing’s attention has focused on the influence of foreign civic groups, which Beijing fears could be trying to foment unrest of the sort that toppled regimes in the former Soviet Union and more recently in the Middle East. Foreign media coverage, textbooks and scholarship have also come under attack in state media.

Jeffrey Wasserstrom, an expert in modern Chinese history at the University of California, Irvine, said the treatment of Mr. Dahlin illustrates the growing difficulty of determining where Beijing’s political red lines are—and the harsher punishments meted out for crossing them.

“There are many cases where things that seemed relatively unproblematic to do a few years ago or even 12 months ago have gotten people into trouble,” he said. “The system has always been far from purely rational and predictable, but now it is even more so.”

One key source of concern in Mr. Dahlin’s case, some foreigners say, is state media’s depiction of reports he wrote on China’s human-rights situation as being a part of his criminal activity. CCTV said reports Mr. Dahlin sent to foreign groups were based on data he collected online and hadn’t personally witnessed, raising questions over their accuracy.

Legal experts say these were likely standard memos that are required by nearly all major nonprofit donors.

“They make it seem like it’s some sinister foreign intelligence report when in fact it’s the most natural of observations about how money is being spent to improve human rights in China.” said Jerome Cohen, a veteran China legal scholar at New York University.

The segment also showed an interview with a member of China Urgent Action Working Group identified only by his surname, Wang, who said Mr. Dahlin twisted or fabricated facts in the reports. “In fact, the aim was to create a disturbance, to wait for the right moment to try to subvert our nation’s sovereignty and the leadership of the party,” the man said. Chinese activists identified the man as Wang Qiushi, a human-rights lawyerwho was detained by police this month.

The criminalizing of negative reports about China could potentially curb the activities of not just activists, but academics, analysts, journalists and others involved in collecting and publishing information about China, legal experts said.

“One could well imagine that reports regarding health or other subjects like that which might be considered injurious, given the very broad definition China has of its national security, could also be subject to prosecution,” said Lester Ross, a lawyer with many years’ experience working in China.

Some in China have advocated using the country’s criminal laws to more aggressively counter international criticism of the country. In December, a website belonging to the Communist Youth League quoted legal scholar Zhu Wei arguing that a German citizen who had compared Mao Zedong to Hitler in a controversial YouTube video could be punished under Chinese law—even though he lives abroad.

Mr. Wasserstrom said a rising tide of official criticism might make it riskier to conduct some research in China and lead to self-censorship by younger scholars eager to maintain research access in the country.

Write to Josh Chin at josh.chin@wsj.com.

Jerome A. Cohen Featured in WSJ Article on Swedes Crime Confession on Chinese TV

Published January 21, 2016. To read the entire article please click here. 

BEIJING—The detention and televised confession of political crimes by a Swedish activist in China has sent chills through communities of foreigners that engage in civic issues in the country.

Beijing’s public shaming of Peter Dahlin is a sign that China’s leaders may now be trying to muzzle international critics with the same tactics they’ve deployed against local dissidents, say activists, lawyers and academics.

 

Media Coverage of Ling Li’s Research on the Judicial Corruption

Chinese vase frenzy: bribery and the auction house
As the Chinese government pays ever more attention to the country's pervasive corruption, art auctions have become the latest ruse for those giving or soliciting bribes.

By Malcolm Moore, Shanghai

12:30PM GMT 25 Mar 2011

Auction houses on the Chinese mainland are poorly-monitored, according to Li Ling, a law lecturer at Northwest University in Xian, and present a useful forum for people to pass bribes to each other.
The Chinese vase frenzy: Bribery and the auction house
The vase came from the collection of Dai Run Zhai, a Chineseman who became New York's most distinguished art dealer after moving to America in 1950

The practice helps to explain some of the hugely-inflated prices that have been paid for Chinese art in recent years, although there is no suggestion that international auctions are also being exploited by grafters.

A typical scenario would see the person who wants to be bribed putting an artwork or antique of little value up for auction. The briber then buys the agreed piece for a huge sum, according to Ms Li in a research paper, 'Performing Bribery in China.'

Sometimes, the auction house is not even required.

In one case discovered by prosecutors in the eastern city of Nanjing, a property developer bought two paintings directly from a government official. The appraised value of the paintings was 3,000 yuan (£284), but the developer paid more than 333 times as much.

The sly arrangement, and the role of the auction houses, has become the subject of a quasi-autobiographical bestseller by Hu Gang, a Chinese author and former auctioneer.

Mr Hu was convicted in 2003 for bribing three judges with 490,000 yuan in exchange for commissions to carry out auctions of court-seized property. He wrote "Celadon", a novel about a corrupt auctioneer, from his jail cell.

In the book, a protagonist called Mr Zhang bribes a judge in a remarkably circuitous way.

First Mr Zhang arranges for a tutor to teach the judge's son Chinese calligraphy. Then, he discreetly auctions the son's calligraphy at his auction house, and instructs his friend to bid for it. As the auctioneer, he then hands an envelope of cash to the judge, even subtracting the auction commission from the total.

"It can stand any investigation," Mr Zhang reassures the judge.

Mr Hu has confirmed that while the book is fiction, it is an accurate reflection of real life. The book has become wildly popular in China as a manual of how to practice the delicate, and often underhand, art of cultivating business relationships.

http://www.telegraph.co.uk/news/worldnews/asia/china/8406314/Chinese-vase-frenzy-bribery-and-the-auction-house.html