2013

Chen Guangcheng speaks of change in China at 18th Hauser Annual Dinner

Text courtesy of  NYU School of Law News

The event, now in its 18th year, brought together current scholars, faculty, alumni and friends of the Hauser Global Law School Program. Following welcoming remarks by Dean Richard ReveszGráinne de Búrca, Florence Ellinwood Allen Professor of Law, highlighted the achievements and research of current Hauser fellows, and Leah Trzcinski ’13, editor in chief of the Journal of International Law and Politics, spoke of the journal’s adoption of a peer-review process. Please follow this link for the announcement of the Journal of International Law and Politics' peer-review process. 

Rita E. Hauser, the alumna who founded the program with her husband Gustave Hauser (LL.M. ’57), kicked off the evening’s main event with an introduction of Chen, from his background as a “barefoot lawyer” who fought on behalf of victims of forced sterilization, to his insights into human and civil rights in today’s China.

Ira Belkin ’82, executive director of the U.S.-Asia Law Institute, gave an overview of the institute’s current projects on issues as wide ranging as land reform and the death penalty in China, and noted that its scholars not only do research, but also speak out publicly. Jerome Cohen, professor of law and specialist in East Asia law, welcomed Belkin’s return to NYU Law and shared with the audience the story of his friendship with Chen and how he became involved in Chen’s departure from China.

Speaking in Mandarin with Belkin serving as interpreter, Chen thanked his supporters in the room and offered clarification for a widely reported comment that he made in a phone call to former Secretary of State Hillary Clinton after his departure from the U.S. Embassy in Beijing last April. He had meant to say “I want to see you” rather than “I want to kiss you,” Chen said.

In New York, where he lives with his wife and two children, Chen has been able to rest for the first time in seven years, he said. He spends about half of his time working on a memoir, and the other half studying English and law and meeting with different organizations. He continues to follow events in China with interest. “Change in China is inevitable,” Chen added. “Whether the authorities are willing to change, this is the course of history.”

Asked what role he may play in this evolution, Chen answered that he is preparing for the future shifts in China by studying the Declaration of Independence and the U.S. Constitution. 

Please follow this link for the original article, "Chen Guangcheng speaks of change in China at 18th Hauser Annual Dinner," published in the NYU School of Law News. 

USALI Research Fellows Cited in Recent Article on Li Zhuang

Vincent R. Johnson and Stephen C. Loomis'  recent article, "The rule of law in China and the prosecution of Li Zhuang," published in The Chinese Journal of Comparative Law (2013), cites current and former USALI research fellows Margaret K. Lewis, Ling Li, and Elizabeth Lynch's research on corruption and criminal justice issues in China.

Professor Jerome Cohen Awarded PCI Building Bridges Award

On February 28th, the Pacific Century Institute awarded Professor Jerome Cohen the 2013 PCI Building Bridges Award, established to honor people who have enhanced relations between Americans and Asians and who exemplify PCI's commitment to building bridges to a better future. Former awardees include Kathleen Stephens, U.S. Ambassador to the Republic of Korea 2008-2011; Harold Brown, US Secretary of Defense 1977-1981; Maestro Lorin Maazel of the New York Philharmonic; and Christopher Hill, US Assistant Secretary of State 2005-2009.

Upon accepting the award, Professor Cohen delivered the following speech:

EAST ASIAN-AMERICAN RELATIONS: REMINISCENCE AND REFLECTION

Jerome A. Cohen

I am grateful to the distinguished Pacific Century Institute, Spencer Kim, Don Gregg and their colleagues for giving me such a welcome opportunity to think about "building bridges to Asia" - past, present and future. I feel like the man who discovered he'd been writing prose all his life! I hope you will accept my remarks as weightier, if not more humorous, than those of the late Conrad Hilton. When asked to reveal the lessons of his forty years in the hotel industry, he quipped: "Always keep the shower curtain inside the bathtub"!

Allow me at the outset a few reminiscences and thoughts about the past.

When, over half a century ago, I  started to combine law teaching with research on China, some people were supportive, some thought I must be having a nervous breakdown to throw away a promising career in order to study a country so hostile to the United States, and others simply gave me poor advice. I especially remember three bits of bad advice: 1)Academic life is not a good base for activism; 2)Law will never be important to the peoples of China and East Asia; and 3) Chinese do not care about the niceties of legal concepts and terminology. In short, they said, I was barking up the wrong tree.

Certainly, as the examples of Felix Frankfurter, John K. Fairbank and many others in the respective fields of law and Asian studies have shown, the independence, security of tenure and access to knowledge of academic life have enabled many a professor to be a participant as well as an observer. Those of us who opposed American military involvement in Vietnam benefited enormously from the university presidents and deans who defended our right to speak out. Moreover, in free countries, universities have often permitted faculty to offer shelter to foreign political reformers forced to flee their own country's repressive government. I remain very thankful to Harvard for inviting Korea's Kim Dae Jung, Taiwan's Annette Lu and the Philippines' Ninoy Aquino for periods of residence and learning that gave them both protection and intellectual stimulus while awaiting political progress at home. More recently, NYU has generously welcomed China's valiant "barefoot lawyer," the blind activist Chen Guangcheng.

The observation that law was and would continue to be relatively unimportant to East Asian countries proved equally inaccurate. When in 1960 I began my study of Asia, Japan was already refuting this proposition, demonstrating that Confucian/Buddhist culture was no barrier to democracy, human rights and the rule of law. Within three decades, both Taiwan and South Korea provided further impressive evidence as each peacefully overcame oppressive dictatorship. I returned only yesterday from taking part in a unique exercise in which Taiwan's government, excluded from United Nations' regimes, nevertheless asked foreign international law specialists to evaluate its progress in implementing the provisions of the two major international human rights covenants.

Today, over sixty years after establishment of its government, perhaps the most important, controversial and difficult problem confronting China's new leadership is what to do about law and justice. Can Xi Jinping and his comrades begin to transform their "socialist legal system with Chinese characteristics" into a credible instrument for coping with immense challenges, such as corruption and environmental degradation, while satisfying the rising popular demand for not only social and economic fairness but also political freedoms and constitutional and legal justice? Vietnam is currently in the midst of similar ferment. In each country the Communist Party confronts the issue whether it will allow the development of an autonomous legal system whose proudest achievement is an independent judiciary.

The third argument - that Chinese are indifferent to legal ideas and language - also turned out to be spurious. Echoes of the millennial debates between Confucianists and Legalists can still be heard throughout East Asia. Those of you who have diplomatic experience with Chinese officials, whether from Beijing or Taipei, are undoubtedly aware of the significance they have long attached to the articulation of principles and linguistic nuance. Think of the great 1972 U.S.-China Shanghai Communique, for example. The same is true in the domestic legal systems of the Mainland and Taiwan. At the moment, both foreign and domestic scholars are scrutinizing how the large number of carefully crafted and negotiated terms and phrases in China's new Criminal Procedure Law are being interpreted and applied in practice.

THE NEED FOR NEW BRIDGES

Now for some controversial reflections about the need to build new bridges in East Asian-American relations. As we all know, this is a dangerous time for several reasons. Let me briefly touch on new ideas in two areas, despite the obvious obstacles to their implementation.

First, North Korea. It is a cliché, in light of the DPRK's recent third nuclear test, to call for a fresh but more hostile response to the North, and many proposals are being made to this effect. Impatient calls for "regime change" are stronger than ever, despite horrendous risks. At a minimum, there is substantial appetite for much harsher condemnations of and UN sanctions against Pyongyang, even while acknowledging that they are unlikely to be any more effective than their predecessors. Fortunately, some voices urge caution and oppose hasty overreaction, and a few wise counselors, recognizing the increasing danger of our long failure to bring the North fully into the world community, are groping for a more positive approach that might radically improve the situation. I am glad to see that both Spencer Kim and Don Gregg are among them. Of course, realistic suggestions for halting the present escalation of tensions and beginning to reverse the moribund policies of both sides are hard to come by, particularly in view of the reservoir of ill will and mistrust that has accumulated during more than six decades.

My own preference dates back to the critical year 1972 when my family and I were living in Japan. After many months of discussions with North Korean officials based in Tokyo, my wife Joan and I, together with our three middle school sons, visited the DPRK for two weeks. It was at that optimistic time, marked by the then recent Nixon-Mao Sino-American breakthrough, that the idea of a comprehensive "grand bargain" with Pyongyang first seemed conceivable. The goal then, as still today, was two-fold: first, to gradually assuage the deep sense of strategic insecurity that Pyongyang understandably harbors and the reciprocal insecurity necessarily felt by South Korea, Japan, the United States and even China vis-a-vis the fiercely independent DPRK regime; and second, to go well beyond required arms control and security arrangements by welcoming the DPRK as a full member of the world community, in politics, economics and other respects, including normal diplomatic relations with the U.S. and its allies.

That early family visit - only the third to the DPRK permitted by the United States (New York Times and Washington Post correspondents preceded us) - made it clear that the North had no Zhou Enlai to smooth the way toward dramatic reconciliation. Several visits I made to the DPRK during 1997-98, however, revealed a government much better prepared to reach out to the world, especially for economic cooperation. Also in 1998, at the invitation of the Council on Foreign Relations, where I then headed Asian affairs, the DPRK sent a small group to Washington and New York for groundbreaking business and political talks. That led to a series of training seminars in international trade and investment law for North Korean officials, but held in China, with the co-sponsorship of NYU Law School and the Asia Foundation as well as our Chinese hosts. It also led two American multinational companies to explore business transactions in Pyongyang. Yet these promising sprouts died with the end of the Clinton Administration.

I mention these previous private initiatives because private initiatives may represent the best way forward with the North at this time. I hope that, given its farsighted record and board of trustees, PCI might consider taking the lead in convening, as soon as possible,  a series of Track 2 or Track 1.5 dialogues, first with China together with Japan, South Korea and the United States, and then with representatives of the DPRK as well as these other countries to explore the ingredients of a "grand dialogue." I am confident that appropriate co-sponsors can be found outside the DPRK and hope that Pyongyang will respond favorably to the prospect of such meetings, although it may insist, at least at the outset, on only a bilateral dialogue with Americans. In any event,  NYU's US-Asia Law Institute would be proud to be involved.

To be sure, the obstacles to the success of a Grand Bargain with the DPRK are probably greater than ever, both in this country and in Northeast Asia. Yet it may be possible to revive the atmosphere of the final days of the Clinton Administration, the last time when a breakthrough with the DPRK seemed possible. Indeed, perhaps former President Clinton and former Secretary of State Albright can be enlisted in our endeavor.

The second and final area I want to touch upon is the crisis in the East China Sea and South China Sea concerning disputes over both territorial sovereignty and the delineation of maritime boundaries. The danger of accidental or intentional armed conflict grows daily as an increasingly nationalistic, rising China asserts its international law claims in a frighteningly muscular fashion that has incited nationalistic reactions in other contending states.

In the East China Sea, during the past three years the forceful manner of Beijing's assertions of sovereignty over the Diaoyu (Senkaku) islands has backfired. It has alienated China's neighbors and prejudiced their views about the validity of China's underlying legal claim, which on the merits may be at least as persuasive as Japan's. The United States, because of our security treaty with Japan, is especially concerned that it may be drawn into any conflict.

Beijing's similar maneuvers over island sovereignty disputes in the South China Sea have also damaged its relations with adjacent ASEAN states. But the situation there has been exacerbated by its broad invocation of and vague justifications for the so-called "nine-dash line" in order to claim jurisdiction over most of the waters of the South China Sea.  That claim has aroused the anxieties of the United States, Japan, India and other maritime powers as well as those states within the region.

If these disputes are allowed to fester, the risk of armed conflicts is high. Yet how should they be settled? In principle each of the contending parties maintains that it is prepared to enter into negotiations over maritime boundaries but not over the sovereignty of islands that they occupy but that are claimed by others. The occupants of the disputed East Asian islands usually argue that there is no "dispute" and therefore nothing to negotiate about or to seek to settle by other means. This is the Japanese position about the Senkaku (Diaoyu), also claimed by China; the Chinese position about the Paracels, also claimed by Vietnam; and the South Korean position about Dokdo (Takeshima), also claimed by Japan. Failure to settle these territorial issues , however, has made the negotiation of mutually acceptable maritime boundaries more difficult.

Can these perilous territorial stalemates be broken? Of course they can if the disputants are willing to submit the claims they voice with such confidence to  determination by an impartial international tribunal. That, however, is not a step that major powers take lightly, especially if the dispute involves a matter of any importance and if public opinion is inflamed. Resort to third party decision-making surrenders control over the outcome, while negotiation and conciliation do not. Confucian-influenced East Asian nations have had a traditional, cultural distrust of arbitration and adjudication in lieu of negotiation or conciliation. There is also a lingering historical suspicion that international tribunals might not give them a fair hearing because of racial considerations. In the case of Asian communist countries there is additional distrust based on ideological and political grounds. China has consistently made clear that it is not prepared to accept international adjudication or arbitration of sovereignty disputes, although for the past three decades it has posted judges to take part in the International Court of Justice.

Japan is slightly less adamant in this respect. It has expressed willingness to take its claim to Takeshima (Dokdo) to the International Court of Justice (ICJ), perhaps because it was certain that the occupant, South Korea, would refuse the challenge. Until late last year, however, it rigidly clung to the position that there can be no "dispute" over the Senkaku (Diaoyu), which Japan occupies. Then, startlingly, on the eve of his and his party's departure from office late last year, Japan's Foreign Minister Gemba, in an International Herald Tribune op-ed, challenged China to take its claim to the Senkaku to the ICJ. He boasted that Japan always supports international law and, unlike China and the United States, has accepted the ICJ's "optional protocol" requiring it to agree to engage in litigation brought by any other state that has also accepted the ICJ's compulsory jurisdiction. This appeared to suggest implicit or conditional abandonment of Japan's long-standing and increasingly indefensible position that there is no "dispute" over the Senkaku.  Unfortunately, virtually no one took note of Gemba's statement, and Prime Minister Abe's new, more nationalistic,  LDP government has ignored it and renewed Japan's traditional stand toward the islands.

More recently and more momentously, a genuine break in the South China Sea logjam has occurred. The Philippine Government has been jousting with China over ownership of some of the Spratly islands and other modest territorial features near its shore, as well as China's expansive claims over sea boundaries. On January 22nd, it stunned informed circles by challenging not China's territorial claims but some of its maritime claims, especially the "nine-dash line," before an arbitral tribunal authorized by the United Nations Law of the Sea Convention (UNCLOS) to which both the Philippines and China adhere. Unlike the ICJ system, under UNCLOS all state-parties by virtue of their membership agree to litigate  or arbitrate maritime claims brought against them in an UNCLOS tribunal unless they can persuade the tribunal that the claims fall within certain exceptions designed to free them from this obligation. Following prescribed procedure, the Philippines accompanied its claims with a carefully-prepared brief spelling out the arbitral tribunal's jurisdiction, the basis for its claims and the identity of the arbitrator that it is entitled to appoint as one of the five arbitrators who will constitute the tribunal.

This presented China with a difficult challenge. Would it respond to the Philippine complaint by the February 21 deadline,  appoint the arbitrator to which it is entitled and defend its case? Or would it thumb its nose at the proceeding and endure the condemnation of many UNCLOS members and others?  Unfortunately, the People's Republic chose the latter course, criticizing the Philippines for choosing to go to arbitration rather than continuing the long and thus far fruitless sparring in which China and the ASEAN states have been engaged over developing a code of conduct for resolving their disputes.

China's spurning of the UNCLOS dispute resolution process does not end the matter, for the UNCLOS system provides for the president of its Law of the Sea Tribunal, who is currently a Japanese expert, to appoint an arbitrator on behalf of the non-responding party and, if necessary, the other three required arbitrators as well, so that the dispute can proceed to be heard even in China's absence. The case is an embarrassment not only to China but also to the United States, which has thus far shamelessly resisted all efforts to persuade it to ratify UNCLOS and take part in the system, although it purports to observe most of the UNCLOS provisions in practice.

Needless to say, I was delighted with the Philippines' daring resort to international law and disappointed, if not surprised, by China's response. In an article published last October in Hong Kong's South China Morning Post and Taiwan's  China Times, I urged all the East Asian states to take their territorial and maritime boundary disputes either to the ICJ or some other international tribunal or to establish their own regional tribunal to handle these matters.  The Philippine claim does not directly advance the resolution of its territorial disputes with China, but it is a major first step for all states eager to witness a rational and fair solution to the current crisis rather than one reflecting the threat or use of force.

A regional tribunal would take some time to establish but, like the ICJ and UNCLOS systems, would have an immediately beneficial effect if all the states that begin negotiations to establish it would agree at the outset to submit their claims to it, thereby diverting the claimants from their current reckless game of "chicken."

Whatever the precise path or paths chosen by the disputants, submission of all territorial and maritime disputes to an impartial third-party decision-maker will constitute progress towards a more peaceful and rules-based world rather than one where might makes right, as the Philippine Government recently noted in filing its now famous submission. This would not be the first time that international law and legal institutions come to the rescue.

Many other issues deserve the attention of this audience, including the protection of human rights in East Asia and the political and legal aspects of the Taiwan, China, U.S. relationship. Perhaps we can discuss them during the question period. Many thanks for your attention.

Please click this link for more information on the Pacific Century Institute's Building Bridges Award. 
Please click this link for more information on the Pacific Century Institute

USALI's Ira Belkin and Maggie Lewis Present on RETL at CECC Roundtable

On Thursday, May 9th, 2013, USALI Executive Director Ira Belkin and Affiliated Fellow Maggie Lewis presented their views on Reeducation Through Labor (RETL) at the Congressional-Executive Commission on China's (CECC) Roundtable, "The End of Reeducation Through Labor? Recent Developments and the Prospects for Reform."

Please follow this link to listen to the live podcast, "The End of Reeducation Through Labor? Recent Developments and Prospects for Reform."

For more information on the Congressional-Executive Commission on China, please visit their website. 

Professor Jerome Cohen Receives Lifetime Achievement Award by the American Society of Comparative Law

On Friday, October 11, USALI Co-Director Professor Jerome Cohen received the American Society of Comparative Law's Lifetime Achievement Award, in recognition of his "extensive and rich work in Chinese law." The award was given at the Society's Annual Meeting in Little Rock, Arkansas.

The American Society of Comparative Law, Inc. (ASCL) is the leading organization in the United States promoting the comparative study of law. Founded in 1951, it is a thriving organization of more than 100 institutional sponsor members, both in the United States and abroad, and a growing number of individual members. It is a member in good standing of the American Council of Learned Societies and International Association of Legal Science.

The Lifetime Achievement Award was established in 2003 to honor living senior comparatists whose writings have changed the shape or direction of American comparative or private international law. It is a “non-monetary recognition of lifetime extraordinary scholarly contributions to comparative law in the United States.” Previous awardees are Alan Watson, Distinguished Research Professor and Ernest P. Rogers Chair, University of Georgia School of Law, and Mirjan R. Damaška, Sterling Professor of Law Emeritus, Yale Law School.

For more information on the American Society of Comparative Law, please click this link to visit their website.  

For NYU Law's news coverage of Professor Cohen's Lifetime Achievement Award by the American Society of Comparative Law, please click here.

Professor Jerome Cohen Quoted in China Daily Article on the Possibility of a Sino-U.S. Extradition Treaty

This article was originally published in China Daily on October 20, 2013, under the title, "Extradition deal key to nabbing fugitives."

Extradition deal key to nabbing fugitives

By Zhang Yan in Beijing and Chen Weihua in Washington (China Daily)

Updated: 2013-10-20 23:47:08

Signing an extradition treaty with the United States is essential to China's ongoing efforts to capture and repatriate economic fugitives, a senior security official has said.

Yet experts on both sides said an agreement may be unlikely in the short term, as obstacles and misunderstandings remain over China's

judicial system and progress in human rights protection.

According to China's Ministry of Public Security, at least 150 Chinese economic fugitives, many of them corrupt officials, are hiding in the US.

Over the past 10 years, however, just two people wanted on criminal charges have been repatriated.

"We face practical difficulties in getting back fugitives who have escaped to the US due to the lack of an extradition treaty, as well as the complex and lengthy US legal procedures," said Liao Jinrong, director of the ministry's international cooperation bureau.

Some progress has been made in judicial cooperation in recent years, but it has been slow and is still far from enough, he said.

Justice officials from both countries meet every year, in August or September, to discuss major cases, and the ministry says it is attempting to set up an annual high-level meeting, such as with the US Department of Homeland Security, to exchange intelligence with the view to repatriating criminals and recovering illegal asset.

There is a willingness in the US to cooperate, Liao said, "but we hope the US can be more understanding of China's judicial procedures ... and be more active in responding to our request for an extradition treaty, which is essential."

Much of the cooperation between China and the US now is done through Interpol.

Once the organisation issues a red notice, an international arrest warrant for an individual, Chinese police provide information and evidence to US Immigration and Customs Enforcement to request assistance with an investigation.

"Once a case goes to the US authorities, they do not disclose details to us because of privacy concern," said Liao. "Usually it takes several years to get a deportation order, and as long as the criminals pay a lawyer to defend themselves they can constantly appeal to higher courts."

Legal experts agree progress in cooperation is being made, but they flagged several challenges in the relationship that stand in the way of a treaty.

Jerome Cohen, a law professor at New York University and an expert on China's legal system, cited the countries' Mutual Legal Assistance Agreement, signed 13 years ago, and the improvement in "informal, ad hoc" exchanges over the past decade as examples that things have moved forward.

"Both countries would benefit from the further progress that an extradition treaty would represent," he said. "But I don't think conditions are ripe yet for meeting this challenge."

The US already has a treaty with the Hong Kong Special Administrative Region, but reaching the same agreement with the Chinese mainland would require substantial changes to its legal system and human rights policies, he said.

"The most difficult obstacle will be American concerns about use of the criminal justice system to punish people for conduct that is protected in the US, and about the fairness of criminal prosecutions in China," Cohen explained.

"In the present circumstances, it would be politically and legally impossible for the US government to agree by treaty to send anyone to China for prosecution, including Chinese nationals.

"The best that can be done is to negotiate case by case specific guaranties that suit the individual situation," he said.

"My hope is that criminal justice reforms will continue to be made in China."

Experts in China argue that political rather than legal conflicts are holding back an extradition treaty.

In the US, where the executive, judicial and legislative powers are separated, Congress must ratify any extradition treaty.

"However, the US Congress does not trust China's human rights protection, and some of them do not have enough understanding of the Chinese judicial and social development," said Huang Feng, a professor at Beijing Normal University's College for Criminal Law Science.

The US government also wants to cooperate, he said, "so it seems learning how to rid Congress of its old belief about our country and political system is the key to ending the dispute."

Fu Yu, a specialist on international law formerly at Chongqing Southwest University of Political Science and Law, suggested finding common ground in economic investment.

"Congress is also concerned about the US economy," he said. "It should see settling legal problems as tackling economic or commercial problems, which may be easier to negotiate than talking about judicial differences."

Cao Yin contributed to this story.

Professor Jerome Cohen Recognized as one of The American Lawyer Magazine's Top 50 Innovators

USALI Co-Director Professor Jerome Cohen has been named one of the American legal profession's "Top 50 Innovators" by The American Lawyer magazine. The magazine announced its list six months after embarking on a search for "the people whose ideas, policies, and practices have left an indelible mark on the legal industry over the last five decades." Professor Cohen shares this honor with Mr. Owen Nee Jr., his former colleague at Coudert Brothers, where they both opened the first Chinese office for a Western law firm. According to The American Lawyer, it was here that Professor Cohen and Mr. Nee worked on China's first international petroleum deal, its first joint venture, and its first syndicated loan, and where they advised clients such as General Motors Corporation and The Coca-Cola Company on entering China.

Please follow this link for the full list of The American Lawyer Magazine's Top 50 Innovators. 

Challenge to China cited in SCMP article on Re-Education Through Labor

This article was originally published on November 5, 2013  in the South China Morning Post under the title, "Labour camps may become a thing of a past, but what will replace them?" Photo from SCMP.

Labour camps may become a thing of a past, but what will replace them?

Author: Verna Yu verna.yu@scmp.com

A dormitory at a re-education centre in Jiangsu. Photo: Imaginechina

When Mao Hengfeng heard that the police had stopped sending people to laojiao, or re-education through labour, she felt a sense of relief.

Mao, a petitioner from Shanghai, had been sentenced to laojiao three times and locked up in a mental asylum three times - one time after her seven-month fetus was forcibly aborted when she was pregnant for the third time. She attributes recurring nightmares, high blood pressure and migraines to the torture she said was inflicted on her in laojiao - including being forcibly fed urine and excrement .

"If police cannot throw people into laojiao as they please, then that's an improvement," she said.

Over the past months, many authorities across the mainland have quietly stopped sending petty criminals and government critics to forced labour.

Top security chief Meng Jianzhu announced in January that the notorious system of arbitrary detention would be halted this year. In March, Premier Li Keqiang said details of the "reform" to the system would be announced before year's end.

Over the past few months, state media have reported that provinces such as Guangdong, Shandong and Yunnan had stopped approving new cases for laojiao and many centres built for that purpose had been turned into drug treatment centres. But there has been no word from the central government on whether this suspension will be permanent.

On October 23, state media reported that top judge Zhou Qiang had said courts should speed up the handling of minor offences and "co-operate in the reform of laojiao" - a move seen by legal experts as a sign that more cases involving people who would have previously been sent to laojiao would now be handled by the courts.

Since its introduction in 1957, re-education through labour has given police the power to send petty offenders - such as prostitutes, cult members and government critics - to labour camps for up to four years, without trial.

China law expert Jerome Cohen of New York University said making police attend court for trial would be "a significant procedural improvement" as it would remove their unfettered authority.

But legal experts say it is unclear which type of offenders would be prosecuted in court and how police would handle others previously designated for laojiao, such as petitioners, activists and followers of the outlawed Falun Gong sect.

Some fear that laojiao will be replaced with a new form of punishment, and note that the police can still resort to other forms of arbitrary detention amid the government's escalating drive for "stability maintenance".

"They can get rid of the name laojiao and even the institution, but police still have many options for informally punishing people without it," Cohen said.

Under existing law, police can hand out administrative detention of up to 15 days to people who have committed minor offences. They can also hold suspects on a charge for up to 37 days before a formal arrest, and can also give six months of "residential surveillance" to suspects in cases allegedly involving terrorism, endangering national security and serious bribery.

But what worries legal experts even more is the police tendency to use other types of detention as a convenient tool to make people disappear indefinitely - such as sending suspects to mental asylums, the so-called black jails or "law education classes".

"The difficulty is that they could be pushed into dark corners which are invisible," said law professor Fu Hualing at the University of Hong Kong.

"I'm concerned that if there was a political need [to maintain stability] before [this reform], there must be the same need now and that hasn't changed."

Fu said the key to ending abuses was for the police to be held accountable to the courts and the legal system to be independent from political influence - and that required political change.

A new book, Challenge to China, by Cohen and Professor Margaret Lewis, shows how Taiwan's constitutional court and other branches of government, since the end of martial law in the late 1980s, gradually precipitated the abolition of the island's equivalent of laojiao in 2009.

This would be difficult to replicate on the mainland now, Cohen said, given that the new leadership appears to be overseeing an even more repressive system than before, yet it still must show "it is not totally unresponsive to increasing demands from the public".

Last month, when lawyer Tang Jitian travelled to Jixi , Heilongjiang in search of his client's wife, a detained Falun Gong follower, he found she was locked up in a so-called law education centre that was situated inside a re-education-through-labour camp.

"People who get sent there simply vanish," Tang said. " Laojiao will continue to survive under different names - and will be more invisible, too."

Legal scholar Teng Biao , who himself has been "disappeared" by police several times, also believes the answer to ending abuses is the elimination not just of laojiao, but of all forms of arbitrary detention.

"As long as there is no independent judiciary, it will still be a police state," Teng said.

Meanwhile, Mao the petitioner said her friends who would have been sent to laojiao before are now given administrative or criminal detention.

"Authorities are just putting old wine in new bottles," she said.

USALI's Ira Belkin and Maggie Lewis Present on RETL at CECC Roundtable

On Thursday, May 9th, 2013, USALI Executive Director Ira Belkin and Affiliated Fellow Maggie Lewis presented their views on Reeducation Through Labor (RETL) at the Congressional-Executive Commission on China's (CECC) Roundtable, "The End of Reeducation Through Labor? Recent Developments and the Prospects for Reform." Please follow this link to hear the live webcast, "The End of Reeducation Through Labor? Recent Developments and Prospects for Reform." 

For more information on the Congressional-Executive Commission on China, please follow this link. 

USALI Executive Director Ira Belkin Cited in The Economist

This article was originally published in The Economist on July 26, 2013 under the title, "The Rule of Law: Bizarrely Consistent." 

THOSE who see legal reform in China as a half-full glass point to encouraging signs of progress—including to some of the harshest and most easily abused features of the nation’s criminal code. Amendments adopted last year seek to prevent the coercion of false confessions. Legal scholars—and, more intriguingly, judicial officials—now openly discuss the need to reduce wrongful convictions. Meanwhile, use of the death penalty has declined dramatically over the past decade, with executions falling from roughly 12,000 in 2002 to 3,000 last year.

Yet when it comes to political agitators, China’s legal system is as harsh as ever. The past few days have seen a spate of incidents involving the harassment and detention of rights activists and advocates of the rule of law. On July 16th Xu Zhiyong, a noted Beijing law lecturer held under house arrest since April, was formally detained, reportedly under charges of “assembling a crowd to disrupt order in a public place”.

Mr Xu has had previous run-ins with the authorities, though working peacefully within the system when calling for officials to follow the law more carefully, and for citizens to have improved civil and political rights. His own lawyer, Liu Weiguo, was also taken into custody when trying to visit his client. Perhaps Mr Xu’s chief offence is to have argued for greater disclosure of officials’ personal assets. That this echoes the government’s own recent rhetoric has not been enough to keep him safe.

The crackdown, which extended to the closing of another group in the capital advocating the rule of law, has attracted criticism from human-rights organisations abroad, a call from the American government for Mr Xu’s release, and an open letter signed by hundreds of Chinese academics, journalists and business people. Beyond calling for Mr Xu’s release and the lifting of bans on internet and media discussion of his case, the letter says the government must “use the Xu Zhiyong case as a mirror” to reflect deeply on its policies and “create a tolerant and favourable environment for the healthy development of civil society”.

These events come even as the government continues its rhetoric about the importance of legal reform. Prompted by a series of widely publicised cases in which criminal convictions were conclusively found to be in error, officials have become increasingly open about the problem of wrongful convictions.

Much of the discussion focuses on criminal confessions coerced by police, whether through torture and abuse or through their untrammelled authority in pressing suspects. It marks a departure from past practice, when the police and legal system were held to be infallible. In May a senior official at the Supreme People’s Court, Shen Deyong, urged legal cadres “to be alert” to the problem. Many, he complained, “are still influenced by the presumption of a suspect’s guilt”.

According to Ira Belkin, who runs the US-Asia Law Institute at New York University, the seeming contradiction between a crackdown on activists and genuine moves towards reform is, in fact, “bizarrely consistent”. The key, he says, is the focus by the Communist Party on social stability—ie, not only the risk of social unrest, but of any challenge to its authority. Stability depends upon public trust in the legal system, which is likely to improve when wrongful convictions are stopped.

At the same time, Mr Belkin says, when the authorities identify people as troublemakers, “they show no mercy in order to deter them and others”. Mr Belkin’s own belief, though, is that greater tolerance of peaceful critics of government would contribute more to social stability than the usual hardline approach to dissent laid down by Mao Zedong. For now, at least, the government seems unwilling to put that idea to the test.

Please follow this link for information on the the print edition of The Economist July 27th, 2013 edition, "The Great Deceleration."

Professor Jerome Cohen Cited in TIME Magazine

This article first appeared in TIME magazine on July 26, 2013 under the title, "As a Disgraced Chinese Politician is Indicted, Rights Activists Also Feel the Law's Wrath."  

By Hannah Beech

On the same day that Bo XilaiChina’s infamous disgraced politician, was formally charged with corruption, embezzlement and abuse of power, a clutch of Chinese activists was briefly detained at a birthday celebration in southern China. The two spasms of China’s legal system on July 25 might seem unrelated—one a choreographed development in China’s most stunning political scandals in decades and the other the routine harassment of human-rights campaigners by the Chinese security state. Yet the fates of Bo and a tribe of human-rights campaigners exemplify the way in which the ruling Communist Party’s fixation with maintaining social stability can dictate the course of the country’s judicial process.

Even as China’s economy has transformed and individual Chinese now enjoy far greater personal freedoms than before, progress has stalled in building a society ruled by law. This lack of legal advancement has been noted by ordinary Chinese, who are increasingly calling for rights that are guaranteed in their country’s own constitution. Meeting the demands of a more educated and empowered populace will be a significant task for Xi Jinping, China’s new leader, who replaced Hu Jintao last year. “China doesn’t have rule of law,” says civil-rights lawyer Pu Zhiqiang, who has represented a slew of dissidents and has often been detained for these efforts. “Looking at recent legal cases, you can see there is no big difference between the Xi and Hu administrations. The two biggest problems of the Chinese legal system are that there is no independent adjudication and no public justice.”

The state of China’s legal system was the subject of a lengthy report published on July 25 by Human Rights Watch, the New York-based NGO. In a 15-page essay, Jerome Cohen, a professor of law at New York University who is one of the foremost foreign experts on China’s legal system, describes criminal justice as “perhaps the most telling indication of a government’s adherence to human rights standards” and writes of China’s Communist Party:

“Although the Party prefers to resort to more subtle and conciliatory methods, it will probably continue to rely heavily on repression to cope with the country’s rising tide of social, economic and political discontent, endemic government and Party corruption and the common crimes that plague every society. The criminal process, broadly construed to include all the related government instruments for restricting physical freedom of the person, is the principal weapon of repression, and the abuses that have marked its use in China have themselves contributed to popular dissatisfaction.”

Cohen goes on to diagram the way in which the Chinese leadership’s obsession with social stability has led to the nation’s new Minister of Public Security Meng Jianzhu being chosen “as the new head of its central ‘Political-Legal Commission’ which controls all government legal institutions…rather than a leading judge, prosecutor, lawyer, law professor or administrative legal expert.” (Meng’s predecessor as Public Security Minister was also the head of the Political-Legal Commission and ranked even higher in the Party hierarchy.) Cohen also notes the limited progress made in the Chinese judicial system since the bad old days of show trials, pre-determined justice and arbitration detentions:

“The administration of criminal justice is still dominated by the police and the Party. The police still have enormous, virtually unfettered discretion in dealing with what they deem to be anti-social elements of all types. Some of the measures they impose are totally without legal foundation and often violate constitutional and legislative norms. Human rights activists, dissidents, protesters, petitioners, and their lawyers and families are frequent targets of illegal intimidation, threats, house arrest, kidnapping, beating, ‘black jails’ and temporary internal exile.”

Once the Party strongman in the western Chinese metropolis of Chongqing, Bo Xilai aspired to join the coterie of fewer than 10 men who rule China. According to Xinhua, the official Chinese news agency, he is being indicted for taking “advantage of his position as a civil servant to seek gains for others,” accepting “bribes in the form of large amounts of money and property,” embezzling “an extremely large amount of public funds” and abusing “his power of office, causing heavy losses to the interests of the nation and the people in an extremely serious way.” His victims claim Bo jailed and tortured those who stood in his way, creating a reign of terror in Chongqing, even as his Maoist-inspired rhetoric earned him some popular support.

Yet it is Bo who is now subject to the vagaries of the Chinese legal system that he is accused of having manipulated for so long. The former party chief’s downfall has proven equal parts spectacle and mystery. No one knows where he has been kept under detention. The charges against him were announced more than a year after his political career unraveled. For many months, Bo was locked up through a secretive—and unaccountable—judicial scheme that only applies to supposedly errant members of the Communist Party. A guilty verdict in his criminal trial, which will take place in the eastern city of Jinan, is practically a foregone conclusion. China-watchers assume the indictment means not the advent of normal due process but rather that various political factions have finally agreed on how to dispense with their fallen comrade.

Some of Bo’s critics also wonder why the former Chongqing party chief is not being charged in connection with even graver political infractions. (Bo’s wife Gu Kailai was handed a suspended death sentence last year for the murder of a British businessman.) “Bo was a person who didn’t have any political dignity,” says lawyer Pu. “He was full of lies when he was a government official. Yet his case is only being judged as an economic crime.”

As for the human-rights activists who were detained the same day Bo was charged, limits on their freedom are commonplace. Lawyer Teng Biao and more than a dozen campaigners from the southern city of Shenzhen were celebrating the 40th birthday of Hu Jia, a dissident who spent more than three years in jail for inciting subversion of state power. Hu’s five-year-old daughter was enjoying the festivities too. Then the police barged into the restaurant. The security forces focused their interrogation on Teng and Hu’s friendship with Xu Zhiyong, another human-rights lawyer who was picked up on July 16 and is still behind bars. (Xu’s lawyer was also temporarily detained earlier this month.) After an evening of harassment, the activists in Shenzhen were released. But this will not be the last time that human-rights advocates must contend with the capriciousness of the Chinese legal system.

—with reporting by Chengcheng Jiang / Beijing

Read more: http://world.time.com/2013/07/26/as-a-disgraced-chinese-politician-is-indicted-rights-activists-also-feel-the-laws-wrath/#ixzz2aSLht1Id

Ling Li's Article Cited in WSJ's China Real Time Report

This article was originally published on August 1, 2013 in the Wall Street Journal's China Real Time Report. In this article, Stanley Lubman cites USALI Research Scholar Ling Li's investigation into corruption in China's judiciary. 

The Gaping Hole in China’s Corruption Fight

By Stanley Lubman

The ongoing campaign against corruption that forms the backbone of new Chinese president Xi Jinping’s reform platform is not nearly as robust as Communist Party media would have us believe. It is directed more at symptoms than causes and is limited in scope due to fears of citizen agitation on broader issues such as press freedom and transparency. It also suffers from a glaring and an important omission: The judicial system, although it should be the appropriate institution for exposure and punishment of offenders, is itself infected by corruption that up to now has gone unmentioned.

An ongoing Chinese government investigation into drug maker GlaxoSmithKline for allegedly using a travel agency to channel some 3 billion yuan in bribes highlights the depth of China’s corruption problem. Even in the country’s hospital system, where lives hang in the balance, doctors and other medical staff routinely take kickbacks from pharmaceutical firms and sellers of medical equipment.

Xi Jinping rightly recognizes that corruption is so deeply embedded in Chinese political life that it threatens the very life of the Communist Party. But going after foreign companies is relatively easy. The question is whether Xi and the rest of the party leadership are willing or able to confront more fundamental abuses at the heart of the political system.

The credibility of China’s current anti-corruption campaign has plummeted following a crackdown on activists calling for greater governmental transparency. More than a dozen have been taken into custody in recent months, including well-known human rights advocate, law lecturer Xu Zhiyong, who was detained by Chinese police in July because he had “gathered crowds to disrupt public order.” In May, Xu, together with others, issued an open letter that urged release of 10 activists who had been arrested for publicly demonstrating against corruption and who had called on officials to disclose their financial assets.

By detaining Xu, Chinese authorities have silenced one of the country’s more prominent advocates of legal reform. In doing so, they have lessened pressure on themselves to confront the corruption infecting the country’s courts.

To be sure, in recent years judicial professionalism in China has increased, and the number of court personnel investigated for violations of discipline has fallen, from 712 in 2008 to 519 in 2011. Yet many who work in the system continue to describe it as severely impaired. Not long ago, a lawyer in a large Chinese law firm told me that he avoids litigation as much as possible because of rampant corruption in the courts.

The problems of the courts have been well-documented. Available sources summarized here suggest that the wide extent of corruption is facilitated by the way the courts are organized and supervised. The courts are not independent because they are bureaucratic organs in the political system, no different than other government agencies. As Hong Kong-based political scientist Gong Ting wrote in The China Review, the finances of the courts are determined by the local government. Senior judges are nominated by the local CPC Committee and endorsed by the local People’s Congress, meaning judges whose decisions are seen to violate Party policy may be discharged or otherwise punished. The courts are subject to the extra-legal authority of the Political-Legal Secretary of the local Party Committee, which deals with difficult and important cases referred to it.

The courts are not publicly accountable because decision-making is dominated by their Adjudication Committees, composed of senior judges who are also members of the Party leadership within the court. The Adjudication Committee is supposed to review “significant” or “complicated” cases—although neither term is legislatively defined and judicial discretion is very broad.

Xin He of City University of Hong Kong studied one court in which the committee reviewed most criminal cases, often increasing criminal fines, likely because the court was seeking increased revenue. Civil cases were reviewed because “the committee is a good shelter for avoiding risk.” The adjudicating judge, who originally heard the case, is relieved of responsibility if any solution turns out badly– because the committee decides cases collectively. Last but not least, the committee is a “safety device to protect the adjudicating judges and the committee members from being accused of corruption.” It can also “accommodate ….extra-legal interferences,” such as judicial accession to easily hidden outside political demands.

Another study, by Li Ling from the Northwest University of Political Science and Law, relies on media reports and press releases related to charges of corruption against 388 judges between 2005 and 2008. The author argues that judicial corruption is not the “deviant behavior of a few black sheep eluding prescribed judicial conduct” but “an institutionalized activity” at the center of the judicial system, embedded in courts’ decision-making process. She also found that corruption isn’t limited to higher-level judges; it frequently involves lower-level judges, whether collaborating with superiors or acting on their own.

The power of the Party leaders embedded in the courts is comprehensive. Without participating in court proceedings they can instruct leaders of the court by sending internal instructions to their subordinates that merely dictate the desired result in the case and do not have to be supported by any reasoning, nor referenced in the final decision. Moreover, the Party leader who issues the instruction “is not responsible for the legitimacy of his acts,” even if procedural or substantive laws are violated or misapplied. The leaders can control the outcomes of many cases without ”rational legal interpretation and adjudication” even though they do not participate in the entire process of adjudication– a perversion of the judicial function as it is understood in systems based on the rule of law.

The issue of corruption in the courts has not been raised in the current anti-corruption drive, probably because judicial reform of any kind would affect the basic roots of CPC power. One American scholar, Elizabeth Economy, observes that there is “no institutional change to ensure that that roots of corruption are addressed” and none seem likely in the near future.

A number of foreign observers seem to agree that the Party-state’s concern to maintain “social stability” is the reason limiting the reach of the campaign. As Beijing-based political scientist Russell Leigh Moses put it in a column for China Real Time last month, “the issue is how much information and oversight do you give people without undermining party rule.”

Failing to hold the legal system accountable for its own corruption may be hypocritical, but it’s a hypocrisy the Party likely believes it must live with at the moment, even if it will came back to haunt them later.

Margaret K. Lewis' Article Discussed in China Law & Policy

This article was originally published in China Law & Policy by USALI former fellow Elizabeth Lynch on August 4, 2013 under the title, “An Uncomfortable Truth: Use of Criminal Law in China's Economic Development." 

Food safety inspectors reviewing a restaurant in China

Over at the Council on Foreign Relation’s China blog, Prof. Margaret K. Lewis of Seton Hall’s School of Law has written an interesting and timely piece about the role that criminal law plays in advancing China’s economic “miracle.”

As Lewis notes, and following up on recent articles in the New York Times (see herehere and here), China’s civil legal system and its regulatory state largely failed in dealing with some of China’s new economic problems – namely food safety, financial markets and environmental degradation.

But as Lewis goes on to highlight, this failure of the civil and regulatory systems does not mean that the Chinese government has not tried to stem these problems.  In fact, as Lewis observes, it has, through the use of the criminal law.  Recently, the Chinese government has stepped up the threat of severe criminal sanctions, including the death penalty, in an attempt to try to police this situation.

Lewis’ blog post is based upon her new research regarding how, since Deng Xiaoping’s 1978 “Reform and Opening” policy, the Chinese government has used the criminal law to propel its economic development.  See Margaret K. Lewis, Criminal Law’s Contribution to China’s Economic Development (August 1, 2013). Available at SSRN: http://ssrn.com/abstract=2298923.

In fact, one of Deng’s first actions after assuming leadership was to publicly prosecute the Gang of Four, signaling the changing of the guard from political extremism to a focus on economic growth.  From there, Lewis recounts the formation of many of the laws that would underpin Deng’s policy of economic growth, showing that the intention of many criminal laws was to find the “growth-enhancing sweet spot.”  It’s no wonder that today in China, economic criminal liability is much broader than in most other developed countries including the United States.

Lewis’ well-researched analysis makes a strong argument for her point: that you cannot analyze China’s economic growth without looking at how it has used the criminal law to assist in that growth.  But even still, it leaves you uncomfortable – there is something about the use of criminal law to propel growth that seems at odds with its purpose.  This Lewis notes is likely more the result of how the West has come to define patterns of economic growth.  To achieve a sustainable market economy, the government sets in place a regulatory state with certain ground rules and then lets the actors – usually companies and individuals – duke it out within the confines of an independent legal system.

But that is not what is going on here in China and it’s this bucking of the traditional historical trajectory of growth that forces scholars to look elsewhere for its explanation.  In China’s case, that elsewhere might be the criminal law.

Criminal Law’s Contribution to China’s Economic Development” is a must read for anyone who wants to understand the relationship between law and economic growth in an authoritarian state.  But it also raises many questions – is this use of the criminal law sustainable?  Can China solve its regulatory failure problems through state-dominated use of the criminal law?  Lewis examines a few problems with its usage, especially in attempting to deter official corruption where the Chinese Communist Party is too hesitant to prosecute its own.  She also explores the use of economic criminal liability to suppress dissent that officials determine is too “destabilizing” to development.

From Lewis’ review of recent criminal legislation, interpretations and call for greater criminal liability, it becomes obvious that she is right – the Chinese government is attempting to use criminal law to support its market reforms.  But in a country of 1.3 billion with a land mass close to the size of the United States, how sustainable is this approach?  That is a question that we hope Prof. Lewis answers in her next article.

Interview with Jerome Cohen on Bo Xilai's Trial in CFR

This article appeared on Council on Foreign Relations' website on August 27, 2013. 

 

China’s Rule-of-Law Trial

Interviewee: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
Interviewer: Bernard Gwertzman, Consulting Editor, Council on Foreign Relations

 

The just-concluded trial of former Communist Party boss Bo Xilai was unprecedented in opening up a high-profile legal proceeding to public scrutiny, says legal scholar Jerome A. Cohen. The case also reveals the conflicts among the country's leaders as they grapple with everything from corruption to an economic slowdown. "They're not repudiating a so-called Western legal system even though they say they can't adopt it all," Cohen says. "The fact is they can't escape its influence and this trial shows it." The platform of President Xi Jinping, he says, "is very mixed up. You have a very confused leadership."

Fallen Chinese politician Bo Xilai stands trial inside the court in Jinan, Shandong province (Jinan Intermediate People's Court/Courtesy Reuters).

The case against a leading Chinese official, Bo Xilai, has ended. The verdict will come out eventually, but what's the significance of this highly publicized trial?

It has a great significance from several points of view but the most important to me is its significance for justice in China. China is increasingly seething with a sense of injustice. As China has made economic, social, educational, and legal progress in the past three decades, more and more people have come to demand fairness. They want a right to be heard, they want a judiciary that demands integrity, they want to feel they can have somewhere to go to settle their disputes in a way that can inspire confidence, and this trial really showed them something. In the normal trial in China, you don't have witnesses come to court, you have no right to face your accusers, you have no right to cross-examine them. The trial of Bo Xilai showed what it means when that occurs.

 

Give an example.

"Leaders of the party have recognized that the fight against corruption for them is a life or death fight."

In the case of Bo Xilai's wife [Gu Kailai], who testified against himshe did not turn up in court. The prosecutor merely read aloud in court testimony she had given out of court before the trial. There was no defendant, no defense counsel to ask questions and bring out a fuller picture of what she was saying or rebut it. It was obviously so unfair that overnight, party officials saw that this was not effective so the next day they produced an eleven minute video of part of her previous day's written testimony. It showed her being interrogated by a friendly questioner; again, no opportunity for anyone to interrupt her, to qualify what she said, to ask a question, to rebut, but at least it did one thing: it humanized her testimony and it gave the Chinese people a chance to examine what we in the law call "demeanor evidence."

The leaders of the state recognize the desirability and the importance if a trial is going to have integrity and credibility to have your accusers confront you in court, and they produced several of the other major witnesses. Bo Xilai fascinated people because he took the initiative away from even his own competent defense lawyer and he asked questions of witnesses and ridiculed some of them.

 

You've been following Bo Xilai for quite a while. Did you think he had great potential?

Despite the fact that since 2007 he had been spouting Maoism, people who knew him before 2007 all said he's no Maoist. The Maoism was a gambit to get to power, but I always felt that once in power, because of his openness to the world and his intelligence, he would see that China has got to be brought into the twenty-first century, gain the respect of other powers, and improve the economy by improving the legal system, reducing corruption, and gradually having a freer society. He was smart enough to see that, but he never got there because he took an extreme path to power and because people didn't like him. All these other guys are team players. This guy is not, and of course since [former Soviet leader Mikhail] Gorbachev, the Chinese leaders have learned to fear individualists.

 

How do you think he did in the trial?

He put on a pretty impressive show. It wasn't good enough to persuasively rebut the accusations against him, but it did give people, even his own supporters, a feeling that he hadn't been denied a right to speak and to defend himself, and that's unique in Chinese Communist political trials. Bo Xilai has had an opportunity to express himself, in public, in a court, [in] a limited way because his testimony wasn't open to a public audience, but it was open in a sense, because the government provided a censored transcript of what he said.

This is a tremendous thing for justice; it's going to stimulate further the rising demand in China for a fair legal system. Getting back to a theme I know you're interested in, where do the ideas come from for a fair legal system? Are these Western ideas? Are these universal ideas? This is worth talking about.

 

Is this the platform of President Xi Jinping?

No. Xi's platform is very mixed up. You have a very confused leadership and the same people within the leadership speak with conflicting voices. The major irony in the Bo Xilai case is what alienated him from the rest of the leadership is his resort to a Maoist, Cultural Revolution–style politics that was designed to propel him into the highest ranks of the leadership. They've knocked him down, but at the same time that they're trying him for various crimes, their whole ideological line at this time is very similar to his. They're not knocking Chairman Mao; they are still espousing a leftist, Communist doctrine. Indeed, they are trying to revive it. At the same time, they're not repudiating a so-called Western legal system even though they say they can't adopt it all. They can't escape its influence and this trial shows it. It's very complicated.

 

They are arresting a number of high officials on corruption charges, right?

Yes. China is now suffering very badly from corruption. Corruption was what did in theChiang Kai -shek predecessor regime in the 1940s. The contemporary leaders of the party have recognized that the fight against corruption for them is a life or death fight, but once again, they are caught. On the one hand they purport to condemn and punish corruption, and they do it to a limited extent; on the other hand, the real situation prevents them from doing it in a persuasive, effective way, because if they did that they would bring down the regime.

 

What is their view about liberalizing the media?

More and more in the last eight to ten months the press has been under a great repression. They do not believe in the free press, and more and more they're showing it. Instructions that come out every day tell the press what to publish, what not to publish, how to publish, what the headlines should be, on what page the news should appear, what sources can be quoted and what can't. They do not believe in free expression, although the press, naively after the first day of Bo Xilai's trial, said, "Look at this wonderful transparency! For the first time they are issuing transcripts for a trial hearing!" The reason for it wasn't a desire to free the press; if they wanted to free the press, they would have let them attend the trial. The reason for issuing transcripts is they wanted to control the transcript so they could continue to be in control of information.

 

But why did they even bother?

Because they are under enormous domestic and international pressure to meet certain standards, and where do those standards come from? Are these foisted from the evil capitalist conspirators abroad who are trying to bring down the regime? Are these natural human desires to know what's going on in your own government? Where did they come from? Rising discontent in China, which has a huge increasing number of public, sometimes violent, protests everyday?

 

Is the economy doing well enough that they can relax? Or are they worried about the economy?

They have done remarkable things since 1978 and of course the world thinks the economy of China can't be stopped and is going to continue this way and is invulnerable, but the Chinese leaders know better. The economy seems to have peaked. Its many unsolved problems seem to be coming home to roost and we don't know how serious it's going to be. So far the leaders have shown considerable ability to be resilient and be fast on their feet and put out every fire as it develops, but they've had to do so by ways that have proved to be costly in the long run and they know they can't continue forever. This move from an export economy to a domestic consumption economy is proving very difficult because the vast state-owned enterprise interests and the families—thousands of rich families—do not want to change the system that has been so wildly successful for them.

Margaret Lewis Cited in AFP on Bo Xilai Trial

This article was originally published in Agence France-Presse  on August 24, 2013. 

Bo trial combines old and new in Chinese law: analysts

By Kelly Olsen (AFP) – Aug 24, 2013

BEIJING — The corruption trial of China's onetime political superstar Bo Xilai combines elements of unusual openness with traditional controls rooted deep in the one-party state and the country's long history, analysts say.

Bo, who held sway over nearly 30 million people as the top Communist in the megacity of Chongqing before his spectacular fall, faces charges of bribery, embezzlement and abuse of power in a scandal that has rocked the ruling party.

It is not the first time the all-powerful Communist Party has had to air its dirty laundry in public, but the level of openness in the deliberations has caught many by surprise.

"Of course this is not real justice that is being played out," said Nicholas Bequelin, Hong Kong-based senior researcher at Human Rights Watch. "This is political theatre."

Unlike previous high-profile trials, the court is providing regular but delayed transcripts on a verified social media account, offering observers a window on proceedings often seen through the distorted lens of limited state media coverage.

They have also given Bo himself an outlet for the details of his defence to reach a wide audience.

"No one expected that Bo Xilai would be given that amount of freedom to defend himself," Bequelin told AFP.

"Nonetheless the legal parts have been surprisingly good because there is a real legal process taking place there, at least in the courtroom, even though the outcome has already been decided and predetermined."

The approach has both advantages and risks for China's rulers, he added.

"Having a good trial like this, something that really looks like a real trial, will help confer legitimacy to the outcome and that's in the interest of the Party," he said.

"The cost is that it raises the expectations of the public in terms of administration of justice. Because it gives people ideas, first of all about the virtues of defence rights."

Margaret Lewis, a professor at Seton Hall Law School in the United States, contrasted Bo's trial with those of two other once high-flying officials -- Chen Liangyu, a former party secretary for Shanghai and Chen Xitong, mayor of Beijing at the time of the Tiananmen massacre -- who were convicted of corruption-related charges.

"Both of those trials were carried out completely behind closed doors," Lewis said in an e-mail. "Bo, in contrast, is at least being given an opportunity to publicly proclaim his innocence."

Chinese courts normally rely on written statements rather than live witness appearances, and Bo's cross-examination of key prosecution witness Xu Ming was unusual, she added.

But the message from the courtroom was still being controlled by the government, she stressed. "If, for example, Bo took this opportunity to name officials who have engaged in corrupt dealings, I would be absolutely shocked if that information made it into the transcript released for public view."

Chinese voices have seized on the hearings as a sign the country's legal system is changing.

The completeness of the transcripts released via social media "is record-breaking for a Chinese criminal court", well-known lawyer Chen Youxi said in comments posted online. "It will have a far-reaching impact on Chinese trials of public officials."

But Nicholas Howson, who teaches law at the University of Michigan, said the trial remains a "public performance" that was "very much in line with governance practice in China stretching back into imperial times".

"A sudden and secretive un-personing of a political figure or a Stalinesque show trial" were no longer possible in modern China, he said via e-mail, but it was still "far less than the kind of proceeding that the Anglo-American system at least aspires to have".

China has in the past allowed high-profile defendants a dramatic voice at key moments, analysts said.

Jiang Qing, widow of the revered Mao Zedong, founder of Communist China, put in a melodramatic performance at her trial with other members of the infamous Gang of Four, parts of which were shown on television.

Bo's spirited performance might be a intended as a "gamble" that the party would allow a lighter sentence so that the public felt his defence was meaningful, Lewis said.

"At a minimum, it appears that he has sought to use this trial as a vehicle for having a voice after being completely out of public view for over a year. Whatever the outcome of the trial, he has achieved that goal."

美国专家:三中全会决定关键在能否实施/Jerome Cohen discusses the Third Plenum on VOA

In a November 21, 2013 Voice of America (VOA)  interview, Jerome Cohen discusses the next steps China can take to implement the reforms it promised to undertake at the Third Plenum, including the abolishment of re-education through labor. For the original post, please see here.

美国专家:三中全会决定关键在能否实施

方方

最后更新 21.11.2013 11:47

纽约 — 十八届三中全会闭幕后,各界人士反应和解读不一。美国之音驻纽约记者方方采访了两位美国的美中问题专家,我们来看看他们是如何看待这次三中全会及其出台的决定的。

欧伦斯(Stephen Orlins)是美中关系全国委员会主席。这个委员会是美国在推动美中关系方面最有影响力的非官方组织之一。

他说:“三中全会结束后发表《公报》,令我感到有些失望。我觉得基本没有什么具体内容。然后《决定》就出来了,我一看说,啊,这真不可思议,让我想起了78年、79年开始改革开放的那个决定。结束劳教制度、取消一胎化政策、经济改革、打破国有企业垄断、解放利率,这些都预计要在2020年完成。这并不遥远,离现在不过7年而已。所以,我觉得《决定》非常令人鼓舞,让我相信习近平主席掌控全局,他也致力于加深改革开放。”

欧伦斯说,三中全会通过的每项具体措施都会影响到十几亿中国人每一天的日常生活,对每个人来说都意义重大。

美中关系全国委员会会长欧伦斯接受美国之音采访。(美国之音方方拍摄)

他说:“如果你仔细阅读这份文件,每一段都描述了一个巨大的变革。现在关键就是看中国怎么实施这些变革。”

三中全会后,中国开始放松一胎化政策,但批评人士认为,从一胎化变为两胎化并不能消除强制堕胎等侵犯人权的现象。

欧伦斯说:“两胎化政策仍会遇到难题。像中国这么大的国家,地方政府使用中央政府不同意的方式执法是无法避免的事。”

纽约大学亚美法学研究所的资深教授孔杰荣 (Jerome Cohen)最近刚刚出版了新书《迈向法治:两岸司法改革 – 台湾“流氓”制度走入历史,中国大陆“劳动教养”该何去何从?》

他说,这本书出版的时机再好不过:“这本书出来的正是时候,因为中国现在正在考虑该怎么解决劳教制度问题。说废除劳教制度不难,难的是怎么废除。我们的书就介绍了台湾是怎么废除他们类似的制度的。”

纽约大学亚美法学研究所的资深教授孔杰荣接受美国接受美国之音采访。(美国之音方方拍摄)

孔杰荣说,废除劳教制度之后,现有的劳教人员何去何从目前还不清楚。

他说:“我们现在知道,情节严重者将被移交刑事法庭审判后处理。中国最高法院院长周强已经明确表示过这一点。但其他那些情节较轻的人怎么处理?比方说吸毒人员。我觉得他们可能会继续在戒毒中心接受训练。对性工作者的处理方式也差不多。最难的问题可能是他们会怎样处理法轮功学员?怎么处理其他政治和宗教异议人士?”

孔杰荣教授说,三中全会在法制改革方面还讨论到减少死刑、削弱地方法院权力等想法,但这些话题早已争论许久。

他说:“我们仍在等候。如何施行这些变革是最困难的部分,许诺容易,但实施起来难。”

对于三中全会既保障国有企业又鼓励市场经济的做法,孔杰荣认为这只是一种安抚手段。

他说:“他们试图给每个哭闹的宝宝一颗糖吃。他们给国有企业 扔块骨头,但又告诉私人投资人他们扮演着决定性的角色。每个人都有所得,但最后结果怎样,大家都拭目以待。”

此外,孔杰荣说,他不清楚新建立的国家安全委员会和全面深化改革领导小组将如何与现有的机构并存。但他说, 从三中全会出台的《决定》总体来看:“很多细节我们还不清楚,但我觉得是更乐观,而不是更悲观。”

The American Lawyer Magazine: Professor Jerome Cohen Recognized as one of the Top 50 Innovators

USALI Co-Director Professor Jerome Cohen has been named one of the American legal profession's "Top 50 Innovators" by The American Lawyer magazine. The magazine announced its list six months after embarking on a search for  "the people whose ideas, policies, and practices have left an indelible mark on the legal industry over the last five decades." Professor Cohen shares this honor with Mr. Owen Nee Jr., his former colleague at Coudert Brothers, where they both opened the first Chinese office for a Western law firm. According to The American Lawyer, it was here that Professor Cohen and Mr. Nee worked on China's first international petroleum deal, its first joint venture, and its first syndicated loan, and where they advised clients such as General Motors Corporation and The Coca-Cola Company on entering China.

For more on this story and others, please follow this link.

China Daily: Possibility of a Sino-U.S. Extradition Treaty

This article was originally published in China Daily on October 20, 2013, under the title, "Extradition deal key to nabbing fugitives."

Extradition deal key to nabbing fugitives

By Zhang Yan in Beijing and Chen Weihua in Washington (China Daily)

Updated: 2013-10-20 23:47:08

Signing an extradition treaty with the United States is essential to China's ongoing efforts to capture and repatriate economic fugitives, a senior security official has said.

Yet experts on both sides said an agreement may be unlikely in the short term, as obstacles and misunderstandings remain over China's

judicial system and progress in human rights protection.

According to China's Ministry of Public Security, at least 150 Chinese economic fugitives, many of them corrupt officials, are hiding in the US.

Over the past 10 years, however, just two people wanted on criminal charges have been repatriated.

"We face practical difficulties in getting back fugitives who have escaped to the US due to the lack of an extradition treaty, as well as the complex and lengthy US legal procedures," said Liao Jinrong, director of the ministry's international cooperation bureau.

Some progress has been made in judicial cooperation in recent years, but it has been slow and is still far from enough, he said.

Justice officials from both countries meet every year, in August or September, to discuss major cases, and the ministry says it is attempting to set up an annual high-level meeting, such as with the US Department of Homeland Security, to exchange intelligence with the view to repatriating criminals and recovering illegal asset.

There is a willingness in the US to cooperate, Liao said, "but we hope the US can be more understanding of China's judicial procedures ... and be more active in responding to our request for an extradition treaty, which is essential."

Much of the cooperation between China and the US now is done through Interpol.

Once the organisation issues a red notice, an international arrest warrant for an individual, Chinese police provide information and evidence to US Immigration and Customs Enforcement to request assistance with an investigation.

"Once a case goes to the US authorities, they do not disclose details to us because of privacy concern," said Liao. "Usually it takes several years to get a deportation order, and as long as the criminals pay a lawyer to defend themselves they can constantly appeal to higher courts."

Legal experts agree progress in cooperation is being made, but they flagged several challenges in the relationship that stand in the way of a treaty.

Jerome Cohen, a law professor at New York University and an expert on China's legal system, cited the countries' Mutual Legal Assistance Agreement, signed 13 years ago, and the improvement in "informal, ad hoc" exchanges over the past decade as examples that things have moved forward.

"Both countries would benefit from the further progress that an extradition treaty would represent," he said. "But I don't think conditions are ripe yet for meeting this challenge."

The US already has a treaty with the Hong Kong Special Administrative Region, but reaching the same agreement with the Chinese mainland would require substantial changes to its legal system and human rights policies, he said.

"The most difficult obstacle will be American concerns about use of the criminal justice system to punish people for conduct that is protected in the US, and about the fairness of criminal prosecutions in China," Cohen explained.

"In the present circumstances, it would be politically and legally impossible for the USgovernment to agree by treaty to send anyone to China for prosecution, including Chinese nationals.

"The best that can be done is to negotiate case by case specific guaranties that suit the individual situation," he said.

"My hope is that criminal justice reforms will continue to be made in China."

Experts in China argue that political rather than legal conflicts are holding back an extradition treaty.

In the US, where the executive, judicial and legislative powers are separated, Congress must ratify any extradition treaty.

"However, the US Congress does not trust China's human rights protection, and some of them do not have enough understanding of the Chinese judicial and social development," said Huang Feng, a professor at Beijing Normal University's College for Criminal Law Science.

The US government also wants to cooperate, he said, "so it seems learning how to rid Congress of its old belief about our country and political system is the key to ending the dispute."

Fu Yu, a specialist on international law formerly at Chongqing Southwest University of Political Science and Law, suggested finding common ground in economic investment.

"Congress is also concerned about the US economy," he said. "It should see settling legal problems as tackling economic or commercial problems, which may be easier to negotiate than talking about judicial differences."

Cao Yin contributed to this story.