On June 4th, 1989, after several weeks of pro-democracy protests, the Chinese Communist Party (CCP) put down the challenge to its power. Now, with Hong Kong, the CCP has set in motion a process for ending pro-democracy protests and challenges to its power. This time, however, the CCP has arranged for China's legislative body to validate it's forthcoming action by passing a "security law."
Assistant Secretary of State for Democracy, Human Rights, and Labor, Robert Destro (on leave from the Catholic University Law faculty) will moderate a discussion on human rights and the rule of law in China. He will be joined by Professor Jerome Cohen of New York University Law School and Teng Biao, a former law professor, human rights lawyer, and political prisoner in China.
Dr. Teng Biao, Grove Human Rights Scholar, Hunter College
Prof. Jerome A. Cohen, Faculty Director Emeritus, New York University School of Law
Moderator: Robert A. Destro, Assistant Secretary for the Bureau of Democracy, Human Rights, and Labor (DRL), U.S. Department of State
This call is open to the public - please dial 888-752-3232 to access the call.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Dean Reuter: Welcome to The Federalist Society’s Practice Group Teleforum conference call as today, June 4th, 2020, we discuss “The Chinese Government’s Record of Human Rights: Marking the 4th Anniversary of Tiananmen Square.” I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call. Also, this call is being recorded for use as a podcast in the future and will likely be transcribed.
We’re very pleased to welcome three guests to our teleforum call today, and we’re going to proceed really with more of a conversation than opening remarks. We’re joined by Bob Destro, Jerome Cohen, and Teng Biao. But we’re going to hear first from Robert A. Destro. He’s Assistant Secretary for the Bureau of Democracy, Human Rights, and Labor at the U.S. Department of State.
I want to remind our audience that, because of the topic and because of some of the positions some of our speakers hold, there might be some limitations on what they’re able to say or answers they might be able to give in response to your audience questions. I hope we get to audience questions about the 50-minute mark. Our speakers have a lot of information to present in the main, so we’re going to push back our chance for questions to about the 50-minute mark.
But we will get there, so please have your questions in mind for when we get to that portion of the program. Bob Destro’s going to introduce Jerry Cohen, and then we’re going to have the conversation proceed from there. But with all of that, Bob Destro, the floor is yours.
Robert A. Destro: Well, thank you, Dean. It’s a pleasure to be here and an honor to be on not only with you and with friends from FedSoc but also with Jerry Cohen and Teng Biao. Like I say, it’s a pleasure to be here. Unfortunately, my obligations of state are going to require me to mostly listen to the conversation, and Dean will take over as the moderator after I do my introduction.
But let me start by introducing Professor Jerome Cohen. Known to everybody he meets as Jerry, Jerry is without a doubt the foremost U.S.–China law expert in the United States and known as such in China and around the world. Jerry’s study of China began in the early 1960s. In 1968, as a young professor at Harvard Law School, he wrote what’s been called the Cohen Memo. It was sent to Henry Kissinger and eventually became the basis for President Nixon’s change in policy towards China.
After a period of law practice in China with the Paul Weiss firm, Jerry returned to the U.S., continued with Paul Weiss in New York, and joined the NYU law faculty where he founded, and for years, directed its U.S.–Asia law institute, which covers not only China but Japan, Taiwan, and other Far East countries. While he’s been a prime mover in engaging with the mainland, Jerry has also been an advisor to senior officials from both of Taiwan’s political parties. His former student, Annette Lu of the DPP, served as Taiwan’s Vice President from 2000 to 2008. Immediately thereafter, another of Jerry’s students, Ma Ying-jeou of the KMT, followed as President of Taiwan from 2008 to 2016. Unfortunately, none of Jerry’s former students have yet to become the Premier of China, but they’ll get there.
Throughout his career, Jerry has been educating Chinese law students and lawyers in human rights and in criminal defense. He’s been instrumental in freeing political prisoners in China, most notably “the blind lawyer” currently at my home institution, Catholic University. In other cases of less notoriety, Jerry and others have over the years brought pressure in various ways on the Chinese government to release arrested Chinese lawyers, including our panelist today, Teng Biao. With his 90th birthday coming up on July the 1st, you would think it was about time for Jerry to slow down a bit, but no. He continues to write and lead seminars. Throughout the COVID lockdown, Jerry has been holding regular Zoom sessions with numerous scholars from around the world discussing U.S.–China relations. And I am just absolutely thrilled that he’s taken the time to share his wisdom with us on this call.
So Jerry, we welcome you, and I’m going to take the prerogative of the -- at least the introducer to ask you the first question. Until recently, a lot of people thought the Chinese human rights record would improve. Unfortunately, that’s not happened. You worked for years educating Chinese lawyers about human rights and criminal defense, which from my perspective is about the rule of law. So if you wouldn’t mind discussing the phenomenon that, while repression of human rights is increasing under the Chinese Communist Party, concern for human rights is growing among the lawyers, as well as persecuted Christians and other religious minorities. And Jerry, I’m going to turn over the floor to you and listen. Thank you.
Prof. Jerome A. Cohen: Well, Bob, thanks for that nice introduction. I hope my obituary will be as kind. You raise a very general question about 70 years of the Chinese Communist legal system and what it amounts to. And June 4th, 1989, was a crucial data in the development of the legal system.
For the first 30 years under Chairman Mao, from 1949 until really his death in ’76 -- almost 30 years -- the PRC went through a great many pendulum-like changes. There was a period in the mid ‘50s when Soviet influence was very prominent, and the formal legal system was underway. But then Chairman Mao launched a movement called Let a 100 Flowers Bloom. As a result, he got an enormous amount of criticism that he didn’t expect, and that lead to an extreme reaction called the Anti-Rightist Movement.
The Rightist were said to be people including lawyers, law professors, legal officials, etc., who were very reluctant to go along with the Communist legal system unless it made fundamental changes. It was an effort at the time in the mid-‘50s after Stalin’s death to engage in what became known as destalinization, a limited improvement toward a rule of law in Soviet Russia. And the Rightist tried to do that in China.
And beginning just about now, really, when I think about it -- I think it was June 7th or so of 1957, the party leaders decided there was a dangerous movement towards a bourgeois legal system. And they cracked down with a campaign. That campaign lead a year later to the disastrous Great Leap Forward formula for economic development that cost tens of millions of Chinese lives. And later, that lead to the Cultural Revolution that began in ’66 and ended with Chairman Mao’s death in ’76.
A legal system of a formal nature was much in abeyance then. Lawyers were on the shelf. Even the Ministry of Justice was on the shelf. And conditions were chaotic when Deng Xiaoping final attained power in 1978. And people were waiting to see would he continue class struggle, or would he try to make China part of the world from which it had withdrawn and which had rejected it for its first 30 years.
Well, Deng Xiaoping was trained in the Soviet model, and he, beginning December ’78, introduced a governmental and legal system that was based on the abolition of class struggle. Class struggle, the terrible persecutions of previously dominate groups, including capitalist groups, had not lead China to the kind of economic prosperity that the Communists had hoped to achieve. And Deng Xiaoping introduced, of course, reform in opening.
And this was a very exciting time, 1978-79, 80-81. I lived in China beginning that period and was a participant in the effort to do more than the Soviet legal system to build on the Soviet-type continental European legal framework and try to develop it in a way that would make China attractive to foreign trade, technology transfer, and particularly foreign investment. The country was desperate for foreign exchange, and they needed to know how to build the legal system that foreigners might have some confidence in, despite the fact they were dealing with a Communist country.
And there was also a terrific longing among many people in the country for more security of their person. There had been hundreds of millions of people adversely affected by the events of the first 30 years of Communist rule. And many wanted not only to have law help abolish crime that had disrupted life but also to use law to protect people who were accused of crime and accused of even political dissidence.
So the 1980s were a very rich stew. A lot of progress was made. It was halting. It was incomplete. There was political interference of various campaigns. But the fact is, even within the Chinese Communist Party leadership, there was enormous debate over what role should law assume and what degree of protection should the legal system offer to individuals as well as enterprises.
In 1987, the then liberal leader of the Chinese Communist Party under Deng Xiaoping, who didn’t really have the formal title of leader but served as actual leader -- but the formal leader, man named Hu Yaobang, was removed in a campaign against so-called bourgeois liberalism. And I remember I was interviewed by Ted Koppel on TV that day. And it happened -- I think I offended some of my more liberal friends in America by saying it’s wonderful for students to go into the street and shout “Freedom,” but if it leads to less freedom, you have to ask was it desirable?
And of course, this was a precursor to what happened two years later. Hu Yaobang was replaced by another liberal Communist reformist leader named Zhao Ziyang. But in May of 1989, as students marched into Tiananmen Square in Beijing in order to protest the lack of freedom, the corruption in society, and were joined by many people in the Labor movement, Zhao Ziyang himself was removed at the time when the leadership under Deng Xiaoping and Prime Minister Li Peng decided the country needed marshal law and that marshal law would be necessary perhaps to clear the huge Tiananmen Square of the students who, by that time, were well into a hunger strike that had attracted and concerned much of the world.
And this was the context for the horrible slaughter on June 3 and 4 when students, who were under themselves divided leadership, didn’t want to leave the square. And Deng Xiaoping had arranged for militant units of the People’s Liberation Army to come in with their tanks and guns, etc. And the students seemed confident. “The People’s Army,” they said, “will never fire upon the people.”
And these students were not vandals. These were not students engaging in violence. They were almost pathetically occupying Tiananmen Square. They had no weapons to defend themselves. But nevertheless, the troops came in in various areas, not in the square, but around it. And you had a horrible massacre. Hundreds of people were killed. Many more were wounded. Perhaps thousands were killed. There’s never been an accounting.
Nobody in China has been allowed to even mention June 4. I shocked people about the early ‘90s when I gave a speech at Fudan University in Shanghai. I was told not to mention June 4, but I did. And there was a hush in the audience at the mention of the date. And you could see that I had torn a thread. And later, of course, that suspended my cooperation with Fudan University law faculty to a considerable extent.
Well, there’s never been an accounting of June 4 in China. But in 1997, Hong Kong became part of China. The British Colonial government handed Hong Kong over pursuant to an international, bilateral treaty concluded between the U.K. and Beijing. And that was then implemented by a basic law enacted by the National People’s Congress in Beijing in 1990.
But before 1990, you had this tragic 1989, June 4, massacre. And that altered relations between Hong Kong and the mainland. It put the fear of the Communist system in the minds of many people in Hong Kong. And what we’ve witnessed since then is an attempt to put flesh on the bones of the one country, two system arrangement that was agreed to between the U.K. and China. And that has witnessed increasing PRC control over Hong Kong, and that’s what today’s battleground is all about.
But before getting there, I want to now bring my esteemed colleague, Teng Biao, into our conversation. Teng Biao is a classic multitasking, courageous human rights lawyer. He was a professor of constitutional law at one of the great law schools in China. He was a member of the bar who took part in very many important cases.
He was one of three people who joined to present the Chinese National People’s Congress standing committee with a great opportunity to make a constitutional law decision that they were authorized to make in 2003. They declined the opportunity, but his effort got the Executive Branch of the government to declare invalid the regulation for arbitrary detention that they had challenged. Teng Biao has organized important organizations in China, one against the death penalty, one for assertion of citizens’ rights.
He’s been an effective journalist. He went down to investigate the problems of the persecuted “barefoot lawyer” mentioned earlier in remote part of Shandong Province and put out an important report that was later repressed. He himself was kidnapped three times by security forces, one time held for over two months. And he knows what it’s like to be kidnapped and have a hood put over your head and held in the back of a car with people who might do anything with you at any time and who subject you to torture. So this is not an armchair academic. He’s a scholar who has been a distinguished activist.
Now, with that long wind up, I want to ask Tony—as we call him in English—what aspects should we begin to discuss about the People’s Republic of China, the mainland legal system? Then later, we can move over and see what’s been going on in Hong Kong that’s been of so much concern to much of the world. Where should we start, Tony?
Dr. Teng Biao: Hi, thank you, Terry. Thank you, everyone, for joining this special event on this special political meeting. Two things happened in China 31 years ago: the peaceful democracy movement and the bloody massacre. So what happened in China in 1989 is greatly relevant to China and the world today.
The Tiananmen Massacre completely deprived the Chinese people of their rights and freedom. It created the low human right advantage which hugely contributed to the so-called China Miracle. By the low human right advantage, I mean the low bridges toward working environment, force eviction depends on independent labor union that occurred -- that the Tiananmen protest and demonstration and the inclusion between commerce and business. On the other hand, the democracy movements in 1989 gave birth to the resistance later on, especially since early 2000, the right defense movement, the Weiquan movement.
In 1989, I was only a brainwashed high school student, but I was greatly shocked when I knew the truth of Tiananmen Massacre. And then after I got my PhD from law school, I decided to fight for human rights and the rule of law in China. The right defense movement, we used an existing constitution and legal mechanisms to defend people’s rights and freedom.
So Jerry mentioned Sun Zhigang case in 2003. I, together with two other scholars, wrote open letter to the National Congress to challenge the constitutionality of country and repatriation system. And country and repatriation system is one of the many extra judicial detentions in China. We’ll later talk about concentration camps in Xinjiang, which is the actual legal detention. And I think what happened in Xinjiang is the worst humanitarian disaster in 21st century until today.
Prof. Jerome A. Cohen: Tony?
Dr. Teng Biao: Yeah.
Prof. Jerome A. Cohen: We should explain to people that Xinjiang is a remote region in China were the Muslim population, Uyghur people and Cossack particularly, have been persecuted in ways that are blatant violations of public international law. And you may want to just mention some of the techniques that the party has used on the people of Xinjiang even today.
Dr. Teng Biao: Yeah. So Chinese government called Xinjiang literally the New Territory, but actually, it’s called by local people, the Uyghur people, as East Turkistan. So since a few years ago, Chinese government has sent maybe two million Uyghurs and Cossacks and other ethnic minorities into the concentration camps, which they call vocational training center or reeducation centers. And Chinese government even sent millions of Han Chinese people into Uyghur people’s home to closely monitor them.
And in terms of the human rights declaration intent, it’s deteriorating. Since 2009, 156 Tibetans self-immolated to protest the persecution, to fight for their fundamental freedom. And since 1999, more than 4,000 political prisoners have been tortured in detention. And Chinese government, they’re also demolishing Christian churches and burning Bibles. So China is going backward. It’s not as in 1989, where the people almost achieved democracy. Now, China has achieved a more totalitarian system, what I call as high-tech totalitarianism. The Chinese Communist Party utilizes the high technologies like outages or intelligence, facial recognition, the big data, voice print recognition, DNA tracking, like that, to strengthen its control on society. Yeah.
So the final point I want to make here is the whole world, especially the Western democracies, should learn a lesson from the past three decades. After the massacre, the Western countries had a Tiananmen sanction, but very soon, most of these Tiananmen sanctions, were canceled, were eased. And the United States President sent a special representative to meet with Dung Shao Peng to show its good will. And Bill Clinton granted China the most favored nation during human rights retreat.
And a few years later, China was extended the PNTR, the permanent and normal trade relation status. And then China was allowed to enter the World Trade Organization. And then we see China has become the second largest economy, and it has become more and more aggressive on international stage and actually has become the biggest threat to global human rights and democracy. --
Prof. Jerome A. Cohen: Tony, let’s talk a little bit about the varieties of arbitrary detention in China. In the Xinjiang area, of course, the police have demonstrated lawlessness. A minority of the over a million people who’ve been detained and put in concentration camps have been put there through the formal criminal process.
But most people are there through administrative measures taken by the police and all kinds of informal sanctions, as you point out. They even have sent people to live in the homes of these Muslim minority people in China. But what we find is the Ministry of Public Security, the Ministry of State Security—China’s equivalent of the Soviet KGB—they have developed very effective methods and, as you point out, high-tech totalitarianism that has used the formal confinement -- in effect, concentration camps that are designed in part at least to force people who so-call graduate from them into accepting low paid labor assignments that they have not sought.
But you have informal methods of coercing people, and you have party sanctions for detaining people. You have long-term incommunicado incarceration. You have the regular criminal justice options. And yet, people are defenseless in this application, in part of lawlessness, in part of the use of law as a coercive instrument. They can’t defend themselves. Could you say something about -- what about China’s lawyers? You were a lawyer before they took away your license. How much can Chinese criminal defense and human rights lawyers do now?
Dr. Teng Biao: Yeah. So I became a lawyer in 2003. And because of my human rights activities, I was disbarred. And I was even kidnapped by Chinese secret police for three times and severally tortured, mentally and physically. I was put under an extreme form of solitary confinement for 70 days.
And in 2015, we called it the 709 crackdown. More than 320 human rights lawyers were rounded up, either disappeared or arrested or interrogated. And some of these human rights lawyers are still in prison. Like lawyer Jiang Tianyong, he was completely disappeared for three years without any information.
And what were these lawyers do -- and what are these lawyers doing now? We just used the legal system, the criminal procedure to defend people’s lives. They are fighting against a culture of disappearance and what exactly happened to themselves.
Prof. Jerome A. Cohen: I want to say that maybe the most famous lawyer in China -- a man named Gao Zhisheng -- has been disappeared several times and most recently for several years after his latest criminal justice punishment. We just don’t know whether he’s dead or alive. His wife and children live in the United States. They don’t hear from him.
In 2003, I met with him and about a dozen other human rights lawyers for a frank talk in the coffee shop of the leading Beijing hotel. And I asked them, “What is the right posture for a criminal justice lawyer in China? Is it better to fight under the existing rules that tie one arm behind your back but at least give you some chance to be heard? Or is it better to disdain the system and go all out against it?”
And Gao, who was a very brave man and very brilliant, he took the position “Unless we overthrow the Chinese Communist government, we’ll never have genuine justice in China.” And I said, “Well, I think you’re right. But where is that going to get you. If you go on talking like that, you aren’t going to be on the street, and you aren’t going to be able to do anything for anybody.”
The other lawyers mostly took the position “Of course, we’re under limits and constraints, but it’s best to fight with what we have and try to improve the legal system.” Well, Gao disappeared for the first time shortly thereafter, and his life, if it still exists, has been hell. And this is not unusual. The 709 Campaign met July 9th, 2015. And China is still trying to pick up the pieces and deal with the consequences.
So the role of lawyers in China, many of them disbarred -- many still acting not as lawyers but as legal advisors, etc., some tolerated, some not tolerated -- is a very sad story. But they are the only line of defense. I’ve been involved in many cases in China trying to help detained people.
And it’s the sense of helplessness. Where do you go when you see people’s rights violated? Can you go to the police and ask the higher ups to stop what the lower level people are doing? That doesn’t get you anywhere. Can you go to the prosecutor’s office? It’s their responsibility to make sure that the police and others obey the law, but they, too, are under party control. And they aren’t interested in helping. And I’ve tried it.
Can you go to court? Well, these cases only reach the courts later, and the courts themselves for criminal justice purposes are under obvious total party control. Can you go to the local Communist Party secretary? There’s really nowhere to go, and this is a very sad thing. And people try to go to public opinion. The media is largely controlled.
Tony did a good investigation over 15 years in Shandong Province of mistreatment of the “barefoot lawyer” and people down there. And course, if you try to use the media, you’re quickly cut off and perhaps punished. So do you go abroad?
The “barefoot lawyer” got ahold of me, and I arranged an appointment with the Washington Post representative in China, Phil Pan. And he wrote a wonderful front-page story for the Post. But as a result, the “barefoot lawyer” got detained arbitrarily in Beijing, brought back home to Shandong, and put under house arrest and later condemned to prison for four years.
So it’s the sense that there’s nowhere to go. It makes one very frustrated with the criminal justice system in China. Nevertheless, China is a kind of dual state. While you can’t say the legal system is impassive with respect to non-sensitive, noncriminal justice, non-punishment cases, nevertheless it has made some progress. And law reform continues.
A new civil code, a massive document that’s impressive has just been promulgated. At the same time, the National People’s Congress adopted a law to impose national security on Hong Kong. And many cases are now available in public records and even put on TV for people to watch in attempt to give the public greater understanding and a sense of participation and justice. But the fact is many sensitive cases are not dealt with publicly. And a public trial is a farce in many of the political cases that Tony and others get involved in relating to human rights.
So you have contradictory developments within the society. But it’s plainly a legal system that’s dominated by the Communist Party and implemented by the National Security agencies that they now are going to impose on Hong Kong. Well, Tony, we should get to Hong Kong soon, but please say something else you think we might want to cover with respect to the mainland.
Dr. Teng Biao: Yeah. So in terms of the illegal detentions, we have many, many different forms of arbitrary detention, like legal education centers targeting the Falun Gong practitioners and like RSDL, an antenna of Criminal Procedure Law. So all these constituted arbitrary detention. And I think it’s also related to the current proposals of Hong Kong’s national security law because, in mainland China, many dissidents and human rights activists and writers were charged with incitement leading to coercion of overthrowing the state. And many of them got long sentences.
But the definition of national security is very weak. And the Chinese government have a -- legal enforcement can easily regulate the indoctrination of national security. If you criticize the government, if you are involved in some human rights activities, then you are charged with endangering state security. So in Hong Kong, we’re thinking we’ll be having this law passed.
If a Hong Konger criticizes the central government or the party leader, they might be charged with endangering state security. So actually, what the Chinese government tries to protect is not national security but the Communist Party security. And that’s why Hong Kong people are so worried about it.
Prof. Jerome A. Cohen: Let me give a little background on the Hong Kong situation. When the basic law was enacted, there was a provision, Article 23, that calls for the Hong Kong legislature—LegCo, we call it, the Legislative Council—to enact on its own, as local legislatures, appropriate legislation to suppress what we would call subversive activities. And there’s always a question of what those activities should be. A draft law was developed.
But in 2003, the attempt to get this draft law on national security done by Hong Kong itself failed. 500,000 people went into the street. And that put the kibosh on subsequent efforts.
So for 23 years after the hand over in 1997, Hong Kong has not yet enacted a national security law, yet Beijing has been increasingly restive. The central party authorities, the central government -- why doesn’t Hong Kong do this? Xi Jinping even three years ago began to outline what he thought should take place.
In the meantime in Hong Kong, beginning last spring, you saw an immense popular expression of opposition to another proposed law. That law would have helped to extradite or to rend over to the mainland any people, including Americans like us happening to pass through Hong Kong, who were claimed by China to have violated the mainland’s criminal law. And there were negotiations.
The interesting thing is, although a number of countries have made extradition treaties with China -- not the Anglo-American system countries, including the U.S. I should point out, but some continental countries, some others -- the fact is Hong Kong, a part of the People’s Republic since 1997, has never been able to make an agreement with the mainland because people in Hong Kong know too well the mainland criminal justice system. And they don’t want to hand people over to it. But an attempt was made last year to do so.
And that attempt would have subjected people, including foreigners, to the mainland justice through extradition. They would have been sent to the mainland for communist justice. Well, it failed, and it produced this enormous series of public opposition, protests, etc., some of which have become violent.
Now, in order to quell this, taking advantage of the coronavirus crisis, suddenly, just recently, the National People’s Congress came down with the decision calling for the central government to do what the Hong Kong government has not been able to do. The central government is now going to enact national security legislation to be imposed on Hong Kong. And this has had a tremendously adverse effect because what they’re doing is, having failed to extradite people from Hong Kong to the mainland for criminal justice—Chinese, Beijing Communist-style—they’re sending the Communist criminal justice system to Hong Kong, with respect to national security offenses that are yet to be defined and that, in the mainland, are defined very broadly.
So the question now that Hong Kong is confronting—and the world is concerned—what kind of conduct will the new legislation prohibit? How broad will it be, and who will interpret it? And here, perhaps the most worrisome thing has just emerged in the last few days.
Hong Kong officials and some of the elite are beginning to lay the groundwork for a new court. It would be a national security court. And that would raise questions about who will be the judges? What will be the procedures, and what powers will this court have? Will it operate secretly? And there’s already been some anticipation that it often will.
The U.S., some of you in the audience know, has the FISA court, the Foreign Intelligence Surveillance Act court, that does operate secretly with respect to applications for search and seizure, electronic monitoring, etc. But it’s not a trial court. People accused of crime in the United States are still subjected to trial in the regular courts with those protections.
But this new legislation that isn’t completed yet—and the world is beginning to worry about and efforts are made to influence it—they raise the question about what will it amount to? And even if there’s no new court, there will be new legislation insisted on by Beijing from Hong Kong’s legislative council. And how will that legislation be related to the central government’s national security legislation that’s about to appear?
There will be inconsistencies. How will those inconsistencies be worked out? Well, presumably by the Hong Kong courts. But what, if any, of the provisions, whether in the centrally imposed document or the local document that will appear, seem to violate the basic law or the Chinese constitution? Well, we’re told the Hong Kong courts are still independent, but the question is are they going to be allowed to pass on questions of constitutionality or relating to people’s capacity to speak out?
And of course, maybe most worrisome isn’t the formal legal arrangement that’s emerging, but it’s a provision of the new decision of the National People’s Congress that says the Ministry of State Security and the Ministry of Public Security in Beijing can openly establish offices in Hong Kong. They have been secretly operating in Hong Kong for decades. But to give them open opportunity to call in people for tea, as it were, to make informal contacts, to engage in extensive electronic monitoring to bring some of the techniques that have been perfecting in Xinjiang part of China to Hong Kong, this is already creating fear. So that’s what is at stake in Hong Kong. So Tony, I wish you’d make some comments about how you see it.
Dr. Teng Biao: Yeah. So one point is if this national security law passes, the Ministry of State Security, MSS—the secret police department in China—will set up an office in Hong Kong. So that’s really, really horrible. I think we have to mention a very important case in 2018.
A bookseller -- some booksellers and publishers were kidnapped in Hong Kong and detained respectively and sent back to China and disappeared. And one of them, Gui Minhai, who had Swedish passport, was forced to confess on China’s official television saying that he gave up his Swedish passport and applied to Chinese passport again. So that’s very, very worrisome because anyone can be kidnapped by Chinese secret police. And then they were tortured and forced to give up their own citizenship. Yeah. That’s why we have to help Hong Kong, have to do anything to stop this national security law from being in effect.
Prof. Jerome A. Cohen: One of the Hong Kong publishers was -- the one Tony has just mentioned, Mr. Gui -- he became a Swedish national decades ago. He abandoned Chinese nationality, and yet, China treats many former Chinese citizens who have adopted foreign nationality as though they have no foreign nationality, even though Chinese nationality law says, if you assume a foreign nationality, you automatically lose Chinese nationality. But in practice, that law is not followed.
And even more sinister, recently in the case just mentioned and in others, China has said about people who were still in Chinese police captivity -- they have voluntarily given up their foreign nationality and reacquired Chinese nationality. Therefore, governments like the Swedish have no right to intervene on their behalf. Thailand was the scene—not Hong Kong—of Mr. Gui’s kidnapping. And in Hong Kong, even the leading billionaire was kidnapped in Chinese New Year’s Eve of 2017 from his suite in the leading hotel in Hong Kong. And we haven’t heard a word from him since.
So it’s going to get worse when these institutions are allowed to set up shop publicly and to publicly do what they’ve been doing privately, which is to get control over and influence over the Hong Kong police. But I think we should take questions if there are any. Otherwise, we can use the available time.
Dean Reuter: It looks like we’ve got two questions on the board from our callers. Before we turn to our callers, let me ask -- there’s a lot on the table here, Jerry and Tony. And I’m wondering -- our Federalist Society members love to be good citizen lawyers. The Federalist Society itself has a pro bono page on its website where our members can find pro bono activities. What can be done from the United States by Federalist Society members or other lawyers here in the United States? Is there a role for those folks in all that you’ve described or any part of what you’ve described? Jerry or Tony?
Prof. Jerome A. Cohen: That’s a great question. When my law firm set up an office in Beijing many years ago we faced that question of what can we do? Law firms that have a great tradition of pro bono activity naturally want to see if there’s room for it when it comes to dealing with China.
Now, in this country, I think if there’s talent among the students, among the lawyers, academic people, first of all, there can be an attempt to help people like Teng Biao—and there are quite a few in this country—learn more about the American legal system, tell more about their own experiences, make information much more available to the general public. When you have the talent, such as mobilized by The Federalist Society, that’s available for learning more about comparative law, this would be very apt. Then they could work on questions such as what should the United States government now do in reaction to Beijing’s plan to enhance national security controls over Hong Kong?
There are lots of technical legal questions that come up, starting with some I raised about Hong Kong. But there are more that we haven’t touched on with respect to Hong Kong’s legal status in the United States. The President and the Congress have the power to take many measures. Some of them might be helpful to Hong Kong. Some might be hurtful.
And right now, everybody is scrambling to try to understand the legal consequences. For example, under the arrangement that Britain and China made in 1984, Hong Kong is to continue to have the protection of the International Covenant on Civil and Political Rights, the ICCPR. And that law does not apply -- that international treaty does not apply to the mainland which signed the treaty but never ratified it. But they did agree that Hong Kong would be subject to the protection of the ICCPR.
How that should apply to Hong Kong, that’s confronting us now. And if I had some legal research talent available, the first thing I would ask them to do is to look at what does the ICCPR say about the right of any government to forbid its nationals from leaving the country. This comes up because you see what the Prime Minister of England has now said in the U.K. They’re going to allow, if Beijing continues with the plan for this legislation involving national security -- they are going to allow many, up to 3 million people, in Hong Kong to acquire visas to live and work in the U.K. and possibly—and this is very sensitive in the U.K.—become U.K. citizens.
But what if China now says, “We’re not going to let them out?” China is responsible for foreign affairs under the Sino-British Joint Declaration on Hong Kong. And China may forbid them. China does sometimes forbid people from leaving the country.
Is that a violation of Hong Kong’s protection under the ICCPR? And you’d have to look at ICCPR practice, how the norms in the treaty have been applied in various respects. But this is only one of many possible examples where legal analysis and legal research can be very helpful. There are many international trade problems, problems involving finance, cyber security coming up. I’d love to see The Federalist Society get involved to do greater work with respect to many of the legal questions that affect our relations with China.
Dean Reuter: Jerry, I’m going to make sure that you’re in touch with our pro bono center and they have your information. Obviously, our Federalist Society members know if they have interest in this area there’s a lot of work to be done. They can be in touch with our pro bono center from the other side. And we’ll connect the dots. Tony Biao, do you have anything on this point, or should we turn to our audience for questions?
Dr. Teng Biao: Yeah. I can add a few things briefly. Many people in American government organizations are doing wonderful things to support Chinese human rights. But I have a personal experience. A few years ago, American Bar Association refused to publish my book, which they had agreed to publish. And they told me they don’t want to anger Chinese government, and they have programs in China.
Many foundations and organizations are cooperating and supporting Chinese NGOs. They seem to be NGOs, but actually, they’re government NGOs and government organized NGOs. And that’s not correct direction.
Another thing is some Western companies are even facilitating Chinese government surveillance state, like Cisco and a few other type things help Chinese government to (inaudible 00:57:49) and strengthen TFW, the great firewall.
In terms of the broader China policy, we have seen in the past couple years some laws were passed, like Global Magnitsky Act, the Hong Kong Human Rights and Democracy Act, and a bigger human rights act. These are wonderful. So it’s really, really important to implement these acts.
And I also recommend the United States and other western countries to boycott 2022 Beijing Winter Olympics. And Olympic Games had been [inaudible 00:58:35] for Chinese government to violates human rights and suppress freedom.
Dean Reuter: Very good. I think I mentioned at the outset we’re able to go longer than 60 minutes, so we do have time for questions. Let’s now turn to our first question of the day from the audience, caller from 202. Go right ahead, caller.
Caller 1: Yes, thank you. This is an outstanding conversation -- the parade of horrors, really. I would like to ask Professor Cohen, you said that the United States government could do some things regarding Hong Kong, some of which are good and some of which would be bad. I’d like you to elaborate on the bad.
And then secondly, I would like to ask either of you or both of you if businesspeople in Hong Kong from outside—who are not nationals of China or of Hong Kong—are they at risk in this era? If the Communist Party should do what it clearly intends to do regarding Hong Kong, are they at risk in staying there?
Prof. Jerome A. Cohen: You’ve asked two very good questions. Let me deal with the second one first. One of the major prohibitions of the new legislation is the prohibition against foreign interference, and this is going to be very troublesome. There has already been, under the resent foreign NGO law on the mainland, a very serious limitation on the activities of foreign NGOs in the mainland. And that has had some repercussions in Hong Kong.
But now we’re going to have laws that will prohibit various sorts of foreign interference. And the question is what constitutes interference and will human rights in China, meaning human rights organizations based in New York but has an office in Hong Kong, be able to continue? Will the U.S. government be able to offer scholarships to scholars in Hong Kong to come and study in the U.S. or go on a tour? Will I be able to make a speech at Hong Kong University, as I often do?
We don’t know, you see, what the content will be of the interference that’s going to be prohibited. And this will include businesspeople. And of course, businesspeople in Hong Kong are subject to huge pressures. The Hong Kong Shanghai Bank, HSBC, has just succumbed to pressure and finally, reluctantly, spoke out in favor of the new national security law.
But many people, especially foreigners, are concerned because they don’t know how broad the scope will be of the new legislation and who will apply it. And will there be a new national security court for handling accusations against foreigners? The business community, of course, is very troubled. They don’t know how serious the situation’s going to be. A struggle is underway to influence the law that hasn’t yet come out of Beijing. Then there’ll be a great struggle to influence the practice.
But in the meantime, you have about 85,000 Americans, well over 100,000 companies that are a part of the American business presence in Hong Kong. So we have to be worried about that. And I certainly have to be worried in my own conduct and in terms of my relations even from America with friends and organizations in Hong Kong.
Now the other question is the question of the hour in Washington to the extent attention can be diverted from the chaos in our domestic situation. But the question confronting our government and the Congress is what of the available sanctions should we take? Nobody wants to act in a way that’s going to make us feel good but hurt the people in Hong Kong we’re aiming to protect. So we have to be very selective. And that involves very careful analysis of what the existing legal and administrative arrangements are and what changes could be made that would not prove counterproductive.
Look at the -- we have an extradition treaty with Hong Kong. We have not got an extradition treaty with China for reasons that we’ve mentioned, no confidence in their criminal justice legal system. But we do have one with Hong Kong, and it’s been working. But does it make sense now if the Hong Kong legal system is going to be dominated, to use one of our President’s favorite words, by the PR party system of justice to continue to have that extradition treaty? So we have to look at that very seriously, and I think there should be congressional hearings on that question, as well as many other questions.
Dean Reuter: Tony, do you have anything you would like to say on this point?
Dr. Teng Biao: Yeah. In general, foreigners are safer than Hong Kongers in Hong Kong and mainland Chinese in China. But we have more and more altering cases like the one of the booksellers who was kidnapped has British passport. And Xiao Jianhua, the billionaire who has Canadian passport, was kidnapped in Hong Kong. And in China, after the arrest of Huawei’s CFO, Meng Wanzhou, the occurrence of Chinese government arrested at least two Canadian citizens. So these cases are really, really worrying. And we have to pay more attention to the safety of foreingers in Hong Kong and China.
Dean Reuter: We still have two questions pending. We’ll get to as many as possible. Our guests have agreed to hang in there awhile. Turning now to area code 575. Go right ahead, caller.
Caller 2: Thank you very much. I had a question about religious minorities in China and what it is that the Communist Party feels threated -- or why they feel threatened by religious minorities, and what do you think could be done to alleviate some of those fears on the part of religious minorities in China? Thank you.
Prof. Jerome A. Cohen: Tony, do you want to try that, please?
Dr. Teng Biao: Yeah. The Falun Gong were labeled as evil cult, and they were persecuted very, very severely. And Tibetan Buddhism, Uyghur, and other Muslim and even Christian and Catholic were all persecuted. And it becomes more and more harsh. So even though Chinese constitution has an article protecting religious freedom, but in reality, almost every religion is suppressed and persecuted by the Communist Party.
There are different reasons. One of them is all of them in conflict with the Communist ideology. But more importantly, the religions are well organized and not in the control of the Chinese government. So Chinese government has formed official associations of the five major religions, but for those not in the official associations, they are facing very, very difficult suppression.
Prof. Jerome A. Cohen: Yeah. I might say that the religion is considered a deep threat, and that’s why it’s so carefully controlled. You have the ongoing secret negotiations between the Vatican and the controlling authorities in China for the Catholic Church. It’s not been satisfactory resolved -- the struggle for power and who will appoint bishops, etc. You have the largely protestant varieties of house churches, secret churches in China have increasingly been brought to bear.
The Falun Gong, which could be considered as a kind of nativist Chinese religion that draws upon elements of Christianity has maybe suffered worse than any other organization that could be called religious or having a faith. And of course, one of the new administrative chiefs in the central government in China, now put in charge of Hong Kong, was previously in charge of an East Coast province in China where he presided over the desecration of churches, the removal of crosses from church buildings, etc.
China -- the Party is afraid of religion. They do not want people to have an alternative faith system alternative to the Communist Party ideology. And since people have been loosing interest and faith in Communist ideology, which ironically is from abroad—it’s from foreigners, but it’s been domesticated—the Party is searching for ways to monopolize the ideology available to the people.
So religious thought is an enemy, and they’ve been resurrecting the Chinese past, trying to show “We don’t need any foreign influence. We have Confucianism.” And they try to reinvent Confucianism, which in the earlier period the Communist Party, like other modernizers in China, used to condemn as responsible for all China’s backward feudalistic practices. But it’s better they feel to have a Chinese Communist Party sanitized version of Confucianism than to allow foreign ideologies, whether it be Catholic or Protestant or Falun Gong homebrewed kind of ideology.
And this is broader. They’re also against any independent civil society, not just religion. They don’t want NGOs and other civic organizations, whether domestic or foreign, to be outside of party control. They don’t want these organizations to get credit for helping improve Chinese society. The Party must be in every organization, and the Party must dominate and get credit for it. And that’s the background for what’s happening in China today.
Dean Reuter: Well, that’s very interesting. So it’s not about a religious minority or two. It’s about religion, per se. We do have one question pending. Let’s now turn to area code 303 for what might be our final question. Go ahead, caller.
Caller 3: My question is what do you all think the United States government could do, the most effective thing we could do to induce the Chinese Communist Party to follow international law?
Prof. Jerome A. Cohen: Well, that’s of course a question of the hour. We see that in the very important arbitration case that the Philippines brought against China in 2013. I was quite excited about that. The Chinese government, however, disdained the whole process and tried to abolish the effects of the decision that went against them, unfairly condemning the arbitrators, distorting the legal obligation that China had under the United Nations convention on the law of the sea to go to litigation.
China’s view was, “We’re so right in our interpretation of the maritime issues involved we don’t need to go to court to vindicate that. And we’ll pay no attention to whatever the arbitration tribunal does,” even though China was obligated to heed the outcome, even if it wasn’t formally obligated to take part in the proceedings. This is a very serious question, but international law questions are coming up all the time.
The first thing we have to do is pick up our own socks, pay more attention to the international law questions, try to take a more active part in various international institutions where legal questions come up. It’s very important we don’t do that if we abandon the World Health Organization or if we block the appointment of arbitrators in the WTO, which puts the dispute resolution system to a halt. As in so many of these things, international law is interactive. It’s based on reciprocity.
The best thing the United States could do is to take a more active part in international legal questions. Maybe the worse situation is with respect to UNCLOS, the law of the sea convention. We were maybe the key force in finally, after decades of effort, forging a treaty that the world could agree on. And yet the United States has not ratified that convention.
This is -- it puts us in a very awkward situation. So it’s a good application of what Shakespeare said, “Physician, heal thyself.” And we have to do better. And also, of course, we have to know more about what China’s doing. I published an article recently in the NYU journal of law and politics you may want to have a look at.
Dean Reuter: Very good. It looks like we do have one more question. Let’s try and squeeze in this final question if we can. Heading now in the direction of area code 720. I know we’re past our time, but I’ll indulge our guests just a little bit longer -- ask our guests to indulge us. 720, go ahead, caller.
Caller 4: I’m in immigration, so I have many Chinese also as clients. And the problem with China is, as with any state who assumes power or gets so powerful, we didn’t do anything when they’re not as powerful as today. So I think there has to be a political will to get involved in more international organizations and not portray connections about everything. Don’t you think so?
Dean Reuter: I’m going to let Jerry go first and then Tony go first. And as you’re answer this question, each of you, if you want to express any final thoughts, wrap up, please do that.
Prof. Jerome A. Cohen: Well, I’m not sure I understand the question. But if it’s that there has to be political efforts to accompany legal efforts, that’s certainly right. That’s why I think the United States should not be abandoning international organizations but should be playing its traditional role of strengthening them and helping to lead the world and putting China to a challenge to deal with these questions as legal questions and not merely as questions of political power.
Dean Reuter: Tony Biao on this point.
Dr. Teng Biao: Yeah. Actually, China has ratified at least 25 human rights -- international human right treaties. But I would say they ratified these treaties not to obey them but to manipulate them. And Chinese government has manipulated the Human Rights Council and many other UN human rights mechanisms very, very much. And recently, we have seen how China controls -- Chinese Communist Party controls and suppressed the World Health Organization to postpone its announcement of global emergency. So Chinese government becomes more and more active in many international organizations.
I don’t think it’s good news, and they are so capable of manipulating all these international organizations for their own political agenda and political interest. So I think the United States and the Western democracies should reexamine their China policy. And there are many things that the West can do, but first and foremost, we have to think again the engagement policy for the past three decades. I always argue that if these engagement -- the engagement is not bad. But if you engage China but don’t pair human rights and the democratization, that’s really similar to appeasement.
Dean Reuter: I’m not sure we really gave you a chance to wrap up. And I’m not sure if Bob Destro -- I see Bob’s still on the line. I don’t know if Assistant Secretary Destro wants to join in with a final thought but let me just circle around one more time to Jerry and then Tony and give you a chance to wrap up before we adjourn the call. Jerry?
Prof. Jerome A. Cohen: Well, I see I should have mentioned when we talked about religion, make it clear that the Muslim religion has suffered as much as any. And it’s a fascinating effort by the PRC to transform Muslims into Han people. The majority of people in China are Han. And although the Chinese constitution protects the rights of minorities and fosters their opportunities, etc., the fact is there’s a massive fascinating sociological experiment underway that’s really sinister to try to change these Turkish people, who are of Muslim religious preference, into Han people by a whole comprehensive set of measures.
And the only thing I can think comparable is attempts to transform gay and lesbian people into heterosexual people. They’re trying to change their outlook, everything, their appearance, their customs, their religion. And religion’s only part of it. So this is a sinister fascinating violation of international human rights.
The other thing I just want to endorse what Tony said and what I said earlier. We don’t improve the situation by retreating from the field. And the Human Rights Council of the UN where we encounter so many dictatorial authoritarian states is not an area where we should walk away and surrender. It’s one where we should, by our example and our policy, mobilize more support in the world against authoritarian dictatorships.
Dean Reuter: Final thoughts from Tony Teng Biao.
Dr. Teng Biao: What’s happening in Hong Kong and East Turkistan, the concentration camps, really reflects that China has become the biggest threat to global human rights and democracy. So the West should be alert about the rising threat from the high-tech totalitarianism under Xi Jinping. And there are many we can do. I want to emphasis again the West should take seriously about the idea to boycott Beijing 2022 Winter Olympics and enforcing the Magnitsky Act, the Global Magnitsky Act to punish corrupt officials and the human rights violators would be very effective. But for the past three years, only low-level Chinese officials were targeted. And we need more Chinese perpetrators being punished, like high level officials being targeted like, Chen Quanguo in Xinjiang.
Dean Reuter: Very good. Well, gentlemen, we covered a lot of territory today -- you did, I should say. It feels like we’ve been around the world at least once. But I want to thank you personally and on behalf of The Federalist Society. My thanks to Assistant Secretary Robert Destro, to Jerry Cohen -- Professor Jerry Cohen and Dr. Teng “Tony” Biao. I certainly appreciate your time. You put in a lot of effort here today in bringing a lot of interesting issues to our attention. Also, thanks to the audience for dialing and for your thoughtful questions. Please check in with your emails and our website for upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you very much, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.