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Posts published in “China Law”

2047 is Now. What is the Future of Hong Kong?

We haven’t posted anything for a couple of days on this site. It seemed nothing more could be said about the brutality of Hong Kong’s police, but no other news seems worth writing about in comparison.

By now, pretty much everyone that has been paying attention at all knows about the police siege of Hong Kong Polytechnic University. Hundreds of students are trapped there. The police won’t let them leave unless they “surrender,” which would almost certainly mean being subjected to torture and abuse. Naturally, the students don’t want to surrender, for that reason, and also because they believe they are fighting for their home, their freedom, and their rights. They deserve and need the entire free world’s support.

In 2047, the “one country, two systems” agreement that was negotiated between the U.K. and the Chinese government at the handover in 1997 officially ends, and Hong Kong becomes completely subject to the arbitrary legal system of mainland China, where there is no rule of law, lawyers are regularly arrested and detained, the rights of citizens are non-existent, and people accused of “crimes” are disappeared into black jails, with no contact with lawyers or family.

But today, it is clear that it is already 2047 in Hong Kong.

In the past couple of days, Hong Kong’s highest court ruled that Carrie Lam’s ban on face masks is unconstitutional, violating the Basic Law.

Today, the CCP said that Hong Kong’s courts cannot rule on the constitutionality of legislation passed by the Hong Kong government. Only the CCP can. Read this important thread: https://twitter.com/stuartlauscmp/status/1196565359026999296

[China’s] constitution and the Basic Law jointly form the constitutional foundation of [HK]. Whether HK’s legislation is consistent with the HK Basic Law can only judged and decided by the National People’s Congress standing committee. No other parties can judge or decide.”

CCP National People’s Congress overrules Hong Kong’s High Court

If Hong Kong’s courts cannot decide what Kong Kong’s laws mean and whether or not they are in accordance with Hong Kong’s constitution (the Basic Law), then there is no reason for them to exist. There is no longer any rule of law in Hong Kong.

There is also now evidence that authorities are transporting arrested pro-democracy demonstrators out of Hong Kong. Carrie Lam may have withdrawn the extradition bill that started the demonstrations, but everyone knows that the CCP will do whatever it wants, regardless of what any law says.

If this is actually happening now in Hong Kong, it’s a scene that reminds us of the worst atrocities visited on people in all of human history. It is terrifying. Given what we know is happening in Xinjiang to the Uyghurs, it is certainly possible that these young people will disappear into China’s gulag, where they will have no rights at all. Pray that they will be released soon, unharmed.

It is already 2047 in Hong Kong.

You Can’t Argue About the Law in Here! This is a Courtroom!

One of the primary reasons that China cannot be trusted as a business or trade partner, and also one of the primary reasons that it is one of the world’s foremost violators of human rights, is because China does not have a free, fair, and independent legal system. There is no effective rule of law in China; rather, legal decisions are based on what CCP bosses or other influential people want them to be. Judges are entirely beholden to the CCP, and often do not have any legal training whatsoever. On top of that, the Chinese reliance on guan xi (关系) – a term that is hard to translate, but roughly means relationships, connections, and influence – for solving problems and decision making makes the legal system incredibly corrupt. Declarations of guilt or innocence, who is right or wrong in contract negotiations, and so on, depend as much or more on guan xi as they do on what the law actually says or on the facts and evidence at hand.

To be sure, China does have laws, and when non-Chinese read the laws (translated), they often even sound good and right. The problem is that the laws are not fairly or evenly enforced, not just because of the guan xi issue we described above, but also because lawyers are themselves often charged with crimes for advocating for their clients!

Read this heartbreaking story from the Hong Kong Free Press.

Stories like this are all too common in China. Lawyers who advocate for their clients’ rights are often arrested and disappeared – held incommunicado for months or years, with no contact with their families or their own lawyers.

[Lawyer] Yu [Wensheng] was detained in Beijing in January 2018 in front of his young son after he wrote an open letter calling for constitutional reforms, including multi-candidate elections.
He was later charged with “inciting subversion of state power”.

Hong Kong Free Press article

Human rights lawyers are especially targeted by the CCP, as was the case here, and charged with nonsense crimes like “inciting subversion of state power” or “subverting public order” – the usual kind of things that fascist dictatorships make up to give legal cover to their oppression and abuse. However, lawyers in other kinds of cases, like contract disputes between Chinese companies and western companies, have also been targeted, if they happen to argue too effectively or vociferously for their foreign client’s rights and interests. Western companies doing business in China should not expect to be treated fairly or in accordance with the law if they happen to get into a dispute with a Chinese company.

This is all part and parcel of the CCP’s oppression of human rights in China. It is why the people of Hong Kong are so vehemently opposed to the (now withdrawn) extradition bill that would allow Hong Kong citizens to be extradited to mainland China for “trial.” The CCP simply cannot be trusted – for many reasons, not least of which is that there is no rule of law in China. China’s abominable treatment of lawyers is one more proof of that.

Hong Kong’s Anti-Extradition Bill Protests and China’s “Legal” System

As most everyone knows, the current protests in Hong Kong, which have been running for over 17 weeks now, were first organized as peaceful demonstrations against a bill introduced for consideration by the Hong Long legislature that would allow Hong Kong citizens to be extradited to mainland China for prosecution in some circumstances.

Why is that so concerning to the people of Hong Kong? This embedded tweet and the article by The Guardian make it clear.

Australian citizen living in the U.S. and former Chinese diplomat, Yang Hengjun, was detained in China last January and has been held incommunicado since then, with no contact allowed with the Australian embassy, lawyers, or his family.

He is allowed to shower once a week, and has access to a small enclosure outside his cell – with access to fresh air and natural light – for one hour, twice a day.
He is able to drink water when he needs it, and can purchase additional food, including fruit, biscuits, and chocolate.
He shares his cell with two other prisoners. The lights are on in the cell at all times.
Yang is taken from his cell once a week for interrogation, for up to four hours at a time. His hands and feet are shackled with heavy chains during questioning.
Investigators from the ministry of state security have reportedly told him he is shackled because of the seriousness of the crimes he is alleged to have committed. He has been told he potentially faces the death penalty.

The Guardian – emphasis by China Daily News

Yang is an Australian citizen, but the CCP seized him and holds him incommunicado on made-up charges of espionage, with no way to defend himself. The charges are completely motivated by Yang’s criticism of the CCP and pro-democracy writing. He is being tortured to “admit” his “crimes.”

This is how the CCP treats people, especially those that are Chinese – no matter where they reside – that criticize it. The people of Hong Kong are very well aware of this – some booksellers in China were subjected to the same kind of treatment. Is there any doubt at all that political dissidents in Hong Kong would be even more likely to disappear – sometimes permanently – should that extradition bill become law?

On the 70th anniversary of the founding of the People’s Republic of China, no one should forget or ignore the true nature of the Chinese Communist Party – the political party and government directly responsible for the deaths of more people than any other in human history – perhaps ten or more times as many as the Nazis in Germany. CCP sympathizers like to say those things are all in the past, and the CCP is no longer like that. The case of Yang Hengjun, and many others, prove it’s a lie. The CCP is every bit as brutal and tyrannical today as it ever has been.

End of the Chinese Communist Party is Near?

The South China Morning Post has published an opinion piece by Minxin Pei arguing the we are seeing the “beginning of the end” of one-party rule in China.

Pei argues that, historically speaking, dictatorships typically last at most from 70 to 75 years. This has been true of dictatorships in Mexico, Taiwan (the KMT ruled autocratically from 1927 to 1949 on the mainland and from 1949 to 2000 in Taiwan), and the Soviet Union. The Kim family has ruled in North Korea for 71 years. Are there counter examples? The article doesn’t cite any, but many of the Chinese imperial dynasties lasted much, much longer than 75 years. Is the CCP more like dictatorships in other countries, or more like a Chinese imperial dynasty?

Pei makes other arguments based on politics, economics, military challenges, diplomacy, and domestic policy. Let’s discuss some of those issues.

Economically, China is facing challenges. The trade war with the U.S. is hurting China’s economy, despite the blustering denials coming from the CCP’s pet media outlets. From a military standpoint, even though China has been enlarging and modernizing its military, it is still far behind the U.S. military’s capabilities. Diplomatically, China’s “belt and road” initiatives and dollar diplomacy have made some headway, but China is still very much distrusted, and has few, if any, friends of consequence in the western Pacific. Japan, Korean, Vietnam, Thailand, the Philippines, and Taiwan all have contentious, if not actually hostile, relationships with China. Russia has a sometimes-friendly, sometimes-not relationship with China. At this moment, China and Russia seem to be cooperating, but that could change at any time, should the relationship sour.

Domestically, the CCP has sold itself by touting the improving standard of living. Millions of Chinese have been lifted out of poverty, there is no doubt about that. But coming from the abject state that the Chinese people lived in prior to the 1980’s, achieving that only required economic policies that weren’t completely disastrous. Much of the miraculous growth in the Chinese economy was achieved through capital investment coming from Western countries, Japan, and Taiwan. That growth has slowed, and capital from developed countries is moving into countries with cheaper labor (and better legal protections, in some cases). If the Chinese economy drops into recession, on what will the CCP base its claim to rule legitimately? It is stoking nationalism as one means, but sustained nationalism requires sustained national achievement and true pride in one’s country. With the CCP so disrespected in the world, it is hard to imagine that the Chinese people can truly believe in its legitimacy over the long term.

Dictatorships and one-party states face inherent internal contradictions. Every government, as an organization run by imperfect people, is imperfect and makes mistakes. Public and world opinion changes, natural disasters occur, new ideas arise, countries go to war, and so on. Things happen.

True democratic societies have a built-in mechanism – periodic elections – to make policy changes in response to changes in society and the world. Sometimes they are slow to respond, but they can respond in a deliberate way that reflects the will of the majority of the people (hopefully, as in the U.S., while respecting the rights of people that disagree). In essence, elections are “mini-revolutions” that allow for political challenges to be addressed through peaceful change.

Dictatorships and one-party states do not have this mechanism, so internal stresses build up that eventually lead to their downfall. They are “brittle.” They often respond to challenges either wildly or not at all. They become corrupt, as their legal systems are not fair and are bound to the policy of the one-party state; thus, they lack legitimacy. State-run economic systems cannot respond quickly to changes in markets, and so are inefficient. Historically in China, the process of a dynasty becoming weak and corrupt, unable to respond effectively to internal and external challenges, is known as “losing the mandate of heaven,” and it has always led to the downfall of the imperial dynasty, and eventual replacement by another. Is the CCP losing the “mandate of heaven?”

The modern, high-tech police state implemented in China, with ubiquitous surveillance, “social credit” scores for every person, and so on, maybe will allow the CCP to maintain its power through more efficient oppression of the Chinese people, but how long can that last? At what point do the Chinese people, with the greater access to information now than in the past, look at the rights that citizens of other countries enjoy, and say, “what about us?” Dictatorships and one-party states, like the Soviet Union, often have collapsed (as the famous quote says) “slowly, then all at once.” Will the CCP collapse in the same way?

Periods between dynasties in China have often been times of horrifying bloodshed and civil war. No one wants that in China. Could the CCP transition peacefully, allowing free elections and truly independent opposition political parties, as happened in Taiwan? That would be the best-case scenario, but it doesn’t seem likely, especially as long as Xi Jinping rules the CCP and mainland China autocratically. Could the pro-democracy protests in Hong Kong spark a pro-democracy movement in the mainland? The CCP clearly is very, very afraid of that happening, but right now, that doesn’t seem likely either. In this writer’s view, the CCP is firmly in power in mainland China and will remain so, despite the challenges it faces. It may be the beginning of the end for the CCP, but sadly, the end is still far in the future.

China’s Hostage Diplomacy

In the long history of imperial China, emperors of China (and other powerful officials) would on occasion keep hostages taken from other countries or rival organizations to ensure peace or allegiance between states or groups or as leverage in negotiations. Sometimes even, an emperor would take hostages from the family of powerful officials or generals to make sure that they stayed loyal to the emperor. Books have even been written about this practice.

In modern China, the practice of taking hostages continues, but in a somewhat different form. China frequently arrests and detains foreign nationals, accusing them of crimes and holding them for “investigation,” at times for months, without contact with lawyers, family, friends, or officials from their home country. This practice of holding people incommunicado is part of the reason that the Hong Kong people want nothing to do with China’s “justice” system. Sometimes, prisoners disappear permanently – killed or dying while in detention in China.

Today, the Wall Street Journal reported that China seized a U.S. citizen, a pilot for FedEx named Todd Hohn, accusing him of “transporting ammunition” on a flight where security had already cleared him. The “ammunition” in question was plastic pellets for a low-powered replica gun. They are common in Hong Kong, where he lives.

Not long ago, President Trump ordered FedEx and other package delivery companies to increase their inspections of packages entering the U.S. from China as part of a crackdown on fentanyl smuggling into the U.S. Recently, enough fentanyl to kill 14 million people was seized in Virginia. It was shipped from a vendor in Shanghai. China has denied has denied that it is the source for fentanyl entering the U.S. Of course, that is just more CCP propaganda.

Along with the fentanyl smuggling problem, trade negotiations between the U.S. and China are starting soon, and the U.S. Congress is pushing the Hong Kong Human Rights and Democracy Act through the legislative process, on its way to becoming U.S. law.

So given this background, from China’s point of view, detaining a FedEx pilot – better yet, an American citizen living in Hong Kong – on this phony charge makes perfect sense. China gets some leverage over FedEx in enforcement of shipping regulations, and over the U.S in the trade negotiations, and China can also use it to pressure the U.S. Congress against passage of the Hong Kong Human Rights and Democracy Act and to express its anger at U.S. support for the Hong Kong pro-democracy movement. Given China’s long history of using hostages as pawns in diplomacy and negotiations, it isn’t really surprising that they would do this, but it is still despicable.

China at this moment is holding citizens of Australia, Canada, and the United States, and possibly other countries, on politically-based charges. It is unfortunately typical of China to engage in “hostage diplomacy,” and that fact is yet more evidence that the CCP is uncivilized, and not worthy to be a member of the community of nations. We will say it yet again: the Chinese people deserve a much better government than the one they unfortunately have.

Human Rights Watch on Torture by Chinese Police

In a post here on China Daily News yesterday, we talked about the case of Yang Hengjun, a Chinese-born Australian citizen, who was seized by the Chinese police, held incommunicado for seven months, and then finally charged with espionage – a charge that could lead to the death penalty. The Australian government has been demanding his return – and rightly so.

An article by Human Rights Watch details one of the many reasons China’s “legal” system causes so much concern, and why the Hong Kong people are fighting so desperately against the extradition bill.

“We heard appalling stories of detainees being hung by the wrists, shackled for years, and terrorized by cell bosses, yet having no real means to hold their tormentors to account,” [Sophie] Richardson said [China director of Human Rights Watch]. “It’s hard to square such consistent accounts of abuse with claims by President Xi Jinping that the government respects the rule of law.”

China’s criminal justice system facilitates numerous opportunities for the police to abuse suspects and gives them enormous power over the judiciary, hindering any accountability efforts. Police alone make all initial decisions to deprive suspects of their liberty, and can subject them to 37 days of repeated instances of incommunicado interrogation before the procuratorate must approve their arrests. This contrasts starkly to the requirement in Hong Kong and many other jurisdictions, where suspects have to be brought before a judge within 48 hours of being apprehended.

Human Rights Watch – emphasis by China Daily News

No country has a perfect legal system, but seriously, would anyone willingly live under China’s system, where justice is arbitrary, judges are controlled by the CCP, lawyers are routinely charged with crimes for defending their clients, no one has a right to a trial by jury of peers or to face accusers, people are held for months or even years without charges, without the right to see a lawyer or family, and under the threat of torture to “confess” to crimes? China’s propagandists and apologists would have you believe that it’s only China’s internal business and no one has a right to say anything about it. No. When people are tortured and deprived of the inalienable human rights that all people, everywhere, naturally have, it is the whole world’s business.

Why is Hong Kong’s Extradition Bill Such a Big Deal?

For people that have been following the protests in Hong Kong, but perhaps not closely, they may have heard that the protests began because of an “extradition bill” that was introduced by the Hong Kong government. That bill (an amendment to Hong Kong’s “Basic Law”) would allow people accused of some crimes to be extradited to mainland China to face trial.

So, why is that a big deal? Lots of countries have extradition treaties with other countries, right?Those of us living in countries where the legal system is (usually) fair and impartial, where our rights are guaranteed by a constitution or in the law may have trouble understanding why the Hong Kong people have been fighting and protesting so hard against that bill. Is it really worth all of the violence and mayhem that Hong Kong has endured for so long?

A Financial Times article demonstrates exactly why so many Hong Kongers believe it is.

[Australian citizen] Yang Hengjun has been held in China since January, when he disappeared in the southern city of Guangzhou, as his wife and child awaited visas to travel to Australia.

Marise Payne, Australia’s foreign minister, said the government was “very concerned and disappointed” to learn of Mr Yang’s formal arrest and criticised the harsh conditions he has been held in for seven months without charge.

“Since that time, China has not explained the reasons for Dr Yang’s detention, nor has it allowed him access to his lawyers or family visits,” she said. “I respectfully reiterate my previous requests that if Dr Yang is being held for his political beliefs, he should be released.”

Under Chinese law, the penalties for espionage include imprisonment or the death penalty.

Financial Times – emphasis by China Daily News

This is China’s “legal” system. They seize citizens of other countries that disagree with their policies with impunity, hold them for months without contact with their families or lawyers and without charging them. And when they do finally charge them, the charges are clearly politically motivated and for crimes that could result in the death penalty. It would be ridiculous if it weren’t so despicable and horrendous.

No one should think for a second that the CCP is in any way some sort of “benign dictatorship,” just wanting to grow their economy and make their citizens happy. No. As long as you toe the party line, you probably are fine, but if you dare criticize them, you are in danger.

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