Monday, May 24, 2010
A True Friend of China Part 1
Then in 1972 he was able to come to China for the first time and had a four-hour dinner with Zhou Enlai. "He did a lot of research on people he talked to otherwise it would be a boring dinner," recalled Cohen in a gravelly voice. "He thought I had written so many books on Chinese law that I knew more about Chinese law than the Chinese."
It is probably this relationship with the then premier that has made Cohen a zhenghou (诤友) to China, or someone who is a good friend who tells the truth.
That's because he writes a biweekly column in Hong Kong's South China Morning Post criticizing China's dealings with specific legal cases, hardly holding back in pointing out what is blatantly done wrong and what is written in the constitution or in the law (or not yet addressed in the law).
He will also chastise Taiwan in these columns, and what's interesting is that the current President Ma Ying-jeou is a former student of Cohen, along with former vice-president Annette Lu.
Cohen believes that China is making attempts at legal reforms, such as in the state secrets act and criminal system as well as capital punishment; however he says there are "conflicting currents", as the Communist Party still has a strong grip on legal institutions in the country.
Nevertheless, he takes the long-term view. "In 1972 it was hard to find law professors in China," he says. "They were healthier than people like me because they had been working in the fields [due to the persecutions during the Cultural Revolution]. So they were intimidated by [ideological] campaigns and wouldn't say anything."
However today, Cohen points out there are some 630 legal schools and departments, many of them staffed with law reformers who want to try to change the system, albeit gradually.
He says as outsiders, we hardly know much about how the Chinese legal system works. While there are internal studies, Cohen says, they are not released for wider consumption or study.
Then he compared two state secret cases, the Stern Hu one involving Rio Tinto, and then Xue Feng. We know that in the Stern Hu case, he was originally charged with stealing state secrets, but due to media and diplomatic pressure, the charges were reduced to commercial secrets; in the end Hu was convicted of accepting bribes and was sentenced to 10 years in prison.
However, the Xue Feng case is little known, and one that Cohen is working on. Xue is a Chinese-born American citizen who was also charged with stealing state secrets where he was trying to get more information on oil databases for his employer. He was locked up in the fall of 2007, finally had his trial last July, but until today there is still no verdict. Cohen points out the last legal basis for an extension was on March 18. "Don't worry we did it legally," is the reassurance the defense team has received.
Cohen says once someone is charged with something related to violating state secrets, it can be hard to get lawyer and hard for the lawyer to get access to the client.
Nevertheless, Cohen points out that foreign nationals are allowed to have monthly consular visits, and in Xue's case, Ambassador Jon Huntsman has personally visited Xue twice, and his deputy five times. US President Barack Obama has even personally brought up Xue's case with President Hu Jintao during his trip to China in November.
Despite having consular access, the ironic thing is that these diplomats are not allowed to discuss the case with the defendant. "These visits are monitored by a translator who will report back if anything remotely related to the case is brought up," explains Cohen. "This denies the significance of the consular visit."
Why Hu's case was pretty much swiftly over and done with while Xue is still languishing in jail without a verdict is due to media exposure. Whether Hu wanted it or not, the reports about his detainment and then subsequent trial were closely followed by foreign media, which probably helped him, as there was more public scrutiny of the case and China's legal system.
But in Xue's situation, while he wanted to go to the media, his wife did not want to publicize the fact that her husband was in jail, fearing there would be repercussions affecting their parents and children. As a result, Cohen says, for a long time there was no pressure. But now because there are more media reports about the case, things are moving ahead, though at a snail's pace.
A fundamental problem about these kinds of cases is that there is no clear definition of what a state secret is and the defense lawyer has to accept the charge.
An area seeing some kinds of reforms, says Cohen, is capital punishment. China is now reviewing more death sentences at the supreme court level, and this has resulted in hundreds more judges added to look over these cases; he points out that these judges may not necessarily have the proper training or knowledge in dealing with these situations. Nevertheless, he hopes that with changes in capital punishment, this may also lead to other legal reforms further down the system.
While the government is trying to improve trial procedures, Cohen suggests that the Chinese judicial system should separate the judgment and punishment, as in many countries. That way the lawyer can argue that his client is innocent, but then if found guilty, can plea for a shorter sentence.
Despite what Cohen is seeing on the ground in terms of law reformers trying to change the system and the government doing its bit albeit slowly, the law professor adds that no one in the standing Politburo is interested in legal rights.
He points out that senior government official Zhou Yongkang has made a frank recognition that the serious unrest seen in cases in China need institutional responses from the police and courts; though Cohen adds there was no mention of defense lawyers. Cohen is pessimistic about any changes until 2012, when President Hu Jintao and Premier Wen Jiabao step down.
Li Keqiang, expected to replace Wen, is the first graduate of Peking University's law school, but Cohen says his record shows little regard for the legal system. Another rising star, Bo Xilai has intimidated defense lawyers with the corruption cases in Chongqing, giving people little confidence in the legal system.
"Somewhere someday a feisty leader will have the foresight to reform the system," Cohen hopes.
He says the Chinese government wants to be recognized on the world stage with its soft power, but it can't do this unless it has the administration of justice handled properly. This has resulted in such people as Lai Changxing from being extradited back to China from Canada, for fears that he will not be treated properly in the legal system.
Cohen adds China is entitled to its own way of development, but with the current situation now where the government has a strong hand in the judicial system, it is impossible for it to be autonomous, as well as other systems. He says the government is doing studies on how a more independent legal system would work in China, but the Party would have to reach a decision -- and if it decides to have a more autonomous legal system that would mean the Party's power would shrink. And the way things are going now with rule by consensus, the government is becoming more conservative, and trying to get its grips on all avenues for power.