[Joint House and Senate Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
ONE YEAR OF THE NATIONAL SECURITY LAW'S REPRESSION OF FUNDAMENTAL
FREEDOMS IN HONG KONG
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
JUNE 29, 2021
__________
Printed for the use of the Congressional-Executive Commission on China
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available at www.cecc.gov or www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
45-055 PDF WASHINGTON : 2021
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
JEFF MERKLEY, Oregon JAMES P. McGOVERN, Massachusetts
DIANNE FEINSTEIN, California Cochair
MARCO RUBIO, Florida CHRISTOPHER SMITH, New Jersey
JAMES LANKFORD, Oklahoma THOMAS SUOZZI, New York
TOM COTTON, Arkansas TOM MALINOWSKI, New Jersey
STEVE DAINES, Montana BRIAN MAST, Florida
ANGUS KING, Maine VICKY HARTZLER, Missouri
JON OSSOFF, Georgia RASHIDA TLAIB, Michigan
JENNIFER WEXTON, Virginia
MICHELLE STEEL, California
EXECUTIVE BRANCH COMMISSIONERS
Not yet appointed
Matt Squeri, Staff Director
Todd Stein, Deputy Staff Director
(ii)
C O N T E N T S
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Statements
Page
Opening Statement of Matt Squeri, Staff Director, Congressional-
Executive Commission on China.................................. 1
Introduction of Keynote Speaker Jerome A. Cohen by Todd Stein,
Deputy Staff Director, Congressional-Executive Commission on
China.......................................................... 2
Cohen, Jerome A., Adjunct Senior Fellow for Asia Studies, Council
on
Foreign Relations.............................................. 2
Hui, Victoria Tin-bor, Associate Professor, Department of
Political Science, University of Notre Dame.................... 7
Kellogg, Thomas E., Adjunct Professor of Law, Georgetown Law
School......................................................... 10
Teng Biao, Pozen Visiting Professor, University of Chicago....... 13
Chen Jiangang, Hubert H. Humphrey Fellow, American University
Washington College of Law...................................... 14
(iii)
ONE YEAR OF THE NATIONAL SECURITY LAW'S REPRESSION OF FUNDAMENTAL
FREEDOMS IN HONG KONG
----------
TUESDAY, JUNE 29, 2021
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened via Webex at 1 p.m., Matt
Squeri, Staff Director, Congressional-Executive Commission on
China, presiding.
Participants: Jerome A. Cohen, Adjunct Senior Fellow for
Asia Studies, Council on Foreign Relations, Victoria Tin-bor
Hui, Associate Professor, Department of Political Science,
University of Notre Dame, Thomas E. Kellogg, Adjunct Professor
of Law, Georgetown Law School, Teng Biao, Pozen Visiting
Professor, University of Chicago, and Chen Jiangang, Hubert H.
Humphrey Fellow, American University Washington College of Law
OPENING STATEMENT OF MR. MATT SQUERI, STAFF DIRECTOR,
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Staff Director Squeri. Good morning. I'm Matt Squeri, staff
director of the Congressional-Executive Commission on China.
Today's roundtable recognizes two anniversaries--the passage of
the Hong Kong National Security Law and the 709 Crackdown on
rights defenders and lawyers across China in July 2015. In
particular, today's roundtable will examine procedural rights
violations by the Chinese government, as illustrated by the 709
Crackdown, and their implications for the extraterritorial
reach of the National Security Law and the potential for
defendants to be extradited from Hong Kong to mainland China.
Our Commission, currently chaired by Senator Merkley and
Representative McGovern, was created in 2000 to monitor China's
compliance with, and violations of, international human rights
standards. We also maintain a political prisoner database
which, unfortunately, has recently begun to include political
prisoners from Hong Kong. We periodically hold roundtables and
hearings on China's human rights practices, including two
hearings focusing on Hong Kong in 2019.
In May 2019, four witnesses--including Martin Lee and
Nathan Law--testified about an extradition bill that would
allow extradition from Hong Kong to mainland China. Given
China's track record of serious violations of substantive and
procedural rights of criminal defendants, as well as the threat
that this extradition bill poses to Hong Kong's one country,
two systems model, the bill prompted a series of large-scale
protests by Hong Kong residents in 2019. Sixteen weeks
following our May hearing, Joshua Wong, Denise Ho, and three
other witnesses testified in September about the widespread
abuse of power and use of excessive force with impunity by Hong
Kong police, which vividly illustrated the rapid deterioration
of the rule of law in Hong Kong.
The National Security Law, passed in June 2020 without any
meaningful input from Hong Kong residents, has effectively
dismantled the one country, two systems model and destroyed the
high degree of autonomy promised to Hong Kong. The law provides
for heavy penalties for vaguely defined offenses and authorizes
the Chinese government to take over certain cases, which
potentially allows the government to physically transfer a
person to China--a result that the people of Hong Kong tried so
hard to prevent in reaction to the extradition bill in 2019.
Today we have invited five distinguished panelists to
highlight important issues surrounding this troubling pair of
anniversaries. To introduce our keynote speaker, I'd like to
turn to the deputy staff director of the CECC, Todd Stein.
INTRODUCTION OF KEYNOTE SPEAKER PROFESSOR JEROME A. COHEN BY
MR. TODD STEIN, DEPUTY STAFF DIRECTOR, CONGRESSIONAL-EXECUTIVE
COMMISSION ON CHINA
Deputy Staff Director Stein. Thank you. It's my honor to
introduce Professor Jerome Cohen, a pioneer and leading figure
in the field of study of Chinese law and government. He was a
professor at NYU School of Law from 1990 to 2020 and mentor to
several generations of experts in Chinese law. He is the
founder of and faculty director emeritus at the U.S.-Asia Law
Institute of NYU's School of Law and is adjunct senior fellow
for Asia Studies at the Council on Foreign Relations. Professor
Cohen has published several books on Chinese law and continues
his research and writing on Asian law. And, in contrast to the
dour marking of several July 1st anniversaries--the National
Security Law, the Hong Kong handover, and the founding of the
Chinese Communist Party--we are happy to celebrate Professor
Cohen's 91st birthday on that day. Happy birthday. Over to you,
Professor.
STATEMENT OF JEROME A. COHEN, ADJUNCT SENIOR FELLOW FOR ASIA
STUDIES, COUNCIL ON FOREIGN RELATIONS
Mr. Cohen. The Communist Party is older than I am.
[Laughter.]
Mr. Cohen. This Commission has done great work. And I'm
honored to be asked to take part in today's important exercise.
It's an opportunity to reflect on both the 709 repression and,
of course, the National Security Law recently enacted for Hong
Kong.
It's a sad day, of course. The handover, as it was called
in 1997, has certainly become the takeover. And I can't discuss
all the aspects, but I do, in my opening remarks, want to focus
on the legal and judicial aspects. And I should point out, I've
just had the privilege of reading the report by Georgetown's
Center for Asian Law that Tom Kellogg and his colleagues have
done. I'm glad to see Tom is among the participants today in
our discussion. And of course, many of you already know Michael
Davis's book that gives a wonderful review of how things
developed in Hong Kong.
Hong Kong people, of course, have been resisting the
takeover for some time. Their resistance became so strong in
2019 over the struggle to prevent forcible extradition from
Hong Kong to the mainland for criminal trials that it really
has provoked what we have seen in the National Security Law.
Beijing ended the Hong Kong struggle just a year ago. And
they've done more than just end the struggle. Hong Kong people
are familiar with justice in China. Therefore, they didn't want
to be subject to extradition--what technically, because it's
not an international problem, should be called rendition.
And yet the new National Security Law has done two things.
It has authorized extradition to the mainland in national
security cases, which are very, very vaguely and broadly
defined. But more importantly and immediately, it has brought
the national security system of the mainland, the police state
that it is, to Hong Kong. And this, of course, means--I
wouldn't say the death of Hong Kong--a phrase that first became
popular when the joint declaration between the U.K. and the PRC
was signed in 1984--but it certainly transforms Hong Kong. It
introduces ``stability,'' as the mainland advocates keep
saying. But of course, you have a lot of stability in
cemeteries also.
So one has to appraise what's going on. I can't talk,
because of time limitations, about all the restraints that have
been imposed on Hong Kong in terms of the media, the government
itself, the political-legislative system, the elections, the
educational system. We could go on at length, and perhaps some
of my distinguished colleagues will do that. But I do want to
say something about the judicial system. A criminal defense
lawyer in Hong Kong was recently quoted as saying that the
infliction on Hong Kong of the new National Security Law is
like an alien species invading our territory. How alien it is,
of course, I'm going to demonstrate in certain respects. And I
urge you to read the Georgetown report, which has some amazing
revelations and very important detail.
We should say, first of all, a word about prosecutors. I
was for a brief time a Federal prosecutor in Washington. I know
the power that prosecutors have to ruin people's lives,
regardless of the outcome of criminal prosecutions that they
institute. And sadly, we see in Hong Kong today an illustration
of the exercise of that power. I worry what the Secretary of
Justice who presides over the Department of Justice has done to
the system. Prosecutors in every jurisdiction have to exercise
discretion. And it seems like discretion is being exercised for
political reasons, and in ways that often wouldn't previously
justify prosecution, or prosecution for cases as serious as
have been brought.
Recently we know that a former director of public
prosecutions resigned in protest because he wasn't even being
told about--much less taking part in--decisions of security
people who determined whether national security prosecutions
would be brought in Hong Kong. And I'm sure he could tell us a
lot. There's also the allegation in the Georgetown report that
the staff, the lawyers in the Department of Justice in Hong
Kong, may have been drafting, certainly, the implementing
regulations that are crucial to understanding the scope of the
authority of the central government's security police apparatus
that has been brought to Hong Kong.
So I feel that the Department of Justice, the people who
decide on prosecutions and who force the courts to consider
very difficult and perhaps sometimes irresponsible accusations
under great pressure, really deserves more attention than the
prosecutors have received. The courts, of course, have been
getting a lot of attention but perhaps their dilemma is not
completely understood. We have seen that the National Security
Law strips the courts of the review power, the jurisdiction to
consider some of the basic constitutional law protection issues
that the new regime has imposed on Hong Kong.
And we know from previous experience, and the court knows,
that if it makes a decision that the central government doesn't
like, that decision can be immediately overridden by the
Standing Committee of the National People's Congress, as we
have seen in the past. Not only do we have that problem, of
course, but we have problems now that the prosecution of actual
NSL cases has begun. What kind of fair trial are these people
going to receive? And of course, the first question that we
have to understand is: Who are the judges?
And here we see the special arrangements to select only
certain judges, in whom the chief executive has confidence and
who are assigned to cases in a way that isn't entirely clear to
the public. But these are judges who are not ordinary judges
but specially selected, and only for one-year terms, which
means that if they say or do the wrong thing, they will not
continue to enjoy that status, and they will be, of course,
publicly embarrassed. It's not even possible to know who these
judges are now because the government has not made the full
list public.
So it's a sad thing about who is going to judge these
cases. Not every regular Hong Kong judge will be allowed to
take part. Some have been eliminated from these cases at the
decision of the Secretary for Security of the Hong Kong
government. Without persuasive argument, we've just seen a jury
trial denied in the first prosecution being brought. And of
course, that's one of the basic defenses that the common law
system has guaranteed to people.
Even more important to me is the change in bail procedures.
Normally there is a presumption of bail being granted in cases
where at least the accused is not accused of violence. What
we've seen under the NSL is a reversal of that presumption. And
that means that the government can simply bring a charge
against anybody. Given the vagueness and ambiguity of the
prescriptions in the law, they can charge almost anybody for
anything. And when they bring that case, it means it's very
likely that the accused suspect--and he's only a suspect--can
be kept in jail until the proceeding is entirely finished,
which could take several years.
So the burden that the accused has--to persuade a court,
even a conscientious one that doesn't feel under pressure--is
very great to show that the accused is not likely to repeat any
violation of the National Security Law when people don't really
know yet what conduct violates the National Security Law. And
the person, as many have been already, kept in detention, is
kept there pending trial, pending conviction, appeal. It could
go out to the Court of Final Appeal, and that person's life has
been ruined, even if the court system should ultimately
vindicate the rights of the accused. Three years later, the
accused has lost everything. So it's a win-win proposition for
the prosecution and the Hong Kong government and the Chinese
Communist Party to bring accusations against anybody, because
it's a sure way of punishing. In a way, trial--certainly jury
trial--but trial, has become secondary. It's arrest and
detention, denial of bail, that is the sure thing. So that's a
very sinister, of course, situation.
When we look at the question of judicial independence, the
best defense that the PRC government and the Communist Party
and the Hong Kong government can mount is they keep reciting
how we can all rely on the judicial independence of Hong Kong
judges. Well, that claim no longer looks very persuasive, and
it's very likely to get worse. I've already said the courts
have been denied full jurisdiction to consider constitutional
issues. We already know that the selection of judges, even for
the Court of Final Appeal--the highest court in Hong Kong--is
being affected by political considerations. We have just seen a
very able candidate for the CFA have to withdraw under
political pressure that has not yet been publicly articulated.
And this whole business about judges for security cases again
shows the limits on the court system.
In a way, public attention has been diverted and misled by
a focus on the continuing participation of foreign judges in
the Court of Final Appeal. I think that's an eyewash question.
I think those foreign judges who still have not resigned from
the Court of Final Appeal should do so. They are there now as
mere decoration for an increasingly oppressive national
security system in Hong Kong. They don't play a role in
national security cases. They're not there very often. They're
just icing on the cake.
But there is a serious foreign judge problem that hasn't
been focused on. Many, many lower court judges in Hong Kong
have foreign nationality. And they are under pressure. Should
they resign? Should they keep their jobs and listen to the
party line and the pressure that every day is being evoked in
the communist press in Hong Kong? And how will their successors
be selected? This is going to be an increasingly apparent
problem. But in the meantime, some of these judges have to make
decisions, and not only in security cases--if they're among the
elite, the chosen few to handle those cases. But there are many
other cases in Hong Kong that involve charges of violating Hong
Kong law before the National Security Law, and in addition to
it, today. And we ought to be looking carefully at foreign
judges in the lower courts in Hong Kong.
Finally, I'd like to say a word about the bar. One of the
most serious revelations in the Georgetown report that just
came out is that there are cases where there's a high suspicion
that people accused under the National Security Law may be
pressured to change their defense counsel. They may be
pressured and advised, perhaps by the prosecution, perhaps by
others, that it's wise to pick certain lawyers, certain
solicitors, certain barristers who are known to have good
connections to the existing government and the Public
Prosecution Department at the Department of Justice.
Connections, political contacts--seem to be rising in
importance.
And this, of course, brings into focus the 709 movement and
the denial of counsel, and all the sanctions against active
independent human rights lawyers who try to provide criminal
defense in China. Some have been sent to prison. Some have been
disbarred. Some have been suspended. Some law firms have been
closed down. Some have been forced into exile. The accused have
not been free to select their own counsel. They have long had
counsel imposed on them who aren't very vigorous. They're just
there as decoration. And is that what Hong Kong could be coming
to?
So we're having problems that we, I think, have to
anticipate. But in the meantime, we have to recognize that the
bar--the Bar Association, the barristers, the criminal defense
lawyers in Hong Kong, many of them are as able as any in the
world and courageous and dynamic. And they have been trying to
stand up against the repression of the National Security Law.
And the last two Bar Association chiefs have been publicly
attacked. And there are underway schemes being discussed to
dilute the influence of the Bar Association, most of whose
members, but not all, seem to support opposition to repression
imposed by the National Security Law.
Will there be some new Bar Association? Will there be some
forced union of the solicitors--the lawyers' association who
are not litigators--with the Bar Association? The law society
seems to be majority in favor, at least insofar as people are
not afraid to express themselves, of the national security
regime. If there's a forced merger, that would change the
balance of power and you'd see protests begin to cease from the
Bar Association. Will there be some mainland organization that
absorbs the Bar Association? We don't know. There are schemes
afoot to try to dilute the last defense that Hong Kong has
against further intrusions into the rule of law. And of course,
if the Bar Association is muted or intimidated, then the courts
are going to be denied the assistance they need for full
consideration of the case.
Well, I won't go on. I do want to quote a professor at Hong
Kong University Law School, who in March wrote that ``the court
maintains the rule of law in the shadow of a giant.'' Of
course, that giant is the mainland. And since last March, that
giant has begun to show that its influence is not limited to
that of a shadow. And what we have found is that no matter
whether you talk about the prosecutors, you talk about the
court, you talk about defense lawyers, and solicitors, etc.,
they're all under increasing challenge.
And that leads to my ultimate worry which is, What about
the law schools? Hong Kong now has several very good law
schools. And Hong Kong University Law School, which was merely
starting out in the '70s when I was first an early honorary
lecturer there for eight weeks, has on its faculty many able,
informed, courageous critics. Its students are also interested.
And their programs have distinguished public intellectuals and
others who are distinguished scholars and are increasingly
necessarily critical of recent developments.
Will they be able to go on teaching? Will the example of
Professor Benny Tai, who was ousted from his academic post
because of his political involvement--will that be expanded?
What will be taught in the future? Who will be accepted as
students? Who will be able to publish in what periodicals,
etc.? I think this is going to be coming on the scene, just as
I'm afraid restrictions on freedom of travel from Hong Kong
also will be coming on the scene. But I think I've said enough,
and I look forward to what my colleagues have to say, and to
our discussion.
Staff Director Squeri. Thank you, Professor Cohen. It is an
honor to have you kick off our discussion and then this
roundtable, with the rich detailing of the landscape in Hong
Kong, and the evolution over time, and the troubling
developments. Now we'll turn to the other panelists, as
Professor Cohen mentioned.
First, we have Dr. Victoria Hui. Dr. Hui is Associate
Professor of Political Science at the University of Notre Dame.
She received her Ph.D. in political science from Columbia
University and Batchelor of Social Sciences degree. in
journalism and communications from the Chinese University of
Hong Kong. Dr. Hui studies contentious politics in Hong Kong's
democracy movement. She has testified before both the
Congressional-Executive Commission on China and the U.S.-China
Economic and Security Review Commission and written on Hong
Kong's Tiananmen 2.0 crackdown for Foreign Affairs, the Journal
of Democracy, The Diplomat, and the Washington Post's Monkey
Cage.
Dr. Hui also examines the centrality of war in Chinese
history. She has published on state formation, nascent
constitutional rights, Confucian pacificism or Confucian
confusion, cultural diversity, assimilation and genocide, Asian
civilizations, international order, and violent change. Before
her academic career, Dr. Hui worked as the press officer for
the then-United Democrats of Hong Kong and its chair, Martin
Lee. We are delighted that starting later this summer Dr. Hui
will participate in a Council on Foreign Relations
International Affairs fellowship with the CECC. Dr. Hui, the
floor is yours.
STATEMENT OF VICTORIA TIN-BOR HUI, ASSOCIATE PROFESSOR,
DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NOTRE DAME
Ms. Hui. Thank you so much for having me. I noticed that I
am the only political scientist among a panel of lawyers. So
I'm just trying to highlight the political aspects. What the
National Security Law means is--it is a very cynical Beijing
response to Hong Kong people's objection to extradition. ``So
you Hong Kong people, you guys do not like to be extradited
across the border? We are just going to bring China's security
police and public security agents to come in to overrun your
once autonomous judiciary and criminal justice system.''
And many people are worried very much that some of those
who are particularly attacked by Ta Kung Pao and Wen Wei Po,
the CCP's mouthpieces in Hong Kong, these are the likely
suspects to be taken across the border--especially Jimmy Lai,
the publisher of the Apple Daily, Joshua Wong, and Benny Tai,
who were already mentioned by Jerry. My worst fear is that it
may not matter anymore if some of these people are going to be
taken across the border. What Jerry just said, and I suppose
what Tom is going to say, is that some of those practices, very
typical in mainland China, have already been imported to Hong
Kong.
And we can think of Andy Li, one of those safe in Hong
Kong, but who was intercepted at sea and taken to Shenzhen.
Even when he was brought back to Hong Kong, he was assigned
lawyers not of his family's choosing and he's been kept in a
psychiatric hospital. We should also note that the National
Security Office operates on a budget of $1,000,000, just for
the coming year, and it occupies two huge hotels. It has all
the resources and physical space it needs to bring in all the
practices of mistreatment of political prisoners and do that
within Hong Kong.
And it seems that things are just going to get worse
because now in Hong Kong we formally have a police state in
command. Last week the promotions of John Lee from the security
bureau chief to chief secretary and Chris Tang from the
commissioner of police to security bureau chief mark the formal
installation of the police state. We should say that this is
essentially something long in the making, especially since the
Umbrella Movement of 2014. In the aftermath, at the time the
former deputy director of the Hong Kong Macau Affairs Office
Chen Zuoer already said that, ``we have to rein in Hong Kong's
governance.'' And he declared an all-out struggle against civil
society and especially the courts, the legislative counsel,
people inside the government, universities, secondary schools--
all of those pockets of civil society.
Now, Lee and Tang were rewarded for their very harsh
crackdown on Hong Kong, especially the forced closure of Apple
Daily and arrest of top executives and editors-in-chief. Their
report cards also include over 10,000 arrests since June 2019,
over 100 arrests under the National Security Law since July
2020, the arrest of pretty much the entire opposition camp.
Many are denied bail, convicted, and jailed. And now there are
no more pro-democracy legislators in the legislature. There
will be no more meaningful elections. There will be no more
street protests, no more Tiananmen candlelight vigils on June
4th, no more commemoration and mass protests on June 4th, June
9th, June 12th, June 16th, or the upcoming July 1st.
I've argued that what we are witnessing in Hong Kong is
Tiananmen 2.0, essentially the wholesale transfer of mainland
China's crackdown into Hong Kong. We shouldn't really focus on
the fact that Beijing has not rolled out tanks into the streets
of Hong Kong. There were other similarities--massive arrests,
torture in full view of livestreaming media throughout 2019.
And the Tiananmen model also includes both hard and soft
repression. By hard, I mean physical forms of repression--
arrests, beatings, torture. But also nonphysical forms of
repression. Freezing people's accounts--including the Apple
Daily's accounts and former legislators' accounts--and making
people pledge loyalty to the CCP and fire those who are less
than loyal.
And Jerry mentioned arrests. What is really important is
that those who are arrested, even when they are not charged--
thus not denied bail--even those who are charged and not
convicted, what happens is that all those arrested incur
immense legal fees, so they go broke. There have been many
campaigns to fundraise to help these people. But at the same
time, a lot of these funds themselves have become targets. At
the same time when there are so many arrested, it's just really
straining people's resources. Another ``softer'' aspect of
repression is censorship and the imposition of patriotic
education in order to impose amnesia.
So what do we mean by a police state? A police state
prosecutes political opponents and overlooks the crimes of
security agents and political supporters. We've seen that there
have been many cases of police brutality against protesters in
2019. They were caught on film, both local and international.
And yet many of these officials, officers, have not really been
held accountable. In fact, any accountability has been in the
form of promotions. The most notorious was the August 31st
incident in the downtown train station in Prince Edward. Police
were just charging into these trains and indiscriminately
attacking passengers. In the aftermath, the authorities said
that anyone who talks about the August 31st incident--
especially the possibility that some people got killed--is all
fake news. And people who do so are subject to prosecution.
Another thing about tolerating regime supporters is another
infamous case of collusion at the Yeun Long station on July 21,
2019. That evening thugs armed with sticks and rocks attacked
communities and pedestrians at the train station. At the time,
Chris Tang--who was later promoted to be commissioner of police
and now is the security bureau chief--was the district
commander. Officers did not show up until after all the thugs
had left. Senior officers were filmed speaking with the men in
white shirts; those thugs that evening were all wearing white
shirts. And they were speaking prior to the attacks. And so
many people have come up with the suspicion that the police
were colluding with the attackers. So instead of arresting most
of those people on the spot right in the aftermath, pro-
democracy legislator Lam Cheuk-ting, who was himself beaten
bloody, was actually arrested for rioting that day.
And then these security officers replaced Matthew Cheung.
He was the last career administrator in the Carrie Lam
administration. One thing he did well was apologize over the
Yeun Long incident. He said the police handling fell short of
the citizens' expectations. Immediately he was publicly rebuked
by the police inspectors' association. Some of those statements
read: ``Matthew Cheung, why do you deserve to represent the
police force? If you want to apologize, you should resign. If
you don't step down or apologize to the whole force, you'll be
a sworn enemy of the police.'' The fact that subordinates could
openly challenge the number two in the government suggested
that the police had backers more powerful than the Carrie Lam
administration.
We should note that in fact Carrie Lam, as well as the
city's security chiefs, has been under the direct command of
the Beijing security apparatus. They began to have very regular
sit-downs whenever Carrie Lam and Chris Tang visited Beijing.
They were always having sit-downs with the Minister of Public
Security Zhao Kezhi, and also the Police and Legal Affairs
Commissioner Guo Shengkun in the rest of 2019. So now that the
police are formally in charge of the Hong Kong government and
they are subordinate to Beijing's security apparatus, the
frightening prospect is that there's very little distinction
between being arrested in Hong Kong versus the mainland. And
this is why we really need to take stock of what has happened
to political prisoners and rights defense lawyers, from other
panelists.
Let me also highlight that even though the name of the
bill, the law, is ``national security,'' it really is about
Beijing security. Tiny Hong Kong presents no threat to the
national security of China. What Hong Kong represents is a
threat to a regime that brooks no dissent. The one country, two
systems model could work, except that what really is in place
is a one party, two systems model, which cannot work at all.
The CCP is a Leninist party that brooks no dissent. And it
cannot tolerate any professional independence. ``Any
professional'' here means somebody--the administration, or the
police, the judiciary, the civil service, the media, the
education sector--it's actually the entire society. Once upon a
time we thought that one country, two systems was meant to
create a firewall to shield the city's preexisting rights and
freedoms from the one-party dictatorship in mainland China.
What Beijing has done is to turn that into essentially
capitalism without freedom. It helps to kill Hong Kong's
freedom while preserving its capitalism.
Let me just close with one point. If one country, two
systems does not work because it is, in fact, one party, two
systems, what does this also mean for the emerging order of one
world, two systems? If Hong Kong once had a functioning legal
order with a politically neutral civil service, an impartial
police force, an independent judiciary, and an unfettered free
press, and all that were taken down, what would that mean if
China now is holding up these alternative institutions,
creating this one world, two orders? One thing is that the
immediate effect is this is just going to harden the line so
that we are entering the next cold war in a more solid way. But
more important in the long term, will Beijing's order take over
the liberal world order or would this world of one world, two
systems, actually work? So let me close here and let's hear
from other panelist lawyers.
Staff Director Squeri. Thank you so much, Dr. Hui, for your
comments.
Our next panelist is Professor Tom Kellogg. Professor
Kellogg is Executive Director of the Center for Asian Law,
where he oversees various programs related to law and
governance in Asia. He is a leading scholar of legal reform in
China, Chinese constitutionalism, and civil society movements
in China. Prior to joining Georgetown Law, Professor Kellogg
was Director of the East Asia Program at Open Society
Foundations, during which he focused most closely on civil
society development, legal reform, and human rights. He also
oversaw work on a range of other issues, including public
health, environmental protection, and media development.
Professor Kellogg has written widely on law and politics in
China, U.S.-China relations, and Asian geopolitics. He has
lectured on Chinese law at a number of universities in the
United States, China, and Europe, and he has also taught
courses on Chinese law at Columbia, Fordham, and Yale Law
Schools.
Professor Kellogg.
STATEMENT OF THOMAS E. KELLOGG, ADJUNCT PROFESSOR OF LAW,
GEORGETOWN LAW SCHOOL
Mr. Kellogg. Wonderful, wonderful. Well, I want to thank
the CECC for this invitation to talk about the important topic
of human rights and the rule of law in Hong Kong. And I
certainly want to thank my colleagues on the panel for some
very insightful remarks on where we are now. And I would agree
with the other members of the panel that we are in a very
difficult moment for human rights and the rule of law, both in
Hong Kong and, as I think we'll hear in a little bit, on the
mainland itself.
I do want to make sure to mention the report that my Center
just put out yesterday on the Hong Kong National Security Law
one-year anniversary, with a focus on the right to a fair
trial. I thank Jerry for his kind words on the report. And I
hope that those who are interested in more detail on some of
these issues will check the report out. It is available on our
website.
I want to say a quick word about the extraterritoriality
concerns raised by the National Security Law and then use the
remainder of my time to touch on the right to a fair trial for
NSL suspects.
Article 38 of the National Security Law does create almost
unlimited extraterritorial scope for the National Security Law,
which means that individuals can be charged for national
security crimes that take place anywhere in the world. And of
course, as many in this audience will know, we've had at least
one American citizen--Samuel Chu, head of the group HKDC, the
Hong Kong Democracy Council, be named as somebody who was under
investigation under the National Security Law, and other exiled
activists have been similarly named by the Hong Kong police
over the past year.
But I should point out that Article 38 is just one of many
entry points into the international community that the Hong
Kong police, the Hong Kong government, and by extension Beijing
can use to extend the reach of the National Security Law. Under
Schedule 5 of the National Security Law's implementing rules,
the police can target foreign ``political organizations''
operating in Hong Kong and force them to answer questions about
their activities in Hong Kong in ways that very much parallel
the mainland's 2015 foreign NGO law. And of course the CECC has
written about the rather extensive reach of that law and its
implications for U.S. NGOs, U.S. universities, and others
operating in China.
I would argue that Schedule 5 of the implementing rules
sets up similar very thorny moral and ethical questions for
organizations operating in Hong Kong and needs to be the
subject of more attention and more discussion. Of course, many
in this audience will know that Nathan Law, the exiled
activist, was told by the Israeli internet service provision
company Wix that his website was being taken down because the
Hong Kong police, using their authority under Article 43 of the
National Security Law, said that his website had to be taken
down. The website was returned to service within a day or two,
but the precedent was set. And we have to wonder whether other
similar exiled activists will be targeted as well.
Now, on due process rights for individuals accused of NSL
crimes--well, actually, if I could just quickly say a word or
two about some of the broad brushstrokes of the NSL. First, I
think it's undeniable that the NSL's had a major impact on
human rights and the rule of law in Hong Kong. And this is
going to be a challenge that all of us are facing, and
particularly the people of Hong Kong are facing, for years to
come. I would argue that the law's passage itself is a
violation of Hong Kong's Basic Law and the promises made to
Hong Kong for a high degree of autonomy. And just to highlight
one element--basically, mainland political entities operating
in Hong Kong is a violation of the Basic Law itself and the
promise by Beijing that it would be Hong Kong people themselves
running Hong Kong.
The aggressive implementation of the law over the past year
is also deeply disturbing. Since the law went into effect,
we've had, by Georgetown's count, something like 128
individuals who have been arrested over the past 12 months, and
65 who have been charged. The vast majority of those 65
individuals have been targeted for peaceful political activity
that should be protected by Hong Kong's Basic Law. And it's now
an open question as to how the courts will reconcile the
apparent conflict between the human rights of those accused and
the very serious National Security Law crimes that they are
charged with. That question, I think, will animate a lot of the
conversation on the National Security Law in the months to
come, as the trials get underway.
Quickly, on due process rights, Jerry already covered some
of the questions related to bail so I will hold off on saying
any more on that front for now. But of course, we could say
more about that in the Q&A. I will say that jury trial is a
disturbing element of the restrictions on due process rights
that we have seen thus far. And we know that Tong Ying-kit, the
first defendant to go on trial under the National Security Law,
was denied his right to a jury trial literally in the days
before his trial began. So he too will not have the benefit of
this important prophylactic measure that can really do a lot to
ensure judicial independence and that can guard against
political prosecutions by the Hong Kong government.
Again, I share Jerry's concern, but there's been a lack of
discussion of the role of the prosecutor in these cases over
the past year. It's certainly welcome that there's been a lot
of focus on judicial independence, and that needs to be a
continuing subject of conversation and analysis. But we do need
to be thinking more about the role that prosecutors are playing
in some of these cases.
In conclusion, let me just say that the moves by the
government that I've been mentioning here and that are
described in the Georgetown report released yesterday do
suggest that the government is chipping away at the due process
rights of those accused of National Security Law crimes in ways
that have grave implications for the right to a fair trial for
those accused of crimes under the NSL. It's too early to say
whether or not NSL defendants will actually get a fair trial.
Any final analysis will have to wait until we have final
verdicts in some of these initial cases, but the initial
prospects, the initial signals are, to put it mildly, not good.
Let me leave it there, and I look forward to continued
discussion.
Staff Director Squeri. Thank you, Professor Kellogg.
Our next panelist is Dr. Teng Biao. Dr. Teng is an academic
lawyer, currently the Pozen Visiting Professor at the
University of Chicago, and Grove Human Rights Scholar at Hunter
College. He has been a lecturer at the China University of
Political Science and Law and a visiting scholar at Yale,
Harvard, and NYU. Dr. Teng's research focuses on criminal
justice, human rights, social movements, and political
transition in China. Dr. Teng defended cases involving freedom
of expression, religious freedom, the death penalty, Tibetans,
and Uyghurs. He co-founded two human rights NGOs in Beijing,
the Open Constitution Initiative and China Against the Death
Penalty in 2003 and 2010, respectively. Dr. Teng is one of the
earliest promoters of the rights defense movement in China and
of the manifesto Charter 08 for which Dr. Liu Xiaobo was
awarded the Nobel Peace Prize. Dr. Teng has received various
international human rights awards, including the Human Rights
Prize of the French Republic.
Dr. Teng, the floor is yours.
STATEMENT OF TENG BIAO, POZEN VISITING PROFESSOR, UNIVERSITY OF
CHICAGO
Mr. Teng. Thank you, Matt, for your invitation and
introduction. I will briefly make a few points. First, how the
National Security Law threatens human rights and freedom not
only in Hong Kong, but also globally, focusing on two articles.
The first one is Article 55 and the following Articles 56 and
61--between 56 and 61. And Article 55, the Office for
Safeguarding National Security for the Central People's
Government in Hong Kong, still exercises jurisdiction over
cases concerning endangering national security if the case is
complex or a serious situation occurs where Hong Kong is unable
to effectively enforce the law or a major and imminent threat
to national security has occurred. So it's very vague. And
under these circumstances the police, the prosecution, and the
court will be designated by Beijing.
And Hong Kong people can be sent to and detained in
mainland China. The criminal procedure law of the People's
Republic of China, not the Hong Kong procedural law, still
applies to these cases. And this has almost legalized conduct
like the kidnapping of Gui Minhai and the Causeway Bay
booksellers. I call it the Causeway Bay Article. And you know,
in 2015 Gui Minhai was abducted in Thailand and Lee Bo in Hong
Kong. And Gui has a Swedish passport and Lee Bo has a U.K.
passport. They were severely tortured. And Gui Minhai was
forced to give up his Swedish citizenship and reapply for his
Chinese passport. It's really, really terrifying. And by the
way, the Causeway Bay kidnappings partly contributed to the
protests in 2019.
Another article is Article 38. I call it the Long-Arm
Article. I'm glad that Tom Kellogg has discussed this ``long-
arm article.'' Actually, this article targets anyone who
criticizes Beijing's Hong Kong policy or who advocates for Hong
Kong democracy or independence, no matter what passport you
have or where you are based. And the second point is that
torture is rampant in mainland China and is institutionalized.
All the detained criminal suspects and defendants I represented
in China have been tortured, without exception. And I myself
was severely tortured in China. And if we go by the standards
of the Convention against Torture, which China signed and
ratified, I should say all over China nearly 100 percent of
detainees have been tortured.
And what are the institutional reasons, the systemic
reasons for the rampant torture? There are many. First is the
narrow definition of torture. You know, the Chinese authorities
adopted a narrower definition than the CAT, the Convention
against Torture. Second, the flawed criminal procedure and
evidence rules. And third, no judicial independence. And as
I've observed, police have more power than the courts or the
judges. The criminal investigations and the prosecutions rely
heavily on extracting confessions and obtaining evidence
through torture. And the purpose of the Criminal Procedure Law
of the PRC includes the priority of combating crime and
impunity for most torturers.
In China, most torturers are not punished. Or even if they
are punished, it is generally very slight. And the political
punishment--like dissidents, Falun Gong practitioners, and
Tibetans, Uyghurs--there are many different kinds of
extrajudicial detention, like legal education centers, like the
concentration camps in Xinjiang, and many other kinds of
extrajudicial or extralegal detention. And the limited role of
Chinese lawyers--the human rights lawyers in China are
frequently subjected to forced disappearance, house arrest, or
disbarment, or even conviction and torture. And then there's
the lack of freedom of expression and no independent--no free
media in China, and that also contributes to the frequent use
of torture.
And the final brief point I want to make--in mainland
China, who has been charged with and convicted of endangering
national security? I think 99 percent of them were not the
people who are really endangering national security or those
resorting to violence. Ninety-nine percent of them are people
like Liu Xiaobo--dissidents, or NGO activists, or human rights
defenders. And they were just exercising freedom of expression
or writing articles critical of the CCP, the system, the
policies, or the party officials, or practicing law
representing dissidents. Unfortunately, this is happening not
only in mainland China but also in Hong Kong.
Look at the cases like Joshua Wong, Benny Tai, Zhou Ting,
or Jimmy Lai. The Chinese Communist Party is destroying Hong
Kong's freedom and rule of law by implementing the draconian
NSL. And the Chinese government violates its international
commitments. So it is a legal, political, and moral obligation
for the international community to protect a free Hong Kong and
stand up to the CCP. I'll stop here. Thank you.
Staff Director Squeri. Thank you, Dr. Teng.
Our fifth panelist is Mr. Chen Jiangang. Mr. Chen is a
Hubert H. Humphrey fellow at the American University Washington
College of Law. Before coming to the United States, Mr. Chen
practiced law in China for over a decade with a focus on rights
defense cases. He has handled cases involving torture, speech
and religious freedom violations, and infringement of property
rights. Notably, Mr. Chen was co-counsel for lawyer Xie Yang
and played a critical role in exposing his client's experience
of being tortured by Chinese officials. Mr. Chen fled China in
2019 after receiving threats of being disappeared in connection
with his representation of a United States citizen who was
subject to an exit ban.
Mr. Chen.
STATEMENT OF CHEN JIANGANG, HUBERT H. HUMPHREY FELLOW, AMERICAN
UNIVERSITY WASHINGTON COLLEGE OF LAW
Mr. Chen. Hello. Thanks to CECC for inviting me. I have
been a lawyer in China for 12 years, including 10 years
representing human rights cases. In 2009 I represented my first
human rights case, helping a client protect their family's
house from the government. The last case I represented in 2019
was to help an American citizen, Fiona Huang. The Chinese
government did not allow me to represent Fiona and asked me to
quit the case. I replied that I would never quit, and the
Chinese government issued death threats against me. So in July
2019, I led my wife and children out of China. Behind the
living conditions of human rights lawyers lies the human rights
situation and the judicial situation in China. What I'm talking
about today is the personal experience of myself and my lawyer
friends.
Now, we are talking about Hong Kong. I am not surprised at
the state of Hong Kong today, because I know that the current
situation in China that I have experienced is the future of
Hong Kong. I need to tell you about the living conditions of
human rights lawyers in China.
First, every lawyer in China is faced with the difficulties
of annual inspection. In the case-filing system, lawyers are
forbidden to use self-media to make comments, and the
government monitors lawyers in handling cases. The annual
inspection of lawyers has become an annual introductory
approval and administrative license for lawyers, which is
actually a rope through which the CCP controls lawyers. The
Bureau of Justice has stipulated the degree of case reporting,
which means that lawyers must report cases involving national
security, religious belief, and mass incidents to the Bureau of
Justice for filing.
In fact, the filing system is a disguised monitoring, or
even a disguised restriction on the practice of lawyers. In
some cases, the Justice Department sends agents to follow
lawyers directly, monitor their sessions, and threaten those
who dare to fight. The Supreme People's Court of the CCP and
the Ministry of Justice issued a joint statement asking lawyers
``not to hype up cases in their own names or by issuing
statements, open letters, or urging letters in the media.''
Several lawyers have been punished or even stripped of their
legal licenses for speaking out.
Second, government departments and the law firms can simply
strip lawyers of their cases. There is now a tendency for the
CCP to simply strip lawyers of their cases. The measure is to
forbid the lawyer to meet with the person after arrest, forbid
the family members and the person to appoint a lawyer, and then
require the people to accept a lawyer appointed by the
government. Even if a family member has a lawyer, the CCP can
still ask the client to cancel the appointment.
Since 2015 this has been the norm. For example, the Chinese
government explicitly prohibits lawyers from representing cases
related to COVID-19. The bureau will instruct law firms and
directors of law firms to directly suppress and control
sensitive lawyers and prohibit them from handling sensitive
cases. Once a lawyer is banned from working, it will put the
lawyer's family into financial crisis.
Third, various government agencies hinder the practice of
lawyers and use various means to destroy the daily lives of
lawyers. The CCP has imposed various obstacles on lawyers'
handling of cases, such as refusing to let lawyers meet
defendants without any justification, denying them access to
their papers, denying them permission to speak in court,
forcing them to go through security checks, frisking them, and
even preventing them from entering court sessions. There are
also direct beatings of lawyers, illegal seizure of lawyers'
equipment for handling cases, and even illegal detention,
torture, imposition of charges, and even imprisonment. The
cases are numerous, and I have been a victim myself.
The CCP will destroy everything about a lawyer and his
family in order to force them to obey, leaving them in
immediate trouble. This often involves forcing lawyers to move,
cutting off the water, power, gas, and internet of the lawyer's
family, and cutting off the telephone, threatening a lawyer's
family members, banning their children from school, and so on.
Fourth, among human rights lawyers in China, a large number
were eventually deprived of their law licenses by the CCP
through various means. I myself and a large number of my lawyer
friends who are all well-known human rights lawyers and human
rights defenders, were deprived of their licenses, and a number
of law firms were dissolved.
Fifth, torture, imprisonment, and insulting media coverage.
Dozens of Chinese lawyers have been found guilty by the CCP for
their involvement in human rights cases, such as Gao Zhisheng,
Li Heping, Wang Quanzhang, Xie Yang, Jiang Tianyong, and Wang
Yu, who just won a Woman of Courage Award from the U.S.
Government. All of these arrested lawyers have been tortured,
and they're reported on in insulting ways by the CCP's media.
The CCP also humiliates lawyers by fabricating shameful
charges, such as visiting prostitutes.
Sixth, the CCP controls lawyers by keeping family members
as hostages, and some lawyers have been held for long periods,
or even been disappeared. In persecuting lawyers, the CCP
controls the lawyers themselves by holding family members,
especially children, as hostages--a tactic that has become
common since 2015, with almost all persecuted lawyers and their
families barred from leaving the country and their children
prevented from going to school.
In my own case, in May 2017 my whole family was arrested.
The police held the barrel of a pistol to the heads of my two
sons, age six and two, in front of me. Then, for more than two
years, the Beijing police put my home under 24-hour
surveillance. The police told me in no uncertain terms that my
children were their hostages. Individual lawyers, such as Gao
Zhisheng and Jiang Tianyong, have been jailed for long periods,
or even disappeared.
I can't cover all the ways in which the CCP persecutes
lawyers because the CCP controls everything in China and has
unlimited power. There are countless ways in which they can
persecute lawyers.
In conclusion, I would like to make it clear to all of you
that anti-human rights, anti-rule of law, and anti-
constitutionalism are the essence of the CCP. Never, never,
never trust the CCP. Thank you.
Staff Director Squeri. Thank you, Mr. Chen. And thank you
to all of our panelists for the very illuminating and thought-
provoking comments. Each of you laid a lot on the table that I
know is to the benefit of the CECC staff and commissioner staff
that is joining us, as well as the broader public watching
online. I will take the moderator's prerogative by starting off
with an initial question, but if any CECC staff or commissioner
staff have any questions or would like to make any comments,
please use the smiley-face function at the bottom of your
screen to use the raise-hand function. And I will make sure
that we can recognize those who wish to speak or ask questions.
I'd like to start by asking our panelists for any
reflections on where we go from here, what Congress can do in
light of the deterioration in rule of law and the human rights
situation that you've all so eloquently laid out. Should
Congress be contemplating additional economic sanctions due to
the Hong Kong government's seizure of Apple Daily's assets
without a court order? Are there items of leverage that
Congress can use when it comes to promoting a more robust focus
on these issues at the United Nations?
There was a group of 50 independent United Nations human
rights experts in June 2020 who urged the Human Rights Council
to act with a sense of urgency and take all appropriate
measures to monitor Chinese human rights practices. So are
there steps that can be taken in that venue? I would just like
to draw out the panelists on any reflections on policy levers
or actions that the United States Government should be
contemplating in light of what has been laid on the table.
Yes, Professor Cohen, let's start with you.
Mr. Cohen. I am glad that you raise the question, because
for years I have been trying to persuade Congress to support
research on what's taking place in China, especially with
respect to the political-legal problems. Congress and the
executive have done a lot to provide funding for training in
China for cooperation and exchanges in China with respect to
legal matters. And our NYU U.S.-Asia Law Institute has done
remarkable and little-recognized work, often with the support
of the State Department Human Rights Bureau, distributing funds
made available by Congress.
But what Congress has resisted is putting up money for
research on China. I have argued that it's nice to know more
about the people you're trying to cooperate with and even
train. And yet, research hasn't been attractive. And today, of
course, we're restricted in opportunities for many of the
things we used to do in China, in cooperation with the courts,
with the lawyers, with academic people, the legal profession.
Now it's hard to do that. We're trying to do more in this
country and elsewhere, to the extent that those people are free
to leave China. But this is the time for more research. This is
a time for training our own people. We're going to need a new
generation. I appreciated your birthday congratulations at the
outset today, but I'm going to be 91 on July 1. We need a new
generation.
Tom Kellogg is a wonderful scholar, but he's already--I
hate to say it--approaching middle age, and the others here. So
we need to train people and we need research. Congress is doing
a good job on legislation, both with respect to Hong Kong and
to Taiwan. And what I'd like to see with respect to Hong Kong,
of course, is more information being made available. We just
heard very good statements from two experienced mainland
lawyers. It's lucky they are out of China so we can hear from
Mr. Chen and Mr. Teng Biao. I hope their statements, by the
way, can be circulated and published by the CECC so they'll
have a much wider audience.
I was particularly struck by what Mr. Chen has said today.
I know Teng Biao. We've cooperated on many things. He's a
marvelous lawyer and courageous scholar. But I didn't know
anything about Mr. Chen. And he gave a very detailed talk. To
the extent people could follow that talk, they could learn
about the realities of lawyers' lives. That should be made
broadly available by the CECC. And if they need help, I'm sure
many of us would help.
Finally, we should be cooperating with people in Hong Kong
who are trying to defend the rule of law. We should be doing
more to publicize their plight, as you're doing today, and we
should be helping them in other ways. And last of all, I hope
that Congress will open our doors to a greater extent for those
people from Hong Kong who want to leave, and make money
available for those who can't afford to take the risk on what
is an upheaval in the lives of themselves and their family. I
think we've got to do more. Let them try to walk with their
feet before the door closes, because the PRC is not very likely
to tolerate the humiliation of several hundred thousand people
walking out on the new communist dictatorship.
Staff Director Squeri. Thank you, Professor Cohen.
Certainly poignant recommendations in light of the situation
and the constricting space for civil society, both in Hong Kong
and the mainland, as well as humanitarian issues that you
rightly bring up.
I'd like to next turn to Dr. Hui for her thoughts on the
question.
Ms. Hui. Thanks, Matt. Let me answer your question by
providing a diagnosis of why the U.S. has not done more. The
U.S. has decertified Hong Kong's autonomous status. The U.S.
has imposed sanctions on a bunch of individuals in charge of
Hong Kong. And at 2:30 there's going to be another kickoff of
the Safe Harbor Act to provide asylum status to Hong Kongers
trying to flee and who manage to get out. But these measures do
not hurt. Last year and this year the State Department
decertified Hong Kong's autonomous status. But then, so what?
What Beijing is counting on is that the rest of the world
is going to continue to be dependent on China's economy. And so
therefore even early this year the EU was going to sign the
trade agreement with Beijing. Beijing is just counting on--
well, you know, you guys continue to invest in Shanghai, and
Shenzhen, and Beijing. So what does it matter that Hong Kong's
just going to become part of China? So ultimately, it is very
important to take actions that bite, but then at the same time
for a lot of companies--essentially, Hong Kong has served as
the window for China's businesses, for China to get technology
and money. But now the international presence in Hong Kong is
being taken hostage.
So you look at all these international embassies in Hong
Kong. Can they leave easily? A survey says that 42 percent of
them are planning to leave, but over 50 percent of them do not
want to leave because this is still where they can make money.
And we continue to have American businesses--just the other day
Nike said, ``We are for China.'' And this is the kind of
struggle, the obstacles that we face. Essentially the U.S.
Government and U.S. businesses continue to support China's
ideal scenario for Hong Kong--capitalism without freedom. And
this is something we need to target.
Staff Director Squeri. Thank you.
Professor Kellogg.
Mr. Kellogg. Sure. I would echo the comments of both Jerry
and Victoria and say in general--it would be great if Congress
could provide some additional funding to allow for new kinds of
engagement by different players here in the United States who
can build even stronger partnerships with their counterparts in
Hong Kong. I think it's pretty clear, and we've spoken about
this during the discussion, that one of the goals of the
National Security Law is to generally isolate key players in
Hong Kong--academics, journalists, lawyers, and others--and to
make them even more subject to government pressure, to
Communist Party pressure, to all sorts of different pressures
that can be brought--the financial pressure that can be brought
to bear on them.
And it's my hope that engagement by U.S. universities, that
engagement by entities like the American Bar Association,
journalistic collaboration and exchange, can help to break that
kind of isolation that Hong Kong hopes, and Beijing hopes, will
be a sort of very, very advantageous byproduct of the National
Security Law itself. And again, the role of Congress is to
provide the kind of funding support that would make it possible
for some of these groups and some of these universities to step
up their partnerships with their counterparts in Hong Kong.
Staff Director Squeri. Thank you.
Dr. Teng Biao.
Mr. Teng. Yes. It's great that Congress has passed the
Global Magnitsky Act and Hong Kong Human Rights and Democracy
Act, and some Chinese government officials and Hong Kong
officials have been sanctioned, like the deputy heads of the
National People's Congress. And I think the United States
should sanction more people who have violated human rights and
who have suppressed Hong Kong freedom. And I think that
sanctions are a powerful form of leverage that the
international community has.
And the second suggestion might be to adopt more policies
to protect Hong Kong asylees, get them special channels to
approve their political asylum. And then third, the U.S.
Congress has nominated Hong Kong activists to win the Nobel
Peace Prize. I think that's also a good idea, from Martin Lee
to Joshua Wong. I think quite a few Hong Kong dissidents and
democracy activists are qualified to get the Nobel Peace Prize.
And finally, it's not only in Hong Kong that the human
rights situation has been deteriorating. It's much worse in
Xinjiang and other parts of China, in Tibet, Mongolia,
especially the ongoing Uyghur genocide. So I think the United
States should consider a full boycott of the Beijing 2022
Olympics. And we have seen many people--more and more people
agree with the idea of a diplomatic and financial boycott, but
we are calling for a full boycott. Anyway, any kind of boycott
would be powerful in raising awareness of the situation of Hong
Kong and Xinjiang.
Staff Director Squeri. Thank you.
Mr. Chen, would you like to add anything?
Interpreter Mr. Chang. Mr. Chen will speak through me, his
interpreter right now. So please allow time for interpretation.
Thank you.
Staff Director Squeri. Thank you.
Mr. Chen. (Through interpreter.) The current status of the
CCP government is that the Chinese government, in fact, needs
help from the United States Government. So the United States
Government is able to control or to decide what the Chinese
government is going to do. And the resistance and the fighting
from the Chinese government against the United States
Government right now is a show that China is putting on for the
world. The only voice that the Chinese will listen to right now
is the voice of the U.S. Government.
In my humble opinion, and then also my personal plea to the
U.S. Government are the following three points: that the
current U.S. Government should impose a very powerful and
efficient retaliation or sanctions mechanism against the
Chinese government. And then I hope that the U.S. Government
can actually put this into practice upon the people who violate
human rights. And that would be those Chinese government
officials.
And then my second opinion is that, right now, it would be
to the U.S.'s advantage to use this economic cooperation as a
measure to force or to coerce the Chinese government to do
something if the Chinese government violates human rights. This
is the only way the Chinese government will listen, when such
human rights violations happen. The Chinese government seems to
play a big role right now in the economic aspect of the world.
But we all know that the reason why China has obtained this
power is because of the Chinese government's cooperation with
the United States Government.
The third point that I would like to make--the U.S.
Government should help people, those human rights fighters in
China or in Hong Kong. And not only those people but also
extend assistance to their families, because what the Chinese
government is doing right now is holding people's family
members as hostages. This is their weak point. Some of those
fighters' families are trapped in China or in Hong Kong.
Extending help to those families can give them more support to
pursue what they are fighting for. I hope that this can be
taken into consideration.
For example, one lawyer--Li Heping--his oldest son
graduated from high school and was planning to come to the
United States to study. But instead, he is being held in China.
This is an obstacle to his dad's career and might not be a good
thing for this young fellow's future. That's all I want to say.
Staff Director Squeri. Thank you so much.
We are running short on time, but I would like to give an
opportunity for a lightning round of questions, since we have
such terrific expertise on this roundtable. Let's stick with
Mr. Chen. Thank you for sharing your personal story regarding
your experience in detention and the harassment that your
family underwent. We really commend your courage and we're
sorry that you had to go through those threats.
Q. Can you tell us about the situation of rights defenders
and lawyers connected to the 709 Crackdown, whom you've been in
close contact with, and how the United States can most
effectively advocate for them?
Mr. Chen. (Through interpreter.) Let me tell you more about
my personal experience. In 2019, I was planning to fly to the
United States to study. Instead, I was forbidden to go. At the
time, the U.S. Government I think made two tweets regarding my
situation, and a journalist at the press conference also asked
about this, but the CCP said very little and provided few
details.
And that's the only help that I got from the United States
Government. And then from the embassy--the U.S. embassy in
China, the ambassador told me, ``That's the only help that we
can provide right now.'' At the time my situation was very
dangerous because the CCP government had learned of my
intention to flee the country, to come to the United States as
a visiting scholar. I really needed a lot of help, any support
that I could get from the outside world.
I believe that if I had not fled from Guangxi with my
family and crossed the border, I would be in jail right now.
The same thing that happened to me happened to a friend of
mine, also a human rights lawyer, from Sichuan, Chengdu. He was
also planning to come to the United States, but was forbidden,
and is now stranded in China. The only support that he got was
exactly the same as I got in 2009--just an article in a
newspaper. This lawyer was stripped of his law license and was
then out of a job. He is also under severe monitoring right
now--surveillance by the government. He is even forbidden to
travel right now. So my plea to the Commission and to the
United States Government is . . . Is there any assistance that
you can provide to people like me or my friends in this
situation? Can you do anything else, other than what you have
already done? Thank you.
Staff Director Squeri. Thank you very much. And again, it's
very powerful to hear your personal experience and the
testimony that you've provided.
Q. Dr. Cohen, as you noted in your remarks, there is a
clear trend of Hong Kong prosecutors exercising prosecutorial
discretion based on political motivations. What recommendations
would you give to lawyers in Hong Kong to resist or to at least
slow down this erosion of the institutional integrity of the
prosecutor's office?
Mr. Cohen. I think that the lawyers who are knowledgeable
about attempts and successful efforts to deprive the accused of
adequate counsel should speak out. I'd like to hear from the
former head of public prosecutions who last year resigned in
protest, but he has not made public, as far as I know, the
reasons. And he's got to have a successful law practice now.
And I'm sure he's under conflicting pressures about going
public. But we need to know more. I think the revelations in
Tom Kellogg's Georgetown report about interference with the
right to counsel are so reminiscent of what we've heard takes
place in China today. Teng Biao has personally experienced
that. I've had exposure to that in trying to advise on some
cases. And we've just heard a very moving statement from Mr.
Chen.
I think we're going to see more of that in Hong Kong. And
the more public exposure we can give--I hope the media picks up
this aspect of Tom's report because, like his discussion of the
implementing regulations, which is too little known, this is
too new--we need to have more public exposure. So we need to
help Hong Kong people describe and evaluate this, and we need
to have our own outside people better informed because this is
a very sinister aspect of what's taking place.
Finally, I was very glad to hear Mr. Chen drop a few
Chinese names that may not mean anything to most people, but
when I hear the name Gao Zhisheng--once recognized, before he
became too political, in opposition--as one of China's great
lawyers--I think of what has happened to this man. Is he dead?
Is he alive? He's been disappeared. And no one remembers him
now except those who worked with him. I warned him in 2005 that
if he went on going public as much as he did in his criticism
of the Party, he wouldn't be on the street. And within months
after that, he was arrested multiple times, tortured, and
finally disposed of somehow. Is he a vegetable? Is he alive?
What has happened to him?
And he's just one example. Xu Zhiyong is another great
person I met, like Teng Biao and others, when I lectured at
Yale. He's, again, in prison. We'd be better off if Xu Zhiyong,
Gao Zhisheng, and others whose names aren't known to most
people outside were outside of China, like Teng Biao and Mr.
Chen, and able to tell us more. And I think it's a hard
decision. Should we help people more who want to leave? Teng
Biao and Mr. Chen got out via the underground railway. It took
Teng Biao's wife and one of his children almost 28 days to go
from Beijing to Boston. They need help. And how are these
people going to live when they're here? If we had research
projects, we would not only learn more, but we would provide
support for people who have no way to maintain their livelihood
once they get here.
Staff Director Squeri. Thank you.
And following up on Professor Cohen's reference to the
Georgetown research that Professor Kellogg led, I'd like to
turn to you next, Professor Kellogg. And congratulations again
on the release of the report on procedural rights under the
National Security Law.
Q, One case that you highlighted in the report is the case
of Tong Ying-kit, who was charged with an offense under the
National Security Law and was denied jury trial. Can you tell
us more about how this case compares with politically sensitive
trials in mainland China?
Mr. Kellogg. Thank you for that great question. And I do
think Tong Ying-kit, his case is one to watch. We have talked a
little bit about his right to a jury trial, which has been
denied. But there are also key substantive law questions that
are going to be at the forefront of his trial as it moves
forward over the next couple of weeks. I've said publicly that
I am not sure that a terrorism charge really makes sense in
this case. He is credibly accused of driving his motorcycle
into a group of police officers, and if those facts are proven,
then an assault charge would certainly be warranted, a
dangerous driving charge would certainly be warranted. But it
doesn't look to me like he has engaged in the level of
planning, in the level of forethought with a political goal in
mind that is usually required for a terrorism conviction under
international press practice for domestic counterterrorism
laws.
So you have that as one core concern. And then on top of
that, you have the speech crime that he is accused of because
he was carrying a banner that used one of those forbidden
slogans from the 2019 movement. And there I think--coming back
to your question--there I think are some of the parallels with
political dissidents and political activism on the mainland,
that if Tong Ying-kit is going to be convicted and punished
merely for carrying a banner with a slogan, then we're getting
into very, very difficult territory for the right of free
expression in Hong Kong, which has all too many disturbing
parallels to prosecutions of individuals for exercising their
right to free speech on the mainland.
And we'll have to wait and see how this case plays out. And
we'll have to wait and see how the three-judge panel weighs the
arguments in this case, both on the terrorism charge and on the
inciting subversion, I believe it is, charge. And one has to
hope that the three-judge panel will rigorously use the Basic
Law's human rights protections and apply them to this case. And
then we'll see what kind of verdict we get.
Staff Director Squeri. Thank you, Professor Kellogg.
Q. Dr. Teng Biao, between your detention in 2011 and today,
I would be curious to hear your reflections on what has changed
and what's remained the same in the landscape of how rights
lawyers are treated by the Chinese government. One recent
development that the Commission is tracking is the Chinese
government's announcement of the expansion of legal aid
services. And I would appreciate your evaluation of these
services in terms of access to independent counsel and whether
independent groups in China are allowed to provide legal
services with any sort of latitude in their operations.
Mr. Teng. Yes, thank you. Since Xi Jinping came to power in
late 2012, the human rights situation has been deteriorating.
And Xi Jinping actually waged war on law. And many lawyers,
human rights defenders, and activists, dissidents, also related
groups, have been arrested and detained. And the roundup of
human rights lawyers and defenders is really brutal suppression
of the rule of law. And the legal aid became more and more
difficult. You know, many lawyers--scores of human rights
lawyers--have been disbarred, and they've lost their law
licenses.
The chilling effect is apparent. You know, most lawyers
fear taking sensitive cases, and in many cases, the Chinese
government just blocks the human rights lawyers, the die-hard
lawyers, from representing the clients, the suspect. And they
appoint--the government appoints their own lawyers, who will
definitely not challenge the abuse of power. So it's getting
worse. Really worrying. Thank you.
Staff Director Squeri. Thank you.
Q. And for our last question, I'd like to turn again to Dr.
Hui. A human rights attorney who has been mentioned in this
roundtable, Lu Siwei, has represented the Hong Kong 12 after
they were apprehended at sea. There's at least one other
mainland Chinese attorney who also represented this group and
is being threatened. How much danger do you assess that
attorneys face for representing National Security Law cases,
either in Hong Kong or in mainland China? And how likely is it
that these attorneys will face--that the attorneys in Hong Kong
will face similar treatment to their mainland peers?
Ms. Hui. Yes, Matt, thank you so much. That's essentially
the case--and thank you for highlighting that, because I think
Tom also earlier said that even those arrested are now told
that there are certain lawyers that you should go to. And at
the same time, there's also pro-regime people saying, because
Martin Lee and Margaret Ng are already convicted, even though
they've been given a suspended sentence, that they should be
debarred as well.
So there are those very worrisome trends. And at the same
time--again, it's not just about who agrees to represent these
people, but also that as soon as you are arrested you are
basically--for a lot of these people, they continue to live in
stress. They are embattled. You know, when the police actually
go to lay charges on them, how can they afford the legal fees?
All of this is just basically mental torture.
I should also note that Chen Jiangang said that today's
China is tomorrow's Hong Kong. I think once upon a time we said
today's Tiananmen, tomorrow's Hong Kong. When we said that in
1989, it felt like tomorrow was going to be many years away--
decades away. But, you know, when we say today's China,
tomorrow's Hong Kong, it could well be tomorrow--literally the
next day, or the next week. Just look at what happened, how
rapidly Apple Daily was forced to shut down.
So these days we just have to really look at what happens
to political prisoners in China, where we should expect to see
horrible things happening--even in Hong Kong. At the same time,
all the experiences of rights defense lawyers in China--there's
a group of about 200 lawyers who do pro bono for a lot of the
arrested--we also have to keep an eye on how they can survive
and how much they can do, and if they themselves will be
subjected to prosecution.
Staff Director Squeri. Thank you. That is a very bracing,
but I think accurate, characterization, and I think it should
serve as a call to action for all of us. And I think this
roundtable has been a tremendous contribution to the
Commission's work and to the knowledge base of our
Commissioners, the staff on Capitol Hill, and those watching
these proceedings. And so I really want to thank our panelists
for the very rich and illuminating discussion. And with that,
that concludes our roundtable. Thank you.
[Whereupon, at 2:54 p.m., the roundtable was concluded.]