I am going to write an article or post on the myth of law… But this 9th circuit decision to not reinstate Trump’s order to temporarily stop immigration from 7 countries is really getting to me. Here is a letter I’d write Trump: Continue reading Dear President Trump…
[Editor’s Note: This piece was first published at the Huffington Post]
According to Chief Justice Roberts, judges are baseball umpires who apply rules impartially to disputes. As neutral actors, judges make everyone play by the rules but do not take sides themselves.
But with members of Senate locked in a heated debate whether Obama or the next president should name Scalia’s replacement, we are reminded yet again just how political Supreme Court Justices have become.
In decisions after decisions, the Court has waded into the most politically contested issues of the day, from abortion to gay rights to campaign contribution limits to national health insurance. Scholars now routinely predict how each Justice will vote based on his or her ideological persuasions alone, irrespective of the legal issues presented.
Justice Roberts would like us to reminisce wistfully about a day when judges were umpires of the law. But I don’t think that day ever existed. Continue reading The Caustic Side Effects of Looking to Supreme Court Justices as Umpires
Interesting story from NYT today titled “Judge Tells Apple to Help Unlock San Bernardino Gunman’s iPhone.”
Here is an excerpt:
The ruling handed the F.B.I. a potentially important victory in its long-running battle with Apple and other Silicon Valley companies over the government’s ability to get access to encrypted data in investigations. Apple has maintained that requiring it to provide the “keys” to its technology would compromise the security of the information of hundreds of millions of users.
[Editor’s Note: This is a cross-post of an article I submitted to the Diplomat a few weeks ago. I am wrapping up a more detailed legal analysis of the issues and aim to make it a law review article. I will cross-post here too that once that has been submitted and accepted.]
When the Permanent Court of Arbitration in The Hague recently announced that it would take “jurisdiction” over Philippines’ arbitral claims against China, many reported the decision as a victory for the Philippines and as a triumph of the “rule of law.” I beg to differ. The Court, on the contrary, has muddled, not upheld, international law, and by trivializing the states’ duty to negotiate in good faith – as enshrined in the U.N. charter, stipulated in the UNCLOS, and specifically agreed to between the parties – has greatly damaged the prospect for peace, cooperation, and a final resolution of the disputes. Continue reading Who Is Really Overstepping the Bounds of International Law in the South China Sea?
Recently, the Japanese Parliament passed controversial legislation pushed by Abe to allow Japanese forces to fight abroad for the first time since 1945. Here is how Reuters reported it:
Japan’s parliament voted into law on Saturday a defense policy shift that could let troops fight overseas for the first time since 1945, a milestone in Prime Minister Shinzo Abe’s push to loosen the limits of the pacifist constitution on the military.
Abe says the shift, the biggest change in Japan’s defense policy since the creation of its post-war military in 1954, is vital to meet new challenges such as from a rising China.
But the legislation has triggered massive protests from ordinary citizens and others who say it violates the pacifist constitution and could ensnare Japan in U.S.-led conflicts after 70 years of post-war peace. Abe’s ratings have also taken a hit.
The legislation “is necessary to protect the people’s lives and peaceful way of living and is for the purpose of preventing wars,” Abe told reporters after the bills were approved by the upper house. “I want to keep explaining the laws tenaciously and courteously.”
Japan’s ally the United States has welcomed the changes but China, where bitter memories of Japan’s wartime aggression run deep, has repeatedly expressed concern about the legislation.
China’s Foreign Ministry said the move was “unprecedented”.
“We solemnly urge Japan to learn the lessons of history … uphold the path of peaceful development and act cautiously in the areas of the military and security, and do more to help push regional peace and stability rather than the opposite,” it said.
Not surprisingly, this has incensed a large number of average people in China … and both Koreas … but also (take note!) the people of Japan. Continue reading Case Study on Democracy and Rule of Law: Japan and the World at a Crossroad?
Eric X. Li recently interviewed Francis Fukuyama on Political Systems, Political Legitimacy, Political Renewal and Decays for his Guancha views. The interview (about 53 minutes) is carried out in English with Chinese subtitles. A link to the video on youtube can be found here. A link to the video on tudou can be found here. A transcript of the interview on gunacha in Chinese can be found here.
The interview covers a lot and it is not my intention to discuss everything about it. However, one thing I do like is the tone it sets. For example, it doesn’t pose the questions such as whether electoral democracy or meritocratic democracy is superior. Instead, it poses question that ask what are the benefits and risks of each.
It is also witty. For example, there is a segment where Fukuyama exemplifies the respect for “rule of law” in terms of rulers not able to take things away from the citizens arbitrarily. Eric wittily retorted something to the effect: “or to get permission to get a divorce!” Laws are but a tool: it can “protect” while at the same time also invade. Ah … the double edge sword of law.
Nevertheless, there are several things I don’t like though. Continue reading Eric X. Li Interviews Francis Fukuyama on Political Systems, Political Legitimacy, Political Renewal and Decays
By the now, the results are in. Scotland has just rejected secession from U.K. in a historic referendum. There have been impassioned” pleas on both sides, but through it all, Scotland will remain a part of the U.K. If mainstream media is to be trusted, a big sigh of relief is heard around the world.
Personally I have no feeling one way or another although I will admit, the breakup of the U.K. – long the terror for much of the world – does not really bring a distaste to my mouth. Whichever side you take, what I can’t stand is the suffocating self congratulatory praises that seem to now infuse editorials (see e.g. this piece by Roger Cohen in the NYT) and reader comments (see e.g. comments to this NYT article) about “democracy” and “rule of law.”
Oh … just look how the debates in Scotland (and U.K.) have been so “civil” even if “impassioned.” The U.K. and the West is truly different from others – especially rising powers such as China – because in the free democratic West, important, divisive issues can be settled peacefully, civilly, democratically, and in accordance “the rule of law.”
But is this really about the triumph of “democracy” and “rule of law”? A little dose of reality might bring some sobriety. Continue reading The Scotland Referendum and What it might teach us about Democracy
SHANGHAI — A few weeks ago at the Shangri-La Dialogue in Singapore, Shinzo Abe made a bold pitch to Asia to buy in on a new type of Japanese leadership. According to Mr. Abe, the peace that is at the foundation of the Asia Pacific’s unprecedented growth can no longer be guaranteed. Without naming China by name, Mr. Abe warns of a new danger that looms on the horizon. The Asia Pacific needs Japanese leadership and a new affirmation of “international law.”
These are heavy words for uncertain times. But should Asia buy in? In his speech, Mr. Abe talked extensively about The United Nations Convention on the Law of the Sea and the freedom of navigation in the South China Sea, declaring his government’s strong support of the Philippines and Vietnam in their claims against China.
From China’s view, this was a provocative and dangerous articulation of law. China has never taken any actions or made any claims in the South China Sea that limits the freedom of passage. That is made abundantly clear with China’s ratification of the UNCLOS in 1982 and its signing of the Declaration on the Conduct of Parties in the South China Sea in 2002 reaffirming its “respect for and commitment to the freedom of navigation in and overflight above the South China Sea.” Continue reading Why Asia Should Say No to Mr. Abe’s Vision of International Law for Asia
This past weekend, the Jinan Intermediate People’s Court found Bo Xilai guilty bribetaking, embezzlement and abuse of power. The trial has been widely publicized and discussed in China, with netizens on the blogsphere commenting from almost every angle, some in support of Bo, some in disgust of his alleged actions, and others neutral and looking at the bigger picture (see e.g. also this report). South China Morning Post has this short summary of the court’s point-by-point verdict against Bo.
The Jinan Intermediate People’s Court accepted just two of the points former Chongqing party chief Bo Xilai made in his defence as it jailed him for life yesterday. The court, in a transcript released on its official weibo account, set out its point-by-point rebuttal of Bo’s defence. It also detailed ways in which he abused his power after the crimes of his wife, Gu Kailai, and the attempted defection to the US by his key lieutenant, Wang Lijun.
Bo’s claim: I confessed under duress.
The court said: Under Chinese law, the use of corporal punishment, corporal punishment in disguised form, or spiritual torture to interrogate and extort confessions is illegal. The “pressure” Bo faced did not involve any such act.
Bo’s claim: I did not know that [Dalian -based billionaire] Xu Ming was paying the expenses for my wife and son [Bo Guagua].
The court said: Bo’s denial in court is invalid as his written statements before the trial matched the testimony of Xu Ming and others, showing he not only knew that Xu Ming was financing Bo Guagua’s study abroad but also understood well their deal – exchanging power for money. Whether Bo knows the exact amount or not makes no difference.
Bo’s claim: I had no knowledge of the villa in France [bought on behalf of Bo’s family with cash from Xu Ming].
The court said: Bo mentioned the villa in his statements before the court heard evidence and testimony from others, ruling out the possibility that he was forced to confess on the point. Continue reading Opinion: On Bo Xilai and Rule of Law
When Western countries invade Iraq out of “human rights,” “democracy,” and “freedom,” those become ideologies used as propaganda to dupe their public into supporting unjust wars. Obviously, there are merits in the ideas carried behind those words. But the essence of the propaganda, the power behind the propaganda, is the religious believe in the absolute and universality of those ideas. There is no universality. Regular Hidden Harmonies readers know we frequently argue against that notion. So, today, in this brief post, I would like for our readers to meet another one: “rule of law.” In fact, Allen has been hinting he’d offer us a full treatise for some time now, but recently, in a fit of rage at me, I thought he offered up a really good summary. It was enough to wake me up fully. I used to believe in the absoluteness of “rule of law,” but no longer. It’s another religion. Continue reading “human rights,” “democracy,” “freedom,” and now, “rule of law”
For the last week or so, Hong Kong has been (very publicly) celebrating the “rule of law” that it claims it has exhibited in letting Snowden leave the country despite strong U.S. pressure to arrest and extradite him. The Hong Kong government made this official statement after Snowden left Hong Kong.
The US Government earlier on made a request to the HKSAR Government for the issue of a provisional warrant of arrest against Mr Snowden. Since the documents provided by the US Government did not fully comply with the legal requirements under Hong Kong law, the HKSAR Government has requested the US Government to provide additional information so that the Department of Justice could consider whether the US Government’s request can meet the relevant legal conditions. As the HKSAR Government has yet to have sufficient information to process the request for provisional warrant of arrest, there is no legal basis to restrict Mr Snowden from leaving Hong Kong.
Hong Kong Chief Executive Leung Chun-ying later cited the government’s action as “a good example to illustrate the rule of law and the procedural justice that we uphold.” The people of Hong Kong for the most part do back Leung’s sentiments. Even those who suspects illicit political motives seem to concede that Hong Kong did right following its laws, protocols and procedures.
While I am proud of Hong Kong in standing up to U.S. in the Snowden affairs, I urge caution that this is a triumph for rule of law. Rule of law connotates an absence of arbitrariness, an objectivity that is devoid of human whim and of politics. But if the public thinks the Snowden case resulted from an objective, fair and impartial application of rules, I urge them to think twice. Continue reading Everyone in Hong Kong is Celebrating the Triumph of Rule of Law In the Snowden Case – But Is This Really a Celebration of Law, or Politics under the Cult of Rule of Law?
In May 2008, the State Council issued “Regulations of the People’s Republic of China on Open Government Information” (中华人民共和国政府信息公开条例) went into law, requiring government departments to disclose a very wide range of information to the public and media. (See my prior article, “China’s determined and long march towards rule of law.”) Since then I have been keeping an eye out for new developments. China’s media watchdog, General Administration of Press and Publication (GAPP), few weeks ago declared illegal for governments or any other entities to blacklist journalists or to stop them from reporting. Continue reading China’s Supreme People’s Court clarifies trial procedures in citizens suing local governments over information disclosure
With Tunisia and Egypt in revolution, the Western media seem to be hypnotized with this notion that the only way Chinese society can improve is the citizens themselves fermenting a ‘jasmine revolution’ and overthrow the government. Note that they don’t actually say it, but their narratives are frequently with this a presumption. (See my prior post.) We retard our views if we limit ourselves to thinking that for weaker nations, revolution is the panacea to everything. For China, the key is always reforms from within, and I want to share about China’s recent freedom of information act. These reforms are in fact being done in earnest and some times with foreigner input.
In 2007, China’s State Council issued the “Regulations of the People’s Republic of China on Open Government Information” (中华人民共和国政府信息公开条例) which went into law in May 2008. They required government departments to disclose a very wide range of information. The purpose is to make the government more transparent and to make Chinese society one of rule of law. The Yale Law School’s China Law Center has a good collection of resources inside and outside China on how those regulations are being put into practice (in English). Peking University’s Center for Public Participation Studies and Supports (北京大学公众参与研究与支持中心) can be reached here in Chinese with a broader view of what is happening in China. The Chinese in fact works with Western NGO’s too, including the Ford Foundation.
Continue reading China’s determined and long march towards rule of law
In the continuing saga that is Chen Shui Bian’s colorful life, a trial court in Taipei sentenced Chen to life in prison yesterday as the first phase of his dramatic corruption and embezzlement trial came to an end. Chen’s wife, Wu Shu-chen, received a life sentence on corruption charges. Their son and daughter-in-law, convicted of money laundering, received relatively lenient 2 1/2 – and one-year terms. Continue reading Chen Shui Bian Gets Life
Amid the depressing news of the trial of Phurbu Tsering Rinpoche, a respected lama from Kardze (western Sichuan), is a hopeful sign: he is being defended by two Han Chinese human rights lawyers. They say that they have had some harrassment from the police, but they have not been prevented from serving as counsel to a man they believe was unjustly accused. They have helped him have his day in court, which is better than nothing. In my opinion, democracy and nationalism, etc., are less important than simple rule of law applied impartially. Is that something Tibetans and Hans can make common cause for? It ought to be.
The recent political turmoils have received relatively scant coverage in the Western Press. Nevertheless, many of us here at Foolsmountain think the events in Thailand are important and interesting because they touch upon so many interesting issues – including the rule of law, democracy, class warfare, public education, and the role of military – all of which are also pertinent to China. Continue reading Thailand's political turmoil