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Results: 1 - 15 of 84
Michael C. Davis
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Michael C. Davis
2020-08-13 11:12
Thank you, Mr. Chair, and thank you to the committee for inviting me. I hope I am heard okay.
I should note that in addition to being a U.S. scholar nowadays, I spent 30 years in Hong Kong as a professor of constitutional law and human rights, and I continue to teach there. I'll be teaching two human rights courses via Zoom this fall, so I am very much involved. I have been a public intellectual in Hong Kong throughout these many years.
What I want to talk about, as the constitutional lawyer who is starting this testimony, is about the rule of law and the national security law that's now been imposed on Hong Kong.
There are a number of questions about this law. The law itself seems to have a status as high as that of the Basic Law of Hong Kong; in fact, I would say it's higher, because under Chinese national law and legislation, the last law enacted—as is common in many countries—takes precedence over any conflicts with previous laws. The Basic Law of Hong Kong is an older law; it's more general, and the national security law is more specific.
The way it was enacted already imposed something on Hong Kong in a very offensive way. None of the law was leaked to the public until the day it was promulgated. We were told that even the chief executive did not know what was in the law. Contrary to China's own national law and legislation and Hong Kong's practice, there was no consultation with the public. This law was just imposed on Hong Kong.
The national security law, on its face, says that it's superior to all local laws. I would argue that it effectively includes the Basic Law of Hong Kong, which is the foundation of rights protection in Hong Kong.
The national security law says explicitly that the courts cannot really review it. It's not subject to constitutional review, and it's not subject to review under the Basic Law, so if a judge receives this law in court, he has to pretty much apply it, and the Standing Committee of the National People's Congress has the ultimate power to interpret it. The idea that the courts would stand as a guardian to protect us is not there in Hong Kong—and I can say I am a resident of Hong Kong, so I would refer to it as “us”. In Hong Kong we will have no opportunity to challenge some of the provisions in this law on subversion, sedition, collusion with foreign governments and so on, if this matter is brought to court.
There is an interesting twist in the law. It provides that only selected judges on a list can hear cases under the national security law, and the chief executive of Hong Kong is to construct that list. If a judge is on that list and he hears cases, if he acts or makes statements in any way that violate national security, then that judge will be dismissed from hearing such cases.
One of the ways that Hong Kong was to preserve the rule of law in the face of the mainland system, where they really don't have the rule of law, was that foreign judges, including Canadian ones, sit on Hong Kong courts. They will not be sitting on these national security cases because they will not be on the list of judges chosen by the chief executive of Hong Kong, so presumably the choice would be influenced by the expectation of how those judges would behave.
Given all of this pressure on judges, one wonders what they would do if they're confronted with statements from the foreign ministry in Beijing or from mainland officials now appointed in Hong Kong saying how they think a case should be treated.
We don't have to guess at this. Just this week, Jimmy Lai, the publisher of the Apple Daily, was arrested. While the Hong Kong officials referred to him as a “suspect”, he was suspected of collusion, apparently because he provided funding for an organization much like some of the organizations that are represented in testimony today that lobby foreign governments—usually overseas Hong Kong actors.
We don't know for sure because the enforcement of this law is done secretly, so we have a kind of secret police going on now. But presumably the word on the street, as it were, is that he funded an organization called Stand with Hong Kong. We'll see if that proves to be the case.
Interestingly, the foreign ministry immediately insulted him and said he represented a great threat to national security in Hong Kong; I forget the precise words. In any event, they almost prejudged the case. How will a judge react to this? If legal issues come up, knowing that the NPC can override their interpretation, how will they respond to these statements by mainland officials condemning the defendant before he is tried?
The autonomy of Hong Kong is very important. The reason autonomy was given to Hong Kong was that the mainland system is very much at odds with the Hong Kong system. In Hong Kong, as in Canada, we have the rule “of” law. In the mainland system, the common characterization is rule “by” law, where officials sort of stand above the law and take great liberties in interpreting the law.
Now the autonomy is undermined in two ways. One is that a local committee is created, headed by the chief executive, to oversee national security matters. All national security matters are under this committee locally. They would oversee what police can do. This committee has already issued regulations on how the police can behave, which enables searches without warrants, for one thing. There are judges and magistrates who can issue warrants, but those are not needed if the law enforcement officers feel there is some kind of urgency where they could go ahead and search in advance. This is one problem. Within the police, now there's a special unit on national security. Within the prosecution, there's also a special unit on national security. All of this is well lined up. The committee that oversees all of this in Hong Kong answers directly to the central people's government, so autonomy effectively goes out the window in this most sensitive area for Hong Kong's autonomy. Of course, national security is the most sensitive area.
On top of that, there's a mainland office on the safeguarding of national security that's totally staffed with mainland officials. Why they need that, I don't know, because they've also placed an adviser in the local committee. They have an adviser in the local committee who is to advise, but given that the central government is overriding the local committee, presumably that adviser can already supervise local actions. There is a separate office, and the office is totally staffed with mainland officials. People from the state security and public security branches of the mainland will staff that office. Neither the local committee nor that office is subject to review by the local courts. It expressly says in this law that the local committee is not subject to a review, and it says that local courts have no jurisdiction over that so-called office for safeguarding national security. Hong Kong's rule of law pretty much goes out the window here.
There is a long history in Hong Kong of mainland officials saying that when courts in Hong Kong have exercised constitutional review.... The mainland officials often say there is supposed to be no separation of powers in Hong Kong. The idea of the courts stepping up boldly, and challenging what mainland officials say, will be very difficult.
These are the kinds of problems that I thought were worth highlighting here, at the start of this hearing, because I'm sure that a lot of the events that bear out my concerns have occurred. I imagine other speakers will talk about them.
It's interesting to me that mainland officials in this national office, this office set up in Hong Kong, may not even be subject to any law, in a way, because under Hong Kong's Basic Law, only laws in Annex III of the Basic Law apply in Hong Kong. If a mainland official does something that violates mainland law, there will be no jurisdiction over him. In the exercise of his duties, if he violates local law, there will be no jurisdiction over him. We have a kind of secret police who have no real control over them.
I'll close with this. For Hong Kong, these things are very important, because these things are at the heart of why we have one country, two systems. The mainland officials can claim, if they want, that they're upholding one country, two systems, but the reality is that one country, two systems was to be upheld by the institutions in Hong Hong, which were separate from the mainland systems, and that separation has been totally collapsed.
I could write a long essay on human rights protections here as well, but my time is up, and I'd be happy to entertain questions.
Thank you.
William Browder
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William Browder
2020-07-21 11:08
Chairman, members of the committee, thank you for giving me this opportunity to address you today on the shocking persecution of the Uighur minority in China.
I come to this from a slightly different angle than other people on the panel and other people who have testified. Some of you may know me. For many years I've been coming to Ottawa to advocate to pass the Magnitsky act in Canada. My background is that I was in Russia for many years. Sergei Magnitsky was my lawyer. He uncovered a massive case of corruption, exposed it, and was, in retaliation, arrested, tortured and killed. I came up with this idea of the Magnitsky act, which would freeze the assets and ban the visas.
I came first to the United States, and they passed the Magnitsky act in 2012. I then came to Canada. Canada passed the Magnitsky act in 2017. Now, in total, there are seven countries with Magnitsky acts.
The Magnitsky act is quite a powerful tool in dealing with human rights abuse. It used to be that 40 years ago people like the Khmer Rouge didn't go on vacation to Saint-Tropez, but now you have people from all these different countries who commit human rights abuses travelling to foreign countries, buying property, doing all sorts of things. It becomes a way of creating consequences in a situation where the world didn't have consequences before.
As a result of this, I have been approached in numerous countries by numerous people about numerous issues. About two and a half years ago, I was in Washington, D.C., working on implementing getting more people sanctioned under the Magnitsky act. I was asked by a U.S. official who was involved in the Uighur situation if I could spend half an hour meeting with a member of the Uighur community who this person thought I should meet. I agreed to the meeting and ended up meeting a woman named Gulchehra Hoja.
Gulchehra is a Uighur. She lives in Washington, D.C., and she works for an organization called Radio Free Asia, which is a U.S.-funded media organization that reports on things going on in Asia without any interference from the Chinese government. She works on the Uighur language service. Gulchehra sat down with me and she told me her story. It was quite remarkable. She was the first person to be able to interview somebody coming out of the Uighur concentration camps. She interviewed a woman who had come out of a camp and told the story of what had happened. In retaliation for telling that story, 25 members of her family were arrested in China and put into these concentration camps.
Hearing that story, I didn't know anything about these concentration camps before, and so I started to work with her to hear what was going on and get more information. As I'm sure many members of the panel will present today, I learned about the forced sterilization of women. I learned about the way in which literally hundreds of thousands, if not millions, of people were being arrested. I learned about the forced separation of children from their families. It's become obvious to me that this is probably the most significant human rights issue that we currently face in the world.
In addition to my personal contact with Gulchehra, I'm a descendent of a Holocaust refugee. My mother had to flee Vienna during the Holocaust. To see that we have a genocide that is effectively taking place right before our eyes when we all said, “never again”, I feel compelled to do what I can for the Uighur people, and for Gulchehra and other victims.
The one thing we can do again, or we can do in this situation, is apply Magnitsky sanctions on the officials in China who are perpetrating this abuse. This is exactly why the Magnitsky act was created. The United States has imposed sanctions using the Magnitsky act on four Chinese officials, including a member of the politburo, and I'm scratching my head and wondering why Canada, which has the Magnitsky act specifically for this purpose, doesn't apply those sanctions right now.
I'm here today to strongly advocate for Canada to join the United States in sanctioning the Chinese officials responsible for this and hopefully expand that sanctions list so that many more people in China who are perpetrating this genocide are held responsible.
Thank you very much.
Errol P. Mendes
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Errol P. Mendes
2020-07-21 11:21
Thank you very much, Chair.
Thank you for the invitation.
We are witnessing in Xinjiang, China, what we had hoped would never happen again after the Second World War. I'm talking about the detention of over a million Uighurs. This is an ethnic and religious group on whom we are witnessing enforced birth control efforts by the Chinese government to reduce the numbers of this group. While the Chinese claim that these are vocational and training camps, there are credible reports that these camps include enforced propaganda sessions, forced labour and physical abuse, and some are alleging even deaths.
There is no one who is excluded. I want to give you an example of a leading Muslim female professor who I had gotten to know during my many years of doing research in China. Gulazat Tursun is a professor of law and was a supervisor of Ph.D. students at Sichuan University. She was one of the well-known international academics focusing on human rights. She was a visitor at the UN Office of the High Commissioner for Human Rights at Harvard University and Denmark's Danish Institute for Human Rights. Despite these credentials, she was basically detained in one of those camps, and to this day we are not certain whether she has been released or not.
Others have had an even worse fate. One academic may be facing the ultimate fate. Dr. Tashpolat Tiyip, a renowned scholar of geography and a former president of Xinjiang University, was suspected of being at risk of execution as he faced the end of a two-year reprieve of his death sentence, according to the Scholars at Risk Network in September of 2019. We haven't heard about his fate either.
I agree with my friend, former justice minister Irwin Cotler, that we should join the U.S. and other countries who have imposed targeted sanctions against the key figures in Xinjiang who are the major planners for the mass detention. I have suggested that the Magnitsky sanctions should target the architects of the detention, and I give names. I suggest the governor of Xinjiang, Shohrat Zakir and the region's party chief, Chen Quanguo, who is a member of the politburo of the party at the highest ranks of the Chinese government.
There are others, but these two, I think, are the chief planners of the detention. Both have asserted that these allegations of what amount to serious international crimes, which I would like to talk about, against the Uighurs are fabricated lies and absurd. In fact, Zakir goes even further by describing the camps as boarding schools where the rights of the students are protected.
In 2017, Parliament passed the Justice for Victims of Corrupt Foreign Officials Act, which implements the Magnitsky sanctions and which targets specific officials in terms of freezes and travel bans and also freezes their assets. Similar laws, as my friend Bill Browder has said, have been adopted by the U.S and other European countries. Now the European Union, thanks to his championship, has also considered expanding the Magnitsky sanctions across the European Union.
As is known, Bill was one of the major champions for this provision because his own lawyer, Sergei Magnitsky, was murdered by Russian officials. I had the privilege of assisting in a minor way in having Bill come up to Canada and promote the adoption of the Magnitsky law here in Canada.
I would like to briefly address the views of another legal colleague who is also the next ambassador to the United Nations, Bob Rae. In an interview with the Globe and Mail, he stated that the Canadian government must consider the consequences of imposing sanctions on senior government officials for human rights violations against minority groups.
While I agree with him that a government can never afford to engage in non-consequential thinking and non-consequential acting, he seemed to imply that could include any actions involving our two Canadians, Michael Spavor and Michael Kovrig, and further trade actions on our agricultural and lumber products. However, Canada cannot bend its foundational commitments as a society to the rule of law. That is the antithesis of what's happening in Xinjiang. We cannot abandon our often-stated commitments to the promotion and protection of universal human rights embodied in our promise of “never again”. We cannot be seen to be bystanders to the latest, yet again, serious international crimes that come within the definition of crimes against humanity, war crimes, torture and genocide.
We cannot stay silent or inactive in the face of these atrocities or we forfeit our right to be regarded as champions of equal human dignity and the rights of all peoples on the world stage. History has shown that silence is the complicit partner to genocide.
Canada cannot be silent or inactive against what I consider to be mounting crimes against humanity, including genocidal acts against the Uighurs. I consider that the actions of the Chinese government amount to crimes against humanity and genocidal acts, especially as they continue in terms of forced birth control acts against the Uighurs.
Now, the officials who I suggest should be targets for these Magnitsky sanctions may not have any frozen assets here in Canada, or may not even want to travel here in Canada, but the signal we send with the targeted sanctions, to not just China but the entire world, is that we are acting on behalf of humanity. We hope our traditional allies will follow suit and perhaps even consider joining us.
Regarding the threat of possible punishing consequences from China, given that we are already facing such actions with the detention of two Canadians as a consequence of the Meng Wanzhou extradition proceedings, I suggest that we must develop a longer-term strategy and policy on China that addresses both the hostage diplomacy actions and some of the other consequences we are facing in terms of trade sanctions, etc., which I think violate world trade rules. I think Canada and its government must develop a longer-term strategy with our traditional democratic allies and hopefully a future U.S. administration that puts in place economic, social and multilateral deterrents to not only the use of hostage diplomacy but also the ability of China to target democratic countries that are bound by their values, principles and constitutions to adhere to the rule of law.
This could include common approaches to make Chinese global companies subject to national security, human rights and anti-corruption scrutiny, and penalize them for complicity in their state's actions amounting to the most serious international crimes. Given the reports that are coming out of Xinjiang, I think some of the brands that are being made by forced labour and finding their way up to the U.S. and Canada should be one of the key actions that this committee, and in fact the larger committee, should be looking at to deal with those forced labour products. In fact, under the recent CUSMA, the trade agreement with the U.S. and Mexico, there is a prohibition.
Thank you.
View David Sweet Profile
CPC (ON)
I'm not certain whether it would be your expertise or Mr. Browder's, so whoever wants to chime in.... We have quite a sophisticated organization called FINTRAC. Over a trillion dollars left China in 2016 and, of course, it's laundered here in Canada. Do you think we have enough expertise to locate the money of these CCP members and fulfill the role and accomplish what is needed through the Magnitsky Act?
William Browder
View William Browder Profile
William Browder
2020-07-21 11:43
Can I respond to that?
I have some experience with Canadian law enforcement in relation to money laundering investigations. In the Magnitsky case, we identified millions of dollars—from the crime that Sergei Magnitsky exposed and was killed over—coming to Canada. We filed a criminal complaint with the RCMP about five years ago, and it was quite compelling evidence. It was clear where the money went. We found real estate that was purchased with that money. The RCMP initially opened an investigation but never seized any of the property, and then quietly closed the investigation.
I would argue that this is probably one of the most well-packaged—
William Browder
View William Browder Profile
William Browder
2020-07-21 11:44
—formal complaints they could have ever received.
View Sameer Zuberi Profile
Lib. (QC)
I want to thank all the experts for testifying and informing us at this committee with your testimony.
I'd like to put forth the first question to Mr. Mendes around the Magnitsky sanctions. You mentioned two names, but I'd like to get your opinion. On July 9, 2020, the U.S. Department of Treasury actually implemented these very sanctions on a number of individuals and one entity. I wanted your opinion on that. There's the Communist Party secretary of the Uighur autonomous region, Chen Quanguo. Another gentleman is Zhu Hailun, a former deputy secretary of the Uighur autonomous region. There's also Wang Mingshan, the XPSB, and another individual.
Mr. Mendes, what is your opinion on this, in terms of going that far? You only mentioned two initially.
I don't know if Mr. Browder would also like to contribute to that.
Errol P. Mendes
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Errol P. Mendes
2020-07-21 11:46
If all the individuals you mentioned are involved in the detention, absolutely.
I mentioned these two in particular because the targeting of sanctions against these two would reach up to the highest level, especially if we target Chen Quanguo, because he is a member of the politburo of the party. In other words, he works with President Xi Jinping. It would send a message directly to Xi Jinping if we were to focus on that particular individual.
As I said, and I think we have to recognize this, it could trigger consequences, but I think we absolutely have to stand up, even if that happens. That's the reason why I focus on these two. The second one is the governor of Xinjiang, Shohrat Zakir. Again, he's not as high as Chen Quanguo. That's the reason why I focused on those two.
View Sameer Zuberi Profile
Lib. (QC)
Okay. I have a follow-up to that. The Chinese ambassador to Canada said on December 5, 2019, that if Canada were to adopt any form of sanctions of the like that we're talking about, then there would be “very firm countermeasures”. How should legislators respond to this statement by the Chinese ambassador, that there would be very firm countermeasures if we did implement that? How do you respond to that?
Errol P. Mendes
View Errol P. Mendes Profile
Errol P. Mendes
2020-07-21 11:47
Well, I think that's what was in mind when Bob Rae made his comments, and I think the same thing happened with the U.K. when it basically said it would not extend Huawei to the 5G networks.
It's time the democratic countries...and this is where I'm pleading for us to start our alliance with all the democratic countries. We cannot take that type of blackmail and just cry uncle. One of the things we have to figure out is, if they do that, what are the consequences directed back at them?
One of the things we should be examining is that the thing that China treasures more than anything else is the ability of their economic sphere to carry on growing, and they rely very much on that, on co-operation with the rest of the world in terms of trade and in terms of investments. We should be starting to think about how we put the private sector and the economic and business connections together to make sure that there will be consequences back at them if they continue with this type of blackmail.
View Alexis Brunelle-Duceppe Profile
BQ (QC)
All right. Thank you, Ms. Alexeeva.
Mr. Browder, could you tell us how many Chinese citizens with assets in Canada could be affected by the Magnitsky sanctions?
William Browder
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William Browder
2020-07-21 11:58
First of all, I should say that the Magnitsky act is not dependent on having assets in Canada. The purpose of sanctioning somebody under the Magnitsky act is to name and shame those individuals. If they have assets in Canada, that's a plus. If we look at the more than 200 people who have been sanctioned in the U.S. under the Global Magnitsky Human Rights Accountability Act, we see that very few of them have assets in the United States. But the moment a person gets added to the sanctions list, that person basically becomes a pariah in the world of banking and international finance and no longer can open bank accounts anywhere.
I would argue, first of all, on a previous question of how many Chinese officials should be sanctioned, a lot more than the four who have been sanctioned by the United States. Just so it's clear, there are 52 people on the U.S. Magnitsky list, and this is just one case. We're talking about a genocide affecting a million Uighurs. That doesn't happen unless there's a massive organization involved. I think there should be a massive sanctions list for Chinese officials so the names are known and these people are named and shamed. Others who are involved may then start to worry that they're going to be named and shamed and their lives will be cut off from the international world of finance.
View Heather McPherson Profile
NDP (AB)
Thank you very much, Chair.
Thank you to all of our witnesses for participating today. Yesterday, of course, we heard from witnesses. It was very hard to hear the testimony of many of them, and it was very moving. I like that today we are doing a lot of discussion about some of the propositions of what we can do moving forward.
I'm going to start by playing a little bit of a devil's advocate role, not necessarily because I don't agree with the Magnitsky act and calling out individuals, but just to clarify the impacts.
Mr. Browder, I'll pose this to you, and then perhaps to Mr. Mendes afterwards.
We know the Magnitsky act addresses individuals, and it does not in fact impact the underlying system. How can we enact widespread, systematic changes in China, not just on the Uighur issue, but in terms of Hong Kong, in terms of the Falun Gong, by targeting individuals one at a time? That's one question. The other one is this: When targeting individuals, is it possible that by increasing and creating this confrontation we will limit our opportunities to use diplomacy and persuasion?
Perhaps you could both comment on that. I think I know what you're going to say, but I'd like to hear your words, please.
William Browder
View William Browder Profile
William Browder
2020-07-21 12:00
The beauty of the Magnitsky act is that it doesn't sanction the country. Why is that beautiful? A lot of people in China are victims of the regime as well, so you end up in a situation where instead of sanctioning the perpetrators, you're sanctioning the victims. I don't think Canada has a beef with the Chinese people; Canada and the world have a beef with the organizers of this genocide, which is the Chinese government.
Now, the other elegance of the Magnitsky act is that if anyone were to suggest right now that the world should cut off business relations and diplomatic relations with China over this issue, everyone would say, “Well, that's totally unrealistic. That's never going to happen.” China is too important a business player, too important a financial player, and too important a diplomatic player. What's so elegant about the Magnitsky act is that it allows the Canadian government, the U.S. government, the British government and other governments to create real punishments for people who are doing real abuses, and at the same time being realistic that they're not just going to cut off all trade and diplomatic relations with China. This is what I would describe as a powerful intermediate step. It doesn't in any way come to the level of genocide.
By the way, I should point out that you don't have to prove genocide to do Magnitsky. That's not necessary. You can do Magnitsky because of human rights abuses. Human rights abuses are clearly defined, whether genocide is defined or not, which I think it is. You have a situation where the people who are doing this have already met the threshold. You can do this; it's politically possible, and you don't have to do it alone. You can do it with the British, and you can do it with the United States. You can do it as a way of making clear that this is not acceptable and the situation will be escalated going forward.
View Garnett Genuis Profile
CPC (AB)
Thank you, Mr. Chair.
There are so many themes to draw on here.
One point I'm taking away from the testimony of Mr. Browder and Ms. Kanji is that it seems that, in international human rights work, we've identified these mechanisms like the Magnitsky act, like doctrines, like responsibility to protect, but all these mechanisms require executive action. In many of these cases, it's not about the tools being available; it's a failure of executive action. I'm wondering if we need to develop these doctrines a little bit by compelling executives more effectively to act in cases like this, introducing maybe automatic triggers that require executives to impose Magnitsky sanctions and recognize genocide to uphold their obligations when they happen.
It hasn't been mentioned, but in the U.S., the imposition of sanctions came about not as a result of the executive acting on their own, but as a result of legislative action through the Uyghur Human Rights Policy Act, which required the Trump administration to respond.
I'd be curious to hear from Ms. Kanji and Mr. Browder about whether they think we need to move beyond just giving tools to the executive and compel executive action in cases where there is clear evidence of genocide or gross violations of human rights.
Maybe Mr. Browder can go first, and then Ms. Kanji.
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