SYMPOSIUM IN HONOR OF NEIL GOTANDA: Foreword: Making Us Possible

Alfred C. Yen *

* Associate Professor of Law, Boston College Law School. Thanks are owed to Bob Chang for organizing this symposium.

SUMMARY:

  ... I have never written anything in the Critical Legal Studies or Critical Race Theory fields that Neil has done so much to advance, and I have written only twice about Asian Americans. ... The vehemence of some attacks against critical race theory exerts considerable pressure on many Asian Americans who want to be law professors. ... Indeed, the academy is lucky to have a growing body of Asian American legal scholarship and Asian American law professors - many of whom act as mentors, role models and community activists. ... Neil, however, has been a law professor since 1980, and I believe there is a connection between his work, the presence of Asian American professors in the legal academy, and the blossoming of Asian American legal scholarship. ... First and foremost, Neil's work provides intellectual support for the hiring of Asian American law professors and the importance of race conscious scholarship. ... This implies efforts to hire more faculty of color, including Asian American faculty. ... Second, Neil has been in the forefront of those articulating a distinct Asian American perspective on legal issues. ... The importance of this insight cannot be underestimated, for it is the foundation for an enormous amount of Asian American legal scholarship. ...  

SYMPOSIUM IN HONOR OF NEIL GOTANDA: Neil Gotanda and The Critical Legal Studies Movement

Gary Minda *

* William J. Maier Jr. Visiting Professor of Law, West Virginia University College of Law; Professor of Law, Brooklyn Law School.

SUMMARY:

  ... It is from this background that Neil Gotanda and others developed the base for the Asian American legal studies movement. ... Some believed that liberal legalism has failed to take seriously other perspective and other experiences framed by the lives of Native Americans, Latinos, African-Americans, Asian Americans, and women and gay people of all cultures. ... As Gotanda has noted, Asian Americans in law have established their unique identity by confronting the traditional categories and methodologies of liberal legalism. ... Gotanda and other Asian-American legal scholars have revealed how of how liberal legalism has perpetuated "a continuation of this racial association of Other non-Whites with foreignness." ... It is still too early to tell whether the effort of Neil Gotanda and other Asian American legal scholars will take the critique of liberal legalism. ... Liberal legalism has always thrived on crisis and movement, and it is possible that it will survive the crisis provoked first by critical legal studies, and more recently, by the Asian American legal movement. ... Asian American legal scholars like Neil Gotanda have now moved beyond the CLS critique of liberal legalism in advancing a unique and highly significant analysis of the question of race and foreignness in American law. ...  

SYMPOSIUM IN HONOR OF NEIL GOTANDA: Critical Legal Studies, Asian Americans in U.S. Law & Culture, Neil Gotanda, and Me

Keith Aoki *

* Assistant Professor, University of Oregon School of Law. B.F.A 1978, Wayne State; M.A. 1986, Hunter College; J.D. 1990, Harvard Law School; LL.M. 1993, University of Wisconsin-Madison Law School. Thanks to my colleagues Steve Bender, Garrett Epps, Sumi Cho, Maggie Chon, Ibrahim Gassama, Emily Houh, Lisa Kloppenberg, and Margie Paris for their insightful criticisms, comments and suggestions on earlier drafts as well as to the superb editorial and research assistance I received from Anne Fujita, David Montgomery Munsey and Mary Ann Murk. Thanks also to Bob Chang for organizing this symposium and, of course, many thanks to Neil Gotanda.

SUMMARY:

  ... The author offers a personal reflection on how Neil Gotanda's contributions to Asian American legal scholarship helped him "become Asian American" when the author used Gotanda's writings and teaching materials for a class. ... Most importantly, Neil's work acts as a bridge between CLS work and the later work of Critical Race Theory (CRT) scholars, as well as Asian American Legal Scholarship, FemCrit and LatCrit work. ... That is, I did not claim a political content to the racialized category with which I described myself and to which others classified me. ... Not paying close attention at the time, I was unaware of a shift in the project Neil was working on: the construction of a politically charged Asian American subject position within, and in some ways set apart from, Critical Race Theory. ... In another less direct way, Neil's work also provided a link between some of the ideas and methodologies I was familiar with from my immersion in several strands of CLS work and the new work which has been going on in the burgeoning area of Asian American legal scholarship. ...  

TEXT:

The author offers a personal reflection on how Neil Gotanda's contributions to Asian American legal scholarship helped him "become Asian American" when the author used Gotanda's writings and teaching materials for a class.

Introduction

I was born in 1955, but did not become an "Asian American" until sometime during the summer of 1994. Please allow me to explain and describe how my relationship with Neil Gotanda and his work helped mediate this process.

First, I will provide some biographical and family information. Second, I will very briefly describe the Critical Legal Studies context with which I became acquainted in the late 1980s (which by then was referred to as the Crit Networks) through which I first met Neil in 1990, and then again in 1992. Third, I will describe how I had the opportunity to teach a class called Asian Americans in U.S. Law & Culture at the University of Oregon during Fall 1994. Neil's work, as well as his intellectual generosity, was pivotal to my gaining a sense of this new area of legal scholarship. Finally, I will make a few brief observations about the class, and focus on highlights of a session Neil had with the class in October, 1994.

SYMPOSIUM IN HONOR OF NEIL GOTANDA: Latino/as In The Mix: Applying Gotanda's Models of Racial Classification and Racial Stratification

Enid Trucios-Haynes *

* Assistant Professor of Law, University of Louisville, School of Law. B.A., City University of New York Queens College of Law; J.D., Stanford Law School.

SUMMARY:

  ... The author acknowledges the pioneering effect Professor Neil Gotanda's work has had on the discussion of racial discourse to include the racial oppression of Asian/Pacific Islander Americans. ... More recently, he has used the insights developed from his research on the distinct attributes of the racial category assigned to Asian/Pacific Islander Americans to discuss racial hierarchy and the intersection of different groups of color and the white majority. ... The emerging critical Latino/a and Asian/Pacific Islander American scholarship jettisons this bi-polar framework in favor of a more textured analysis of the racial classification of national origin-based groups of color and includes elements of Professor Gotanda's analysis. ... His research chronicling the development of a racial category for Asian/Pacific Islander Americans, which he establishes as inextricably linked to "foreignness" based on a presumed relationship with another nation, is instructive for other communities of color that are identified as distinct national origin groups such as Latino/as, as well as communities of color viewed as more domestic, i.e. African Americans. ... The inference that "foreign" groups of color are incapable of assimilating into U.S. society is a pervasive element of racial classification for all Non-Whites including African Americans, Native Americans, Asian/Pacific Islander Americans, Latino/as and other national origin-based groups of color. ...  

TEXT:

The author acknowledges the pioneering effect Professor Neil Gotanda's work has had on the discussion of racial discourse to include the racial oppression of Asian/Pacific Islander Americans. According to the author, Professor Gotanda's analytical model to examine the social practice of race contains three elements. Moreover, Professor Gotanda's model is applicable to all minority groups who may not fit the traditional black-white paradigm, such as Latino/as. However, the author argues that Professor Gotanda's model may overemphasize the application of those three characteristics. The author argues that the construction of racial categories for African Americans and national origin-based groups of color, particularly Asian/Pacific Islander Americans, are based on the presumption of foreignness and the incapacity to assimilate. The author concludes that any analysis of racial classifications include an assessment of the intersection between race and foreignness.

Introduction

Neil Gotanda's earliest work focusing on immigration law and other cases concerning the status of Asian/Pacific Islander Americans has been instrumental in the development of critical race theory. He has forced open the doors of racial discourse to include the unique effect of racial oppression on Asian/Pacific Islander Americans, broadening the analysis of racial oppression to focus on the group whom he identifies as Other Non-Whites and to whom I refer as racially identified national origin groups or national origin-based groups of color. More recently, he has used the insights developed from his research on the distinct attributes of the racial category assigned to Asian/Pacific Islander Americans to discuss racial hierarchy and the intersection of different groups of color and the white majority.

Professor Gotanda's analysis of the critical forces that shape racial discourse has focused on the construction of an Asian/Pacific Islander American racial category which contains some different attributes than the Black and White racial categories. His paradigm is applicable to other Non-Whites who do not fit neatly within the formalistic Black-White, bi-polar framework that dominates discussions of race in the United States. The emerging critical Latino/a and Asian/Pacific Islander American scholarship jettisons this bi-polar framework in favor of a more textured analysis of the racial classification of national origin-based groups of color and includes elements of Professor Gotanda's analysis. Indeed, Professor Gotanda's work provides the formative construct for these new approaches to critical race theory.

Professor Gotanda has asked critical race scholars and others to question the vitality of the two category Black-White framework used for almost all analyses of the U.S. racial scheme. As he has noted, "almost all general discussions of race in legal literature, even those couched in terms of "minorities' or "ethnicity,' have focused upon African American and White bi-polar racial relations." Professor Gotanda's work assesses the intersection of racial classification and a "foreignness" tied to a particular national origin, as well as the emergence of a tiered race classification construct that situates all Non-Whites oppositionally. These relatively undiscussed elements of the U.S. caste system of white supremacy are instructive in analyzing all groups of color in the United States, including both national origin-based groups of color and African Americans, and are critical to an understanding of race relations today.

Professor Gotanda's work regarding national origin-based groups of color points out two particular phenomena: (1) the link of race with foreignness for distinct national origin groups which represents a relatively unexplored dimension of racial oppression; and (2) the development of a system of racial stratification in which different communities of color are compared without reference to systemic discrimination and the importance of race in current social problems is diminished.

Professor Gotanda's analysis of racial stratification which results in comparisons of communities of color in isolation from any examination of the role of white supremacy is a critical element of today's racial politics. The relationship among communities of color is reported to be more strained because of economic competition and increasingly scarce resources. This ideology conveniently directs the focus away from the role of white supremacy in continuing racial oppression.

Professor Gotanda's work is so important because he analyzes current and legal events from this perspective. Moreover, he calls on communities of color to acknowledge the impact, both internally and externally, of racial hierarchy in the United States. In his analysis of tiered racial categories within the United States, Professor Gotanda also highlights the unique racial construct that applies to national origin-based groups of color, particularly Asian/Pacific Islander Americans. His research chronicling the development of a racial category for Asian/Pacific Islander Americans, which he establishes as inextricably linked to "foreignness" based on a presumed relationship with another nation, is instructive for other communities of color that are identified as distinct national origin groups such as Latino/as, as well as communities of color viewed as more domestic, i.e. African Americans.

These facets of the U.S. racial oppression racial hierarchy or stratification as Professor Gotanda refers to this, and the intersection of foreignness and racial categories are integral to any comprehensive understanding of race in the United States today. Both of these themes are discussed below as these relate to racially identified national origin groups, in particular Latino/as and as these relate to their more domestic counterparts, African Americans.

SYMPOSIUM IN HONOR OF NEIL GOTANDA: From Little Acorns Great Oaks Grow - Neil Gotanda's Contribution to the Law Permitting General & Punitive Damages in Employment Discrimination Cases

David Benjamin Oppenheimer *

* Associate Professor of Law, Golden Gate University; J.D., Harvard Law school; B.A., University Without Walls-Berkeley. I am grateful to David Garcia, Neil Gotanda, Bill Hastie, Joanne Lewis, Alice Lytle, and Steven Owyang for helping me reconstruct their work with the FEPC, DFEP, DFEH and FEHC during the late 1970's and early 1980's, and to my research assistant Sabina Crocette for her able assistance in preparing this essay. Any and all errors are my sole responsibility.

SUMMARY:

  ... Among them was a young lawyer who had previously worked at the Asian Law Caucus and California Rural Legal Assistance - Neil Gotanda. ...  

SYMPOSIUM IN HONOR OF NEIL GOTANDA: Model Minority, Yellow Peril: Functions of "Foreignness" in the Construction of Asian American Legal Identity

Natsu Taylor Saito *

* Associate Professor, Georgia State University College of Law. My thanks go to Robert Chang for organizing this symposium and for inviting me to participate, to Neil Gotanda for challenging and expanding my understanding of "foreignness," and to Kelly Jordan for his thoughtful criticism of this essay. My work was greatly facilitated by the assistance of Soo Jo and Rand Csehy.Many of the ideas in this essay are considered in greater detail in Alien and Non-Alien Alike: Citizenship, "Foreignness," and Racial Hierarchy in American Law, Oregon L. Rev. (forthcoming Spring 1997). I am grateful to Keith Aoki, Kelly Jordan, Robert Chang, Neil Gotanda, and Kevin Johnson for their comments on drafts of that piece, and to the many people who gave me comments at the second annual conference of Asian Pacific American Law Professors and the eighth annual Critical Race Theory Workshop, where versions of that paper were presented.

SUMMARY:

  ... Those of Asian descent are often portrayed as the "model minority." ... By characterizing those of Asian descent as "foreigners," dominant society is able to slip freely from the model minority to the yellow peril label. ... These realizations led me wonder what ends were served by the attribution of foreignness to the racialized identity of Asians, and to conclude that it helps reinforce racial, social and economic hierarchies in the United States in two ways: first, by placing Asian Americans as a buffer zone (the "model minority") between those identified as "black" and "white" and, second, by constructing Asian Americans as instant outsiders against whom "real Americans" (black and white) can unite in times of crisis. ... But why did this attribution of foreignness continue, even after some Asian Americans had been in the United States for many generations? The presumption of foreignness has made it easier for Asian Americans to be used as cheap labor; easier to turn them into the yellow peril on an instant's notice; and easier to hold them up as a model minority in a way that masks real issues of discrimination and uses Asian Americans against other minorities. ...  

TEXT:

Those of Asian descent are often portrayed as the "model minority." However, the very same elements which comprise the model minority can also be read as components of the "yellow peril." The author argues that Neil Gotanda's concept of "foreignness" rectifies the contradictory images simultaneously attributed to Asian Americans. By characterizing those of Asian descent as "foreigners," dominant society is able to slip freely from the model minority to the yellow peril label. She posits that this freedom has historically enabled those of Asian descent to be used as cheap labor and as a mask to hide real issues of discrimination against Asian Americans and other minorities. Presently "foreignness" serve to reinforce racial hierarchy in the U.S. She concludes that recognizing that foreignness creates this duality for Asian Americans may allow society to more effectively combat the presumption that Asian Americans are foreign and thus entitled to lesser standards of protection

I. Introduction: Missing Pieces

Hardworking, studious, unassuming, thrifty. Inscrutable, sneaky, competitive. Those of Asian descent are sometimes portrayed as the "model minority," people who are succeeding in America despite their status as minorities by working and studying, saving and sacrificing for the future. However, as the "yellow peril," Asians and Asian Americans are also depicted as military, cultural or economic enemies and unfair competitors for education and jobs.

The positive versions of these stereotypes include images of Asian Americans as hardworking, industrious, thrifty, family-oriented, and even mysterious or exotic. It is striking that the negative images almost invariably involve the same traits. Hardworking and industrious become unfairly competitive; family-oriented becomes clannish; mysterious becomes dangerously inscrutable. As Gary Okihiro notes:

The Asian work ethic, family values, self-help, culture and religiosity, and intermarriage - all elements of the model minority - can also be read as components of the yellow peril.... The yellow peril and the model minority are not poles, denoting opposite representations along a single line, but in fact form a circular relationship that moves in either direction.

How can such apparently contradictory images be simultaneously attributed to Asian Americans? One piece of this puzzle came to me as I pondered another inadequately explained part of Asian American legal history - the Supreme Court's decisions in the Japanese American internment cases, Korematsu, Hirabayashi, Yasui, and Endo.

The story of the incarceration of over 120,000 persons of Japanese ancestry by the United States government during World War II is a familiar one. I grew up hearing stories of my father's internment in Tule Lake, California; witnessed my uncle's participation in the drive for reparations in the Japanese American community; and, as a law student, followed with interest the coram nobis petitions through which the convictions of Fred Korematsu and Gordon Hirabayashi were vacated. But I always felt that something was missing in the legal and historical explanations of the internment.

In 1943 and 1944 the Supreme Court upheld the curfew and the evacuation and incarceration of Japanese Americans on the basis of military necessity. Most critiques of these decisions, including Justice Murphy's dissent in Korematsu and Eugene Rostow's uncompromising analysis, have focused on the dangers of combining racism and wartime hysteria, implying that the military actions and their sanctioning by the judiciary were an aberration from an otherwise relatively straightforward march toward the protection of all Americans' constitutional rights.

The coram nobis petitions were based on the 1981 discovery of evidence that the War Department had knowingly concealed information about the danger (or lack thereof) posed by Japanese Americans. Accordingly, the convictions of Korematsu and Hirabayashi were vacated on the premise that the Court would probably have decided differently had it known these facts. But is it probable that if the Court had seen the original version of General DeWitt's Final Report or knew that the Justice Department did not consider Japanese Americans a major security concern, it would have decided differently in 1943 and 1944?

In 1980, Congress established the Commission on Wartime Relocation and Internment of Civilians which held nationwide hearings. Its final report concluded, "The promulgation of Executive Order 9066 was not justified by military necessity, and the decisions which followed from it...were not driven by analysis of military conditions. The broad historical causes which shaped these decisions were race prejudice, war hysteria and a failure of political leadership." Based on this report, the President issued an official apology and Congress passed legislation providing for at least symbolic redress. These, too, imply that the experience was an unfortunate detour in an otherwise honorable history of respect for the rights of citizens.

Ruling in 1986 on motions for reconsideration in the Hirabayashi case, Judge Vorhees stated, "It is now considered by almost everyone that the internment of Japanese-Americans during World War II was simply a tragic mistake for which American society as a whole must accept responsibility." However, it is not clear to me that the internment and the judicial decisions upholding it were aberrations, or a "tragic mistake." They are a quite logical extension of a history of law that tended, on the whole, to exclude those of Asian descent from mainstream society. They fit in quite well with the Chinese Exclusion Act, the "Gentlemen's Agreement" of 1908 excluding Japanese immigrants, the laws prohibiting the naturalization of persons of Asian descent, license and head taxes on immigrants, and laws which prohibited the ownership of land by aliens ineligible to citizenship. They also comport with a social history of discrimination, segregation, exclusion and race-based violence against Asian Americans. Yet this history is rarely discussed in the legal analyses of the internment cases.

Wartime hysteria overlaid on prejudice does not adequately explain the historical course taken. Korematsu is generally cited for establishing that race-based distinctions require strict scrutiny. How did the decision withstand its own test? Pondering these questions, I found Neil Gotanda's analysis:

A broader historical perspective is possible. Such a perspective would view the status of Japanese-Americans in American legal history as one component in the larger question of race in American law.... One of the critical features of legal treatment of [non-Black racial minorities - "Other non-Whites" - ] has been the inclusion of a notion of "foreignness" in considering their racial identity and legal status. This previously unexamined dimension of the relationship between race and law helps shed light not only on the [Japanese American internment], but on contemporary debate as well.

"... It is within this dynamic - the evolution of the treatment of Other non-Whites - that the concentration camp cases are best understood.... These cases were crucial steps in the development of the complex links of the social and legal categories of race and alienage. Most important in this development has been the persistence of the view that even American-born non-Whites were somehow "foreign."

Here was a piece that I had been searching for. The Japanese American internment cases could not be explained merely by race or, alternately, by alienage. Acts that could not be justified in the name of race were done in the name of alienage and vice versa. There was overlap and slippage, a legalistic sleight of hand. The racialized identification of Japanese Americans as foreign - regardless of their citizenship - allowed for otherwise unlawful actions to be taken against United States citizens.

I then realized that "foreignness" was also a missing piece in the model minority/yellow peril puzzle. The underlying constant of foreignness allows for the magical right-before-your-eyes transformation of the images of Asian Americans from positive to negative and back to positive again. Each of the images has been painted with the brush of foreignness, and it is this tinting that provides the continuity behind the changing values attributed to them.

These realizations led me wonder what ends were served by the attribution of foreignness to the racialized identity of Asians, and to conclude that it helps reinforce racial, social and economic hierarchies in the United States in two ways: first, by placing Asian Americans as a buffer zone (the "model minority") between those identified as "black" and "white" and, second, by constructing Asian Americans as instant outsiders against whom "real Americans" (black and white) can unite in times of crisis.

This essay describes some key aspects of this process. Part II considers how foreignness evolved in the construction of an Asian racial identity. Part III discusses the role of foreignness in the portrayal of Asians as enemies; and the use of foreignness in maintaining a supply of cheap Asian labor is the focus of Part IV. Ways in which the perception of foreignness has been used to reinforce racial, social and economic hierarchies are examined in Part V. Part VI concludes the essay with a summary of these dynamics.

SYMPOSIUM IN HONOR OF NEIL GOTANDA: Beyond Modernism and Postmodernism: Working Notes Towards an Asian American Legal Scholarship

Anthony S. Chen *

* Graduate Student Instructor and M.A. candidate (expected Fall 1997), Department of Sociology, University of California, Berkeley; B.A. 1994 Rice University. Contrary to the image of the solitary scholar who painstakingly labors at her or his desk by candlelight, writing is an intensely collaborative enterprise. Every author incurs innumerable debts along the way. I would like to thank Troy Duster, Teresa Gowan, Martin Herz, Jim Stockinger, and Lisa Stulberg for their valuable contributions to the manuscript. Special thanks to Robert Chang for his continuous encouragement on this project. Thanks also to the staff at ALJ, especially Evan Franke, for their patient and incisive editorial work. I should also like to express my gratitude and indebtedness to Nancy Chodorow and Jerome Karabel for their judicious guidance and unstinting support over the last three years. Finally, I am profoundly grateful to my undergraduate professors at Rice University - especially Chad Gordon, Elizabeth Long, Angela Valenzuela, and the faculty of the Sociology Department - for being such extraordinary teachers. The strengths of the paper are their strengths and the weakness mine alone.

SUMMARY:

  ... The author argues that if Asian American legal scholarship should not stake itself exclusively on anti-foundationalist poststructuralist epistemology because it places specific political and epistemological limits on the capacity of racialized and minoritized communities to pursue social justice. ... Such a jurisprudence can only be founded if Asian American narratives can be included within it. In order to make room for speaking Asian American experiences into jurisprudential consciousness, Chang rejects the "rational/empirical" mode - which has thus far provided a flawed basis for the inclusion of narratives - in favor of an anti-foundationalist poststructuralism. This latter epistemology offers the greatest promise for building a narrative-oriented Asian American Legal Scholarship ("AALS"). ... The Text and Context of Asian American Legal Scholarship ... B. Towards a Post-Structuralist Asian American Legal Scholarship ... In an effort to formulate an Asian American Legal Scholarship, Chang's argument proceeds in four stages. ... This breadth will subsequently enable us to fashion a poststructuralism that is useful for Asian American Legal Scholarship. ... It privileges the local by denying the possibility of the universal, seeming to ascribe an inherent political content to the former while refusing even to consider the strategic utility of the latter. ...  

COMMENT: Extradition and the Hong Kong Special Administrative Region: Will Hong Kong Remain a Separate and Independent Jurisdiction After 1997?

Erik Alexander Rapoport *

* B.A., University of California, Berkeley, 1989; J.D./M.A., University of California, Berkeley, 1996. This paper is dedicated to Eugenio Menegon. Without his perseverance and patience, this paper would never have been completed. I would also like to thank Professors Bob Berring, Marina Hsieh, and Frederick Wakeman for their support. In addition, I would like to thank my wife Liu Wei and my parents Judith and Stanley Rapoport for their support as well.

SUMMARY:

  ... The reason being that, although there is a proposed U.S.-Hong Kong extradition treaty, there is no U.S.-China extradition treaty making continued U.S.-Hong Kong extradition controversial. ... As long as the State Department makes the determination that the HKSAR is capable of maintaining extradition relations with the U.S., U.S. courts are not likely to block extradition to the HKSAR under a U.S.-HKSAR extradition treaty. ... The U.S.-HKSAR extradition treaty contains a provision that allows the requested party to block the extradition in certain death penalty cases. ... Of course, if the criminal justice system in the HKSAR deteriorated to a point where international fugitives were being sent back to Mainland China or being subject to the death penalty, U.S. courts would have jurisdiction to determine whether the resurrender or death penalty provisions of a U.S.-HKSAR extradition treaty were being violated. ... Assuming a prima facie case has been shown and the crime is covered under the extradition treaty, magistrates and judges will have to find actual violations of treaty provisions in order to block extradition. ...  

TEXT:

Hong Kong plays a key role in U.S. efforts to fight international criminal activities in Southeast Asia, because of its unique geographical and political position. However, as of July 1, 1997, the People's Republic of China formally regained control of Hong Kong, which raises concerns over the extradition of criminal fugitives to and from Hong Kong. The reason being that, although there is a proposed U.S.-Hong Kong extradition treaty, there is no U.S.-China extradition treaty making continued U.S.-Hong Kong extradition controversial. Moreover, the current extradition framework creates tension between the Judicial and Executive branches of the U.S. government. The author argues that the level and extent of Mainland China government interference with Hong Kong will shift the burden of approving extradition from the Judicial to Executive branch. He concludes that continued extradition is dependent on Hong Kong ensuring that the basic rights of criminal defendants are respected and that the continued willingness of the U.S. to extradite fugitives to Hong Kong after 1997 will depend on Hong Kong's integrity as a separate and independent jurisdiction.

Introduction

On July 1, 1997, Hong Kong was returned to the People's Republic of China ("PRC") per agreements worked out between Britain and the PRC. At that point, Hong Kong became the Hong Kong Special Administrative Region ("HKSAR"). Although the HKSAR will lack the sovereignty over its territory typically associated with the definition of statehood, an exception exists for international agreements in the areas of foreign and defense affairs. Thus the HKSAR will be able to enter into international agreements as if it were an independent state. One important area of concern to the United States relates to the extradition of criminal fugitives to and from Hong Kong. Because of Hong Kong's unique geographical and political position, she plays a key role in U.S. efforts to fight international criminal activities in Southeast Asia. If extradition with Hong Kong is restricted after 1997, the ability of the U.S. to fight international crime will be hampered.

The HKSAR is poised to become party to an extradition treaty with the U.S. However, since the HKSAR is under the sovereign control of China, which has no extradition agreements with the U.S., extradition from the U.S. to the HKSAR will be controversial. The U.S. does not have an extradition treaty with the PRC because of the PRC's human rights record, the lack of protections afforded suspects under its criminal justice system, and its claim of extraterritorial jurisdiction over crimes committed by Chinese nationals anywhere in the world. Extradition from the U.S. to the HKSAR will be especially sensitive to PRC governmental interference with the HKSAR government because extradition involves the rights of individual criminal defendants. Extradition cases between the U.S. and the HKSAR thus have the potential of becoming flash points in debates about China's human rights record if Hong Kong's criminal justice system becomes too integrated with the criminal justice system of the PRC.

If the PRC government radically interferes with the HKSAR government after 1997, extradition treaties will be but some of the many international agreements that the HKSAR may not be able to maintain. Since the PRC dissolved Hong Kong's popularly-elected Legislative Counsel on July 1, 1997, having already installed a Beijing-appointed Provisional Legislative Council (PLC) to replace it, HKSAR independence has become extremely tenuous. Radical interference with the HKSAR may cause the U.S. Judicial or Executive Branch to block extradition from the U.S. to the HKSAR. If this happens, the HKSAR may not be willing to extradite suspects from the HKSAR to the U.S. because of the lack of reciprocity. This will restrict the ability of the U.S. to fight international criminal activity in Southeast Asia.

It is well documented that Hong Kong is a central location for international criminal activity. Many of Asia's criminal syndicates are active in Hong Kong. International drug smugglers in Hong Kong have been identified as key organizers and financiers of heroin shipments from the Golden Triangle, as well as being involved in shipping methamphetamine from China to consumers in Asia and the West. Hong Kong-based cartels supply up to eighty percent of the estimated five hundred and fifty pounds of methamphetamine that flood the Philippines each month. For example, in 1993, Canadian authorities estimated that more than seventy-five percent of heroin intercepted in Canada came through Hong Kong. There is also growing evidence that the active kidnapping industry in the Philippines has strong ties to Hong Kong criminal syndicates, which are also engaged in money laundering and auto theft.

With the opening of China to the outside world in the early 1980's, criminal groups known as triads have begun to reemerge in Chinese society. China is reluctant to admit that organized crime exists because this would undermine Communist Party authority and demonstrate that socialist ideals are far from becoming a reality in China. As a result, criminals who flee to the Mainland after committing crimes in Hong Kong have been known to hide out with the help of corrupt officials. In other cases, triad members have even received open support from Chinese officials. Moreover, local officials have a personal interest in demonstrating to the central authorities that crime is not a problem in their county or province. Thus, when a criminal with powerful connections flees from Hong Kong to the Mainland, informal rendition efforts may not be successful, especially if the suspect flees to distant locations on the Mainland where Hong Kong police have not established relationships with local police officials.

The U.S. recently signed a new extradition treaty with Hong Kong, which is awaiting Senate approval. Hong Kong had previously been conducting extradition proceedings under the British Commonwealth Scheme for the Rendition of Fugitive Offenders. Under the British Scheme, Hong Kong had extradition arrangements with ninety-five countries. These treaties are now ineffective because Hong Kong is no longer a part of the British Commonwealth. Hong Kong is now in the process of concluding bilateral extradition treaties with approximately twenty countries in addition to the U.S. After Hong Kong signs an extradition treaty with a foreign state and the Sino-British Joint Liaison Group (JLG) approves it, the treaty must go through a process of localization in the Hong Kong legislature to become law. None of the extradition treaties Hong Kong has signed has completed this process, although they have been approved by the JLG.

This paper provides a framework for considering how PRC government interference with the HKSAR may cause the U.S. Judiciary to block extradition from the U.S. to the HKSAR. In the first section, I discuss the current state of extradition practices between Hong Kong and the U.S. as under the pre-July 1997 agreement. In the second section, I discuss the transfer of Hong Kong back to the PRC in 1997 and Hong Kong's post-1997 legal system. I also discuss extradition relations between: (1) the Mainland government and Hong Kong; and (2) the PRC government and the United States; so as to analyze (3) extradition from the U.S. to the HKSAR in this larger triangular framework. In the third section, I discuss the ability of the United States to maintain extradition relations with Hong Kong after 1997 in light of probable Mainland interference with the HKSAR. Specifically, I focus on the possibility that the Judiciary will block extradition from the U.S. to the HKSAR against the wishes of the Executive Branch.

SPEECH: Keynote Address: "Fairness or Bias?: A Symposium on Racial and Ethnic Composition and Attitudes in the Judiciary"

Justice Ming W. Chin *

* Justice, Supreme Court of California. B.A. University of San Francisco, 1964; J.D. University of San Francisco, 1967. This Speech was delivered on February 21, 1997 at the University of California, Berkeley, as part of the Asian Law Journal's annual symposium. The panelists who participated in the symposium included Judge James Ware of the Federal District Court of Northern California; Judge Ken Kawaichi of the California Superior Court of Alameda County; Diane Yu, general counsel for the California State Bar; and Ned Isokawa, partner at the Oakland law firm of Crosby, Heafey, Roach & May. The panel was moderated by Professor Linda Krieger of Boalt Hall School of Law, University of California, Berkley.

SUMMARY:

  ... I would like to thank Asian Law Journal for its gracious invitation to speak with you today. ... The Committee also held hearings in 1991 and 1992 to gauge public perception about the judicial system and how people of color were treated and affected by perceived biases within the system. ... Asian-Americans hold only 2.9 percent of these positions. ... Of the superior court judges, 2.3 percent are Asian-Americans. ... .Los Angeles County has had one Asian-American on the appellate court. Statewide, four Asian-Americans sit on appellate courts. ... Asian-Americans enjoyed the most dramatic increase of any minority group - in 1994, Asian-Americans accounted for 4.5 percent of the total number of law school graduates, jumping from just 1.5 percent in 1984. ... We must not forget that public perception is important. ... For example, public perception of bias in the judiciary extends not only to the judges, but also to the personnel throughout the legal system. ... The danger is clear from the negative public perception of the courts. ... Last week at the Commonwealth Club of California, I met Dr. Shelby Steele, author of a book called The Content of Their Character. ...