By Jerome A. Cohen
Here is Don Clarke’s excellent analysis of the major New Zealand decision that I called attention to the other day. Don’s essay clarifies several aspects of the inevitably hasty NY Times report that I discussed. Don’s essay should be read together with Michael Caster’s op-ed in Stuff, which also focuses on the extent to which other states can trust the assurances of the PRC in extradition, deportation and other related human rights situations. I just gave a talk on these issues to the American Foreign Lawyers Association in New York and will post the recording as soon as received, so I will only make some brief comments now. I also hope to write something more substantial.
At 150 pages, I would agree that this is probably the most thorough examination of the Chinese legal system that any foreign judicial opinion has discussed. It is painfully meticulous and also useful in presenting the issues as well as much relevant information about international human rights standards. Yet the Court’s opinion is also painfully naïve about the realities of PRC justice, and I would not characterize it as an “unquestionably thorough examination of the Chinese judicial system”.
Although, as Don points out, the Court spends a great deal of time pondering whether adoption of the PRC trial judges’ recommended decision by their court’s judicial committee composed of court administrators, which did not take part in the trial, should be deemed a denial of a fair trial, the Court fails to analyze the Communist Party’s various controls over the “judicial independence” required by the relevant standard embodied in the International Covenant on Civil and Political Rights (ICCPR). It delicately acknowledges that there may be political influences on the judicial committee. Yet it makes no reference to not only the influence of higher courts transmitting Communist Party instructions but also the instructions of the relatively new government “supervisory commissions” that front for the Part’s discipline and inspection commissions and are more powerful than the courts. Moreover, nothing is said about direct orders to the court from the local Party institutions concerned with “justice,” including the Party Political-Legal Committee and a newer organization that “comprehensively” surveys the situation.
The Court’s treatment of the plight of Chinese criminal defense lawyers and their inability to provide effective representation is also alarmingly incomplete and pathetic.
The issue of PRC assurances to foreign governments in this kind of case is crucial. As Don Clarke and Michael Caster have emphasized, it is very difficult at this point, in light of over a decade of recent experiences, to credit most PRC assurances. Over twenty years ago, in Canada’s Lai Changxing case, I was willing to credit the PRC assurance that he would not be executed. Indeed, in the New Zealand case today, no one challenges the assurance that Mr. Kim will not be executed. In 1999, I was also willing, in the unique circumstances of Lai’s case, to say that it was unlikely that the PRC would dishonor its pledge not to subject the accused to torture before conviction, although I could not guarantee his protection while serving a life sentence. But I was not asked about the fair trial question. Today, as Don and Michael have indicated, we have had so many additional unfortunate experiences with PRC treaty and other formal assurances that, apart from the death penalty question, I can put no faith in such assurances. This began when, as Yu-jie Chen and I discussed in reporting on the Australian national Stern Hu’s criminal conviction, the PRC threw aside both its consular treaty and its own national legislation with the Foreign Ministry’s airy assertion that “Nothing can interfere with China’s exercise of judicial sovereignty”. Apparently not even commitments made by the PRC in the exercise of that sovereignty!!