Even by PRC standards, Xiao’s mistreatment is extraordinary, and any pretense to now resort to a belated “trial” in an effort to legitimize what has been done to him makes a farce of the Chinese legal system. Xiao’s brazen kidnapping from his Hong Kong hotel home five and a half years ago was a warning to all that Hong Kong was no longer a safe haven from the reach of Beijing’s secret police. Since then, at least until recently, he has been held in military captivity without any pretext of legal authority. Canada has proved helpless in assisting this Canadian citizen and his family, and the PRC has shamelessly violated the Sino-Canadian consular agreement (Not for the first time–recall the recent cases of the “two Michaels”). It seems evident that Canadian consular officials were banned from attending today’s “trial” even though their government, in its embarrassment, has not admitted this latest PRC violation. We do not even know what Xiao has been charged with. For the Canadian Government to withhold from the public what it knows on the ground that it is protecting Xiao’s privacy is ludicrous.
Extradition and judicial independence–how are countries addressing these issues?
By Jerome A. Cohen
This article on the conversation between Wenran Jiang and former U.S. ambassador Chas Freeman makes apparent the need for a Canadian legislative inquiry into the Article 4 exemption issue. In the interview, they discuss whether Ottawa should have arrested Meng in the first place. Should Canada have released Meng after Trump openly politicized the case? Did Canada’s Executive in effect remove the political question from the Vancouver court’s jurisdiction? How was the court expected to deal with the question? What arguments did the respective counsel make regarding this question?
I had long advocated that the court resolve the case by denying extradition on the ground that Trump had rendered it political. Were China and the US each worried about what the court would decide? Was Canada leaving the hot potato to the court, at least in the first instance, to the prejudice of the two Michaels? What is the nature of the relationship between the courts and the government in Canada regarding extradition? This must be a common problem. New Zealand has been struggling with it in the ongoing PRC request to extradite a Korean national named Kim who is charged with murder in Shanghai. And, of course, there is the unresolved effort of Taiwan to extradite the Hong Kong citizen accused of murdering his HK fiancée in Taiwan, which raises other mysterious political issues. What a great subject for comparative and international analysis!
Additionally, the struggle for “judicial independence” is an ongoing challenge in all countries I know something about, but it is varied and exists to many degrees. There is surely no equivalence, for example, between the situations in the United States and in China. The systemic, regime-imposed, incessantly articulated Communist Party control of the Chinese judiciary renders it immensely different from the American situation where there is a continuing struggle over the extent to which courts in fact comply with constitutional norms and societal expectations. Since the US has a federal system, we must take account of the differences in this respect that exist between the federal courts, which generally have a higher reputation, and at least some state courts, especially those that are subject to direct election. I just voted for some local New York City judges and noted that the candidates nominated by the Democratic Party’s primary election are running unopposed in the general election. In some parts of northern NY State, I believe Republican nomination assures election.
Corruption is seldom encountered in our federal courts. Lately there has been a minor scandal initiated over the revelation that some federal judges fail to recuse themselves from cases involving companies in which they own stock. Media publicity is expected to put an end to this dubious practice. Political bias, of course, is a more serious and continuously debated public problem, as controversy over Trump’s US Supreme Court appointments and Senator McConnell’s refusal to consider Obama’s last nomination highlighted. There is daily, useful analysis and argument in the media over this problem, which is raised by the flow of cases at all levels of the federal and state systems.
In China, the overt political command of the judicial system often obscures other perhaps more widespread problems of independent judicial conduct, including massive corruption, strong local protectionism and, above all, personal biases deriving from individual relationships (guanxi) that distort court decisions.
I would love to know what pressures the Canadian judge in the recent Meng extradition case felt and how she would have dealt with that very hot potato. Apparently neither China nor the US wanted to gamble on the outcome.
The PRC's Trial of Michael Spavor
By Jerome A. Cohen
I have been trying to follow PRC justice for over sixty years but am genuinely puzzled by the brief report I have seen on today’s “trial”. After a closed hearing of merely two-hours in Dandong, the court released a statement saying that the judgment would be announced at a later date. What is the PRC up to? Do its leaders realize what a self-inflicted wound this amounts to?
After arbitrarily holding Spavor and Michael Kovrig incommunicado for over two years as diplomatic hostages, the PRC brings them to trial at precisely the time PRC and US leaders are meeting nearby amid world publicity, and the PRC is increasingly being accused of crimes against humanity and genocide in Xinjiang and the violation of the Sino-British Joint Declaration on Hong Kong. Nevertheless, the PRC conducts the Spavor trial in circumstances that are sure to subject the PRC to ridicule by all democratic nations.
A two-hour trial with important international implications conducted in a total news blackout? No foreign journalists, diplomats or other outsiders permitted to watch? The Canadian consul excluded from the hearing in violation of the PRC-Canada Consular Agreement? Were there defense lawyers? An indictment? Witnesses? For the defense? Did Spavor have an interpreter? An opportunity to speak? To question witnesses? How did he plead? What is his mental and physical condition after his long pre-trial ordeal? When will the verdict be announced and the sentence? Does this depend on the outcome of the endless Canadian extradition case? Will the accused be allowed to appeal or possibly encouraged to do so in order to extend the proceedings until the extradition of Ms. Meng is decided?
Is the handling of this case designed to demonstrate that China has stood up to the world judicially in a blatant exercise of a newly empowered “sovereignty” that rejects conventional contemporary standards? What can its leaders be thinking? Are we back to the days of Chinese-Western conflicts over Imperial China’s criminal prosecutions of Western sailors at the end of the 18th century and early 19th century?
"Trial-Centered Justice" in PRC Political Prosecutions
By Jerome A. Cohen
It is not surprising that, after more than two years of holding the two Michaels in incommunicado detention, the PRC, under increasing international pressures about these cases, has decided to bring the accused to trial.
Yet there is more to the question of timing of the trials. Ms. Meng’s Canadian extradition case, to which the prosecutions of the Michaels are linked, is finally moving toward a preliminary outcome. Moreover, behind the scenes, there have been some as yet unsuccessful attempts to negotiate a trilateral compromise among the US, the PRC and Canada that could terminate this excruciating extradition/criminal justice/hostage diplomacy dilemma. And it is unclear what policies the US and the PRC will want to pursue toward each other following today’s first meeting of the highest foreign policy officials of the two superpowers in Anchorage.
Concluding the trials of the two Michaels now will maximize the PRC’s flexibility for responding to the needs of the current situation, whatever is deemed to be the desirable reaction.
Contrary to what some observers have recently opined, the forthcoming conviction and sentencing of the two Michaels, rather than terminating prospects for their release, can, in light of practice, be interpreted as possibly preparing the grounds for their release.
The PRC is more likely to release them after vindicating its judicial sovereignty by convicting them than by interrupting the judicial process prior to conviction. The defendants may receive harsh sentences, such as ten years in prison, but they will also be sentenced to deportation to be carried out at the conclusion of their imprisonment. This will not preclude the possibility of prematurely terminating their prison sentences and carrying out deportation soon after sentencing has been imposed, for example on the ground of medical necessity due to serious health problems.
I have been involved in extracting prisoners from China via this technique. In one case, involving a Chinese permanent resident of the United States, Ms. GAO Zhan, there was a deal made between the US and the PRC before trial that within days of her sentencing to heavy punishment she would be released on medical grounds. After an anxious 48-hour wait, she was deported despite having also been sentenced to ten years behind bars.
Also worth noting is the issue of whether a Canadian consular official will be allowed to attend the trials even if they are declared to be closed to the public because state secrets are said to be involved. The bilateral PRC-Canada Consular Agreement clearly authorizes such attendance in all prosecutions. This agreement is even clearer in this respect than the PRC-Australia Consular Agreement that the PRC failed to honor in the Stern Hu-Rio Tinto case of many years ago. I published an op-ed together with Yu-jie Chen criticizing the PRC’s conduct in that case regarding this issue, and the PRC never sought to repudiate our condemnation.
Also of great interest in the cases of the Michaels will be their legal representation. Will they be defended by Chinese counsel of their own choice? Will counsel have been given meaningful opportunities to prepare their defenses? To present their cases, cross-examine prosecution witnesses, introduce their own witnesses and offer concluding arguments?
At least we learned something from Bo Xilai’s public trial, however truncated it was. I doubt that the Communist Party will stage a similar show for these cases.
The Detained Canadians Need More Than Christmas Cards
By Jerome A. Cohen
I’m sure that the detained Canadians, Michael Kovrig and Michael Spavor, will be bolstered by the moral support they will feel from any holiday greetings and sympathy they might receive. But I would like now to focus on trying to think of practical ways of freeing them.
There has been no word in the past few days about reported meetings between US authorities and Ms. Meng of Huawei’s lawyers. Supposedly the US extradition proceedings in Vancouver can be dropped in favor of “deferred prosecution” if Ms. Meng admits to the offense charged. She apparently is reluctant to admit to the charge, leading to further stalemate.
If this is indeed the situation, it occurred to me that the case might be resolved by President Trump granting her a pardon. This would require no admission or agreement on her part. Pardons are political acts in the US, Trump has made outrageous use of them, with more to come, and this case, implicitly involving as it does the PRC’s hostage diplomacy re Canada as well as the American initiation of the prosecution itself, is plainly political as well as legal.
Ms. Meng might be reluctant to be regarded as in a class with Trump’s felonious friends, but Huawei may welcome the opportunity to end the case, as might the PRC. Of course, any pardon would have to be preceded by an agreement between Canada and the PRC, as well as the US, that the pardon would be followed, after a brief “decent interval”, by the release and deportation of the two Michaels. Probably, to vindicate the appearance of justice in the PRC, each Michael would be required to plead guilty to what indeed might be termed a Trumped-up charge.
Complicated? Yes, but not unrealistic. I have taken part in negotiations somewhat analogous that led up to the release by the PRC of alleged offenders accused of serious crimes. The notorious Ms. Gao Zhan, for example, who turned out to be what might be called a “triple agent”, was, as a result of a quiet agreement between the US and the PRC, sentenced to a long prison term by a PRC court, but released within 48 hours on ostensible medical grounds.
I briefly floated this idea in an interview with David Wertime in Politico the other day, but thus far there has been no reaction. Is it zany? Can we come up with other ways to free two unfairly treated captives? Christmas cards won’t do the trick.
Should the US Take China's Threats of Arbitrary Detentions Seriously?
By Jerome A. Cohen
This recent Wall Street Journal article reports that Chinese officials have threatened to detain U.S. citizens in response to the Justice Department’s prosecution of Chinese military-affiliated scholars. The case of the two Canadian Michaels shows that this may not be an empty threat. Both men were swiftly detained following the initiation of extradition proceedings against Huawei’s Ms. Meng in Vancouver. It will be two years in December and there is no prospect of their release since the Canadian case moves forward at a snail’s pace. So, we know that the PRC may well mean business in threatening to detain Americans in retaliation for prosecutions in the US.
Yet the PRC has suffered a huge amount of international condemnation for this blatant example of “hostage diplomacy,” and an obvious effort to extend this practice to a number of Americans will outrage and disgust the liberal democratic world while perhaps pleasing many other nations in the UN that support or fail to criticize the PRC’s human rights violations.
The PRC appears to recognize the grave consequences that would result from a blatant resort to detentions as threatened, which may be why several months have passed with no obvious retaliatory detentions. Perhaps, as with so many other aspects of Sino-American relations, Beijing is awaiting the outcome of the American election. If it should follow through on these threats, it would be providing an enormous stimulus to significant further “decoupling.” Can that be in Beijing’s interest? There must be intense debate at the top.
The Impact of HK's NSL on Canada-China Relations
By Jerome A. Cohen
Yesterday the Canadian Parliament’s Special Committee on Canada-China relations held a three-hour session regarding the new Hong Kong National Security Law (NSL). I joined several others, including Michael Davis, Samuel Chu and Annie Boyajian, to discuss the impact that the NSL will have on foreign citizens in the China mainland, Hong Kong, and Canada. I urged the Canadian government to do more to protect Chinese-Canadians in light of the increased risk of arbitrary detention and other acts of harassment and intimidation. There was also brief reference to extradition problems. You can watch the recording here and read the news report here.
More About Canada, China, and Arbitrary Detention
By Jerome A. Cohen
As I have written here before, in the Gao Zhan espionage case in 2001, the US State Dept and the PRC MOFA quietly agreed that she would be released on ostensible medical grounds but only after first being convicted and sentenced to 10 years in prison. Her trial followed shortly afterward, and she was released 48 hours after sentencing. Because of the added Meng extradition element in the current Canadian dispute with China, the Gao Zhan case is not analogous to that of the two Michaels but its resolution is relevant. Although Gao was not yet an American citizen, she was on the cusp, and she had tremendous public support from the US academic community because she was a US-trained and US-based scholar of Chinese society engaged in fieldwork in China. Her detention and prosecution seemed to threaten all serious foreign scholars working in China. Only later was it discovered that she had been secretly working for Taiwan intelligence - as well as also earning a living by illegally exporting to the PRC American high-tech electronic equipment that was banned from export under the US Trading with the Enemy Act. This was no simple multitasking but “walking on two legs” following Mao’s famous maxim.
Although I believe, with Trudeau, that Canada should not yield to PRC hostage diplomacy, if it should do so eventually, it should certainly not do so on the basis of the PRC first convicting the two Michaels of the crime charged. They could instead be released sequentially on one medical excuse or other prior to trial. The PRC might try to negotiate their convictions for respective minor offenses as a face-saving measure in a pathetic attempt to justify their long, barbaric detentions. Years ago, during the Jiang Zemin era, when at trial a courageous defense lawyer demonstrated that the PRC could not plausibly convict a Chinese employee of the NYTimes Beijing Bureau of leaking state secrets to a foreign organization, in order to justify the years of his pre-trial detention the Beijing High Court convicted him of a much lesser, unrelated offense that had arisen from what was really more of a civil dispute than a criminal matter. 政治掛帥, zhengzhi guashuai! Politics is always in command of the Chinese courts, as Xi Jinping and his minions repeatedly advocate.
Arbitrary Detention, Canada and the National Security Law for Hong Kong
By Jerome A. Cohen
This recent article details the disgraceful PRC arbitrary detention of the two Michaels and the understandable strains this has placed on domestic Canadian politics as well as Ottawa’s relations with China. In a recent letter, a number of prominent Canadians urged the prime minister to end Meng Wanzhou’s extradition process in exchange for Michael Kovrig’s and Michael Spavor’s release. Despite the emotional pressure that all of us feel in sympathy with the tragic, unfair plight of the Michaels, Prime Minister Trudeau’s decision not to yield to hostage diplomacy is undoubtedly the right one from the viewpoint of Canadian law, values and government, as well as Canada’s international relations generally and its continuing contributions to public international law. An equally prominent group of Canadians recognized this in an answering second letter.
The right course for the authors of both letters and for all who want to end hostage diplomacy by powerful dictatorial regimes is to join forces and press all democratic governments to denounce and excoriate the PRC’s gross misconduct in every available forum. The current public effort of the UN Human Rights Special Procedures experts to condemn China’s forthcoming National Security Law for Hong Kong is only one excellent precedent to emulate. Although Beijing’s veto precludes UN Security Council action, and Beijing’s influence over the UN General Assembly and even the UN Human Rights Council still staves off significant actions by those institutions, the impressive large group of politically independent UN human rights experts who have courageously signed this just-released statement have taken a very important step that deserves the fullest world appreciation.
Indeed, there is a link between these two outrageous situations. The fate of the two Michaels demonstrates how arbitrarily the PRC Party-controlled apparatus can be manipulated in the name of “national security.” Kovrig may indeed be deemed the unwitting vanguard of Hong Kong-based political experts to be sacrificed in the PRC in the name of China’s “national security.”
How Will the Prosecutions Against Michael Kovrig and Michael Spavor Unfold?
By Jerome A. Cohen
Michael Spavor (L) and Michael Kovrig
After 557 consecutive days of incommunicado interrogation and incarceration, China has finally indicted two Canadians, Michael Kovrig and Michael Spavor, with varieties of espionage. The Globe and Mail has a good article on these terrible cases. The SCMP has also published an article on the charges. Both articles raise more questions than the PRC is prepared to answer, and these questions relate to today’s focus on the content of the forthcoming National Security Law for Hong Kong, especially the hot issue of foreign and external “collusion.”
One basic question is the extent to which the cases of the “two Michaels” are linked. Last year, China’s powerful Central Party Political-Legal Commission claimed that Spavor, the businessman, had provided intelligence to Kovrig, the International Crisis Group researcher. That might well be plausible since Kovrig would obviously want to be in contact with all sorts of people, particularly ones who knew a lot about North Korea and its relations with China. Yet their relationship does not appear to be an important part of either case, so far as we can tell. The two cases do not appear to be legally linked at this point. They are not being prosecuted together, the charges seem to be somewhat distinct so far as news accounts discern, and they are not even being prosecuted in the same city. Intriguingly, Spovar may be charged with sending secrets to the DPRK as well as Canada, which may be why his case is now based near the Korean border.
Yet it is obvious from the circumstances of their common connection to Sino-Canadian relations and the US attempt to extradite from Canada Huawei’s CFO, Ms. Meng, as well as from some PRC diplomatic statements and publicity, that the cases are politically linked to each other and to the extradition case. This is not simply the usual PRC practice of illegal arbitrary detention that violates both Chinese and international law but it is also a more extraordinary example of international “hostage diplomacy.”
Of course, the two cases are both being legally processed in a similarly unfair fashion. Now that indictments have been handed down, the defendants are likely to finally have Party-approved lawyers appointed for them, not chosen by them. Until now, they reportedly have been denied the right to see any lawyer. Until the coronavirus pandemic, they did have monthly very brief visits from a Canadian consular official, but these have inevitably been of limited assistance since PRC rules ridiculously do not allow any discussion of the case that is the cause of the visit!
I strongly disagree with the statement by Gordon Houlden, a former Canadian diplomat quoted in the Globe and Mail article, to the effect that indictment makes it more difficult, but not impossible, for the Chinese leadership to intervene in the judicial process. In defense of the reputations of both the Party and the courts, I can confirm, from many personal experiences assisting in similar human rights cases in China, that the power of the Party over the courts never diminishes, even in the final stages of death penalty cases, as indeed the current Schellenberg case illustrates. In the infamous Gao Zhan case, for another example, the US State Department and the PRC Foreign Ministry quietly agreed that, immediately after her sentence to 10 years in prison, she would be released, allegedly for medical treatment in the US. Her husband and I waited an anxious 48 hours before the deal was carried out.
Schellenberg’s Chinese lawyer, Zhang Dongshuo, also quoted by the Globe and Mail, offers a more accurate version of how the two Canadian cases will secretly unfold, predicting that it “won’t proceed openly, there will be no observers and the verdict and case information won’t be made public.” Actually the verdict, in the sense of the court’s sentence, will very likely be made public, but the court’s opinion will be withheld, in order to deny observers insight into the judicial process and the facts. The future timelines of the cases and the fates of the two ill-fated hostages are still incredibly uncertain. Evidently, the current PRC leadership has no shame when it comes to human rights and international law.
Thoughts on Meng Wanzhou’s extradition case and Chinese “justice”
By Jerome A. Cohen
The Canadian court has at last decided one important issue and will continue to hear others in the extradition case of Huawei’s Ms. Meng Wanzhou. The Canadian proceedings will go on for a long time. The trial court still has to consider several technical extradition questions. Then the appeal process will begin if the defense loses on those issues too, and there is also a serious issue about how long related Canadian government administrative measures will take, which will be a political football.
Despite continuing to live in the lap of Vancouver luxury, Ms. Meng ‘s business and personal life are undoubtedly significantly restricted, even though contemporary communications help to moderate these restrictions. But the real concern is that three Canadians (Michael Kovrig, Michael Spavor and Robert Lloyd Schellenberg) detained in harsh incommunicado conditions in China continue to be held as hostages to Ms. Meng’s legal fate. They must not be forgotten, especially the two who were arbitrarily detained following the commencement of the extradition proceedings.
In passing, it is also useful to recall that the PRC, when it can, does not hesitate to resort to extradition against persons it claims have violated PRC criminal law. Many countries, however, still refuse to make extradition treaties with the PRC authorizing such proceedings because of their fear of PRC “justice”. That’s what last year’s explosive Hong Kong extradition struggle was all about. Even the Chinese citizens of the SAR were afraid to be sent to their own country’s national law enforcement. Today’s sequel struggle is occurring because the PRC is about to take its law enforcement to HK!
It’s also helpful to note that the charges against Meng Wanzhou allege types of fraud and lying. Chinese business law generally bans such misconduct, as do American law and Canadian law. Practice, of course, is another thing, which is why such misconduct is criminalized.
If we had perfect knowledge of actual practice in various countries, we might be able to determine whether there is more fraud etc practiced by PRC companies than others. This is at the root of the current USG effort to delist PRC companies from American stock exchanges because the PRC does not allow US regulators to inspect the books of PRC companies listed on American exchanges, as other countries do. No country’s companies should be permitted to trade shares in the United States unless their books are subject to inspection by the US Public Company Accounting Oversight Board. This is essential to protect investors and institutional integrity.
A Spanish extradition case that sheds light on Canada's forthcoming Huawei decision
By Jerome A. Cohen
A very good report by Raphael Minder in today’s NY Times about a Madrid court decision rejecting the U.S. request to extradite the former Venezuelan intelligence chief, politician and alleged drug runner Hugo Carvajal. The defense claimed that the U.S. request was made for a spurious purpose, using drugs as an excuse to get its hands on the suspect for political purposes involving U.S. policy towards Venezuela.
Minder correctly points out the relevance of this international precedent to the Meng Wanzhou court battle coming up in Vancouver. Meng’s lawyers must be very happy. Of course, the United States may appeal the Madrid decision. The amount of time that a suspect subject to extradition proceedings is restrained is a disturbing aspect of the process. Carvajal was locked up for six months pending this initial decision. Fortunately, the judge has released him from prison pending appeal but subject to remaining in Spain and biweekly reporting to the government. Carvajal, who sounds like a serious drug offender from the U.S. charges, has a great Reuters family photo in the Times that would support a political campaign back home.
Although Ms. Meng has been quite free and comfortable on high bail from the start of the Vancouver legal process, she has not been free to leave Canada to pursue her business and life. She must work via the Internet and other communications facilities, which presumably are monitored. The Canadian process is moving very deliberately and the final extradition decision remains a long way off. If extradited, she faces another long criminal process in the United States unless a plea agreement is negotiated, perhaps as part of a broader Huawei settlement or an even broader US-PRC trade agreement. But don’t hold your breath!
Why people subject to the possibility of US extradition continue to take the chance of passing through countries that have extradition arrangements with the United States remains a mystery to me, even though avoiding all such countries is a significant inhibition on their travels.
Canada, China’s Schellenberg’s retrial and Beijing’s calculating maneuvers
By Jerome A. Cohen
On December 29 a Chinese appellate court ordered a retrial in the drug-smuggling case of a Canadian citizen named Schellenberg on the ground that the trial court’s sentence of 15 years of imprisonment was too light.
This is a clever move on the part of the PRC Government. Ostensibly the case has no relation to the Canadian extradition arrest of the chief financial officer,Meng Wanzhou, of the major Chinese technology company Huawei. Yet the court’s action adds significantly to the already great pressure on Canada brought to bear by the PRC’s recent arrest, detention and investigation of two other Canadian nationals for unnamed supposed national security crimes, leaving it open to the PRC to impose the death penalty or the death penalty with a two-year suspension or life imprisonment on Schellenberg at any time that might suit Beijing over the next few months or even years. Absent strong international protest against this obvious further PRC effort to distort its own justice system for political ends, I think there will be no final sentence in the Schellenberg case until the extradition case is resolved.
This drug prosecution was a weird, political case even before the Canadian extradition issue arose, taking the trial court over 32 months to impose sentence after the trial hearing. This usually only happens when there is immense behind the scenes lobbying over the inadequacy of the evidence and/or the diplomatic pressure brought by the foreigner’s government.
That the appellate court’s action in the Schellenberg case, which is unusual in itself, is related to the Canadian case is confirmed by the Chinese propaganda agency’s surprise invitation for some foreign media to attend and publicize the appellate court hearing. That certainly wasn’t done when the case was first tried in 2016 or when the defendant was finally sentenced in November this year, before the Canadian extradition was initiated.