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.