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.

Assessing the Meng Case

By Jerome A. Cohen

It is too early, of course, to adequately evaluate the outcome of the Meng Wanzhou extradition case. The PRC Government has not yet issued any explanation of its release of the two Michaels, and we do not know what will be done about the hapless Schellenberg’s politically-inspired death sentence still pending final review. We do have Hu Xijin’s warning in Global Times that the prosecutions of the two Michaels should alert other countries that they shouldn’t seek to detain Chinese international business personnel even in the course of a conventional extradition proceeding. Ironically, the PRC’s arbitrary detentions of the two Michaels warned the world’s law-abiding business people that they are risking their personal freedom by traveling to China. Moreover, the PRC itself  has been very active, although often frustrated, in seeking to employ extradition and detention of suspects in many countries. A more civilized response to the US effort to extradite Ms. Meng than abusing the two Michaels in ways that have shamed the PRC before the international community might have been, if justified, for it to seek the extradition from a third country of Americans suspected of violating China’s criminal law, such as it is. 

Although the US Government apparently settled the case more leniently than in some of the usual deferred prosecution agreements, these decisions have always involved a broad exercise of prosecutorial discretion, as do similar decisions not to proceed with prosecution of other cases that appear to meet the technical prerequisites to criminal conviction. (Full disclosure, long ago I served briefly as a federal prosecutor in Washington, DC). Yet anyone who reads the DOJ’s summary of the case and the statement of facts accepted by Ms. Meng will see that the DOJ received from her a powerful admission of intentional, continuing deceitful international business misconduct that should be noted by any foreign entity and executives doing business with China. This is also a vivid illustration and concrete explanation of why the USG seeks to punish foreigners – corporate and individual – who seek to use the US financial system while abusing it in violation of the laws that enable that system to be so valuable to the world.

Another aspect worthy of consideration is what the case implies about the independence of the judiciary in Canada. Liberal democracies occasionally experience embarrassing exceptions to their practice of judicial independence of political authority. Yet in those countries whose legal systems generally inspire respect, judicial independence does exist in practice, especially in the national and prominent state or provincial court systems and despite judges’ varied philosophical predispositions in outlook. The Canadian system certainly seems to take judicial independence seriously. Indeed, in the Meng case none of the three governments involved in the dispute seemed eager to allow the matter to be decided, at least in part, by the Canadian courts. The Canadian hearing judge was in a very tight spot. She reportedly conducted the hearings fairly and intelligently, although I personally thought she allowed the proceedings to drag on at too great length, given the consequences for the unfairly detained Michaels. My hope was that, in the absence of a political settlement, she would soon decide to deny extradition on the ground that President Trump had converted an originally legitimate request into a political act that justified denial in accordance with accepted extradition law and practice. That might have been thought by some to be stretching traditional extradition jurisprudence and the USG might have felt obligated to spur the Canadian Government to appeal the decision, which could have made the case drag on for a couple of more years. Yet the Biden administration might instead have gratefully acquiesced in the decision, which would have put the onus on Trump rather than the DOJ. But that would have resulted in no powerful admission of wrongdoing by Ms. Meng.

Let’s see how the PRC spins the immediate release of the two Michaels. It will be difficult to conceal the implicit repudiation of its previous pretense that its legal system had been operating without regard to the Meng case. The PRC’s actions in this case have revealed for all to see that its criminal justice system is cruel and arbitrary in many respects, despite halting legislative and administrative reforms. The US DOJ can now go back to its preoccupation with trying to cure the injustices of America’s superior, yet deeply flawed, system. Canadian justice, which treated Ms. Meng admirably and made available very able defense lawyers, seems to have vindicated Prime Minister Trudeau’s oft-expressed confidence in the judicial system. Yet it too must wrestle with the perennial challenges of racism, poverty and inequalities of various kinds.

"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. 

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.

The Many Forms of Arbitrary Detention in China

By Jerome A. Cohen

Yesterday was International Human Rights Day. As we look back at Beijing’s human rights record this past year, one of the most troubling abuses in China continues to be arbitrary detention (I’ve written about this subject with Yu-Jie Chen, SSRN here).

Rights lawyers are often the target for such abuses. Persisting prominent examples are lawyers WANG Quanzhang and YU Wensheng, who remain in detention. Foreign critics and activists are not spared. YANG Hengjun, for example, a famous Australian-Chinese blogger, has been detained on the charge of espionage since January. Policy experts like Michael Kovrig and business people like Michael Spavor, the two Canadians detained in China after Canada arrested Huawei’s CFO in accordance with the U.S. extradition request, have been in detention for a year. Just to name a few.

The victims often suffer prolonged detention in a non-transparent process. While China’s Criminal Procedure Law provides some legal time limits on holding detained and arrested persons, there are exceptions to these limits that the police and procuracy have the liberty to invoke in practice. For example, the National People’s Congress Standing Committee (NPCSC) can approve unlimited extensions of time for a criminal investigation! What is less clear is whether the NPCSC, when approving extensions, is supposed to issue a public notice to this effect as it does with other actions. Has the NPCSC ever done so?

Another technique for exceeding the prescribed criminal procedure time limits is for the police to restart the clock on the ground that investigation of the suspect has revealed the need to investigate another major crime that the suspect may have committed. My impression is that this has frequently been done in practice but with no systematic reporting of such important decisions to the outside world. Papers are processed within the police bureaucracy, and perhaps the procuracy is informed if it has inquired.

If police officials deign to acknowledge inquiries from a defense lawyer or family member, they might well release this often spurious “new crime” rationale for extending the detention time of a suspect whose case has been delayed for political or other meretricious reasons. But there is no way in practice for such a decision to be effectively challenged. When the case finally comes to trial, the rationale for the delayed detention might often be mentioned in the indictment and would be in the appended police documentation of the case and usually mentioned in the account of procedure rendered in the court’s judgment. Yet these are formalities, not protections.

Of course, it is important to bear in mind that in practice people are often detained in the criminal process in blatant disregard of prescribed limits (Think Gui Minhai, the Swedish national who was kidnapped from Thailand and now disappeared in the arms of Mainland police).

Moreover, with the recent introduction of the “supervision commission” process, suspects can be detained for 6 months before a decision is made about whether to turn the victim over to the formal criminal process or some other sanction.

Finally, there are also other supposedly “non-criminal” detention procedures such as those still existing for drug and prostitution offenders. Others are also detained wholly outside the formal criminal process and even outside the formal police short-term administrative detention process that annually punishes many millions of people for up to 15 days in jail. Of the more than one million Chinese Muslims who have been detained in Xinjiang’s re-education camps, only a minority have been detained under formal criminal procedures.

This is not an exhaustive list. The PRC has mastered many forms of arbitrary detention.