By Jerome A. Cohen
It’s not only “Hong Kong people” whose fate is at stake here. Anyone passing through Hong Kong airport could be detained and sent to China (compare the Huawei Vancouver extradition case). Even people who have been extradited by a third jurisdiction to Hong Kong could be subject to re-extradition to China unless some provision is made in the extradition treaty between Hong Kong and the third jurisdiction to prevent that! This bill would undoubtedly lead those democratic countries that have extradition treaties with Hong Kong to either renegotiate them successfully or terminate them.
No criminal justice systems could be more different in practice than those of China and democratic jurisdictions including Hong Kong. Despite Xi Jinping’s occasionally expressed theoretical aspirations to promote a Chinese court system that will achieve justice in every case, reality is very different in the many cases that, for one reason or other, are regarded as “sensitive” in China.
Actually, Xi keeps reminding the public that the courts are in fact and ought to be under the absolute political control of the Communist Party. The Ministry of Public Security, the Ministry of State Security, the newly-established Supervisory Commissions and many legally unauthorized secret Party, civilian and military units that also detain “suspects” are far more powerful than the courts or even the procuracy (prosecutors) that is supposed to supervise the legality of all government operations.
Some alleged offenders are never brought to trial in China. Think former Party General Secretary Zhao Ziyang, detained without any legal process for the last 16 years of his life!! Many are detained on spurious charges. Think Ai Weiwei, a famous dissident artist who was ostensibly detained on tax charges! How easy it would be for Beijing to conjure up charges that meet the tests of the forthcoming Hong Kong extradition amendments.
Even formal, authorized detention is frequently marked by physical and mental torture that often leads suspects to “confess” on television even before indictment. Suspects and defendants are often denied timely access to any defense counsel or to defense counsel of their choice, even at trial. Trials in sensitive cases are usually a farce, and appeals either prevented or a meaningless exercise. Detention conditions are often execrable, leading some accused to confess in order to end the formal prosecution process so they can be transferred to the generally better conditions in prisons. Human rights lawyers are frequently disbarred, sent to prison or otherwise neutered.
Not just “Hong Kong people” have reason to fear Chinese “justice”!
By Jerome A. Cohen
I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.
Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it.
By Jerome A. Cohen
Officials in Hong Kong are now planning to allow “rendition” (the Hong Kong-Mainland equivalent of international “extradition”) of criminals to China. This would be a major change and a development that concerns Hong Kong’s special human rights protections.
The United States, Canada, the United Kingdom and Australia have not finalized extradition treaties with China largely because of their concerns about the pervasive problems in China’s criminal justice system, including arbitrary detention, torture and other cruel treatment, coerced confessions, political prosecutions, unfair trials and capital punishment, especially for nonviolent crimes. For similar reasons Hong Kong—China’s Special Administrative Region—has not been able to conclude a “rendition” agreement with the PRC Central Government.
Hong Kong’s current plan to finally move towards a full rendition agreement with the Mainland must not violate the human rights protections that it acquired while still a UK colony under the International Covenant on Civil and Political Rights. The PRC promised to honor these protections after the former colony’s return to the Motherland. They include the non-refoulement principle, which requires governments not to expel any person to another territory if this would result in exposing him to the danger of arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment (and other serious violations of human rights, including, notably, expected violations of the right to a fair trial).
My colleague Yu-Jie Chen and I have written an article on the human rights problems in Taiwan’s cross-strait “repatriation” agreement (also similar to an extradition arrangement but, like “rendition”, applicable to relations between governments of different parts of China) with Mainland China (see Yu-Jie Chen & Jerome Cohen, "China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?," Hong Kong Law Journal (2018), SSRN link here). The lessons learned from Taiwan’s experience with the Mainland should be of interest to those who are considering whether Hong Kong should strike a“rendition” deal to send fugitives to suffer the fate of those subjected to Mainland justice. Analogies to the protections provided in conventional international extradition treaties also must be considered.
I’ve been following the intriguing story about the US effort to extradite from Canada Meng Wanzhou, Huawei’s chief financial officer and the daughter of Huawei’s founder. The case raises many Interesting questions, including why the US Government chose Canada, why it chose to initiate the action at this time, what coordination actually occurred within the USG, how did the Canadian government analyze the situation before acting and what actions will the PRC take other than those already reported.
On the coordination on China policy within the US Government, it remains unclear whether this move is part of a well-thought out, overall carrot/stick policy, a move by hardliners trying to torpedo any possible agreement with the PRC or a move by Justice, Homeland Security and State (and Treasury??) simply to pursue an independent track relating to law enforcement despite its impact on the trade negotiations.
There may well have been poor and thoughtless USG coordination in this case, but at least one report indicated that John Bolton knew this was coming (while another report has said no one who attended the Trump-Xi dinner knew before that occasion). One cannot eliminate at this point the suspicion of mischievous interference with the Sino-American effort to resolve the trade dispute.
Canada’s willingness to make the arrest is also notable and must have been the product of extensive negotiations within the Government and with the U.S. Yet whoever did the final calculations on the Canadian side may now regret that decision because of the increasingly severe damage to Ottawa’s relations with Beijing, although Canada has on a number of occasions stood up against the PRC on international law matters.
What the independent Canadian courts are likely to do with the extradition request may be another matter. Without detailed knowledge of the case presented, prediction is always hazardous but it is unlikely that the request will fail, although some able Canadian lawyers may argue that the matter is “political” rather than legal and therefore inappropriate for extradition. I felt confident that bail would be granted with restrictions on Ms. Meng’s activities since bail was granted to Mr. Lai Changxing of China after he illegally fled to Canada to avoid, at least for many years, being prosecuted in China for being allegedly the greatest smuggler in Chinese history!
What I find attractive in the Canadian Huawei case is the attention it has directed not only to the extraterritorial application of criminal law but also to extradition treaties and relevant domestic legislation, procedures and court adjudication as well as related problems of rendition, deportation, repatriation and ad hoc interstate negotiations that increasingly confront China, the U.S. and others. Hong Kong and Taiwan also struggle with these issues in relation to Beijing.
Of course, the USG might have sought Meng’s extradition from China itself, even in the absence of a US-PRC extradition treaty. It is not necessary for two countries to have a bilateral extradition treaty in order to achieve extradition or a similar result such as through deportation. Informal negotiations often accomplish extradition or the equivalent goal. The US does have an extradition treaty with Hong Kong, where Ms. Meng undoubtedly spends a lot of time, but Beijing would plainly have ordered the Hong Kong Government to deny cooperation, as it did not long ago in a less important case, for the first time in the twenty-year history of the US-HK agreement.
It is laughable that Global Times should call this lawful, official international process “hooliganism”. The PRC is notorious for real officially-authorized “hooliganism”. And now, in its retaliation against Canadian nationals in China, the PRC is again demonstrating its zest for abusing criminal justice!