Meng Wanzhou’s case, Beijing’s response and two legal scandals highlight the ‘rule of law’, as preached – and practised – in Canada and China

By Jerome A. Cohen

I have just published an op-ed on "Meng Wanzhou’s case, Beijing’s response and two legal scandals highlight the ‘rule of law’, as preached – and practised – in Canada and China" (link here). The relevant cases are excellent windows for testing Canada's rule of law as well as the Chinese "justice".   

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. 

What’s going on with Huawei, China, Canada and the US?

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!