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.