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.