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.

Arbitrary Detention, Canada and the National Security Law for Hong Kong

By Jerome A. Cohen

This recent article details the disgraceful PRC arbitrary detention of the two Michaels and the understandable strains this has placed on domestic Canadian politics as well as Ottawa’s relations with China. In a recent letter, a number of prominent Canadians urged the prime minister to end Meng Wanzhou’s extradition process in exchange for Michael Kovrig’s and Michael Spavor’s release. Despite the emotional pressure that all of us feel in sympathy with the tragic, unfair plight of the Michaels, Prime Minister Trudeau’s decision not to yield to hostage diplomacy is undoubtedly the right one from the viewpoint of Canadian law, values and government, as well as Canada’s international relations generally and its continuing contributions to public international law. An equally prominent group of Canadians recognized this in an answering second letter.

The right course for the authors of both letters and for all who want to end hostage diplomacy by powerful dictatorial regimes is to join forces and press all democratic governments to denounce and excoriate the PRC’s gross misconduct in every available forum. The current public effort of the UN Human Rights Special Procedures experts to condemn China’s forthcoming National Security Law for Hong Kong is only one excellent precedent to emulate. Although Beijing’s veto precludes UN Security Council action, and Beijing’s influence over the UN General Assembly and even the UN Human Rights Council still staves off significant actions by those institutions, the impressive large group of politically independent UN human rights experts who have courageously signed this just-released statement have taken a very important step that deserves the fullest world appreciation. 

Indeed, there is a link between these two outrageous situations. The fate of the two Michaels demonstrates how arbitrarily the PRC Party-controlled apparatus can be manipulated in the name of “national security.” Kovrig may indeed be deemed the unwitting vanguard of Hong Kong-based political experts to be sacrificed in the PRC in the name of China’s “national security.”

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.

A Spanish extradition case that sheds light on Canada's forthcoming Huawei decision

By Jerome A. Cohen

A very good report by Raphael Minder in today’s NY Times about a Madrid court decision rejecting the U.S. request to extradite the former Venezuelan intelligence chief, politician and alleged drug runner Hugo Carvajal. The defense claimed that the U.S. request was made for a spurious purpose, using drugs as an excuse to get its hands on the suspect for political purposes involving U.S. policy towards Venezuela.

Minder correctly points out the relevance of this international precedent to the Meng Wanzhou court battle coming up in Vancouver. Meng’s lawyers must be very happy. Of course, the United States may appeal the Madrid decision. The amount of time that a suspect subject to extradition proceedings is restrained is a disturbing aspect of the process. Carvajal was locked up for six months pending this initial decision. Fortunately, the judge has released him from prison pending appeal but subject to remaining in Spain and biweekly reporting to the government. Carvajal, who sounds like a serious drug offender from the U.S. charges, has a great Reuters family photo in the Times that would support a political campaign back home.

Although Ms. Meng has been quite free and comfortable on high bail from the start of the Vancouver legal process, she has not been free to leave Canada to pursue her business and life. She must work via the Internet and other communications facilities, which presumably are monitored. The Canadian process is moving very deliberately and the final extradition decision remains a long way off. If extradited, she faces another long criminal process in the United States unless a plea agreement is negotiated, perhaps as part of a broader Huawei settlement or an even broader US-PRC trade agreement. But don’t hold your breath!

Why people subject to the possibility of US extradition continue to take the chance of passing through countries that have extradition arrangements with the United States remains a mystery to me, even though avoiding all such countries is a significant inhibition on their travels.

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!