New Zealand’s ‘Painfully Naïve’ Response To China’s Extradition Request

CommentaryThe acceptance, by members of the New Zealand judicial and political elites of China’s promises to conduct a fair trial is astounding and alarming. In a three to two decision, the Supreme Court of New Zealand ruled on June 4, 2021, that a man accused of murdering a young bargirl in Shanghai in December 2009 could potentially be surrendered to China. But the Supreme Court adjourned the appeal to enable the minister of justice to obtain diplomatic assurances that the accused would receive a fair trial. Consequently, on April 13, 2022, the Supreme Court, in a landmark ruling, decided that New Zealand could extradite a resident to face trial in China. The accused, Kyung Yup Kim, born in South Korea, is a permanent resident of New Zealand. In 2021, the Supreme Court ruled that he could be surrendered to China under the Extradition Act 1999, according to which the minister of justice “must determine in accordance with this section whether the person is to be surrendered” if the court issues a warrant for the detention of that person. The Court relied on assurances given by the Chinese Communist Party (CCP) that the accused would not be tortured and would receive a fair trial. Of course, there are subtle means of torturing people because the notion of “torture” itself is vague and indeterminate. One would have expected that the abominable human rights record of the CCP would have excluded even the acceptance of diplomatic assurances that, in Kim’s case, the basic principles of criminal justice would be respected. This is because an objective consideration of China’s system of criminal justice suggests, and common sense confirms, that any assurances cannot be relied upon. Jerome A. Cohen, in an excellent review of Kim’s case, published in June 2021 in The Diplomat, notes that the Court’s opinion is easily the most comprehensive foreign review of China’s criminal justice system. But he also points out that the decision is “painfully naïve” because the Court takes at face value the promises made by the Chinese authorities. As such, the Supreme Court failed to comprehend the brutality of the Chinese regime, as evidenced by its long and endemic history of human rights violations, stretching back to 1949. Communist Party cadres hang a placard on the neck of a Chinese man. The words on the placard states the man’s name and accuse him of being a member of the “black class.” (Public Domain) These violations include the government-induced famine of the Great Leap Forward, the Cultural Revolution, China’s organ harvest industry programme, discrimination of the Uyghurs, suppression of democratic institutions, detention without trial, the pernicious influence of the CCP in the criminal process, and the very limited support that lawyers for the accused are able, or allowed, to render their accused clients. The Court’s acceptance of the Chinese promises is analogous to allowing the fox in the hen house because the fox has promised not to harm the hens. Cohen writes that “China has increasingly tried to force certain foreigners by a variety of means, to re-enter Chinese territory for criminal prosecution or even lawless and indefinite incommunicado confinement.” The Chinese regime’s suppression of the “one country, two systems” arrangement for Hong Kong, brutally facilitated by the adoption of its new national security law of July 2020, now allows for the rendition of residents, including foreigners, to China. The 2021 judgement was described as “probably the most extended foreign judicial discussion of the Chinese legal system ever conducted.” Yet, “the opinion is painfully naïve about the realities of criminal justice in China and far too limited in its examination of China’s judicial system.” Even a perfunctory review of China’s criminal justice system reveals that it distorts the rule of law. In fact, it is a convenient instrument in perpetuating and strengthening the power of the CCP. In the field of criminal justice, the rule of law, at a minimum, requires a trial before an independent and impartial tribunal, allowance of legal representation, and the presumption of innocence; none of these is even remotely guaranteed in China. Indeed, over 99 percent of criminal cases result in a conviction. At issue is the question of whether Kim, if extradited to China, will receive a “fair trial” that meets the requirements of the International Covenant on Civil and Political Rights, which was signed by China but never ratified. Article 14 of the Covenant stipulates that an accused “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Australian Ambassador to China Graham Fletcher (L) is not allowed entry by court officials and police as he tries to enter the trial of Chinese Australian journalist Cheng Lei at the Beijing Number 2 Intermediate People’s Court in Beijing, China, on March 31, 2022. (Kevin Frayer/Getty Images) The Supreme Court

New Zealand’s ‘Painfully Naïve’ Response To China’s Extradition Request

Commentary

The acceptance, by members of the New Zealand judicial and political elites of China’s promises to conduct a fair trial is astounding and alarming.

In a three to two decision, the Supreme Court of New Zealand ruled on June 4, 2021, that a man accused of murdering a young bargirl in Shanghai in December 2009 could potentially be surrendered to China.

But the Supreme Court adjourned the appeal to enable the minister of justice to obtain diplomatic assurances that the accused would receive a fair trial. Consequently, on April 13, 2022, the Supreme Court, in a landmark ruling, decided that New Zealand could extradite a resident to face trial in China.

The accused, Kyung Yup Kim, born in South Korea, is a permanent resident of New Zealand.

In 2021, the Supreme Court ruled that he could be surrendered to China under the Extradition Act 1999, according to which the minister of justice “must determine in accordance with this section whether the person is to be surrendered” if the court issues a warrant for the detention of that person.

The Court relied on assurances given by the Chinese Communist Party (CCP) that the accused would not be tortured and would receive a fair trial. Of course, there are subtle means of torturing people because the notion of “torture” itself is vague and indeterminate.

One would have expected that the abominable human rights record of the CCP would have excluded even the acceptance of diplomatic assurances that, in Kim’s case, the basic principles of criminal justice would be respected. This is because an objective consideration of China’s system of criminal justice suggests, and common sense confirms, that any assurances cannot be relied upon.

Jerome A. Cohen, in an excellent review of Kim’s case, published in June 2021 in The Diplomat, notes that the Court’s opinion is easily the most comprehensive foreign review of China’s criminal justice system. But he also points out that the decision is “painfully naïve” because the Court takes at face value the promises made by the Chinese authorities.

As such, the Supreme Court failed to comprehend the brutality of the Chinese regime, as evidenced by its long and endemic history of human rights violations, stretching back to 1949.

Epoch Times Photo
Communist Party cadres hang a placard on the neck of a Chinese man. The words on the placard states the man’s name and accuse him of being a member of the “black class.” (Public Domain)

These violations include the government-induced famine of the Great Leap Forward, the Cultural Revolution, China’s organ harvest industry programme, discrimination of the Uyghurs, suppression of democratic institutions, detention without trial, the pernicious influence of the CCP in the criminal process, and the very limited support that lawyers for the accused are able, or allowed, to render their accused clients.

The Court’s acceptance of the Chinese promises is analogous to allowing the fox in the hen house because the fox has promised not to harm the hens. Cohen writes that “China has increasingly tried to force certain foreigners by a variety of means, to re-enter Chinese territory for criminal prosecution or even lawless and indefinite incommunicado confinement.”

The Chinese regime’s suppression of the “one country, two systems” arrangement for Hong Kong, brutally facilitated by the adoption of its new national security law of July 2020, now allows for the rendition of residents, including foreigners, to China.

The 2021 judgement was described as “probably the most extended foreign judicial discussion of the Chinese legal system ever conducted.” Yet, “the opinion is painfully naïve about the realities of criminal justice in China and far too limited in its examination of China’s judicial system.”

Even a perfunctory review of China’s criminal justice system reveals that it distorts the rule of law. In fact, it is a convenient instrument in perpetuating and strengthening the power of the CCP.

In the field of criminal justice, the rule of law, at a minimum, requires a trial before an independent and impartial tribunal, allowance of legal representation, and the presumption of innocence; none of these is even remotely guaranteed in China. Indeed, over 99 percent of criminal cases result in a conviction.

At issue is the question of whether Kim, if extradited to China, will receive a “fair trial” that meets the requirements of the International Covenant on Civil and Political Rights, which was signed by China but never ratified.

Article 14 of the Covenant stipulates that an accused “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

Australian Ambassador to China Graham Fletcher
Australian Ambassador to China Graham Fletcher (L) is not allowed entry by court officials and police as he tries to enter the trial of Chinese Australian journalist Cheng Lei at the Beijing Number 2 Intermediate People’s Court in Beijing, China, on March 31, 2022. (Kevin Frayer/Getty Images)

The Supreme Court of New Zealand correctly interpreted this Article as requiring that the judges must be “free from influence by their judicial colleagues, the executive, legislature, and other external bodies.”

However, a review of China’s judicial system reveals that a criminal court is subject to oversight by political authorities. Indeed, sensitive cases are decided not by the court but by the court’s “judicial committee” (and other supervisory commissions) that consists of Communist apparatchiks and typically deliberates without the presence of the accused’s lawyer.

Nevertheless, the New Zealand Court is satisfied that the Chinese assurances of a fair trial will be honoured because, if not, they would adversely affect China’s ability to successfully submit extradition requests in the future.

Cohen, addressing the issue of the independence and impartiality of a Chinese criminal court panel, reveals that the Supreme Court of New Zealand “dismisses the possibility that the father of Kim’s former Shanghai girlfriend, herself a possible suspect in the death of the young bargirl, might use his status as a CCP official to influence the case.”

There are thus sufficient reasons to disagree with the reasoning and decision of the Supreme Court of New Zealand. A healthy distrust of China’s judicial system should be sufficient to deny the request to extradite Kim.

In this context, it is instructive to point out that China has bilateral extradition treaties with almost 60 countries, but not with any common law countries, including New Zealand.

Hopefully, common sense might still prevail, but CCP’s relentless pursuit of its geopolitical expansionist interests and burgeoning economic power might make it difficult to refuse its request to extradite people. But the political will to trump the regime’s ambitions in this area should prevail.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (Boolarong Press, 2020) and “The Coincidence” (Connor Court Publishing, 2021).