Mon, Mar 29, 2021 page6

• Two Michaels and ‘trials’ in China

  • By Clive Ansley, David Kilgour and Peter Lamont
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  The sordid prison experiences of Canada’s “two Michaels” during more than 800 days in custody illustrate well why the rule of law, and independent judges and prosecutors, are essential to good governance anywhere.

  In the immediate aftermath of Huawei Technologies Co chief financial officer Meng Wanzhou’s (孟晚舟) arrest on a US government extradition application, Michael Kovrig and Michael Spavor were arrested in China for allegedly stealing state secrets.

  Some ask whether Kovrig, a former diplomat, and Spavor, an entrepreneur, have been tortured. Torture in China’s “judicial” system is described by leading human rights organizations as “routine,” “endemic” and “systemic,” but the Chinese Communist Party’s (CCP) medieval torture equipment has likely not been applied to these two.

  On the other hand, many who are familiar with conditions in Chinese prison and detention centers say incarceration in a Chinese prison is torture in and of itself.

  Last week’s secret two-hour trial of Spavor occurred suddenly in Dandong near North Korea. No foreign diplomat, not even Canada’s, was allowed to enter the court. Precisely the same phenomenon has occurred at Kovrig’s trial in Beijing.

  One Canadian diplomat apparently expressed dismay upon discovering that the Chinese trial process is not transparent.

  Why were the court hearings for Spavor and Kovrig so brief?

  The hearings only appear brief to some of us because we expected a typical Chinese “show trial,” televised and theatrical, with great pains to disguise a Chinese “court” as a genuine court similar to those in countries with genuine judicial systems.

  We anticipated a spectacle similar to that of the Chinese tribunal that sentenced Canadian Robert Schellenberg to death in 2019 in a retrial of his drug-smuggling case.

  Once it becomes clear that the CCP has eschewed the opportunity for major theater, then these trials do not appear brief by Chinese standards. Indeed, two hours could be deemed lengthy by CCP trial standards.

  Complicated cases often require no more than half an hour of “court” time. The general rule is that Chinese judges try to finish before lunch.

  A saying known to every Chinese litigation lawyer is: “Those who make the judgements have not heard the case; those who hear the case do not make the judgement.”

  Chinese “courts” at all levels include an internal and invisible adjudication committee, consisting of the court president and several other judges.

  The chairperson of the court drives the agenda. The adjudication committee meets in secret and hears the recommendation of the presiding trial judge. The prosecutor is often present, but nobody represents the accused. The committee might also hear privately from party or state officials.

  The adjudication committee instructs the three trial judges, who then reconvene the “court” and solemnly pronounce the committee decision as their own, regardless of whether they agree with that decision.

  The trial is reduced to theater, if it is one of the rare open cases, with the decisionmaking performed by a faceless committee in a back room.

  China’s Criminal Procedure Law explicitly requires all trials to be public, unless they involve “state secrets,” but any information disclosed by any criminal investigation is treated as a “state secret.”

  Moreover, it is difficult to find a judge with a deep interest in the wording of statutes.

  Chinese judges are classified as civil servants in China’s Civil Service Law. A Chinese “court” is simply a low-level administrative organ of the CCP.

  Early this month, Nanos Research said that 80 percent of Canadians supported (61 percent) or somewhat supported (22 percent) the unanimous Canadian House of Commons motion last month saying that the Chinese government was committing genocide against Muslim minority Uighurs, with about 60 percent opposed to the Cabinet abstention.

  A majority favored (51 percent) or somewhat favored (19 percent) seeking to relocate the Winter Olympics away from Beijing next year.

  The concluding paragraph in the judgement of an independent London tribunal on forced organ harvesting from nonconsenting donors in China should be heeded: “Any who interact in any substantial way with the PRC [People’s Republic of China], including: doctors and medical institutions; industry and businesses, most specifically airlines, travel companies, financial services businesses, law firms, and pharmaceutical and insurance companies, together with individual tourists; educational establishments; and arts establishments, should now recognise that they are interacting with a criminal state.”

  Clive Ansley practiced law in China for 14 years. David Kilgour was Canadian secretary of state (Asia-Pacific) in 2002 and 2003. Peter Lamont is a retired military judge, who studied law in China.
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