By Clive Ansley, David Kilgour, Peter Lamont
The sordid prison experiences of Canada’s ”two Michaels” during their more than 800 days in custody in China illustrates well why the rule of law and independent judges/prosecutors are essential to good governance.
Immediately after the Canadian authorities arrested Huawei chief financial officer, Meng Wanzhou in the wake of an American government extradition application in 2018, the ”two Michaels” – Kovrig and Spavor – were detained in China for allegedly stealing state secrets.
Some ask whether they have been tortured, and while torture in China’s “judicial” system is described by leading human rights organisations as “routine”, “endemic”, and “systemic”, it is unlikely the Chinese Communist Party’s (CCP) medieval torture equipment has been applied to these two accused. On the other hand, many who are familiar with conditions in Chinese prison and detention centres say incarceration is torture in and of itself.
Last week’s secret two-hour trial of Michael Spavor occurred suddenly in Dandong near North Korea. No foreign diplomats, including those of Canada, were allowed to enter the court. Precisely the same phenomenon has now occurred at the trial of Michael Kovrig in Beijing.
Why were the court hearings for the two men so brief?
The hearings only appear brief to some of us because we expected a typical Chinese “show trial”, televised and theatrical and going to great pains to disguise a Chinese “court” as one similar to those in countries with genuine judicial systems. We anticipated a spectacle similar to that of the Chinese tribunal which sentenced Canadian Robert Schellenberg to death in 2020.
For reasons known only to its leaders, the CCP has eschewed the opportunity for major theatre, but even bearing that in mind, 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 don’t 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 Secretary (chairman) of the Court’s CCP 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 may also hear privately from any party/state officials.
The Adjudication Committee instructs the three trial judges who then reconvene the “Court” and solemnly pronounce the committee’s decision as their own, whether they agree with that decision or not. The trial itself is reduced to theatre (assuming it has been one of the rare open cases), with the actual decision making 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 in almost every instance, the trial is in fact closed because of “State Secrets”. 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.
Canadian opinion appears firm about trends in China. According to Nanos Research in early March, 61 per cent of us supported and 22 per cent somewhat supported the House of Commons motion last month declaring that the government of China was committing genocide against the Muslim minority Uyghurs.
Fully 51 per cent of us favour and 19 somewhat favour seeking to relocate the 2022 Winter Olympics away from Beijing.
We should heed the concluding paragraph in the judgement of a London tribunal on forced organ harvesting from non-consenting donors in China: “ … any who interact in any substantial way with the PRC 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; Arts establishments… should now recognise that they are interacting with a criminal state.“
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