The Court of Appeal has decided that China's criminal justice system is so flawed that an alleged murderer living in New Zealand should not be extradited there. That's an extraordinary development in the already strained NZ-China relationship, writes law professor Andrew Geddis.
I am fortunate enough to be a citizen of three countries - New Zealand, the United Kingdom, and Ireland - which gives me the right to live in all three places. So, let's imagine I am a very bad person. Being such, I do a very bad thing here in New Zealand (inset heinous crime of your choosing), then hop on a plane to Ireland or the United Kingdom to settle into a new life.
Pretty terrible, right? In this increasingly interconnected world, why should I be able to evade the reach of justice because I'm now residing in a foreign country? Wouldn't we expect that the other country will do all it can to return me to New Zealand shores to answer for my crimes?
Now let's mess with that picture a bit. Instead of my having committed some heinous crime in New Zealand, imagine that a New Zealand resident is accused of having carried out a murder in China. The Chinese police say that they've the necessary evidence to establish guilt (which they share with us), but the accused denies having anything to do with the crime.
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Surely the same principle ought to apply, right? If the Chinese believe someone has committed this heinous crime (and can show us decent evidence to back up this belief), then shouldn't we do all we can to send that person back there to answer the charge in their courts? What's good for us surely ought to be good for them?
OK, now figure this into your answer. There's evidence that the Chinese police routinely torture suspects to obtain confessions. The lawyers who represent defendants in that country face reprisals if they are too diligent in carrying out their role. The courts that deliver "justice" in individual cases are directly controlled by its ruling Communist Party.
Should we still send a person overseas to face a trial under such conditions? Or, do we as a good and humane society, say that we're not prepared to deliver someone into the jaws of such a fundamentally unjust process? Should we impose our standards of what justice must look like on to another place?
Now figure this into your answer. Anxious to reassure New Zealand that the accused will be treated properly, China gives diplomatic assurances that the accused will not be tortured and that they'll get a fair trial. In essence, they pinky promise us that they'll behave themselves as we would expect them to (in this case, at least).
Is that enough to satisfy us, as a good and humane society, that we should send the accused to face trial in China? Because, remember, there's a murder victim here who deserves justice. And we don't think that simply being able to run from one country to another ought to allow the guilty to escape that justice, right?
These questions are not hypotheticals. They are, in effect, what the Court of Appeal had to consider in its just released decision in Kim v Minister of Justice. In a nutshell, China wants Mr Kim back to face a murder charge. Having been promised by China that Mr Kim will be treated properly, Amy Adams (as then Minister of Justice) agreed to send him over. Mr Kim then challenged that decision, arguing that the Minister simply cannot trust the promises she has been given.
Here is the Court of Appeal's money paragraph, explaining why they largely agree with Mr Kim (as handed down by now-Chief Justice Helen Winkelmann and agreed with by now-Supreme Court Justice Joe Williams):
" The concerns we have identified are wide-ranging. Some of the matters we have identified raise serious issues as to whether a decision to surrender Mr Kim could be made in a manner which is compliant with New Zealand's international obligations. We have identified the difficulty that exists in obtaining assurances adequate to meet the risk of torture in a country where torture is illegal yet remains widespread because of cultural and systemic features of the PRC criminal justice system. Other issues may be still more difficult to address: the existence of direct political influence in the criminal justice system and the evidence of harassment, and even persecution, of criminal defence lawyers. We do not exclude the possibility however that further inquiry may produce information on these matters of which we are unaware, and which show a different picture of the PRC criminal justice system."
In other words, the Court of Appeal regards the problems with China's criminal justice system as being so deeply rooted and inimical to our principles of justice that it might well be impossible to ever be satisfied that a person can receive a fair trial there. And if that is the case, a good and humane society like ours simply cannot send someone into it, no matter what they are alleged to have done.
This case may turn out to be a pretty big deal for more than just Mr Kim. Because, while China obviously want him back (non-state sanctioned murder is something most societies disapprove of), he also serves as something of a test case for the wider China-New Zealand relationship.
China has been busy pursuing around the globe citizens whom it accuses of having enriched themselves through corruption and other unlawful means, including a number in New Zealand. As this article explains, China has been using all sorts of mechanisms to try to bring them back to its territory to try them pour encourager les autres. New Zealand has seen its own example of this, when Jiang Lei "voluntarily" returned to China last year to face corruption charges.
However, if China could get New Zealand (and other countries) to agree to extradite such alleged criminals, well, that would be far easier for it. And so, China has been wanting to establish an extradition treaty with us to smooth that process along.
Not only does the Court of Appeal's judgment now effectively halt any future extraditions to China under current arrangements, it also puts a real hurdle in the way of any such treaty arrangement. Because, in the wake of this judgment you have to ask how any government could claim to be confident that sending individuals to face trial in that country is safe. Such concerns already stymied an extradition treaty between China and Australia back in 2017.
Quite how China's government will react to this not-so-implicit judicial criticism of their practices remains to be seen. Because let's not beat about the bush. The Court of Appeal is openly saying that the reality of China's criminal justice system falls so far short of what is acceptable that a Minister simply cannot trust that country's word that an accused will get a fair trial.
That's a pretty damning message - it will be interesting to see what response it receives.
Andrew Geddis is a Professor in the Faculty of Law at the University of Otago.