Times Wang is a lawyer from Montreal and the founder of North River Law in Washington.
It is hard not to feel a profound sense of injustice when contemplating the rulings handed down this week by courts in the People’s Republic of China against Canadians Robert Schellenberg and Michael Spavor. That feeling is especially keen when they’re juxtaposed against the proceedings that preceded them: the United States’ request that Canada arrest and extradite Huawei chief financial officer Meng Wanzhou on charges of wire and bank fraud.
Many have focused on the comparatively unjust conditions of confinement. Mr. Schellenberg and Mr. Spavor, as well as fellow Canadian detainee Michael Kovrig, have endured gruelling conditions in prison; Ms. Meng has only faced house arrest in her palatial mansion in Vancouver. But there is a deeper source of injustice: the fact that while all sides have decried the role of politics in the various proceedings, only Ms. Meng has been able to meaningfully defend herself on that basis.
A major plank of Ms. Meng’s defence is that the underlying prosecution against her is politically motivated. Based on the court’s rulings thus far, there is every possibility that she will be set free if her team is able to prove it – and if they can, letting her go will be the right thing to do. But can anyone imagine the three Canadians being allowed to even meaningfully probe that question, much less being set free on that account?
Anyone with a modicum of understanding of the PRC’s politico-legal system understands that decisions in cases such as theirs are not the product of a court’s independent judgment, arrived at through the impartial application of law. Instead, they are the product of political directives handed down by the Chinese Communist Party’s top leaders. Political motivation is not a defence available to Mr. Schellenberg, Mr. Spavor, and Mr. Kovrig because, in the party-state, it is not even considered improper; it is a feature, not a bug.
What does that mean for those of us who believe in the rule of law? It means that it is absurd to expect us to recognize the legitimacy of decisions such as the ones handed down this week, as B.C. Senator Yuen Pau Woo recently argued we should. Moreover, we should refuse to recognize it not just for our own benefit, but for the benefit of the citizens of the PRC. For political reasons, PRC courts routinely turn a blind eye to what any reasonable person should consider legal abuses in domestic cases, such as fabricated evidence and violations of law by the authorities.
Refusing to recognize the legitimacy of this kind of justice is in no way racist, Orientalist or imperialistic, either. Indeed, writing in the 17th century, the neo-Confucian scholar Huang Zongxi castigated China’s imperial rulers for failing to separate law from dynastic politics, arguing that “what they called ‘Law’ represented laws for the sake of one family and not laws for the sake of all-under-Heaven.” Such politically motivated laws, he wrote, “are what one calls ‘un-Lawful’ Laws.”
Sadly, Huang’s lesson goes unheeded in his homeland today, and what the party-state calls “law” often constitutes little more than whatever the Party feels like it should be on any given day. As one PRC lawyer told me recently, by way of apologizing for being unable to do something that was clearly lawful but was disfavoured by the authorities: “This is the Communist Party’s country. We all have to do what it tells us to do.”
And so it is with the courts and the three Canadians. Even if the judges in those cases doubt the lawfulness or propriety of the proceedings, their hands are tied by explicit instructions from political leaders to rule a certain way. By contrast, it would be a scandal of epic proportions if, say, Canada’s political leaders issued instructions to Justice Heather Holmes, the judge presiding over Ms. Meng’s extradition trial, on how to rule on the Huawei executive’s political-motivation defence.
Defenders of the rule of law should thus be clear-eyed and unapologetic. The rulings against Mr. Schellenberg and Mr. Spavor deserve no intellectual or moral respect. And unless and until the party-state stops allowing political prerogatives to dictate legal outcomes, neither do its court rulings in general, at least in politically charged cases. To pretend otherwise is to betray the rule of law and, with it, the foundations of a just society.
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