China’s criminal (in)justice system
Canadian citizen James Xiao (Xiao Jianhua) was sentenced last Friday to 13 years in Chinese prison. However, the only criminals in the closed courtroom were those Communist Party officials involved in his unjust persecution and prosecution.
Indeed, the only consistency in China’s arbitrary justice system is its long-standing 99 per cent conviction rate. Accordingly, while the sentence was not unexpected, it was nonetheless unjust. Defendants have no recourse but to plead guilty, in the hope that they won’t draw the ire of capricious officials and face an even harsher sentencing. More often, confessions are forced following torture and ill-treatment.
This is the context that underpins Xiao’s case, which was described by NYU professor of law and world-leading China law expert Jerome Cohen as a “brazen kidnapping” and process characterized by extraordinary mistreatment, even by the Communist Party of China’s standards.
Abducted from his Hong Kong hotel room, Xiao had been held incommunicado for nearly six years, until he reappeared last month in a Shanghai courtroom. The trial was held in secret, with Canadian officials barred from entry despite Xiao’s Canadian citizenship, and in breach of China’s international legal obligations and Sino-canadian consular agreement in that regard.
The abduction, arbitrary arrest and forced disappearance of James Xiao — anchored in denial of basic rights and violations of China’s own laws — parallels the treatment of other political prisoners in China. While analogies have been made to the case of the “two Michaels,” Michael Kovrig and Michael Spavor, his case is part of a longer line of unjust targeting of Canadians in China that I have witnessed in the context of my acting as counsel to political prisoners around the world for close to half a century.
Indeed, 22 years ago I represented Dr. Kunlun Zhang, a Falun Gong practitioner, Mcgill University professor and one of China’s leading artists, who was similarly held as a political prisoner by Chinese Communist Party authorities. His release from unjust detention followed only after intensifying interventions from an allparty group of parliamentarians and international civil society.
Since then I have taken up the cases and causes of many other Canadians unjustly held in China, exposing and unmasking the injustice of the country’s criminal justice system, quickly learning that the only thing criminal involved in the system is its lack of justice.
Dr. Wang Bingzhang, who received his PHD in medicine at Mcgill University and went on to found China’s overseas democracy movement, still languishes in prison while his Canadian family fights for his freedom from halfway across the world. He, too, was kidnapped and forcibly moved to China to face a trial that breached basic legal principles and protections. His prosecution was riddled with all manner of errors and falsifications, including many trumped-up charges and fake testimony that have since been clearly and compellingly refuted, but without any recourse or remediation by Communist Party authorities.
Huseyin Celil, a Uyghur-canadian rights activist whose case I took up in 2006, was similarly kidnapped from Uzbekistan to face a secret and unfair trial in China. Held incommunicado, he was mistreated, denied his right to counsel, and deprived of his rights as a Canadian citizen, with Canadian officials barred from consular access. He has been unjustly detained in the gulags of Xinjiang for over a decade, while his wife and young children in Canada plead for his release from arbitrary imprisonment.
In yet another case, Canadian businesswoman Sun Qian was abducted in Beijing and tortured in detention, sentenced to eight years in prison after being initially jailed for over three years and denied her fundamental rights as she awaited trial. Her billion-dollar corporation was dismantled and her significant assets seized by authorities, in what many consider to have been an effort by the Chinese Communist Party to gain control of her business holdings.
These cases are all representative of the draconian measures employed by China against Canadians — and of the criminalization of innocence in China more generally — where many other of our citizens are still languishing in detention.
Such unjust prosecutions and horrific conditions are further entrenched by a system that prevents and punishes the use of independent counsel. China has long held the record for imprisoning more lawyers than any other country in the world — all the more shocking in light of China’s growing tendency to force Communist Party-approved counsel upon defendants, if they are allowed one at all — and which further induces compliance with state demands among those rare remaining lawyers willing and permitted to take up a case.
While the victims of China’s repression may differ in their religious views, ethnicity and the politicized motivations for their targeting, their cases share an overriding common feature — injustice. Abductions, arbitrary detentions, secret trials, denial of consular access, denial of independent counsel, torture, forced confessions, false charges and unjust convictions are the hallmarks of China’s (in)justice system.
James Xiao is suffering Beijing’s brutality for his business acumen, unjustly sentenced to over a decade in dungeons a world away from his family in Canada. A child prodigy, he won a scholarship to one of China’s top law schools at 15 and proceeded to build one of the country’s most successful business ventures. Like other leaders in their field, the totalitarian system could not allow for his continued independent success, quickly dismantling his business following his kidnapping and enforced disappearance.
The brazenness of his arbitrary arrest and sham trial — the impunity that underpins his mistreatment — seeks to send a signal to all those in China and beyond of the Communist Party’s omnipotence. However, China’s standing breach of basic legal norms, domestic and international, instead conveys the Communist Party’s lack of confidence in the cases it pursues and the lack of principles that underpin them.
As a leader in advancing the Declaration Against Arbitrary Detention in Stateto-state Relations, Canada should publicly and prominently condemn China’s treatment of Canadians. In concert with allies, we should put a concrete cost on such criminality, in the form of targeted Magnitsky sanctions for justice and accountability. The corrupt and rights-abusing Chinese Communist Party officials involved in these cases should not be permitted to travel to our democratic states to enjoy the ill-gotten gains appropriated from their persecuted businesspeople, or the freedoms their abused dissidents so courageously fought for at home.
Indifference or indulgence to this ongoing culture of impunity and criminality in China increases risks to Canadians and all people of conscience. We must stand with James Xiao, the most recent victim of a long line of Chinese persecution and unjust prosecution. The cause of justice demands no less.
MORE OFTEN, CONFESSIONS ARE FORCED FOLLOWING TORTURE AND ILL-TREATMENT.