A majority of the New Zealand supreme court recently endorsed its government’s view that China can be trusted to respect the human rights of the criminally accused and give them a fair trial.
While this ruling involved some rather technical matters of administrative law, it cannot be divorced from the larger geopolitical picture.
Current relations between China and liberal democracies in the Australasian region are strained. The recent China-Solomon Islands security deal has exacerbated concerns about increased regional militarisation. There have been alleged attempts by China to exert influence over the internal politics of both Australia and New Zealand. And there are widespread concerns about China’s refusal to respect basic human rights, particularly in Xinjiang province.
Nevertheless, China remains the largest trading partner of both Australia and New Zealand – albeit a partner that has demonstrated a preparedness to use trade as a diplomatic lever.
The supreme court’s decision involved Kyung Yup Kim, a South Korean national and New Zealand resident whom China accuses of murdering a young woman, Peiyun Chen, in Shanghai in 2009. He denies the charge. China has been seeking since 2011 to extradite Kim in order to try him for the alleged offence.
However, with no extradition treaty between China and New Zealand, the decision requires approval by New Zealand’s minister of justice.
Before the minister can do so, they must be satisfied of a number of things. Most importantly, that Kim will not be subject to torture and that he can receive a fair trial in China.
In 2016, then-minister of justice Amy Adams accepted promises from China relating to Kim’s future treatment and agreed to his extradition. Kim asked the courts to review this decision, with his case finally arriving in the supreme court last year.
The court unanimously agreed that Kim could be extradited, provided China gave appropriate assurances that he would not be tortured and would receive a fair trial.
In declining to adopt a total bar against extradition, the court assumed the possibility that China could be trusted to keep its word on matters relating to fundamental human rights.
Then, in early April of this year, the court held by a three-two majority that the minister of justice reasonably could accept a series of assurances from China regarding Kim’s future treatment. Despite evidence of China’s propensity to use torture as a part of its investigative practices and general lack of an independent judiciary, the court agreed the minister could trust China to respect Kim’s rights.
The government’s preparedness to accept such assurances, and the court’s willingness to endorse that acceptance, represents more of a politically convenient “noble lie” than a reflection of current evidence. Judicial concern to leave room for a reasonable ministerial decision that China can be relied on to stick to its word meant that the majority downplayed how China has actually behaved in practice.
Furthermore, the current structure of New Zealand’s extradition laws means the court’s approach of maintaining final ministerial discretion allows the ultimate question of Kim’s fate to be answered using a process that is worryingly tainted by geopolitical considerations. If nothing else, Kim’s case demonstrates why the underlying statutory framework needs amending in line with the Law Commission’s recommendations.
Similar concerns about the court’s decision have been voiced here in New Zealand and around the world. Twenty-two members of the inter-parliamentary alliance on China (Ipac), a cross-party international group of MPs, have written to the current minister of justice expressing their disquiet at the precedent Kim’s case may set.
Whether Kim will now be surrendered to China for extradition remains unclear. The minister of justice has agreed that this will not happen before the end of this month, while Kim’s lawyers are asking the UN’s human rights committee to consider his case.
Regardless of Kim’s fate, the supreme court’s endorsement of the reliability of diplomatic promises from China on fair-trial issues is a significant and worrying development. There are grave and well-documented problems with China’s criminal justice system, including ongoing occurrences of torture, and breaches of minimum fair-trial standards.
New Zealand has a legal and moral obligation to be credibly assured that the fundamental human rights of individuals surrendered for extradition will not be breached. As the ongoing Kim saga shows, obtaining such assurance is an inherently politicised inquiry. As the extradition framework currently stands, New Zealand’s human rights obligations may be overlooked in pursuit of other state interests.
Dr Anna High is co-director of the Otago Centre for Law and Society at the University of Otago
Andrew Geddis is a professor of law at the University of Otago