China anti-corruption drive stymied by extradition issues

Chinese Premier Li Keqiang and Prime Minister Bill English have agreed to continue discussions about an extradition treaty - but there are a number of issues that need to be overcome. Photo: Supplied.

China has named and shamed a number of fugitives allegedly living in Auckland as part of an anti-corruption crackdown. However, the country's human rights record has proven a stumbling block for its extradition requests - so what are the prospects of a formal deal with New Zealand?

New Zealand, a bolthole for Chinese fugitives?

That’s the case according to the Chinese government, which has released a list of 22 “most wanted” corruption suspects who have fled China that includes four people allegedly living in Auckland.

The fugitives were named and shamed last month by China’s anti-corruption agency, the Central Commission for Discipline Inspection, which released photos and details of their suspected locations.

New Zealand authorities have been coy about any involvement in tracking down those named: a police spokeswoman said the organisation would not comment “on matters involving investigations being run by any overseas law enforcement jurisdiction”.

Through its Fox Hunt and Skynet operations, the Chinese government has sought to track down allegedly corrupt officials overseas and attempt to arrange their return.

Jason Young, the acting director of Victoria University’s New Zealand Contemporary China Research Centre, said the operations were part of a wider anti-corruption drive, “cracking down on crooked economic activities that are increasingly tarnishing the image of the Chinese Communist Party in the eyes of the Chinese population and leading to large swathes of cash fleeing the country”.

New Zealand appears to be a relatively popular destination for those fleeing China. In 2015, a list of 100 Chinese suspects from Interpol’s National Central Bureau of China identified as many as 20 living in New Zealand - a figure behind only the United States and Canada.

Human rights a concern

Young said that may be due, in part, to New Zealand’s extradition laws. We, like a number of other Western countries, have no formal extradition deal with China because of concerns about its treatment of prisoners and use of the death penalty.

While New Zealand can still extradite offenders to China on a case-by-case basis, the current Extradition Act places a mandatory restriction on extradition for any offences “of a political character”, and the Justice Minister may block extradition if there is a “substantial risk” of torture, or if the death penalty may be used.

To date, no extraditions to China have taken place - although there has been a lengthy court battle over what would be the first case.

China has been seeking the extradition of Korean national Kyung Yup Kim since 2011, over an accusation he murdered a woman in Shanghai.

While Justice Minister Amy Adams approved Kim’s extradition, citing Chinese assurances he would be treated fairly and not face the death penalty, a High Court judge ruled in July last year that she had to reconsider whether those assurances could be trusted.

Adams again signed off on the extradition last September, a decision challenged by Kim with a ruling due in the coming months.

“Some fundamental values that we hold dear in New Zealand around the way justice works, things like considering people innocent until they're proven guilty, that people will receive proper representation in court, and that they will receive a fair trial - all of those things are seriously in doubt in China.”

Human rights lawyer Tony Ellis, who has represented Kim, said China’s use of the death penalty, its use of torture, and opaque justice system were the main stumbling blocks to approving any extradition request.

Ellis said there were questions about whether Chinese assurances regarding use of the death penalty could be trusted. In addition, there were reports that the use of torture in obtaining confessions was “systematic and widespread”, while China's chief justice had dismissed the concept of judicial independence in a January speech.

Amnesty International NZ executive director Grant Bayldon said the organisation considered it “almost impossible” to get a fair trial in China.

“Some fundamental values that we hold dear in New Zealand around the way justice works - things like considering people innocent until they're proven guilty, that people will receive proper representation in court, and that they will receive a fair trial - all of those things are seriously in doubt in China.”

While the Government could get assurances China would not use the death penalty, as it did with countries like the US, Bayldon said the country’s “highly secretive” justice system would make it difficult to assess broader concerns about prisoners’ rights and their treatment.

Extradition reforms stalled

There have been some attempts to improve our extradition laws regarding human rights issues.

A Law Commission report released last year recommended setting up a central authority to manage all extradition requests, while also making the courts, rather than ministers, responsible for assessing many of the human rights grounds for refusing an extradition.

Bayldon backed the idea, saying there was merit in moving some decisions out of the political arena and into the courts system.

“The last thing we want is decisions made on things like economic pressure being brought to bear on the country politically.”

However, there appears to have been little progress on the commission’s recommendations.

In a statement, Adams said the government agreed with the conclusion that new legislation was needed but was still waiting for officials to analyse the recommendations and report back, with no date set down for a final decision.

“The recommended changes involve relatively complex matters, many of which carry uncertain costs and benefits.

“This work will take considerable project resources and the timing for the report back will need to be balanced alongside other competing government priorities.”

Deal still being considered

Other countries that have proposed to sign extradition deals with China have found it difficult to get a final agreement across the line.

In March, the Australian government was forced to scrap the ratification of its extradition treaty - signed back in 2007 but never enacted - after a backbench rebellion over human rights concerns meant it was likely the vote would fail.

However, the issue is still on the table in New Zealand: a spokeswoman for Prime Minister Bill English recently told media he had agreed to keep considering the issue during Premier Li Keqiang's recent visit.

Foreign Minister Gerry Brownlee said an extradition treaty was still “a matter for discussion”, although he acknowledged there were still concerns about the possibility of capital punishment.

“Our difficulty is extraditing people to face the death penalty, and we’ve made that pretty clear to Chinese authorities.”

Brownlee said Australia’s struggles in ratifying its own treaty should not be taken as a sign that a deal was impossible, provided human rights issues were addressed.

“I think all things are possible - in the end the key is a negotiation that leads to a result that's acceptable to New Zealand...Parliament is not going to pass legislation that fails to take account of basic human rights.”

However, Bayldon said the obstacles to an extradition treaty were almost certainly too significant to overcome.

“Of course people who are suspected of committing of crimes should face justice - the problem is what they would be returning to face would almost certainly not be justice.”