I must admit that I had a good laugh at the brilliant cartoon by the gifted Sharon Murdoch, published yesterday in Stuff (see the cartoon dated April 17, 2022 at https://www.stuff.co.nz/opinion/94869389/sharon-murdoch-cartoons ).
The Kim case has been slowly reaching its climax in New Zealand, and I have commented on it before, on June 12, 2019. Our Supreme Court’s latest judgment in the case is Minister of Justice v Kim [2022] NZSC 44 (13 April 2022). I will call this the second decision.
Just as with law cases, there is always another side to the story in political commentary. One may disagree with the Court’s decision if one looks at it from a political point of view, while agreeing with it from a legal point of view.
On the torture point, the legal question was whether there was a reasonable basis upon which the Minister of Justice could be satisfied that there was no real risk that Mr Kim would be subject to an act of torture if extradited to the PRC.
There were several reasons for the Court’s conclusion in its second decision that such a reasonable basis existed. The case is an ordinary one with no political importance to the PRC. Why, in other words, would the PRC authorities have resort to torture? Further, the investigation of the case in China had progressed to an advanced stage, so again, why resort to torture? And the trial would not be in a part of China where the authorities had a reputation for torturing criminal suspects. And, although an ordinary case, this one has attracted a good deal of international attention because it could be a precedent on the safety of extradition to the PRC. So, with everyone watching, why resort to torture if that would create difficulties in future cases? Here, torture would be irrational, so that there was a reasonable basis for the Minister to accept the assurances that had been obtained from the PRC (since the Court’s previous judgment in this case) and to conclude that there was no real risk that Mr Kim would be tortured.
So the legal decision on this point was sound. The Court was not making a political decision.
As to fair trial, again the decision is particular to the circumstances of this case and the particular assurances offered. Is there a real risk that the trial would fall below the requirements contained in Article 14 of the ICCPR? These are minimum requirements, designed to accommodate different legal systems. But still, the question is particular to the individual trial under consideration. And the right to a fair trial is not to be balanced against a public interest in extradition, as the Court noted in [281] of its first decision in this case. (The right not to be tortured is also an absolute right, and I have reservations about the Court's inclusion of references to other interests in [40] of the second decision.) The issue is minimum standards, not best practice. Have assurances removed a real risk that the trial would be unfair? Together with assurances received from the PRC about trial procedure, the Minister could also consider the opportunities that would be given for monitoring of the trial by New Zealand officials (see [297] of the first decision). Diplomatic assurances between states provided in good faith amount to moral and political obligations on the state providing them (see [257]-[260] of the first decision). Such assurances as to trial fairness could be relied on for similar reasons that the assurances as to absence of torture could be relied on.
The issue came down to whether the Court, assessing the extent of the assurances given by the PRC about the fairness of the proposed trial, could conclude that those assurances did indeed cover the minimum standards required by the ICCPR, and that they did provide a reasonable basis for concluding that the trial of Mr Kim would be fair in that sense. There was no credible evidence, specific enough to be relevant here, to suggest the contrary.
True, cartoonists may have their own evidence about other cases, but apparently not about this one.
