SOUTH MORNING POST THURSDAY, APRIL 1, 2010 A13

The Rio Tinto case shows how China steamrollers its international Greg Barns legal commitments, write Jerome A. Cohen and Yu-Jie Chen Too quick to judge

he Shanghai trial of Rio Tinto iron ore negotiator Stern Hu and his colleagues Liu Caikui, Ge Mingqiang and Wang Yong, on charges of bribery, has been given plenty of Law unto itself media attention in Australia in the past week. Coverage has been focused on the vagaries of the Chinese justice Tsystem, its secretiveness and the fact that it does not, in the eyes of many, measure up to Australian legal practice. But such a sense of triumphalism on the part of Australia should be tempered by the reality that elements of its much vaunted English common-law tradition are also less than transparent and fair to an accused person. lthough this week’s troubling accusations that China had Much of the criticism in Australian political and media circles Rio Tinto case focused violated international standards as well as has focused on the fact that parts of the Hu trial were held in secret, world attention on its own criminal law. and that Australia was denied consular access to Hu, an Australian China’s domestic When foreign governments and NGOs citizen, when the court was in closed session. Greg Sheridan, legal system, it also protested against the trial of famous writing in The Australian, went so far as to assert that “every raised doubts about a dissident Liu Xiaobo , who was serious observer knows that there is no integrity in the Chinese rising China’s sentenced to 11years for exercising his legal system”. adherence to its international and domestic rights to free There is no doubt that China’s legal system is open to international legal expression, the same spokeswoman – corruption and politicisation. But, for Australians to complain commitments. After again without substantive argument – about secrecy and closed courts in the Rio Tinto case is to the People’s Republic began to represent categorised such statements as “gross conveniently ignore the fact that, under post-September 11anti- AChina in the United Nations in October interference in China’s judicial internal laws, similarly draconian procedures are available to 1971, it steadily increased its participation affairs” that fails to “respect China’s prosecutors and courts in Australia. in the development of international law. judicial sovereignty”. In the past decade, these procedures have been invoked in a Despite continuing grave violations in It was the Rio Tinto case, number of terrorism cases in Australia. And what are they? By practice of existing international standards however, that fully revealed a invoking a claim of “national security”, government lawyers can for protecting civil and political rights, seeming arrogance towards produce secret material in affidavits that can be kept from defence China’s overall direction in international China’s international obligations. lawyers. Judges and magistrates are allowed to have access to this law, at least until recently, seemed When the Australian government secret material, however, and can make decisions based on it progressive. sought reconsideration of without having to give the person charged or being investigated a Now, however, an old, nationalistic Beijing’s refusal to permit chance to respond. The Australian government can also be tone has begun to mark its criminal Australian consuls to attend the represented in any terrorism trial and can prevent defence lawyers prosecutions of foreigners as well as closed session of Australian from asking questions without getting the written approval of the Chinese dissidents, often explained with national Stern Hu’s trial, as attorney general if the question is deemed to be entering into the merely vague references to “judicial required by the Sino-Australian territory of “national security”. sovereignty” without further elucidation. consular agreement, Courts can be closed to the public This may reflect the setbacks that China’s spokesman Qin Gang , The legal in terrorism cases, again where domestic criminal justice system has instead of attempting to defend government lawyers invoke national suffered since the 17th Communist Party Beijing’s decision through systems of security issues. And access to evidence treaty interpretation, dismissed democracies can be restricted to lawyers who agree the claim by stating that “the to undergo rigorous national security The claim that Chinese case would be handled such as checks. National security is so broadly according to Chinese laws”. defined – it simply means “Australia’s law precludes foreign China’s “sovereignty, Australia are defence, security, international consuls from attending especially judicial sovereignty”, relations or law enforcement interests” he said, takes precedence over no paragons of – that it allows plenty of scope for closed trials … flies in its binding international transparency government lawyers to turn Australian agreements...... court hearings into secret trials. the face of Chinese law This was a puzzling and Australia’s anti-terror laws also ...... dangerous comment, since China’s allow for control orders, which curtail the movement of people, to international agreements are voluntary courtroom and where the bravest defence People’s Procuracy, jointly issued an be made against individuals even though they have not been Congress introduced tougher policies and exercises of China’s sovereignty and lawyers operate under severe restrictions instruction on the handling of foreign- charged with a crime. These orders can be made on an interim personnel in late 2007. This may also reflect commit it to conform its domestic laws to and pressures, is a nightmare. related cases, it has been clear that, if a basis without the person targeted by the order being present in a change of the Chinese government’s international standards, instead of using The presence of diplomats from one’s Chinese consular agreement provides for court or having any knowledge of the hearing. They are simply attitude towards international law in light domestic laws as excuses not to follow country provides not only an opportunity consular attendance at trials, that made on the evidence of police and security agencies. One of its growing influence on the world stage. them. to hold prosecutors, judges and defence commitment must be honoured even in a Australian judge has said of the national security laws “procedural It is a development worthy of attention. Last July, China also excluded American lawyers to account for their trial conduct closed trial and no domestic law can fairness is reduced, in practical terms, to nothingness”. This recent return to shrillness in consuls from observing the closed trial for but also at least a minimal, much-needed interfere with the international obligation. And even in commercial disputes, courts sometimes throw a Chinese rhetoric and practice of the alleged theft of state secrets of boost to an accused who has already been Indeed, the principle that, in Chinese suppression order over proceedings so they are secret. As the international law became apparent last American national Xue Feng, contrary to detained for months or even years before law relating to cases involving foreigners, Sydney Morning Herald reported recently, a Rio Tinto subsidiary December when the British government the provisions of the Sino-American trial, and who may understandably feel China’s international commitments trump was involved in one such case in 2002 where it prevented details of and human rights organisations lodged consular convention and despite the fact intimidated against speaking freely. its domestic law dates back at least to the its diamond mining business being reported by the media. many pleas and then protests against the that American consuls had been allowed to The most disturbing aspect of China’s 1987 predecessor to the still valid 1995 In short, the legal systems of such democratic countries as impending execution of an alleged observe earlier closed prosecutions of defence of its Rio Tinto exclusion of instruction. This is a stark contrast with Australia, the United States, Britain and Canada – which have all smuggler, British national Akmal Shaikh. American nationals. The lack of publicity consular observers is that it rests on a false recent Chinese responses, which have invoked similar laws in the past 10 years – are no paragons of He was denied an adequate psychiatric then surrounding the Xue case – and the premise. The claim that Chinese law disregarded its own laws as well as transparency and fairness in dealing with sensitive matters. assessment to determine whether he failure of the US, which has had its own precludes foreign consuls from attending international norms. Solemn lectures from Australian commentators and politicians should be held responsible for the offence. lapses in consular obligations, to protest closed trials, contrary to the explicit ...... about the foibles of China’s legal processes are immediately Apparently playing more to a domestic against that decision – enabled Beijing to provisions of many Chinese consular Professor Jerome A. Cohen is co-director undermined by virtue of the fact that secrecy is something that audience than a foreign one, Ministry of avoid a public explanation. agreements, actually flies in the face of of NYU School of Law’s US-Asia Law both systems have in common when it comes to matters of what Foreign Affairs spokeswoman Jiang Yu But the spotlight on Rio Tinto left it no Chinese law. Institute and adjunct senior fellow might be broadly described as the “national interest”. declared, without supporting choice. This is not a fuss over some minor Since June 20, 1995, when the ministries for Asia at the Council on Foreign ...... reasoning, that “nobody has the right to technical point. To be a defendant in a of foreign affairs, public security, state Relations. Yu-Jie Chen is a Taiwan lawyer Greg Barns is a former political adviser speak ill of China’s judicial sovereignty”. closed prosecution in China, where one’s security and justice, together with the and research fellow of US-Asia Law to the Australian government and is a lawyer She airily rejected as “groundless” the nearest family is often excluded from the Supreme People’s Court and the Supreme Institute. See also www.usasialaw.org specialising in criminal law and human rights

Alex Lo Voices: India Voices: Terrorism [email protected] China’s science experiments Women’s emancipation Talk of a ‘common can only benefit Africans lies outside parliament enemy’ is nonsense ...... criticism of the bill lies elsewhere: but rebelled every time the Russian Rakesh Mani Gwynne Dyer there is no proven relationship government was weak or distracted, Despite its laudable intentions, the between the representation of “Whether you are in a Moscow declared its independence in 1991. This week, representatives of dozens joint research programmes to share technicians and scientists. Twenty- Women’s Reservation Bill that women in parliament and their subway or a London subway or a Moscow tried to reconquer it in of African nations have gathered in ideas in development economics. six hospitals are being constructed passed with a thumping majority in emancipation. has 22 per train in Madrid or an office building 1994-96 in a war that left Grozny, the Beijing to launch a broad The goals are fairly in some of Africa’s poorest regions, India’s upper house is flawed. cent female representation, more in New York, we face the same capital, in ruins and about 35,000 programme of scientific initiatives straightforward and conventional and 30 centres have been built for Parties on either side of the political than double the figure in India. Yet enemy,” said US Secretary of State Chechen civilians dead. The rebels with China. Besides addressing the when it comes to science education the prevention and treatment of spectrum have supported the bill to Pakistan ranks near the bottom in Hillary Rodham Clinton, responding actually defeated the Russian army, usual issues about trade, finance and technology transfer. But they malaria – all these costing 500 appear politically correct, but at the most global rankings on women’s to the twin suicide bombings on the and a ceasefire in 1996 was followed and concessional loans, details of are enough to infuriate some million yuan (HK$596 million). expense of being reasonable. freedom and status. American Moscow metro system on Monday by Russian recognition of Chechen the first large-scale Sino-African people. Writing in an online debate What is wrong with China Empowerment should be the women, on the other hand, have no that killed 39 commuters. independence in 1997. But, Vladimir joint research programme will also sponsored by The Economist, playing a bigger role in international prerogative of all Indian women, not reservations. Their seats in the US Why is it that, whenever a terrible Putin reopened the war in 1999, and be ironed out. George Ayittey, an economics aid and science education? just some. Several critics have Congress are won on merit alone. event happens somewhere, we have Chechnya has been back under the From clean energy and professor at the American University Inevitably, there will be wastage and argued, rightly, that the majority of The problem does not arise from to listen to politicians talk pompous Russian heel for the past 10 years. sustainable agriculture to scientific in Washington DC, repeated the corruption in such efforts – we are, reserved female seats will be taken legislative representation, but from nonsense about it? Terrorism None of this has the slightest exchange and training, both sides well-rehearsed criticism. “[China’s] after all, talking about co-operation up by wives and daughters acting as social mindsets. The real tragedy is cannot be our common enemy, relevance to people outside Russia, aim to go beyond the usual business between developing countries, and proxies for established male leaders. that Indian women suffer a because it is only a technique. nor does the anti-Russian terrorist or infrastructure projects – China is still a developing economy. Political parties field candidates thousand forms of discrimination. Enemies have to be people – and the campaign that was the inevitable desperately needed though many of There seems to be a Beijing no doubt wants to secure based solely on their ability to win. Millions of girls die before they are people who use terrorist techniques, aftermath of the Chechen defeat. It them are in underdeveloped goodwill among citizens and Even for women’s constituencies, even born. Girls that are lucky to though some of them may be our is as localised as Basque terrorism economies across the continent – to desperate fear that governments in Africa. It should be the candidates they field are going to make it into the world live a life of enemies, have little in common afflicting Spain or the occasional invest in intellectual capital. China’s long-term aid up to Africans to decide who to be the ones that have the best discrimination when it comes to from one place to another. terrorist killings carried out by Already, critics are sharpening accept aid from and how to exploit chances of winning. Without sub- nourishment, health care, education The Chechens, who are strongly diehard Republican groups in their knives, denouncing the and investment in resources and capital from reservations, female candidates will and opportunities for employment. suspected of being behind the Northern Ireland. And as pointless, projects as, at best, useless and, at outsiders. be disproportionately represented Those that do make it to the Moscow bombs, are waging a quite for the Chechens, too, have worst, more excuses to exploit Africa might succeed It has always seemed strange to by politically active, upper-class workforce are paid less than their traditional colonial struggle for decisively and permanently lost. Africa. Somehow, in many places in ...... me that most Western donors party members who have high male counterparts for the same independence. As they are Muslims, All terrorist attacks on civilians the West, from the corridors of demand high standards of chances of victory. roles, and have to live in fear of they have increasingly adopted the are wicked, because they transgress power to grass-roots NGOs, there real intentions are well known: to governance and anti-corruption as A second, more serious, flaw suffering the indignity of Islamist ideology now fashionable in one of the few boundaries that we seems to be a desperate fear that elbow out all foreign companies and conditionalities for aid. They are the could potentially accelerate the harassment, abuse and rape. How Muslim revolutionary circles: these have managed to place on war. Most China’s long-term aid and gain access to Africa’s resources at outcomes of a successful economy, atrophy of credibility in the Indian much of this is going to change with days they even talk of a “North wicked of all are attacks that are investment in Africa might succeed. cheap prices.” not its preconditions. If a poor democratic system. Parliamentary more women in parliament? Caucasian Emirate”. But, in practice, mere vengeance, after all hope of The gathering, which falls under That’s true but, then, so are country could offer such high democracy is founded on the The constitution and some laws their sole target remains Russia, the victory is gone. the auspices of the Forum on China– Japan, India, South Korea, Germany, standards, it wouldn’t need help in premise that an elected MP will already provide for gender equality. imperial power that oppresses them. That is what the Moscow metro Africa Co-operation, will launch France and the US, which, the first place. Even if only some of serve the people of the constituency. The problem does not lie in our There have never been any bombings are, and therefore they about 100 clean-energy projects and incidentally, has been and remains the intended African scientists and This creates accountability, but all society’s ability to pass women- Chechen bombs on the London are doubly to be condemned. But another 100 science and engineering the continent’s largest arms students – and only a few economic that is now changed. friendly laws, but in implementing underground, or on the commuter they should not be confused with programmes in various hi-tech supplier. It’s not called the scramble sectors – benefit from the latest The bill’s rotational method of them at the grass-roots level. Indian rail network in Madrid, or in office some vast global terrorist fields. There will be training and for Africa’s resources for nothing. No efforts, they will have been worth it. reservation will make two-thirds of women face problems because of buildings in New York, nor will there conspiracy, although the Russian financing for 100 African post- one claims that China offers aid for ...... parliament, about 360 members, the attitude of society. ever be. Russia, like Israel, has been government naturally pushes that doctoral students to conduct free or out of sheer kindness. The Alex Lo is a senior writer at the Post one-term MPs. 181 women’s seats India’s entrenched exploitative remarkably successful over the years line. Let us hope that Clinton was research in China and the building question is what it has to offer in will be reserved in a general election, system and its ability to enforce laws in selling other countries on the just being polite to her Russian of 20 agricultural centres over the return. Contact us Agree and 181 other general seats will be are what need to change, not the notion that they must maintain a colleague when she took the same next three years. Projects in science, technology or disagree with the reserved for women in the following ratio of women in parliament. joint front against “terrorism”, but line. It would be very bad if she In addition, up to 2,000 African and engineering should at least be opinions on this election. MPs will have little ...... the fact is that the only terrorist actually believed it. technicians will be trained in innocuous. It would be hard to claim page? Write to us at incentive to serve their electorate as Rakesh Mani is a 2009 Teach For threat either government faces is ...... agricultural technology for breeding, that such efforts were neo- [email protected] they know they will be ineligible for India fellow, working with low- from its own subject peoples. Gwynne Dyer is a London-based irrigation and fisheries imperialist. Since 2006, China has If you have an idea for an opinion the next election. income schools in Bombay. Chechnya, which was conquered independent journalist whose management. There will also be helped train 15,000 African article, e-mail it to [email protected] But the still more damning Copyright: OpinionAsia by Russia in the mid-19th century articles are published in 45 countries