Well worth a read if you are following the China Rio Tinto employees case..
Here’s how he starts the piece..
Stanley Lubman: Rio Tinto Trial Shines Harsh Spotlight on Chinese Criminal Justice
While the facts of the alleged conduct of four employees of the British-Australian company Rio Tinto Ltd. who were on trial this week for taking bribes and infringing trade secrets are obscure, the trial starkly exhibits some key characteristics of Chinese criminal justice. It demonstrates the usual limits on the ability of defense lawyers to fully represent their clients, a disturbing lack of transparency, and the impact of political influences on the proceedings and the outcome. Criminal justice has moved only partially and irregularly toward a level of legality that it lacked under Mao, and is an object of concern to Chinese law reformers as well as to foreign observers. This particular case also raises serious concerns about China?s interpretation of its international obligations given its disregard for the Sino-Australian consular agreement.
In a well-reasoned discussion, Ira Belkin, program officer on law and rights at the Ford Foundation in Beijing and formerly a Federal Prosecutor in the United States and Director of the Trade Facilitation Office of the U.S. Embassy in Beijing, has appropriately described Chinese criminal justice as ?a work in progress.? (PDF here). He notes a fundamental aspect of Chinese criminal procedure that will help throw light on the Rio Tinto trial: While American criminal law is underlaid by the notion that it is difficult to ascertain objective truth, the Chinese system assumes that the facts can be ascertained and that the rules of criminal procedure exist to facilitate their disclosure. As a consequence, anything that prevents the tribunal to render an uncontested verdict is discouraged. He adds, ?This bedrock principle colors every facet of Chinese criminal justice.? Chinese legal scholars have long explored ways of reforming the system, as the participation of some in a conference at Harvard in late 2008 illustrates. (The papers presented by Chinese law reformers are available here)
The principle stated above helps explain the impression that there is a prevailing presumption of guilt and courts are part of a state apparatus that is more concerned with fighting crime than judging from a neutral vantage point. There is no right to remain silent, and no right against self-incrimination. These and a host of other obstacles have led to a conviction rate of over 99% in first-instance criminal cases in 1998-2006. Defendants? lawyers usually have only limited pre-trial access to their clients, and at the trial they cannot call their own witnesses or examine the prosecution?s witnesses. Lawyers in the Rio Tinto case representing some of the four defendants were reported to have received notice of the trial date ?just days in advance, with little specific information about the proceedings.?
Full article and links at
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Also the following was posted Friday to the China Law Discussion list by Jerome Cohen and Yu-Jie Chen re allowing Australian Consular officials to attend the trial..
The Chinese Government’s refusal to allow Australian Government consular officials to observe the secret portion of the Rio Tinto trial was supposedly based on the alleged superiority of Chinese domestic law over China’s international obligation under the Sino-Australian Consular Convention. On March 19 MOFA spokesperson Qin Gang said the case would be handled according to Chinese laws. In rejecting the Australian Government claim to have the right of consular attendance even at the closed portion of the trial, Qin said:”We should not confound the consular agreement with sovereignty, especially judicial sovereignty….The decision of a closed-door trial was made based on Chinese law…”
This was a dangerous assertion that China’s formal international binding obligations cannot be relied upon if the Chinese Government later decides that the demands of sovereignty override them.
Yet it now appears that MOFA’s position and the decision of the Shanghai Intermediate Court No. 1 to exclude the Australian consuls violated existing Chinese law, which since 1995 has explicitly instructed China’s courts to permit foreign consular representation even at non-public trials.?
Article 6 (1) of the Instruction on the Handling of Certain Problems in Foreign-Related Cases (attached), issued jointly by MOFA itself together with the most authoritative criminal justice agencies in China (the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice) on June 20, 1995, instructs the courts to allow foreign consular attendance at non-public trials, including criminal trials, whenever there is a provision for this in consular agreements, as there is in the Sino-Australian agreement. Moreover, Article 1 (3) of the Instruction states that whenever there may be a conflict between China?s domestic law and its international obligations, its international obligations must prevail except where the Chinese government has made a reservation. It goes on to say ?the authorities shall not refuse the obligations in international treaties by invoking domestic laws.? This Instruction remains in effect today.?
It is difficult to understand how MOFA, the Shanghai Intermediate Court and Professor Wan Xia of the International Law Department of China Foreign Affairs University could have been ignorant of this Instruction, which Chinese courts obeyed until recently. China’s courts used to admit foreign consuls to closed trials in accordance with the Instruction. The Rio Tinto case is not the only recent case in which the courts and MOFA have violated the Instruction, which is an official interpretation of China’s obligations under relevant consular conventions such as Australia’s. Last summer the United States government’s claim to send consuls to observe the trial of American citizen XUE Feng on charges of illegally obtaining state secrets relating to the oil industry, a trial that has not yet been concluded, was also rejected. Apparently neither the Australian Government nor the United States Government was aware of the Instruction, which makes clear that China’s courts are to implement — not contradict — China’s international obligations. So it turns out that it is MOFA and the Shanghai Intermediate Court that have violated China’s exercise of its “judicial sovereignty,” to the detriment of the Australian defendant, Sino-Australian relations and China’s reputation for respecting international law.