Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Saturday, March 27, 2010

Jerome Cohen and Yu-Jie Chen on the Stern Hu trial

Here's an interesting piece by Jerome Cohen and Yu-Jie Chen on an as-yet undiscussed aspect of the Stern Hu proceedings. I've made one very modest change in adapting it from text to web and added a link or two. I might also add that the notion that domestic laws can't be used as an excuse to override China's treaty obligations is also set forth in the 1987 predecessor to the document discussed below, although (unlike its successor) it doesn't specifically mention trials.

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, 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 [万霞] 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.

Jerome Cohen and Yu-Jie Chen

March 27, 2010 in Commentary | Permalink | Comments (1) | TrackBack (0)

Friday, March 26, 2010

The famous hukou editorial

On March 1, "[a] group of 13 Chinese newspapers from across the country carried an identical front-page editorial ... calling for the abolition of China’s household registration hukou system in a highly unusual co-ordinated critique of government policy." (Jamil Anderlini, "Call to end China citizen registration system," Financial Times, March 1, 2010) It seems, however, that appropriate advance permission had not been obtained. According to the South China Morning Post, "all the publications involved and most major internet news portals have removed the editorial or reports of it from their websites. According to an editor of another media outlet that ran the editorial, the verdict from the Central Publicity Department was brief: 'This act was inappropriate'." Moreover, the same article reported that "[e]ditors at The Economic Observer, the newspaper which initiated a joint editorial published on Monday criticising the mainland's hukou (household registration) system, have been punished for their bold action as other participating media confirmed a government order to remove the editorial from their websites."

Further reports:

It seems that the text of the editorial is still up on some web sites; here it is (available as of today) on the web site of the Chongqing Times (重庆时报). On the assumption that it would be nice to have a reliable source for both Chinese and English versions, however, I'm posting the original and a translation (the author of which has asked to remain anonymous). I'll post the English first, with the Chinese text following.

A Call for Accelerated Reforms to the Household Registration System to Truly Grant Rights to the People

China has long tasted the bitterness of its household registration system! Conceived in the planned economy era, it is an outdated system that has existed for decades and continues to disrupt the people's livelihoods today. It has, without sufficient reforms, ceased being relevant. To this end, on the occasion of the convening of the national "Two Sessions" , we,  the 13 newspapers from 11 provinces, autonomous regions, and municipalities, are issuing a joint editorial and submitting it to the representatives and committee members of the “Two Sessions.” We ask that you use the power in your hands to urge the relevant ministries and commissions to put forward a clear time table for household registration reform; and, to gradually use the demographic information registration system to replace the existing rigid household registration system until it is completely abolished.

The Constitution stipulates that the citizens of the People's Republic of China are all equal before the law, that the nation respects and protects human rights, and that the citizens’ personal freedoms will not be infringed upon. Freedom of movement is an inseparable component of human rights and personal freedom; it is a basic right that the Constitution bestowed the people. However, the current household registration policy has created unequal statuses among urban residents and between urban residents and peasants, constraining the Chinese citizens’ freedom of movement. Alllaws and administrative and local regulations must not contradict the Constitution – this is the legal basis for accelerating the current reforms of the  household registration system.

The household registration system has divided cities and countryside. The first generation of migrant workers invested their labor into the development of the cities. However, their offspring still have no means to resolve the status of their identities. Their children still have to bear the quandary of the previous generation. The cities in which they live remain unable to accept them. We have to ask: for how many more generations must this divide last?

Even within the cities, the household registration system has divided urban residents. In the same city, even though we, like all others,  have struggled for many years for the construction of the city and paid the same taxes, the absence of hukous has rendered us unable  to enjoy the same employment opportunities as others, or the same social services such as medical treatment, education, and elderly care. We have to ask: for how many more generations must this divide last?

The household registration system is a breeding ground for corruption. Because of its scarcity,  hukous have become the objects of buying and selling in many cities. Those with holders’ rights can use them to seek payment; real-estate agents can use them as sales tools. But the countless people who are vulnerable must either pay the money or find themselves without recourse. We  have to ask: for how many more generations must this inequality  last?

Not long ago, Premier Wen Jiabao clearly expressed that the central government had already decided to steadily advance household registration reform. And dozens of other cities nationwide, including Shanghai and Guangzhou, have already launched household registration reform measures. Residential permits are slowly replacing temporary residential permits in these cities, and holders will be able to enjoy the same public services such as social security, medical treatment, and education as local residents. At the same time, the country is accelerating the establishment of a unified national social security services system, bringing about the inter-regional transfer and continuation of social security networks...

Admittedly, progress is gratifying, but in many more areas, we are still disappointed to note the invisible and heavy shackles of household registration, distressing the innumerable hard-pressed people on the run. We are deeply aware of the complicated nature of the household registration policy and the intricate complexities of the details of reform.  Yet, we cannot overlook those who have experienced, are experiencing, and will experience oppression and hardship as a consequence of this policy.  For them, awaiting urgent reforms has made every minute of waiting seem endless.

As China's economy soars, we must also be mindful of the pressing imminence of the economy’s structural transformations. The demographic dividend is fading away, and natural resources will not be available forever. The power behind China's next stage of growth has already begun to point even more so to the adjustment of the internal structure and the optimization of efficient usage of natural resources. Household registration reform is not only good for the people's welfare; it can also inject more dynamism into China's economy. More important, household registration reform can help foster values and ideas centered around people, becoming the cornerstone of making balanced progress in  Chinese society and constructing a harmonious society.

For this reason, we call on representatives and committee members of the national "Two Sessions" to use the power in your hands – power that the people gave you – to urge the relevant ministries and commissions to abolish, as soon as possible, the "Household Registration Regulations" issued in 1958; to put forward a clear time table for national household registration reform; and, to  gradually use the demographic information records system to replace the current rigid household registration system until it is completely abolished.

We hope that our many citizens, whether   they are rooted in the north or south without dividing  them into urban and rural, will all have the same rights to employment, medical treatment, elderly care, education, and freedom of movement. We hope that the one thing that has suffered from many decades of   failed administration will end with this generation, our generation, and enable the next one to truly enjoy the sacred rights of freedom, democracy, and equality bestowed by the Constitution.

吁请加速户籍改革来真正赋权于民
 
  中国尝户籍制度之苦久矣!此诞生于计划经济时代、不合时宜地存在数十年之久之制度,至今仍时时困扰民生,已到非革新不足以与时俱进之境地。为此,值全国“两会”召开之际,我们,全国11个省、自治区和直辖市的13家报纸发表共同社论,提请“两会”代表与委员们,善用你们手中的权力,敦促有关部委提出户籍改革的明确时间表,逐步以人口信息登记制度取代现行僵化的户籍制度,直至将其彻底消除。

  《宪法》规定,中华人民共和国公民在法律面前一律平等,国家尊重和保障人权,公民的人身自由不受侵犯。迁徙自由是人权和人身自由不可分割的组成部分,这是宪法赋予国民的基本权利。然而,现行的户籍政策却造成了城市居民与农民、城市居民之间地位的不平等,制约了中国公民的自由迁徙。一切法律、行政法规和地方性法规都不得同宪法相抵触,这是加速目前户籍制度改革的法理基础。

  户籍制度分割了城市和乡村。最早的一代农民工,为城市的发展付出了自己的劳动,可是,他们的下一代仍然没有办法解决身份认同,他们的子女仍然背负着上一代的困惑,他们生活的城市仍然无法接纳他们。我们要问,这样的隔离究竟还要持续几代人?

  即便在城市中,户籍制度也分割了城市的居民。在同一座城市中,尽管我们与其他人一样为这座城市的建设奋斗多年,一样纳税,但没有户口让我们无法与其他人一样享受平等的就业机会,享受同等的医疗、教育、养老等社会保障。我们要问,这样的隔离究竟还要持续几代人?

  户籍制度还是滋生腐败的温床。正因其稀缺,在很多城市户口成了被买卖的对象。有权者可以以此寻租,地产商可以以此为销售工具,而万千弱势者要么付出金钱的代价,要么无奈地面对。我们要问,这样的不平等究竟还要持续几代人?

  温家宝总理不久前就明确表示,中央已经决定稳妥地推进户籍制度改革。而包括上海、广州等全国数十个城市都已经出台户籍改革的措施。在这些城市,居住证正逐步取代暂住证,持证者将可享受与当地居民相同的社保、医疗、教育等公共服务。同时,国家正在加快建立全国统一的社保服务体系,实现社保关系跨地区转移接续……

  进步固然可喜,但在更多地方,我们仍然失望地看到户籍这一无形而又沉重的枷锁,困住无数疲于奔命的人们。我们深知户籍政策之盘根错节,改革细节之错综复杂,然而我们更无法漠视那些已经、正在以及仍将因此政策而受挫、受苦的人们。对于他们,等待改革的迫切让每一分钟的等待都显得非常漫长。

  中国经济飞速成长的同时,我们也要警醒经济结构的转型已迫在眉睫。人口红利正在消失,自然资源也非源源不绝,中国经济下一轮成长的动力已经更多地指向内部结构的调整与资源使用效率的优化。户籍制度改革不仅利于民生,更能为中国经济注入更多活力。最重要的是,户籍制度改革能帮助确立以人为本的价值理念,成为中国社会各阶层均衡进步、构建和谐社会的基石。

  为此,我们呼吁全国“两会”代表委员,运用你们手中人民赋予的权力,敦促有关部委尽快废除1958年颁布的《户口登记条例》,提出全国户籍制度改革的明确时间表,逐步以人口信息登记制度取代现行僵化的户籍制度,直至最终将其彻底消除。

  我们希望,我万千国民,地无分南北,人不分城乡,都拥有同样的就业、医疗、养老、教育、自由迁徙的权利。我们希望,一项为患数十年的弊政,能终于我们这一代人,让下一代人真正享有自由、民主、平等的宪法赋予之神圣权利。

March 26, 2010 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Job opportunity: Senior Fellow and Project Director for China Health Law Initiative (Georgetown Law)

I have received an announcement of the headlined job opportunity. The first two paragraphs are below. The full announcement is here.

Senior Fellow and Project Director for China Health Law Initiative

The O’Neill Institute for National and Global Health Law is seeking an exceptionally qualified candidate to serve as Senior Fellow and Project Director for the Institute’s China Health Law Initiative.
 
The China Health Law Initiative, a partnership between Georgetown University Law Center’s O’Neill Institute and its Law-Asia Program, seeks to promote dialogue and exchange between the U.S. and China on health law as a tool for improving the public’s health and welfare.  The Senior Fellow and Project Director will develop and direct the program.  Responsibilities will include budgeting, grant management, additional grant writing, partner relations, program implementation, and management of any associated staff.

March 26, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Job opportunity: US government positions in China trade

I have received the following message:

Two China trade-related positions are open in the US government.

One position is for an international trade specialist in the Office of the China Economic Area and the other is for the director of the Trade Facilitation Office in the U.S. Embassy in Beijing.  Two prior directors of the TFO were attorneys, and several international trade specialists have also been attorneys.

March 23, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Why is Australia stonewalling on the Stern Hu case?

I remain baffled by the attitude of the Australian government in the Stern Hu case. Not only has it failed to press for its right to attend all of the trial proceedings, but it has parroted the Chinese government’s line about the legal basis for exclusion and, again taking a leaf from the Chinese government’s book, refused to explain (a) just what laws and regulations it believes allow exclusion, or (b) just who requested it. As I said in an earlier post, I realize these things are complicated, that it's all too easy to kibitz from outside, and that there may be things going on behind the scenes that I don't know about. Still, it does look awfully odd on the surface, and something needs to be explained. If there are any Australian parliament members reading this, could you ask Kevin Rudd about this at question time?

A March 18th press release from the Department of Foreign Affairs and Trade said, “At the request of one of the parties and in accordance with Chinese law and procedure, the Court has decided that the sessions dealing with the infringement of commercial secrets should be closed.”  It added, “Australian officials have asked for this to be reconsidered.”  The next day, another press release said, “The trial is taking place in accordance with Chinese legal processes. Chinese law provides for closed hearings in such cases and the court has decided accordingly.”

In e-mail correspondence with John Garnaut, correspondent for the Sydney Morning Herald, I expressed puzzlement over the following points and hoped he could seek clarification from DFAT:
1. Which party requested that the trial be closed?

2. DFAT seems to be expressing its own opinion that closing the trial is indeed in accordance with Chinese law and procedure. Is this correct? Which laws and procedures is DFAT referring to?
DFAT responded that the request came from “one of the commercial parties on the Chinese side,” but continued to maintain blandly that it was all “in accordance with Chinese law and procedure,” declining to respond to Garnaut’s request to identify which law and procedure it had in mind.

Garnaut asked for more clarification: because this is a criminal prosecution, there would not appear to be any “commercial parties on the Chinese side.” He also repeated his request that DFAT identify which Chinese laws and procedures it believed justified closing the trial. DFAT refused to go any further, offering only this utterly non-responsive response: “The Court decided that the sessions dealing with the infringement of commercial secrets should be closed.”

I just cannot figure out why the Australian government should line up so closely with the Chinese government not only on the substance of the legal analysis, but also in its refusal to explain how it arrived at its conclusions. One expects this only of a government that has something to hide. Has there been some secret deal whereby the Australians promised not to challenge their exclusion in exchange for some trial result? I’m not sure this sets a very good precedent. In exchange for accepting a disadvantageous (and implausible) interpretation of its rights under the agreement on consular relations, what is Australia getting and what did China give up? And if there’s no deal, why is Australia stonewalling and not making a fuss?

March 21, 2010 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Jerome Cohen on the Stern Hu case

Here are some comments from Jerome Cohen on my recent post about the Stern Hu case (posted here with his permission):

Don, I'm very glad to have your careful analysis spelling out the absurdity of the Qin Gang argument on behalf of MOFA. I have been taking the same position as you all week in response to inquiring Australian media and suggesting that they take a look at the Australia-China Consular Convention, which you have carefully done. The Australian Government, perhaps not wanting to affect the trial and sentencing, appears to have gone soft on its correct position that the entire trial should be open to its consular representatives. Surely it should lodge a formal protest and seek PRC correction of its action and the underlying treaty interpretation. 

This is not a minor matter from several points of view. Here I will mention only the international implications, but, as you point out, the domestic legal implications of the current PRC interpretation are also disturbing. I leave those for another day.

First, this issue of the right to consular observation of a trial comes up regularly. Indeed, the current, seemingly endless, Chinese prosecution of Chinese-American XUE Feng on grounds of illegally obtaining state secrets -- not yet(?) downgraded to commercial secrets -- raises the same issue. The USG, since nobody seemed to be minding the legal store last July when the first hearing of the case was held, apparently acquiesced in the exclusion of US consuls even though there have been earlier cases when US consuls were allowed to attend state secrets trials of American nationals in China. The US-PRC Consular Convention contains language similar to that in the Australian-PRC convention. I have expressed surprise at this USG failure to make a vigorous public response, in conversations with both US officials in the American Citizen Services office of the US Embassy and the Department of Democracy, Human Rights and Labor in the State Department, so perhaps, under new leadership, the Embassy and DRL have been pursuing the matter internally with the China Desk and the Legal Adviser's office and now with the PRC. I hope so. In such cases, where the PRC threatens Chinese defense lawyers with criminal prosecution if they reveal anything that happened at the trial-- even to family members and the family legal advisors who retained the lawyers -- consular observers are the only source for learning about the trial proceedings.

Second, all other countries should review their consular agreements with China on this point as well as others including the notice that must be given when the PRC detains one of their nationals for any reason.

Third, MOFA Spokesman Qin Gang's statement that China's "judicial sovereignty" trumps any language that it has obligated itself to in a treaty is, as Don says, ridiculous. I do not think that MOFA's Department of Law & Treaty Affairs would back this statement. Rather, if ordered to defend the court action, it would argue, however weakly, that the treaty allows China to read in an exception to the obligation to admit consular observers because of its domestic laws etc.

3. Just think how convenient the Qin Gang rationale could be. Should the USG, when confronted by the continuing PRC claim that the Taiwan Relations Act violates the sacred "Three Communiques" between the US and China regarding the status of Taiwan, dismiss that claim by stating that no one has the right to question American "legislative sovereignty", which implicitly overrides US international commitments?

4. Since the PRC began to represent China in the UN in 1971, we have witnessed a huge positive change in China's respect for and participation in the world community and its treaties. I hope we are not on the verge of a third stage in which a newly-confident and assertive China increasingly treats international law the way "super powers" have done on occasion. The PRC should focus, instead, on setting a better example in words and deeds.

March 21, 2010 in Commentary, News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

The closing of the Stern Hu trial: a legal analysis

Recently there's been an e-mail circulating around describing how different countries label the various levels of terrorist threat. In Australia, the highest level is "the barbie is cancelled." The e-mail notes that this level has never been declared.

Alas, the Aussies seem to have gone soft in their ready acquiescence to China's closing of part of the Stern Hu trial, set to begin on Monday. Despite initial protests - more accurately, a polite request that the decision to close the trial be reconsidered - the Department of Foreign Affairs and Trade (DFAT) has announced that it's not going to complain any more. But in fact, I think Australia has a very strong case that the trial should be open to its diplomats.

Now, I understand that these things are complicated, and maybe there's something going on I don't know about that makes the picture look different. But on the surface, I have to say it looks very odd. (And don't even get me started about the oddness of Rio Tinto's CEO Tom Albanese addressing a conference in Beijing on the very day the trial starts. His session's topic? "Strengthening Global Cooperation for a Mutually Beneficial Future." Let's not forget on whose behalf Hu and his colleagues are alleged to have stolen commercial secrets. If the government believes its own allegations, why are Rio Tinto executives welcome in Beijing?)

Let me make clear that I have no inside knowledge about the merits of the case against Stern Hu. It remains to be seen what exactly the factual predicates of the alleged violations of law are, and how solid the evidence is of those facts. But I naturally tend to wonder when the accuser is so secretive.

Down to business. The Australian government has announced that "[a]t the request of one of the parties and in accordance with Chinese law and procedure, the Court has decided that the sessions dealing with the infringement of commercial secrets should be closed." For reasons that are not clear to me, they are being a little coy about which party. After all, there are only the defendants and the prosecution. In a subsequent communication, DFAT says it was "[a]t the request of one of the commercial parties on the Chinese side," but this is also puzzling. This is a criminal prosecution. How can there be commercial parties on the Chinese side? Perhaps there is some kind of parallel civil proceeding with an alleged theft victim as plaintiff, as allowed under Chinese law, but if so, it speaks volumes about the alarming opacity of this case that nobody has heard of it until now. (China also allows for a type of private prosecution of some cases, but not this kind.)

There are two issues here. (1) Does Chinese law allow or require part of the trial to be closed because it involves commercial secrets? (2) If it does, is closing the trial nevertheless a breach of China's undertakings in its agreement on consular access with Australia?

First issue: Chinese domestic law

On the first issue, I think the stronger argument is that Chinese law does not allow the trial to be closed on the grounds of commercial secrets. Several law-like documents are potentially applicable. The Criminal Procedure Law (the CPL), which in China's legal system has the highest authority of all of them (i.e., the other ones can perhaps "interpret" it but can't override it), deals with open trials in Article 152. That article says that trials shall be open except in a few limited circumstances. Those circumstances say nothing about commercial secrets.

第一百五十二条 人民法院审判第一审案件应当公开进行。但是有关国家秘密或者个人隐私的案件,不公开审理。十四岁以上不满十六岁未成年人犯罪的案件,一律不公开审理。十六岁以上不满十八岁未成年人犯罪的案件,一般也不公开审理。对于不公开审理的案件,应当当庭宣布不公开审理的理由。

Article 152

Cases of first instance in a People's Court shall be heard in public.  However, cases involving State secrets or private affairs of individuals shall not be heard in public.  

No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public.  Generally, cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall also not be heard in public.

The reason for not hearing a case in public shall be announced in court.

If the CPL were the only law on point, then the case would seem to be open and shut: Australian government representatives can't be excluded. Indeed, nobody can be excluded. But there are some other regulations on point as well (whether they override the CPL is another matter; I'll get to that later).

First, there is a 1998 "Interpretation" (a type of quasi-legislation) issued by the Supreme People's Court: the "Interpretation on Several Issues Relating to the Implementation of the 'Criminal Procedure Law of the People's Republic of China'" (关于执行《中华人民共和国刑事诉讼法》若干问题的解释). Article 121 of the Interpretation repeats the rule of the Criminal Procedure Law, and adds, "In cases genuinely involving commercial secrets where a party so requests, the court should decide to hold a non-public trial" (对于当事人提出申请的确属涉及商业秘密的案件,法庭应当决定不公开审理). This adds a basis for closing the trial that was not present in the Criminal Procedure Law. It also does not specifically state that the party requesting the closure of proceedings must be the party who will be hurt by the release of the secrets, even though one would think that is probably what is meant (more on that later).

Second, there is a 2007 Supreme People's Court document entitled "Several Opinions on Strengthening the Work of People's Courts in Holding Public Trials" (关于加强人民法院审判公开工作的若干意见). (This should not be confused with a judicial opinion; it's legislation, not case law.) Article 3 of the Opinions states, "Statutory rules on the scope of public trials shall be rigorously implemented; in the course of adjudication work, state secrets and secrets of judicial work shall be strictly kept, and the parties' private affairs and commercial secrets shall be protected according to law." (要严格执行法律规定的公开范围,在审判工作中严守国家秘密和审判工作秘密,依法保护当事人隐私和商业秘密) Article 11 states, "When a party raises the issue that the case concerns personal private affairs or commercial secrets, the people's court should synthesize factors such as the views of the parties and normal rational cognition of society, seek the views of experts where necessary, and decide [whether or not to close the trial] on the basis of a rational judgment" (当事人提出案件涉及个人隐私或者商业秘密的,人民法院应当综合当事人意见、社会一般理性认识等因素,必要时征询专家意见,在合理判断基础上作出决定).

The Interpretation and the Opinion raise two main issues. First, does the party who objects on the grounds of commercial secrets have to be the party who will be hurt by their public airing? I think the more plausible view is Yes. If there is a public policy good that is served by having open trials, what supervening value is served by allowing a party to close it on the grounds that someone else's commercial secrets will be revealed? Note that it can't be a general desire to preserve commercial secrets, because in that case there would be no reason to limit objectors to parties to the case; the person being damaged should be allowed to request that the trial be closed. But the right to object is limited to parties.

If this interpretation is correct, then the procuracy (the government prosecutors) have no standing to ask that the trial be closed on the grounds that commercial secrets (presumably those involving Chinese ore purchasers) are involved. As noted above, DFAT is now saying that it was a "Chinese commercial party," but it remains to be explained how there can be a Chinese commercial party in a criminal case. [4/20 UPDATE: I now have the explanation; I overlooked Art. 82(2) of the Criminal Procedure Law, which defines "party" to include victims (alleged victims, really) of a crime. Thus, the Chinese steel producers could have been parties within the meaning of Chinese law. My mistake.]

The second main issue is whether, assuming that these rules do give the prosecution - or somebody - the right to close the trial on the grounds of commercial secrets, the rules are valid and superior to the rule of the CPL, even though they seem to contradict that rule. Chinese law is very clear that laws like the CPL, passed by the National People's Congress, are higher than anything promulgated by the Supreme People's Court (SPC), and that the SPC has the power only to interpret ambiguities, to fill in the gaps, etc. In fact, the SPC engages in extensive legislative activity that often seems to go way beyond its lawful authority, and the system more or less accepts that reality. But is the Chinese government prepared to say that the SPC can, in practice, override what the NPC says?

Perhaps one could say that the SPC hasn't exactly overridden the rule of the CPL, since the CPL never said anything about commercial secrets one way or the other. It didn't say commercial secrets could not be grounds for closing a trial, and so the SPC is just adding a condition, not contradicting the CPL. This argument strikes me as silly. Chinese law is quite capable of saying "etc." and "and in other similar cases where it is deemed necessary." But it doesn't say so in Art. 152 of the CPL. It says all trials shall be open with the exception of trials in circumstances X, Y, and Z. If the failure to specify that commercial secrets can't be added to the list means that the SPC can add them, then what about the failure to say anything about trials on Tuesdays, or trials of people surnamed Zhang or who have beards?

For these reasons, I conclude that (a) the rules issued by the SPC do not in fact provide grounds for the procuracy to ask that the trial be closed, and (b) even if they do, those rules cannot override the CPL rule to the contrary.

Second issue: China's treaty obligations

But suppose you don't buy any of the above and believe that Chinese domestic law justifies closing the trial on the grounds of commercial secrets. That doesn't end the discussion. We still have to ask whether China as a state has a treaty obligation to allow Australian consular representatives to attend the trial.

Here the answer seems to be pretty clearly Yes. The argument in summary is this: (a) the Chinese-Australian agreement on consular access very clearly gives Australia the right to send consular representatives to attend trials of its nationals in all cases, with no exceptions listed; (b) there is evidence that this provision was important and was specifically negotiated; and (c) the arguments that other provisions take away this right are not strong.

Article 11(1)(f) of the Agreement on Consular Relations Between the People’s Republic of China and Australia [Chinese text] states:

[I]n the case of a trial or other legal proceeding against a national of the sending State in the receiving State, the appropriate authorities shall make available to the consular post information on the charges against that national. A consular officer shall be permitted to attend the trial or other legal proceedings (遇有派遣国国民在接受国受审判或其他法律诉讼,有关当局将向领馆提供对该国民提出指控的情况,并应允许领事官员旁听审判或其他法律诉讼)

Seems pretty clear, right? No exceptions contemplated. But what about Article 11(2)? That says:

The rights and obligations referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, provided however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. (本条第一款所规定的权利和义务的实施应遵守接受国的法律规章,但此项法律规章务须使本条所规定的权利的目的得以充分实现。)

So first of all we have what might appear to be an exception: the rights must be exercised in conformity with Chinese laws and regulations. But is it plausible to suppose that the parties intended that phrase to mean that the laws and regulations of the receiving state could utterly nullify the rights just granted? Even without the "provided, however", that interpretation is implausible. And it becomes impossible to maintain once we take into account the "provided, however" phrase, which makes it clear that a state cannot use its domestic law as an excuse to override the rights granted in Art. 11(1).

That the parties meant what they said becomes even more likely when we look at the Vienna Convention on Consular Relations, to which China and Australia are both parties and from which they borrowed a lot of the relevant language. The parallel provision in the Vienna Convention is Article 36. Para. 2 of Art. 36 tracks Art. 11(2) of the Australia-China consular agreement virtually word for word - far too closely for it to be an accident. But Para. 1 is different - the consular agreement adds in things not present in the Vienna Convention. Here's Art. 36(1) of the Vienna Convention:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State, shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

And here's Art. 11(1) of the bilateral consular agreement, with new matter highlighted:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State: 

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; 

(b) consular officers shall be entitled to ascertain conditions in life and work of a national of the sending State in the receiving State and provide him or her with necessary assistance at all times; 

(c) consular officers shall be entitled to request the competent authorities of the receiving State to ascertain the whereabouts of a national of the sending State, and the competent authorities of the receiving State shall do everything reasonable in the circumstances to provide the relevant information; 

(d) consular officers shall be entitled to receive and take into temporary custody money or valuables of a national of the sending State in accordance with the laws and regulations of the receiving State; 

(e) the competent authorities of the receiving State shall within three days inform the consular post of the sending State if, within its consular district, a national of the sending State is arrested or committed to prison or to custody pending trial or is detained in any other manner, unless that person expressly requests that the consular post of the sending State should not be informed. The authorities of the receiving State shall inform the consular post of the reasons for which a national has been arrested or committed to prison or to custody pending trial or detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the detained person concerned without delay of his or her rights under this sub-paragraph; 

( f ) in the case of a trial or other legal proceeding against a national of the sending State in the receiving State, the appropriate authorities shall make available to the consular post information on the charges against that national. A consular officer shall be permitted to attend the trial or other legal proceedings; 

(g) in the case of a trial or other legal proceedings against a national of the sending State, the appropriate authorities of the receiving State shall make available adequate interpretation to that national when necessary; and 

(h) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him or her, and to arrange for his or her legal representation. They shall also have the right to visit, to converse and correspond with any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Access to detained nationals of the sending State shall be guaranteed by the competent authorities of the receiving State to a consular officer of the sending State within two days of initial notification of arrest or detention as specified in paragraph 1(e) of this Article, and at least once a month thereafter. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he or she expressly opposes such action.

In other words, the language about access to trials isn't just meaningless boilerplate. One or both of the governments involved felt that the Vienna Convention was inadequate in a number of ways, wanted these provisions put in, and got what they wanted.

Thus, I conclude that China has a treaty obligation to Australia to allow access to the trial, whether or not it has an obligation to open the trial to anyone else.

The Chinese government's answer

Finally, it's worth looking at what the Chinese government has to say about this. Regrettably, it has offered no serious, reasoned defense. On March 18th, Ministry of Foreign Affairs spokesman Qin Gang addressed some of these questions in a way that should forever put to rest accusations that Chinese government bureaucrats don't have a sense of humor. When asked about the closing of the trial, he insisted it was being handled in accordance with the Australian-Chinese agreement on consular relations and added this bizarre observation: "China has from ancient times stressed silence in the courtroom because the courtroom is a dignified place; one can't make a lot of noise before the trial has begun, one can't interfere with the independent handling of the case by China's relevant departments" (中国自古讲究开庭肃静,因为法庭是一个庄严的地方,不能在还没开庭的时候就冒出各种杂音,不能干扰中国有关部门依法独立办案). What this has to do with excluding Australian diplomats from the trial is not clear. Perhaps it is the Aussies' reputation for loving a good party. Are they afraid the diplomats will try to interrupt the trial with a barbecue?

When asked again about the matter, he responded, "Please don't mix up the relationship between a country's sovereignty, particularly its judicial sovereignty, and the Chinese-Australian Agreement on Consular Relations. The Chinese-Australian Agreement on Consular Relations must be premised on respect for China's sovereignty and judicial sovereignty" (请你不要混淆一个国家的主权,特别是司法主权和《中澳领事协定》的关系。《中澳领事协定》应以尊重中国的主权和司法主权为前提). Um... I hate to be the one to break the bad news, but the right to do exactly as you please is precisely what you give up when you enter into an international treaty. It is your sovereignty that makes your promise meaningful. Does the Ministry of Foreign Affairs really back Mr. Qin's interpretation of what it means to sign a treaty - that any obligation can be waved off by saying the magic word "sovereignty"? Does China expect those with whom it signs treaties to treat their obligations similarly? This would certainly be a new direction in Chinese foreign policy.

March 21, 2010 in Commentary, News - Chinese Law | Permalink | Comments (1) | TrackBack (0)