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China law expert baffled by Australian stance on Stern Hu case | Connect Asia

China law expert baffled by Australian stance on Stern Hu case

China law expert baffled by Australian stance on Stern Hu case

Updated 18 January 2012, 18:35 AEDT

One China law expert says he's baffled why the Australian government is not being more forceful in getting Australian diplomats admission to the hearings, especially the part dealing with commercial secrets.

Presenter: Sen Lam

Professor Donald Clarke, China law expert, George Washington University Law School.

CLARKE: I'm quite baffled by their ready acquiescence to being excluded from the part of the trial dealing with commercial secrets, because my own research on this suggests that there's not a good basis, even in Chinese domestic law, for excluding them and even if there were, China and Australia have a treaty on consular relations which specifically states that Australian consular representatives shall have the right to attend the trial of Australian nationals, and it doesn't list any exceptions. Therefore, it seems to me that Australia's legal position is extremely strong in insisting that its diplomats be able to visit, to attend all parts of the trial.

LAM: Very little was known about the trial proceedings on day one. Is this usual in Chinese courts or is this a particularly sensitive case?

CLARKE: Well this seems to be a particularly sensitive case, although I think it's fair to say that very few Chinese trials are truly open in the sense that anyone can just walk into the court room and sit themselves down. The default rule in the criminal procedure law is that all criminal trials are supposed to be open, except for when there's a limited number of circumstances, for example state secrets. Interestingly, commercial secrets are not one of the circumstances listed in the criminal procedure law that allows the closing of trials.

LAM: So were the proceedings on day one in the Shanghai court, were they a reminder of the ongoing opaque nature of China's legal system and indeed, legal culture, despite its ongoing and increasing engagement with the rest of the world?

CLARKE: I think it's fair to say that that's a sign of the continuing opacity of the system, yes. In that there's no reason has been offered for closing the trial except what appears to me a somewhat lame excuse that there's not enough room to sit everybody down. In a court that's interested in transparency, you can always manage. You could have close circuit tv there, you could sit people in another room, you could seat people by lottery, you could do something or other. But the response of a court that is truly interested in transparency and needed to follow a rule of public access would not be simply to shut everyone out. My understanding is that not even Stern Hu's wife was at the trial. So the courts remain an area of high government concern and extremely tight governmental control, that's always been the case and I think it's still the case.

LAM: The four Rio Tinto executives admitted to taking bribes, but disputed the amounts. Is this serious for the defendants or do you think the court would take a slightly more lenient view, now that they've made this confession?

CLARKE: Well, Chinese law has a principle of leniency to those who confess and severity to those who resist. I don't know what has been going on behind the scenes and I don't have any knowledge about the guilt or innocence of the defendants, so it's hard to say what exactly the result will be. I have a feeling that it's unlikely that the judges sitting in the court will be the ones who make the final decision about what the sentence will be. I mean, perhaps they'll have some input but I'm sure the final word is not going to be with them.

LAM: So are you saying that the final word rests with China's political leaders?

CLARKE: I believe that to be true. Of course, I don't have solid evidence but simply based on my general knowledge and background and things I've seen going on in the Chinese legal system, it would surprise me to find that the decision in this case was being made solely by the judges of the case. For example, apparently, the CEO of Rio Tinto made a speech in Beijing at the conference he was attending on Monday in which he said a few words about the case and those words were deleted from I guess it's a record of his speech on the conference website. Now, if there's not high level political involvement in Beijing in this case, why is it that that happened? If this is solely just some judges in Shanghai hearing an ordinary criminal case, you know, why is that going on?

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