By Jerome A. Cohen
Protests against the formal “arrest” of former diplomat Yang turned Australian citizen are beginning to mount. Australian officials have vigorously denied the espionage charges and condemned the PRC prosecution. The PRC’s Ministry of Foreign Affairs has accused Canberra of impermissible interference with PRC justice. It claims that Yang, who has been held incommunicado for more than 6 months, is being treated in accordance with Chinese law. This is true. The problem, of course, is that Chinese law violates basic precepts of international human rights law.
Although, in conformity with the Sino-Australian consular treaty, Yang’s jailers allow him monthly half-hour consular visits that are strictly limited in topics that can be discussed and monitored, they have yet to permit him access to a lawyer, even one chosen by the jailers. “Arrest” usually means the detained suspect is headed for indictment, trial, conviction and imprisonment, and the espionage charge guarantees a very long sentence, although the death penalty is always a threat.
A lawyer will eventually be provided to decorate the proceedings if the authorities refuse to allow the accused a counsel of his choice. In any event the defense lawyer’s role will be restricted and the Party-controlled court will reach the conclusions instructed by the Party leadership.
One practical issue of special interest to international lawyers is whether the PRC will allow Australian consuls to observe the trial to the extent it is deemed “secret”. In the Stern HU case some years ago the PRC violated even its own internal regulation in refusing Australia access to the secret parts of naturalized Australian Hu’s trial. The PRC should have based that determination on a valid interpretation of a disputed provision of the bilateral consular convention but instead simply sought to justify it with a reference to China’s supposedly untrammeled judicial sovereignty. Apparently that sovereignty is not even subject to international commitments made by the PRC in the exercise of its sovereignty!!