Some Questions about the Cheng Lei Prosecution

By Jerome A. Cohen

Since Thursday’s secret trial of the Australian journalist Ms. Cheng Lei, I have seen little mention of the case. Yet, as we await the Beijing court’s decision, many questions persist. Since acquittal would be a stunning surprise, I hope that quiet negotiations are taking place between the Australian and Chinese governments that will limit the sentence to prison time already served plus immediate deportation. Alternatively, her immediate release and deportation could be rationalized on the ground of alleged need for foreign medical attention even though she may be formally sentenced to a longer stretch in prison.

There are many precedents for both possible outcomes in the PRC, which regards such results as acceptable in cases that have aroused foreign outrage. Criminal conviction and sentencing are seen to vindicate PRC justice and sovereignty, and the defendant’s subsequent release is portrayed as a demonstration of Chinese munificence. I assume that the hope for leniency accounts for the apparent failure of the Australian Government to protest the exclusion of its ambassador from attending the trial as a blatant violation of the Australian-Chinese consular treaty as well as for the general reasons cited by the ambassador.

I have not seen Ambassador Graham Fletcher’s full statement issued outside the courthouse, nor any subsequent statement of his government, but the report on the case by Alice Uribe in the Wall St. Journal is worth noting. It is good to know that Ms. Cheng was allowed a recent consular visit while in pre-trial detention and that she appeared to be doing well in the circumstances, although denied the opportunity to speak with her children. It is also good to know that she is being defended by very competent lawyers of her choice. But on what basis did the ambassador conclude that the lawyers “are doing their job well”?

Has he discussed the case in detail with the lawyers? Have they had unfettered access to their client and been allowed to conduct an independent investigation? If they have received a copy of the indictment, as required by Chinese law, were they permitted to discuss it with the ambassador as well as their client? Did the lawyers themselves know the basic facts alleged so that they could at least seek to prepare a credible defense?

In many such cases defense lawyers are not allowed to share information about the case even with those who have retained them to represent the accused. And, since the trial, have the lawyers been permitted to report to Cheng’s family and the ambassador what took place at the brief secret trial? As Ambassador Fletcher rightly said outside the courthouse Thursday: “We can have no confidence in the validity of the process, which is conducted in secret.”

One thing the ambassador stated was truly puzzling. When asked whether he believes the case is a political one, he responded: “We have no reason to make that conclusion.” What? Perhaps that remark was meant to leave open the door to a behind-the-scenes negotiation leading to Ms. Cheng’s long-overdue freedom. Let’s hope so!

As Tensions Rise, Australian Citizen Cheng Lei is Detained in Beijing

By Jerome A. Cohen

On August 14, the Australian government was notified that Cheng Lei, an Australian citizen working as a TV anchor for China Global Television Network, was detained in Beijing and is being held under “residential surveillance at a designated location” (RSDL). Although Australian scholarship on comparative law and politics relating to China is impressive, no learned books, law review articles or op-eds can do as much to alert public opinion to criminal injustice in China as recent arrests of Australian citizens who were formerly PRC nationals. They highlight the regime’s resort to RSDL, which vitiates the ordinary protections prescribed in the PRC’s Criminal Procedure Law for up to six months by authorizing the incommunicado detention that has so often fostered torture and coerced confessions. Good luck to those who seek to organize legal assistance for Ms. Cheng Lei!

On August 27, Australian officials held an initial consular visit over videoconference with Cheng. It would be interesting to learn details of the consular visit remotely allowed. Did Australia press for an in person visit but was rebuffed? Was the remote visit different in substance from the usual in person visit? Still the same restrictions against discussing the case that landed the suspect in detention? Generally, one of the few benefits of the PRC’s restricted consular visits is the opportunity for the visiting diplomat to closely observe the physical and mental condition of the suspect and to detect any gestures or reactions that might reveal the true conditions of the suspect’s plight. To what extent was the remote interview satisfactory in this respect or others? I have never been happy with the refusal of the protecting foreign government, the US included, to reveal information about detention of its nationals by invoking rules against violating the detainee’s privacy. My experience in seeking to aid detainees held in China suggests that they often need and want publicity in order to generate public pressure for their release or at least the improvement of the conditions of confinement.

Arrest of Australian citizen in China: Beijing-Canberra tension

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!!

Chinese detention of Australian blogger Yang Hengjun

Jerome A. Cohen

The Chinese government has confirmed it has detained Yang Hengjun, a naturalized Australian who is a famous blogger in China, in “residential surveillance.”

The PRC’s actions in this case—including failure to inform the Australian embassy within three days of his detention and the reason for detention, and failure to provide consular access—are in plain violation of the required consular protections under the China-Australian consular agreement.

“Residential surveillance” sounds comforting but the version now so much in vogue in the PRC is not the original residential surveillance that might be considered similar to “house arrest” in other countries but “the designated location” version (RSDL) that Ai Weiwei’s illustration of his personal experience has done so much to expose. It is absurd to call it “house arrest” or claim it is similar to “home detention”, as Australia’s Defense Minister recently said mistakenly. Actually, Ai Weiwei’s theater and art show a tough, endless regimen that is nevertheless milder than that to which too many others have been subjected. RSDL frequently constitutes impermissible torture that violates both Chinese and international law.

If we go to China in the current circumstances, those of us critical of certain PRC actions now risk six months of RSDL for “investigation” of charges of possibly violating China’s “national security”. So far, as we have just seen in the PRC’s latest reaction to the Canadian-American Meng Wanzhou case, foreign critics of PRC “hostage justice” have only been attacked for “interfering with China’s sovereignty”. If we now dare to visit China, will we, like hapless blogger Yang, be detained for possibly “interfering with China’s national security”?