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.’ He notes a fundamental aspect of Chinese criminal procedure that will help throw light on the Rio Tinto trial: While Western 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 colours 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 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 per cent 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.’

More ominous than the usual procedural obstacles to a fair trial by Western standards is the possibility of extra-judicial Chinese Communist Party and government influences on court procedures and outcomes, which are most visible in the Rio Tinto case. The original charges were for stealing ‘state secrets,’ unspecified, and then changed to bribery and theft of ‘commercial secrets,’ although to date just whose ‘secrets’ were stolen has not been disclosed.

There is also a bribery charge, which has not been linked to the alleged theft of commercial secrets. Although the four defendants have pleaded guilty to accepting bribes, there has been no explanation of why they have been prosecuted without any mention of the steel companies that were supposedly the alleged bribers. An alleged briber of one of the defendants was named at the trial, but according to that defendant’s lawyer the money was paid for another purpose, and the other alleged bribers have not been identified. ‘At least two of the defendants’ have denied guilt on the commercial secrets charge, according to a Wall Street Journal report.

Because one of the defendants is an Australian citizen, another troubling aspect of the Rio Tinto trial, raised by Chinese law expert Professor Donald Clarke of the George Washington School of Law, discussed here, is that according to the Australian government, when Australian consular officials requested that they attend the portion of the hearings on state secrets, they were told that it was closed ‘at the request of one of the parties and in accordance with Chinese law and procedure.’

But the issue is confused. The Chinese Criminal Procedure Code (CPR) does not provide for closing a trial because commercial secrets are involved, while rules issued by the Supreme People’s Court do provide for protection of such secrets. Clarke argues that the Court’s rules cannot override the CPR, a national statute that should in theory be superior to them. He also notes that no ‘party’ other than the defendants and the prosecution has been identified, and that there is no indication of how there can be a Chinese commercial party in a criminal case.

Another instance of Chinese government involvement in the Rio Tinto affair is violation of the Sino-Australian Agreement on Consular Relations. That treaty provides unconditionally for Australian consular representatives ‘to attend trials of (Australian) nationals in all cases.’ Although Australia, in the Agreement, agreed that its rights and obligations would be exercised ‘in conformity with (Chinese) laws and regulations,’ China also agreed that Chinese law ‘must enable full effect to be given’ for the purposes for which the Australian rights are intended.

Can China use its domestic law to override the rights granted under the consular agreement? The conclusory invocation of China’s ‘sovereignty’ given by a Ministry of Foreign Affairs spokesman implies, Clarke rightly says, that ‘the right to do exactly as you please is precisely what you give up when you enter into an international treaty.’ China’s conduct in this case has worrying implications for future Chinese interpretations of its international obligations.

Rio Tinto and Chinese authorities have certainly discussed this case and its implications, given both the importance to the Chinese economy of the iron ore that Rio Tito sells to China, and of China as the source of 42 per cent of Rio Tinto’s revenue, according to the company’s CEO, quoted here. Although the charge of violating ‘state secrets’ disappeared, the fact that it was invoked at all indicates that the Chinese government thought the case deserved special handling.

Have the discussions led to agreement on both the trial procedure and the trial result? Regardless of what we may or may not learn later, this case has so far been marked by an extraordinary lack of transparency of the proceedings, the usual procedural handicaps imposed on defense lawyers, and manipulation of judicial procedures for political purposes.

This article was first published here by the Wall Street Journal’s China Real Time Report.

Stanley Lubman, a long-time specialist on Chinese law, is a Resident Lecturer at the University of California, Berkeley, School of Law and a regular contributor to the Wall Street Journal‘s China Real Time Report.