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这是澳州广播电台（ABC）中对Jerome Cohen的访谈，Cohen是纽约大学的中国法律专家，在这里他从一个西方人的角度看中国的司法体系，我觉得还是很客观的。
Cohen discusses China's tense relationships
http://www.abc.net.au/lateline/content/2008/s2632959.htm
TONY JONES, PRESENTER: Our guest tonight is Jerome Cohen. He is one of the world's leading experts on Chinese law. He's the co-director of New York University's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations. He joins us now live from New York.
Thanks for being there, Jerome Cohen.
JEROME COHEN, NEW YORK UNIVERSITY LAW SCHOOL: Delighted.
TONY JONES: What rights under Chinese law does a prisoner like Stern Hu have after being accused of stealing state secrets?
JEROME COHEN: Well, he has very few compared to the rights in most of the major industrialised countries. He's not allowed to see a lawyer until the police decide they'll permit that - until usually the investigation ends. That could be many months down the road. He's not allowed to see family. He's not allowed on bail - it would be different if he were released on bail. So, he's in a very tough position until the investigation concludes. At that point, he has a right to see a lawyer. However, his conversations with that lawyer will be limited, perhaps, and quite circumscribe, recorded, and the lawyer will not have much opportunity to conduct his own investigation. Of course, he'll be entitled to a trial, but the trial will be closed to the public, if it's held according to the usual state-secrets circumstances. There won't be media there. We hope there'll be an Australian diplomat present, but in recent cases, even with other countries such as the United States, the Chinese do not often comply with that treaty requirement. It depends on the circumstances. I've been in some cases where American diplomats have been permitted to be observers at trials that are secret. Witnesses may not appear in court; normally in China, even in criminal cases, they don't. That means the right to cross examination that Chinese law provides is an empty right. You can't cross examine a piece of paper; you have to have someone in front of you. If ...
TONY JONES: OK. Sorry, we might just break down some of these issues, because it's a pretty complicated process. First of all, he was arrested by officials from the Ministry of State Security. Now why would they be involved in a case of a mining executive whose information is really about the price of iron ore?
JEROME COHEN: Well, the Ministry of State Security - unlike the Ministry of Public Security, which regulates the ordinary police - handles international security matters. They are modelled on the former Soviet KGB and this is their jurisdiction. Now, in China, you still have the remnants of a socialist state. Many of the business officials one deals with are considered functionaries of the state - employees of the state. And even though they may work for a major steel company, they are still regarded as government officials. And if they have secret information in their possession, the government says that information is a state secret. And even if it isn't a state secret, they have a second category that they often use called ‘intelligence’. You can also be convicted with the same punishments for conveying intelligence to a foreign organisation - not merely state secrets. And intelligence is even harder to define and confine than state secrets.
TONY JONES: Let's look at this most serious charge against him - that of stealing state secrets. Who is it that decides what is or is not a state secret?
JEROME COHEN: Well, every agency has to make an initial determination, just as the security police have here. But the ultimate power to decide what is a state secret lies in the National State Secrets Bureau. And what often happens in a case like this, often after the suspects are detained, is the police then have to ask for a formal opinion from the State Secrets Bureau, and it decides whether or not the material that has already been acquired constitutes a state secret. That means at the time that the suspect got the material, it may well not have been marked as "state secret". And the question then is: how should the suspect have known this would be regarded as a state secret? And that depends on the surrounding circumstances.
TONY JONES: Would you agree that in colloquial terms that's what we would describe as a catch 22?
JEROME COHEN: Well, of course. For many contexts you're apt to know that certain material is highly sought after and not in the public domain. If we're talking about, for example, what is the Chinese-steel-industries bottom line in negotiating the price of iron ore? - it's a very valuable piece of information to the foreign negotiators to know where the Chinese Government will stop. And I've often been in negotiations representing foreign companies in China where it would have been very valuable to know what is the other side's bottom line. But I didn't know it.
TONY JONES: Since the National State Secrets Bureau can basically make its decision retrospectively, is there any way for Hu's lawyer to actually challenge that decision?
JEROME COHEN: No. Unfortunately, there is no right to participate in the decision-making process of the National State Secrets Bureau. There's no hearing, etc. on this; you're simply given their mandate. And when the matter comes up at trial, there is no way a lawyer can challenge whether or not this was a reasonable application of China's state secrets laws to the facts of the case.
TONY JONES: Let's talk about the trial itself and how the court operates. The one thing we know is that he will appear before three judges. But do they also act as prosecutors? Or is there a separate prosecutor and a defence lawyer on the other side? How does the court operate in that regard?
JEROME COHEN: Yes, there's no jury trial, of course, although China lately has been showing some interest in juries. The fact is you have these three judges. One of them takes the lead. There is a prosecutor present, there is a defence lawyer present in a major case like this, although in many cases there would be no defence lawyer. And these judges are not judges in our sense; they're more like administrative tribunal people. They hear the case; they then will make a recommendation, perhaps to the division chief above them. In this kind of a case, it's so important, it will go to a committee of administrators within the court who have not been at the hearing called the adjudication committee, and they have the formal, final power to decide. But of course in cases of this sensitivity, they are often helpless - they await instruction from higher court and Communist Party officials.
TONY JONES: So, in fact, the process is by no means independent in the way - independent of politics and of the party in the way that we might expect a court to be independent.
JEROME COHEN: There is no doubt the Communist Party controls the decision-making in individual important cases in China, and they make that very clear.
TONY JONES: So, has this legal system been reformed at all or moderated since the time of Chairman Mao, when one presumes it was all put it in place?
JEROME COHEN: Yes, since Chairman Mao's death the system has undergone many reforms. It is far better than the chaotic, totally unfair system that preceded it. But it still doesn't come close to meeting international minimum standards of justice. The human rights community has been pointing this out for decades and the business community is gradually awakening to the fact that if you do get in this kind of trouble in China - whether or not they've got the goods on you - you haven't got a fair chance to defend yourself. My hope is that the stimulus of the foreign business community - not just from Australia, but also for many other countries - will get the Chinese leaders to see the need to engage in further reform of their criminal justice system so it meets the demands of the international business and human rights community.
TONY JONES: Do you have any idea how many people accused of this crime of stealing state secrets have actually been found not guilty - if any?
JEROME COHEN: No. I do know of one case. I was an advisor to the New York Times some years ago and one of their employees was accused of providing secret information to a foreign agency - the New York Times. And actually, after enormous amount of pressure and effort, they found the suspect not guilty. We were startled. But, in order to save face, they nevertheless convicted him of a minor offence that had nothing to do with state security - that wasn't the reason for detaining him -and they sentenced him to a few years in prison because he'd already been locked up for at least a couple of years by the time the case came to final decision. That's the vice of not allowing bail. People like Stern Hu can be confined for many months, even years, while this process goes on. It doesn't give them a fair opportunity to defend themselves. It punishes them even before there's a decision whether or not they should be punished.
TONY JONES: Given the obvious role that politics plays in the court system, does it also play a role in what is investigated? For example, there've been accusations that the Chinese Government is effectively taking revenge here on Rio Tinto for refusing to allow a major Chinese company to take it over.
JEROME COHEN: Yes, this is one of the most fascinating aspects of the case: the timing of it. China is rife with corruption. Most of countries, including my own, have serious corruption problems, but we have a free press and we have quite a free legal system to try to deal with it. But in China, corruption often goes uninvestigated. If somebody is very well-connected, it often insulates the person from this kind of investigation. Now, why did this investigation occur now? Some people, based on long experience or perhaps undue cynicism, think it could have had something to do with the failed negotiations for Chinalco to acquire an interest in Rio Tinto. I think more people feel it may have something to do with the difficulties of negotiating the iron ore price. That would be very, very unfortunate, if it proved to be the case. It is the case, I think, that the steel industry warrants investigation by the Chinese authorities. I'm personally glad to see there is an investigation. The question is: why now, and why did they choose these people to start? I think this investigation, inevitably, is only part of a much broader investigation. How far the Chinese authorities will be willing to carry it when it - obviously the higher it goes, the broader it gets - is going to affect some influential people within the party - is going to be a very serious question. So, corruption exists, the problem is: when do they choose to investigate it, and who gets punished and who doesn't get punished? Who gets away with it?
TONY JONES: Jerome, we're nearly out of time, so very briefly, is there anything else that a government like Australia can do to make sure that this case goes through quickly or to make sure that some justice prevails in the process?
JEROME COHEN: I think the most fundamental immediate thing Australia could do is to ask the Chinese Government to have the secret police exercise their discretion, which they have, to allow Mr Hu and his colleagues to see a lawyer. It's up to them. This is not a matter of law that precludes it - this is not a matter that requires it. But I think in decent respect for the opinions of Australia and other governments and peoples involved, they should see the need to get this man a lawyer who's free to talk to him who can give free legal advice. Second, I would ask for permission for him to get the Chinese equivalent of bail. They call it "chu bou houshon" (phonetic spelling): obtaining a guarantee pending trial. I think those are the most immediate questions. Access to counsel and free on bail.
TONY JONES: Jerome Cohen, it's been very interesting talking to you. We'll perhaps do it again as the trial proceeds if you have the time, but we thank you very much for coming to speak to us again tonight.
JEROME COHEN: Thank you. |
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继续写足球——西甲综述 (2008-11-30) joaquin 
楼主:seanhe
发表于 2009-7-22 13:20
美国经济还不够发达么？
开句玩笑，如果规定全体国民都要砍掉右腿，只有警察可以装假肢的话，治安还能更好一点。
