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Friday, Jan. 21, 2011
China 'reasonably' pre-empting N.Z. justice
By FRANK CHING
HONG KONG — Last October, when the Norwegian Nobel Committee awarded the 2010 Nobel Peace prize to imprisoned Chinese dissident Liu Xiaobo, official Chinese spokesmen waxed indignant. A spokesperson for the Beijing Municipal Higher People's Court, which had sentenced Liu to 11 years in prison on a charge of inciting subversion of state power, termed the committee's action "rude interference in China's judicial sovereignty."
Similarly, in 2009, after the arrest of Rio Tinto executive and Australian citizen Stern Hu, the Chinese foreign ministry spokesman warned Australians who were "making noise about this case" that it constituted "interference in China's judicial sovereignty."
Now, to some people, the shoe appears to be on the other foot as China prepares to try one of its own nationals for a crime committed overseas rather than allow that country to exercise its judicial sovereignty.
Chinese national Zhen Xiao, a kitchen hand accused of stabbing to death Hiren Mohini, a New Zealand taxi driver, in January 2010, will be tried not in Auckland but in Shanghai.
"It is an insult to the jurisdiction of New Zealand," thundered associate professor Bill Hodge of the University of Auckland. Delivering justice, he said, "is the duty of a sovereign." This is apparently the first time that a case involving a murder committed in New Zealand will be tried outside of the country. Understandably, it is provoking debate.
However, under Chinese law, Chinese courts have jurisdiction over crimes committed by Chinese citizens overseas. Moreover, the concept that a country can try its own citizens for a crime committed in another country is by no means novel.
Under English law, according to the Offenses Against the Person Act 1861, British courts have jurisdiction over British citizens who have committed murder or manslaughter abroad.
As recently as 2006, this act was invoked against a British citizen living in Guyana who shot and killed a man who had robbed his wife and sister-in-law. He was charged with murder when he returned to England and was eventually convicted of manslaughter.
Theoretically, if Zhen Xiao had been apprehended after killing the taxi driver, he could have been tried in a New Zealand court. Because the suspect fled the country and returned to China, where he was eventually apprehended, it became difficult to return him to New Zealand's legal jurisdiction. For one thing, China and New Zealand have not signed an extradition treaty, so there is no legal channel for the return of fugitive offenders.
But even an extradition treaty would not likely change the situation since China does not allow the extradition of its own nationals to foreign countries. Article 8 of China's extradition law, enacted in 2000, states that a request for extradition shall be rejected "if the person sought is a national of the People's Republic of China under the laws of the People's Republic of China."
This stance is by no means peculiar to China as many other countries decline to have their nationals extradited to overseas jurisdictions for trial. In fact, an agreement on surrender of fugitive offenders concluded by New Zealand and Hong Kong in 1998 provide some insight into the case of Zhen Xiao. In that document, New Zealand "reserves the right to refuse the surrender of its nationals" to Hong Kong, and Hong Kong "reserves the right to refuse the surrender of nationals of the People's Republic of China."
However, the two parties then agreed that "where the requested party exercises this right, the requesting party may request that the case be submitted to the competent authorities of the requested party in order that proceedings for prosecution of the person may be considered."
That is to say, New Zealand may, if it desires, ask Hong Kong to prosecute a Chinese national who has committed a crime in New Zealand.
In the Zhen Xiao case, New Zealand may not have requested the prosecution in Shanghai, but it is evidently cooperating in the prosecution, since it will provide evidence to be used in court. China, too, is cooperating with New Zealand and has promised that the death penalty will not be applied.
So, despite the indignation sweeping New Zealand and the controversy within legal circles elsewhere, what China is doing in this case appears so far to be eminently reasonable. There is no denigration of New Zealand or its national or judicial sovereignty.
Frank Ching is a Hong Kong-based journalist and commentator (Frank.firstname.lastname@example.org).