Australian Court Asked to Set a Precedent in Chinese Torture Case

November 5, 2009 Updated: October 1, 2015

 (Courtesy of Zhang Cuiying)
(Courtesy of Zhang Cuiying)
An Australian court is being asked to make a definitive decision on the extent diplomats can be exempt from prosecution for torture.

The New South Wales Court of Appeal has asked for more information in regards to a decision dealing with whether a person from the Government of another country can be protected from prosecution.

The decision was made by the New South Wales Supreme Court in regards to a civil case against former Chinese leader Jiang Zemin and others. Leave to appeal against that decision is now being sought.

The Australian Attorney-General’s Department is defending the decision, arguing that all the defendants come within the protection of the Foreign States Immunity Act and that the minister has issued a certificate to that effect.

Ms. Zhang Cuiying, a Falun Gong practitioner and artist presently living in Australia is suing for torture and wrongful arrest in China.

“Justice Basten of the Court of Appeal has told the Registrar that the Court wants more submissions from both parties. He plainly realises the importance of the case to everyone,” said David Raphael, leading Counsel for the plaintiff.

“The Attorney-General’s Department has appointed the Senior Queen’s Counsel attached to the Attorney-General’s Department to maintain its view that a certificate issued under the Act exempts, even from torture, the head or some member of the Government. This is an indication of the seriousness with which the Government is taking the case.”

Mr. Raphael said the case was significant because he was asking the New South Wales Court of Appeal to ignore the precedent set in British Courts and exempt torture from the protection of the Foreign States Immunity Act.

“I must emphasise the Government sees this as a very serious matter. It does not involve just a point of law. We are asking the Court of Appeal to ignore English authority,” he said.

“In England, the law Lords have said the English equivalent of the Foreign States Immunities Act applies to exempt persons despite them having resorted to torture.

“I will argue that this is Australia. Australia does not have to be led by England—that is pretty important.”

“There is really nothing in Australia on this point,” he added.

Zhang Cuiying, an Australian citizen, was detained for eight months in a Chinese jail from 1999 to 2000 without legal process after appealing in China for an end to the persecution of Falun Gong.

While in detention, Ms. Cuiying said she was regularly beaten about the head and body, made to stand without sleep for long periods, as well as suffering other physical and psychological torture methods.

The extent and ferocity of torture suffered by Falun Gong practitioners under Jiang Zemin’s directive have been well documented, but Mr Raphael said it was not the type of torture suffered that would determine this case.

“My submission argues that immunity from torture is wrong in principal; torture should be outside the immunity from liability which persons who are part of a government enjoy.” he said.

Justice the Issue

International human rights lawyer Theresa Chu said cases had been filed against Jiang Zemin in 15 other countries.

“A person like Jiang Zemin committed such serious crimes, especially international crimes like torture, genocide and crimes against humanity. He should not be entitled to state immunity, especially as he has now no official position in the government. So there should be no way that Australia can let him go,” she said.

Ms. Chu said Chinese people had no hope of achieving justice within China as the present rulers, the Chinese Communist Party (CCP), dictated how the legal process should be conducted.

“The law is always a tool for this dictatorial regime and Jiang, so it is not possible to have rule of law under this CCP,” she told The Epoch Times, “It is only possible when the CCP does not exist, then Chinese people can really get justice from the court.”

The legal process in Australia, and particularly the case against Jiang Zemin, is a “good role model”, she said.