Lawyer Adam Slattery (L) is representing Chinese Australian, Zhang Cuiying, in a NSW Supreme Court case against the former leader of the Chinese Communist Party, Jiang Zemin. (James Burke/The Epoch Times)

Lawyer Adam Slattery (L) is representing Chinese Australian, Zhang Cuiying, in a NSW Supreme Court case against the former leader of the Chinese Communist Party, Jiang Zemin. (James Burke/The Epoch Times)

(Clearwisdom.net) A civil lawsuit against former leader of the Chinese Communist Party Jiang Zemin, may see the Australian courts set a precedent on the extent diplomatic immunity can protect foreign members of state.

Adam Slattery, a lawyer representing Chinese Australian, Zhang Cuiying, told The Epoch Times the success of his clients case revolved around Australia's Foreign States Immunity Act, which protects foreign members of state from the jurisdiction of the Australian courts.

Ms. Zhang was detained in 2000 and tortured for eight months after appealing in Beijing for an end to the persecution of the spiritual practice, Falun Gong. She is suing Jiang Zemin for wrongful arrest, torture and false imprisonment.

Mr. Slattery said Ms. Zhang's case highlighted legal inadequacies in affecting justice for crimes committed in foreign states, particularly when legal proceedings could not be issued in those states.

"We are drawing the courts attention to an area of law where we have not made any kind of principle in relation to it," he said. "Whatever decision comes out of it will set some kind of precedent."

Mr. Slattery said the "immunity" act takes for granted that foreign states abide by the same principles and have the same respect for rule of law that we have in Australia.

"If a foreign state does not have those norms, then we shouldn't allow them immunity for not carrying out those norms," he said. "Some of those norms come under the covenants of civil and political rights."

Red China, more than most, would fall into the category of a foreign state that has little respect for the law or human rights.

Late last year, an Amnesty International report highlighted China's deteriorating human rights record across a range of areas, including freedom of speech and spiritual practice. Worse still a recently updated report compiled by former Canadian secretary of State, David Kilgour, and internationally respected human rights lawyer, David Matas has concluded that thousands of Falun Gong practitioners have been incarcerated without trial and slaughtered to service China's lucrative organ transplant business.

Falun Gong, a spiritual practice based on slow meditative exercises and a moral philosophy, gained popularity in the early 90s and had over 70 million adherents until the crackdown in 1999.

Ironically, 1999 was also the year that the concept of rule of law was written into the Chinese constitution. It appears, however, to have been afforded the same level of respect in Beijing, as China's international human rights agreements. According to Mary Ann Toy, the Sydney Morning Herald's Beijing correspondent, China's head security chief and member of the nine-man Politburo, Luo Gan, lashed out at "Western" initiatives earlier this month saying an independent judiciary was not appropriate for China, and "all law enforcement activities should be lead by the party."

Ms. Toy went on to say that corruption and political intervention was common in China, "with prosecutors and judges answering to Communist Party committees who discuss and decide such cases often in advance of the trial."

Mr. Slattery said it was important to acknowledge that individuals in some countries could commit atrocities without fear of reprisal, and the only way to affect justice was to initiate proceedings outside that country.

It was also pertinent to consider that acts of torture were not usually committed by the state but by individuals, he said. As diplomatic immunity is ultimately protecting the state, it would not necessarily apply to individuals.

This would certainly be the case with Jiang Zemin, whose orders to destroy Falun Gong are well documented.

Mr. Slattery said an additional problem with the diplomatic immunity statute was that documents once issued, had then to be served on Jiang Zemin by the Chinese Government.

To do that the documents had to go via Australia's Department of Foreign Affairs and Trade (DFAT) which, after three years, had still not passed them on.

Former Chinese diplomat Chen Yonglin told Channel Nine's Sunday program in 2005 that he had read coded reports that said a DFAT official was assisting the Chinese Government on the case.

Ms. Zhang said documents obtained through the freedom of information act confirmed Mr. Chen's claims and she was concerned that DFAT was deliberately holding up the case in the hope that it would be dismissed for exceeding the time limit.

In the courts Mr. Slattery said there was a lot of complexity surrounding the issue but the bottom line is that "immunity" is just not meant to cover acts of torture or other similar human rights violations.

"If you spoke to the common person they would think it is obscene that Australia should give immunity to a foreign state that has tortured people," he said.

Ms. Zhang's case is presently before the NSW Supreme Court. Mr Slattery said a judgment on the status of the case was due Monday March 5 but the judge had requested another week to make her decision.

March 6, 2007