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Colonial Cases

Newspaper commentary China 1930-1939

The Canberra Times (Australia), 12 February 1930

CONSULAR COURTS.

ABOLITION IN FIVE YEARS.

CHINA ACCEPTS TERMS.

... The full terms of the agreement are expected to be announced shortly.

 

The Brisbane Courier (Australia), 6 March 1930

EXTRATERRITORIALITY IN CHINA.

 

Townsville Daily Bulletin, 18 November 1930

SHANGHAI

Will Go Over To China.

   Eventually Shanghai will be handed over to the Chinese, like other places, is the opinion of Mrs. J. A. Urquhart, a resident of Shanghai for [30] years, ... The Chinese had control over the mixed courts and the customs and were now going into the Harbour Board. Mrs. Urquhart stated the unrest in China continued, and business was dead as a result. ...

 

The Sydney Morning Herald, 25 September 1930

FOREIGNERS IN CHINA.

   The British and Chinese Governments are once again in conflict over the question of extraterritoriality.  By virtue of this doctrine the nationals of various foreign Powers are under the jurisdiction, not of the local Courts, but of tribunals of their own.  This arrangement exists by special agreement, and is a feature of the "unequal treaties" which China resents keenly.

   A few years ago the British Government announced that it would abandon its extraterritoriality rights as soon as China had set her juristic house in order, a process which was bound to be gradual.  But China was impatient, and, at the end of last year, issued a proclamation intimating that extra-territoriality would be abolished as from January 1, 1930.  The treaties creating this privilege were not even denounced - although such a proceeding would have been grossly improper - they were simply ignored.  Britain protested, and China added the qualification that the abolition would be "in principle," thus saving face.  Since then negotiations have been in progress and the British proposals contain substantial concessions.  Extraterritoriality is limited to certain specified cities and districts.  Chinese Courts will have jurisdiction over British civil cases, although what amounts to a right of appeal to the Consular Courts is reserved.  For five years the British Courts will try British criminal cases. The offer is generous.  Indeed, the fact that it has been received with "mixed feelings" by the British community indicates that, in the opinion of the latter, it is unduly so.

   It is claimed that extraterritoriality is derogation from Chinese sovereignty.  That is true, but it is one which is sanctioned by long-established usage.  It is a recognised exception to the rule that a State shall have jurisdiction over those who reside in its territory, and is an extension of another rule of the Law of Nations, that a State had a right of protection over its citizens abroad.  The above mentioned right of jurisdiction is not absolute.  It presupposes the existence of a body of law which is consonant with modern European ideas, and is administered in such a way that foreigners can be assured of justice.  When this requisite is not satisfied, foreign States are entitled to retain jurisdiction over their nationals.

   There is ample precedent for the exercise of this night.  For forty-one years foreigners had these privileges in Japan.  The Turkish capitulations were only annulled within recent times, and there are International Courts in Egypt.  Even more remarkable were the cases of Romania and Serbia, in which extraterritoriality prevailed until a few years ago.  There was nothing in their legal systems which clashed with the standards of the rest of Europe; they are, indeed, modelled on the Code Napoleon.  Foreigners were immune from the control of the Courte merely because, in the words of Professor W. E. Hall, "through ignorance and evil traditions, the administrators of justice were not worthy of trust."

   Is Chinese law in a condition in which the legal relationships of foreigners can safely be committed to its keeping?  The answer is supplied by th4 report of the International Commission of Jurists, which not long ago carried out an exhaustive investigation of Chinese legal and judicial institutions.  It found that the criminal code, supposed to be in force, but actually largely a dead letter, was admittedly defective, that the powers of arrest possessed by the policy were excessive, and that the criminal procedure did not sufficiently safeguard the interests of the accused.  No complete civil code is available, and the practice of detaining defendants in civil suits is condemned.   Apart from the missionaries and a small professional class, foreigners in China are mainly engaged in commerce; hence a workable mercantile law is essential to them.  But there are no effective banking, currency, bankruptcy, company or patent laws.

   Declarations of martial law are made so frequently that the administration of the normal law is hampered, and the Courts cannot function.  The Commission lays stress upon the mischief caused by the continual interference with the judiciary by the military officials.  Judges who attempt to perform their duties conscientiously are in danger of being driven from the Bench, as witness the removal of Judge H. Y. Loo, of the Shanghai Mixed Court.  The victims of illegal actions and extortions by the military are helpless; they have no remedy.

   The Commission believes it "well within the range ort moderation" to state that at the present time the Chinese civil and judicial authorities can provide no security against arbitrary treatment by the military in respect of life, liberty, and property.

 

The Daily News (Perth, Australia), 17 June 1931

ILLICIT TRAFFIC IN DRUGS.

LEAGUE OF NATIONS' SURVEY.

The Chinese delegate urged that the penalties inflicted on the traffickers by the Consular courts were inadequate, and pointed out that these punishments were considerably less severe than those imposed under the Chinese Penal Code.

 

Townsville Daily Bulletin, 30 June 1932

CHINESE CRUELTY.

Shanghai Allegations.

Shanghai, June 28.

Sensational allegations have been levelled against Chinese control of the former jail attached to the French Mixed Court, which was surrendered to the Chinese last year. ...

 

Daily Mail (Hull), 25 June, 1936
JAPS BOYCOTT COURT.
REFUSAL TO PRODUCE WITNESSES.
PEIPING, Thursday. - The Japanese authorities appear to have declared a boycott of the British Consular Court here, which is trying two British privates on the charge of manslaughter of a Japanese officer and causing bodily harm to another Japanese last month.
  No witnesses were produced by the Japanese authorities today, and in consequence the Prosecutor announced that he was unable to continue. He asked for an adjournment until the afternoon, which was granted.
  Japanese officials and Pressmen were also conspicuously absent from the court.
  The reason for the boycott was indicated by officials of the Japanese that there was strong dissatisfaction with the methods of the court, and Embassy, who declared in an interview that they had complained to Tokio about it.
  The grounds for the dissatisfaction are said to be that while the court failed to question the accused at all, "leading questions" are alleged to have been put to the Japanese witnesses, and moreover, the latter were not even allowed to sit down.
PROCEDURE NOT UNDERSTOOD.
   British circles here suggest that the Japanese attitude is due to an imperfect understanding of British court procedure. The two accused men are Herbert Cooke and Ralph Hunt, of the Worcestershire Regiment. They are charged with the manslaughter of Hisaku Sasaki, a Japanese officer, who on May 26 was found fatally injured outside a cabaret.
  A third British private, T. D. Parrish, was also summoned, but was later discharged owing to lack of evidence.
  The prosecutor said yesterday that the death of Sasaki was the culmination of a series of assaults committed by the accused on the night of May 26. The officer's death was immediately followed by Japanese protects, claiming that British soldiers had been involved in a series of assaults on Japanese subjects in cabarets and bars in which four men and one woman were injured. - Reuter.

 

The Mail (Adelaide, Australia), 25 June 1938

BLOW TO FOREIGNERS IN CHINA.

LONDON, Saturday.

Japan has dealt another blow to foreign interests in China.  A despatch from Shanghai says that she has abolished the extraterritorial rights of foreigners in the occupied area of China, thus theoretically bringing foreigners under the control of the Japanese authorities.

 

The Mail (Adelaide, Australia), 28 January 1939

[Good outline of the British presence in China.]

 

The Argus (Melbourne, Australia), 3 May 1939

Dr. Rudolph Ernst Kahn.  From May 1934 to July, 1937, he practised before British Consular Courts in Shanghai, ...

Published by Centre for Comparative Law, History and Governance at Macquarie Law School