The investigation into Rio Tinto executive Stern Hu, an Australian citizen, and three of the iron ore giant’s local staff members has passed from police to state prosecutors, once more bringing China’s ever-shifting legal playing ground under the spotlight.
The four employees have been held in detention since last June on charges of bribing mainland steel industry executives in order to garner access to privileged information about iron ore price negotiations. They had earlier been held on the far more serious charge of stealing state secrets. At the time, foreign media and commentators cried foul, and perhaps with good reason. The entire fiasco came as Rio Tinto was deep in negotiations with the China Iron & Steel Association to set 2009 iron ore prices, and the negotiations were not going well, to say the least.
Furthermore, Rio Tinto got a huge amount of stick from the mainland after it withdrew from a US$19.5 billion investment bid from state-owned Chinalco, favoring a deal with BHP Billiton instead. The whole thing smacked of a school-boy game of touch rugby going sour, the losing team suddenly claiming the sides are unfair and demanding their ball back before going home to sulk.
Iron ore price negotiations are dodgy at best. At the time of Hu’s official detention in August, this correspondent was told off the record by a senior Chinese iron ore trader that bribery and favors in heavy negotiations are “absolutely normal” and the only thing surprising was that Rio Tinto got called out on it. While it is very true that foreign companies involved in multi-billion dollar deals should not be above the law, the law should a transparent thing. If we say: "without law, there is no justice" then surely if the law is an opaque and arbitrary entity, then so too is justice.
Stern Hu and his colleagues may be guilty of the crimes they are accused of, but the evidence with which they are being held should be made clearer to all: These are people’s lives, not commodities.
While Chinese commercial law has come along in leaps and bounds, criminal law appears to be sliding back to the days of legalism. Beijing has recently made a habit of pointedly ignoring the West when it comes to enforcement of domestic law. On December 28, Briton Akmal Shaikh was executed for drug smuggling despite questions over his mental whereabouts; on Christmas Day, outspoken activist Liu Xiaobo was sentenced to an astonishing 11 years’ imprisonment on subversion charges.
Law can and should be a structure that protects and does not discriminate, that supports and does not corrupt; something that we should seek sanctuary in, and not protection from – in a perfect world, of course. Law and its clear implementation should not enter a “mis-meetings of mind between China and the West” argument; law should simply be.
If the Rio Tinto executives are indeed found to be guilty after a fair and open trial and with proper representation, then well and good – off they go to the clink. When the law is applied to all and at all times, and not at the whim of the powers that be, both business and society stand to gain.