NORTHERN ADVOCATE DAILY FRIDAY, OCTOBER 3, 1930. FOREIGNERS IN CHINA

Northern Advocate, 3 October 1930, Page 4

NORTHERN ADVOCATE DAILY

FRIDAY, OCTOBER 3, 1930. FOREIGNERS IN CHINA

Registered for Transmission Through the Post as a Newspaper.

As a recent cable message showed, the British and Chinese Governments are again in conflict over the question of extraterritoriality. B'y 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 extra territorial right s 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 them! of last year, issued a proclamation intimating that extraterritoriality would be abolished as from January 1, 11)20. The treaties creating inis privilege were not even denounced —al- j though such a proceeding would have been grossly improper—they v ere 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, ami the British proposals contain substantial concessions. Mxt.raterritoriality is limited to certain specified cities and dis- j triels. Chinese Courts will have jurisdiction over British civil cases, although what amounts to a right, of appeal to the Consular Courts is re- I

served. For five years British Courts will try British criminal cases. The Chinese Government has rejected Ihe offer, despite Ihe fact that it is regarded by many Britishers as being unduly generous. It is claimed that extraterritoriality is a derogation from Chinese sovereignty. That is true, but it is one which is sanctioned by longestablished usage. It is a recognised exception to the rub' 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 has a right of protection over its citizens abroad. The abovementioned 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 arc entitled to retain jurisdiction over their nationals. There is ample precedent for the exercise of this right. For forty-one years foreigners had these privileges in Japan. The Turkish capitulations wore only annulled within recent times, and there are International Courts in Egypt. Even more remarkable were the eases of Rumania 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 Courts 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 "ogal relationships of foreigners can safely committed to its keeping? The answer is supplied by the report of the International Commission of Jurists, which not long ago carried out an exhaustive investigation of Chinese legal and jupdicial institutions. It found that the ■■(Criminal code, .supposed to bo in force, but actually largely a dead letter, was admittedly defective, that the powers of arrest possessed by the police were excessive, and that the criminal procedure did net sufucie.ntly 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 mission a jl*.s and a small professional class,'foreigners in 'China are mainly engaged in commerce; hence a workable mercantile law is essential to them. But then 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 Commis sion believes it “well within the range of 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.