Wednesday, June 22, 2011

Signs of Movement toward Long-Awaited Procedural Reforms

Proposals for revision of China’s Criminal Procedure Law (CPL) have been circulating for years, but there are signs that new legislation may be on the way. Earlier this month, Zhou Yongkang, the member of the Politburo Standing Committee responsible for coordinating security and law enforcement, called for revision of the CPL in order to strike a better balance between fighting crime and protecting human rights.

Following Zhou’s remarks, Chinese media gave much attention to CPL revision, highlighting many of the serious issues in urgent need of reform. These issues will be familiar to readers of the Human Rights Journal—for example, the need to protect suspects against extraction of confessions through torture and reduce the obstacles defense lawyers face in trying to meet with detainees. Experts familiar with the process have said that immunity from self-incrimination through a “right to remain silent” and conditional exemption from indictment—similar to that already being experimented with in juvenile cases—are some of the proposals being discussed.

A June 14 editorial in the Guangzhou-based Southern Metropolis Daily (translated below) joined the chorus welcoming revision of the CPL but makes clear that a more fundamental change of mindset is also needed. The article advocates placing as much, if not more, value on procedural justice as on substantive justice. A day later, it was followed by a letter to the editor (also translated in this post) arguing that legislative reform may not be enough and that the fight against torture requires institutional changes that guarantee judicial independence from political control.


Use Criminal Procedure Law Revision to Establish the Principles of Procedural Rule of Law
Southern Metropolis Daily editorial
June 14, 2011
Enacted in 1979, the CPL underwent its first major revision by the National People’s Congress (NPC) in 1996. But, in recent years, a series of revelations involving cases of torture and false confession have led members of the legal community to increase calls for another major revision. According to information from a recent plenary meeting of the Central Politico-Legal Committee, the NPC has already begun work on a revision of the CPL, a revision that promises to exclude evidence extracted through torture.

She Xianglin, Zhao Zuohai, “blind man’s bluff”—behind this series of terrible incidents is the impact of an abnormal evaluation system for administrative performance and, even more, the absence of legal checks against due process violations by organs of public power. Taken as procedural law, the CPL causes increasing worry each time its defects are implicated in one awful incident after another. Even the 1979 CPL did not authorize the use of torture, but because the relevant laws lack provisions to impose legal consequences, it has meant that inherently illegal evidence such as coerced confessions could actually be used as the basis for conviction. Under these circumstances, it is clearly not enough to rely solely on the intrinsic qualifications, morality, and self-restraint of public servants. One might say that this is precisely the reason why it is so difficult to root out the coercion of confession through torture.

Now that revision of the CPL has been placed on the legislative agenda, there is hope that the law can be used to eliminate the space in which illegally obtained evidence can survive. This is naturally a major event along the path of rule-of-law development in China. To be sure, the Supreme People’s Court, Supreme People’s Procuratorate, and three other bodies were forced by events to issue Rules Concerning Questions about Exclusion of Illegal Evidence in Handling Criminal Cases in July 2010. The rules clearly define “the category of illegal oral evidence [to] include statements by criminal suspects of defendants obtained through illegal means such as coerced confession, as well as witness testimony or victim statements obtained through illegal means such as use of violence or threats.” They further provide that “oral evidence that has been determined to be illegal in accordance with the law shall be excluded and may not serve as the basis for conviction.” But both with respect to legal efficacy and significance, the issuance of these rules clearly cannot compare to revision of the CPL.
There is ample reason why so much of the public’s attention on revision of the CPL has been focused on the issue of coercion of confessions through torture. We must not forget, however, that exclusion of illegally obtained evidence is just one aspect of the “right to remain silent” that criminal suspects ought to enjoy. Under a civilized, humane CPL, criminal suspects would not only have the right to remain silent under questioning by law-enforcement personnel without suffering legal repercussions, namely, the right against self-incrimination. They would also enjoy the right to full assistance by an attorney and, for those criminal suspects who because of economic difficulty or other reasons have not obtained a lawyer, the right to complete legal aid. In this regard, then, we should no doubt undertake a somewhat more comprehensive review of the CPL. For example, with respect to meeting [with detained suspects], accessing [the prosecution’s] case files, and carrying out investigations and collecting evidence, the differences between the provisions of the CPL and the later Law on Lawyers have made it impossible for the well-intentioned Law on Lawyers to be implemented fully and effectively. There is also widespread grumbling among lawyers about these “three difficulties.” Perhaps revision of the CPL offers a good opportunity to resolve the conflicts between these two different laws and preserve the authority of the law.

Whether it is giving criminal suspects the right to remain silent or the right to legal counsel, superficially, it all seems to be to the benefit of criminal suspects. Actually, this is not so. Logically, any citizen has the potential to suddenly become a criminal suspect or defendant, so protecting the legal rights of criminal suspects is also protecting citizens from illegal harm. In a country with rule of law, all laws have the double value of protecting human rights and fighting illegal crime. As procedural law, the CPL should place greater emphasis on the former because the whole reason we need procedural law in addition to substantive law is to check abuses of power. The CPL is the umbrella protecting the due-process rights of defendants. If you take away the legal protection of the CPL, defendants lose the ability to defend themselves in the face of the powerful investigative and prosecutorial organs. The so-called litigation process will no longer be a contest between prosecution and defense and will be in danger of being transformed into a one-sided punishment operation carried out by the organs of [state] power.

Criminal litigation is a classic arena for the exercise of state power, one in which it is easy for power to be abused or used without control. During the late Qing period of legal reform, the celebrated legal expert Shen Jiaben exclaimed: “An unsatisfactory criminal law will not harm the law-abiding, but an imperfect criminal procedure law will bring harm even to law-abiding people.” Faced with this painfully obvious experience, we should completely do away with all thinking that emphasizes substantive law over procedural law. In order to avoid making the same mistakes again, we should cherish this opportunity to revise the CPL, firmly establish the principle of procedural rule of law, promote the idea of procedural justice, increase procedural limits on power, make the consequences of procedural violations clearer, and enrich the measures available for procedural sanctions and remedies. This is an opportunity that must not be missed—not by the public, the media, or the legislature.


Key to Curbing Torture Not in Criminal Procedure Law
Yang Tao
Southern Metropolis Daily
June 15, 2011

In fact, even without clear provisions in the CPL to exclude illegally obtained evidence, there are already clear measures to do so at the level of judicial interpretation. Unless everyone has already forgotten, after the Zhao Zuohai case, on May 30, 2010, the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly issued Rules Concerning Questions about the Examination and Judgment of Evidence in Death Penalty Cases and Rules Concerning Questions about the Exclusion of Illegal Evidence in Handling Criminal Cases. [These measures] clearly state that evidence obtained through illegal means such as coercion of confession through torture cannot serve as the basis for conviction, and they set out processes for investigating and excluding illegal evidence, proving responsibility, and questioning people in court.

Given this, I think that even if you provide for a right to remain silent and clarify the provisions for excluding illegally obtained evidence, it will not be enough. Unless there are effective checks on the abuse of state power and guarantees of an independent judicial process, torture will definitely not disappear.

Think about it. Even if we clarify legal provisions regarding the exclusion of illegally obtained evidence, detention centers will still be under the control of public security and there will be no separation between [the functions of] investigation and detention. So, we have no way to prevent public security organs intent on solving a case from taking advantage of their detention centers and torturing criminal suspects, either after taking them out of the detention centers or within the centers themselves. Moreover, if lawyers are unable to be present during questioning, it will be difficult to prevent investigators from torturing criminal suspects, since some of the harm caused by torture will disappear afterwards and some will come in the form of soft torture that cannot be accounted for. Without effective checks on state power, the so-called simultaneous audio- or video-recording [of interrogations] can be manipulated or even “disappear” at key moments.
On another point, provisions for excluding illegally obtained evidence must also have measures for proving responsibility and the standard of proof. We presently have no provisions regarding the standard of proof that are workable and beneficial to defendants. At most, a police officer is invited to testify in court that he did not commit torture and that’s that. Unless it is extremely clear that major harm was inflicted, how are defendants supposed to prove they were tortured? How then, can illegally obtained evidence be excluded?

What’s more, given the lack of independence in the judicial process, courts can choose to “go deaf” and not apply the rules on exclusion of illegally obtained evidence. Take the case of Zhao Zuohai as an example. After the police sent the case to the procuratorate, the procuratorate returned the case twice, making clear that it could not indict. But, in the end, the Shangqiu Politico-Legal Committee stepped in to coordinate. They called the tune, making clear that an indictment and decision should be rendered in the case. So, the Shangqiu Procuratorate was ultimately forced to issue an indictment, and finally, the court also followed the politico-legal committee’s tune and rendered a verdict. The injustice done to She Xianglin shares many similarities to the case of Zhao Zuohai, where a stalemate between three law-enforcement bodies was ultimately “coordinated away” by the politico-legal committee, setting the stage for the case to proceed smoothly through indictment and conviction. Imagine what would happen in any case that the local government treats as major. If the politico-legal committee steps in to coordinate, can we really expect illegally obtained evidence to be excluded as a way of preventing torture?