Tuesday, January 10, 2012

Remaining Vigilant about Criminal Procedure Law Reform

Late last month, proposed revisions to China’s Criminal Procedure Law (CPL) got a second review by the National People’s Congress Standing Committee. Days later, it was announced that the CPL revision was being submitted to the National People’s Congress, which is widely expected to pass the legislation during its annual session in early March.

Enforced Disappearance

In contrast to the first draft, which was put forward for public comment at the end of August, the present draft of the CPL has not been published in full. Instead several revisions have been reported by the Chinese press. Among them is a revision purported to address one of the most widely criticized proposals in the earlier draft, that enabling investigators to hold suspects in certain types of cases without notifying their family of their whereabouts or the charges against them.

As it turns out, headlines hailing the “elimination of ‘secret arrest’” (取消“秘密拘捕”) were misleading, pertaining only to people placed under formal arrest (逮捕). Drafters deleted a clause that would have exempted investigators from notifying the relatives of people who had been placed under formal arrest “in cases involving serious crimes such as endangering state security or terrorist activity” when it was deemed that doing so might have “the potential to impede the investigation.” Under the terms of the current draft, then, investigators would be required to notify the relatives of all suspects within 24 hours of a formal arrest, “except when notification is impossible.”

What the headlines obscured (but later revealed in a handful of reports) was that similar exceptions for state security or terrorism suspects had not been eliminated from provisions covering other “coercive measures” such as detention (拘留) or “residential surveillance” (监视居住). Since authorities can use “residential surveillance” to hold a suspect for up to six months in any location they choose, giving authorities the legal basis not to notify the suspect’s family has been strongly condemned as secret detention or enforced disappearance by critics both inside and outside China—including United Nations human rights experts and Dui Hua’s Executive Director John Kamm in his Congressional testimony (PDF).

Public Attention

Compared to the flood of public comment and criticism that followed the publication of the earlier draft, there has been relatively little discussion of the current CPL proposal. In part, this is likely a function of the decision not to make the full draft available for public scrutiny. There may also be a certain amount of resignation—a sense that the public has had its say, a few concessions have been made, and passage is all but a foregone conclusion.

However, the debate may not be completely over. A recent editorial in the Guangzhou newspaper Southern Metropolis Daily urged members of the public to keep up the pressure, warning that reform of the CPL was “a serious matter about which the slightest laxity cannot be tolerated.” In an opinion piece (translated below) published in another Guangzhou daily, the Yangcheng Evening News, regular legal commentator Yang Tao urges China’s legislators to take full consideration of public concerns about the legislation and address remaining provisions that fail to meet the standards of fairness and justice.

The discrepancy between the headlines and the latest draft is notable. The persistence of measures that would legitimate enforced disappearance, the failure to protect a suspect’s right to remain silent, and the lack of strong checks on investigators’ ability to employ covert and technical surveillance measures have, in fact, furthered concerns that CPL revision strengthens law-enforcement powers at the expense of individual rights.

It remains to be seen whether China’s legislators will use their last review of the CPL draft to address these concerns. But only by doing so, Yang warns, can China pass a CPL that will “withstand the scrutiny of history.”

Respect Public Opinion to Eliminate Regrets over Criminal Procedure Law
Yang Tao, Yangcheng Evening News
December 27, 2011

On December 26, the draft revision to the Criminal Procedure Law (CPL) was again submitted to the National People’s Congress Standing Committee for review. This was the second reading for this draft legislation, and, compared to the draft in the first reading, there are many highlights in the second draft that deserve public attention.

The CPL is a basic law that regulates the activities of public security, procuratorates, courts, lawyers, and citizens to participate in criminal litigation. Criminal litigation frequently involves depriving citizens of their life, liberty, or property, and a law of criminal procedure must put public authority inside a cage, protect citizens’ legal rights, and enable public authority to prosecute crime in accordance with the law. In this respect, the CPL is a Magna Carta for defendants, as well as for each and every citizen. Whether a CPL is well-drafted is directly related to whether citizens’ rights receive fair treatment. For this reason, revision of the CPL must take ample consideration of public opinion in order to correct any injustice contained in the law.

The current CPL was enacted in 1979 and amended in 1996. The reason why revision of this law has been placed on the agenda after 15 years is because it no longer meets the needs of a new era in which people make ever-increasing demands for the protection of human rights. Whether it’s coercion of confessions through torture, the difficulties lawyers face in meeting [with detained clients], or secret detentions, the appearance of all of these problems is related to major flaws in this law.

Additional CPL reform arises from precisely this background and faces up squarely to public response to the situation. We were glad to see so many highlights in the first draft, such as the provision that suspects must not be compelled to self-incriminate, which is a major step towards reducing and eliminating coercion of confessions through torture. The draft also sets out standards for covert and technical investigations, formally bringing measures within the confines of the law that in practice have long been used outside the law. The draft proposes that close relatives [of a defendant] have the option of not testifying in court, taking a step toward the international practice of a “relative’s privilege against testifying” and preserving family ethics. And the draft also proposes that lawyers be allowed to meet suspects freely and without interference, helping to eliminate the conflict between the CPL and the Lawyers Law and giving effective protection to lawyers’ legitimate professional rights.

But the first draft of the legislation also left behind many regrets, such as the problem of lawyers being detained by investigative bodies without cause or the problem of secret detention. Thus, after the first draft was made public, there was still a strong reaction from all segments of society, with one voice after another demanding further revision. The second draft, after [lawmakers] listened to public opinion and the arguments of experts and scholars, [included] several major changes on the basis of the first draft. For example, the second draft stipulates that after criminal suspects are [formally] arrested, their relatives must be notified within 24 hours in all cases except when such notification is impossible, and that the investigation of defense lawyers suspected of crimes should be handled by an investigative body other than the body handling the cases in which the defense lawyer is representing a client. These new provisions have especially great significance for the protection of human rights.

As a matter of principle, however, revision of the CPL entails competition between protecting human rights and fighting crime. On a practical level, this involves competitions over power within the public authorities of public security, procuratorates, and courts; between public authority and lawyers and citizens; and even between different levels of society. Therefore, each time the law is amended, there will always be debate and [expressions of] regret. Taking the second draft [of the CPL] as an example, even though after a suspect is [formally] arrested “relatives must be notified within 24 hours in all cases except when such notification is impossible,” [the provisions for criminal] detention still allow for no notification “when it would impede the investigation.” Even though covert and technical investigations have been brought within the law, investigative bodies still approve their own investigations without any judicial review. Prohibiting compulsion of suspects to self-incrimination has been included, but [the clause that] “suspects shall truthfully answer investigators’ questions” has not been deleted, leaving a “tail” for torture. Legislators should thus take a neutral position and listen to mainstream public opinion to the greatest extent possible; weigh the positions taken by each side; and, in the course of revising the draft, continue to revise unjust provisions so that this legislation may, after it has been amended, withstand the scrutiny of history.