Tuesday, February 21, 2012

Universal Human Rights Should Trump the Politics of “the People”

How much difference can two Chinese characters make to the impact of legislation? Considerable difference, according to recent commentary by Han Dayuan (韩大元), dean of Renmin University of China Law School, that looks at proposed changes to the Criminal Procedure Law (CPL).

Ever since the full text of a draft CPL revision was made public in August 2011, its content has been examined closely and debated vociferously within China. Supporters herald the legislation as a major improvement in the protection of rights, pointing to things like facilitating the work of criminal defense lawyers, formalizing procedures aimed at excluding evidence obtained illegally, and establishing new procedures for juvenile offenders. Critics, on the other hand, have raised concerns that the revision would greatly expand the power of investigators to abuse secret surveillance and to detain people without notifying their family.

More than 80,000 recommendations regarding the draft amended CPL were submitted to the National People’s Congress (NPC) Standing Committee during a one-month period of public consultation that ended September 30. At least some of these suggestions made their way into a second draft that was reviewed by the NPC Standing Committee in late December. Now, a final draft of the legislation is slated for review by the nearly 3,000-member NPC when it meets for its annual session, scheduled to open in less than two weeks.

Thus far, most of the discussion surrounding CPL revision has concerned specific changes to procedures or measures added to the legislation. But there are also many concerns about changes that haven’t been made.

For example, the drafts reviewed by the NPC Standing Committee do not change Article 1, the statement of the legislation’s purpose: “保护人民” [to protect the people]. In commentary published in Legal Daily last week, Han Dayuan recommends changing that purpose to “保障人权” [to protect human rights]. This change was included in each of the major revision proposals prepared by Chinese legal scholars after CPL revision was first placed on the legislative agenda back in 2003.

Professor & Dean Han Dayuan. Photo credit:
Renmin University of China Law Shool
Han believes the change would better reflect the spirit of China’s constitution—which was amended in 2004 to affirm the state’s role in respecting and safeguarding human rights—and highlight both domestically and internationally China’s existing achievements and future goals with regard to rights protection and rule-of-law development.

The change is also significant because in the Marxist-Leninist-Maoist political culture of China, all references to “the people” are implicitly exclusive of particular groups, e.g., the exploiting classes, counterrevolutionaries, and “enemies of the people.” Removing this political category from the CPL would imply that the rights and protections granted therein are universal, rather than selective.

Making the protection of human rights the explicit aim of the CPL would thus strike a symbolic blow against the kind of “dual track” criminal justice system that is being fostered in China, one in which procedural protections are extended in the majority of criminal cases but withheld in cases deemed threatening to sociopolitical order.

At this stage in the legislative process, a symbolic victory like an amendment to Article 1 may be more achievable than substantial changes to procedural provisions over which China’s law-enforcement stakeholders have already reached consensus. And for those who have been working to more firmly establish constitutionalism, rule of law, and human rights protection, a symbolic victory could set new standards for future legal reform.

Ultimately, however, the immediate impact of such a change would likely be only symbolic. What matters more as far as the protection of human rights is concerned is not the CPL’s programmatic principles but, rather, the concrete procedures and measures set out therein and the extent to which these measures are implemented. In evaluating China’s human rights situation, actions still speak louder than words.


Clarify Subject in CPL Draft Amendment, Article 1
Recommend Changing “Protect the People” to “Protect Human Rights”
Han Dayuan, Legal Daily
February 15, 2012

The 5th plenary session of the 11th National People’s Congress (NPC) will open on March 5, 2012, at which time the Draft Criminal Procedure Law (CPL) Amendments will be deliberated. This revision of the CPL adds many important items, including a prohibition on compulsory self-incrimination, and emphasizes the basic principle of protecting human rights. The number of articles that the draft adds or revises makes up around half of the total number of articles in the current CPL.

As a basic law of the state, revision of the CPL has always received widespread attention from all sectors of society, including legal scholars. Among the issues discussed most often is how to properly understand and handle the relationships between the CPL and the constitution and between punishing crime and protecting human rights. The basic idea behind the CPL should be adequate protection of human rights and effective crime-fighting. The content of the CPL should sufficiently embody the constitutional principles of protecting human rights, [developing] rule of law, and “dividing [the] functions [of the courts, procuratorates, and public security organs], each taking responsibility for its own work, and coordinating their efforts and checking each other.”

Generally speaking, the first article of a law expresses the purpose of that law, reflects its central values, and serves as a kind of summary of its essential points. Article 1 of the CPL draft revision states: “This law is enacted in accordance with the constitution for the purpose of ensuring correct enforcement of the Criminal Law, punishing crimes, protecting the people, safeguarding state- and public security and maintaining socialist public order.” In light of the relationship between the constitution and the CPL and based on the legislative purpose, I recommend that “protecting the people” in Article 1 be changed to “protecting human rights.”

Protecting Human Rights Embodies Constitutional Principles

The constitution is the founding law of the state. It carries supreme legal force and occupies the “leading” position in the socialist legal system wherein all laws and regulations should remain in accord with the constitution. This is why the majority of laws all say in their first articles: “This law is enacted in accordance with the constitution.” In his 2004 speech in Beijing commemorating the 50th anniversary of the establishment of the NPC, General Secretary Hu Jintao emphasized that to rule the country in accordance with the law means first ruling the country in accordance with the constitution and that to govern in accordance with the law means first governing in accordance with the constitution.

In 2004, China’s constitution was revised and “the state respects and safeguards human rights” was solemnly added to establish a national value system and set a basic standard for all acts of public authority. As a basic law meting out the specifics of the constitution, the CPL must obey the values of the constitution and give expression in its conception of values to the principles and spirit of the constitution, as well as establish institutions that respect and implement the provisions of the constitution. The relationship between the CPL and human rights is especially close, with the CPL having been called the “defendant’s charter of rights.” It should embody the requirements of the constitution and clearly provide for “protecting human rights.”

After the constitution was revised in 2004, the enactment and revision of laws must fully reflect the principle of protecting human rights. If the CPL were to announce “to protect human rights” as its legislative purpose, then it would be not only a major step forward for criminal legislation and the administration of criminal justice but also a concrete implementation of constitutional principles.

Though the phrase “to protect the people” that is stipulated in the current draft is premised on expressing the law’s affinity with the people, it is neither scientific legal terminology nor is it appropriate. “The people” is a political concept, not a legal concept. During different periods, the specific meaning of “the people” has varied depending on the historical period of the nation’s development. What human rights protects are “human beings.” Even defendants, criminal suspects, or criminal offenders—even offenders who have been sentenced to death—all enjoy certain human rights and there are some human rights that cannot be stripped away. When the constitution says that the state protects human rights, it means that the constitution protects not only the people but protects the legitimate rights and interests of criminal offenders, suspects, and defendants as well.

An important function of the CPL is to use procedural [norms] to safeguard the basic rights of specific groups. If we only write “to protect the people,” then it’s possible that other groups outside of the people will be left out, resulting in an incomplete level of protection by the state. Generally speaking, in the procedures of the CPL, those who are being prosecuted are clearly in the weaker category. Their human rights are easily infringed upon by the mighty power of state organs, and so they rightly ought to receive fuller protection under the CPL in order to realize the principle of all being equal before the law.

Protecting Human Rights Embodies the Spirit of International Covenants

A clear CPL provision “to protect human rights” would also help to express the spirit of international human rights covenants. China has already acceded to several international treaties related to criminal justice and has signed the International Covenant on Civil and Political Rights (ICCPR). A clear statement “to protect human rights” in Article 1 of the CPL would help link the legislation with human rights treaties, help the NPC Standing Committee to ratify the ICCPR, to reduce the legal and technical problems that might be faced at the time of ratification, to display China’s progress in rule of law, to avoid attacks by hostile forces against our human rights situation, and to effectively uphold China’s international image.

At the same time that we firmly establish “to protect human rights” as the legislative purpose of the CPL, I recommend that we also change the expression “to punish crime [and] to protect the people” to “to protect human rights [and] to punishing crime.” Punishing crime and protecting human rights are both of important significance, and both are goals for the CPL to realize. But protection of human rights is fundamental, and the goal of punishing crime is to protect human rights.

The phrase “to punish crime [and] to protect the people” carries the logic that the people are protected by punishing crime. Once “to protect the people” is changed to “to protect human rights,” the CPL will protect the rights of all people as human beings, not just protect the rights of the people from being infringed upon by criminal elements. The innocent must also be protected from prosecution and, even more, the lawful rights and interests of criminal suspects, defendants, and criminal offenders must be protected.

In sum, changing “to protect the people” to “to protect human rights” will help to embody the spirit of the constitution, to correctly reflect the positive achievements of CPL reform, and to highlight the progress of China’s human rights development and future goal of the development of rule of law.