Legal system too weak to stop new catastrophe

PUBLISHED : Friday, 04 June, 1993, 12:00am
UPDATED : Friday, 04 June, 1993, 12:00am

CHINA'S legal system still falls way too short of being able to stop a catastrophe like the Cultural Revolution from recurring.

This is despite efforts since the late 1970s to draft civil and criminal laws and to promote education in ''democracy and the legal system''.

Guarantees of democracy, freedom and human rights are very weak. Otherwise how could there have been the 1989 ''June 4 incident'', in which so many Chinese citizens, myself included, were victimised? Following the bloodshed in Beijing, I was arrested in Shanghai by the Public Security Bureau on June 20, 1989. The police produced a certificate for detention and investigation. The certificate did not say what crimes I had committed, only that the Ministry of Public Security had issued an arrest warrant.

I refused to put my signature on that document. I am a journalist, but I am also a qualified lawyer. I was fully aware that I had done nothing impermissible by Chinese law.

Instead, I asked three questions to those state agents: show me the warrant from the Ministry of Public Security, indicate the evidence that led to their actions, and inform me of which category of the penal code I was suspected of having offended.

The officer told me it was an internal warrant and it was not supposed to be made public or to be shown to the suspect.

''I don't care if it's internal,'' I answered. ''An essential attribute of law is its openness. If even the warrant cannot be made public, it would be within my right to question and reject its legality.'' Moreover, I tried to remind them that a major principle of a sound legal system was the ''burden of proof''. Since the state had issued an arrest warrant, it must have come up with a charge and evidence.

Their response was an outburst of rage. They declared, without producing any document, that I was actually suspected of ''counter-revolutionary instigation and propaganda''.

But what, after all, was their evidence, I asked. ''That's precisely what we want to interrogate you about,'' they announced.

I told them they were repeating the Cultural Revolution practice of locking up people on trumped-up charges.

The politically-motivated investigations after Tiananmen, in which thousands of individuals were wrongly charged and persecuted, has perhaps had even more devastating consequences than the Cultural Revolution.

During my detention, the public security personnel never stopped chiding me: ''Every citizen has the obligation to submit to detention and investigation.'' The implication was clear: they would be just as free to strip every citizen of his freedom in the name of ''detention and investigation'' even when they did not have a shred of evidence.

In fact, the legal basis of my detention and subsequent investigation is extremely shaky. It is a mere ''administrative regulation'' stipulated by the State Council.

A fundamental legal tenet is that whenever administrative regulations are in conflict with basic laws passed by the National People's Congress, the latter shall prevail.

This principle is often turned upside down and administrative regulations supplant the laws. Those who wield executive power tend to regard laws as decorative - and not as legally binding as the administrative regulations.

The regulation on ''detention and investigation'' was originally meant to be a supplementary measure necessary only when the public security authorities were unable to complete the investigation of a case within the time limit required by regular laws.

It was meant to be applied to suspects with unknown identities or places of residence. This regulation has been abused on a daily basis.

Even more serious is the absence of a statutory time limit for ''detention and investigation''. I was detained for investigation in June 1989 and ''formally arrested'' six months later.

At the Shanghai detention centre, I came across detainees who had been there for more than three years.

The central government's regulation on ''detention and investigation'' should be repealed.

The Chinese penal code has specified the time within which a detainee must be brought to trial after his arrest. In my case, almost 14 months elapsed before I was released.

The Shanghai Procuratorate announced on February 12, 1991, that my activities as a journalist had not amounted to a ''counter-revolutionary'' crime.

But there is nothing I can do to bring those who abused the law to justice.

A former Beijing Bureau chief of the World Economic Herald, Zhang is now a visiting scholar at the University of California at Berkeley.