Justice still missing from detention reforms

PUBLISHED : Tuesday, 26 October, 2004, 12:00am
UPDATED : Tuesday, 26 October, 2004, 12:00am

The mainland's system allowing police to punish people who commit minor offences is arbitrary, unclear and open to abuse. So the reforms that have been proposed by the minister for public security are welcome.

When the rules come into effect, they will be clearer and more detailed - and they will impose greater controls on police conduct. They will help make the system fairer. But they do not go far enough.

The public order punishment regulations are part of a baffling array of administrative detention powers. They let police detain and punish people involved in prostitution, gambling and other activities deemed socially unacceptable.

These powers came under the spotlight in Hong Kong earlier this year, when Democratic Party election candidate Alex Ho Wai-to was held for allegedly visiting a prostitute in Guangdong. He is still serving his six-month sentence - which now appears to have been imposed under different regulations.

The most unattractive feature of the system is that it allows police to impose penalties on suspects without any need for a trial. Regrettably, the reforms will not remove this flaw, but they will provide some safeguards intended to curb abuse.

The public order punishment regulations will become a law - putting them on a firmer legal footing. They will also be much clearer, spelling out precisely which activities are covered.

A wide range of conduct is included, apparently extending the scope of these powers. They will cover graffiti, football hooliganism, making too much noise, interfering with neighbours, and keeping an annoying pet. The broad sweep is a worry. But at least the conduct concerned will now be clearly expressed. This is an improvement on the existing regulations, which are vague and easily susceptible to different interpretations.

The possible penalties for each illicit activity are also to be set out in the new law. They, too, will be more specific and promise to limit police discretion. The maximum period of detention will be 30 days - and this can be imposed only when more than one offence has been committed.

But perhaps the most interesting reforms are those that restrain the investigative powers of the police. Officers must inform the suspect's family members of the arrest if the detention lasts longer than 12 hours. This provision should help bring more transparency to the process.

The reforms also forbid police from using illegal methods during their investigations, such as torturing or deceiving suspects. These measures introduce a human rights element into the system and aim to better regulate the police. Enforcing the new law, however, will not be easy. Previous amendments to the criminal law to provide similar safeguards have failed to prevent abuses.

It has been suggested that changes of this kind may be motivated by China's intention to eventually ratify the International Covenant on Civil and Political Rights. Certainly, they take the existing rules a little closer to the fair-trial procedures mandated by the treaty. But much more radical reforms will be required if the mainland's system is to comply.

Suspects punished under the new law will still not be given a trial: the police will remain judge and jury. And people can be sentenced to detention without representation by a lawyer or the ability to mount a defence.

Then there are the other forms of administrative detention not covered by these reforms. Under the much-criticised education-through-labour system, for example, sentences of up to three years can be imposed without a trial.

The reforms to the way in which minor offenders are treated show the mainland is willing to move some way towards a fairer system. This is to be encouraged. But there can be no rule of law until administrative detention - in all its forms - is removed and replaced by a system that ensures suspects are given a fair trial.