Families could get right of silence in court

PUBLISHED : Tuesday, 23 August, 2011, 12:00am
UPDATED : Tuesday, 23 August, 2011, 12:00am


A new rule allowing spouses, parents and children to refuse to testify against each other in criminal proceedings may be included in the revised Criminal Procedure Law that has its first reading this week.

The rule, if passed, will overturn a well-established judicial principle on the mainland that 'a righteous person must show no prejudice and be ready to punish one's family if they have committed wrongdoing'. But legal analysts said the new rule would be in line with international practice and the humanistic values the mainland was trying to promote.

'If a father can be made to testify against a son, and a son against the father, this will lead to an inharmonious society,' said Professor Fan Chongyi of the Chinese University of Political Science and Law, who has been consulted on draft revisions. 'This is also more in line with the Chinese traditional value that families should protect each other.'

However, he stressed that this was different from the spousal privilege available in many jurisdictions, where spouses were not legally compelled to testify against each other.

The new exemption would be expanded to include parents and children. Also, the new draft rule says that police, prosecutors or a court cannot compel spouses, parents and children to testify against each other, but they can still testify if they want to.

This rule is also only applicable to cases that do not concern state security or public interests.

The first reading of the revised Criminal Procedure Law will begin tomorrow at a bi-monthly session of the Standing Committee of the National People's Congress. This is the first time in 15 years that the country's Criminal Procedure Law has been revised, and the legal community hopes that the changes will address many problems that have surfaced in the criminal justice system over the years.

Professor Chen Guangzhong, another criminal procedure expert who was consulted on the draft revisions, said that more than a quarter of the original Criminal Procedure Law's 110 clauses would be amended, and 60 new clauses would be added to the code.

Chen said the draft includes new measures to ensure more witnesses testify in court, but he did not provide details. The rate of witnesses appearing in court to testify is extremely low - less than 10 per cent of criminal cases. This has made it impossible for defence lawyers to cross-examine prosecution witnesses in most cases, and thereby jeopardises the quality of criminal convictions.

Chen also said the revision might include a new clause stating that a suspect or defendant must not be forced to testify against himself, a step towards establishing 'a right of silence' on the mainland.

However, the step is not as great as the legal community wants, as another clause in the existing Criminal Procedure Law will be retained - a clause that states 'a suspect must answer truthfully when being interrogated'.

'These two clauses would contradict each other,' Chen said.

Another major change that might be included is allowing police and prosecutors to use covert methods, such as wire tapping, to obtain evidence, which has previously not been admissible in court. Legal experts said this clause would help reduce authorities' reliance on confessions and help reduce the use of torture in obtaining confessions.