Criminal-law changes disappoint

PUBLISHED : Sunday, 01 January, 2012, 12:00am
UPDATED : Sunday, 01 January, 2012, 12:00am


A second set of draft amendments to the Criminal Procedure Law, tabled last week in the nation's legislature, answer some concerns raised by the public but fall short of expectations overall, rights advocates and law experts say.

Some amount to a step backwards, they say.

Nevertheless, the National People's Congress Standing Committee voted yesterday at the end of its latest meeting to have the amendments tabled at the full NPC plenary session in March, where they will almost certainly be passed.

The Criminal Procedure Law seeks to strike a balance between the state's exercise of power and the rights of individuals. Lawyers and rights activists hold high hopes that the long-awaited revisions will make significant steps towards protecting rights.

The first draft amendments - the first major revision of this important law since 1996 - were released for a month's public consultation in September and more than 80,000 responses were received and reviewed by law drafters, Xinhua said.

At the time, some of the changes that most concerned rights advocates related to the duty of police to inform family members when a citizen is detained, arrested or put under residential surveillance at a location other than that person's normal residence.

The first draft stated that police had a general duty to inform the family, except when it was not possible to reach them or in cases of state security or terrorism, when notifying them might prejudice investigations.

Right advocates say such exceptions effectively legalise 'secret detentions', as a person can be held for up to 37 days, or up to six months in the case of residential surveillance, or for a period after arrest until charged, without their family being informed.

The revised amendments reduce the exceptions: police are excused from notifying the family of a person's arrest only if it is impossible to do so. In cases of detention or residential surveillance, a sentence has been added stating: 'Police must inform the family when circumstances deemed as interfering with investigations no longer exist.'

Rights lawyers and advocates say the extra sentence is so vaguely worded that the law would still allow for suspects to be held in secret for up to six months on suspicion of terrorism or breaching state security.

'What are those circumstances? Who is to decide? In the end, it's still all in the hands of the police,' rights lawyer Zhang Qingsong said. 'Allowing these exceptions will set negative precedents.'

Joshua Rozensweig, an independent human rights researcher, compared the changes to 'a surgeon removing a tumour from a patient while ignoring other equally cancerous tumours elsewhere in the patient's body', believing that removing one was enough to satisfy the patient and the public at large.

The second draft does make some laudable changes, for example setting out how to handle charges of coaching witnesses or fabricating evidence, which are often drummed up to intimidate defence lawyers themselves.

Other changes, however, are seen as a step backwards. For example, the first draft stipulated that when the Supreme People's Court reviews a death penalty imposed by a lower court, a judge 'must' interview the defendants, but in the second draft the word is changed to 'may'.

'I'm perplexed by this significant change,' said Chen Guangzhong, a professor specialising in the Criminal Procedure Law. 'We've been working since 2007 towards giving the defendant one more chance to speak to a judge, but now we are suddenly taking a step back.'

Another issue concerns prevention of the use of evidence obtained illegally, so as to reduce the police use of torture to collect evidence. Chen said changes in the latest draft added new hurdles that make it virtually impossible for defendants to seek the exclusion of such evidence.