Citizens are still a long way from enjoying true justice

PUBLISHED : Thursday, 05 January, 2012, 12:00am
UPDATED : Thursday, 05 January, 2012, 12:00am


With only meagre improvements in the second draft of amendments to the Criminal Procedure Law, it appears the mainland's criminal justice system is still a long way from placing citizens' rights front and centre.

Legal professionals and rights advocates had high hopes that the amendments would finally bring the crucial law a big step closer to - if not in line with - international criminal law standards. The last major revision was in 1996.

Even though there are improvements, the two drafts, issued in August and last week after a month-long consultation, will maintain a system that is heavily biased towards police power.

Worse still, it will create a two-tier criminal justice system where political undesirables are treated differently from other citizens.

After two drafts, we have seen that the police will continue to hold the sole decision-making power to detain a citizen for up to 37 days, to put a citizen under residential surveillance for up to six months, to search a person's property and seize it, and use investigative methods like wiretapping.

All these powers are exercised by courts in many other jurisdictions.

In cases concerning state security or terrorism - charges often used against mainland dissidents - and other crimes deemed severe, police even enjoy the privilege of determining whether or not a suspect can meet defence lawyers.

In state security and terrorism cases, police officers can conceal a suspect's detention or residential surveillance at a particular location from his or her family if the authorities deem that such notification could interfere with the investigation.

Lawyers will still be excluded from interrogations and, at the earliest, will only be able to meet a suspect within 48 hours of their first questioning or being brought into police control.

To be fair, the mainland's Criminal Procedure Law is still young. It was first passed in 1979 after the Cultural Revolution, when one of the law's main goals was 'defeating the enemy [of the proletariat]'.

It was not until 1996 that basic rules which stipulated that no one could be convicted unless they were tried in court and which allowed lawyers to get involved during the investigative stage were finally laid down.

Previously, the procuratorate had the power to convict in certain cases, and defendants could only consult lawyers seven days before trial.

However, the question is no longer whether improvements have been made to the Criminal Procedure Law and the system it governs, but whether the improvements are enough, considering the public's increasing awareness of civil rights and outrage over incessant abuse of police powers, among other problems plaguing the criminal justice system.

As a signatory to the International Covenant of Civil and Political Rights, China also has obligations to build a system that prevents the use of torture and ensures that a suspect will be promptly brought to court following detention and arrest; to respect a defendant's right to legal counsel, and a fair and public trial; and to exercise restraint in using detention and the death penalty.

It must also enshrine in its law the concepts that all are equal in the eyes of the court, a person is innocent until proven guilty and that every person has a right to remain silent.

The latest amendments to the Criminal Procedure Law have incorporated the key phrase: 'a person shall not be compelled to give self-incriminating evidence'. They have also laid the groundwork for creating a witness protection system and made it compulsory for witnesses, including police officers, to testify in court.

The drafts have further expanded the availability of legal aid and set up special procedures for juvenile offenders and mentally ill defendants.

But the drafts still don't include the right to silence, and there is room for improvement in terms of limiting police powers, ensuring legal representation and easing back on the death penalty.

In the few improved statutes, broad exceptions and vague wording - likely arising from compromises between lawmakers and law enforcers - have all but negated the good intentions behind the revision.

Despite state media calling it a massive achievement, the number of additional clauses - around 60 - are actually not many more than those added in 1996. After the latest revision, the Criminal Procedure Law will still have only about 290 clauses, two-thirds the size of the country's penal code, which has 452 clauses.

Criminal procedure laws in many jurisdictions have about twice the number.

Striking a balance between fighting crime and protecting rights is a challenge that every country faces, and law enforcers are naturally reluctant to lose power. But with a system that is designed to favour a strong state, the mainland authorities could have - and should have - used this amendment as a chance to tip the scales towards greater rights for suspects and defendants.

And if the growing crime rate is indeed a major concern, there are certainly other ways to improve police efficiency, such as better training, rather than making investigations easier at the expense of civil rights.

There is now only one last draft remaining before the amendments are expected to be passed at the annual session of the National People's Congress in March.

Hopefully law drafters on the NPC Standing Committee will make use of this last chance, with the backing of the authorities, to squeeze in some more changes called for by the mainland's legal professionals.

Then perhaps we would have a revision that lived up to its name.