Rights advocates are keen to see draft changes to law

PUBLISHED : Monday, 05 March, 2012, 12:00am
UPDATED : Monday, 05 March, 2012, 12:00am


The National People's Congress passes some of the country's most important laws during its annual session. This year the focus will be on the third draft of amendments to the Criminal Procedure Law (CPL), arguably the mainland's foremost legislation protecting human rights.

NPC spokesman Li Zhaoxing told reporters yesterday the latest draft includes the phrase 'respect and protect human rights' as the legislation's No 2 clause.

'Respecting and protecting human rights is an important principle, as laid down by our country's constitution, and reflects a core requirement of the socialist system,' Li said. He said the inclusion of the new phrase 'makes it easier for the judiciary to follow and implement this constitutional principle in the criminal litigation procedures' and that the draft amendments better manage the relationship between combating crime and protecting people's rights.

However, many legal professionals and rights advocates feel more could be done.They have held high hopes that this long-due revision to the CPL, which was passed in 1979 and last amended in 1996, would include fundamental changes to tilt the balance more sharply from police power to the rights of suspects and defendants. Those concerns, together with those of the general public, are reflected in the 80,000 responses authorities received when the first draft of the revision was put online for a one-month public consultation in September.

However, based on what they understood from reports about the second and third drafts, observers have been disappointed to find that the overall changes will remain incremental. The second draft was never publicly released, and the third draft will be tabled at the NPC this week.

Li highlighted aspects of the amendments yesterday to illustrate the commitment of authorities to the protection of rights. They include establishing a system to exclude illegally obtained evidence; making a new rule saying people cannot be forced to incriminate themselves; setting more detailed rules for arrests, interrogations and investigations; setting strict restrictions on when police are permitted not to notify a person's family that he or she has been put under police control; and expanding the rights of defence lawyers and the application of legal aid.

The amendments would also make it clear when an appeal hearing must be opened to the public and would offer a new option for those convicted of minor offences to be rehabilitated within the community.

While mainland legal professionals welcome these changes, as well as the creation of a witness protection system and the mandatory requirement for witnesses to testify in court, they say the empowering of defence lawyers and the rules on excluding illegally obtained evidence merely bring the CPL in line with more rights-conscious legal rules introduced in recent years.

They say some changes even amount to steps backwards.

One group of new clauses in the first draft sparked an uproar because they created what could be easily abused exceptions to an otherwise improved requirement that police must notify family members within 24 hours when a person is detained, put under residential surveillance or arrested.

Collectively referred to by rights advocates as the 'disappearance clauses', they permitted deviation from the notification rule if a case concerned state security, terrorism or major corruption and if police thought notification would impede their investigation.

Rights advocates worried the exceptions would effectively legitimise the extrajudicial detention of dissidents regarded by the authorities as threats to state security.

It came as a partial relief to many that the second draft heeded some of those concerns and removed the exception for arrests. Two mainland law professors who have seen the third draft say it has further removed the exception for residential surveillance - in which a person can be put under surveillance in a location other than his or her home for up to six months.

However, it appears the exception for detentions has been retained, although it is restricted to cases involving state security and terrorism. In such cases, police will still be able to detain a person for up to 37 days without notifying family members if they deem that notification might impede their investigation.

Professor Chen Guangzhong, a criminal procedure expert at the China University of Political Science and Law who has been consulted on the drafting of the revisions, welcomed the positive responses in the second and third drafts but said he wished more could be done.

'One area we've been pushing is for the revision to remove the clause demanding a suspect 'give honest answers' when questioned by interrogators,' Chen said, referring to the retention of the old 'honesty' requirement despite the introduction of a 'no self-incrimination' rule.

'We are not asking for an outright 'right of silence', but at least the revision should not contain clauses that are self-contradictory.'

Some other fundamental changes legal professionals want to see include the right for lawyers to be present during an interrogation and more detailed consequences or remedies for breaches of the CPL.

'Right now, for example, when a lawyer is denied a meeting with his client or access to court documents as required by law, there is no clear procedure for him to seek redress,' veteran defence lawyer Zhang Qingsong said.

Professor Chen Weidong of Renmin University wanted a clearer indication as to what would happen to the testimony of a witness who refused to testify in court.

'Could it be removed from the prosecution's case?' he asked.