Tweaks scale back detention law

PUBLISHED : Friday, 09 March, 2012, 12:00am
UPDATED : Friday, 09 March, 2012, 12:00am


The central government has scaled back police powers in the final draft of amendments to the mainland's Criminal Procedure Law, removing some clauses that rights advocates contended would make secret detentions easier.

Changes to the 'disappearance clauses' resolved some concerns, but the improvement to the law were seen as limited by many rights advocates. They also said the real test would be whether a promise to respect the human rights of suspects and defendants could be enforced.

Nicholas Bequelin of Human Rights Watch called the final draft 'a victory for legal reformers', showing that persistent lobbying from the legal community both inside and outside the country could make a difference. However, he added that the overall improvement in restricting police powers was 'marginal'.

'If you are talking about whether Chinese police still have power of detaining people for long periods of time, impeding their access to lawyers and basically falling short of international due process standards, then the legislation doesn't remedy this,' Bequelin said.

Mainland legal professionals have long held hope that the latest changes to the law - passed in 1979 and last amended in 1996 - would greatly strengthen the rights of suspects and defendants in a police- centric criminal justice system.

Controversial clauses included in the first draft of revisions released in August allowed police to conduct 'residential surveillance' - a kind of house arrest - at a location other than the suspects' home. They also gave police the discretion not to notify family members of detention in cases involving state security, terrorism or major corruption.

Rights advocates said such an arrangement would effectively allow police to secretly detain suspects for up to six months without their families' knowledge.

The third draft removed the discretion not to notify the family.

The final draft still allows police to deviate from the 24-hour notification requirement in detention cases involving state security and terrorism, if they think notification would impede their investigations.

Mainland legal professionals say deciding whether notification could impede an investigation would still be entirely at the police's discretion, with no channel for appeal. That means that a person could be secretly detained for up to 37 days in cases involving state security and terrorism.

National People's Congress (NPC) Legislative Affairs Committee Vice-Chairman Lang Sheng said yesterday that cases of detention without family being notified would be 'very rare' and would 'normally last only three to seven days'.

In presenting the third draft, NPC Standing Committee vice-chairman Wang Zhaoguo said the biggest improvement to the law was the inclusion of a promise to 'respect and protect human rights'.

Wang said the law was amended to balance fighting crime and protecting human rights in mind, but amendments were made under a principle of gradual change because the 'number of criminal offences remains high, with an increase in serious violent crimes'.

Some NPC and Chinese People's Political Consultative Conference members wanted more. Lawyer Ma Hucheng, for instance, wanted to see lawyers allowed at interrogations, to prevent torture.

'While there are many improvements in this revision, a key question is whether these improvements can be enforced,' Ma said. 'Currently there are no clear procedures as to how we can seek redress if our rights are violated.'