Proposed legal changes prove insubstantial

PUBLISHED : Wednesday, 14 March, 2012, 12:00am
UPDATED : Wednesday, 14 March, 2012, 12:00am


There have been many arguments during the three drafts of the mainland's amended Criminal Procedure Law about whether the revision is an improvement or not.

There appears to be a growing consensus: while the list of changes is long and many are welcome improvements, very few are substantial.

And the bottom line is that if the revision is passed today in its current form, a citizen suspected of terrorism or threatening state security could be detained by police for up to 37 days without their family knowing, or for up to six months in an undisclosed location designated by police, where their family would only be told that they are 'safe' but nothing else.

'Threatening state security' is a vaguely defined charge that is often applied to the country's dissidents.

Of course, things could have been worse.

In the first draft released in August, a person suspected of such crimes could be 'disappeared' for up to six months - put under residential surveillance in an undisclosed location with no need for the police to notify their family if they believed doing so could impede their investigations. Fortunately, in the third draft, the authorities have changed the law to require police to notify families in all cases of residential surveillance.

Also, compared with the current law, the amendment introduces clearer time limits for most criminal detentions, saying family members must be notified within 24 hours and a suspect must have access to a lawyer within 48 hours.

The relationship between human rights and national security is a controversial topic around the world, but on the mainland police have the power to lock a person away for up to 30 days before seeking prosecutors' approval for an arrest, which can take seven days to decide. Police also have the power to decide on residential surveillance in an undisclosed location, which is not subject to laws governing police conduct in a formal detention centre.

Given these suspects are also deprived of other protection under the current draft, such as automatic access to a lawyer. Many question why families cannot be spared the pain of not knowing their loved ones' whereabouts for 37 days.

Even with the improvements, there are reasons for scepticism.

Firstly, some of the changes trumpeted by authorities are just bringing the Criminal Procedure Law in line with more rights-conscious legal developments in recent years, such as the requirement to exclude forced confessions and illegally-obtained evidence, the strengthened rights of defence lawyers, and a new section on the Supreme People's Court's death penalty review procedure.

Another major reason is that some of the improvements have been watered down or blatantly backtracked in subsequent drafts. They look like compromises made through heavy bargaining between law enforcers and legal reformers - and are bleak proof that law enforcers still come out on top.

While the amendments include a new rule that a suspect cannot be made to give self-incriminating evidence, an old rule that a suspect must answer honestly during interrogations has been kept.

In the third draft, authorities removed an earlier requirement that when police notify a suspect's family about a detention, arrest or residential surveillance, they must also inform them of the reason and location.

Another clause in the first draft stipulated that the Supreme People's Court 'must' question a defendant when reviewing a death penalty case, but the word 'must' became 'may' in the second draft.

And a clause that in the first draft said a witness crucial to a case must testify in court, in the second draft became a witness only needs to testify in court if a judge thinks it is necessary.

And of course some fundamental changes pushed for by the country's legal community, such as allowing lawyers to be present at interrogations, rather than meeting clients afterwards as currently allowed, have still not been heeded. A clause singling out lawyers for punishment for coaching witnesses has not been removed either, although a safeguard was added against abuse of the clause.

Finally, the top concern on everyone's mind is - given the lack of separation of powers on the mainland and how hard it has been to hold law enforcers accountable to the law in the past - whether any of the promises in the amended Criminal Procedure Law will actually be realised.

So far, it appears that for most violations of the Criminal Procedure Law there is no effective way to seek redress. For example if police breach the rule about notifying family within 24 hours, what can one do? If a lawyer cannot meet a client or review court documents, or encounters a delay in doing so, what can he do? None of these would weaken a prosecution's case at the moment.

After seeing the third draft, many members of the mainland's legal community are not expecting the amended Criminal Procedure Law to bring any concrete changes to the current grim imbalance of power between police and defence lawyers.

We understand a few changes have been made to the final draft to be passed today, but none on the most criticised clauses. The best we can hope for now is a relatively high number of 'no' votes by the NPC delegates as a gesture of concern.