Amendments to criminal law need greater detail

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


Despite being blanketed in controversy, the mainland's amended Criminal Procedure Law was passed by legislators last month with clauses that rights advocates find troubling and legal reformers say are disappointing.

With these flaws now enshrined in statute, it is be hoped there will be a judicial interpretation or implementation guidelines issued before the law comes into effect in January, to minimise the risk of these clauses being abused.

Two ongoing high-profile cases indicate the kind of procedural injustices that will continue if the guidelines are not detailed enough, if they don't take into consideration concerns that have been raised by legal professionals, and if authorities do not do more to make sure police, prosecutors and judges comply with the law.

The first is the 'Beihai four lawyers' perjury case, which points to how the new article 73 of the Criminal Procedure Law (CPL) on residential surveillance could be abused, as it permits surveillance to take place at a location other than the detainee's usual residence if he or she doesn't have a fixed home, or if the case is deemed to concern state security or terrorism.

In June, four lawyers in Beihai, Guangxi province, were detained after their clients, defendants in a murder trial, retracted their confessions, claiming they had been tortured. In the end, lawyer Yang Zaixin was arrested for tampering with evidence.

In mid-March, just after the passing of the amended CPL and after nine months of detention, he was finally allowed to meet his family, as prosecutors agreed to change his detention location from a police facility to a residential one, which should have been his home, even under the current CPL guidelines. However, he was instead locked up in a flat in Beihai's Haicheng district - the location of the office of the prosecutor in charge of investigating his case. Prosecutors said this was justified, even though Yang had a home in the city. Even though residential surveillance is meant to be a more relaxed alternative to detention, Yang remains guarded by four men at all times and is not allowed to leave the flat or communicate with anyone - at most he might wave to visiting friends from behind bars installed on the flat's balcony.

His wife did not even learn he had been moved to a new location until she saw it on the news on March 21. After complaining, she was finally allowed to meet him the next day.

Two days later, she tried to meet Yang again at the flat with their children, but she was told she needed prior permission. The second case, dubbed the 'Six migrant workers self-defence case' in Changshu, Jiangsu , has highlighted the difficulties in excluding illegally obtained evidence at trial, as well as seeking a different judge or prosecutor on the basis of bias or a conflict of interest.

In April of last year, about two dozen men wielding long knives barged into the office of an investment company to collect debt owed by the company boss. The six workers there - who had been fearful of the such a visit- pulled out cleavers to fight back. Afterwards, the six were sentenced to three years in prison for inciting a fight, while none of the 24 assailants were arrested. Only after an appeal did the Suzhou Intermediate Court order a retrial, and nine of the 24 assailants were then arrested.

Even at the retrial late last month, however, the defence lawyers were still shocked by the many procedural irregularities.

First, while it was meant to be an open hearing, media were banned from entering the courtroom. And when defence lawyers requested to have the judge and prosecutor changed on the basis of potential bias, the judge refused to allow either. By law, such requests should be considered by the head of the court and the head prosecutor, not the judge trying the case.

Then, when defence lawyers sought to play a video recording of a police interview with a witness featuring questions that the defence said amounted to sexual harassment and should be used to exclude 37 pieces of evidence, the court did not know what to do. It even asked the prosecutor whether the court should play the recording.

In 2010, the Supreme People's Court issued guidelines on excluding illegally obtained evidence, but there hasn't been one reported instance of such evidence being excluded. One reason is that the procedure is designed so that defendants must provide evidence of torture, which is understandably difficult. This also points to the need for more details on procedure and for better training. The CPL was first passed in 1979 and last updated in 1996. Authorities said they pushed for the amendments to be passed last month, as they were considered significant enough improvements after such a long time. They added that the key to protecting rights lay in the CPL's strict enforcement.

For those of us still wavering on whether the new amendments are indeed an improvement, we'll know for sure when - and if - implementation guidelines on controversial clauses are issued.