Time to put China's amended criminal law to the test

Frank Ching says unless enforced, China's newly enacted amendments to its Criminal Procedure Law will only be a paper tiger

PUBLISHED : Wednesday, 02 January, 2013, 12:00am
UPDATED : Wednesday, 02 January, 2013, 4:51am

The good news as 2013 opens is that there is movement in judicial reform in China as amendments to the Criminal Procedure Law come into effect. Among other things, the amended law offers protection against self-incrimination and excludes the use of illegally obtained evidence. Such reforms were long overdue.

To be consistent with the new law, the Ministry of Public Security has released regulations including a provision that "bans coerced confessions and torture". Last week, the president of the Supreme People's Court, Wang Shengjun, made a major pronouncement on "judicial impartiality", calling it "the lifeblood of the court, and the cornerstone of public trust".

These developments follow the issuance of a white paper by Beijing, which acknowledged an urgent need for judicial reform, though it was silent on judicial independence. The judiciary currently follows orders from the Communist Party. This, too, needs to change.

While the white paper was dismissed by some critics as nothing but a whitewash, one observer, Stanley Lubman, a long-time specialist on Chinese law, discerned encouraging signs that the party might be willing to loosen its grip on the judicial system. "Unlike previous Chinese government white papers on law," he wrote in his Wall Street Journal blog, "the Communist Party is never mentioned in the latest document."

While previous white papers emphasised that reform is to be carried out "under the leadership of the Communist Party", the latest document, he said, "celebrates the accomplishments of 'China' and not the Communist Party".

The amended Criminal Procedure Law includes the phrase "respect and protect human rights" as a general principle, and this is considered one of the law's key features. Unfortunately, in practical terms, it may not amount to much.

After all, the constitution itself was amended in 2004 to include the phrase: "The state respects and preserves human rights." This amendment, however, has not had any discernible impact on China's human rights record. The state carried on as before. Most importantly, it did not abolish the unconstitutional system of "re-education through labour" under which people can be administratively confined for years without a trial.

One peek into the horrors of the system was provided recently when a woman in the US state of Oregon found a handwritten letter hidden in a box of Halloween decorations made in China that she had purchased at Kmart.

The Oregonian newspaper reproduced the letter, which was apparently written by an inmate at a labour camp in Shenyang . Inmates had to work 15 hours a day without any day off, the note said, "otherwise, they will suffer torturement, beat and rude remark. Nearly no payment (10 yuan/1 month)".

So, while the amended law is a step forward, much more thorough reforms are needed before China can be described as a country governed by the rule of law.

Frank Ching is a Hong Kong-based writer and commentator. frank.ching@scmp.com. Follow him on Twitter: @FrankChing1