Last week, within 24 hours, China's National People's Congress enacted a revised Criminal Procedure Law and its Communist Party ousted a rising political star. Superficially, the two events seemed unconnected. Yet they are linked.
Many Chinese legal experts took grim satisfaction at Bo Xilai's removal from office as party leader of Chongqing . Bo, after all, had created nostalgia for the national nightmare that was the Cultural Revolution, a decade-long, lawless trampling on the lives of over 100 million people. Even more obnoxious to Chinese law reformers was Bo's endorsement of Chongqing police, prosecutors and judges who violated the rights of suspects while pursuing his campaign to snuff out alleged organised crime and corruption. Bo and his henchman, public security chief Wang Lijun, subjected detainees to hideous torture, coerced confessions and unfair trials, and intimidated and punished defence lawyers.
The central government's public response to those blatant illegalities was virtually nil. Yet the mysterious halting in mid-trial of a second prosecution against lawyer Li Zhuang, who had already been convicted and imprisoned for supposedly instigating false testimony by claiming that his client had been tortured, may have signalled Beijing's impatience with Chongqing justice. That second case had evoked unusual protests from prestigious lawyers, law professors and others.
Sadly, in 2010, the Supreme People's Court ignored a golden opportunity to repudiate Chongqing's practice of coerced confessions when reviewing the death sentence of another supposed gangster boss. In that case, in an effort to persuade the court to exercise its power to reject capital convictions, lawyer Zhu Ming-yong sent the court a covertly made video showing the marks of torture on his jailed client's arms, and posted this footage on the internet. Yet the court's judgment made no mention of Zhu's contention that the coerced confession should have been excluded from evidence, even though the court's own rules for judicial exclusion of illegal evidence had just gone into effect.
The newly revised Criminal Procedure Law was designed to curb some of the abuses exemplified by, but certainly not limited to, Chongqing. It provides that, henceforth in capital cases, the Supreme People's Court should hear arguments presented by defence counsel. It also imposes new limits on police powers of arbitrary detention, enhances the role of lawyers in defending suspects, prescribes procedures for excluding evidence obtained through torture, increases the likelihood that witnesses might appear in court and be cross-examined, and makes numerous other important, if often imprecise, procedural improvements.
To be sure, the revised law contains explicit compromises reflecting the demands of the ministries of public and state security. For example, despite strong protests by civil libertarians and the public against provisions in the draft law that authorised police detention of certain suspects in 'designated locations' for six months of 'residential surveillance', the law as enacted retains this authorisation if police claim they need it to investigate people suspected of involvement in cases of 'endangering state security', 'terrorism' or 'major bribery'.
Similarly, although the revised law requires police, within 24 hours, to notify a suspect's family that he is detained (but not where or why), this need not be done 'if there is no way to notify them'. While prosecutors are charged with monitoring such decisions, they are notoriously weak in supervising police, and there is no effective way detainees and their family or lawyers can challenge wrongful detention.
