By Stanley Lubman, The Wall Street Journal
The revised Criminal Procedure Law (CPL) enacted this month by China’s National People’s Congress (NPC) is being hailed by the local media as a significant step forward, which it may well be if its provisions are implemented in practice.
High points of the revision, and one additional provision that has provoked considerable criticism, are briefly reviewed here, as well as possible negative implications for foreigners.
If strict enforcement of the new law is to be even remotely possible, more than mere promulgation is required: It’s going to take new guidelines and training in order to draw the agencies responsible for the “political-legal system” away from previous patterns of disregard for existing procedural requirements.
The Chinese media have praised the insertion of “respecting and protecting human rights” into the general principles of the Law. Ironically, only days before this provision was adopted along with the rest of the complex Law, China Human Rights Defenders issued its Annual Report on the Situation of Human Rights Defenders in China, which catalogs “a year of harsh crackdowns for human rights defenders (HRDs), characterized by lengthy prison sentences, extensive use of extralegal detention, and enforced disappearance and torture.”
Given China’s human rights record, actual practice under the amended Law will be watched closely for signs that this provision will improve police conduct.
The Law now provides that police cannot force suspects to incriminate themselves, and forced confessions such as those obtained through torture are illegal. Evidence, testimony, and statements extracted through illegal means such as violence or threats must be excluded. This is a broadening of guidelines issued in 2010, which did not explicitly state an exclusionary rule in non-capital cases.
After the full text of the amended Law has become available, it will be subjected to intense scrutiny, and we can expect that other changes in criminal procedure will become apparent. At this moment, it is enough to note that the amendment does create or modify rules that constitute advances toward legality in the sector of Chinese law that has, up to now, been the most backward of all.
One new provision has received a great deal of attention: The Law previously provided for “residential surveillance,” meaning house arrest, but in practice – although without legal authority – the police have caused the “disappearance” of criminal suspects and activists. In the recent past the police have held dissidents such as Ai Weiwei and human rights lawyer Gao Zhisheng in undeclared locations for months without notifying family members.
One draft of the amendment to the Law had provided that the police could hold suspects incommunicado and in secret locations. The provision was later omitted after a considerable amount of public debate that was marked by strong criticism by human rights activists and legal experts.
Under the amendment just adopted by the NPC, law enforcement agencies would still have the power to detain persons suspected of crimes related to national security or terrorism in a designated location of the agencies’ choice for up to six months. The agency imposing the measure would have to notify relatives within 24 hours, but would not be required to disclose the whereabouts of the person. Police would also be allowed to deny suspects’ access to a lawyer for the duration of the detention. An exception suspends the requirement to notify relatives within 24 hours if the law enforcement agency believes that such notification could “impede the investigation.”
Other provisions would allow secret detention of criminal suspects in “national security, terrorism and major bribery” cases for up to 37 days.
Human rights researcher Nicholas Bequelin has noted that “endangering state security” or “terrorism” are vaguely defined offenses that have long been manipulated by the government “to crack down on dissidents, human-rights lawyers, civil-society activists and Tibetan and Uighur separatists.”
Bequelin also pointed to the possibility that accusation of “major bribery” could be used against foreigners to justify extended detention without notification. The “most common” charges against foreign businessmen have allegedly involved a national security crime, the theft of “state secrets,” which is sometimes applied to documents that are publicly available and “ordinary paperwork” from state-owned enterprises. Several convictions of foreigners in 2010 involved “state secrets.”
In the Rio Tinto case the documents were iron ore sales contracts, and in a second case an American citizen who helped his US employer purchase a commercial database was sentenced for “unlawfully sending state secrets” abroad.
For the first time, cases no longer have to be tried publicly if they involve “commercial secrets.” This step backward obviously decreases transparency of the criminal process.
As is common in the drafting of Chinese laws, the amendment does not clarify the content and scope of the term “commercial secrets.” Once again the “political-legal” institutions, as police, procurators and courts are collectively known, will use their discretion subject, of course, to political guidance.
How effectively will the new Law be enforced? It is useful to recall that in 2010, the use of evidence obtained through torture by police and prosecutors in capital cases was absolutely banned by guidelines issued by no less than five Chinese agencies involved with law enforcement: the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice.
These same agencies should send a strong signal to their personnel expressing commitment to carrying out the amended CPL: A guideline should be issued ordering them to do their utmost to put the new law into practice and institute training programs within each agency to educate personnel. Moreover, the guideline and training should be widely publicized. The leaders of the party-state have long used such methods to implement and reinforce policies, and they need to do so now.