26 December 2011

China's Criminal Procedure Law Revision Revisited

On Monday, China's National People's Congress Standing Committee reviewed a new draft revision of the Criminal Procedure Law (CPL), marking one step closer to the expected passage of the legislation at the full session of the NPC in early March.

Presumably, the present CPL draft incorporates at least some of the comments and criticisms submitted by the public during the month-long period of public consultation that followed the publication of the full text at the end of August.

One of those criticisms, as loyal readers of this blog will recall, concerned a proposal that would allow investigators to hold suspects in certain types of cases (involv ing offenses of endangering state security, terrorism, and major corruption) to be held under "residential surveillance" in a designated location without providing any notification to family members of the detainee's whereabouts or alleged offense. This proposal has been roundly criticized both inside and outside China as a measure that would legitimate the practice of secret arrest and enforced disappearance and put China in contravention of its obligations as a signatory to the International Covenant on Civil and Political Rights.

Yesterday's news saw headlines suggesting that the latest CPL draft would "eliminate 'secret detention.'" More specifically, it appears to refer to elimination of a provision in the earlier draft that would allow police to avoid notifying relatives of formal arrest of a suspect within 24 hours "in cases involving serious offenses such as endangering state security or terrorism" when doing so would possibly impede the investigation.

Since the full text of the current draft hasn't been made public, it's hard to know whether similar changes have been made to problematic provisions concerning criminal detention and "residential surveillance." If so, then it would truly be a improvement to the legislation and a retreat from embracing measures that have been criticized as an unacceptable strengthening of law enforcement authority at the expense of individual rights.

But if the only change has been made to the one provision on formal arrest, then it would be wrong to accept the characterization of the revision as "elimination of 'secret detention'" and hard to accept the change as a satisfactory step to address public concerns.

It would be a bit like a surgeon removing a tumor from a patient while ignoring other, equally cancerous tumors elsewhere in the patient's body. The surgeon knows that the tumors are there, because they have been pointed out to him by other cancer experts, but the surgeon only removes the one, believing that he can satisfy the patient, the patient's family, his fellow physicians, and the public at large by displaying what he's done. Meanwhile, the cancer continues to ravage the patient's body.

It may not be the best metaphor for the ongoing CPL revision, but hopefully it gets my point across. Public pressure, both domestic and international, may be the only hope if China is to avoid passing a CPL including such rights-abusing measures as the proposed provisions on "residential surveillance." If the claim that such provisions have been "eliminated" is taken seriously without clear proof and the pressure dissipates, then the cancer of unchecked police power to target those deemed as political threats will metastasize.

UPDATE: According to this article from Southern Metropolis Daily, it appears that the second draft of the revised criminal procedure law has not eliminated the exceptions for criminal detention and residential surveillance that would allow investigators not to notify a suspect's family members under certain conditions. The newspaper quotes Chen Guangzhong, an establishment legal scholar who has been promoting criminal procedure reform in China for much of the past three decades, as voicing a certain amount of concern, saying: "There's nothing frightening about not notifying the family for a 37-day criminal detention, but not notifying the family for a six-month residential surveillance is rather long."

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