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."

14 December 2011

Bo Xilai, Meng Jianzhu, and the 18th Party Congress


As the 18th Party Congress of the Chinese Communist Party approaches, there is already lots of speculation as to the composition of the next Politburo Standing Committee (PBSC), the party's core leadership group. There are an unusually large number of expected vacancies this time around, with only two incumbent members, Xi Jinping and Li Keqiang, remaining on while the other seven current members step aside after having passed the conventional retirement age. With so many spots up for grabs—and not just one, but two former party leaders representing very different political constituencies likely to stick around throughout the decision-making process—the behind-the-scenes jockeying is likely to be energetic.

A lot of the current speculation is focused on the question of whether Bo Xilai, who is currently the party boss in Chongqing Municipality, or Wang Yang, Guangdong party boss, or both, will be elevated to this elite leadership group. Each is seen to represent two distinct political styles, with Bo's populism, promotion of "red culture," and emphasis on social equality posing a sharp contrast to Wang's more liberal attitude toward economic and political reform. If one is elevated at the expense of the other, it could hint at the preferred political tone of the next leadership group. If both make the standing committee, it creates the potential for competition or even fragmentation within the leadership of a kind that the CCP has been keen to avoid ever since 1989.

A related issue that is of particular interest to me is who will become the next head of the Central Politico-Legal Commission (CPLC) and take the reins from Zhou Yongkang as China's "security czar." For months, I've been predicting that Bo Xilai might wind up being the man for the job, especially given his high-profile campaign against corruption in Chongqing. This would potentially be a bad news for any remaining hopes that China would move more resolutely towards rule of law, given that Bo's campaign has not shown much appreciation for procedural justice or the role of defense lawyers.

There are those, however, who think that Meng Jianzhu, currently heading the Ministry of Public Security (MPS), will get the nod for CPLC secretary. (For example, such a scenario was put forward in the most recent issue of Hong Kong's Open Magazine.) The thinking seems to be that the party's overriding interest in preserving social stability necessitates having police interests represented within the top party leadership, and since present CPLC head Zhou Yongkang was a former MPS head, he creates a kind of legacy or precedent for moving the MPS chief into the CPLC position.

I'm still skeptical about Meng's chances. Since 2002, the secretary of the CPLC has been a member of the PBSC. There is no known requirement that this be so, though, so it's possible in theory that the CPLC position could be given to a member of the full 25-member Politburo. However, I suspect that assigning the position to a "mere" Politburo member would be seen as a reduction of power for the security portfolio, and given the importance of political and social stability in present-day China, it just doesn't seem likely.

On the other hand, giving Meng Jianzhu a seat on the PBSC would represent a serious elevation of his position within the party, considering that he is presently only a member of the Central Committee (which has hundreds of members) and not the Politburo. My reading of recent history leads me to conclude that it is unusual for party members to be named to the PBSC without having already been a member (or at least an alternate member) of the Politburo. Unusual but not unheard of: both Xi Jinping and Li Keqiang were named directly to the PBSC without prior membership on the full Politburo, but one should perhaps see those as moves made to groom future national leaders in anticipation of a transition to a new leadership generation. There is no such rationale for Meng, who will turn 65 in 2012 and thus (like Zhou) only be eligible to serve a single term as CPLC secretary.

Wang Shengjun, the current president of the Supreme People's Court, would be an interesting choice for CPLC secretary, especially given the apparent move away from having public security chiefs hold the concurrent position of politico-legal committee secretary at the provincial level. Like Meng, Wang is currently only a member of the Central Committee, but he has the advantage of experience within the party's politico-legal committee system as well as a stint as the head of public security in Anhui Province. But Wang will be 66 years old next year, presumably making him too old for a spot on the PBSC. Moreover, there have been recent online rumors that he is suffering from cancer.

Unless I'm missing something, then, I just don't see Meng Jianzhu getting bumped up to the PBSC just in order to have another former Minister of Public Security hold the CPLC post. And, of the other "candidates" whose names have been put forward for possible elevation to the PBSC, I don't see any others besides Bo who would fit "naturally" into the CPLC portfolio. In fact, one could imagine that part of Bo Xilai's motivation for engaging in his high-profile crime-busting campaign in Chongqing was to justify a spot for himself on the PBSC, since there are apparently some party leaders who see him as a bit of an opportunist and a wild-card who might upset the delicate consensus that has been cultivated within the party leadership since the early 1990s.

So, for now at least, my "money" is still on Bo Xilai. But I am but an amateur in the field of Zhongnanhai-watching, which is (with all due respect to those who engage in it for a living) a bit of a fool's game to begin with. As I may have mentioned before, I'm a historian by training and temperament, so predicting the future is not my forte. When I was in college and reading Western analyses of the Cultural Revolution written as it was unfolding, I came across a quote that I attribute (and paraphrase—both with some uncertainty) to John K. Fairbank, the great historian of late imperial China: "The historian's after-the-fact reconstruction of the past is less courageous—and less foolhardy—than trying to predict the future."