28 February 2012

Good News About Residential Surveillance?

A quick note to register my cautious optimism regarding this latest news on the ongoing revision of China's Criminal Procedure Law.

As I understand what Chen Guangzhong is saying, the exception clause in the provision governing family notification for "residential surveillance in a designated residence" has been struck--or at least amended--in the draft of the legislation set to be submitted to the National People's Congress next week. Depending on the wording, this will likely mean that police will be required to notify the family members of anyone subjected to residential surveillance of this type within 24 hours, regardless of the nature of the crime.

Though I don't have any way of confirming this independently, I consider Professor Chen to be a credible source. If he's right and this reflects the wording of the final draft for submission to the NPC, I would have to conclude that this issue has been relatively settled among the stakeholders at this late stage—publication of the draft is not the relevant indicator, in my opinion.

Making draft legislation public is a relatively new phenomenon in China, and it serves one main purpose: as grist for the mill of public consultation. They've already done that once, and I don't think they ever had any intention of getting additional public consultation on the CPL. On the contrary, they've not published the current draft precisely because the stakeholders have settled on a final draft. There may be a few cosmetic changes left to the NPC, but I basically think the legislative process is over.

The result of all this appears to leave a "disappearance" clause in the provision on criminal detention. Detaining someone for 37 days without notifying anyone is still quite problematic, but 37 days is considerably shorter than six months and at least detentions of this type will have to take place within the (relatively) predictable confines of a detention center. Also, depending on the final wording, it's very likely that, compared to current law, the revision will place substantial limits on the types of cases for which this kind of detention can be used.

As someone who for the past six months has rather single-mindedly focused on this issue as a potentially serious backwards step in China's human rights development, I am prepared to welcome these changes, if they turn out to be accurate, as a substantial improvement over the drafts that were put forward last year. If this indeed comes to pass, it would be a product of domestic and international pressure of both the public and private types.

Special credit for this small but significant victory would have to go to those members of the Chinese public who seized upon the opportunity they were given to make their voices heard about a fundamental piece of legislation and expressed loud opposition to attempts by law enforcement to expand their powers at the expense of due process and procedural fairness.

1 comment:

  1. Interesting that this happened in the US at about the same time: