07 March 2012

On the Criminal Procedure Law and Being "Free of Fear"

Tomorrow afternoon at 4:45pm, there will be a press conference in Beijing during which Lang Sheng, member of the National People's Congress (NPC) Standing Committee and deputy director of the Law Committee of NPC Standing Committee, and Li Shouwei, deputy director of the Office of Criminal Law of the Law Committee of NPC Standing Committee, will discuss proposed amendments to the Criminal Procedure Law (CPL) that are being put forward for deliberation by the NPC during its annual meeting.

Hopefully, this press conference will help to bring some clarity to what the legislation looks like in its final draft form and whether, as has been reported, the "disappearance clause" has been struck from the provision concerning residential surveillance.

As we wait, I thought I'd share the following essay (in typically rough translation and excluding a brief news lede), which is one of the most interesting articulations I've seen in Chinese of why public opinion was right to raise concerns about legitimizing enforced disappearances. It was published last September, during the public consultation period, in China Social Science News (中国社会科学报), the newspaper of the China Academy of Social Science. I don't know much about the author, Shan Shibing, other than that he is a freelance commentator for several newspapers.

CPL Should Make Citizens "Free of Fear"
Shan Shibing

In recent days, the public has been paying close attention to revision of the Criminal Procedure Law. This is because, in an age when the public is increasingly concerned about the level at which private rights are being protected, if a piece of legislation wants to be accepted by the public and acknowledged by public opinion as a sort of progress, it must make society feel that their own rights are being sufficiently cared for by the system, rather than being systematically discriminated against. Even worse is to make the public feel as if they are in danger of [having their rights] systematically plundered and damaged. Even if there is no shortage of highlights in this CPL revision, the fact that it has caused the public to have concerns of an epidemic of “secret arrests” is in itself a major regret.

Over recent years, the awareness of rule of law by Chinese citizens has actually been continually on the rise. From the strong emphasis people paid to the Property Rights Law to their widespread concern about revision of the CPL—all of these interventions by public opinion into the legislative [process] show that the legal literacy of Chinese citizens has already greatly improved. No one ever worries without good reason, and the fear bred in the public’s mind about an epidemic of “secret arrests” is by no means a simple misreading [of the law] by the public. Don’t forget, law is itself an expression of civilization and ought to reflect a love of humanity. Law is to make people feel secure, not to make them feel afraid. If a piece of legislation causes people to feel fear so easily, this is proof enough of its failure.

Law is a regulator of conflicts of interest within society, and behind every piece of legislation there is bound to be a complex “chess match.” In this age, the chess match between citizens’ private rights and public power is already an objective social formation. Behind every violent demolition and removal or citizen petition one can see reflected the ugly face of public power plundering people’s livelihood interests. Which way CPL revision leans in terms of the distribution of interests between public power and private rights thus is itself enough to touch a sensitive nerve in society. If a piece of legislation cannot protect citizens’ rights or reflect a civilized administration of the law to the greatest extent possible, then it cannot be called progress.

No person can bear to see their family member “disappear” or go “unaccounted for.” If a person is missing and even his family doesn’t know where he’s gone, it’s not difficult to imagine what a human calamity that would be. According to the most basic ethical standards, when a person is detained or arrested by public power, his family ought to be notified of his whereabouts. This itself is a kind of universal application of the law. Of course, there are preconditions, and perhaps it will be necessary to withhold notification temporarily from relatives for reasons of public interest or safety. The problem is that it’s entirely possible for “inability to notify” or “notification has the potential to impede the investigation” to become “pocket” excuses in all cases. In this context, it’s currently impossible to see any systemic check that would prevent investigators from using this “pocket” excuse to trample upon citizens’ private rights and create human tragedy. This is the true cause of the public’s worries.

In questions of legislation, one shouldn’t overestimate public power’s self-restraint. This is common sense. In one sense, in order to better regulate and check public power, it is actually better to assume a “bad public authority” when designing relevant institutions. This means that when legislating checks on public power, we must avoid the traditional flaws of “better to leave things vague than to be too specific” and cannot give public power too much room for flexibility. To be sure, we’ve seen the terror caused by “secret police” in many a foreign film. There’s no denying that abuse of public power by the police is not uncommon in some places in China. If we now expand the space for this kind of public power within the system, this will inevitably cause citizens to feel that their rights and dignity may be subject to even more violations.

We cannot completely deny that this kind of “inability to notify” or “notification has the potential to impede the investigation” in the CPL revision has a certain objectivity and reasonableness. But if we approach things from the angle of perfecting procedures in order to monitor and check a potentially transgressive public power, then this legislation will never get the rational agreement of the public. China’s judicial practice already suffers from an extreme emphasis on substantive [justice] at the expense of procedure. One important reason for the miscarriages of justice that have come to light in recent years is the inability of the judicial system in practice to given effect to “procedural justice.” It’s just as Havel said, the path to overcoming fear is “living in truth.” When citizens have no credible sense of the truth and exist with concerns about procedural justice, then it will be difficult for them to be “free of fear.”

In this respect, this sort of CPL revision—one that makes people worry about a potential epidemic of “secret arrests” and fear that its vague provisions won’t keep potentially unregulated power within the cage—is inevitably a kind of legislative setback and can easily produce a bad law that will cause serious harm to rights, civilization, and humanity.

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