ANALYSIS: China improves legal protection for the majority and introduces more control of the few
[29-03-2012]China’s National People’s Congress has just passed a new landmark law that strengthens legal protection for most Chinese. At the same time, it undermines the legal rights of the minority: political dissidents and human rights activists.
China’s legislative body, the National People’s Congress, has just passed an extensive revision of the Chinese Criminal Procedure Law. The new law improves legal protection in a number of key areas for most people. However, it also undermines the legal rights of a minority of people who come into contact with the criminal justice system, in particular political dissidents and democracy and human rights activists.
China is thus well on the way to creating a two-track criminal justice system with one set of rules for the vast majority and another for a small, but critical minority.
The revised Criminal Procedure Law has been under way for ten years. A public hearing was held in the autumn of 2011, where no fewer than 80,000 responses were received from the public – which is in itself notable in a country without tradition for transparent governance or public participation in the legislative process. And especially because it resulted in changes actually being made to the law.
The law is the result of protracted negotiations and delays by key players in the Chinese government and legal system. The contents of the law therefore constitute a compromise between reformists and their opponents, the strongest opponents being the powerful Ministry of Public Security and the police, whose very powers are regulated by the Criminal Procedure Law.
A new addition to the provision stating the objectives of the law is that it must respect and protect human rights. This is a minor textual change and a symbolic victory for the reformists, but also an important signal and potentially a break with China’s Marxist legal tradition.
The new law also ushers in a new era for human rights protection in the Chinese criminal justice system because, for the first time, it incorporates many of the basic procedural rights for lawful detention and fair trial guaranteed in international human rights law and in many respects begins to resemble the criminal procedure laws we familiar with from Western legal systems.
In particular, the law strengthens due process for criminal suspects and detainees. Suspects are entitled, for example, to be informed of the crime they are suspected of having committed, and they have the right to have family informed of their detention and the right not to incriminate themselves, even though suspects are still obliged to answer the questions put to them by the police. The new law also makes it clear that the burden of proof lies with the prosecutor and that where the evidence is not clear, the courts must give the defendant the benefit of the doubt.
The law also includes a specific ban on the use of torture. Furthermore, police investigators are for the first time required to videotape interrogation sessions carried out when investigating certain serious crimes. There is also a new provision requiring courts to exclude illegally obtained evidence, for example confessions and evidence obtained during torture.
For juvenile suspects below the age of 18 years, the new law means that people with no criminal record will automatically receive conditional non-prosecution if in cases involving minor offences. And so as not to hamper their future education and job opportunities, juvenile’s criminal records will in future be sealed by the authorities. As a new measure, the law requires that cases of compulsory psychiatric detention be determined by the courts, which significantly improves legal protection for the mentally ill. In the past, all it took was the police’s approval.
The law also provides for quicker access to legal aid for suspects and detainees as well as the right to have a defence lawyer appointed by the state and at the state’s expense in particularly serious criminal cases. Furthermore, the law strengthens the defendant’s possibilities for submitting evidence and contesting the validity of the prosecutor’s evidence, including the possibility of calling and questioning witnesses during the trial. Until now, the practice has been that the prosecutor read out written witness statements during the trial without the defence lawyer being able to cross-examine the witnesses. In this regard, the courts have been given new powers to compel witnesses to appear in court.
All things that we take for granted in Danish legal practice, but which have been, up until now, absent from Chinese criminal procedure law.
These measures – and others like them – mean that the law has the potential to strengthen legal protection and protect basic human rights for the thousands of Chinese who come into contact with the police, prosecutors and the courts every day. Depending on how the new law is interpreted and implemented in practice, it is therefore possible that, in a few years, we will look back at the passing of this new Criminal Procedure Law as a milestone on China’s long journey towards the rule of law.
Unfortunately, however, the new law is far from perfect. It also contains several backward steps for human rights protection. In particular a new article which legalises the practice of detaining people suspected of serious cases of corruption, terrorism or endangering national security without charge in non-designated places of detention. Terrorism and endangering national security are vaguely defined crimes which are often used against Tibetan and Uighur separatists and other dissidents as well as against democracy and human rights activists.
Under the provisions of the new law, it will be possible to detain these people for up to six months at secret locations outside the normal detention system, cut off from the outside world and without a court hearing. Such detentions not only violate the rights of the suspect, who is left at his captors’ mercy with few possibilities for protecting himself against possible abuse, but also the rights of the suspect’s family, who are unable to find out where the suspect is being held or why.
At the end of the day, the new law will strengthen the protection of ‘ordinary’ criminal suspects’ rights in a number of significant areas, while at the same time weakening the rights of certain categories of criminal suspects on a scale worthy of a police state. This creates a two-track criminal justice system without equality before the law and with one set of rules for the large majority and another for the small minority who are deemed to pose a threat towards the Chinese nation state and the Communist Party’s power monopoly.