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China’s Latest Legal Crackdown

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
December 12, 2011
Wall Street Journal Asia

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Before the end of this month, the Standing Committee of the National People's Congress will review the second draft of a proposal for comprehensive revisions to China's Criminal Procedure Law. Despite some tweaks made under public pressure, it's clear the revisions will be one step forward and two steps back for justice, at least for the politically controversial.

For non-political citizens, the draft revision promises overdue protections against arbitrary exercise of state power. But for politically unpopular minorities and dissidents, the revision threatens the legalization of repressive and abusive state tactics. The overall effect is a murky, two-tiered legal regime that will move the country further away from some major international human rights standards.

The draft revision contains some significant encouraging changes. People suspected of ordinary crimes will be entitled to new rights, including prompt access to a lawyer and protection against coerced self-incrimination. There is also the right to have witnesses testify in court and be subject to cross-examination, to have police interrogations electronically recorded in some serious cases and to exclude from evidence confessions obtained by torture. Implementing these new rights will be challenging, but they signal a commitment to reaching China's oft-stated goals of ratifying the International Covenant on Civil and Political Rights, which it signed in 1998, and establishing the rule of law.

Despite its positive aspects, the draft revision also embraces a more sinister agenda toward political outsiders. It will authorize, under Article 73, the practice of enforced disappearances of political offenders. While the practice has been employed for years, it was always technically illegal—until now. Under the draft, citizens can be secretly detained for up to six months on suspicion of "endangering national security" or "terrorism"—notoriously vague charges that have long been manipulated by police, prosecutors and courts. Article 73 is a blatant, open-ended attempt to authorize expanded political repression in the guise of concern for national security.

By law, "residential surveillance," a strict form of house arrest allowed for up to six months, is supposed to be less severe than confinement in a police detention center. Yet it has often been abused as a vehicle for detaining political offenders not in their own homes but in secret, incommunicado venues controlled by police, as in the cases of Nobel Peace Laureate Liu Xiaobo and renowned artist Ai Weiwei. The proposed law effectively institutionalizes this rights violation.

In today's climate, petitioners seeking relief from political or even mundane grievances may easily be charged with endangering national security, and peaceful Tibetan and Uighur protesters are often accused of terrorism. Under Article 73, they will have fewer legal rights than they do now. They will be virtually defenseless during the critical first stage of the criminal process. Suspects could be held six months longer than the already long maximum of 37 days currently allowed to investigators before obtaining prosecutors' approval for formal arrest.

Suspects will also have no right to notify their families of their detention if the police decide that this might impede the investigation. During residential surveillance, they will be held in undisclosed locations that lack the minimal safeguards and supervision that official criminal detention centers offer. Although in principle such captivity should be reviewed by the prosecutor's office, Chinese prosecutors are politically far weaker than the police, cooperate closely with them and seldom exercise their supervisory powers. Similarly, although the draft purports to grant such detained suspects the right to retain counsel during this period, there is little likelihood that they will be able to do so without notification of their detention to their families.

When they were made public on Aug. 30, these discouraging draft amendments challenged the consensus among observers that Beijing was headed, however slowly, in the direction of greater human rights protections. Fortunately, there is still time for the country's leaders and legislature to correct the draft's mistakes. After accepting public input, the drafters have been meeting with scholars and government experts to discuss the second draft to be reviewed and approved later this month. The full NPC is scheduled to adopt the final revisions at its March 2012 meeting.

Informed sources have orally reported that in response to the public's comments the drafters have already agreed to eliminate from the text of the proposed Article 73 a third category of cases, "major bribery crimes," that also was to justify incarceration-style residential surveillance. The NPC, its Standing Committee and its staff should eliminate Article 73′s remaining discrimination against those suspected of endangering national security or terrorism. Real criminal justice does not establish a separate system for the politically unpopular.

Professor Cohen is codirector of New York University School of Law's U.S.-Asia Law Institute and an adjunct senior fellow for Asia at the Council on Foreign Relations.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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