Troubling Legal Reforms
Anyway, if you’ve been following the news you’re probably already aware that proposed revisions to China’s criminal law code are currently making the rounds for public comment, as is customary prior to the revisions being ultimately approved (or not). These revisions have caused quite a stir because among them is a clause that would allow police to detain persons suspected of terrorism or endangering state security1 for long periods of time in secret locations and without informing their family members. Siweiluozi has been covering this issue particularly well, and I suggest reading his blog and also following his Twitter, which often contains commentary on the proposed laws from famous Chinese lawyers.
Anyway, the full text of the revisions is available here, but we’ve translated the relevant segment, which is from article 30, below (emphasis added):
Residential surveillance2 should be carried out at the residence of the accused criminal suspect; those without a fixed residence can be held at specified location. As for those suspected of harming state security, terrorist activities, or major corruption, carrying out residential surveillance in their residence could pose obstacles to investigation, [so if it is approved by] the immediately superior people’s procuratorate or the public security organ, the residential surveillance can be carried out at an appointed location. However, the appointed place does not need to be a detention center or a designated case center [专门的办案场所].”
The family members of the person being held should be notified of the location and reasons for the detainee’s detention at a designated location for residential surveillance within 24 hours of the detention being carried out, except in cases where notification is impossible or the detainee is suspected of involvement in harming state security or terrorist activities, or if informing them could impede investigations.
Now, I am not a legal expert, nor am I a legal translator, but I’m fairly confident that even if I haven’t translated this as precisely as a professional might, I’ve gotten the general idea correct. And it should be pretty clear why people are concerned about these revisions; clearly, they allow the PSB to summarily detain anyone at an undisclosed location for an unlimited period of time, so long as that person is suspected of harming state security.
There is no indication of what evidence (if any) is required, and no clarification whatsoever as to what it takes to label someone as “suspected” of harming state security. There is also no stated time limit for the deteintion of these suspects or the informing of their family members. And most concerning, to get approval to do this, the police must either get approval from the people’s procuratorate or from “the public security organ” — in other words, from themselves. It appears that a local PSB official of sufficient rank could in essence summarily detain anyone, anywhere, for any period of time, for doing anything, so long as the police official “suspected” they were involved in harming state security and/or terrorism.
The good news is that the revisions are attracting attention. Officially, over 40,000 opinions have already been submitted, and discussions are taking place everywhere from newspapers to Sina Weibo. Here’s hoping the NPC is listening to what people are saying.
Given that, I was interested when Tom Lasseter pointed out that the Global Times has addressed this issue:
One article of the amendment is interpreted as both progress and regression in China’s legal system, depending on how you look at the issue.
The amendment stipulates “under special conditions, suspects can be held under surveillance without their families being notified within 24 hours.” The special conditions include: notification being impossible, crimes concerning national security, severe law violation involving terrorism activity and if notification may hinder an investigation.
These special conditions have triggered outcry that it leaves room for secret detention, and has caused concern in media outlets, such as the New York Times, that “more Chinese dissidents appear to disappear.”
But if one reads it from another perspective, the article has actually been written into the Criminal Procedure Law for 32-years, and the amendment is trying to clarify the special conditions and limit the circumstances of detention without proper notification of the family.
Law articles can’t be black and white. There are cases that have to be decided differently. For example, the detention of a corrupt official may conform to the special conditions of withholding information in order to prevent the fleeing of others involved. Conspirators may be kept from communicating when nabbing a terrorist network.
There are worries of overuse or improper use of these special conditions. These are legitimate concerns. But the way to prevent misuse is through further improvement and clarification, not by completely denying it. With the legal consciousness of the public on the rise, plus scorching media scrutiny, law enforcement procedures are under mounting pressures that force police to reduce abuses of power.
China’s legal system has much to improve, but the country is also not under the dark days of the Middle Ages. Law is meant to protect the majority of people, not only a few who speak loudly.
As I understand it, these laws were last revised 14 years ago. Are those of us who are concerned by this development meant to wait another 14 years in the hope that this law will be further revised? That’s nonsense. Regardless of what you think of the law, it it needs “further improvement and clarification,” why wait? And if it doesn’t, why bother saying that at all?
Of course, disputing the logic of a Global Times editorial is sort of like taking candy from a box labeled “free candy — please take.” So I’ll just leave it at this: I find this suggested revision very disturbing, and in fact would say it appears to be an attempt to legitimize and legalize the “disappearing” of “dissidents” like Ai Weiwei and Gao Zhisheng. Under the current laws, his disappearance was possible because of a loophole in the legal code, which they are now proposing be written into law.
Passing this revision would be a step backward in China’s march — perhaps glacial crawl is actually a better term — towards embracing human rights as meaning something beyond GDP growth. Other nations, including the United States, have similar provisions for terror suspects, and they are equally reprehensible. Whatever crimes a person may have committed, they should not be subject to extended or arbitrary detention before they are convicted, and their family — who have committed no crime — should at the very least be allowed to know their whereabouts.
- a crime many dissidents are accused of
- i.e., house arrest
on ChinaGeeks | analysis and translation of modern China: http://chinageeks.org/2011/09/troubling-legal-reforms/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Chinageeks+%28ChinaGeeks%29
