Separate and Unequal

CPL Revision and the Treatment of Political Prisoners in China’s Dual-track Justice System

Dual tracks

Photo credit: bigfoto.com

Sometimes referred to as the “second constitution,” China’s Criminal Procedure Law will soon undergo significant changes in a number of key areas. In the works for eight years, this revision will in many ways set the tone for how Chinese law regulates the balance between fighting crime and protecting human rights. While the draft shows that increasing attention is being paid to the rights of most suspects and defendants, it also suggests the establishment of a separate, less-regulated criminal justice system for those accused of state-security offenses (including crimes of speech and association), terrorism, and corruption.

Promulgated in 1979 and revised in 1996, the Criminal Procedure Law of the People’s Republic of China (CPL) establishes the rules by which China’s police, prosecutors, and courts are obliged to operate in the handling of criminal cases. In addition to defining the balance between the coercive power of the state and the rights of individuals, the CPL also regulates the arrangement of power between law-enforcement and judicial institutions through provisions governing criminal investigation, detention, evidence, and trial.

After years of discussion, the effort to put together new legislation began in earnest in 2009. Then, on the afternoon of August 30, 2011, the Standing Committee of the National People’s Congress (NPC) published its draft of a proposed revision and announced a one-month period of public consultation. During the period, the CPL was subject to intense scrutiny, with legal scholars, lawyers, and the general public voicing their opinions online and to the press. At the close of the public-consultation period on September 30, the NPC had received nearly 80,000 comments.

Empowering Police

Many of these comments were critical of a perceived expansion of police powers. For instance, additional provisions would give police new authority to carry out electronic surveillance against suspects in cases involving state security, terrorism, organized crime, major drug offenses, or criminal cases involving “other serious threats to society.” Investigators could initiate these measures as needed but would be subject to “strict,” yet vaguely defined, “approval procedures.” Public-security officials at or above the county level would be empowered to authorize “secret investigations,” amounting to a trivial amount of oversight.

Considerable attention has focused on changes to the provisions concerning the “coercive measures” available to law-enforcement officers during their investigation of suspected criminal offenses. In particular, changes covering the procedure known as “residential surveillance” appear to legitimize what can only be called enforced disappearance: detention of suspects in unspecified locations for up to six months without any notification to their family members or ability to exercise their right to meet with a lawyer. Such use of residential surveillance to carry out secret, incommunicado detentions has existed for years in China due to ambiguities and blank spots in the present law, but the proposed legislation would effectively legalize such practices in certain types of cases, including those involving terrorism, serious corruption charges, and “endangering state security” (ESS) offenses, which have been the basis of imprisonment for activists like Nobel laureate Liu Xiaobo.

In this respect, the measures on residential surveillance are illustrative of the proposed revision’s attempt to place new restrictions on police power for the majority of cases, while expanding police flexibility and authority in sensitive cases. New provisions that would obligate criminal investigators to notify a detained suspect’s family members within 24 hours include an exception for ESS, terrorism, and corruption cases if it is decided that notification could interfere with investigation. Likewise, provisions requiring that lawyers be able to meet with detained suspects give investigators discretion to withhold permission in these same three types of cases.

These exceptions indicate that consensus on certain revisions to generally limit the power of Chinese law enforcement may have been reached by maintaining or even expanding that power in the relatively few cases that authorities determine to pose the greatest danger to public, social, and political order. This suggests that legal reform may be moving towards a dual-track criminal justice system in which general, institutionalized respect for rule of law exists alongside expansive powers that allow the government to detain individuals suspected of specified, most notably political, offenses. Though such a system would not be unprecedented—it is a feature of the criminal justice system in Singapore, for example—its establishment would be a step backward for the promotion of universal human rights in China.

 
CPL Proposals Indicating a Dual-Track System

“Exception”-ally Better

When one sets aside these exceptions and the expansive law-enforcement powers they make possible, there are in fact a number of ways in which the proposed revision is an improvement over current law. In order for these improvements to be realized, however, there will need to be a concerted commitment to implementation and clear sanctions for non-compliance.

Several proposed measures address ways to reduce the use of torture by investigators. The CPL draft incorporates rules adopted by the Supreme People’s Court in 2010 that establish guidelines and procedures for the exclusion of confessions, testimony, and other evidence obtained through coercion or other illegal means. Suspects placed under criminal detention or formal arrest would be required to be transferred to a detention center within 24 hours, and audiovisual recording of interrogations would be mandatory in cases in which life or death sentences are possible. The law would also protect suspects from being forced to incriminate themselves, though the continuing obligation to answer investigators’ questions truthfully is a far cry from a guaranteed right to remain silent—adoption of which Chinese law-enforcement agencies have adamantly resisted.

The proposed CPL draft would clarify the role of defense lawyers, bringing relevant provisions more in line with the Law on Lawyers, which was last revised in 2007. Suspects would have the right to engage a defense lawyer almost immediately after they are first taken into custody or subjected to questioning—a much earlier stage in the criminal process than the CPL currently allows. The revised CPL would also make it much easier for lawyers to meet with most detained suspects, though permission from investigators would continue to be required in cases involving ESS, terrorism, or serious corruption. Despite these clarifications, however, some lawyers have observed that there has not been any real expansion of the fairly limited role played by defense lawyers in the pre-trial phase.

To address the common problem of witnesses not appearing in court to provide testimony, the draft proposes to obligate appearance by those whose testimony has “major implications” for conviction or sentencing and gives courts new authority to compel appearance and imprison those who refuse to comply. Spouses, parents, and children of defendants cannot be compelled to testify; however, the court appears to retain significant discretion over the necessity of witness testimony.

In death-penalty cases, new provisions would require courts to hold hearings in trials of second instance, a measure that would theoretically give defendants a better opportunity to present their case and challenge evidence presented by the prosecution. Furthermore, the law would give more definition to the Supreme People’s Court’s final review of death sentences, requiring judges to interview the defendant and to consider the opinions of the defense.

There are several other areas of potential improvement in the proposed CPL. Despite the serious problems with the provisions on residential surveillance, the draft shows a certain commitment towards increasing the use of non-custodial measures, like bail, and reducing pre-trial detention by giving procuratorates the ability to review the need for continued arrest. Women sentenced to life imprisonment would be allowed to serve their sentences outside of prison while pregnant or nursing. In the area of juvenile justice, special procedures would incorporate the new practices of deferred prosecution and sealing of criminal records. Other measures would give courts (rather than police) the authority to order compulsory psychiatric treatment for “mentally ill” individuals who have committed violent offenses.

 

Loading the Scales

In the end, the proposed revision of the CPL contains both measures that have the potential to protect the rights of suspects and measures that enhance the power of authorities to fight crime and maintain order. It would be misleading, however, to conclude that a healthy balance has been achieved. The many provisions that are protective of rights will depend on consistent and committed enforcement to realize their potential. Meanwhile, the powers that have been granted to the police can be exercised immediately with little effective oversight. Though the categories targeted are relatively small—state security cases contributed less than 0.1 percent of all criminal cases in 2010, the lack of clear definitions in some of these offenses and the tendency for police powers granted in certain cases to be applied in others, particularly when unchecked, enlarges scope for abuse.

It is not yet clear how public criticism will affect amendments to the “second constitution,” the passage of which is expected by the plenary session of the NPC in March 2012. Legislation like this requires the balancing of many interests, but it is not always clear which interests are given priority and how conflicts of interest are ultimately resolved. Time will tell whether pressure to respect rule of law, originating from both inside and outside China, will derail the construction of a dual-track justice system in favor of a single path to procedural rights for all. ■