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Legal amendments in China a positive development but big worries remain

HONG KONG (SE): A draft of an amendment to the Criminal Procedural Law making clear that confessions extracted under torture, as well as depositions obtained through violence, threats or any illegal means should be excluded as evidence from the courtroom, was submitted to the Eleventh National People’s Congress held during March in Beijing, China.

The amendment also moves to define and describe exactly what the term house surveillance means and stipulates conditions for its use.

However, the controversial law allowing the holding of a suspect in a place other than their own home on charges relating to national security, grave corruption or terrorism, has not been removed.

The sticking point is that these crimes are ill-defined, which allows authorities a lot of leeway, especially since the confinement can also be during the investigation period, even before charges are laid.

This is a particularly worrying point, as it is widely used against social or political dissidents, as almost anything can be, and in the past has been, interpreted as being a threat to national security.

Even if a person is acquitted or found not guilty, the damage is already done and the person effectively silenced during the detention period.

Nevertheless, the move has been welcomed by reformers as it is seen as a step towards illegalising forced disappearance.

Usually people are taken to an undisclosed guesthouse, which gives police a free hand to torture, extort information or confessions.

Chen Guangzhong, the chairperson of the China Legal Society, was quoted by Agence France Presse as saying on March 8, “I think this is a good sign, it shows our legislative bodies—when integrating China’s actual situation into their laws—can also listen to other, different ideas. That type of progress is not at all easy.”

Xinhua reported on March 8 that the new amendment is designed to underline the principle of respecting and safeguarding human rights.

It quoted the vice chairperson of the congress standing committee, Wang Zhaoguo, as saying that it is a necessary move, because of the increase of violent crimes reported in the country and the prominent incidence of conflict.

Wang added that the number of criminal offences committed in China at present is high.

He called the revision of the criminal procedure necessary in order to safeguard public security, resolve social problems and solve problems that people are deeply disturbed about.

“Improvements should be made to keep up with the times, without surpassing the present realities or blindly copying any foreign judicial and litigation systems,” Wang was quoted by China’s official news agency as saying.

Current procedural practice was enacted in 1979 and amended in 1996. The current revision went to the standing committee for its first reading in August 2011 and second reading in December of the same year.

It is seen as necessary to write “respecting and safeguarding human rights” into the Criminal Procedural Law, as Wang explained that even though the current procedure respects the principle of human rights, it will help to reflect the socialistic nature of the judicial system.

He observed that over the past 16 years new situations have emerged in the criminal world. 

“The development of democracy and the legal system in China, and people’s increased legal awareness have placed higher demands on safeguarding justice and protecting citizens’ rights,” he was quoted as saying.

Xinhua also quoted Wang Jiancheng, from the law school in Peking University, as saying, “We have seen a number of cases where defendants have been wronged because of confessions extorted under torture.”

He added that the ban on torture has not worked, because evidence obtained in this way has not been excluded from courtroom evidence.

The new amendment also calls for the Supreme People’s Court to review cases involving the death penalty. The amendment demands that the court must hear from the defendant at the review.

The word must was substituted for may after some discussion at the congress. The Supreme Court, has the power to revise the verdict or order a retrial.

A Beijing-based lawyer, Liu Hao, was quoted by Xinhua as saying the current system of review lacks transparency and hence needs to be updated.

Lawyers also hailed a new procedure which allows a suspect to have a lawyer present during initial interrogations, as currently lawyers are only allowed in after the defendant has been charged.

Lawyers are also to be given greater access to their clients and their meetings are not to be taped or videoed.

However, the loophole in this clause is once again that exceptions are made for the ill-defined crimes relating to national security, terrorism or major corruption.

It also limits house confinement to designated places, except when surveillance on the home of the suspect is deemed to unduly invade the privacy of others in the house, such as people suffering from some illness, or pregnant or breast-feeding women.

Permission is required from the next highest security level and the place of detention cannot be a designated place for handling criminal cases.

Currently the law provides for the family to be notified within 24 hours of any detention or arrest.

However, it also allows two exceptions, possible obstruction of investigation or where they cannot be reached.

However, once again the three bogey areas of corruption, national security and terrorism provide the police with leeway for unsupervised abuse.

The first exemption has been scotched, as it is noted that the phrase “obstruct investigation” is vague and ambiguous.

Observers say that the proof of the pudding will be in the eating, as the success of new amendments depends on implementation.

Agence France Presse quoted Nicholas Bequelin, from Human Rights Watch, as saying, “For years, Public Security has routinely ignored, with almost complete impunity, the procedural protections that were already in law.”

The exceptions incorporated in the amendment cast a grave shadow of doubt over the determination of the administration to enforce the new rules.

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