Comments on China’s New Criminal Procedure Law                Zhang Kai

        In March 2012, the National People’s Congress of China passed the revised Criminal Procedure Law. Shortly after the announcement of the draft amendments, the law had already aroused discontents among legal scholars, general public and even some Congress delegates.

        The controversy refers to two articles. First, the amended and approved version of Article 73: “Residential surveillance shall be carried out in the residence of the criminal suspect or defendant. When there is no fixed residence, it may be carried out in a designated abode. In cases involving crimes of endangering state security, terrorist activity, or especially serious bribery, if carrying out [residential surveillance] in the residence [of the criminal suspect or defendant] has the potential to interfere with the investigation, it may also be carried out in a designated abode following approval by the procuratorate or public security organ at a higher level”; and according to Article 77, “Residential surveillance should not be longer than six months.” The original version was: “the criminal suspect or defendant of the residential surveillance is not allowed to get out of the residence unless with the approval of the authorities” That meant residential surveillance was conducted in the fixed residence.

        Many people oppose it. Wang Mingwen, an NPC delegate and law professor of Xichang College, strongly requests to cancel that residential surveillance can be conducted other than the fixed residence because it will provide conditions for the use of torture and forced confessions (quoted from Apple Daily, 12 March 2012) Moreover, ‘crimes of endangering state security’ can be used as an excuse, the deputy editor of Finance magazine criticizes, the wording of “state security” is like a basket into which you can put anything.

        Another controversial amendment is Article 83: “Within 24 hours of detention, a relative of the detainee shall be notified, except when it is impossible to give notice or in cases involving crimes of endangering state security or terrorist activity, when notification has the potential to interfere with the investigation. When the circumstances of interference with the investigation no longer exist, a relative of the detainee shall be notified immediately”, and according to Article 89: “the period of detention can be 7 days”. This is commonly called “secret arrests”. Chen Youxi, director of Human Rights Committee of the National Lawyers Association, anticipates, “the legalization of secret arrests will lead to numerous cases of secret arrests. The consequence will be very serious.” (quoted from Apple Daily, 12 March 2012).

        Wang Youjin, former chair professor of the University of Political Sciences and Law, also points out that the police should notify any relative of a detainee, which is social consensus of democracy. If the law of secret arrest is passed, it will be a trap to mainland Chinese, Taiwanees and Hong Kong people. Furthermore, Allen Lee, a former Hong Kong District NPC delegate, criticizes that the law is a retrogression.

        The waves opposing Article 73 (as well as Article 83) continuously emerge in mainland society. An on-line research showed that 93% of population supported the suspension of the vote on Article 73, but the research outcome was soon deleted. Some mainland legal scholars also complain that Article 73 limits freedom of speech, that residential surveillance at an unknown place may refer to prison, and that an arrest without notifying a relative is same as a secret arrest. It violates the law of human rights.

        In spite of the widespread opposition, the amended CPL was passed. Of a total of 2,856 votes, 2,639 voted in favor, 160 voted against, and 57 abstained. This shows that the NPC delegates are simply rubber stamps. It is a page of retrogression in the history of human rights in China. Not long ago, Chen Guangcheng, a blind lawyer defending human rights, had restored his citizen status but still suffered from a long time of residential surveillance. Even though he fled to the USA, his family in Shangdong Province has suffered from torture and persecution. This new amended Criminal Procedure Law allows those ‘local lords’, in the name of enforcing the law or defending national security, to suppress people’s human rights, freedom and democracy. In other words, the one-party- bureaucracy is covered with a coat of legalization.                                              28 April 2012

 

Postscript: The sudden death of Li Wangyang, a committed activist of Democratic Movement of 1989, proves that the local bureaucracy ignores law and justice. The local authorities announced that Li hanged himself in the hospital. But there were many doubts. When he was found dead, his feet were on the ground. He had not committed suicide in jail even under sustained torture for more than 20 years. The local authorities forced his sister to agree to quick cremation. This obviously violated the new Criminal Procedure Law that forbids forced confession and evidence elimination. Li’s case shocked mainland China and overseas countries. In Hong Kong, the Chief Executive, high ranking officials and many NPC delegates, all urged the Central government to investigate into the case. As the corpse had already been cremated, how can the truth be found? But Hong Kong people have insisted on getting the truth out on this case.