Chinese law reform may be a double-edged sword

by Frank Ching

Reform of the Chinese legal system is desperately needed but the draft of large-scale amendments to the Criminal Procedure Law shows that the current exercise in law reform is potentially a double-edged sword.

Commendably, the draft law moves much closer toward the accused having a right to silence by recognizing the right against self-incrimination, saying “no person may be forced to prove his or her own guilt.”

Traditionally, China has emphasized confessions and torture is still commonplace. In fact, there have been highly publicized cases where men serving prison terms for murder after confessing under torture were released when the “victims” turned up alive.

As a result, the current draft states: “The use of torture or extortion to obtain a confession and the use of other illegal means to collect evidence shall be strictly prohibited.”

Instead, it declares, “The onus of proof that a defendant is guilty shall be on the public prosecutor.”

A new article has also been introduced that recognizes the right of spouses not to testify against each other. This right is extended also to the parents or children of the defendant. Other witnesses, however, may be compelled to appear.

The new emphasis on the prosecution to build a case by gathering evidence and calling witnesses suggests that Chinese courtrooms are going to become livelier places. Currently, it is rare for witnesses to be called to testify and then be subjected to cross-examination by lawyers for the opposing side.

As a result, trials tend to be brief affairs, often decided in a few hours. If the draft law is passed, we are likely to see longer trials and more fireworks in the courtroom.

The draft refers to “open trial cases” but does not define them. At present, many trials are theoretically “open” but closed in reality. And if trials are not open to the public and the media, there is no way of monitoring the extent to which the criminal procedure law is being observed.

Moreover, the new law says nothing about immunity for legal practitioners. Currently, lawyers are subject to arrest on charges of coaching their clients to lie in court, or fabricating evidence.

Unless lawyers are protected, it matters little that they are allowed to meet with their clients in the investigation stage rather than immediately before a trial.

Even so, the draft law provides as exception to the right of lawyers to meet with clients who are under detention. It says that in some circumstances, meetings between a lawyer and a detained suspect cannot be held without approval. The exceptions are when the suspected offence “involves a crime endangering state security, a crime of conducting terrorist activities or a major crime of bribery.”

In fact, the draft law is replete with exceptions for cases of “endangering state security.” And, of course, many human rights lawyers have been accused of doing exactly that.

Much has already been written on the possibility that the new version of the law, originally passed in 1979 and last revised in 1996, would legalize the practice of “disappearing” suspects accused of endangering state security for up to six months, without informing their families.

As the U.S.-based Dui Hua Foundation, which is dedicated to the protection of human rights, has said, “Chinese authorities use ESS crimes in their effort to suppress political dissent in the name of protecting national security.”

And the number of such cases has increased dramatically, rising from an average of 289 a year in the 1998-2007 period to 698 cases in 2009 and 670 in 2010.

The ESS exceptions in the draft law reflects its importance as a tool for the Chinese government as it continues its crackdown, including on lawyers who accept human rights cases.

On the positive side, Dui Hua hailed the new law’s section on juvenile cases and the establishment of a mechanism to exempt certain juvenile criminal suspects from prosecution and incarceration as well as a policy to seal the detention, arrest and incarceration records of most juvenile offenders.

The draft law was posted on the National People’s Congress website for public comment for a month on August 30.

It isn’t clear to what extent public views will be taken into consideration before the final draft appears, probably next spring. The current draft is the result of many years of debate among various groups within the Chinese leadership, with the security authorities playing a major role.

Hopefully, the objectionable provisions will be dropped, or at least modified. But this is probably unlikely.

Frank Ching is a journalist and commentator based in Hong Kong.