Criminal Procedure Law: What are they amending?

By Yaxue Cao

The Chinese microblogs are in an uproar about amendments to the country’s Criminal Procedure Law, already passed Sunday afternoon by the 170-member presidium of the National People’s Congress with only one objection and one abstention. It will be voted on by the 3,000 NPC representatives on Wednesday, March 14, 2012.

The wide contention focuses on two proposed revisions which allow secret detention and disappearance. They are article 73 and 83. Article 83 provides, in part, that “Upon detaining a suspect, relatives of the detainee shall be notified within 24 hours unless the suspect is allegedly involved in crimes of harming state security, crimes of terrorism, and notifying family may impede investigation. Or when there is no means to notify relatives.”

Article 73 allows that, “for [suspect] allegedly involved in crimes of harming state security, crimes of terrorism, or major allegations of bribery, when monitored residency in own home may impede investigation, with the authorization of the People’s Procuratorate or public security organ on higher level, the suspect can be placed under monitored residency in a designated location, but not in detention centers or places where the case is being handled.” (Yaxue’s note: Translation my own, may not match the official translation in wording, should there be one.)

Article 83 and article 73 are referred to, by Chinese legal professionals and netizens alike, as the “secret arrest clause” and the “extralegal detention clause” respectively. The “extralegal detention clause” is also alternately referred to as the “disappearance clause”, “the Ai Weiwei clause” (referring to his secret detention in an undisclosed location last year), or “the Jasmine clause” (referring to the widespread detention of people whom the authorities suspected of organizing, instigating or attending public gatherings to call for democracy last spring).

Also opposed are articles that expand authorizations on communication surveillance and require suspects to “confess wrongdoings” in exchange for leniency (as opposed to the right to remain silent).

Smaller details that have escaped closer scrutiny online are noted by Xiao Han (萧瀚), associated professor at China University of Political Science and Law and an outspoken intellectual whose blogs and Weibo accounts are frequently shut down.

In his latest blog post (link), he points out that article 62, 72, 73, 77, 83, and 148-152 are ten articles designed to legalize human rights abuses, and they are “a complete set of boxing moves…encompassing secret evidence collection, secret arrest, illegal long-term imprisonment, and technical aspects of investigation, sufficient to go and get anyone.”

To be sure, all of the above have been commonly practiced by authorities in China, and making them legal is to add wings to tigers and remove whatever scruples they may still have about cracking down on political dissidents and so-called “terrorists.” Chinese netizens and legal professionals fear that human rights abuses, as bad as they have already been, will escalate and spiral out of control.

Ironically, the words “respect and safeguard human rights” are proposed for the first time in the revisions. And there are a few procedural improvements to go with them (whether they will be enforced is entirely another matter).

But in a blog post (link) to call off the vote on the amendments, Tong Zhiwei (童之伟), a professor of Chinese Constitution with East China University of Political Science and Law, warned that, “If these few words are written into the law but the ensuing articles are not amended accordingly, then it is a false gesture to merely mollify the public.”

He went on to say that “too many problems have been exposed over the last 16 years when the current Criminal Procedure Law has been enacted, and the best proof is that, over the last a few years, the criminal justice has been in a shambles. But the relevant organs refuse to face these basic facts, and they seem to have no intent to amend the Criminal Procedure Law in favor of human rights protection.”

Professor Tong is wary that, once passed, the amended law which is not in any substantial way better than the original, will be maintained for a long time to come. “Frankly speaking,” he wrote, “it is my opinion that China’s current Criminal Procedure Law is among the criminal procedure laws in the world that strays farthest from the country’s Constitution, has the fewest measures to safeguard basic human rights, and is the weakest on curbing the state power.”

On the Chinese microblogs, netizens, legal professionals and intellectuals have been shouting as loudly as they can over the last few days, to try to avert the passing of the law. Some appeal to the representatives, reminding them of Liu Xiaoqi (刘少奇, former president of China, tortured to death during the Cultural Revolution) and Wang Lijun (王立军, the head of public security in Chongqing until recently); others appeal to the public to sign online petitions or voice their objection through online votes. In an online vote initiated by the financier Xue Manzi (薛蛮子), over ten thousand people voted within hours and 93% voted against the amendments, until it was blocked a few hours later.

Posts calling for postponing the vote on the amendments easily got reposted over ten thousand times in a matter of a day or two.

On top of the overwhelming nay-saying, journalists and lawyers pointed out that the scheduled vote on Wednesday in fact violates China’s own Legislation Law. According to which, the last draft of the law must be presented to the representatives one month before the vote, but it was not given to them until they had arrived in Beijing just days ago.

Will the clatter in microblogs have any bearing on the outcome Wednesday?

Few believe it would, knowing what the Party is like. “Secret detention and monitored residency in a designated location, these two articles are tailored for people like us,” the dissident intellectual Mu Zhixu (莫之许, @mozhixu) tweeted the other day.

In another tweet, he went on to say, “To state it simply, the work-unit system and the commune system have disintegrated, pro-government organizations are yet to develop, the result is that the majority of the societal members exist outside the direct control of the system, and stability maintenance has to rely on wide use of fear tactics on the one hand and, on the other, removing locally leader-like figures who have some power to mobilize people. This is the logic behind the amendments. Therefore, expect no dramatic turn of events.”

7 responses to “Criminal Procedure Law: What are they amending?”

  1. Lao Why? says:

    Thanks Yaxue for the post.

  2. Lorin Yochim says:

    Great post, Yaxue. I wonder if you can clear something up for me. In Tom’s recent post about “Are the two meetings pointless?”, the collective opinion (which including a contribution from you) seemed to be “yes, they are.” In this post, you seem to be saying something else. I take the point above about he distance between the constitution and provisions like these, but I’m not totally convinced that these provisions are there to mollify the public, although that is no doubt part of the picture. Shouldn’t we see moves like this in much the same light as legal opinions justifying illegal detention, torture, and the like in the U.S.? I don’t mean to compare the power of the U.S. constitution and the Chinese, but it’s hard to read the amendments above without thinking about the uses and abuses of “law” elsewhere. I’d welcome insight from anyone on this matter.

    • Tom says:

      Yes, there are similarities between the two, and both are disturbing trends. My point in the other post was that, while the meetings might seem pointless, they do serve some other goals (which is similar to what Yaxue is saying here). The worrying difference between this law and the ones expanding detentions in the U.S., is that the Chinese one is being paraded as progress on human rights.

      • Lorin Yochim says:

        True enough, but (hopefully) not very successfully if Yaxue’s reading of weibo is an indication. Her reading, I think, alerts us to the unintended consequences of what seems to be a pretty cynical ex post facto law making. If the intent was to justify these practices, the result has been to make it clear to all what goes on. The result may be a strengthening of court claims against the government agents.

      • Yaxue C. says:

        Lorin, let me move away from the specifics here and dwell on a larger question: the party does many things in bad faith, because to defend what’s indefensible, they have to create twisted narratives, logic and “reasons”. You’re right to mention cynicism. It’s inevitably so. In the past, it was easy to whitewash; but in the age of Weibo, Twitter, cell phone, QQ groups, it’s getting harder and harder.

        Illegial detention and torture are bad wherever they are. In America, it’s disturbing because the system is supposedly safeguarding against that. But if some corner of our system is failing, we still have media uncovering them, a public discussing them, votes to cast to demand our leaders to take a stand. In China, the people and the society don’t have any of these tools, and that’s why the emergence of Weibo–even though it is seriously flawed by censorship–is so vital to promoting change.

        There is no question that the party wants to have more tools, and the legitimacy to use them, to intimidate. But bad laws can have unintended consequences, I suppose.

      • Lorin Yochim says:

        No disagreements here, Yaxue, except that I may be more optimistic about the unintended consequences. I would also provide a minor modification of what you say about the U.S. (we could point to similar uses of law in other places). What I find disturbing is not only the flouting of the law, but also the deployment of law (of course, cynically) to justify such nefarious practices. I suppose I’m less optimistic about the possibility of rule of law.

  3. […] locating a copy of the amendment in Chinese, but here is an unofficial translation from a blog, Seeing Red in China, that roughly matches the descriptions I’ve read.  Article 73 provides that “for [suspect] […]

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.