China: Secret Arrest to be Justified by Law Amendment

Written by Oiwan Lam

The Chinese government is in the process of completing an amendment to its Criminal Procedure Law (CPL). The draft, released for public consultation on 30 August, 2011, has sparked an intense debate among law professors and lawyers, as it has granted police legal justification for secret arrest and investigation.

Controversial amendment

The following anonymous commentary [zh] analyzing the CPL in details has been widely circulated in the past two weeks:

Police in Beijing, China. Image by Flickr user faungg (CC BY-ND 2.0).

Despite the negotiation among the public security, procuratorial and peoples’ courts organs, the lawyers and the scholars, there are still some hidden problems in some of the clauses. For example, clause 84 has become the focus of public attention: “Upon arrest, the suspect should be sent to a detention center within 24 hours. With the exception that the police are unable to contact the suspect’s family, or if the case involves national security, terrorist activities or serious criminal activities, and if the process would obstruct the investigation, the police should notify the family members within 24 hours regarding the reason and the location of the detention.” Such exceptions also appear in “house arrest”, “arrest” and other coercion measures.

… It implies that under the above mentioned circumstances, the suspects could “be detained according to the law” and their family members would not recieve any notification. This is the clause that violates fundamental human rights and that the public finds most scornful.”

In addition, the article also highlighted various other problems such as lack of protection of the “right to silence” and the introduction of “secret investigations”. The writer also pointed out that in recent years, the exceptional circumstances listed in the CPL – “unable to contact”, “obstruct investigation” and “in suspect of undermining national security” – have been used to justify the repression of dissidents, rights defenders and religious leaders.

Indeed, many political dissidents, human rights lawyers and netizens had been abducted by police in secret under the excuses of the “Jasmine Crackdown” since February this year.

Law professor and lawyer, Chen Yousi looks into [zh] the social and political implications of the CPL regarding “secret arrest” in Tianya:

… In particular the exception of “unable to contact” [the suspect’s family members] would affect all the criminal cases that take place away from a suspect’s household registration location. In province like Zhejiang, 60% of the crimes have involved the floating population. With the three exceptions granted in the CPL, there will be a large number of secret arrests, detentions and abductions; the consequence will be very serious and harmful.
Secondly, to notify the suspect’s family members is the fundamental protection of human rights as it allows lawyers to step in. Once secret arrest is justified, the suspects and their family members could not assign lawyers to defend them. It is against the “Lawyer’s Law” and definitely a regression.

Email and phone surveillance

Apart from secret arrest, the amendment has also justified secret investigation, which involves email and phone surveillance:

Secret investigation would seriously violate citizens’ human rights and privacy… Once the evidence collected through secret investigations can be used in court, the investigative forces will adopt these tactics in most of their cases. Once the provincial public security bureau is granted the power to approve secret investigation, the head of the investigation team will be able to exercise such authority, and it is likely that some frontline investigators will start their secret investigation before they get approval.

According to the amendment, secret investigation can be applied to almost all criminal cases. For the public security department, they could approve cases that involve “national security, terrorist activities, organized crime, narcotic crime, and other serious cases that affect social security.” … “other serious cases that affect social security” can be extended to almost all cases. “A strict approval procedure” is just empty words as there is no way to monitor the process. As for the Procuratorate, secret investigation can be applied to all cases: “big corruption and abuse of public authorities that have violated citizens’ rights”. …

Earlier this month Hong Kong based newspaper, the South China Morning Post, reported that a high ranking official in the Chinese military did not support the amendment. Law professor He Weifang’s quoted the news [zh] in his Weibo, attracted more than 1,700 comments. Below is a selected translation of the discussion:

The secret arrest ordinance today targets ordinary people. But tomorrow, your political enemy will use it to attack you. It is a trap.

What the use for us to express our opinion, the people’s congress will pass it anyway.

I believe that the military should not be involved in politics, but their opinions will have some effects in this political system. I feel so conflicted.. but in the long run, they should not be involved in politics.

Whoever put forward such suggestions should be detained for a couple of days and see how he reacts.

Instead of entering the debate, lawyer Yuan Yuelai expresses his ultimate frustration [zh] about the legal system:

Who still has fantasies about the amendment of the Criminal Procedure Law?] This country can no longer protect its citizens’ human rights. The government treads upon people’s rights in land acquisition, forced demolition and visit petitions. It disregard activities that endanger ordinary people’s lives, so how can it protect the rights of the suspects? The objective of the CPL is to crack down on crime, protect people and protect the dictatorship of people, not human rights, isn’t that clear enough?

Re-published from GlobalVoices under the Creative Commons license.
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