As promised, here is a translation of a more dim view of criminal procedure reform in China.  As I mentioned before, it’s taken from a legal blog which reposted articles representing various views on the new law. The author, a “public opinion analyst” with the People’s Daily Online,  explains that the chief objections to the new law are the (1) the detention without notice provision I discussed in the previous post (2) the threat posed by authorized secret detention to the law’s anti-torture provisions; and (3) the law’s failure to address the use of criminal prosecution to deter defense attorneys from being effective.

In the opinion of some in legal circles, although the amendments represent real progress, some elements remain questionable.  Among these, Article 73 provokes the most heated reaction.  Primarily, this law permits the public security organs to place persons suspected of threatening state security, terrorism and participation in particularly large cases of bribery, under “residential surveillance” at a designated location.  When “notification may hinder the investigation” into those suspected of threatening state security and terrorism, the authorities are not required to inform the person’s family of his or her detention.  Numerous online essays have criticized this measure as expanding the powers of the public security bureau, enhancing their crime fighting capacity, but neglecting the civil rights of suspects.

In a press interview, Professor Chen Guangzhong of China University of Politics and Law explained that the amendments retreat from previous law in three areas in which a trend toward greater state power is clear: the review of interrogations in death penalty cases,  unlimited jurisdiction in cases of first impression and special circumstances, and the requirement that witnesses may only testify with court permission.  Further, the environment for legal professionals remains hostile, a problem primarily arising from the law criminalizing “lawyer perjury.”  The efforts of attorneys to investigate, gather evidence, and defend their clients are often perceived as “opposition” by the police and public security forces, which leads these offices to use Article 38 of the Criminal Procedure Law and 306 of the Criminal Law to take “professional revenge” against criminal defense attorneys.  In recent years, there have been numerous cases of attorneys charged with perjury and many attorneys and academics have called for reform of this provision.  Some National People’s Congress Standing Committee members, for example Professor Zhou Guangquan of Qinghua University, have indicated that the perjury law should be equally extended to all parties to litigation, including public security personnel.

To varying degrees, the cases brought over the past few years reflect the absence of additional restraints on public power.  This section of the draft amendment have caused online critics to worry that the phenomena of public authority squeezing out private rights has become almost like a natural occurrence.  A portion of online opinion holds that amendments to criminal procedure law should focus on protecting, rather than weakening citizen’s “Freedom from fear.”

Although the proposal submitted to the NPC contains more than 110 articles, due to a lack of relevant background knowledge, the ordinary netizen is only able to genuinely participate in discussion of a few subjects.  However, attorneys, a few active, internet “opinion leaders,” as well as business people and members of arts, have expressed grave concern with the draft amendments.

Some representatives to the NPC, such as Professor of Law, Wang Mingwen of Xichang University,  Chi Susheng, an attorney, and Ye Qing,  Deputy Secretary of the Hubei Province Bureau of Statistics, have also expressed concern on their personal microblogs.  On his microblog, Professor Wang Mingwen wrote that “I strongly recommended eliminating the language regarding “assigned residences” from the regulation addressing residential surveillance.  The reason is that the law does not contain standards similar to those that will govern detention center investigations, and may provide a place and conditions conducive to torture, and therefore is extremely dangerous.  It is very possible that it will frustrate all of our efforts to prohibit torture and exclude illegal evidence.”

An investigation of microblogs has revealed that 97.2% express concern regarding the draft amendments.  Of these, more than 65% reported that they had little to no understanding of criminal procedure,  while those with a greater degree of familiarity occupied about 20% of voters.  Only 9% stated that they “continually research criminal procedure” and that it is “their occupation.”  This demonstrates the influence that a small number of elite opinion leaders has over public opinion and the extent to which the opinions of a less-informed public naturally change under the influence of opinion-makers’ worries.  The relevant government department must increase its work interpreting and publicizing the new law.

 

 

 

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