Debate: Criminal Procedure Law

Is the amendment to the Criminal Procedure Law a step forward in transparency? Three experts enlighten us with their views.

Wu Danhong

A welcome move in the right direction

The draft of the amendment to the Criminal Procedure Law, released on Aug 30 to seek public opinions, has sparked an intense debate among netizens and some media outlets. Many people have said that some clauses in the draft amendment could lead to "secret arrests".

As a scholar studying Criminal Procedure Law for more than 10 years, I think such statements misinterpret the content of the draft and the intention of the legislation - which in turn could lead to absurd conclusions.

Perhaps the clause that has drawn the most attention is "the public security organ shall take a detained person into custody (and) within 24 hours notify his family or the unit to which he belongs of the reasons for the detention and the place of custody, unless it is impossible to notify or (his/her crime is related to) endangering State security or terrorism (for) such notification would hinder investigation". Some people have interpreted this to mean that the authorities "may not notify relatives of people arrested or detained in time or at all".

If we analyze the draft as it appears in the Chinese language, such interpretations are wrong. Take for example, the word "or". There are only two exceptions in the draft: one is "it is impossible to notify", the other is the "crime of endangering State security, or crime of terrorism" that may hinder an investigation.

From the perspective of the Criminal Procedure Law, the former means that one cannot be notified "objectively", and the latter means an exception in special cases. The "crime of endangering State security, or crime of terrorism", which are serious crimes related to national and public security and usually involve conspirators and accomplices that have the potential to impede an investigation if made public before certain factors are determined.

The clause, "within 24 hours after a person has been detained, his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them", is part of the original text of Article 43 in the 1979 version of the Criminal Procedure Law, as well as Article 64 of the 1996 version, which has existed for 32 years. It can be regarded as a broad formulation in theory on making any information public about an arrested or detained person which could impede an investigation.

The new draft amendment specifies the exceptions in two specific conditions, and thereby narrows the boundaries of investigation. Irrespective of being big or small, this should be seen as a progress rather than a step backward in the transparency of laws and regulations.

The Criminal Procedure Law has existed for 32 years, and now it is on the verge of being changed in "appearance". The authorities have been working on the amendment for 15 years. We should have a pragmatic attitude toward the amendment and be mindful of the difficulties that the authorities face in their endeavor to amend the law. Misinterpretations of the clauses are not the best way to analyze an amendment.

Since the National People's Congress Standing Committee has solicited public opinions by publishing the full text of the amendment to the Criminal Procedure Law, the public and the media should subject it to more serious analysis, instead of using just one point, and a wrong one at that, to misinterpret the amendment.

The author is an associate professor of law at China University of Political Science and Law. The article first appeared in People's Daily.

Zhang Benqiang

Public must be protected from ill effects

The full text of the proposed amendment to the Criminal Procedure Law, published on the website of the National People's Congress on Aug 30 to solicit public opinions, has sparked a heated public debate. The disputes, however, are focused on a few clauses such as the "crime of endangering State security, or crime of terrorism", "notifying relatives may possibly impede investigation" and "it is impossible to notify", because they can be cited as excuses not to notify relatives within 24 hours of a suspect's arrest, detention or being put under surveillance by police.

The starting point and end result of any amendment to a law should be to make it more open, fair and transparent. Besides, it should be devoted to constructing justice and safeguarding public interests. The proposed amendment fulfills these basic rules.

The draft amendment pays more attention to convenience than public opinion if we consider the clauses such as the "crime of endangering State security, or crime of terrorism", "notifying relatives may possibly impede investigation".

There is no doubt that every citizen should abide by law and has to appreciate the amendment because its aim is to ultimately benefit the public. But it's true, too, that every citizen has to be protected by law.

More importantly, it is difficult to define severe crimes such as "endangering State security", and if the authorities cannot notify the relatives of a suspect within 24 hours of his/her arrest or detention, they may not be able to convince the public of the fairness of law enforcement and conviction, especially because such cases are already common occurrences.

For example, in mid-August, a reporter of Anhui Legal Daily was detained while trying to gather information on a forced relocation operation. The "crime" he was accused of was harming social security. Besides, some weird cases of suspects going missing have been reported from some areas.

The amendment to the Criminal Procedure Law cannot cite excuses to justify "secret arrests", and that's why the public wants to know the "real reason" behind the controversial clauses. Given the current supervisory role of society, the public's rights can be undermined if the amendment is approved because it ignores citizens' right to get timely information.

The clause that says "it is impossible to notify" sounds like the authorities "do not want to notify", which can lead to a farce that the "right to interpret" is the realm of only the "law-enforcing agencies".

Police can cite the clause of "it is impossible to notify" to mislead the relatives of an arrested or detained person, and investigation departments can use it to not inform a suspect's relatives of his/her whereabouts. This will deny many a person the right to information. Moreover, law enforcement agencies can use the clause to carry out "secret arrests".

The Criminal Procedure Law, to some extent, widens the enforcement limits of the judiciary. The widening of powers and supervision are two sides of the same coin. Therefore, prevention of the abuse of rights should go hand in hand with expansion of law enforcement agencies' powers.

But the expansion of law enforcement agencies' powers can shrink public rights and, hence, the national law regime should be designed to ensure proper enforcement. But it should also be designed to protect public rights.

The public in general lacks proper legal knowledge, which means many people cannot use the law for self-protection. That's why it is important for the authorities to take special measures to protect the public from the negative effects of the law.

The article first appeared on voc.com.cn.

Zhang Yuzhe

Vague clauses have to be clarified in detail

On Aug 30, the National People's Congress released the proposed amendment to the Criminal Procedure Law to solicit public opinions.

There are three controversial clauses in the amendment which exempt police from notifying the relatives of an arrested or detained person, or after a person is put under surveillance within 24 hours: "it is impossible to notify", "crime of endangering State security, or crime of terrorism," and "notifying relatives may possibly impede investigation".

This is the biggest amendment to the Criminal Procedure Law in 15 years, and is expected to make progress on stipulations against self-incrimination to guarantee a suspect's rights. The amendment relating to power redistribution among public security organs, however, raised disputes resulting in the publication of the full text of amendment, which subsequently brought to light the controversial clauses mentioned above.

Actually, even the existing law allows police not to notify relatives of an arrested or detained suspect within 24 hours if they think doing so could impede an investigation or it is impossible to do so. Based on the original regulations, the new draft expands the scope of application to people put under surveillance and adds "the crime of endangering State security, or crime of terrorism" to other crimes.

From the perspective of legal rights, police may have reason to "not notify the relatives" of an arrested or detained suspect, but the sanctity of law demands that they be notified in time for justice to prevail. The clause, "impossible to notify", is too vague, provides too large a space for police discretion and, hence, could lead to "secret arrests", which would not only intrude on a suspect's legitimate rights and interests, but also have a serious impact on the credibility of the judiciary and the legal system.

The most famous example of such a case is the arrest of a reporter in Zhangjiakou in December 2008. Even after five days of his arrest, when the media published the case, his relatives had just got a telephone call from police to notify them that he had been arrested for taking bribe. Police didn't notify the reporter's relatives because they thought that doing so would impede the investigation. The case has since been cited as an example of "secret arrest".

The objective of the amendment to the Criminal Procedure Law is not only to include the functional authority in the criminal procedure of public security organs, but also to contain the rights and obligations of people attending court hearings.

The existing Criminal Procedure Law already has loopholes like over-emphasizing entities and granting inappropriately strong powers to investigation departments, which could lead to harm the process of justice. But the new draft with vague regulations may create bigger loopholes that could further undermine human rights.

Scholar Wu Si has proposed a concept of "legal injury power" in his book, Hidden Rules. He said that once the authorities resort to legal measures by using their power which could hurt others, they might as well use it to their advantage without regard for justice. There is no justice without procedures, and once law enforcement agencies resort to "secret arrests", they would derail the process of justice.

A mature law should eliminate the vague spaces to ensure that all powers are used according to law. Thus, the new amendment should be aimed at correcting the existing errors. The exception of "not notifying relatives" should be explained in greater details and rules should be set to report to higher investigation departments for examining and approving such a move.

Once a suspect's relatives question his/her arrest, detention or surveillance, investigation departments should be obliged to "furnish proof" that their actions are justified. Only if a suspect is protected by law and placed under public supervision can society get justice.

The article first appeared on people.com.cn.

(China Daily 09/13/2011 page9)