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    Greater China
     Sep 7, 2011

A criminal missed opportunity in China
By Kent Ewing

HONG KONG - When the news broke that the National People's Congress (NPC), the Chinese parliament, planned to make extensive changes to the wholly inadequate Criminal Procedure Law, human-rights activists expressed hope that the revisions would bring China in line with international practice.

That was eight years ago. Now that 99 draft amendments to the law have finally been published on the NPC website, those hopes have been all but dashed. Under the guise of protecting the nation against terrorism and other national security threats, the proposed amendments, most of which are likely to be accepted, would actually enshrine into law human-rights violations that have long been the abhorrent norm among Chinese police and security forces.

The painfully drawn-out exercise - once so full of promise for those

who one day hope to see the rule of law prevail in Chinese society - is another reminder that, in the final analysis, the Chinese Communist Party, not the courts, remains China's ultimate arbiter in legal affairs. The constitution may have been amended in 2004 to state that "the country respects and protects human rights", but the party, through the legal system it dominates, adopts a decidedly selective approach to that pledge.

For ordinary, law-abiding citizens who dutifully go about their business and never publicly utter a challenging word, the amendments offer new protections against illegal detention, torture and self-incrimination - all very much in accord with international practice. But these loyal, do-what-you're-told patriots are not the ones in need of such legal safeguards.

It's those who don't keep their heads and their thoughts down who have to worry; in its draft form, the law, first enacted in 1979 and revised in 1996, excludes these free-thinking troublemakers from standard protections that apply to everyone else.

One amendment would allow secret detentions of anyone suspected of terrorism or endangering state security - or if somehow disclosing a suspect's lockup would in the judgment of authorities "interfere with investigations". While Beijing does have legitimate concerns about terrorism in the northwestern Xinjiang region and also worries about separatists in Buddhist Tibet, anyone who can read between the legal lines in China knows that the better part of this amendment is aimed at dissidents who speak out against the party's determination to keep its iron grip on power at all costs.

Those who dare to question single-party rule may be seized by police and locked away in an unknown location for up to six months without any notice being given to family, friends or colleagues. They simply "disappear". And, once that happens, who is to stop them from being tortured into a false confession?

Such disappearing acts happen all the time. Chinese leaders launched an especially harsh crackdown on dissidents in response to the so-called Arab Spring that, since January, has been toppling totalitarian regimes across north Africa and the Middle East.

The most famous victim of the recent crackdown - internationally acclaimed artist Ai Weiwei - was seized last April at Beijing Capital International Airport while waiting to board a plane to Hong Kong.

The burly and brash Ai, known for speaking out over his country's deplorable human rights record, was once thought to be immune from political persecution because of his world renown. But Beijing's worries about the chaos in the Arab world spilling over into China canceled Ai's special status and, remarkably, turned the nation's best-known artist into just another disappeared person.

Finally, nearly three months after he was detained, Ai was released on bail. The official charge against him is tax evasion, but it's hard to believe there is no political motive, despite adamant denials by authorities.

While Ai's detention - like that of last year's recipient of the Noble Peace Prize, Liu Xiaobo, who is currently serving 11 years in prison for "inciting subversion" - was carried out under an international media spotlight, hundreds of other human-rights lawyers and activists have quietly slipped into oblivion with little to no media attention given to their cases.

Prior to Ai's detention, scores of lesser-known dissidents such as Run Yunfei, Ding Mao and Chen Mei were rounded up by security forces. Lawyer Gao Zhisheng has been missing for more than a year now. The Foreign Ministry announced that the charge against him was ''subverting state power'', but no one has heard from him or knows his whereabouts.

Even under the revised law, which allows for a maximum of six months of undisclosed "residential surveillance", Gao's detention would be illegal. Yet, laughably, Xinhua, China's official news agency, carries on with the pretense that China is a nation ruled by laws rather than powerful party officials protecting that power.

A recent Xinhua article defended the amendment allowing secret detentions with this Orwellian lead: "China's draft amendment to the Criminal Procedure Law will further help protect human rights and conforms [with] rather than contradicts international conventions, legal experts in Beijing have said."

Never mind that those "experts" are little more than party mouthpieces, like Xinhua itself, and that no legal voice outside China has endorsed this retrograde amendment; indeed, both Western and Chinese legal scholars have expressed reservations about it and other proposed revisions to the law.

As eminent China scholar Jerome Cohen of New York University observed of the revision process: "This is a perfect illustration of the dangers of revising the law in repressive times. The problem is that the police use each law revision round to legitimize their convenient practices, and they ignore in practice the legislative and administrative reforms designed to bind them."

Beyond secret detentions, as Chen Weidong of Renmin University in Beijing has pointed out, the revised law would do nothing to bar illegally obtained evidence from being used in court.

Moreover, none of the 99 amendments addresses the collusion that is standard operating procedure between the Chinese security apparatus and the court system; in fact, the two are presently seen as prosecutorial partners in the same administrative arm of government rather than independent entities with different aims and objectives.

The police should enforce the law; the courts should decide whether both the law and its enforcers are fair and just. And final legal authority must reside in the country's constitution, not with corrupt party officials who ignore that constitution's admirable values and edicts at their own convenience.

Yes, there are rabid, dangerous terrorists out there, and they need to be hunted down and stopped in their tracks. And, yes, Tibet is part of China, and separatism there cannot be tolerated. But free speech and human rights are enshrined in the constitution and should be protected by the nation's laws and by the courts that rule on those laws.

Until that happens, the China model falls short on the world stage.

Kent Ewing is a Hong Kong-based teacher and writer. He can be reached at kewing56@gmail.com Follow him on Twitter: @KentEwing1

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