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[email protected]Follow him on Twitter: @KentEwing1
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