Stanley Lubman in the WSJ, on the subject of the Criminal Law Update:
Police would need permission from a prosecutor or public security agency to detain people in a “specified location” in cases when they believe holding them at home could “obstruct the investigation,” the report said. However, there is no provision requiring police to contact family members of suspects involved in these types of cases if it could hinder their inquiries. Joshua Rozenzweig, a civil rights activist with the Dui Hua Foundation, has said that the proposal “would essentially legitimize the enforced disappearances that we have been seeing more and more of over the past year or so.”
The Chinese leadership has been determined to stifle dissent, as shown by the recent “disappearances” of Ai and numerous other high-profile critics of the regime. Since the outbreak of the “Jasmine Revolution” in the Middle East, the number of dissidents, rights activists and lawyers who have been held in secret locations has increased.
China’s Criminal Procedure Law has not been amended since it came into effect in 1997. Even while considering the “legalization” of secret detentions, the drafters of the proposed revisions of the code seem to be moving in another direction at the same time. Other proposals, if adopted, would at least formally bring aspects of China’s criminal procedure more into line with protections for persons accused of crime that are common in the West. For example, according to Xinhua, the Code would be amended to outlaw the use of forced confessions as evidence and would also enlarge the rights of suspects to meet with their defense attorneys. Other proposed revisions have been reported to include “no longer compelling defendants’ family members to testify against them, and granting mental health patients who are forcibly detained the right to judicial review.”
The coexistence of moves toward increased procedural legality with formalization of authoritarian police measures to quell dissent vividly illustrates some of the contradictions in society and governance that trouble China today. Dissent is viewed as a threat to “social stability,” but other currents in Chinese society are strengthening a pluralism of values. Those include not only dedication to economic development and nationalism, which support the co-opting of the population, but also free expression and legality.
With a little less than a month left for the public to comment on the draft revisions to the Criminal Procedure Law, it remains to be seen how China ’s legal community will react to the proposed changes.