By Jiamu Sun
On March 14, 2012, the fifth session of the National People’s Congress adopted the latest revision to China’s Criminal Procedure Law (“Revised Law”). The Revised Law is the second amendment to the Criminal Procedure Law following its enactment in 1979 and its first amendment in 1996. Altogether, one hundred and eleven revisions have been made, concerning topics including, among others, evidence, compulsory measures, defense, investigation, trial procedure, and execution. The Revised Law will come into force on January 1, 2013. The Supreme Procuratorate of the People’s Republic of China has embarked upon revising corresponding judicial interpretations, including the Criminal Procedure Rules of The People’s Procuratorate and the Basic Norms of Enforcement Work by The People’s Procuratorate.
As has been reported, major progress has been made with respect to the protection of the rights of criminal suspects and defendants. Notably, the phrase "respecting and protecting human rights" has been incorporated in the Revised Law’s first chapter with respect to its aim and basic principles. Some deem the update from the current law’s “convicting” to the Revised Law’s “convicting and respecting and protecting human rights” to represent a shift in values.
The Revised Law provides for the greater protection of suspects in several aspects. First, the Revised Law allows defense lawyers to represent a suspect from the time of a suspect’s first interrogation or under compulsory measures. Lawyers can meet with suspects without the permission of detention center authorities as long as the accused’s crime does not threaten national security, and was not a crime of terrorism or serious corruption. Second, the Revised Law explicitly provides that no person can be forced to testify against him/herself. Third, the Revised Law makes it clear that confessions, witness testimonies and depositions that are obtained illegally, for example through forced confessions, should be excluded during trial. Fourth, in order to encourage witnesses to testify in court, the Revised Law provides financial support and even security protection in circumstances where crimes involve threats to national security or terrorism, or crimes involving mafia organizations or drugs, among others. Fifth, as compared to the current law, the summary procedures provided in the Revised Law are subject to more restricted use. Finally, the Revised Law requires the Supreme People’s Court to interrogate defendants when reviewing death sentences, indicating what appears to be a desire that the death penalty be applied more cautiously.
Deserving special attention is the fact that the Revised Law adds four new separate proceedings to the current law; namely, proceedings for (i) juvenile criminal cases, (ii) cases involving parities’ reconciliation, (iii) cases involving the confiscation of illegally obtained incomes by suspects and defendants who have fled or died, and (iv) cases involving the forced medical treatment of mental patients who are not criminally liable. Three of the aforementioned proceedings are intended to benefit suspects and defendants in special circumstances, whereas the confiscation proceedings aim to increase the punishment for corrupt officers having fled abroad.
The Revised Law has aroused a great deal of discussion and debate. Among others is the Revised Law’s Article 73 and Article 83, which stipulate that for suspects suspected of threatening national security, or committing terrorism or serious corruption, the public security organ may appoint a monitoring dwelling place and may elect not to inform such suspects’ relatives under circumstances where such notification may hinder an investigation. Some have expressed concern over Article 73 and Article 83, contending that such articles unduly enlarge the investigative power of the public security organ and suspects could be more easily abused and tortured. Some have even contended that the articles suggests that so-called “secret arrests” exist under the Revised Law; a claim that has been denied by officials from the Legislative Affairs Commission of National People’s Congress.
Concern has also been expressed about the implementation of the Revised Law itself. In a recently published book on Chinese criminal procedure, one legal scholar concludes that there is an intense system-wide focus on obtaining convictions of criminal defendants. For example, the book reports that prosecutors suffer a decline in their performance ratings where the cases that they have handled do not conclude with a guilty verdict. One of China’s leading law reformers said in a recent interview that “if the men who wield state power believe that it is their role to protect private rights and that protecting private rights is the ultimate purpose of state power, then the concept of law is changed. But, unfortunately, this is an obstacle that we have yet to overcome.”
To be viewed from a deeper perspective, it will take more than revising laws on paper to advance China’s system of criminal justice. Among other things, there is also an urgent need to reform the system that governs how legal rules are implemented.