Close

Support Global Voices

To stay independent, free, and sustainable, our community needs the help of friends and readers like you.

Donate now »

See all those languages up there? We translate Global Voices stories to make the world's citizen media available to everyone.

Learn more about Lingua Translation  »

China: Secret Arrest to be Justified by Law Amendment

The Chinese government is in the process of completing an amendment to its Criminal Procedure Law (CPL). The draft, released for public consultation on 30 August, 2011, has sparked an intense debate among law professors and lawyers, as it has granted police legal justification for secret arrest and investigation.

Controversial amendment

The following anonymous commentary [zh] analyzing the CPL in details has been widely circulated in the past two weeks:

Police in Beijing, China. Image by Flickr user faungg (CC BY-ND 2.0).

Police in Beijing, China. Image by Flickr user faungg (CC BY-ND 2.0).

但公检法及律师界、学界各方博弈至今,部分条款出现了许多设计上的隐患。例如,万众聚焦的修正案草案第84条:“拘留后,应立即将被拘留人送看守所羁押,至迟不得超过24小时。除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪等严重犯罪,通知可能有碍侦查的情形以外,应当把拘留的原因和羁押的处所,在拘留后24小时以内,通知被拘留人的家属。”此项免除“通知”义务规定,也适用于监视居住、逮捕等强制措施。

…几种情形,都可以成为对当事人“依法失踪”,并不通知家属的理由。这是本次修法遭到民众谴责最激烈的“侵犯基本人权”条款。

Despite the negotiation among the public security, procuratorial and peoples’ courts organs, the lawyers and the scholars, there are still some hidden problems in some of the clauses. For example, clause 84 has become the focus of public attention: “Upon arrest, the suspect should be sent to a detention center within 24 hours. With the exception that the police are unable to contact the suspect's family, or if the case involves national security, terrorist activities or serious criminal activities, and if the process would obstruct the investigation, the police should notify the family members within 24 hours regarding the reason and the location of the detention.” Such exceptions also appear in “house arrest”, “arrest” and other coercion measures.

… It implies that under the above mentioned circumstances, the suspects could “be detained according to the law” and their family members would not recieve any notification. This is the clause that violates fundamental human rights and that the public finds most scornful.”

In addition, the article also highlighted various other problems such as lack of protection of the “right to silence” and the introduction of “secret investigations”. The writer also pointed out that in recent years, the exceptional circumstances listed in the CPL – “unable to contact”, “obstruct investigation” and “in suspect of undermining national security” – have been used to justify the repression of dissidents, rights defenders and religious leaders.

Indeed, many political dissidents, human rights lawyers and netizens had been abducted by police in secret under the excuses of the “Jasmine Crackdown” since February this year.

Law professor and lawyer, Chen Yousi looks into [zh] the social and political implications of the CPL regarding “secret arrest” in Tianya:

…特别是“无法通知”这一条,完全可以适用到所有的流窜犯罪和异地犯罪。而象浙江省的流动人口犯罪,已经高达60%。如果这三种现象可以不通知,中国将会实际上出现大量的逮捕、拘留人员秘密失踪的现象,后果将极其严重,危害极大。
二、家属知情权是所有嫌疑人权利保护的基础,是律师介入帮助的前提,如果允许秘密逮捕,将出现委托人和监护人缺失,大量的犯罪嫌疑人将得不到家属的关护,没有办法聘请法律帮助律师,见不到律师,得不到律师的法律帮助,是对《律师法》的反动。明显是一种倒退。

… In particular the exception of “unable to contact” [the suspect's family members] would affect all the criminal cases that take place away from a suspect's household registration location. In province like Zhejiang, 60% of the crimes have involved the floating population. With the three exceptions granted in the CPL, there will be a large number of secret arrests, detentions and abductions; the consequence will be very serious and harmful.
Secondly, to notify the suspect's family members is the fundamental protection of human rights as it allows lawyers to step in. Once secret arrest is justified, the suspects and their family members could not assign lawyers to defend them. It is against the “Lawyer's Law” and definitely a regression.

Email and phone surveillance

Apart from secret arrest, the amendment has also justified secret investigation, which involves email and phone surveillance:

密侦法定化将严重侵犯普众的基本人权和隐私权。…一旦密侦证据可以作为法庭证据使用,侦查机关为了破案,会迅速在所有的案件中采用技侦手段。这次立案将密侦的审批权放到县一级公安局,执行中为了方便他迅速会扩大到副局长、刑侦队长、派出所长。因为对于一些重案组而言,第一线侦办人的权力很大,往往会先办后批。审批权基本上会失控。

Secret investigation would seriously violate citizens’ human rights and privacy… Once the evidence collected through secret investigations can be used in court, the investigative forces will adopt these tactics in most of their cases. Once the provincial public security bureau is granted the power to approve secret investigation, the head of the investigation team will be able to exercise such authority, and it is likely that some frontline investigators will start their secret investigation before they get approval.

这次的法条上列的密侦案件范围,公安是“危害国家安全犯罪、恐怖活动犯罪、黑社会性质的组织犯罪、重大毒品犯罪或者其他严重危害社会的犯罪案件…”“其他严重危害社会”这个概念是无穷大的外延。“严格的审批手续”基本上就是一句空话,没有可控性。检察院的密侦范围更大,几乎覆盖了全部的侦查范围:“重大的贪污、贿赂犯罪案件以及利用职权实施的严重侵犯公民人身权利的重大犯罪案件”…

According to the amendment, secret investigation can be applied to almost all criminal cases. For the public security department, they could approve cases that involve “national security, terrorist activities, organized crime, narcotic crime, and other serious cases that affect social security.” … “other serious cases that affect social security” can be extended to almost all cases. “A strict approval procedure” is just empty words as there is no way to monitor the process. As for the Procuratorate, secret investigation can be applied to all cases: “big corruption and abuse of public authorities that have violated citizens’ rights”. …

Earlier this month Hong Kong based newspaper, the South China Morning Post, reported that a high ranking official in the Chinese military did not support the amendment. Law professor He Weifang's quoted the news [zh] in his Weibo, attracted more than 1,700 comments. Below is a selected translation of the discussion:

@雪落有谁聆 秘密拘捕法案今天可以对准平民,明天你的政治对手同样可以用来对付你。请君入瓮就是这么来的

The secret arrest ordinance today targets ordinary people. But tomorrow, your political enemy will use it to attack you. It is a trap.

@江海捡贝翁 支持不支持有什么用,全国人大什么通不过?

What the use for us to express our opinion, the people's congress will pass it anyway.

@醉金刚 心里真不愿军人干政,在这个特色体制内此刻他们说句话又能带来效果,纠结啊,长远来说还是不能干政。

I believe that the military should not be involved in politics, but their opinions will have some effects in this political system. I feel so conflicted.. but in the long run, they should not be involved in politics.

肖芳华律师 谁先提出这条建议的,先把他秘密关押几天,看看他什么反应。

Whoever put forward such suggestions should be detained for a couple of days and see how he reacts.

Instead of entering the debate, lawyer Yuan Yuelai expresses his ultimate frustration [zh] about the legal system:

【刑诉法修改,谁还抱有幻想?】这个国家,连守法公民的人权都保护不了,征地拆迁、上访信访中政府肆意践踏人权,甚至无视老百姓生命的恶性事件从未间断,怎么可能有保护犯罪嫌疑人和被告人的人权呢?刑诉法立法目的是打击犯罪,保护人民,即人民民主专政,而不是保护人权,不是已经清楚了吗?

[Who still has fantasies about the amendment of the Criminal Procedure Law?] This country can no longer protect its citizens’ human rights. The government treads upon people's rights in land acquisition, forced demolition and visit petitions. It disregard activities that endanger ordinary people's lives, so how can it protect the rights of the suspects? The objective of the CPL is to crack down on crime, protect people and protect the dictatorship of people, not human rights, isn't that clear enough?

Start the conversation

Authors, please log in »

Guidelines

  • All comments are reviewed by a moderator. Do not submit your comment more than once or it may be identified as spam.
  • Please treat others with respect. Comments containing hate speech, obscenity, and personal attacks will not be approved.

Receive great stories from around the world directly in your inbox.

Sign up to receive the best of Global Voices
* = required field
Email Frequency



No thanks, show me the site