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.
The following anonymous commentary [zh] analyzing the CPL in details has been widely circulated in the past two weeks:
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:
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:
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:
Instead of entering the debate, lawyer Yuan Yuelai expresses his ultimate frustration [zh] about the legal system: