Does China’s New Detention Law Matter?

The final draft of the revised Criminal Procedure Law, to be deliberated tomorrow, has been stripped of a key clause that would have granted police new powers of secret detention. But related provisions still threaten to undermine the law’s vaunted enshrinement of human rights, and the extent to which its protections and restrictions will govern a reality remains in question.

Human Rights Watch describes the law as it now stands:

Human Rights Watch welcomed provisions that could – if translated into practice – strengthen procedural protections and due process for ordinary criminal suspects, such as stricter time limits for detentions, better guarantees for access to a lawyer, and greater protection for juvenile and mentally ill defendants ….

However, under the revised law’s “residential surveillance” provision (article 73), law enforcement agencies would still have the power to detain national security or terrorism suspects in a designated location of the agencies’ choice for up to six months. Although the law enforcement agency imposing the measure would have to notify relatives within 24 hours, the notification would not require them to disclose the whereabouts of the person. The draft provision would also allow police to deny suspects’ access to a lawyer for the duration of the detention ….

Other provisions in the proposed legislation that would allow the secret detention of criminal suspects in “national security, terrorism and major bribery” cases for up to 37 days are found in articles 37 and 83.

These exceptions suspend the requirement to notify relatives within 24 hours if the law enforcement agency believes that such notification could “impede the investigation.”

While “national security” may suggest spying and sabotage, in China it can stretch to include poetry, as in the case of Zhu Yufu’s conviction earlier this year. The loophole is extremely elastic, and would comfortably have accommodated Zhu and others in the recent procession of subversion and incitement of subversion cases. At the Economic Observer (translated at WorldCrunch), Chen Jieren argued that:

… [In] China, the accusation of endangering state security is really a way of saying endangering the regime’s security. In other words, if the secret arrest of a suspected person is allowed, it means that China’s political ideas and values have more respect for a regime’s rights than individual human rights — and the state is more important than the public.

However, in a truly modern country that exists under the rule of law, human rights stand at the forefront of the order of society’s values ….

If we permit secret detention, then a law enforcement agency can always place the hat of a suspected terrorist on an arrested person ….

We believe that exposing all judicial proceedings to the bright light of the sun will not cause the sky to fall upon us, but will actually guide our society to the place where it may be illuminated by the rule of law and the supremacy of human rights.

As Pu Zhiqiang, a Beijing-based rights lawyer, told The Guardian’s Tania Branigan, “the real issue is not what the laws say, but how they are enforced.” (Police obstructed later attempts to contact Pu by Al Jazeera’s Melissa Chan and McClatchy’s Tom Lasseter.) How far the revised CPL will govern actual practice is an open question: if even the generous latitude it allows is felt to be overly restrictive, authorities may simply conduct outright illegal detentions as in the past. Chinese Human Rights Defenders’s newly released 2011 report (PDF, pp. 4-6) counts 3,833 documented cases of arbitrary detention last year, with 45% of the activists surveyed saying that they had been held at some point. Of these nearly four thousand cases, CHRD says that only 8% had a clearly established basis in law: 86% had none at all.

The Committee to Protect Journalists suggested last week that we ask Chongqing businessman Zhang Mingyu whether the new detention law will matter:

… From his apartment in Beijing on Wednesday morning, Zhang blogged that “the jigsaw puzzle of Wang Lijun should be revealed.” He didn’t have a chance to explain what he meant by that. Chongqing police had arrived at his door by the afternoon, and had told him to return to his city and stop writing about Wang, his lawyer Pu Zhiqiang told international reporters ….

What was Zhang about to reveal? Pu says that his client had a compromising voice recording of Wang Lijun, the ousted former Chongqing police chief, The Wall Street Journal reported. More damning news of fallen comrades would complicate the official picture of consensus in Beijing.

It is unclear where Zhang is now, or if he’s been accused of any crime. He hasn’t written anything since he noted “danger” on Wednesday evening, and he hasn’t been in touch with his lawyer. The Chongqing police have no jurisdiction in Beijing, Pu noted. Zhang’s sudden silence is one more reason for skepticism over the importance of Chinese laws as they are written.

Even if the new law is not honoured, however, it is significant as an indicator of the balance of power within the government. Human Rights Watch’s Nicholas Bequelin described the battle over the law’s provisions between conservative and relatively progressive elements in a recent New York Times op-ed; in a talk at Washington’s East-West Center earlier this month, he explained (24:50-30:30) the draft’s importance in the context of this year’s leadership transition. The new CPL is not only a “capstone legislation for the Hu-Wen administration”, but also a weather vane for rule of law and the influence of the security apparatus under its successor.

Human Rights in the Year of China’s Leadership Transition from East-West Center on Vimeo.

See more on the criminal procedure law via CDT, including the latest cartoon in Hexie Farm’s CDT series.