Shen Bin

Commentator, Oriental Morning Post

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Shen Bin is commentator of Oriental Morning Post.
Sep 18, 2011

The NPC Standing Committee has recently examined the “Revision to Criminal Procedural Law (Draft)”. This has started the third amendment (second revision) of the “Criminal Procedural Law” of New China, and is the third leap forward in human rights protection in China’s criminal proceedings.

What is Criminal Procedural Law?

It is not merely a methodology to combat crimes, or an “operation manual” of judicial organs to handle cases, or a cheat tool for lawyers to “exploit advantages”. It is a list of citizens' rights that directly restricts illegal infringement by public rights to civil rights, and is therefore referred to as “application constitution”.

In the Constitution of China, a series of personal rights of citizens are set forth in Articles 37 to 40: the personal dignity of citizens is inviolable, the personal freedom is not restricted, freedom of correspondence, no unlawful search of, or intrusion into, a citizen's home, and unlawful search of the person of citizens is prohibited …… However, in many cases, the subject violating these rights is the unrestricted public right machine, instead of outlaws.

To protect civil rights, it must be ensured that public right can be used only to combat crimes by law, and the Leviathan cannot be released out of cage to hurt people. This is the significance of the “Criminal Procedural Law” —- it binds public rights with strict procedures and embodies the justice of procedures. Therefore, revision of the “Criminal Procedural Law” is a great event deserving attention by all citizens. It will determine the way to realize justice in China in the future, and how we can be exempted from unlawful injury by public right.

During the present examination, some NPC members suggested that “protecting human rights” be clearly stated in the “Criminal Procedural Law”. Indeed, “Criminal Procedural Law” is a barometer to reflect the human rights protection in a nation, and embodies the value of a nation.

China took a tortuous path in the protection of human rights after 1949. In the special days before reform and opening-up, there was neither “Criminal Law” nor “Criminal Procedural Law” in China. Judicial organs executed “laws” mostly based on policies and documents, which changed frequently, and public right was rampant without restriction. All people, from ordinary citizens to president of the nation, led a terrified life.

After the “Cultural Revolution”, the Chinese people recalled the painful experience of “smashing the public security organs”, and the “Criminal Procedural Law” of 1979 version was born. This was the first Criminal Procedural Law of New China, which, for the first time, frankly and righteously included in the law the right to defense referred to as “speaking for bad people” and the lawful litigation right of criminal suspects and of defendants. Nevertheless, this law was still subjected to restriction by the times, when the guiding ideology was “to be rough rather than in detail”. The law had only 164 provisions, therefore it cannot specify law enforcement by public right in detail, featured a strong ex officio color, and seriously neglected protection of human rights.

In 1996, China revised the “Criminal Procedural Law”, marking the second leap forward in human right protection. Jurists referred it a milestone in the history of criminal justice system of China, opening a new chapter in democratic justice. The biggest change was that from “inquisitorial system” to “defence against litigation system”.
Before that, criminal litigations in China followed the pattern of judge “questioning” defendant as having been practiced for thousands of years, after that, hearing became the process of procuratorate filing public prosecution and defender demurring, with judges in the neutral position to decide on evidences.

This allowed more objective and fair court hearings.

However, not long after the implementation of “Criminal Procedural Law” in 1996, many problems in judicial processing were revealed (such as use of torture to coerce a statement, extended detention, and violation of defense lawyers' professional rights), almost overriding and laying aside the criminal procedural rules. Therefore, early in 2003, revision of the “Criminal Procedural Law” was included in the legislation plan. This means that hard preparatory work has been done 8 years for the third leap forward in human rights protection.

There are many light spots in the present “Revision to Criminal Procedural Law (Draft)”, which has incorporated quite advanced human right protection concepts: while prohibiting use of torture to coerce a statement, it has been clearly put forth to exclude illegal evidence and that forced self-incrimination is not allowed. But we still hope these will be specified clearly by law: can the “right of silence” be introduced, and can other evidences obtained by use of torture be excluded? In the draft, it has made clear that lawyers have the identity of defender, and that there shall be no monitoring and investigators must not be present at a meeting in case investigation phase —- however what responsibility will be undertaken by relevant departments refusing to cooperate on this? In the evidence criteria, the original “definite and sufficient” evidence criteria have been clearly defined as “reasonable suspects should be excluded for the determined case facts after comprehensive examination of all evidences of the whole case”, so the criminal evidence determination criteria “excluding reasonable suspect” in general application in legislative countries have been introduced.

Preparatory work has been in progress for 8 years for this revision of the “Criminal Procedural Law”. We expect a successful third leap forward in human rights protection in China, so that the rights endowed by the constitution on citizens can be clearly embodied in the case hearings by judicial organs, and the concept to protect human rights will take root in the hearts of all law executors.

Shen Bin is commentator of Oriental Morning Post