Jerome A. Cohen and Yu Han. China’s Struggle For Criminal Justice, SCMP (South China Morning Post)

September 28, 2011

 Criminal justice has always been a preoccupation of the Chinese people and their governments. The August 30 publication by the Standing Committee of China’s National People’s Congress (NPC) of a draft comprehensive revision of China’s Criminal Procedure Law (CPL) has opened yet another chapter in the struggle to protect society against crime while protecting individuals against arbitrary state power.

The Standing Committee’s release of the draft for public comment was itself a notable act.  Responding to increasing demands for transparency, the NPC has, in recent years, issued a number of draft laws for public comment, but this is the first time the public has had an opportunity to critique major criminal procedure legislation before promulgation. To be sure, the one-month period for submitting comments seems too brief to allow adequate analysis of a long, complex document. It is also unclear whether the call for comments is genuine, but it has stimulated hundreds of thousands of responses. This law is surely important enough to justify public legislative hearings.

Until now, the drafting process has been anything but transparent. Under the guidance of the Communist Party’s Central Political-Legal Committee, the Ministry of Public Security, the Supreme People’s Procuracy and the Supreme People’s Court took the lead in cooperating with specialists on the Standing Committee’s Legal Work Committee to produce the draft, with limited participation by a small group of academics and defense lawyers. Of course, the draftsmen also had model drafts crafted by academics experts and lawyers almost a decade before, when civil libertarians hoped to improve the 1996 CPL, whose glittery promises were often subverted in practice by police, prosecutors and judges under Party control.

In 2002, when CPL revisions were first listed on the legislative agenda, law reformers were optimistic. Experts in and out of government believed that criminal procedures could be amended to include basic principles of fairness : meaningful limits on pre-trial detention, effective assistance of counsel, exclusion of evidence obtained by torture or other illegal means, in-court witness testimony subject to cross-examination, a presumption of innocence, a privilege against self-incrimination and an accused’s right to silence. Some observers even expected the NPC to abolish “reeducation through labor”, which permits police to bypass the criminal process entirely and send people off to a possibly four-year confinement without approval by either prosecutors or judges. Although no expert was rash enough to predict judicial independence from political authority, the prerequisite for rule of law, reform was definitely in the air and produced a revised Lawyers’ Law that expanded protections of the accused.

 After the 17th Party Congress in late 2007, however, the political climate became increasingly repressive, dimming hopes that the CPL might be amended to embody such protections. The then Minister of Public Security, Zhou Yongkang, an effective advocate of police power, ascended to the Party’s all-powerful Politburo Standing Committee as head of its Political-Legal Committee. Reformers became wary of revising the CPL under his aegis, but the following year CPL revision was again on the legislative agenda. The current draft reflects more of a victory for the police and their allies among prosecutors and judges than for law professors and defense lawyers..

Yet, reformers made some solid progress. The draft authorizes special, more benevolent procedures for alleged juvenile offenders. It increases the visibility and responsibility of the inadequate, but growing, legal aid system in a country where 70% of criminal defendants are unrepresented. Although the draft fails to clarify court procedures for determining whether an accused’s mental condition should excuse his conduct or lessen his punishment, it does insert protections regarding confinement of those relatively few adjudged to lack capacity for criminal responsibility. The draft empowers judges to punish witnesses refusing to appear in court, but does not mention whether their pre-trial testimony should be excluded from evidence. Supporters of the groundbreaking 2010 judicial interpretation providing procedures on the exclusion of illegally-obtained evidence will happily find it essentially incorporated in the draft. Also noteworthy is a rule against coercing anyone to incriminate himself, although an absolute right to silence and a presumption of innocence are noticeably absent.

The draft’s attempt to reconcile the CPL with more substantial rights conferred on defense counsel and their clients by the revised Lawyers Law demonstrates the limited success of the criminal bar’s strenuous lobbying. The draft confirms lawyers’ rights  to discuss cases with detained clients before trial, free of jailers’ electronic or personal monitoring, but it restricts their ability to “verify” evidence with clients until investigators recommend indictment. The draft does not authorize lawyers to attend pre-trial interrogations, although these must now be recorded to reduce the risks of torture when suspects face life imprisonment or death. How, in the absence of counsel, suspects required o answer interrogators can effectively invoke the new rule against coerced self-incrimination remains unclear.

When will counsel gain access to detained clients? If the suspect’s family is not promptly notified of detention, it cannot decide whether to retain counsel. The draft narrows an exception to the existing notice requirement that permits investigators to circumvent notice if, in their judgment, doing so might hinder their investigation, but still authorizes no notice in cases involving national security, terrorist activities or “other similarly serious crimes”. Even when hired, a lawyer cannot meet detained clients without the consent of investigators in cases allegedly involving national security, terrorist activities or joint major bribery offenders. These vague categories offer investigators, who are masters of distorting the application of legal provisions, vast openings, and no independent review of their decisions is provided.

Most worrisome is the draft’s authorization of the previously illegal investigators’ practice of evading ordinary criminal procedural restraints by confining suspects for up to six months under the guise of “residential surveillance”, but not in the suspect’s residence. This is to be allowed only in cases officials, without independent review, decide involve national security, terrorism or bribery, and no notice need be given to family in the former two cases.

Many other draft provisions deserve analysis, especially those relating to secret and electronic investigations and special death penalty review. Yet, perhaps enough has been said to demonstrate the continuing see-saw battle over the CPL, which, because it restrains government power, has been called “China’s practical Constitution.”  We hope that the draft will be substantially improved before its likely enactment by the NPC next March. The Chinese people deserve more significant guarantees of personal freedom than the draft promises.

This article was first published with some editing in the South China Morning Post on September 28, 2011 under the title “Seeking Shelter.” It was published in Chinese in the China Times (Taiwan) on September 29, 2011. (简体中文)

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. Yu Han is a research fellow at the US-Asia Law Institute. See