Jerome A. Cohen and Yu Han. Will China’s Prosecutors Become “Watchdogs Of Legality”. SCMP (South China Morning Post)

November 23, 2011

In China, when criminal investigators take someone into custody, there is no timely way to effectively challenge their misconduct. The suspect is helpless, and it is difficult for the anguished family to learn of any abuses. Suspects are usually detained throughout investigations, and investigators sometimes hold them for longer than law permits. Torture during interrogation, although banned, is rife. Investigators, usually police but also prosecutors in certain cases, often ignore legal requirements to notify the suspect’s family that he has been detained, where he is held and why, and to allow him to see a lawyer. Even a competent attorney has nowhere to turn for an independent review of official abuse.

In Anglo-American jurisdictions, including Hong Kong, courts decide the legality of a suspect’s criminal detention. In continental European democracies, police detention practices are reviewed by prosecutors and judges. In Taiwan today, judges must approve all detentions. Yet China continues to rely on institutions imported from the late Soviet Union.

Under China’s current Criminal Procedure Law (CPL), courts play no role in this earliest, crucial stage of the criminal process. China’s procurators, the nation’s prosecutors, are supposed to discover and correct investigative misconduct, even that of their own investigative units, but they seldom do. The procuracy must approve the arrest of detained suspects. Yet, through misapplication of the CPL, Chinese investigators give themselves thirty days to seek such approval and sometimes do not comply with that broad limit. Moreover, without procuratorial approval, through another twisting of the law, they subject certain people to as long as six months of  incommunicado “residential surveillance” in a police-controlled facility before resorting to their arrest option. Thus, it is normally a long time before incarcerated individuals benefit from procuratorial review.

Two documents jointly promulgated by the Supreme People’s Procuracy and the Ministry of Public Security late last year, if implemented in good faith, promise abused detainees greater access to procuratorial review. Those documents, however, lack the full authority of “law”, and the Standing Committee of the National People’s Congress (NPC) is currently debating, behind closed doors, the extent to which the NPC should incorporate them when it issues its long-awaited revisions of the CPL next March.  The draft revisions were published for public comment August 30 and drew almost 80,000 responses. The vast majority reportedly focus on the interaction of defense lawyers with police and courts. Relatively little attention appears to have been paid to the draft’s expansion of procurators’ power to curb investigators’ misconduct.

Informed Chinese observers often dismiss procurators, who have the same legal training as judges, as timid, powerless in practice, and too cozy with the police and the Communist Party apparatus that controls them. They are a far cry from the “watchdogs of legality” envisioned by Soviet legal theory, as were their Soviet counterparts. Some critics mock procurators as waiters in a restaurant where the police are chefs and the judges are guests who can eat only what the chefs decide the prosecutors should serve.

Yet, if the draft CPL is adopted as written, procurators will have greater opportunities, indeed obligations, to enforce the rules restricting investigators’ powers. For example, if investigators reject a complaint that they have detained a suspect beyond prescribed time limits, or carried out an illegal search and seizure, or obstructed a defense lawyer’s lawful activities, an appeal can be submitted to the procuracy. Where it is found to be justified, “rectification shall be made in accordance with law.”

Similarly, the procuracy will be required to verify allegations that evidence has been collected illegally, which would include coerced confessions, and, if an allegation is confirmed, to “issue an opinion on the correction of such situation”, suggest replacing investigators and prosecute them for any crimes committed. The procuracy will also be required to oversee whether investigators’ imposition of “residential surveillance” outside a suspect’s home complies with the complex regulations that the revised CPL will apply to that notorious coercive measure.

Another new article will require procurators approving an arrest to question the suspect instead of merely reading case documents, whenever they have doubts about the arrest, the suspect requests a face-to-face meeting, or investigators may have seriously violated the law. Procurators also may question witnesses and must hear the opinion of defense counsel if requested. Moreover, even if arrest is approved, the procuracy “shall examine the need for (continuing) custody” and, if custody is no longer necessary, “shall suggest release of the suspect” or itself  “or itself grant release with restrictions”. In the pre-arrest period, the procuracy must also promptly review requests for release from measures imposed by its own investigation units and state its reasons for denying such requests.

Unfortunately, the draft revision fails to incorporate the document jointly issued by the Supreme People’s Procuracy and the Ministry of Public Security last year that calls for establishing procuracy offices in detention centers, which are operated by the police. That would facilitate procurators’ monitoring of conditions and events there, protecting contacts between suspects and their lawyers and investigating harm inflicted on suspects. Presumably that document will still govern police and procurators, even without legislative endorsement.

The real question is whether the procuracy can muster the power and zeal to effectively interpret and implement the new, but often sketchy, criminal justice norms, whatever their source. Some Chinese elites appear to be increasingly impatient with government failures to enforce the laws in many fields, not only criminal justice. Perhaps the supervisory role of the procuracy will rise with that tide. Otherwise, the “watchdog of legality” will continue to have more bark than bite.

This article was first published with some editing in the South China Morning Post on November 23, 2011 under the title “Law’s Protectors.” It was published in Chinese in the China Times (Taiwan) on November 24, 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 also