Criminal Law Reform: Some Steps Forward, How Many Back ...

By Stanley Lubman

The National People?s Congress (NPC) is scheduled to vote this week on a proposed draft revision of the Criminal Procedure Law (CPL). The draft contains provisions that are welcome improvements over the current law, but it also reflects determination to maintain and even to expand the possibility of police illegality in some cases. Regardless of the language of the revised law, its adoption will raise an issue: How will it be enforced by a legal apparatus which has not even enforced the existing law in a manner consistent with the procedures of the current criminal process?

Welcome revisions include the requirement of judicial supervision of compulsory psychiatric treatment for criminal suspects, the introduction of pretrial hearings and plea bargaining, and the exclusion of evidence obtained by illegal means. Controversial provisions include one that would permit the police to confine suspects under ?residential surveillance? at places other than their residences for as long as six months in cases involving ?state security? or ?terrorism? without notice to their families.

This latter provision has been criticized in China as well as abroad. ?Respect Public Opinion to Eliminate Regrets over Criminal Procedure Law? was the headline on a recent editorial in a Guangzhou newspaper. At the moment, it?s not clear whether this provision is still included in the draft, or whether lawmakers have bowed to public pressure and either taken it out or softened it.

Regardless of the language of the revised law, the question remains: How will the police, procuracy (the agency in charge of investigating and prosecuting crimes) and courts apply it in practice? Will the values, attitudes and mindset of the personnel of those agencies remain as focused on securing convictions even if the means violating the legal rights of the accused? Or will the Chinese leadership decide that the new law is to be implemented with a new emphasis on raising legality in accordance with its provisions?

A column by this author published on China Real Time last month described the findings of a recently published book on Chinese criminal procedure by Hong Kong-based legal scholar Mike McConville that is the product of years of empirical research on the workings of the system. It concludes that there is an intense system-wide focus on obtaining convictions of criminal defendants. For example, the book reports that procurators suffer a decline in their performance ratings if cases that they handled were not concluded by a judgment of guilt.

Can the system be altered so that procurators would not be punished for failure to obtain a guilty verdict on account of police illegality? Can the revised law prevent judges from consulting with procurators before trial when some judges already ignore rules against advance consultations contained in the current law?

One of China?s leading law reformers, Jiang Ping, recently interviewed by the Chinese business magazine Caixin, pointed to a basic problem that is manifested in the current criminal justice system, namely the absence of attention to individual rights. Jiang was not discussing criminal procedure specifically, but basic concepts of law generally. His comments are nonetheless illuminating when it comes to the revised CPL:

?if the men who wield state power believe that it is their role to protect private rights and that protecting private rights is the ultimate purpose of state power, then the concept of law is changed. But, unfortunately, this is an obstacle that we have yet to overcome.

The McConville study states that violations of the rules in the current Criminal Procedure Law, last revised in1966, are not only ?systematic and entrenched? but ?they have become internalized.? Here is the fundamental issue that is now raised by the impending revision of the CPL. Could it possibly portend or influence the advance of the rule of law, in the sense of increased conformity to the rules of the CPL by the agencies of the criminal justice system?

Recent history is not encouraging.

For the revised CPL to make a difference in practice, the leadership should manifest a commitment to increase legality in the system, not because of any desire to adopt Western ideals, but to increase genuine conformity to the laws whose adoption they have promoted.

Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law and is the author of ?Bird in a Cage: Legal Reform in China After Mao,? (Stanford University Press, 1999).

Source: http://www.chinabusinessblog.com/2012/03/06/criminal-law-reform-some-steps-forward-how-many-back/

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