POSTED: 5:40 a.m. HST, Mar 1, 2012
LAST UPDATED: 5:47 a.m. HST, Mar 1, 2012
BEIJING >> China is preparing to overhaul a key criminal law amid public confusion — and some dread — over whether the government is about to give police the legal authority to disappear people.
At issue is an amendment to the criminal procedure law that would allow police to secretly detain suspects for months without informing their families. The effect would be to legalize the secret detentions police have increasingly been using against political critics, activist lawyers and other dissidents. Activist Hu Jia, himself living under a form of house arrest, has dubbed it the "KGB clause."
The proposed powers, when first mooted in a draft released last summer, caused an uproar among legal scholars, who called them dangerous, and ordinary Chinese, who posted comments online to the government's draft by the tens of thousands.
Now, as the national legislature prepares to pass the revised law during its annual session which starts Monday, it isn't clear whether the proposed changes are still in the bill. New drafts have not been released, as is typical in China. One well-connected scholar claims the clause has been excised out, but others say it's uncertain or won't say.
Chi Shusheng, a lawmaker and lawyer from Heilongjiang province with a reputation for defending human rights, said she last saw the revised law in January.
"I think there's been some progress," Chi said. She wouldn't elaborate.
Members of the National People's Congress legal committee, who advise the drafting of the law, declined to talk.
"Wait until the final version comes out," said Zhou Guangquan, a legal scholar and committee member. "It's not convenient for me to discuss it now."
Chinese laws are generally crafted by the central government behind closed doors with little public consultation, though there have been experiments with increased transparency in recent years. The precise reasons for the secrecy aren't entirely clear, but seem borne out of habit and expediency.
Behind the uncertainty is a tug of war between people who think China needs greater legal protections to keep advancing, and the security establishment and politicians who see a strong Communist Party as the best guarantee of the country's continuing success.
Chinese society, poor and egalitarian 30 years ago, has been stratified as decades of economic reforms create droves of millionaires and push up a new middle class while leaving behind others. People increasingly turn to the law to protect their rights and to protest when other methods don't work.
More open Chinese media and the Internet have raised awareness about miscarriages of justice, such as wrongful convictions, and the need for legal safeguards.
"People are increasingly realizing that procedural justice matters," said Joshua Rosenzweig, a human rights researcher based in Hong Kong. "There is also a general sense too that public power, the power of the state, needs to be checked."
The proposed revisions to the criminal procedure law, last amended 15 years ago, attempt to address the changing demands of this remade society. It includes rules on the exclusion of illegally obtained evidence and enshrines the privilege against self-incrimination, both measures meant to better protect detainees, said Flora Sapio, a visiting scholar at the Chinese University of Hong Kong and an expert on Chinese law.
For the most part, though, the overhaul consolidates existing rules and regulations without significantly breaking new ground, Sapio said.
The controversial exception is the expansion of police powers in Article 73 on "residential surveillance," a kind of house arrest without charge. The August draft said police could hold suspects under residential surveillance — at a fixed location outside their home — for up to six months without notifying families in cases involving state security or terrorism or if notification would impede the investigation.
In practice, police have disappeared regime critics, from Nobel Peace Prize winner Liu Xiaobo and his wife to prominent avant-garde artist Ai Weiwei, who disappeared into police custody for nearly three months last year.
Ai's wife Lu Qing, who was distraught over the official silence during her husband's disappearance, has written an open letter to the government saying that codifying the more muscular powers for police would mark a "legal setback for China and deterioration of human rights."
The outcry may have had some effect. One prominent Beijing legal scholar, Chen Guangzhong, said this week that Article 73 has been changed from its August version and now requires that families be notified within 24 hours if a relative is put under residential surveillance in all cases except when the family cannot be reached.
Chen said he has not seen the latest version himself but was informed of the change by a colleague who he declined to identify. Chen was among the more vocal critics of the August draft when it came out.
"Personally speaking, I am relatively satisfied," said the 82-year-old tenured professor at the Chinese University of Political Science and Law in Beijing.