Published on March 14th, 2012 | by Impunity Watch Archive1
CHINA AMENDS SECRET DETENTION LAW
by Hibberd Kline
Impunity Watch Reporter, Asia
BEIJING, China – Human rights lawyers and activists hailed proposed revisions to China’s Criminal Procedure Law, which were unveiled on the fourth day of the National People’s Congress in Beijing last Thursday, with cautious optimism.
The revisions passed today with overwhelming support from what many analysts believe to be a “rubber stamp” congress, which has never rejected a proposed draft law.
However, the revisions are seen as controversial and have been the subject of unusually fierce public debate inside China since they were first publicly announced last August. The crux of the controversy surrounded the issue of secret detentions by China’s police forces.
Proponents of China’s increasingly powerful, hard-line, state security apparatus took a position favoring an amendment that critics claimed would simply legalize existing police practices of “disappearances” and secret detention without implementing oversight or guidelines. Supporters of the amendment are believed to be concerned with the growing number of strikes, protests and public dissent across China. Many in China’s government fear the emergence of a widespread Chinese version of the “Arab Spring.” They believe that increased police powers are necessary in order for the Communist Party to maintain order and control.
On the other side of the controversy, human rights activists, political reformers and a sizeable portion of China’s legal community decried the proposed amendment, known as Article 73. Reformists have been able to harness an unusually large and vocal showing of public support, including tens of thousands of online complaints about the proposed amendment.
Support for the reformist stance is thought to partially be a backlash against what a report by Hong Kong-based human rights organization Chinese Human Rights Defenders (CHRD) recently labeled in its annual report as “…a year of harsh crackdowns for human rights defenders, characterized by lengthy prison sentences, extensive use of extralegal detention, and enforced disappearance and torture.”
According to CHRD’s report, almost 4,000 political campaigners were detained in China last year. The report indicated that at least 150 of the detainees had been tortured and at least 20 had been “dissapeared” for weeks or months without their families being informed by the authorities.
Additionally, the Chinese Government has increased it’s security and police presence in its restive province of Xinjiang and areas with large Tibetan populations. Human rights groups say that the Chinese Government suppresses traditional religion and culture in these regions and that it regularly carries out secret detentions and disappearances in order to maintain control there.
However, China maintains a virtual stranglehold on the flow of information out of Xinjiang and Tibet, making it difficult to determine whether repression in those regions had a significant impact on the debate over revisions to China’s detention laws.
An earlier draft of Article 73 would have allowed for China’s police forces to affect secret detentions without informing detainees’ families. Though the legality of secret detentions and “disappearances” under Chinese law was questionable prior to today’s passage of the revisions, it is widely believed that these practices were already commonplace in China.
However, haggling over the proposed amendments has yielded a compromise, which many view as a small victory for reformers. Last week the proposed amendment was modified in a highly unusual attempt to ease concerns over human rights. The amendment provides police with the power to detain dissidents for up to 6 months in “residential surveillance” at their homes or at other locations such as hotels. It also gives police the power to hold people in “secret detention centers,” often referred to as “black jails.” However, the amendment now comes with a caveat requiring the authorities to inform detainees’ families within 24 hours after the start of detention.
Human rights groups have been quick to point out that the law provides exceptions to the “24 hour rule” in situations when informing the family would be impossible or in situations involving “state security” or “terrorism.” State security is widely viewed as a catch-all phrase that covers vaguely defined crimes such as “subversion” in order to provide a mechanism for detaining dissidents critical of the Chinese Communist Party.
Rights groups have further asserted that the amendment gives a legal justification for existing police practices that violate human rights, which they argue will likely increase now that the amendment has passed. Activists have often brought allegations of torture and other abuses committed by police during “residential surveillance” or secret detention.
Aside from the secret detention issue, the revisions have been praised for taking a surprisingly humanitarian tone.
According to China’s official Xinhua news agency, the amendment explicitly states for the first time that trials are to exclude “confessions extorted through illegal means such as torture.” Furthermore, Chinese defense attorneys have praised provisions of the amendment that they say will likely allow them more access to suspects and defendants. Additionally, in a statement on its website, human rights group Amnesty International praised the amendment’s “…improved legal protections for minors and the mentally ill…”
However, Amnesty and other rights groups have indicated that they do not believe that the reforms go far enough and fear that legal protections may not be effective in practice. Amnesty has urged the adoption of a “right to silence,” a presumption of innocence and protection from arbitrary “technical surveillance” such as wiretaps.
China is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which it has yet to ratify. The ICCPR provides that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
According to Human Rights Watch, even though China has not yet ratified the ICCPR, China is obligated under the Vienna Convention on the Law of Treaties “to refrain from acts which would undermine the object and purpose” of a treaty to which it is a signatory.
Overall, activists have applauded the reforms as a positive first step in human rights reform and have noted the importance of increasing public input in the Chinese political process.
As the National People’s Congress’s annual session drew to a close today, out-going President Wen Jiabao called for further political reform and increased openness inside China. Without reform, Wen said that “such historic tragedies like the Cultural Revolution [which was characterized by human rights abuses on a massive scale] may happen again.”
For more information, please see:
Al Jazeera — China Premier Calls for Political Reforms — 14 March 2012
The Washington Post — China’s Wen Jiabao Calls for Reforms Even as Legislature Strengthens Detention Law — 14 March 2012
Financial Times — China to Enact New Secret Detention Law — 13 March 2012
BBC — China Rights Situation Deteriorating, Say Activists — 09 March 2012
Chinese Human rights Defenders — “We Can Dig a Pit and Bury You Alive” Annual Report on the Situation of Human Rights Defenders in China, 2011 — 09 March 2012
BBC — China Unveils New Legislation on Police Detention Power — 08 March 2012
NPR — China to Restrict Secret Detentions on Paper — 08 March 2012
Reuters — China Parliament Unveils Dissident Detention Powers — 08 March 2012
Time Magazine — Changes to Detention Rules Are Small Victory for Activists in China — 08 March 2012
Voice of America — China Drops Plan to Legalize Secret Detentions — 08 March 2012
Amnesty International — China Must Not Legalize “Disappearances” and “Two-Track Justice,” Says Amnesty International — 06 March 2012
Human Rights Watch — China: Don’t Legalize Secret Detention — 01 September 2011