Society

Unpopular law

A new detention law is a step backwards for China

Foreign businesspeople recall with a chill the case of Stern Hu, the Rio Tinto employee imprisoned in China (see WiC24) for stealing “state secrets”. He’s still in jail today.

But events last week may have made them a little more nervous. That’s because of changes made to the Criminal Procedure Law. The controversial measure was passed by the 2,978 delegates at China’s parliament, the National People’s Congress (NPC), with only 160 voting against.

The authorities haven’t seen the need to explain why the revisions to the pre-existing legislation were required.

But according to the New York Times, the final amendments were actually a slight improvement on the draft bill that was published last September and which received more than 80,000 comments during its consultation period.

The draft version included what was soon being nicknamed the ‘disappearance clause’, giving security officials apparent carte blanche to hold suspects in secret for up to six months.

The final bill that was voted through last Wednesday was softened a little. Families now have to be informed within 24 hours of a relative’s detention (although they do not have the right to know where the detainee is being held).

The definition of who can be detained under the new legislation has also been narrowed.

Comments CNN: “Under the changes to the Criminal Procedure Law the police will have the authority to hold suspects for up to six months at undisclosed locations if they believe them to be involved in endangering national security, terrorism or particularly serious bribery.”

Within China itself, many experts have opposed the new law. Perhaps most outspoken has been the well-known criminal defence lawyer Chen Youxi, who wrote on his weibo: “Those who support this bastard legislation – no matter how much power they have – will suffer, as will their descendants.”

The 21CN Business Herald agreed that the Criminal Procedure Law had prompted an unusually “heated debate”, noting that between March 1 and March 11, the press had published no fewer than 1,108 articles on the new legislation.

Xue Manzi, an investor, then used his Sina Weibo to poll readers on whether the NPC should approve the new law. Of the 10,000 or so who voted, 93% thought the controversial changes should be “postponed”.

Even in its toned-down version, the law offers broad scope for abuse. say critics.

For instance, Cheng Lei, an associate professor of law at Renmin University, notes that terrorist activities can be “relatively difficult to define”.

Likewise, activities classified as potential threats to national security are also rather vaguely drawn. The fear is that this gives the authorities plenty of wiggle-room to lock up suspects of their choosing for months at a time.

Shanghai lawyer Zhong Jinhua has also written on his weibo that the new legislation marks a step backwards for the rule of law in China. Certainly it further distances China from the English legal principle of habeas corpus, which has offered historical safeguards against unlawful detention.

The British constitutional historian AV Dicey – who popularised the phrase ‘rule of law’ in the nineteenth century – considered habeas corpus as the backbone of English life. It was worth “a hundred constitutional articles guaranteeing individual liberty,” Dicey wrote.

In case you’re wondering, Article 35 of the 1982 Chinese constitution proclaims a few safeguards of its own, including that “citizens enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration.”


© ChinTell Ltd. All rights reserved.

Exclusively sponsored by HSBC.

The Week in China website and the weekly magazine publications are owned and maintained by ChinTell Limited, Hong Kong. Neither HSBC nor any member of the HSBC group of companies ("HSBC") endorses the contents and/or is involved in selecting, creating or editing the contents of the Week in China website or the Week in China magazine. The views expressed in these publications are solely the views of ChinTell Limited and do not necessarily reflect the views or investment ideas of HSBC. No responsibility will therefore be assumed by HSBC for the contents of these publications or for the errors or omissions therein.