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Criminal law reform a watershed for defendants' rights

China.org.cn, March 29, 2012

• The Criminal Procedure Law [full text of 1996 version] is closely bound to the Chinese citizen's constitutional fundamental rights, including the personal rights and freedom, democratic rights and property rights and other rights of citizens.

  Chen Guangzhong

  Since its promulgation in 1979, China's Criminal Procedure Law saw its first ever amendment in 1996. A second amendment was proposed to the 10th National People's Congress in 2003, finally gaining approval ten years later at this year's NPC session.

  It has taken ten years to complete and approve this year's draft amendment. The amendment's approval encountered many roadblocks along its path to adoption, which largely stemmed from the difficulties in balancing the legal and social effects of the act.

  For the first time, "respecting and safeguarding human rights" has been explicitly written into the nation's criminal procedure law. In that sense, China's legislature has embraced the principle of punishing criminals while protecting human rights.

  It's worth mentioning that for the first time, lawyers, not only scholars, participated in creating the amendment draft, giving the public more of a voice in formulating the new policy.

  "Ever since the amendment's inception in 2003, the different parties involved have held their own positions and arguments," said Prof. Chen Guangzhong, one of the Founders of New China's Criminal Procedure Law. "For example, scholars and the legislative branch both placed stress on procedural justice and human rights protection; while the law enforcement branch, especially the police, paid much attention to their clout in investigating and cracking criminal cases."

  In such a case, Chen said, substantive progress was hard to make without support from high level authorities. "Therefore, the debate on the amendment proceeded rather slowly, and sometimes had to be laid aside."

  The top-down reform of China's judicial system launched in 2008 created an impetus for the subsequent amendment. Chinese public's increasing awareness of the rule of law and rights also put pressure on China's legislative and judicial branches to create a draft amendment that fully reflects the people's will.

  The recent revisions and additions to the Criminal Procedure Law provide several key rights to defendants, including the refusal to admit evidence gathered through torture. Under Article 50 of the new code: "It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination."

  Debate over the "right to silence" provided to defendants under the revised law is still intense among law and law enforcement circles.

  The police have showed a clear attitude towards the right to silence, an anonymous source said. "Although they agree with protecting human rights, they don't think the time is ripe to implement it."

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