China’s Criminal Procedure Law: Good, Bad and Ugly (Excerpts）

• Author: Stanley Lubman

The revised Criminal Procedure Law (CPL) enacted this month by China’s National People’s Congress (NPC) is being hailed by the local media as a significant step forward, which it may well be if its provisions are implemented in practice.

If strict enforcement of the new law is to be even remotely possible, more than mere promulgation is required: It’s going to take new guidelines and training in order to draw the agencies responsible for the “political-legal system” away from previous patterns of disregard for existing procedural requirements.

The Chinese media have praised the insertion of “respecting and protecting human rights” into the general principles of the Law. Ironically, only days before this provision was adopted along with the rest of the complex Law, China Human Rights Defenders issued its Annual Report on the Situation of Human Rights Defenders in China, which catalogs “a year of harsh crackdowns for human rights defenders (HRDs), characterized by lengthy prison sentences, extensive use of extralegal detention, and enforced disappearance and torture.”

Given China’s human rights record, actual practice under the amended Law will be watched closely for signs that this provision will improve police conduct.

The Law now provides that police cannot force suspects to incriminate themselves, and forced confessions such as those obtained through torture are illegal. Evidence, testimony, and statements extracted through illegal means such as violence or threats must be excluded. This is a broadening of guidelines issued in 2010, which did not explicitly state an exclusionary rule in non-capital cases.

One new provision has received a great deal of attention: The Law previously provided for “residential surveillance,” meaning house arrest, but in practice – although without legal authority – the police have caused the “disappearance” of criminal suspects and activists. In the recent past the police have held dissidents such as Ai Weiwei and human rights lawyer Gao Zhisheng in undeclared locations for months without notifying family members.

One draft of the amendment to the Law had provided that the police could hold suspects incommunicado and in secret locations. The provision was later omitted after a considerable amount of public debate that was marked by strong criticism by human rights activists and legal experts.

Under the amendment just adopted by the NPC, law enforcement agencies would still have the power to detain persons...