China’s new KGB mindset?

The recent amendment of China’s longstanding “Criminal Procedure” Law, specifically passages concerning the legalisation of “secret detentions”, has created a level of home-grown concern and criticism not heard since the arrest of the prominent Chinese artist and government critic Ai Weiwei in early 2011. The wide ranging reform of the justice system, the largest and most important changes in 15 years, has been heralded via a period of public consultation in order for the Chinese people to become familiar with the new ammendments. Of particular note to some non-party political voices however, including close associates of Mr Weiwei, is the content of just one paragraph in the new proposal;

“the public security organ shall take a detained person into custody (and) within 24 hours notify his family or the unit to which he belongs of the reasons for the detention and the place of custody, unless it is impossible to notify or (his/her crime is related to) endangering State security or terrorism (for) such notification would hinder investigation“.

On paper this reading differs very little from the original 1970’s clause wherein;

“within 24 hours after a person has been detained, his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them“.

Though Ai Weiwei, formerly imprisoned for “tax evasion” can’t speak to the media (the terms of his probation), his wife Lu Qing can, and has attempted to raise awareness of the potential consequences of this change in wording though. Her complaint, recently echoed by Chinese human rights activist Hu Jia in the Western media, is that the law offers further loopholes to a police force already accused of over judicious behaviour with regards to policing civic rights campaigners. Claiming that the laws’ enabling of detention without charge, away from police stations and prisons, would slow “China’s progress toward civilization”, Lu Qing appealed against the malevolence of the bill by drawing on her own experiences; “It’s horrible not to know where your family is” and “a notice to the family members is the most basic right”. Meanwhile Hu Jia, in comparing the law to the worst of the former KGBs’ practices, stated that it “violates the minimum humanity of the suspect who is not yet convicted… and the innocent family members” and only makes legal what activists in China believe the police have been doing “illegally” since the “Jasmine Revolution” this year.

Ai Weiwei in hospital in Germany, recovering from brain swelling after a Police beating in China months before.

The concerns shown by some over this amendment, though largely ignored in China, have found airtime in the West, where coverage of Ai Weiwei, his contemporaries and Chinese human rights issues is attracting more attention. Pre-emptively perhaps, China Daily, weeks before the issue became major news in the West, responded to the ‘issues’ of the bill in a relatively even handed dissection of the issue on the 13th of September. The article, titled “Debate: Criminal Procedure Law”, featured three Chinese experts, all with differing opinions of the bill,  discussing the consequences of its enaction and the concerns of its  detractors.

The opening argument, by Wan Danhong, an associate professor of law at the China University of Political Science and Law, titled “A welcome move in the right direction”;  simply states that the further clarification and honing of the law can be only a good thing. Danhong argues against the belief that “secret arrests” will result from this legislation by reminding readers that only under the serious crimes of “endangering State security, or… terrorism” is it prosecutable. Instead, she argues that the law clarifies the position of the police in terms of publicising arrests and goes on to imply that this law will impede rather than encourage incorrect police actions in the future and that the amendment solidifies defendant rights with “the exceptions in two specific conditions”. Denhong concludes that this should definitely be seen as progress “in the transparency of laws and regulations” and that “misinterpretations of the clauses are not the best way(s) to analyze an amendment.”

The second opinion of the new amendments in the article comes from Zhang Benqiang, who was notably more cautious in naming his piece “Public must be protected from ill effects”. Benqiang begins by questioning assertions made from government sources and apologists about the harmless nature of the bill to Chinese civil liberties. In opening he states that “it is difficult to define severe crimes such as “endangering State security” in China and that, abuses of these designations have occurred before; notably in the case of Anhui Legal, a journalist detained for gathering information on ‘forced removals’, who was charged for “harming social security”. Following on from this Benqiang states that the “right to interpret” actions such as “endangering state security” will lie solely with the police and is a “farce” that could result in public apathy with the system. He also elaborates on the clause which allows for secrecy when “it is impossible to notify” families; wherein he states that the change in wording sounds like the bill is allowing authorities to withhold information when they “do not want to notify”, giving free reign in the implementation of secret arrests. In concluding Benqiang states that one result of the vague nature of the law will be that Chinese citizens will suspect police motives in its implementation and that they will not accept it as an “excuse to justify secret arrests”, if that is indeed its purpose.

The third opinion on the bill, from Zhang Yuzhe, titled “Vague clauses have to be clarified in detail” echoes Zhang Benqiangs’ point on the vagaries of the law and the negative consequences that its “loopholes” could have on the credibility of the Chinese justice system. Yuzhe does, however elaborate on some of the benefits of the amendments, not least the supposed enaction of legal protection against “self incrimination”: torture, which in 2011 seems less than timely. Yuzhe also makes pains to explain the history of the bill, putting the argument into perspective; “even the existing law allows police not to notify relatives… if they think doing so could impede an investigation”. As such Yuzhe implies that looking at the bill on its own makes the criticism seem overblown, especially considering the new draft does not create new laws, only expands old ones. Furthermore there certainly are situations, Yuzhe concedes; legally warranting “non notification” of the relatives of accused citizens, for the which, the application of this law seems valid. The author’s main thrust is still similar to that above however; whatever the case, the law should notify families and provide evidence in a timely manner after an arrest. Yuzhe stresses that the clause ‘impossible to notify’ ”provides too large (a) space for police discretion”; potentially allowing “secret arrests”; which will impede suspects rights and damage the credibility of legal system. Like Benqiang, Yuzhe also provides examples of what the new law change could encourage via the story of another journalist arrested in secret and only publicly charged (and his family notified) five days after intense local media coverage. Considering the law from this perspective, not from in a vacuum, worries surrounding the bill and police behaviour do seem valid, on this Benqiang concludes “the new draft…may create bigger loopholes that…undermine human rights”.

Despite the fact that it could break international law (forced disappearances are illegal) if used to silence “dissidents” and journalists, the passage of the new law through public consultation could proceed unchanged and could be a huge blow for artists and protesters like Ai Weiwei and Hu Jia. The more interesting facet of this story however is not so much the implications of the bill as the veracity of the China Daily debate on it; which has been uncharacteristically open-minded and fair in allowing for discussion of a politically sensitive issue. Whether this article’s even-handedness implies CPC uncertainty over whether the bill should be passed (they want to measure public reaction), is the result of strong journalistic pressure or is because of some other reason (only Wan Danhong’s ‘positive’ stance was “previously published”; it may have only been fully published in English) is difficult to say however. Regardless, considering China’s sordid history of “secret arrests” going back to the 1950’s, this law, if passed could very well herald the emergence in popularity of ‘KGB’ styled action against Chinese political expression and would be a very definite step away from the human rights goals that China argues it aspires to. In-fact, if this becomes the case, it would be very illegal and would put the current CPC caucus on par with that of the the cultural revolution era government for human rights abuses and misleading sentiments.

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