((Disclaimer: After I first wrote this article and posted on the evening of March 7 there were several developments. The Revised Text for the New Criminal Procedure Law was made public. At 10:31am on March 8, 2012 Nicholas Bequelin of Human Rights Watch Tweeted: Breaking News: “Disappearance clause” stricken out of revisions to the Criminal Procedure Law. A significant victory for legal reformers…” Carrying on the conversation Bequelin later tweeted: “What was particularly worrisome with the “disappearance clause” was the power to detain suspects OUTSIDE of formal detention places.” Joshua Rosenzweig of Siweiluozi Blog responded, “@Bequelin Police will be able to detain people outside of formal detention centers; but they won’t be able to do so without notifying anyone.” However, all this effectively means is that the new law is not granting the Public Security Bureau with greater freedoms and power of detention; it does not legalize what is already an extensive system of arbitrary detention and abuse as some feared. There are still a number of lingering questions and concerns. However, if these changes are true then it would appear that the drafters have at least honestly responded to public criticism, in the wording of the text at least, which is certainly a positive step.
Whereas the initial intent behind this blog entry was to offer a new look at an open letter in criticism of this very clause, now that it has reportedly been removed from the final version this blog entry will hopefully serve to remind those of us who have not been following this process as closely why this was such a ‘significant victory for legal reformers…’ and their families. I also hope that it will help to illuminate some of the difficulties facing dissidents and rights defenders in China for those with less background.))
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This week at the National People’s Congress the much anticipated, much debated, revised Criminal Procedure Law (CPL) will be made public. This is the legal document most responsible for establishing the rights of criminal suspects, including dissidents accused of political crimes, and delimiting the powers of the police. For these reasons the contents, both the purportedly unequivocal printed text and the ambiguities of interpretation, will be the principle guiding legal standard for the vast majority of China’s legal system in the years to come; the revision under discussion is the first thorough reworking of the law since 1996.
One of China’s most famous dissidents, the internationally renowned artist Ai Weiwei, was disappeared earlier this year, prompting almost immediate international attention. Many fear that if certain sections of the draft CPL are made into law it would institutionalize the types of abuses suffered by Ai Weiwei and countless others, most without an international advocacy network, who end up languishing for years shunted about from one facility to another, in and out of contact with their loved ones.
Back in September Ai Weiwei’s wife, Lu Qing, sent a letter to the Law Committee of the National People’s Congress (NPC) Standing Committee to request further deliberation by the NPC concerning the draft Criminal Procedure Law. Her contention with the draft legislation, as has been discussed elsewhere (See China Geeks, Siweiluozi Blog), was with a number of articles that afford the police the right to carry out residential surveillance and detain a suspect without the need to notify their family if the suspect is deemed, by the police, to represent a threat to national security. The problem with these articles is that they provide for the police to not only carry out residential surveillance at the suspect’s residence but to move the suspect to a designated location, outside of a residence, detention facility, or police station, when the situation is deemed sensitive for purposes of terrorism, cases endangering state security, or large scale corruption. In such cases the police are not required to notify anyone of the suspects whereabouts. Under the draft law, this condition of enforced disappearance can carry on for up to six months. Human Rights Watch has noted, “Disappeared’ people are often at high risk of torture, a risk even greater when they are detained outside of formal detention facilities such as prisons and police stations.” Nicholas Bequelin, senior Asia division researcher for Human Rights Watch has pointed out that if this provision in the draft CPL is written into law it would only legitimize what is currently an illegal practice.
In her letter Lu demands that the draft CPL should constrain and monitor police power, rather than legitimize arbitrary and extralegal activities. Only in this way, she states, can citizens be protected by the law, and exercise their fundamental human rights. Lu Qing’s letter was mailed and published on Ai Weiwei’s Google+ account during the designated 30 day period (August 30-September 30) for public commentary invited by the drafters of the new law. The very fact of calling on public commentary in the drafting process of a new law has received considerable attention; Elizabeth M. Lynch of China Law and Policy has an interesting analysis.
Now, as the likely unveiling of the new law draws near, Lu’s comments are worth revisiting. Below is a rough (my apologies) translation of Lu Qing’s open letter. The letter is also available, in Chinese, following the English translation or on the Human Rights in China Website, here. It first appeared on the HRIC Website on 28 September 2011.
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Opinions on the Draft Criminal Procedure Law of the People’s Republic of China
Law Committee of the National People’s Congress Standing Committee:
As a Chinese citizen, I recognize that the Standing Committee of the National People’s Congress is in the process of soliciting public commentary on the revised draft of the Criminal Procedure Law of the People’s Republic of China. Included in the revised law is Article 30, which affords the Public Security Bureau the ability to place a suspect in residential surveillance without notifying their family members in special circumstances, and articles 36 and 39, which stipulate that the Public Security Bureau can carry out detention or arrest without notifying family members. This will make basic protection of Chinese citizen’s rights impossible. Where residential surveillance can turn into secret detentions it is a clear violation of the constitution. I request that the National People’s Congress consider not passing the amendments to articles 30, 36, and 39. It should be clear that regardless of who the Public Security Bureau detains, arrests, places under residential surveillance or any other form of coercive measure, their family should be notified within the legal time period.
My name is Lu Qing. I am a Chinese citizen. My husband, Ai Weiwei, the artist, architect, active member of civil society, and curator at Fake Cultural Development Limited, was taken from customs at the Beijing International Airport on April 3 as he was preparing to leave. After this he was missing for as long as 81 days. We receive no official or formal information, no notice of why he was taken, where he was being held, or his physical condition.
Friends and relatives were all very worried because of his unknown whereabouts. We were worried and angry. Ai Weiwei’s 80 year old mother was so worried that she was unable to sleep for nights on end, and forced to take medications to maintain her health, suffering extreme psychological duress. We asked everywhere, frantically inquiring about his whereabouts, reporting him missing to the local police. We sent letters to the Beijing Public Security Bureau, the Procuratorate, The Political and Law Commission, the Discipline Inspection Commission, and the Ministry of Public Security. We received no answers. These 81 days of Ai Weiwei’s disappearance caused immense physical and psychological injury to our family.
On June 22 Ai Weiwei was released on bail and returned to his family. We never received formal documents from the Public Security Bureau after he was taken away. After he was taken away he was required to sign a so-called residential surveillance notice but he was held at a secret location on the outskirts of Beijing.
When a citizen is taken into police custody, providing some kind of notification to the family concerning their whereabouts is a basic right. Family members are not accomplices and should have the right to know. When a society fails to protect even one citizen’s fundamental rights, the whole society is injured.
A civilized country ought to respect the fundamental rights of its people. If the above mentioned articles are passed into law, it will cause a serious regression in China’s legal system, human rights will suffer, and it will obstruct the course of our civilization. I hope that this amendment to the Criminal Procedure Law will restrain arbitrary enforcement by the Public Security Bureau, and provide citizens with legal protection, to genuinely achieve fundamental human rights as they are enshrined in the Chinese Constitution.
Opinion: Lu Qing
September 28, 2011
对《中华人民共和国刑事诉讼法修正案（草案）》的意见
全国人大常委会法制工作委员会：
我 作为一名中国公民，看到全国人大常委会正在公开征求《中华人民共和国刑事诉讼法》修订草案的意见，其中，《修正案》“第30条”规定了公安机关可给嫌疑人 指定监视居住地点，不通知家属的特殊排除条款；《修正案》“第36条”、“第39条”规定了公安机关采取拘留、逮捕措施可以不通知家属的特殊排除条款；使 中国公民人身权利无法得到最基本的保障，使监视居住变成了秘密关押，公然违反宪法。我要求全国人大审议时，对修正案第30条、36条、39条中特殊排除条 款不予通过，明确公安机关对任何公民采取拘留、逮捕或监视居住等强制措施时，都应当在法定时间内不加区别地通知到家属。
我叫路青，中国公民，画家，我的先生艾未未，一位艺术家，建筑师，公民社会的参与者，发课文化发展有限公司设计师，今年4月3日在出北京首都机场海关时被带走，失踪长达81天，我们没有收到官方的任何手续，不知道他为什么被抓，被关在哪里，身体状况如何。
亲 人朋友都为他的下落不明焦虑、担忧和愤怒。艾未未的母亲，八十多岁，为此日夜担心，寝食难安，只能用药物来控制身体健康，精神上遭到巨大的折磨，家人四处 打听，到他的失踪地点备案，到居住地及户籍所在地派出所报案，写寻人启事，向北京市公安局、检察院、政法委、纪委和公安部写信，都没有任何答复。艾未未 81天失踪给家人带来了巨大的身心伤害。
6月22日艾未未先生以“取保候审”名义回到家中，我们是没有得到任何公安机关的手续，他被公安机关带走后，曾被要求签署了一份所谓的“监视居住”的通知书，被关押在北京郊区一个秘密的地点。
一个公民被公安机关带走，给家属一个通知是对公民最基本人权的尊重。家属不是同案犯，应当有知情权。当社会失去了对一个公民的基本权利的保护，整个社会也受到伤害。
一个文明的国家，应当尊重人的最基本的权利。如果上述条款得以通过，是中国法制的倒退，是人权的恶化，阻碍了我们文明进程。我希望本次刑事诉讼法修正案能限制公安机关执法的任意性，使公民在公权力面前得到法律的保护，真正实现宪法中所体现的基本人权。
意见人：路青
二○一一年九月二十八日
michaelcaster 