Procedural justice

Updated: 2011-08-25 07:39

(China Daily)

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MORE THAN ONE-FIFTH OF THE CLAUSES IN THE current Criminal Procedure Law are subject to revision in its updated version now under scrutiny by the Standing Committee of the National People's Congress (NPC).

The second major revision of the 1979 law, which aims to ensure the accurate and prompt ascertainment of the facts of crimes, involves suspects' rights while in police custody, the obligations of witnesses and their protection, evidence collection and confessions, a death penalty review and a lot more.

Once approved - though any revised draft approved by the NPC Standing Committee will have to be examined and passed by the full session of the NPC in March - the changes will amount to another milestone in Chinese jurisprudence.

Much of the media attention has focused on and around self-incrimination.

In contemporary Chinese law and judicial practice, criminal suspects are obligated to confess their offenses. Article 93 of the Criminal Procedure Law stipulates: "The criminal suspect should truthfully confess his/her offense."

At the same time, family members and close relatives share a legal burden to testify against suspects. According to Article 48, "all people with knowledge about the case have an obligation to testify", which means the suspect's family risk being convicted of the crime of shielding an offender and a jail term if they don't testify against the accused.

Such stipulations are undoubtedly conducive to judicial efficiency - the reliance and emphasis on suspect confessions and testimonies by their close relatives can substantially reduce the court's need to collect evidence - but the damage they have done is tremendous. Besides tearing apart the moral bonds that bind families together, they provide a hotbed for torture in detention centers.

The revised draft, while placing a heavier duty on witnesses to appear in court and testify, excludes the spouse, parents and children of the suspect. Except for cases that seriously undermine State security and those in the public interest, the suspect's close relatives can refuse to testify.

In the meantime, the suspect is relieved of the legal obligation to admit his guilt.

The rewritten rulebook carries high hopes for the elimination of any legal grounds for torture. We are not sure to what extent that will be the case, but its boost to the suspect's due rights will be substantive.

Since the new procedure shifts the focus onto physical evidence, the judiciary's responsibility to collect evidence will be considerably greater, which will inevitably result in longer and complicated court proceedings. This has and will remain the main source of resistance against the revision.

But for justice's sake, such a price is necessary.

That is why we wish the draft revision bon voyage through its current review, and the one in March.

(China Daily 08/25/2011 page8)