Op-Ed: New measures have been announced in China to require authorities to inform families of anyone arrested. It is a small sign of progress, but caveats in the law mean that secret arrests are sure to continue. What is the regime afraid of?
BEIJING - Wang Zhaoguo, vice chairman of the National People's Congress Standing Committee, has just submitted a much talked about revision of China's Criminal Procedure Law to the on-going Congress.
Explaining the draft to a plenary meeting of the legislative session, Wang said the revised draft will stipulate that the family of any suspect arrested or placed under house arrest must be informed within 24 hours. But there is a notable exception: in the case of those suspected of endangering national security or committing terrorist acts, the detained person's family should be informed only once the knowledge is thought to pose no impediment to the investigation.
Under the existing provisions of the law, the interpretation of "impeding the investigation" is relatively vague, and is too often used as a pretext by judicial institutions and law enforcement officers for silent detentions. The power to keep arrests secret is regularly abused, and there is no mechanism for the suspects to seek legal remedy.
That the revision will strictly define two specific conditions for an "impediment of investigation," and will rule out the legality of secret arrests in other types of cases, is a clear step forward.
Nevertheless, secret arrests are bound to remain a problem. In that first critical moment in the criminal proceedings, an arrested suspect risks being denied his right to legal remedy. It is a major threat to human rights, which can all too easily lead to a miscarriage of justice.
Over the past decade, secret detentions have been widespread in China. Torture, witness coercion, and extended detention have been used and have led to unjust trials. Demands for modifying the current law had been growing louder and louder in the weeks and months before the Congress.
If the legislature is determined to abolish the secret arrest system, but only while somehow excluding cases of "endangering state security" and "terrorist activities," the amendment will not represent much progress from the former fuzzy definition.
There are two reasons for allowing secret arrests: first, is that the investigation of one of these types of crimes needs to be conducted in secret; second, the interests of state security or social public order are of greater importance than the value of human rights.
Security for the regime
Yet in China, the accusation of endangering state security is really a way of saying endangering the regime's security. In other words, if the secret arrest of a suspected person is allowed, it means that China's political ideas and values have more respect for a regime's rights than individual human rights -- and the state is more important than the public.
However, in a truly modern country that exists under the rule of law, human rights stand at the forefront of the order of society's values.
If endangering state security or committing terrorist acts can be used as a reason for allowing secret detention, there will be endless excuses allowing the secret handling of other types of crimes, such as drug-related crimes, arms smuggling and…bribery.
If we permit secret detention, then a law enforcement agency can always place the hat of a suspected terrorist on an arrested person.
Known as the "mini-constitution," the core issue in modifying the Criminal Procedure Law is to implement the "respect and protection of human rights' as written in the constitution. It is a law that involves holding the citizen criminally accountable, and ultimately defines whether one can be legally deprived of freedom, property or even one's life.
Generally speaking, the accused is the vulnerable party. Even the slightest miscarriage can lead to their basic rights being violated, a wrongful trial or wrongful captivity.
To protect suspects and defendants is in fact to protect the entire public.
We believe that exposing all judicial proceedings to the bright light of the sun will not cause the sky to fall upon us, but will actually guide our society to the place where it may be illuminated by the rule of law and the supremacy of human rights.
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Photo - dbaron