Foreword: Lawlessness in China
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Although China has made great strides in erecting a formal legal system on the wreckage of the Cultural Revolution, there is widespread agreement that implementation has lagged far behind lawmaking. Thus, inevitably, one of the obvious themes that emerges from this important book is the extent of lawlessness in China. Lawlessness can take many forms. Under the leadership of the Communist Party's political-legal commissions that operate at every level of government, the police have mastered the range of lawless black arts, and the procuracy (prosecutors' office) and the courts have too often proved accommodating. The nation's “law enforcement” agencies, in plain view of the National People's Congress and the country's lawyers and law professors, have even stood on their head key provisions of major legislation designed to protect the rights of criminal suspects and defendants. How long, for example, can police detain a suspect before seeking the procuracy's approval of an arrest? The 1996 Criminal Procedural Law (CPL) in most cases gave police only three days. In certain circumstances they were allowed four more days, and in only three relatively rare instances were they permitted to hold the suspect for as long as 30 days before requesting procuracy approval. Yet in practice the police turned the rare exceptions into the rule by taking up to 30 days in every case, and no legislator, lawyer, prosecutor or judge has been able to cure this distorted application of the law. Similarly, the 1996 CPL provided for witnesses to testify in open court against an accused and subjected them to cross-examination by the defense, an immensely significant reform in principle. During 16 years of practice under the 1996 CPL, however, witnesses almost never appeared at trial, so the newly-enshrined right of cross-examination usually proved worthless. The illegal 2011 confinement of the celebrated artist/activist Ai Weiwei for 81 days of incommunicado “residential surveillance”—not in his residence but in a police facility—is a notorious illustration of how law enforcement twists the law. Ai's detention not only violated the CPL but even a published rule of the Ministry of Public Security that warned its subordinates not to convert authorized “house arrest” into unauthorized police detention. Will the newly-revised CPL that went into effect January 1, 2013, fare any better? One of its most controversial sections now authorizes the public security agency to detain persons incommunicado for up to six months of “residential surveillance”—in police custody, not at home-if they are suspected of terrorism, endangering national security or major corruption. How broadly will the police, including the secret police of the Ministry of State Security, define these three legislated exceptions to the demands of ordinary criminal procedure? Will the exceptions once again defeat the rules? Will the procuracy, which in the system the People's Republic imported from the Soviet Union is supposed to be the “watchdog of legality,” effectively monitor the exercise of police discretion? Under the new CPL will the judiciary develop into an institution for controlling police and prosecutorial misconduct? Until now, the courts, of course, have often had difficulty fairly applying the CPL in what has been their relatively narrow bailiwick—the criminal trial. Party interference, corruption, local protectionism and social networks have all led to distorted applications of the law. Farcical trials have been legion, especially in cases deemed “sensitive” for a variety of reasons. Yet the new CPL for the first time provides opportunity for the courts to review the legality of pre-trial police and prosecutorial investigative practices, including endemic use of torture to obtain confessions during interrogation of suspects. It remains to be seen how judges will interpret the new rules allowing them to summon investigators to court in instances where there are indications of coerced confessions and to exclude from the evidence illegally-obtained statements. To be sure, good faith interpretation of the CPL is not the only challenge presented by lawlessness to China's criminal justice system. In practice, in a perceived crisis, the CPL has in effect been suspended wholesale as well as in individual cases. In such instances the functional division of labor and checks and balances called for by the CPL since its first enactment in 1979 are ignored. Police, prosecutors and judges, in conjunction with other government and Communist Party officials, are then expected to act like “a single fist” in carrying out investigation, prosecution and criminal punishment. On some occasions, when local law enforcement cannot be trusted by the central government, central authorities organize and dispatch law enforcement work teams from Beijing to jointly dispense criminal justice in the troubled area.
Source Publication
In the Shadow of the Rising Dragon: Stories of Repression in the New China
Source Editors/Authors
Xu Youyu, Hua Ze
Publication Date
2013
Recommended Citation
Cohen, Jerome A., "Foreword: Lawlessness in China" (2013). Faculty Chapters. 1149.
https://gretchen.law.nyu.edu/fac-chapt/1149
