Thursday, 8 March 2012

A Step Towards Legal Fairness

China is getting one thing right.

Today it abandoned plans to make it legal to "disappear" what it feels are criminals or critics of the state.

There were fears that if this legislation was passed, it would give the authorities no need to justify holding people without letting their family and friends know where they were.

One of the most recent and best-known examples was artist and activist Ai Weiwei last year who was detained in an unknown location for over two months and held without charge. He was finally released in June after his family didn't know where he was.

"The removal of the disappearance clause is a victory for legal reformers in China and a defeat of the security apparatus' attempt to further cement its power," said Nicholas Bequelin, a researcher at Human Rights Watch.

"If they hold you in a police station or prison, it's not good. But it's still very different from being kidnapped in the middle of the night, and put in a guesthouse somewhere and kept there for months."

There are currently three ways to detain suspects before their trial -- formal arrest, detention and residential surveillance at home or other places.

Critics say the last option is the least formal because suspects are held in places like guesthouses or hotels where the police may feel like they have free rein to inflict torture, whereas the first two are formal areas and families know their loved ones are held there.

The final draft of the amended law says the authorities must inform family members the suspect is being held under residential surveillance in an undisclosed location within 24 hours regardless of the alleged crime.

The original clause stipulated this as well, but waived it in cases of terrorism, or national security, when notifying the family could "obstruct the investigation".

Chen Guangzhong, chairman of the China Legal Society who has followed legal amendments closely, said the removal of this clause was "big progress".

"I think this is a good sign, it shows our legislative bodies -- when integrating China's actual situation into their laws -- can also listen to other, different ideas. That type of progress is not at all easy," he said.

However, in cases of detentions, which are different from residential surveillance, police do not need to notify the family within 24 hours when it comes to terrorism or national security cases.

Nevertheless, while the change is good, it will only be proven so when implemented.

"It is too soon to tell whether this will be the case," Bequelin said. "For years the Public Security has routinely ignored, with almost complete impunity, the procedural protections that were already in the law."

We shall see if Beijing is sincere about implementing this new change -- and more importantly -- that all law enforcement agencies and authorities know about it.

While we are cautiously optimistic, it's no good promising things on paper and yet things are still the same.

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