MCLC: human rights should trump politics

[Denton, Kirk]

MCLC LIST
From: anne hennochowicz (annemh at alumni.upenn.edu)
Subject: human rights should trump politics
***********************************************************

Source: Duihua Foundation (Feb. 2012):
<http://www.duihuahrjournal.org/2012/02/universal-human-rights-should-trump
.html>

Universal Human Rights Should Trump the Politics of “the People”
by The Dui Hua Foundation

How much difference can two Chinese characters make to the impact of
legislation? Considerable difference, according to recent commentary by
Han Dayuan (韩大元), dean of Renmin University of China Law School, that
looks at proposed changes to the Criminal Procedure Law (CPL).

Ever since the full text of a draft CPL revision was made public in August
2011, its content has been examined closely and debated vociferously
within China. Supporters herald the legislation as a major improvement in
the protection of rights, pointing to things like facilitating the work of
criminal defense lawyers
<http://www.duihuahrjournal.org/2011/02/translation-how-three-difficulties-
of.html>, formalizing procedures aimed at excluding evidence obtained
illegally <http://www.duihua.org/hrjournal/evidence/evidence.htm>, and
establishing new procedures for juvenile offenders
<http://www.duihuahrjournal.org/2011/09/translation-amendments-to-criminal.
html>. Critics, on the other hand, have raised concerns that the revision
would greatly expand the power of investigators to abuse secret
surveillance and to detain people without notifying their family.

More than 80,000 recommendations regarding the draft amended CPL were
submitted to the National People’s Congress (NPC) Standing Committee
during a one-month period of public consultation that ended September 30.
At least some of these suggestions made their way into a second draft
<http://www.duihuahrjournal.org/2012/01/remaining-vigilant-about-criminal.h
tml> that was reviewed by the NPC Standing Committee in late December.
Now, a final draft of the legislation is slated for review by the nearly
3,000-member NPC when it meets for its annual session, scheduled to open
in less than two weeks.

Thus far, most of the discussion surrounding CPL revision has concerned
specific changes to procedures or measures added to the legislation. But
there are also many concerns about changes that haven’t been made.

For example, the drafts reviewed by the NPC Standing Committee do not
change Article 1, the statement of the legislation’s purpose: “保护人民” [to
protect the people]. Incommentary published in Legal Daily
<http://epaper.legaldaily.com.cn/fzrb/content/20120215/Articel09003GN.htm>
last week, Han Dayuan recommends changing that purpose to “保障人权” [to
protect human rights]. This change was included in each of the major
revision proposals prepared by Chinese legal scholars after CPL revision
was first placed on the legislative agenda back in 2003.

 <http://www.duihua.org/hrjournal/20120221.jpg>Professor & Dean Han
Dayuan. Photo credit:
Renmin University of China Law ShoolHan believes the change would better
reflect the spirit of China’s constitution—which was amended in 2004 to
affirm the state’s role in respecting and safeguarding human rights—and
highlight both domestically and internationally China’s existing
achievements and future goals with regard to rights protection and
rule-of-law development.

The change is also significant because in the Marxist-Leninist-Maoist
political culture of China, all references to “the people” are implicitly
exclusive of particular groups, e.g., the exploiting classes,
counterrevolutionaries, and “enemies of the people.” Removing this
political category from the CPL would imply that the rights and
protections granted therein are universal, rather than selective.

Making the protection of human rights the explicit aim of the CPL would
thus strike a symbolic blow against the kind of “dual track” criminal
justice system <http://duihua.org/wp/?p=1073> that is being fostered in
China, one in which procedural protections are extended in the majority of
criminal cases but withheld in cases deemed threatening to sociopolitical
order.

At this stage in the legislative process, a symbolic victory like an
amendment to Article 1 may be more achievable than substantial changes to
procedural provisions over which China’s law-enforcement stakeholders have
already reached consensus. And for those who have been working to more
firmly establish constitutionalism, rule of law, and human rights
protection, a symbolic victory could set new standards for future legal
reform.

Ultimately, however, the immediate impact of such a change would likely be
only symbolic. What matters more as far as the protection of human rights
is concerned is not the CPL’s programmatic principles but, rather, the
concrete procedures and measures set out therein and the extent to which
these measures are implemented. In evaluating China’s human rights
situation, actions still speak louder than words.

*

Clarify Subject in CPL Draft Amendment, Article 1
Recommend Changing “Protect the People” to “Protect Human Rights”
Han Dayuan, Legal Daily
February 15, 2012

The 5th plenary session of the 11th National People’s Congress (NPC) will
open on March 5, 2012, at which time the Draft Criminal Procedure Law
(CPL) Amendments will be deliberated. This revision of the CPL adds many
important items, including a prohibition on compulsory self-incrimination,
and emphasizes the basic principle of protecting human rights. The number
of articles that the draft adds or revises makes up around half of the
total number of articles in the current CPL.

As a basic law of the state, revision of the CPL has always received
widespread attention from all sectors of society, including legal
scholars. Among the issues discussed most often is how to properly
understand and handle the relationships between the CPL and the
constitution and between punishing crime and protecting human rights. The
basic idea behind the CPL should be adequate protection of human rights
and effective crime-fighting. The content of the CPL should sufficiently
embody the constitutional principles of protecting human rights,
[developing] rule of law, and “dividing [the] functions [of the courts,
procuratorates, and public security organs], each taking responsibility
for its own work, and coordinating their efforts and checking each other.”

Generally speaking, the first article of a law expresses the purpose of
that law, reflects its central values, and serves as a kind of summary of
its essential points. Article 1 of the CPL draft revision states: “This
law is enacted in accordance with the constitution for the purpose of
ensuring correct enforcement of the Criminal Law, punishing crimes,
protecting the people, safeguarding state- and public security and
maintaining socialist public order.” In light of the relationship between
the constitution and the CPL and based on the legislative purpose, I
recommend that “protecting the people” in Article 1 be changed to
“protecting human rights.”

Protecting Human Rights Embodies Constitutional Principles

The constitution is the founding law of the state. It carries supreme
legal force and occupies the “leading” position in the socialist legal
system wherein all laws and regulations should remain in accord with the
constitution. This is why the majority of laws all say in their first
articles: “This law is enacted in accordance with the constitution.” In
his 2004 speech in Beijing commemorating the 50th anniversary of the
establishment of the NPC, General Secretary Hu Jintao emphasized that to
rule the country in accordance with the law means first ruling the country
in accordance with the constitution and that to govern in accordance with
the law means first governing in accordance with the constitution.

In 2004, China’s constitution was revised and “the state respects and
safeguards human rights” was solemnly added to establish a national value
system and set a basic standard for all acts of public authority. As a
basic law meting out the specifics of the constitution, the CPL must obey
the values of the constitution and give expression in its conception of
values to the principles and spirit of the constitution, as well as
establish institutions that respect and implement the provisions of the
constitution. The relationship between the CPL and human rights is
especially close, with the CPL having been called the “defendant’s charter
of rights.” It should embody the requirements of the constitution and
clearly provide for “protecting human rights.”

After the constitution was revised in 2004, the enactment and revision of
laws must fully reflect the principle of protecting human rights. If the
CPL were to announce “to protect human rights” as its legislative purpose,
then it would be not only a major step forward for criminal legislation
and the administration of criminal justice but also a concrete
implementation of constitutional principles.

Though the phrase “to protect the people” that is stipulated in the
current draft is premised on expressing the law’s affinity with the
people, it is neither scientific legal terminology nor is it appropriate.
“The people” is a political concept, not a legal concept. During different
periods, the specific meaning of “the people” has varied depending on the
historical period of the nation’s development. What human rights protects
are “human beings.” Even defendants, criminal suspects, or criminal
offenders—even offenders who have been sentenced to death—all enjoy
certain human rights and there are some human rights that cannot be
stripped away. When the constitution says that the state protects human
rights, it means that the constitution protects not only the people but
protects the legitimate rights and interests of criminal offenders,
suspects, and defendants as well.

An important function of the CPL is to use procedural [norms] to safeguard
the basic rights of specific groups. If we only write “to protect the
people,” then it’s possible that other groups outside of the people will
be left out, resulting in an incomplete level of protection by the state.
Generally speaking, in the procedures of the CPL, those who are being
prosecuted are clearly in the weaker category. Their human rights are
easily infringed upon by the mighty power of state organs, and so they
rightly ought to receive fuller protection under the CPL in order to
realize the principle of all being equal before the law.

Protecting Human Rights Embodies the Spirit of International Covenants

A clear CPL provision “to protect human rights” would also help to express
the spirit of international human rights covenants. China has already
acceded to several international treaties related to criminal justice and
has signed the International Covenant on Civil and Political Rights
(ICCPR). A clear statement “to protect human rights” in Article 1 of the
CPL would help link the legislation with human rights treaties, help the
NPC Standing Committee to ratify the ICCPR, to reduce the legal and
technical problems that might be faced at the time of ratification, to
display China’s progress in rule of law, to avoid attacks by hostile
forces against our human rights situation, and to effectively uphold
China’s international image.

At the same time that we firmly establish “to protect human rights” as the
legislative purpose of the CPL, I recommend that we also change the
expression “to punish crime [and] to protect the people” to “to protect
human rights [and] to punishing crime.” Punishing crime and protecting
human rights are both of important significance, and both are goals for
the CPL to realize. But protection of human rights is fundamental, and the
goal of punishing crime is to protect human rights.

The phrase “to punish crime [and] to protect the people” carries the logic
that the people are protected by punishing crime. Once “to protect the
people” is changed to “to protect human rights,” the CPL will protect the
rights of all people as human beings, not just protect the rights of the
people from being infringed upon by criminal elements. The innocent must
also be protected from prosecution and, even more, the lawful rights and
interests of criminal suspects, defendants, and criminal offenders must be
protected.

In sum, changing “to protect the people” to “to protect human rights” will
help to embody the spirit of the constitution, to correctly reflect the
positive achievements of CPL reform, and to highlight the progress of
China’s human rights development and future goal of the development of
rule of law.