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Proposed legal changes a return to humane Chinese values
By Wan Lixin |
August 29, 2011, Monday
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Print Edition
Print Edition
CHINA'S National People's Congress is considering some changes to the current Criminal Procedure Law, 15 years after the first revision in 1996.
Among the proposed changes are a suspect's right to remain silent while in police custody, and the right of spouses, children and parents not to inform or testify against a suspect.
Legal expert Chen Guangzhong believed that these changes, if adopted, would represent "a milestone in the development of China's criminal procedures."
We can see in photos that some criminal suspects are being interrogated in rooms with a stern injunction written on the walls: tanbai congkuan, kangju congyan meaning "leniency to those who confess their crimes and severity to those who refuse to."
In order to extract a confession from a suspect, torture is sometimes applied, and suspects sometimes are forced to confess to false charges.
Cases of wrong abound. Zhao Zuohai, a peasant in Shangqiu, Henan Province, was accused of murdering a fellow villager in 1999 and sentenced to death with a two-year reprieve in 2002.
Last April the villager who was supposed to be dead turned up, and Zhao was cleared of the charge, after 11 years of imprisonment.
Such mistakes can be attributed to two circumstances.
First, under current law, criminal suspects are obligated to confess their offenses, and second, legal authorities are under tremendous pressure to quickly identify suspects of serious crimes.
The rights of a suspect to remain silent while in custody and to have early access to lawyers would somewhat mitigate the problem.
Family bond
Another important revision is the proposal that family members (parents, children, and spouses) could be exempt from their current obligation to inform or testify against suspects.
Under existing law, family members who refuse to testify risk being charged with shielding a criminal, which can lead to imprisonment.
In some cases of theft, it is not rare that six or eight relatives could be locked up just for hiding a suspect.
A mother reportedly received three years' imprisonment with a reprieve for giving her murder-suspect son some clothes and money.
Critics say that testifying against one's own family members violates the first principle of Chinese values that center on familial care and loyalty.
Traditional Chinese values dictate that, instead of informing against one's family members, one has an obligation to shield them from exposure.
This revision is widely considered to be a welcome return to humanity.
How to reconcile humane considerations with law has always been a tough issue.
This difficulty basically reflects the limitations of law. The current legal system is basically a modern, Western invention.
Beyond the law
China's last Confucian Liang Shu-ming observed in the 1980s that in medieval times Westerners were kept in place by fear of God, and in modern times, they are kept in order by fear of Law.
But ancient Chinese sages have long gone beyond that.
The Confucian canon, the Analects, points out that "Govern the people by regulations, keep order among them by the law, and they may obey the law, but lose all self-respect. Govern them by moral force, keep order among them by ritual and they will keep their self-respect and come to you of their own accord."
Another modern Confucian scholar Chien Mu also observed that "a society that has lost its zhong (loyalty to the superiors) and xin (keeping of promises) will end in disorder, which can be remedied with nothing except the 'rule of law'."
Traditionally a Chinese marriage is a ritual sustained by a promise, a set of obligations, and a lifelong commitment.
In recent years it has degenerated into a legal process, or a legal understanding about division of property in the case of divorce.
The latest enthusiasm over the legal provision about the ownership of pre-marriage housing is a sure sign of this degeneration, rather than social progress.
The proposed revisions to the legal procedures are informed by a recognition that there are values higher than the mere requirements of the law.
The many ills we see today are a result of general moral decay, rather than lack of law.
Among the proposed changes are a suspect's right to remain silent while in police custody, and the right of spouses, children and parents not to inform or testify against a suspect.
Legal expert Chen Guangzhong believed that these changes, if adopted, would represent "a milestone in the development of China's criminal procedures."
We can see in photos that some criminal suspects are being interrogated in rooms with a stern injunction written on the walls: tanbai congkuan, kangju congyan meaning "leniency to those who confess their crimes and severity to those who refuse to."
In order to extract a confession from a suspect, torture is sometimes applied, and suspects sometimes are forced to confess to false charges.
Cases of wrong abound. Zhao Zuohai, a peasant in Shangqiu, Henan Province, was accused of murdering a fellow villager in 1999 and sentenced to death with a two-year reprieve in 2002.
Last April the villager who was supposed to be dead turned up, and Zhao was cleared of the charge, after 11 years of imprisonment.
Such mistakes can be attributed to two circumstances.
First, under current law, criminal suspects are obligated to confess their offenses, and second, legal authorities are under tremendous pressure to quickly identify suspects of serious crimes.
The rights of a suspect to remain silent while in custody and to have early access to lawyers would somewhat mitigate the problem.
Family bond
Another important revision is the proposal that family members (parents, children, and spouses) could be exempt from their current obligation to inform or testify against suspects.
Under existing law, family members who refuse to testify risk being charged with shielding a criminal, which can lead to imprisonment.
In some cases of theft, it is not rare that six or eight relatives could be locked up just for hiding a suspect.
A mother reportedly received three years' imprisonment with a reprieve for giving her murder-suspect son some clothes and money.
Critics say that testifying against one's own family members violates the first principle of Chinese values that center on familial care and loyalty.
Traditional Chinese values dictate that, instead of informing against one's family members, one has an obligation to shield them from exposure.
This revision is widely considered to be a welcome return to humanity.
How to reconcile humane considerations with law has always been a tough issue.
This difficulty basically reflects the limitations of law. The current legal system is basically a modern, Western invention.
Beyond the law
China's last Confucian Liang Shu-ming observed in the 1980s that in medieval times Westerners were kept in place by fear of God, and in modern times, they are kept in order by fear of Law.
But ancient Chinese sages have long gone beyond that.
The Confucian canon, the Analects, points out that "Govern the people by regulations, keep order among them by the law, and they may obey the law, but lose all self-respect. Govern them by moral force, keep order among them by ritual and they will keep their self-respect and come to you of their own accord."
Another modern Confucian scholar Chien Mu also observed that "a society that has lost its zhong (loyalty to the superiors) and xin (keeping of promises) will end in disorder, which can be remedied with nothing except the 'rule of law'."
Traditionally a Chinese marriage is a ritual sustained by a promise, a set of obligations, and a lifelong commitment.
In recent years it has degenerated into a legal process, or a legal understanding about division of property in the case of divorce.
The latest enthusiasm over the legal provision about the ownership of pre-marriage housing is a sure sign of this degeneration, rather than social progress.
The proposed revisions to the legal procedures are informed by a recognition that there are values higher than the mere requirements of the law.
The many ills we see today are a result of general moral decay, rather than lack of law.
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