For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.
-->Perspective Study from Criminal Procedure Code to Modify Constitution (Part II)
The protection of personal freedom should be the top priority of Criminal Procedure Code
September 28, 2011
In this paper, so-called personal freedoms (个人自由; 人身自由) or the inviolability of the person (人身不可侵犯權) in a narrow sense, refers to the individual’s autonomy, or transfers the body of rights and freedoms.
In the past, some agencies and personnel have said that the right to life is the primary human right; however there is no constitutional basis for this political discourse. In the eyes of the Constitution, personal freedom is the primary human right, because personal freedom is what citizens enjoy. Historically, when the Criminal Procedure Code came into being, the main reason for its creation was to protect the primary human right of personal freedom.
1. Personal freedom has always been the primary human right protected by the Constitution
With regard to the content on personal freedom, the provisions of the constitutions of various countries are not identical. But there is one thing that is the same across these constitutions. Since the concept of personal freedom was incorporated into constitutions, they have been focused upon the protection of this fundamental right.
This paper references several representative constitutions or constitutions similar to the Chinese Constitution to help readers understand the fundamental position and meaning of of personal freedom within basic constitutional rights:
In British constitutional law, the 1215 Magna Carta limited public power and set the first precedent for the protection of personal freedom. Article 39 of Magna Carta provides: “No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.” The provisions of the 1676 Habeas Corpus Act provided that any person detained can ask the courts to review the legality of their detention and acquire a prompt decision on the issuance of a writ of habeas corpus. The writ of habeas corpus is a warrant issued by a judge under common law that commands that a person in custody by delivered before the court to determine the legality of the detention. Review and issuance of the writ of habeas corpus happens regardless of day or night or holidays. Officials who defy the writ of habeas corpus will be subject to heavy fines or removed from office. The writ of habeas corpus is a basic constitutional institution of the Anglo-American common law tradition meant to protect personal freedom.
Articles 5 and 7 of the 1789 French Declaration of the Rights of Man, respectively, provides: “Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law; No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.”
Article 114 of the 1919 Weimar Constitution provides: “The rights of the individual are inviolable. Limitation or deprivation of individual liberty is admissible only if based on laws. Persons deprived of their liberty have to be notified, at the next day on the latest, by which authority and based on which reasons the deprivation of their liberty has been ordered; immediately they have to be given the opportunity to protest against the deprivation of liberty.”
Article 22 and the first paragraph of Article 47 of the 1993 Russian Constitution provides: “Everyone shall have the right to freedom and personal inviolability”; “Arrest, detention and keeping in custody shall be allowed only by an order of a court of law. No person may be detained for more than 48 hours without an order of a court of law”; “No one may be denied the right to having his or her case reviewed by the court and the judge under whose jurisdiction the given case falls under the law.”
Article 8 of the 1946 Constitution of the Republic of China provides: “Personal freedom shall be guaranteed to the people. Except in case of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with the procedure prescribed by law. No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial, or punishment which is not in accordance with the procedure prescribed by law may be resisted. When a person is arrested or detained on suspicion of having committed a crime, the organ making the arrest or detention shall in writing inform the said person, and his designated relative or friend, of the grounds for his arrest or detention, and shall, within 24 hours, turn him over to a competent court for trial. The said person, or any other person, may petition the competent court that a writ be served within 24 hours on the organ making the arrest for the surrender of the said person for trial. The court shall not reject the petition mentioned in the preceding paragraph, nor shall it order the organ concerned to make an investigation and report first. The organ concerned shall not refuse to execute, or delay in executing, the writ of the court for the surrender of the said person for trial. When a person is unlawfully arrested or detained by any organ, he or any other person may petition the court for an investigation. The court shall not reject such a petition, and shall, within 24 hours, investigate the action of the organ concerned and deal with the matter in accordance with law.”
Personal freedom has always been a constitutionally protected human right, which is shown very clearly from the more than two hundred years of history.
From a global perspective, all of content of the personal freedom guarantees of the Constitution within a country or region governed by the rule of law has the following three points:
1. The goal is to prevent strong public departments from abusing their power to limit or deprive citizens’ freedom.
2. Its main spirit is to stress that outside of the courts and judges, no organization or individual has the right to restrict or deprive individuals of their civil rights. Therefore, this freedom guarantee requires that only the court be allowed to take citizens into custody. For when a citizen is arrested without first being approved by the court than the court should immediately review the detention and should determine whether the arrest was reasonable. Usually, this time frame should not exceed 24 to 48 hours.
3. Restrictions on or deprivation of an individual’s liberty must be done in accordance with the law and must not be based on any precedents outside of the law, rules or normative documents.
4. Deprivation or restriction of personal freedoms in accordance with the laws must conform with the Constitution, otherwise they will be deemed as unconstitutional and invalid.
2. Recognizing that the legislative intent of the current Criminal Procedure Law and its draft amendments deviates from the Constitution
The adoption of China’s current Constitution, promulgated in 1982, was the sum total of up the lessons and experiences of before and during the Cultural Revolution where public authorities brazenly trampled over personal freedoms and other fundamental rights of citizens. With a later revision, the Constitution now protects the citizens’ right of personal freedom. Article 37 of the Constitution provides: “The freedom of person of citizens of the People’s Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens’ freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited.” In the March 14, 2004 Second Meeting of the Tenth National People’s Congress, the 24th Amendment of the Constitution and added the phrase “the state respects and safeguards human rights” to Article 33.
Based on the general principles of fundamental rights and the Article 8, Item 5 of the Legislative Act on the “deprivation of civil and political rights and restriction of personal freedom through compulsory measures and penalties” items and the “only can make laws” provisions mean that the understanding of the terminology of Article 37 of the current Constitution should be: the meaning of “immunity from arrest” is that personal freedom is not to be restricted; “illegal” means that there is no legal basis or it is a violation of the law with the “law” referring to generally binding normative documents formulated by the National People’s Congress or its Standing Committees, but does not include legal documents such as administrative regulations, local laws and regulations, and so on. It should be noted here that China’s Constitution’s protection of personal freedoms does not emphasize, in the event that a public institution, as a last resort, violate citizens’ personal freedoms, the time frame that the legality of such behavior is to reviewed by the courts or a writ of habeas corpus. This is a deficiency that exists within our Constitution’s protection of personal freedom. According to the principle of the Constitution, the personal freedom of citizens facing restrictions and disruptions by a public authority should be directly and clearly protected by the Constitution, and should not be left to the Criminal Procedure Code to protect.
The Criminal Procedure Code of any country governed by the rule of law or constitutional country should protect citizens’ personal freedom as their fundamental purpose. Whether from the point of view of the Constitution or the requirements of building a country governed by the rule of law, it goes without saying that purpose of any other legislative discussion makes no sense. Some people say that China’s Criminal Procedure Code should weigh both responsibilities of punishing crime and protecting human rights, but this view shows a lack of awareness of the needs of human rights protection and also has no constitutional basis. To speak of criminal procedural law legislation’s fundamental purpose to protect citizen’s personal freedom is based on the terms of the constitutional guarantee of personal freedom and human rights. Where is the constitutional basis of putting punishing crime and protecting human rights on the same level? Is there a country governed by the rule of law that does this? The Constitution is the highest law in effect. Legal scholars, standing on the basic point of the Constitution to speak, should not be defending any legal provisions for the detachment or violation of provisions or spirit of the Constitution.
Protection of human rights and fighting against crime should not be compared and equated. Rather the relationship is one between the ends and the means. If you do not understand this simple fact, then we will not be able to understand why the law that meant to keep up the intensity of the fight against crime is actually synonymous with the exercise to limit the strength of citizens’ personal freedoms, is two sides of the same coin.
Article 1 of China’s existing Criminal Procedure Code was originally detached from the constitutional provisions of personal freedom such as fundamental rights and protection of human rights. The draft of the latest amendment keeps the existing language without making any changes and in fact maintains the detachment of the Criminal Procedure Code from the existing Constitution. As a result, the before and after of the amendment of Article 1 of the Criminal Procedure Code as the legislative purpose can be thus explained: “In order to ensure the correct implementation of the criminal code, to punish crime, to protect the people, to protect national security and public safety, maintain the socialist social order, under the Constitution, this law is enacted.” In my opinion, the legislative intent of the Criminal Procedure Code departs from the provisions and spirit of the fundamental rights recognized in the Constitution and the protection of human rights:
1. The legislative purpose of the Criminal Procedure Code is to fight crime and protect state power. This reminds me of Article 1 of the 1979 Criminal Procedure Code: “The Criminal Law of the People’s Republic of China, which takes Marxism-Leninism-Mao Zedong Thought as its guide and the Constitution as its basis, is formulated in accordance with the policy of combining punishment with leniency and in the light of the actual circumstances and concrete experiences of the people of all China’s nationalities in carrying out the people’s democratic dictatorship, led by the proletariat and based on the worker-peasant alliance, that is, the dictatorship of the proletariat, and in conducting the socialist revolution and socialist construction.” From this, one can see the image of the Criminal Procedure Code leaping off the paper for the purpose of protecting state power. The above-mentioned 1996 Criminal Procedure Code diluted the provisions of the protection of state power, but the actual protection has not changed, in that it is still protecting state power and not personal freedom and other fundamental rights and human rights. What is puzzling is that the amendment of the code has once again returned to its original formulation.
2. In fact, the original Criminal Procedure Code and the publicized amendment of the code do not mention the citizens’ fundamental rights or focus upon the protection of citizens’ personal freedoms. Within the “In order to ensure the correct implementation of the criminal code, to punish crime, to protect the people, to protect national security and public safety, maintain the socialist social order, under the Constitution, this law is enacted,” where are the characters for citizen, where are the characters for basic civil rights, personal freedoms or human rights?
Some people may say that isn’t there a phrase, “to protect the people”? Does protecting the people not include the protection of citizens’ personal freedoms and other fundamental rights or basic human rights? No, no! Such an interpretation is absolutely wrong! Even though in the history of the Chinese Constitution that “people” has been treated synonymously with citizens, but that is contrary to the Constitution. Now in Mainland China, we have completely abandoned the use of the term “people” when referring to “citizens.” Moreover, the “people” referred to in the original Criminal Procedure Code and the current draft amendments by no means refers to an individual citizen. Here I would like to draw the readers’ attention to two points:
i. The people are an aggregation. From the political point of view, the people in China and in other countries are represented by the ruling party, state power and the government. Therefore, protecting the people is the same as protecting the ruling party’s ruling status, the protection of state power and the protection of government.
ii. After the fall of the Iron Curtain, In the former Soviet controlled governments of Eastern Europe, all of them were quick to remove “people” from their official national name because, as mentioned above, people had become synonymous with the ruling party, state power and with the government.
3. The “people” are a political concept relative to the concept of “enemy.” Rules to protect the “people” creates a situation where “enemies” are placed outside of the protection of criminal proceedings. Therefore, “protect the people” is directly in conflict with Article 33 of the Constitution. Article 33 reads: “All persons holding the nationality of the People’s Republic of China are citizens of the People’s Republic of China. All citizens of the People’s Republic of China are equal before the law. Every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law.” Here, I must once again express the view in constitutional textbooks: “The law openly reveals that the protection of the group of nationals that politically belongs to the group ‘people,’ with all other nationals being treated as ‘enemies’ outside of the scope of legal protection. This is a very outdated and uncivilized law concept.”
To make the legislative intent of China Criminal Procedure Code in line with the provisions and spirit of the Constitution to protect citizens’ fundamental rights, you must amend Article 1 of the Criminal Procedure Code; otherwise both will continue to be out of touch and in a state of discord. That the legislative intent of the Criminal Procedure Code deviates from the requirements of basic constitutional rights and protection of human rights is the root of why the implementation of the current Criminal Procedure Code cannot effectively protect legislation for citizens’ personal freedoms. This issue must be eliminated in the current attempts to amend the code. We should consider changing the language of Article 1 to: “In order to protect citizens’ personal freedom and other fundamental rights and other basic human rights, the protection of national security and public safety, maintain the socialist social order, under the Constitution, this Law is enacted.”
Incidentally, the current criminal procedure codes of countries governed by the rule of law generally do not explicitly express their legislative purpose, but are in fact for the purpose of legislation to protect citizens’ personal freedom and other basic rights. However, there are some cases where the legislative purpose is clearly stated in the criminal procedure code, such as the 1948 Japanese Criminal Procedure Code.
3. The designated duty of the current Criminal Procedure Code and its proposed amendments also deviates from the Constitution
The provision that allows the Criminal Procedure Code to set its own duties is one of the provisions that are very close to the Constitution. Article 2 of the 1979 Criminal Procedure Code provides: “The duties of the Criminal Law of the People’s Republic of China are to ensure accurate and timely ascertainment of facts of the crime, correct application of law, punishment of criminals, to protect innocent people from criminal liability, educate citizens to voluntarily abide by the law, and actively struggle with criminal acts , to safeguard the socialist legal system, to protect citizens’ personal rights, democratic rights and other rights, and to safeguard the smooth progress of the cause of the socialist revolution and socialist construction.” It seems that this provision references and absorbs the contents of the 1958 Soviet Union and Soviet Republics Criminal Proceedings Outline, inheriting both the advantages and disadvantages of this legal document.
When amending the Criminal Procedure Code in 1996, no changes were made to Article 2. In autumn of 2011, the publicized draft amendments to the code also did not make any changes. For 32 years, the duties of the Criminal Procedure Code have not been changed. What does this mean? I think that, at the very least, it shows the following:
1. When the Criminal Procedure Code was promulgated in 1979, the current Constitution had not yet been written. Therefore, its self-determined duties cannot be based on the current Constitution, but instead on the 1978 Constitution.4. Criminal Procedure Code shall be subject to the Constitution provisions for the comprehensive protection of citizens’ personal freedom.
2. The announcement of the implementation of the 1982 Constitution and the adoption in 2004 of the amendment to the Constitution on the “state respects and safeguards human rights,” relative to the 1978 Constitution, strengthens citizens’ basic rights and protection of human rights. However, this strengthening has not the slightest influence on the duties of the Criminal Procedure Code. The setting of the duties of the Criminal Procedure Code has effectively been completely out of sync with the Constitution.
3. Though the current duties set by the Criminal Procedure Code include the “protection of citizens’ personal rights, democratic rights and other rights,” the provisions to protect citizens’ personal freedoms and other fundamental rights are still relatively minor compared to the primary task of the Criminal Procedure Code – to identify the facts of the crime and the punishment of criminals. Therefore, the set duties of the Criminal Procedure Code are incompatible with its purpose of fighting crime.
4. The reference points for “ascertaining the facts of the crime” and to investigate “ascertaining the facts of the case” is very different. “Ascertaining the facts of the crime” holds the presumption of guilt when handling the crime by assuming that there will be evidence of the crime to find. At least after the passage of the amendment of the Constitution that requires the “state to respect and safeguard human rights, this formulation should be replaced by “ascertaining the facts of the case.”
5. I think that we should set the duties of the Criminal Procedure Code this way: The purpose of the Criminal Procedure Code of the People’s Republic of China is the first purpose of the law (to protect citizens’ personal freedom and other fundamental rights and other basic human rights), the protection of the innocent from criminal liability, to ensure the timely identification of the facts of the case and to implement the law quickly, accurately and effectively. Here, we use the word “implement” and not the word, “applicable,” corresponding to Article 135 of the Constitution.
As mentioned above, Article 37 of the current Constitution provides comprehensive protection of citizens’ personal freedom and does not exclude any part of the personal freedom of citizens from legal and judicial protection of the courts. Therefore, the deficiencies in the Constitution regarding the protection of personal rights are mainly drawn from the lack of rules regulating the detention and restriction of citizens’ personal freedom and limit the number of hours before the legality of the arrest must be reviewed and determined.
However, compared to the Constitution, the Criminal Procedure Code that has been in place for 32 years and the recent draft amendments considerably narrowed the scope of protections of personal freedoms. Specifically, the code and its amendments give the public security apparatus the ability to use administrative means to limit or deprive the personal freedom of citizens and also give the procuratorate a lot of leeway to use “shuanggui” and other measures of party discipline to restrict the personal freedom of party members who hold public office.
The current Criminal Procedure Code violates the provisions and spirit of the Constitution and significantly narrows the scope of protections afforded to citizens’ enjoying their personal freedom and mainly reflected in the relevant provisions that are not included in the amendment process, Articles 3 and 12 of the code. Article 3 provides: “The public security organs shall be responsible for the investigation, detention, execution of arrests and pre-trial examination in connection with criminal cases. The people’s procuratorates shall be responsible for the procuratorial work, the approving of arrests, and the investigation and initiation of public prosecution in connection with cases accepted directly by them. The people’s courts shall be responsible for the trial. No other organ, organization or person shall have the right to exercise such powers, unless the laws otherwise provides.” The drawback of this provision is that it could potentially lead to the long-term deprivation of an individual’s liberty in the determination process between “criminal cases” and non-criminal cases and lead to instances where cases are for months or even years excluded from the jurisdiction of the courts, creating a situation where these individuals not only lose their personal freedoms but also lose the protection of the criminal justice system. These drawbacks are not only caused by, but also the primary responsibility of the Criminal Procedure Code.
Similarly, Article 12 of the code also violates the provisions and spirit of the Constitution by substantially narrowing the scope of a provision meant to protect personal freedoms. This article states: “Prior to a judgment rendered by the people’s court according to law, no one may be found guilty.” On the surface, this article seems to have a positive effect role in the protection of fundamental rights and human rights, but in fact its impact is very negative. In the world today, the primary penalty is one of detention; the basic form of punishment of crime is the deprivation of liberty. However, Article 12 of the Criminal Procedure Code nominally excludes many behaviors from the scope of crimes, but in essence still penalizes citizens, while at the same time excluding them from the criminal justice process.
Such a regime, including reeducation and rehabilitation is clearly a violation of the provisions and spirit of the Constitution, and should be amended beginning with the Criminal Procedure Code. Since China’s Criminal Procedure Code has been greatly influenced by that of the Soviet Union, if we are willing to deny the constitutionality and legality of reeducation and rehabilitation, then we can learn from Article 5 of the 1923 Soviet Russia Criminal Code to amend our Article 12 to read “without judgment by the people’s courts, no person should be found guilty and be deprived of their liberty,” then we can say that this amendment process has made some real progress.
In this sense, Articles 3 and 12 of the existing Criminal Procedure Code can be said to have great shortcomings, possessing very subtle but very serious violations of citizens’ basic rights and human rights. Of particular note is that these provisions often afford minors even less protection than adults. It can be said that Articles 3 and 12 of the Code are actually for the purpose of reeducation, rehabilitation, shuanggui and other unconstitutional and illegals measures of depriving or restricting an individual’s personal freedom.
As for the shortcomings of the Constitution itself, especially in the conduct of the public security apparatus and procuratorial organs in utilizing criminal investigative measures towards suspects and defendant that lack limits on time and speed, the Criminal Procedure Code and its draft amendments do not seem to reduce or eliminate the shortcomings, but instead further uses and expands the tendency to use methods that are not a part of the rule of law. Such was the case for previous revisions and implementation of the Criminal Procedure Code. The current amendment process clearly allows such behavior to continue. The extension of the length of detention time, the use of remote residential surveillance and secret arrests are all legislation that are moving in the opposite direction of rule of law and a concrete manifestation of the original defects of the Constitution and the expansion of the damage done to citizens’ personal freedom. The National People’s Congress, its Standing Committee and all other organizations and forces committed to building a socialist country governed by the rule of law should put a firm stop to and reverse the direction of the legislative process moving in the wrong direction.
Whether the Criminal Procedure Code and its draft amendments can implement the provisions and spirit of the constitutional guarantees of citizens’ personal freedom and other human rights depends on whether there is sufficient power to force the police to return to acting within the scope of the Constitution, so that the structure of legal rights can be restored to balance. This balance is fundamentally one of power – the structural balance of rights, namely that the investigative and prosecutorial power must be balanced with the fundamental rights of citizens, but also including power – the balancing of the power structures, including that the relationship between courts, procuratorate and the public security apparatus should not only be restructured according to the Constitution, but also to straighten out the relationship in terms of power so that the situation is conducive to the arrangement of judicial independence.