Monday, March 05, 2012

On Detaining Political Prisoners in China

I was interviewed the other day for a story on a controversial revision to the criminal procedure law in China. You can read the entire story below, or click here to check out the original document.

The issue at hand is the legality of the Chinese government detaining individuals accused of political crimes (e.g., terrorism, subversion) in secret locations without informing family, friends, or the general public. Last summer, the government proposed making such detentions legal for periods of up to six months. Interestingly, this proposal was announced via the Internet, and a one-month comment period was provided for anyone interested. Some 80,000 comments later, the government has apparently revised its proposal, placing greater restrictions on the usage of instruments such as "black jails."

My commentary focuses on this emerging phenomenon of public consultation during government policymaking processes, which is something I have been studying for the past few years. Read on...

Is China opening up?

China's highest state body has started to consult the public, opening the door on its secretive legislative process, even if only a crack.

By Peter Ford, Staff writer

China's National Peoples’ Congress, the parliament that opened its annual meeting here Monday, is often dismissed as a rubber stamp body that offers only rote approval of the ruling Communist Party’s wishes.

But when delegates come to vote later in the session on one of the more controversial laws in recent memory, they will find that another, less predictable force has helped shape the legislation before them: public opinion.

“Public opinion played a very important role” in watering down provisions in the new Criminal Procedure Law that would have allowed the police to “disappear” political opponents for six months, says Chen Weidong, a law professor at Beijing's Renmin University. “The congress took the opinions that people expressed into account.”

The law defines fundamental human rights, such as how suspects and defendants should be treated by the police, the prosecutor and the courts. When a first draft was published last August for public comment, human rights activists were horrified to find that the law would entitle the police to hold some suspects for six months in secret detention centers without telling anyone what they were doing.

The Chinese police have done this anyway, notably to dissident artist Ai Weiwei, but they were breaking the law. Now, it seemed they would be legally permitted, under certain circumstances, to put political opponents in “black jails.”

Chinese lawyers and others flooded the NPC website with criticism during the 30 days it was open to comments. Today, according to Professor Chen and others who have seen the still-secret final version of the law, it obliges the police to tell a suspect’s family immediately if they take him to a “designated residence.”

The change illustrates the potential impact of the public consultations that the NPC has begun to offer Chinese citizens, opening the door on its secretive legislative process, even if only a crack.

Invitation for public comment

The NPC has invited public comment, by post or e-mail, on 41 selected draft laws since 2008, with varying results. About 83,000 people came up with nearly a quarter of a million suggestions last year on how to improve the income tax law; only 22 citizens felt strongly enough to comment on a draft law concerning reserve duty military officers’ status, according to the NPC website.

“This represents an initial foray by the government into citizen participation,” says Steven Balla, a politics professor at George Washington University in Washington who has studied the public consultation process. Although it is “really hard to say” how much the comments affect the drafting process, he adds, “there is potential for these comments to have a significant impact.”

The consultations are only one ray of light shone into what human rights researcher Joshua Rosenzweig calls the “black box” of Chinese lawmaking before and after the 30 day comments period.

But there are signs, he says, that in the constellation of stakeholders consulted over the Criminal Procedure Law – the police, the prosecutor’s office, the courts, trusted legal scholars, and defense lawyers – some were happy to use public opinion to buttress their views.

Potential leverage

Reformists, Mr. Rosenzweig suggests, “could show that public opinion was against a particular provision in the law that the police held dear and use that as leverage to get them to back down. The consultative process had the advantage of adding weight to their position against the most entrenched stakeholders who were the most resistant to change.”

“It might be that the government turns to public consultations when decision makers are not agreed on an issue,” agrees Professor Balla. “In the Chinese context, they could be a way of settling disputes.”

There are limits to the consultations’ value, however, points out Wang Lin, an advocate of more open government who teaches law at Hainan University. “It’s all part of democratizing lawmaking,” he says, “but the consultations are not institutionalized yet, and there is no guarantee that lawmakers will adopt any of the opinions that the public expresses.”

Those who commented on a health reform bill in 2008, Balla found in his research, “overall had pretty modest expectations” about the impact their ideas would have.

The consultation system works differently on different topics. The NPC published comments on the health reform bill in full on its website, stimulating debate. It did not publish comments submitted on the more politically sensitive Criminal Procedure Law.

“That would have brought a lot of pressure to bear on law enforcement agencies,” points out Professor Wang.

But many lawyers posted the comments they had submitted to the NPC on their own microblog accounts, or in the press, leading to “a pretty open back and forth” on the contentious aspects of the proposed law, says Rosenzweig. “The government could not always control what the public had to say.”

A lot of what it said “concerned the limits on citizens’ rights,” points out Professor Chen. “The NPC seriously considered this and then canceled the provision” on secret detention that had sparked such an outcry.

“The consultations make a difference,” Rosenzweig believes. “More could be done to have them make more of a difference … but the opportunity for people to speak their minds creates valuable input that legislators generally appreciate. It’s not just window dressing.

“It’s a first step,” he adds. “Whether it is just a first step, or the only step the authorities are willing to take, remains an open question.”


Our Leetle Leezard Friend

For the past three years, I have been pressuring my parents to let me buy a lizard. Holidays and birthdays have come and gone, lizard-free. Because my birthday was last week, I decided to make my annual case for why I should have a lizard. Apparently, my argument has become more compelling, because this year I was able to convince my mom to let me get a lizard.

So when Georgetown Prep had the day off for some reason unknown to the students, my mom decided to join me on my day off and laze around town. Our adventures eventually brought us to PetSmart. On entering the store, I made a last attempt to convince my mom to let me get a bearded dragon. Mom decided that we could reach a compromise by buying a smaller lizard, in this case, an anoli.

After a long and tiring debate, we came to an agreement, and went to find the attendant. We found the attendant getting some crickets for a woman who just happened to own a bearded dragon. When the woman heard that we were getting an anoli, she joined in on the conversation and proceeded to tell us that doing so would be a mistake and that bearded dragons were better and easier to take care of.

Upon hearing this, my heart lifted. My mom and I talked to the woman and the attendant (who also happened to own a bearded dragon), and they argued that buying a bearded dragon was the better choice. The attendant showed us all the supplies that we would need, and talked about how low maintenance they are to watch and that we would be able to find someone to watch it over the summer easily.

After about a half hour of more thinking and arguing, we decide that a bearded dragon was the right call. I was so excited and set up the cage as soon as we got home. After three long years, my birthday wish has finally come true!