Headlines now emerging from China like, “Supreme Court rules out confession through torture”, would seem cause for celebration, but there are still reasons to be cautious.
It’s welcome news that the top judicial body issued a short, to-the-point, document instructing courts to take steps to reduce miscarriages of justice, including curbing the practice of extracting confession through torture. While the document itself does not carry much weight, it follows a number of steps taken in recent years to try to address the most glaring defects of China’s criminal law system.
Two years ago, the government introduced a mechanism allowing the court to exclude illegally obtained evidence – such as forced confessions. Last year, it introduced several amendments to the Criminal Procedure Law, designed to enhance the rights of the defense – while also introducing dangerous exceptions, including the ability of lawyers to access their clients in detention within 48 hours. Shortly after the leadership transition in late 2012, the Communist Party’s body in charge of legal affairs issued guidelines designed to improve the courts’ work. And just last Friday, the much-discussed Plenum decision document listed as an objective the protection of human rights in the administration of justice by reducing forced confessions and miscarriage of justice.
The new Supreme Court announcement is a welcome next step. There is much to praise in its unambiguous language too, such as the listing of illegal torture methods: “The use of cold, hunger, drying, scorching, fatigue and other illegal methods to obtain confessions from the accused must be eliminated,” the document states.It also makes the unusual point that “maintaining stability” should not be used by local governments as an excuse to cut down on procedural protections. This is important because it shows that Beijing knows that the stability argument is very often abused by local authorities to dictate the outcomes of certain cases to the courts.
Still, the Supreme People’s Court’s announcement should not pass as a real reform yet. For one, it only speaks to the courts, while it’s the police, a much more powerful institution than China’s weak courts, that does the torturing. It doesn’t introduce sanctions, or remedies, in case of violations of defense rights either.
There is also no scheduled abolition of article 306 of the Criminal Law targeting lawyers who make their clients change their testimonies or depositions. In other words, if they challenge a confession obtained under torture, they can be prosecuted themselves for “perjury”. This is recognized as the number one hurdle for criminal lawyers in China.
The positive headlines have a point – the Supreme Court’s move is an encouraging step. It demonstrates at the very least that there are people inside the system pushing for progress, and that alone is significant. At the same time, let's not be naive about the improvements one paper document can bring to the system.