China: Drop Draft Criminal Law Amendments & Protect Human RightsComments Off on China: Drop Draft Criminal Law Amendments & Protect Human Rights
(Network of Chinese Human Rights Defenders – August 4, 2015) – CHRD is very concerned about proposed articles legalizing human rights abuses in the current draft 9th Amendments to the Criminal Law, which are open for public consultation until August 5. In suggestions sent to the National People’s Congress, Chinese human rights defenders draw attention to proposed changes that are particularly troubling, including those affecting the independence of lawyers, freedom of assembly and demonstration, rights protections under anti-terrorism priorities, and online information and expression.
The overarching problem with these proposals is that they lack definitions and include vague language that open the door to arbitrary interpretation, potentially legitimizing rights abuses. If these draft amendments became law, they would give police legal backing under the Criminal Law (CL) to further infringe on Chinese citizens’ rights to free expression, association, assembly, and religion, and would legitimize persecution of lawyers in the conduct of their work.
Only minimal changes were made to the first draft of the 9th amendments following their unveiling in November 2014. And the NPC has ignored what were highlighted by Chinese rights lawyers in an open statement recommending changes to the first draft, aspects of the amendments that would encroach on citizens’ constitutional and internationally-protected rights. The lawyers urged the NPC to consider dropping several amendments, but none of them was removed.
CHRD is gravely concerned about the following amendments in the second draft of the Criminal Law:
- Disrupting court proceedings (Amendment 36 to Article 309): The draft law would amend the existing article to give authorities broad powers to interpret speech in court as “insulting,” “threatening,” or “disruptive,” and it includes a vague provision prohibiting “anything else that seriously disrupts court proceedings, where circumstances are serious.” These changes could effectively criminalize lawyers’ speech during trials if they challenge court procedures or treatment of their clients, which would become a “crime” punishable by up to three years in prison. Chinese authorities through state media have attacked the professionalism of several lawyers detained in the ongoing crackdown on rights lawyers, claiming they had exhibited “unruly behavior,” “disrupted” court order, or “insulted” judges. The amendment, if passed, would provide legal rationale to criminalize the speech of lawyers when they defend clients’ rights at trial.
- Disclosure of case information (Amendment 35 to Article 308): The draft law adds a new sub-article on prohibiting “judicial personnel, defenders, agents ad litem or other litigation participants” from disclosing case information “that should not be disclosed in a case that is not tried in public in accordance with law,” punishable by up to three years’ imprisonment. This provision may increase abuses of clients’ due process rights that already occur with secret detentions and closed-door trials. Lawyers have often challenged law-enforcement and judicial authorities for citing “national security concerns” as a pretext to deny individuals involved in “sensitive cases” their rights to fair and open trials, access to legal counsel, and family visits. This new sub-article would allow authorities to criminalize challenges made by lawyers over abuse of clients’ due process rights.
- Peaceful assembly and demonstration (Amendment 30 to Article 290): The draft law adds a new sub-article to expand the scope of the crime “disrupting social order” and “gathering a crowd to disrupt social order,” to include a provision that bans “organizing or funding others to illegally assemble several times, disturbing social order, and [when] the circumstances are serious,” which would be punishable by up to three years in prison. Authorities have frequently used Article 290 to detain or prosecute Chinese citizens exercising their rights to free expression and assembly. The new amendment would go further, as it could be used to prosecute those accused of “organizing” or “funding” a gathering even though they themselves may not have been present.
- Terrorism (Amendment 7 to Article 120 of the CL): New sub-articles are added that prohibit advocating or promoting terrorism through books/materials or by wearing apparel or emblems, punishable by between three-five years in prison. Without any concise definition of “terrorism” in the existing Criminal Law and amendments, however, it is not clear what ideas, opinions, or clothing could become illegal. Thus, the amendments may simply legitimize police power in abridging civil liberties in the name of anti-terrorism. The definition of terrorism in a draft Counter-Terrorism Law that is now being circulated for “comments” is overbroad. It includes any thought, speech, or behaviour that attempts to “influence national policy-making,” and could be used to criminalize legitimate exercise of Chinese citizens’ rights. The Chinese government has a history of labelling ethnic Uyghurs and Tibetans as “terrorists” while systematically depriving their rights. This amendment would further legitimize ethnic suppression of religious and cultural expression in these regions in the name of “anti-terrorism.”
- Information security and Internet crimes (Amendment 27 to Article 286): The draft law adds a new sub-article to punish Internet service providers who do not perform “information network security management duties” if there are any “other serious circumstances.” Violators can face up to three years in prison. In an attempt to legalize its vast Internet censorship apparatus, the government has already promulgated regulations and put out a draft Internet Security Law that would allow authorities to restrict Internet connectivity in entire regions for the purpose of “maintaining public order.” The proposed CL amendment goes further, making it a criminal offense for Internet service providers not to comply with government censorship.
CHRD urges the NPC to drop or revise the above amendments to the Criminal Law to ensure Chinese citizens’ rights, as guaranteed by China’s constitution and the International Bill of Human Rights, are protected. It is imperative that the National People’s Congress revise the CL to fully comply with the International Covenant on Civil and Political Rights, as the Chinese government promised to do to the UN Human Rights Council at the conclusion of the 2013 Universal Periodical Review. In revising the CL, the NPC should also comply with a recommendation made by the UN Committee Against Torture in 2008, to abolish or amend Article 306 of the Criminal Law so as not to undermine the independence of lawyers. This action would be in line with the government’s treaty obligations under the Convention Against Torture, which it ratified in 1988.
CHRD asks the European Union, United States, and other like-minded governments to go beyond publically raising concerns on China’s problematic draft laws, including the 9th Amendments to the Criminal Law, that would legitimize systematic human rights violations if enacted. These governments must demonstrate a firm commitment to holding the Chinese government accountable for human rights abuses. More strong public statements are better than weak or private ones, but they must be coupled with actions with real teeth to deter the rapidly escalating political, ethnic, and religious suppression under Xi Jinping’s reign.
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