China wants to cement in law police powers to hold dissidents and other suspects of state security crimes in secret locations without telling their families, under draft legislation released that has been decried by rights advocates.
The critics said the proposed amendments to China's Criminal Procedure Code could embolden authorities to go further with the kind of shadowy detentions that swept up human rights lawyers, veteran protesters and the prominent artist-dissident, Ai Weiwei, earlier this year.
"If this was already law, then people like me, Ai Weiwei and many others could have been detained with even fewer problems and obstacles and with a firmer legal basis," said Jiang Tianyong, a lawyer in Beijing.
Jiang was detained for two months without any contact with his family earlier this year, when the government cracked down on dissent over fears that unrest in the Arab world could spill into China.
"This would be a big step backwards, but I wouldn't discount the strong possibility of it becoming law," added Jiang. "More people would face the risk of being disappeared."
Ai Weiwei, whose detention sparked an international outcry, said in a commentary published on Sunday that "the worst thing about Beijing is that you can never trust the judicial system.
POLITICALLY SENSITIVE CRIMES DIFFERENT
Crime suspects and defendants detained under "residential surveillance" should usually be held in their own homes, says the proposed law released by China's National People's Congress, the Communist Party-controlled parliament. But politically sensitive crimes can be treated differently.
"Those suspected of committing state security crimes, terrorist crimes and major bribery crimes" can be held at locations outside usual detention centres, says the draft released on the parliament's website (www.npc.gov.cn).
Likewise, the families of ordinary suspects and defendants held under "residential surveillance" should be notified of their status within 24 hours. But in state security and other sensitive cases, police do not have to tell the families "if notification could hinder investigations," says the draft.
In China, "state security crimes" include subversion and other charges often used to punish dissidents who challenge the ruling Communist Party.
China's police already have broad powers to hold people, and the party-controlled courts rarely challenge how those powers are exercised. But critics said the amendment would add an extra veneer of legitimacy to arbitrary powers.
"This is in complete contravention of international standards. One of the key principles of international human rights law is deprivation of freedom can only take place if it has been decided by the court," said Nicholas Bequelin, a researcher on China for Human Rights Watch, an advocacy group based in New York.
The Chinese government appeared to be bristling at the uproar triggered by its secretive detention of Ai Weiwei and other dissidents, said Bequelin, who was interviewed before the full draft of the proposed amendments was issued.
"If earlier this was unacceptable, now it's going to be part of the law," said T. Kumar, advocacy director for Asia and the Pacific for Amnesty International USA.
"They are strengthening their method of imprisoning people without any accountability and this is actually solidifying their powers to crack down," he said in Washington.
The US State Department, which had criticised the disappearances of rights advocates, had no immediate comment.
RIGHTS ADVOCATES SEE SETBACK
China's parliament said citizens were welcome to comment until the end of September on the proposed amendments to the Criminal Procedure Code before lawmakers take them up. The country's state-run news agency said the rules on residential surveillance were enlightened.
The draft amendment "will further help protect human rights, and conforms rather than contradicts international conventions," the Xinhua news agency said, citing several Chinese legal scholars.
The clauses authorizing police not to tell families where detainees are held "are an exception, and will not become regular," Song Yinghui, a law professor at Beijing Normal University told Xinhua.
But independent Chinese rights advocates said the amendment would mark a big setback for legal rights if it passed into law under parliamentary approval.
In principle, residential surveillance is a more humane kind of detention, allowing suspects and defendants to stay with their families, said Li Fangping, a Beijing lawyer who has defended dissidents and protesters.
In practice, he and other critics said, it is used as a pretext to spirit detainees away to informal detention sites, including hotels, without telling their families or lawyers.
"If you can hold someone somewhere without effective means of oversight, without allowing detainees to see lawyers, then their rights guarantees face dreadful prospects," said Li.
Some lawyers said the proposed amendment was likely to become law, despite the controversy that has spilt onto China's Internet; others said the amendment could be diluted or even dropped. All were unsure when the parliament would next consider the amendments.
"This is going to be controversial, because it marks an excessive expansion of police powers," said Li. "I don't know if opposing this can work, but we'll certainly try."