Tue, Aug 14, 2012 - Page 8 News List

The harsh reality of Chinese law

By Wu Ching-chin 吳景欽

The eighth round of cross-strait talks between Straits Exchange Foundation (SEF) Chairman Chiang Pin-kung (江丙坤) and China’s Association for Relations Across the Taiwan Straits (ARATS) Chairman Chen Yunlin (陳雲林) were held in Taipei on Thursday. One of the main points was the signing of a cross-strait investment protection pact that had already been put aside for some time. It is hoped that this agreement will be able to protect the rights of Taiwanese businesspeople. However, I am afraid that the inking of this agreement is more of a formality than anything truly substantial. Taiwanese businesspeople in China often encounter the problem of having a straightforward civil dispute treated as a criminal case.

Although the SEF and ARATS signed the Agreement on Jointly Cracking Down on Crime and Mutual Legal Assistance Across the Strait in April 2009, this agreement is mainly concerned with mutual assistance in repatriating criminals and gathering criminal intelligence. As a result, prescriptions for the protection of the rights of Taiwanese in China or Chinese in Taiwan and especially issues involving the treatment of suspects during criminal investigations, naturally fall outside the scope of this agreement.

However, because the number of Taiwanese in China is much greater than the number of Chinese in Taiwan and because China is a long way behind Taiwan when it comes to the protection of human rights, the freedom of Taiwanese people in China, especially businesspeople, is under constant threat.

According to Article 50 of China’s Criminal Procedure Law, as long as someone is suspected of involvement in criminal activities, police can not only summon the suspect to court and detain them, they can also place suspects under house arrest. Not only are they not allowed to leave their home, but they will also be forbidden from meeting with anyone, for a period up to six months.

Also, according to Articles 2, 64 and 71 of the same law, the police must notify the family of the person who has been arrested or detained and tell them the reason for their arrest or detention. However, another rule in the same law states that if the notification cannot be passed on, the case can be viewed as an exception to the norm.

Police often use such “exceptions” as a reason for not notifying the family — especially as the families of Taiwanese businesspeople are often in “far-off” Taiwan, it is easier for police to use these “barriers to communication” as a reason not to notify the family, which makes matters even worse for Taiwanese businesspeople than for Chinese.

If Taiwanese businesspeople gain the prompt protection of a lawyer after their arrest it seems this shortcoming can be resolved. This is why, according to Article 96, Item 1 of the Criminal Procedure Law, those suspected of involvement in a crime may apply for a lawyer during the first round of questioning or when they are issued with a prosecutor’s order.

However, if the case in question involves classified information, the consent of investigating authorities is required before a lawyer can be hired. This means that the investigative authority can restrict a suspect’s right to defend themselves based on vague claims of national security. Also, even if a suspect gets a lawyer, they only have the right to meet with their lawyer, but they cannot — as is the case in Taiwan — have their lawyer present during questioning. This means that investigations are carried out in secret, which increases the risk of torture.

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