Criminalising Wu Guijun and Challenges in Enforcing the Criminal Procedure Law
IHLO, 2 March 2014
If Wu Guijun’s case becomes a precedent to allow the government using the Criminal Law to punish labour strikes and petitions, and given that there is no law in China to define or outlaw a strike, it is worrying that the public authority may intervene workplace labour relation and put down labour dissidence without any check. Due legal process is also not guaranteed as meaningful enforcement of the revised Criminal Procedure Law, viewed as a step forward in the judicial reform in China, is yet to be seen.
The PRC Criminal Procedure Law (known as CPL) was amended in 2012 to enhance legal professionalism and integrate human rights protection in the judiciary system. It was followed by the amendment of the Procuratorate Criminal Procedural Regulation (Provisional) (known as PCPR) in the same year. Rather than being the judicial arm of the police and the public security, the procuratorate is provided with legal grounds to check state power and balance human rights protection based on the law.
The amended law and regulation were hailed for taking concrete steps to improve the judicial procedure and the rights to defence by integrating monitoring and remedial mechanisms in the process of criminal prosecution and trial. Unavoidably the revised stipulations may run into contradictions with the established practices. The criminalization of Wu Guijun illustrates the gap in enforcing the amended CPL, and the embarrassing role of the procuratorate office in striking a balance between state power and human rights protection.
The amended CPL requests the procuratorate to examine the legal ground and procedure of the arrest and criminal detention of the suspect. Arrest should be based on evidence to prove the criminal facts, and whether the liability measures to fixed-term imprisonment of ten years and higher. Arrest could also be approved by the procuratorate by assessing ‘actual danger to national and public security or social order’, possible interference with the legal procedure such as harassment, retaliation, or the suspect committing suicide or running away in hiding (Article 79). In considering an approval for arrest, Article 36 allows the procuratorate to investigate the case on its own, interrogate the suspect and the witnesses if it is requested, and to hear from the suspect’s lawyer if procedural violations have been committed by the public security. Recommendation for release, bailing or other mandatory measures should be given to the public security if custody of the suspect is not justified. These amendments aimed to empower the procuratorate in examining the legality of arrest and custody for the purpose of eliminating procedural injustice rather than being the administrative subordinate of the police and public security.
In the case of Wu Guijun, the petition of Diweixin workers accused for blocking the traffic for two hours can hardly be understood a major or serious crime. In fact the petition was effectively dispersed by the public security by taking all the Diweixin workers to the police station. Whether the social danger argument is justified to put Wu under arrest and custody for nine months, and whether other mandatory measures have been considered are questionable.
The introduction of the exclusionary rule of illegally obtained evidences in the criminal procedure has raised expectations for an effective check against police abuses in interrogation and investigation. The defendant and the representative lawyer are allowed to challenge and request the court to exclude such evidences and testimonies. Wu’s lawyer raised the point of exclusionary rule in the first hearing on 17 February 2014 arguing that the testimonies of Wu were taken by the public security without informing his rights.
The Criminal Facts
The defence lawyer of Wu, Pang Kwun, argues that it is not a crime in China to be an elected workers’ representative; nor is it a crime to petition the government which is legally protected under the system of letters and visits in China.
According to the defence lawyer, the criminal facts provided by the prosecutor show that the public security and police had been maintaining order while the workers of Diweixin were marching to petition the local government office on 23 May 2013. The crowd was actually dismissed when the police blocked the procession and took all the petitioners to the police station without much resistance. Other than the statements given by the police, the prosecutor has not provided further evidences to prove that traffic was seriously blocked by the workers’ petition.
Article 173 of the CPL requires the procuratorate to decide the criminal facts, the justification of criminal punishment, and the options of exemption, other mandatory measures and non-prosecution before filing a case for trial. Non-prosecution was uncommon before due to unclear procedure of approval within the procuratorate and pressure from the public security authority. Previously, the procuratorate office was not given any real authority except giving recommendations to the public security for case dismissal.
The amended CPL stipulates three conditions under which the procuratorate can decide a non-prosecution with the approval of the Chief Prosecutor. Article 15 outlines the circumstances under which no criminal liability should be pursued when the alleged conduct is obviously minor, causing no serious harm and therefore not deemed a crime, or if an exemption has been granted. Article 173 states further the conditions for non-prosecution when no criminal fact has been found, or the crime is minor and no criminal punishment is necessary. Accordingly, the PCPR stipulates stricter requirements for prosecution if doubts cannot be eliminated or evidences are still lacking after two supplementary investigations (Article 404, PCPR).
After two months’ custody, it took the procuratorate six months from 29 July 2013 to 21 January 2014 to decide public prosecution, the maximum period allowed under the CPL. In between, the case had been returned to the police twice for insufficient evidences and supplementary investigation. The first hearing scheduled on 17 February 2014 was almost called off by the judge when the prosecutor refused to appear before the court. Again in the eve before the second hearing on 26 February, the prosecutor asked for a postponement claiming that it needed more time for preparation.
The procrastination of the procuratorate office shows that the pressure has fallen on the prosecutors in China when defending the law vis-à-vis the stability-first public security and government. The challenges they may face are many including political, social and administrative, when prosecution is driven by non-judicial decisions. The procuratorate office of Baoan district, where Wu’s case is heard, was still reporting about a drop in the non-prosecution rate in 2010 to echo the government’s request for a stronger combat on crime at that time. It becomes the contrary now in the procuratorate’s annual review in 2013 reporting a lower arrest (by 58%) and prosecution rate (by 185%) in order to comply with the revised CPL. The busiest in the country in terms of filed prosecutions including labour litigation cases, the Baoan procuratorate office complains about the overwhelming workload it faces as the law now promotes mediation and requires more check and balance before initiating a public prosecution.
If the prosecutor could not make decision based on the legal profession due to pressure, policies or disincentives, the meaningful enforcement of the CPL would be seriously undermined. The prolonged custody as a result will further block the rights of the defendant to a fair trial.
Article 15 of CPL states that no criminal liability should be pursued, or if criminal liability has been pursued, the case should be dismissed, not to be prosecuted or the trial should be ceased if (1) the circumstances of the alleged conduct are obviously minor, causing no serious harm, and the alleged conduct is therefore not deemed a crime; (2) the time limitation for criminal prosecution has expired; (3) exemption of criminal punishment has been granted in a special amnesty decree; (4) the alleged crime is handled only upon a complaint in accordance with the Criminal Law, but there is no such a complaint or the complaint has been withdrawn; (5) the criminal suspect or defendant dies; or (6) Criminal liability may be avoided in accordance with other legal provisions.