China Balks at the ‘Right to Remain Silent’
“Leniency to those who confess, severity to those who resist.”
From the political struggles of the Maoist era to the interrogation rooms of police stations today, Chinese are all too familiar with this hallmark policy of their country’s legal system.
After two decades of watching American TV police dramas, however, Chinese have become familiar with another phrase: “You have the right to remain silent.”
Under the country’s new criminal code, which took effect in 1997, suspects are required to answer interrogators’ questions truthfully. Legal experts tried but failed to get the right to remain silent written into the code.
But a bold experiment last year by local law enforcement authorities in northern China, giving suspects the right to remain silent during questioning, attracted widespread media coverage and added fuel to a simmering legal debate.
Central government authorities struck down the experiment in the fall. But the affair showed how increasing exposure to foreign legal practices has created great expectations for change in Chinese society.
Media coverage “created the false impression that China is on the verge of instituting the right to remain silent, or that it has already happened,” said Cai Dingjian, a legal scholar with China’s legislature.
The publicity “expressed the hopes of scholars and the media,” Cai said. “But it’s a question of the entire legal system--it can’t be achieved by some police station somewhere saying it respects the right to remain silent.”
The experiment’s failure also showed how far China is from meeting the requirements of international human rights conventions, particularly the International Covenant on Civil and Political Rights, which Beijing signed in 1998 but has not ratified.
The covenant does not mention a right to remain silent, but it requires that all signatory nations refrain from compelling suspects to confess or testify against themselves.
Last year’s experiment occurred in the Shuncheng district of northeastern China’s Fushun city. In 1997, district prosecutors began formulating rules that would not only allow suspects to remain silent during questioning but also would make confessions--voluntary or not--inadmissible in court.
Dubbed “Confession Equals Zero,” the rules were finalized in May and subsequently implemented, according to official media. The rules were not applied to cases involving murder, manslaughter, official corruption or those in which there were no witnesses.
The experiment was part of an effort to provide safeguards against the persistent problem of police extracting confessions through torture.
But the effort flew in the face of centuries of tradition, in which law enforcement’s use of torture to obtain confessions was common and legal. The Chinese language used the same word, xing, to mean both law and punishment. Chinese law did not articulate individual rights and contained little distinction between civil and criminal law.
Still, top prosecutors in Liaoning province, where Fushun is located, hailed the experiment as a positive step, according to the official Liaoshen Evening News, and the story began to ripple through the Chinese media.
But authorities in Beijing thought otherwise about the move.
“We’re no longer using the ‘Confession Equals Zero’ regulations,” one Shuncheng district prosecutor explained by telephone recently, declining to be named. “Our superiors were dissatisfied” with the regulations and the ensuing media coverage, he said, adding that the media had exaggerated the story.
Experts say that because the regulations disallowed voluntary confessions, they conflicted with China’s criminal procedure, which lists confessions as one of seven kinds of evidence admissible in court.
The Chinese media also jumped on a story last year about a local police station in central China’s Wuhan city that allegedly allowed suspects to remain silent during questioning. The police later denied the reports.
Accounts of how the station had removed the “Leniency to those who confess” motto from the walls of its interrogation rooms stoked discussion of the policy, which many experts said has been useful in law enforcement.
Because the courts consider confessions so important, and forensic science in China is so rudimentary, coercing confessions remains an illegal shortcut for police to solve criminal cases.
Most Chinese who oppose instituting the right to remain silent share the sentiments of U.S. opponents of so-called Miranda rights. They believe that the policy would tie police officers’ hands and allow criminals to escape punishment.
On the other side, the current policy “should not be used to pry suspects’ mouths open,” said China University of Politics and Law professor Hong Daode. Hong argues that courts should indeed show leniency to suspects who cooperate with authorities but also that those guilty of crimes have a responsibility to confess.
Legal scholar Cai has described China’s legal evolution with three metaphors. In the traditional view, the law is a knife handle, used by autocratic rulers to oppress the citizenry. In the second stage, the law is a conductor’s baton, used by the state to orchestrate a society. In the most advanced stage, the law is a horse’s rein, used by citizens to limit the state’s powers.
In Cai’s opinion, China has only recently advanced to the second stage.