Sunday, March 9, 2008
There has been some discussion on the Chinalaw listserve about the legality of his detention. Without rehashing the discussion - the archives are available to anyone who joins the list, and joining is free - I thought it might be useful to highlight the two issues that emerged.
First, of course, is the main issue of whether his detention and the manner in which it was effected are lawful under Chinese law. Under Chinese law, restrictions on personal freedom may be justified only pursuant to legislation passed by the National People's Congress or its Standing Committee. Thus, it is acknowledged by just about everyone that the "shuanggui" (double designation) system of detention by Party disciplinary organs is illegal, even though it continues to operate unembarrassed by this problem.
In Teng's case, the relevant statute would seem to be the Criminal Procedure Law. But was he detained as part of a bona fide criminal investigation? And does the CPL justify detentions that are not part of a bona fide criminal investigation? I don't ask these questions rhetorically, but I think the answer to both is no.
The second issue is whether observers should spend energy trying to figure out if a lawful basis for the detention might have existed, and what conclusions, if any, should be drawn from the failure of the Chinese government to provide information or a justification. As one contributor pointed out, while it's legitimate for the detainee to argue that the detention is illegal unless the state shows legal grounds, the position of the outside observer is different. The detainee is trying to obtain his freedom, while the observer is (or should be) trying to understand the Chinese legal system; the notion that the government should pay a cost for its silence is good advocacy but poor scholarship.
In any case, an interesting discussion.