5th Amendment Rights in China? (China)

Yes, I realize that China is not located within Southeast Asia. It is not and never will be a member of ASEAN. Nonetheless, the Chinese Supreme People’s Court’s recent actions might be of interest to students of judicial politics in Southeast Asia.

According to Reuters, he SPC has ruled that the use of torture to extract confessions is illegal. Interestingly, the SPC expanded the definition of torture to “the use of cold, hunger, drying, scorching, fatigue and other illegal methods” (Bush administration lawyers deemed that several of these methods did not to constitute torture).

On the one hand, the announcement is potentially revolutionary. Chinese police and courts have accepted confessions extracted through torture for millennia (the famous Judge Dee stories from the Tang Dynasty include several graphic torture scenes). On the other hand, as Reuters notes, there is likely to be resistance to the SPC’s announcement, especially from the state security system.

The announcement also raises questions about the SPC’s role in China’s legal system. The Court seemed to have a brief Marbury v. Madison moment in 2001 when it seemed to find a constitutional right to education (presumably making China’s 1982 Constitution enforceable). However, that decision also proved to be the last time the SPC interpreted the constitution. In 2010, the SPC officially withdrew the decision, presumably meaning it is no longer legally valid.

While I cannot claim to be an expert in Chinese law or politics, from what I understand the SPC’s current decision regarding torture is not an attempt to return to the activism of its 2001 decision, but rather represents a deliberate choice to focus reforming the system under its control. While the SPC might face resistance, judges do have the final word on accepting illegally obtained evidence, and hence share the blame for convictions obtained through illegal confessions. I suspect at the very least we will see more defendants claiming that their confessions were obtained through torture in the hopes that the judiciary will now act on their claims.

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