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Report No. 180

China

It is very interesting to note that in China, the latest policy is to introduce the right to silence into its criminal jurisprudence. Such a regulation has been introduced recently in the procuratorates in Shenyang, Dalian and other cities.

The following item on (see China Daily dt. 23.11.2000) 'Right to Silence in China's Judicial System' is worth noting. (see http.//www.china. org.cn/English/2000/nov)

"Procurators should prosecute suspects based on proof other than a confession in criminal cases, as announced by a procuratorate in Fushun of northeast China's Liaoning Province in a newly-issued regulation. The regulation guarantees people's right to keep silence and entitles suspects to defend himself against accusations or keep silence during a criminal interrogation. It is the first time for China's judicial system to officially adopt right to keep silence for suspects, marking the country's progress in protection of human right and freedom of the people.

According to the regulation, law officers will give no credit to confession, and a conviction will be based on other impersonal and reliable proof, explained by Yang Xiaodong, researcher with the Research Office of Liaoning Provincial People's Procuratorate. 38

In spite of its subjectivity, a confession has been taken as the major source of proof in trying criminal cases in China. The right to silence application is believed to help eliminate inquisition by torture or extorting a confession. The regulation practically admits the presumption of innocence and therefore has brought a radical change to the traditional judicial concept in the country, said Yang.

The presumption of innocence means that a suspect is supposed innocent when the interrogation begins and will not be convicted unless there is proof to prove his guilt. Jiang Xiaoyang, a lawyer with a Ph.D. degree from Beijing University, said that some real criminals might escape punishment after application of the presumption of innocence and right to silence, but that is the price the judicial system will have to pay in protection of innocent people.

It reflects the respect for human beings' dignity and spiritual freedom, said Jiang.

Judiciary justness has always been the focus of media and National People's Congress (NPC), the country's highest legislative body. China's top leaders have also pledged many times to curb unlawful acts inside the judicial system. 39

So far, the concept of right to silence has been introduced and implemented in procuratorates in Shenyang, Dalian and otherk cities in the province. Chen Jie, judge in Dalian Intermediate People's Court said that though the right to silence is only at the beginning in China, it will trigger a series of innovations to the country's legal system.

China has been making reforms on its legal system in hope of protecting the citizens' rights and interests in an all-round way and ensures judicial fairness. China established a new Criminal Law in 1996 and made amendments to the law in 1997 focusing on rescinding illegal privileges and assuring citizens' rights. In 1998, China participated in United Nations' International Covenant on Civil and Political Rights, which guarantees the right against self-incrimination."



Report on Article 20(3) of the Constitution of India and the Right to Silence Back




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