北京周报2005年11月3日刊  据北京周报英文报道，中国政府对于1998年所签署的《公民及政治权利国际公约》（人权“B公约”），正积极准备批准施行。文章题为“Rights Under Scrutiny - Ratification of the International Covenant on Civil and Political Rights draws near”。全文如下：

China is discussing some important issues related to the International Covenant on Civil and Political Rights (ICCPR) and once the conditions are right, it will go through the legal formalities to be ratified. 

This was confirmed by Luo Gan, legal affairs chief of the Communist Party of China, at the 22nd Congress on the Law of the World held in September in Beijing and Shanghai. 

As one of the most important conventions under international human rights protection, ICCPR contains articles on protection of human rights in the fields of freedom and political rights. Adopted by the United Nations in 1966 and entered into force in 1976, there were 149 state signatories by the end of 2002. 

China signed two international conventions on human rights, the International Covenant on Economic, Social and Cultural Rights and the ICCPR, in 1997 and 1998. 

The Standing Committee of the National People’s Congress (NPC), the country’s top legislature, approved the former in 2001 after China entered the World Trade Organization. 

The latter, with a major part concerning criminal procedure rules such as international standards on fair trial and review of death sentences, is still subject to ratification by the NPC, as some Chinese laws and legal practices have certain articles not in line with the covenant. 

Luo Gan’s statement is the third time that China’s top leaders have stated their position on the ICCPR. In his speech in France on January 27, 2004, Chinese President Hu Jintao pledged that the Chinese Government would propose the covenant to the NPC for ratification once conditions were right. During his Europe tour in May 2004, Chinese Premier Wen Jiabao also said that China was readying itself to ratify the ICCPR as soon as possible. 

What Needs to Be Done? 

“Since China has signed the covenant, it must agree with principles of the ICCPR. However, it may not agree with every specific article of the covenant,” Chen Ruihua, professor at the Law School of Peking University, told Beijing Review. According to Chen, fair trial and the right to silence are the areas in which China differs most from the covenant. 

Article 9 of the covenant says, “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” That is to say, liberty of a person can be deprived only through a fair trial. 

In China, rehabilitation through labor, coercive abstention from drugs and coerced psychiatric treatment are all measures depriving an individual of personal freedom without a court’s decision. Among them, rehabilitation through labor is most seriously criticized. According to present regulations, the term of rehabilitation through labor is one to three years. This can be extended by a year. In other words, only with decisions by police and through administrative procedures, a person may be deprived of freedom for at least one year. This is even longer than the shortest period of imprisonment, six months, stipulated by the Criminal Law. 

According to Chen, most legal experts support the abolition of rehabilitation through labor, preferring to have this changed to minor illicit activities. Most importantly, the punishment would be decided by courts through judicial procedures. Reform of the rehabilitation through labor system has been included in the NPC’s legislation plan. 

The right to silence is a very important right of criminal suspects. Article 14 of the ICCPR says that suspects are “not to be compelled to testify against himself or herself to confess guilt.” Chen Guangzhong, professor at the China University of Political Science and Law, holds that this article has two requirements: no torture for testimony and no obligation of confession. 

In China, Article 43 of the Criminal Procedure Law stipulates, “It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means.” 

But Article 93 says, “The criminal suspect shall answer the investigators’ questions truthfully, but he/she shall have the right to refuse to answer any questions that are irrelevant to the case.” That is to say, criminal suspects must answer questions related to the case. Moreover, in the measurement of penalty, those who refuse to confess would get more severe penalties. 

“Most people agree to establish the right to silence in China, at least, refusing to confess shall not lead to more severe punishment,” Chen told Beijing Review. 

Meanwhile, many experts argue that China would need to limit the use of capital punishment when it ratifies the ICCPR. China imposes the death penalty for a wide range of crimes, 68 in total, from murder to economic crimes such as bribery. Article 6 of the ICCPR says, “In countries that have not abolished the death penalty, a sentence of death may be imposed only for the most serious crimes.” 

Road to Ratification 

According to Chinese laws, after the signing of international covenants, the State Council shall refer them to the NPC Standing Committee for decision on ratification and the president of the People’s Republic of China shall ratify it in accordance with the decision of the NPC Standing Committee. 

“If the State Council, after full examination, submits the ratification suggestion, the Standing Committee of the NPC would pass it, but there is no specific timetable now,” said an official from the committee. 

Yang Yuguan, professor at the China University of Political Science and Law, said that compared with the International Covenant on Economic, Social and Cultural Rights, ICCPR mainly restrains the power of the government, therefore most countries first accept the International Covenant on Economic, Social and Cultural Rights and then the ICCPR. “Once the covenant is ratified, both the judicial system and judicial personnel will face more challenges,” Yang added. 

At the same time, China is also adapting its Criminal Procedure Law to the ICCPR, said Huang Songyou, Vice President of the Supreme People’s Court, the country’s highest judicial organ, at the 2004 annual conference of the China Law Society. He said the amendment of the law has been listed in the legislation plan of the 10th NPC. 

According to Long Zongzhi, professor at the Southwest University of Political Science and Law, several problems related to the Criminal Procedure Law and its implementation need to be addressed, such as further adjustment of the basic structure of litigation, strengthening of judicial restraint and human rights protection, reforming the trial mode and modifying procedures for investigation, prosecution and court trial. 

“The covenant provides some principles and ideas, but the more important function is its influence on future Chinese legislation. After ratification, laws shall be consistent with the covenant. Therefore ratification of the ICCPR will drive the amendment to the Criminal Procedure Law and future legislation of China,” Chen Ruihua said. He is optimistic that the ICCPR will be ratified in the near future. 

Allowing declarations and reservations when entering into an international covenant is usual practice. “This will help China ratify the ICCPR,” said Liu Nanlai, research fellow at the Institute of Law of the Chinese Academy of Social Sciences (CASS). He said CASS set up a research group in 2004 to study solutions to the obstacles in ratifying the ICCPR and offer suggestions on the reservations when accepting the covenant.