The Importance Of Right To Silence In China

Introduction Right to silence is legalized in many countries including most of western countries such as the UK and the USA. Although China has signed the international covenant on civil and political rights in 1998, still China use the rule of “leniency to those who confess, severity to those who resist” (Wu, 2003). There are more discussions on whether to legalize the right to silence or not in China these days, and it is high recommended by scholars to establish the system of right to silence. In this essay, brief description of procedural law and right to silence will be given, why they are important will be shortly written, and the relationship between right to silence and procedural justice will be illustrate. In the end the situation

According to Sun (2004), procedural justice cannot be enforced unless the fair competition between defendant and accuser is guaranteed. During the legal procedures, since the accusers have the coercive force of the country to back them up, they are prior than the accused. Hence, while protect the rights of accuser, the right of the accused must be protect as well. In this sense, right to silence strengthens the power of defense of the defendant, so it helps to pledge the power balance (Sun, 2004).

Also, right to silence restrains the power of police, officials of prosecution, and other relevant officials (Sun, 2004). Admitting right to silence is essential in helping to eliminate the phenomenon of using torture to extort a confession and collecting evidence illegally throughout investigation, prosecution and at court, and thus ensures procedural justice, and thus ensures the legality of criminal proceeding (Sun, 2004). Most importantly, it helps to avoid unjust judgment (Kong,

It is written in Criminal Procedure Law of the People’s Republic of China (2012), article 52 that during obtaining evidence, when being inquired by the people’s court, people’s procuratorate or the police, everyone has the obligation to offer the evidence needed for them. People who suppress evidence will be dealt with by law. In other words, one cannot choose to remain silence when being questioned. The mainland China choose to protect the right of the accused another way around, as it is believed that admitting the right to silence will in a way protect the criminal from being punished, slow the evidence obtaining procedure, and it is getting the cart before the horse since in some cases the situation of overly emphasizing procedural justice and ignoring substantive justice (Li, 2012). It is mentioned in the Code of Criminal Procedural of the People’s Republic of China (2012) that it is forbidden by law to use any illegal ways to collect evident, to force people to admit their