6 - A New Model of Habeas Corpus in China? Procuratorial Necessity Examination of Pretrial Custody

Summary

This chapter argues that custody necessity examination cannot replace the function of the habeas corpus guarantee, as it is not consistent with the personal liberty safeguards provided for in Art. 9(4) ICCPR. The Chinese government claims to be ‘building a socialist country under the rule by/of law’ and has emphasised that government actions are exercised in accordance with the law. However, the Criminal Procedure Law empowers the people’s procuratorates to review continuing pretrial custody, and it neither mandates a court review of pretrial detentions nor grants detained persons any legal remedy to request a review of the lawfulness of an arrest decision. Chinese legislation has not established habeas corpus (i.e. a judicial remedy), but it seems that the Chinese government is pursuing the establishment of a new version of habeas corpus with ‘Chinese characteristics’ to replace the habeas corpus guarantee in international human rights law. In other words, the Chinese government is trying to ensure procedural safeguards for criminal suspects and defendants in pretrial custody, albeit not by means of the habeas corpus provision in Art. 9(4) ICCPR.