The Control Of Investigative Power By The Constitution

The expansion of the power of investigation has become a world tendency. Thetechnical investigation, the custody in secret, the surveillance in designated residenceand the surveillance of the obligation of truthfully statement are all the examples ofthe intervening of the power of investigation. There are many reasons for theexpansion of the power of investigation just like the fixed rules and the historicalinertia of expansion of the power, lack of legislative democracy, public security facingobjective threats. The constitutional pricinples and the basic rights have set limits onthe expansion of the power of investigation. If we interpret the principle of thebalance of the internal justice system according the idea of the rule of law, theprotection of human rights and the overall structure of the constitution；we may findthat the court is in the first place, the procuratorate is in the second, and the police isin the last. The power of investigation carried out by the procuratorate and the policeshould be controlled by the judicial authority of the court. The new code of criminalprocedure faces such a system predicament in the field of investigation: on the onehand, the level of guaranteeing human rights has not reached the general internationallevel, and we need to control the too strong power of investigation; on the other hand,in this increasingly global era, the traditional and non-traditional threats to security forces every country to enhance the power of investigation or keep it’s flexibility tosome extent. Controlling the strong power of investigation is still the main task of ourlegislation, because only by this can we accomplish the balance of the power ofinvestigation and the basic right. But in mean time, we can not make this balancemechanism to be too rigid in order to avoid the crisis. Therefore, we should introducethe criminal warrant system and the constitutional supervision. Only by this can weunify the static balance and the dynamic balance into together and build a perfectconstitutional order. This article can be divided into seven charts.Chart1.The reduction and the enhancement of the power of investigation in thenew Law of Criminal Procedure. The power of investigation is a relativelyindependent power for collecting evidence and taking compulsory measures. Thepower of investigation has both judicial and administrative appearance, but it hasmultivariate sources and natures. The history variance of the power of investigationreflects such a fact that there is a close relationship between the power structure of theinvestigative power and the constitutional order. The new Law of Criminal Proceduretakes many measures to control the power of investigation, but the expansion of thepower of investigation is very serous in some area, for example, making surveillancein designated residence to be a pending custody measure, adding technicalinvestigation with less-stringent approval formalities. There are a couple of factorsthat give rise to these problems: the fixed rules and the historical inertia of expansionof the power, lack of legislative democracy, public security facing objective threats.Chart2.The restriction Mechanism of Criminal Investigation in the constitution.The expansion of the power of the investigation will inevitably affect the citizens’basic rights, and the basic rights in turn will set a boundary for the power of theinvestigation. And in the meantime, the constitution principles control the power ofthe investigation in general ways, which make up for concrete standard. Furthermore,in the face of the imbalance of the power of the investigation and the basic rights, weshould limit the power of the investigation to protect the basic rights, so that we canrestore balance between the power and rights.Chart3.The unconstitutional problems of the technical investigation and the solutions for the problems. Ratification is the key link of controlling the state powerof technical investigation and protecting civil liberties. The new code of criminalprocedure requests a strict ratification, but it does not stipulate precisely the content,the subject, the procedure and the monitor of the ratification. In the past time, theratification of technical investigation was developing in closed circles, and theinvestigation section authorized the design of the internal agency systems, theoperation and the filing procedure by itself. This not only broke the balance of theinternal justice system, but also infringed a number of basic civil liberties in theconstitution. The ratification should be neutral, detailing and supervised. In themeaning time, it should present itself by the form of laws, and be safeguarded by theconstitutional and law supervision system.Chart4.The unconstitutional problems of the custody in secret and the solutionsfor the problems. The custody in secret is one kind of custody which aims at thesuspects who are alleged the crimes of endangering national security and terrorismand interfering with investigation. Nowadays, the police-dominated custody system isadverse to the protection of basic rights and without effective control measures. In themeantime, the suspects detained in secret can not contact with their close relatives, sothat they can not hire a lawyer freely under the present legal conditions in China.Even if their personal liberties are violated, they can not exercise their rights todefense, rights of petition, right of complaint. In order to resolve the unconstitutionalproblems of the custody in secret, we can learn from the habeas corpus and judicialreview system. First, we should establish the judge dominated custody system inframe of Chinese constitution, transfer the suspects to the neutral detention location,and discriminate the location for investigation from the location for detention. Second,we should also inform the relatives of the suspects and let them help suspects to hirelawyers. Last but not least, we should gradually establish an adversarial personalliberty protection model with high-efficiency and without discretion.Chart5.The unconstitutional problems of surveillance in designated residenceand the solutions for the problems. The surveillance in designated residence is onekind of surveillance which aims at some suspects who are alleged some special and serious crimes and interfering with investigation. This kind of compulsory measure iscarried out in residence designated by the investigative organization and can subtractof term of penalty. The new criminal procedure law yields the reality that thesurveillance becomes a custody measure in the performance of law. There are basicrights crisis behind the surveillance in designated residence which is more likely thancustody or arrest to spin out of control, and can not reflect the principle of mutualrestriction among the court, the procuratorate and the police in the constitution. Inorder to deal with this crisis, first, we should posit the surveillance in designatedresidence at a custody measure and establish a process with mutual restriction fordecision making, checking and relief just like the custody or arrest process. Second,we should improve the guarantee degree of the designed residence and compress thetime of the surveillance. Last but not least, we should protect the right to defense, theright of petition and the right of complain.Chart6.The unconstitutional problems of surveillance of the obligation oftruthfully statement and the solutions for the problems. The obligation of truthfullystatement corresponds with the power of interrogation. The obligation of truthfullystatement infringes the citizens’ many basic rights like the freedom of speech, thepersonal dignity, and abandons the basic principles of the rule of law. In order toresolve these unconstitutional problems, we should no longer posit the truthfullystatement at a legal obligation, and give the freedom of confession to suspectsaccording to the right from incriminating oneself. In the meantime, we should fullyexercise the right to silence in the constitution, control the power of interrogation andavoid offending the basic rights with extorting confessions by torture. Furthermore,we should also improve the level of protection of the right to silence by the presenceright of lawyer, the system about confessing leniently and the other support measures.Chart7.How to achieve the balance between the power of investigation and thebasic rights. First of all, we should establish a system in which the power and thebasic rights are in balance. In order to achieve this, on the one hand, we should designthe human right protection system based on the protection of the accused. On theother hand, the power structure should transfer from the police dominated model to the judge dominated model. Second, based on the consideration of both publicsecurity and the human rights, we should make the system of judicial writ to be thefulcrum of the balance between the power of investigation and the basic rights. Lastbut not least, we should make the constitutional supervision system to be the ultimateprotection mechanism for the balance of power and rights. The constitution is notfunctioning effectively in the process of revising criminal procedure law. In order todeal with this problem, we should on the one hand transit the ruling party’s reignmanner and solve such questions as some leading cadres hold over centralized power；on the other hand, we should establish special constitution supervision institutions inthe right time and handle all kinds of unconstitutional problems.