China bans petitioners in Beijing
http://news.bbc.co.uk/2/hi/asia-pacific/8210047.stm

If you think that you can come up with an argument in which a Chinese court or state agency would agree with, then we can get somewhere, and there are instances where I think you can do that.

Now you can argue that we ought to care more about what Canadian courts say because Canada is better at human rights than China. That’s a fine argument, but it’s not a legal argument.

Also, without a formal interpretation, its possible that at some point in the future, the interpretation will change. If you have something in black and white that says Article 63 allows for “black jails” then it becomes harder to change in the future.

The danger in making these sorts of arguments is that you risk ending up with arguments that are totally disconnected with reality. You can say that you don’t care what the Chinese courts and legislatures and party officials says, Chinese law bans black jails, but that’s pretty out of touch with reality.

In particular, one reason that Party *likes* rule of law is that if it has a problem with the law, it can change it.

Also invoking Canadian law is not a legally valid argument in a Mainland Chinese court (although it *is* a legally valid argument under Hong Kong law). If you file a brief in a mainland Chinese court, and say Canadian law says this, then the court will say so what?

And then you have to explain why Canadian law is more valid in a mainland Chinese court than say North Korean law. Using comparative law here is pretty dangerous.

In most common law countries there are extremely stiff civil sanctions that people can use to prevent unauthorized arrest. Also US law has what are called “color of law” statutes to prevent this sort of abuse.

As far as “legitimately” that means what you mean by legitimate. Under Chinese law, it’s clearly legal, because if you were to bring this case in from of a Chinese court, they would almost certainly interpret the law to allow for these detentions.

Now if you mean “legitimate” in the sense of moral, then I’d say that the answer is no, but in that case why does it matter what Article 63 says?

Legal arguments are different from moral arguments, and if you are trying to make a moral argument that something is wrong even if it is legal, then you are better off not worrying what the law says. The problem with mixing legal and moral arguments is that pretending that the law is on your side when it isn’t, means that you can’t just say “this is legal, but it’s wrong, and we need to change the law.’

Any one may arrest without warrant/s

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person

Reference to Article 63 raises various questions. Here are two:

1) Can it be legitimately used to legally justify the detention of petitioners?

2) Can it be used in practice as an excuse to detain petitioners?

The answer to the first question would appear to be no, unless one interprets the words “immediately seize and deliver to the public security organ, the people’s procuratorate or the people’s court” to mean “detain for several weeks or months, without delivery to the public security organ, the people’s procuratorate or the people’s court, until the prisoner agrees to stop excercising his/her right to go to the Office of Letters and Visits.”

On the second question, yes, this could probably could be used as an excuse, but in the vast majority of cases it would still be false imprisonment.