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By Elizabeth M. Lynch, February 19, 2024

Short Take is a periodic series where China Law & Policy briefly analyzes a current China-related issue and give our take. We aim for 500 words or less (around a 4-minute read).

Last week, New York Times’ reporter, Li Yuan, appeared on The Daily in a fascinating podcast that retold the story Gao Zhibian, a Chinese migrant who entered the United States by taking the perilous trek across Central America’s Darien Gap and up through Mexico, eventually crossing the Texas border. What caught my attention was the numbers Yuan reported. In 2023, 24,000 Chinese citizens took this path. That number surpassed the number of Chinese crossing the Mexican border from the previous 10 years combined. Prior to 2023, Chinese migration through Mexico was a mere 1,500 per year.

For years, if not decades, Chinese citizens have been able to travel visa-free to Ecuador. It is from there that they trudge through the Darien Gap, Central America, Mexico to reach the US. This has long been the route of choice for Chinese citizens unable to obtain a US student visa, an H1-B visa, or even a tourist visa. In other words, this has been the only way into the US for China’s migrant workers, the farmers from the countryside that moved to China’s cities to become the construction and factory workers. It is these workers that largely propelled China out of poverty, enabling it to become the second largest economy in the world. With increased income, they too shared in China’s economic miracle.

What has caused this sixteen-fold increase in the last year?  No doubt China’s slowing economy, whose future is uncertain, is one reason. But it is more than that as Yuan shows in her interview with Gao Zhibian. Gao didn’t leave China solely because of the economy. After succeeding as a migrant worker, he ended up developing a small apartment building in the suburbs of Beijing, becoming a small-time landlord. But in 2018, the local government confiscated his land to sell to richer developers, with the local government retaining all the profits. Gao sought justice through China’s legal system in the form of petitioning to the national government. But he and his family were constantly harassed by the local authorities and Gao gave up his fight, losing his land and receiving little to no compensation. It was the Chinese legal system’s failure to provide justice or even establish a fair system that caused Gao to start researching migrating to the US through Central America. 

Similarly, CNN, in its excellent, in-depth reporting on Chinese migration from Ecuador, featured a Chinese migrant that also fled China because of the lack of justice. Zheng Shiqing, a 28-year-old, high school migrant worker, left China after his factory wages were unlawfully withheld and the formal complaint he filed was ignored.

Economics certainly plays a major role in the increased Chinese migrants along the US’ southern border, but for both Gao and Zeng, it’s the Chinese legal system’s failure to provide for any form of redress that adds to the mix.[1] For China’s migrants, it is this lack of a rule of law that any hope that the legal system can protect the rights of the weak.

Recommended reading/listening:

Li Yuan and Michael Barbaro, How China broke one man’s dreams, New York Times’ The Daily (Feb. 15, 2024), 32 min listen.

Yong Xiong, Simone McCarthy and David Culver, The ‘walking route’: How an underground industry is helping migrants flee China for the US, CNN (Jan. 8, 2024), 15 min read.

[1] What doesn’t play a role are the far-right media’s unsubstantiated claims and racist tropes that these Chinese migrants are spies for the Chinese Communist Party.

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By Elizabeth M. Lynch, December 3, 2017

Civil rights activist, Jiang Tianyong, sitting in the courtroom awaiting his sentence on Nov. 21, 2017

Last month, and three months after civil rights activist Jiang Tianyong pled guilty to “inciting subversion of state power,” the Changsha Intermediate Court finally issued its sentence: two years in prison (much of it already served) and the deprivation of Jiang’s political rights for three years.

As far as the crime of subverting state power goes, a crime the Chinese government has increasingly used to silence its civil rights activists, things could have been worse.  Jiang is seen as a leader in China’s civil rights circles, a lawyer who has daringly taken on some of China’s most politically sensitive cases, such as representing Falun Gong practitioners as well as ethnic Tibetans in the aftermath of the 2008 Tibetan riots.  As a result of his zealous advocacy in these cases, in 2009, the Chinese government denied the renewal of his law license.  But lack of a law license did not stopped Jiang from continuing his work.  Ironically, much of his advocacy began to focus on a new vulnerable group: China’s civil rights lawyers.  In 2011, Jiang played an active role in ensuring that blind activist Chen Guangcheng’s cruel house arrest remained in the public eye.  More recently, Jiang was important in supporting many of his colleagues who were caught up in the Chinese government’s July 9, 2015 nationwide crackdown on over 200 civil rights lawyers and activists (“709 Crackdown”). Through blog posts, tweets, calls for protests and interviews with foreign media as well as with Philip Alston, the U.N. Special Rapporteur on Extreme Poverty and Human Rights, Jiang effectively kept the 709 Crackdown visible.  It is this type of ardent support for his colleagues that has made him the him the soul of the movement.

Civil rights lawyer Zhou Shifeng at his sentencing. August 4, 2016

And in a legal system where the Chinese government essentially determines the crime and sentence of any activist regardless of evidence, such a leadership role would result in a charge that could lead to a substantial prison term.  But Jiang was only charged with – and pled guilty to – the lowest level of subversion under Article 105 of China’s Criminal Law: inciting subversion of state power; a crime that carries a prison term of three years maximum.  Some of Jiang’s colleagues – those caught up in the 709 Crackdown – received harsher sentences for actually subverting state power under Article 105, not just inciting it: Zhou Shifeng received seven years, Hu Shigen seven and a half years.  And more recently, two other activists, Lee Ming-che and Peng Yuhua, both arrested after the 709 Crackdown but still part of the Chinese government’s attack on free speech, were each charged with – and pled guilty – to Article 105’s subversion of state power and were sentenced to five years and seven years, respectively.

Jiang Tianyong, second from left, and proudly standing with other activists outside of a detention center.

But make no mistake, Jiang has suffered just as much as these other activists while in detention.  According to the China Human Rights Lawyer Concern Group, Jiang was repeatedly denied access to his own lawyers and allegations of torture have emerged.    He was demonized in the state-run press and social media outlets, and, although his own lawyers could never gain access to Jiang, the state-run CCTV was able to interview him in which he “admitted” to fabricating allegations of torture of his colleague Xie Yang.  After being held incommunicado for over nine months and under who knows what kinds of conditions, on August 22, 2017, Jiang pled guilty to the crime of inciting subversion.  In his televised, in-court confession, Jiang called upon his fellow rights defenders and rights lawyers to learn from his experiences.  A shockingly far cry from Jiang’s Twitter description – “A lawyer who was born at just the right time; a lawyer who’s willing to take any case; a lawyer hated by a small political clique; a lawyer who wants to win the respect of regular folk; a lawyer who kept going even after being stripped of his law license.” (translation courtesy of China Change) – causing many, including his wife, to strongly believe that his confession was forced.

Cultural Revolution Poster: “Imperialists and reactionaries are all paper tigers”

Although much of Jiang’s ordeal calls into question the Chinese government’s commitment to the rule of law, respect for human rights and why it must continue to abuse its own people, another deeply troubling trend has emerged: the Chinese government’s anti-foreign rhetoric.  In reporting on the Jiang’s sentencing last month, the state-run Legal Daily blamed the “foreign, anti-China” forces influencing Jiang for much of his behavior.  It is that paranoia of anything foreign that is the most dangerous to the current world order.  With the U.S. retreating from its position of global, moral leader, China is seeking to rise and promote its type of leadership.  From the trial of Jiang Tianyong, that moral leadership model seeks to create societies that are not just unresponsive to its own people, but shut off from connections with the rest of the world.  But it is those connections between cultures and people that have long been a driving force of the post-WWII model and have helped to maintain the peace in much of the world these last 75 years.

But in blaming these elusive, foreign, anti-China forces, the Chinese government ignores the real reason why these civil rights activists exist: the injustices in Chinese society.  It is Jiang’s own life that is a testament as to why the Chinese government’s efforts to suppress these civil rights activists will ultimately fail.  For a long time Jiang was just an ordinary guy; after graduating from college, Jiang was a teacher for almost 10 years. But in 2004, wanting to pursue greater justice for others, he gave up teaching to become a civil rights lawyer, passing the bar exam in 2005.  People like Jiang are not motivated by foreign forces or other entities; they are motivated to correct the injustices and sufferings of others to make their society better.  The Chinese government cannot stop people from feeling that way and the real question is – why would they want to.

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By Elizabeth M. Lynch, January 20, 2017

Jiang Tianyong

For the Chinese state, human rights lawyer Jiang Tianyong (pronounced Gee-ang Tee-an Young) never seems to learn his lesson.  In 2009, after taking on a slew of politically sensitive cases such as representing Falun Gong practitioners and ethnic Tibetans prosecuted following the 2008 Tibet riots, the Beijing Bureau of Justice declined to renew Jiang’s lawyers license.

But lack of a law license did not stop Jiang from continuing to advocate for some of China’s most vulnerable. Instead, Jiang played an active role in ensuring that blind activist Chen Guangcheng‘s cruel house arrest remained in the public eye. Again the Chinese state came for Jiang.  In February 2011, after meeting with fellow advocates to discuss Chen Guangcheng’s case, Jiang was abducted by local police, beaten, psychologically tortured and held incommunicado for two months.  (For Jiang’s own description of his two month ordeal, click here). Jiang was released, but only after he promised to give up his advocacy work, stop associating with his current friends, cut off ties with foreigners and refrain from making comments on social media disparaging the Chinese Communist Party (CCP).

Jiang, on the left, with other human rights attorneys and advocates, protesting in Heilongjiang

But even in light of these guarantees, Jiang’s advocacy did not cease. Nor did the Chinese state’s reprisals, which became increasingly violent. In May 2012, Jiang attempted to visit Chen Guangcheng in a Beijing hospital.  After Jiang was denied entry, state security officers took him away, beat him and then placed him under surveillance. In 2013, when Jiang exposed Sichuan province’s largest “black jail,” a secret and unlawful detention center, he was again beaten by local police.  When, in 2014, Jiang went to Heilongjiang province to protest the detention of Falun Gong practitioners in a “legal education base,” Jiang was administratively detained for 15 days and subject to various beatings while in police custody.

Not surprisingly, Jiang, who has yet to give up his advocacy, is back on the Chinese government’s radar, this time with much more serious charges that could land this civil rights attorney in prison for life.  But there is one thing that should make this time different from Jiang’s prior detentions: the implementation of China’s new Criminal Procedure Law (“CPL”), amended in 2012.  When these amendments passed, they were herald as more protective of criminal suspects’ rights, much needed in a system with a 99.9% conviction rate. In October 2016, the Supreme People’s Court (“SPC”), Supreme People’s Procuratorate (“SPP”), and the Ministry of Public Security (“MPS”) doubled down on the 2012 amendments, issuing a joint opinion, reaffirming each agency’s commitment to a more fair criminal justice system.

But as Jiang’s case highlights, these are just  paper promises.  For Jiang, some of the provisions of the CPL are outright ignored.  But more dangerously, the Chinese police have placed Jiang under “residential surveillance at a designated location,” a form of detention that was added to the CPL with the 2012 amendment.  In the case of Jiang, this amendment is being used to keep him away from his lawyers and, with his precise whereabouts unknown to the outside world, in a situation where torture while in custody is highly likely.  So much for better protecting criminal suspects’ rights.

Why Is Jiang Under Residential Surveillance at a Designated Place?

On November 21, 2016, Jiang went missing.  According to the Legal Daily, Jiang was picked up by the Changsha police after using someone else’s identity card to purchase a train ticket home to Beijing. After being taken into custody, Jiang is now suspected of harboring state secrets, a crime that carries a three to seven year prison sentence depending how serious (Crim. Law Art. 282) and of providing those state secrets abroad, a crime that results in a sentence anywhere between five years to life depending on the severity (Crim. Law Art. 111).

However, according to an advocate close to the investigation, the police notice eventually issued to Jiang’s family also lists suspicion of inciting subversion of state power, a national security crime that the Chinese government has increasingly used to silence its civil rights lawyers.  That charge can carry a sentence of anywhere between three years to life (Crim. Law Art. 105), and where inciting subversion involves foreign entities, the punishment shall be heavier (Crim. Law Art. 106).

Jiang Tianyong’s wife, Jin Bianling, calling on the Chinese government to inform her of her husband’s whereabouts. Photo courtesy of Hong Kong Free Press

For close to a month, Jiang’s whereabouts were unknown; unknown to his lawyers and to his family.  And while this might seem illegal, China’s amended Criminal Procedure Law (“CPL”) forgoes many of the protections intended to make the system more fair when the crime of endangering national security is potentially involved. When a suspect is taken into custody, Article 83 of the CPL requires that the police inform the suspect’s family within 24 hours except for those crimes that endanger national security or involve terrorism.  Here, Jiang is suspected of subverting state power and passing state secrets abroad, two crimes that certainly endanger national security.  And as a result, the police did not inform Jiang’s family that he had been taken into custody.

In what is increasingly necessary when a civil rights lawyer lands in the exclusive control of the police and his whereabouts are unknown, Jiang’s family and friends resorted to the one tool they had left: pressuring the foreign press to repot that Jiang had gone missing.  With the story of Jiang’s abduction splashed across the international press, on December 16, 2016, the Chinese government, through the government-controlled Legal Daily newspaper informed the world that Jiang not only had been taken into custody but that he was placed in “residential surveillance in a designated place.”

Residential Surveillance in a Designated Place – likely not here.

One of the major amendments to the CPL included what China terms  a “compulsory measure” but in reality is a new form of detention: “residential surveillance” (Articles 72 through 77 of the amended CPL).  Residential surveillance might sound like a more mellow form of detention but when applied, it provides carte blanche for police to interrogate – and usually torture – a suspect without any interference from the outside world.

For any residential surveillance that occurs outside of the suspect’s hometown, or if the suspect is being investigated for crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location and while the family is required to be informed that their relative is under residential surveillance at a designated place (CPL, Art. 73), the family is not necessarily informed as to the precise location of the place.

And this is why Jiang shouldn’t be expecting any care packages in the near future from his family; they have no idea where he is.  In fact, according to a source close to the investigation, Jiang’s family first learned about his residential surveillance through the Legal Daily article on December 16, 15 days after he was placed in that form of detention.  True that the amended CPL  does a great job at severely circumscribing suspects rights once they are under residential surveillance, but the one thing that the Chinese government still gives these suspects is reuiring the  police to provide a written notice to the suspect’s family within 24 hours of placing the suspect under residential surveillance, regardless of the type of crime involved, national security or not. (CPL, Art. 73; see also Ministry of Public Security Implementing Regulations of the CPL Art. 109)  But here, according to an advocate close to Jiang’s case, Jiang’s family was not provided official notification until December 23, 2016, 22 days later.

Under the residential surveillance provisions of the amended CPL, the police are given so much power over the suspect, power that is largely illegal in other forms of detention and for other crimes. But even with this power, the police still feel the need to violate the clear language of CPL Article 73 and withhold notice to Jiang’s family.

Jiang Can Be Held for Up To Six Months and Without Access to a Lawyer

Empty chairs at empty tables – No lawyer for Jiang anytime soon

Jiang should also not be expecting any visits from a lawyer for the six months that residential surveillance at a designated place is permitted. (CPL, Art. 77)  And that’s another way that, by slapping a national security charge on a suspect, the Chinese government is able to circumscribe rights otherwise enshrined in the amended Criminal Procedure Law.

Because “residential surveillance in a designated place” usually presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)).  That permission must be granted unless the investigation would be obstructed or national secrets may be leaked (Ministry of Public Security Implementing Regulations of the CPL Art. 49)

Changsha police notice informing Jiang Tianyong’s lawyer that he cannot meet with Jiang due to crimes endangering national security (click for bigger image)

Although the regulations strongly favor meeting with a lawyer, in practice, civil rights attorneys held on charges that involve endangering national security are rarely given approval to meet their attorney.  Jiang is no exception.  According to an advocate with close ties to Jiang’s case, on December 27, 2016, Jiang’s lawyer requested permission to meet with his client.  On December 29, 2016, Changsha police denied this request, stating  that  “Jiang Tianyong was accused of crimes of endangering state security, and a meeting with lawyers would obstruct the investigation or possibly divulge state secrets.”

Codifying Illegality?

Jiang’s case makes clear that the 2012 CPL amendments have done little to curb the power of the police and that the Chinese government’s recent pronouncements that it needs to do better to protect suspects’ rights, is nothing more than window dressing. As long as the police unilaterally, and without due process, decide to investigate the suspect for crimes involving national security, all rights are essentially lost: the suspect can be held incommunicado for up to six months without access to a lawyer.  That kind of situation – with no one watching – all but guarantees torture and abuse.  Ironically, it is potential charges of endangering national security where these protections are needed most.

But, starting with the 2015 crackdown on lawyers and now continuing with Jiang Tianyong, the Chinese government has demonstrated that it will use the label of “endangering national security” to forgo the rights that it says it is committed to providing criminal suspects.  In late 2015 and early 2016, the Supreme People’s Procuratorate issued two sets of rules ostensibly to curb the police’s abuse of residential surveillance in a designated location.  But, as others have noted, the new rules seem to be designed more to ensure that everything looks good on paper than to guarantee criminal suspect’s rights and access to due process.  The case of Jiang Tianyong appears to prove that even those new regulations have had no effect.

As the rest of the world marks the seventh annual Day of the Endangered Lawyer next Tuesday, Jiang Tianyong, one of China’s great civil rights attorneys, languishes in an unknown place, likely subject to constant interrogation and torture, and without any access to a lawyer.  His rights deprived all because the Chinese police are able to claim that it is investigating him for endangering national security.  But the only thing that is being endangered by making a mockery of the protections of the amended Criminal Procedure Law is the actual rule of law.

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Thank you to China Law Translate for providing free of charge most of the translations of China’s laws used in this article. 

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By Elizabeth M. Lynch, October 17, 2016

In its 15 year history, perhaps no other annual report is as consequential as the one the Congressional Executive Commission on China (CECC) released on October 6, 2016 and in the midst of China’s push to be granted Market Economy Status.  China believes that with its December anniversary of its World Trade Organization (WTO) entry, it has a legally-mandated right to be granted Market Economy Status, a status that comes with significant trade benefits.  But the CECC’s 2016 Annual Report paints a different picture, revealing a Chinese government, under the leadership of Xi Jinping (pronounced See Gin-ping), intent on consolidating the Chinese Communist Party’s (CCP) power at the expense of a rule of law.

In 2001, Congress created the CECC after the U.S. normalized its trade relations with China.  Prior to normalization, Congress reviewed U.S. relations with China every year to determine if most favored nations status should continue to be granted to China.  Inevitably, this annual review focused on China’s human rights record and legal development.  However, with China’s accession into the WTO, a yearly Congressional

Courtesy of china.org.cn

vote on trade relations with China was no longer possible.  As a result, in agreeing to China’s entry into WTO, the CECC was created to monitor China’s human rights, review its legal development, and maintain a political prisoners database.  Part of the CECC’s mandate is to issue an annual report concerning these issues

For certain, since the CECC’s creation, China has made great progress in creating a more vibrant and reliable legal system.  The 2016 Annual Report highlights some of these positive developments.  In 2016, the Chinese government instituted reforms to its household registration system (hukou), a system that has long kept rural residents in a second-class citizen status; it eliminated its one-child policy in favor for a two-child policy; it passed an Anti-Domestic Violence Law that recognizes psychological abuse in addition to physical violence and applies to non-married couples; it passed a Charity Law that could make it easier to create non-profits in China; with reforms to the court acceptance system, Chinese courts have accepted more sensitive cases, including China’s first gay marriage case; and in the past year, the central and local governments have increased funding to legal aid.

Zhongze Women’s Found, Guo Jianmei, given the International Women of Courage Award by Michelle Obama and Hillary Clinton, March 2011. (Photo Courtesy of Roshan Nebhrajani/Medill DC/Flickr)

But as the CECC’s 2016 Report makes clear, this progress is heavily overshadowed by the government’s suppression of anything it deems a threat to its rule.  In 2016, China continued its prosecution of  civil rights lawyers on charges of “subverting state power” for zealously advocating for their clients on what the CCP determined to be a sensitive issue. Ironically, less than a month after the passage of the Anti-Domestic Violence Law, in January 2016, Beijing police ordered the shutdown of the Beijing Zhongze Women’s Legal Counseling and Service Center, a women’s rights organization instrumental in getting the Anti-Domestic Violence law passed.  And while China passed the Charity Law in an effort to encourage the non-profit sector, the passage of the Foreign NGO Management Law in April, seeks to limit the interaction of domestic NGOs with foreign ones, rendering illegal many of the effective relationships that have developed over the past decade and has resulted in an increasingly vibrant civil society in China.  In addition to passing the restrictive Foreign NGO Management Law, in 2016, the CCP increased its anti-Western rhetoric, equating those who seek political reform as being pawns of “hostile foreign forces.”

Images of Hong Kong bookseller Gui Minhai “confessing” to his crimes (Photo Courtesy of Hong Kong Free Press)

The CCP continues to censor the internet by blocking its citizens from accessing certain western media websites, including the New York Times, the Wall Street Journal and Bloomberg News. Domestically, it issues pronouncements on how Chinese journalists should be reporting certain news items and detains those who do not follow orders.  In 2016, in a throwback to the Cultural Revolution, the CCP increased its use of public confessions, having dissidents admit to their “crimes” on state television. These televised “confessions” included statements by foreign NGO worker Peter Dahlin, lawyer Wang Yu and the abducted Hong Kong booksellers Gui Min Hui, Cheung Chi-ping, Lan Wing-Kei and Lui Bo.

Beware of Foreign Forces (Photo Courtsey of DoD/U.S. Army Staff Sgt. Sean K. Harp/Released)

The CECC’s 2016 Annual Report makes clear that the Chinese government’s retreat on the rule of law front is not happening in a vacuum.  Instead, as the 2016 Annual Report notes, the CCP’s efforts come at a time when China is experiencing its slowest growth rate in 25 years.  Will that slow growth mean that the CCP will double down?  That next year will only see a further retrenchment of the CCP’s Cultural Revolution ideology of public confessions, suppression of dissent and the suspicion of anyone who is in contact with “foreign forces”?  All at the expense of the rule of law and the Chinese people?  Given this past year’s developments, the answers to these questions seem to point to yes.

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By Elizabeth M. Lynch, July 12, 2016

Lawyer Wang Yu, ABA’s inaugural International Human Rights Award recipient.

On the one-year anniversary of the Chinese government’s widespread crackdown of the country’s civil rights attorneys, the American Bar Association (ABA) finally made good.  After its tepid response last summer to the Chinese government’s detention of over 300 lawyers and advocates, on Friday, the ABA boldly awarded its inaugural International Human Rights Award to Chinese civil rights attorney Wang Yu (pronounced Wong U).

But Wang Yu won’t be in San Francisco on August 6 to accept her award.  For Wang Yu and 23 other advocates are still being held by the Chinese government, many charged with the very serious crime of subverting state power, which can carry a life sentence.  All because of their representation of some of society’s most vulnerable: the poor, religious minorities, child sex victims, intellectuals that the state has deemed an enemy such as Ilham Tohti.  In other countries, this type of representation would be celebrated.  But in China, it is seen as a threat to the Chinese Communist Party’s (CCP) rule.  Ironically, the rights these advocates fought for on behalf of their clients – the right to meet with their attorney (only 6 of the 24 have had access to an attorney), the right to a fair trial, the right to a speedy trial in accordance with Chinese law – are being denied to them as they are isolated in prison.

Wang Yu, in front of a Chinese court, with a sign stating “Return my right to see my clients”

Arrests and persecution of China’s civil rights lawyers have been ongoing since Xi Jinping ascended to power in 2012.  But what makes the July 9 Crackdown unprecedented is its scope and its public nature.  Prior arrests and prosecutions, such as that of Xu Zhiyong, have not received the public attention and the vilification that the July 9 Crackdown has received.  Soon after the mass round-up of advocates, the state-run Legal Daily ran an infographic calling these lawyers a “criminal syndicate” and heavily suggesting that these lawyers are mere conduits of foreign money and ideas as opposed to their motivation coming from their own intrinsic sense of justice. (Translation of the infographic courtesy of China Law Translate)

But what the Chinese government doesn’t get with its July 9 Crackdown is that it is its own lack of transparency, unbridled corruption and squelching of citizens’ rights that ensures that this movement will continue.  Chinese civil rights advocates might be weakened but they are far from dead; to think otherwise does not give these advocates the credit they are due.  As long as the CCP continues on its course of one-party rule with little space for public disagreement, their rise is inevitable.  Wang Yu became a civil rights lawyer after the police mistreated her in a railway station and then bizarrely charged her with “intentional assault.”  Cao Shunli (pronounced Tsao Shun-lee) was just a civil servant until she was fired from her job for alerting her supervisors to the corruption of the local housing lottery.  After that, she became a rights activists only to die in police captivity in 2014.  Tang Jitian (pronounced Tang Gee Tea-an) was a prosecutor for seven years before he could no longer stand the daily injustice and corruption endemic in the system.  He then took the test to become a criminal defense lawyer to represent those whose rights were being trampled by the state.

For sure the ABA’s awarding of its International Human Rights prize falls on the CCP’s increasingly deaf ears.  But that doesn’t mean we should remain silent as the CCP dismantles a rule of law society.  For Wang Yu, and the advocates imprisoned with her, the ABA’s award is important recognition of their work, recognition that their own government refuses to bestow even as it adopts a few of the changes they have called for to make China a more just society.

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By Elizabeth M. Lynch, October 18, 2015

When the Chinese government detained, harassed and disappeared over 280 human rights lawyers and legal activists in July 2015, the international community took notice. These simultaneous, country-wide, nighttime and early morning raids made front page news in the United States, often described as the Chinese government’s attempts to eradicate cause lawyering from its shores.

But as the Leitner Center and the Committee To Support Chinese Lawyers‘ new and seminal report Plight and Prospects: The Landscape for Cause Lawyers in China reveals, in some ways, these arrests and detentions are the least of the human rights lawyers’ worries. Instead, Plight and Prospects makes clear that over the past five years, the Chinese government has quietly and methodically used a more effective means to limit the space for cause lawyers: the law.

Although the Chinese government still relies on extra-judicial measures such a illegal detentions, torture, constant surveillance when “free,” and pressures on families, employers and even landlords in an attempt to destroy the lawyer’s life, Plight and Prospects underscores that soon these extra-judicial methods will be unnecessary. Through amendments to the Lawyers Law (amended 2007), the Criminal Law (amended 2015), the Criminal Procedure Law (amended 2012), the National Security Law (passed 2015) and through the annual lawyer licensing procedure, the Chinese government can limit the ability of cause lawyers to practice and still pay lip service to “the rule of law.”

Chinese President Xi Jinping

As Plight and Prospects points out, under President Xi Jinping (pronounced See Gin-ping) there has been a stepped-up effort to enshrine in law methods that will effectively break the cause lawyering movement. But even before Xi took power in 2012, there were already concrete efforts in the Chinese government to use the law to limit human rights lawyers’ advocacy.

Take for example, the Lawyers Law. Amended in 2007 and believed to provide the profession with greater protection to practice law, it has proven to be a double-edged sword. Sure Articles 36 and 37 of the Lawyers Law maintain that the lawyers “rights to debate or a defense shall be protected in accordance with the law,” but Article 49, which lists the examples of lawyers’ conduct subject to punishment, increased the number of categories from four to nine with the 2007 amendments. Added to the Lawyers Law as Article 49(6) was instances where a lawyers “disrupts the order of a court . . . or interferes with the normal conduct of litigation or arbitration.” Vague and unclear, this provision could be used to limit the courtroom advocacy of lawyers who take cases the government just does not like.

Lawyers Liu Wei and Tang Jitian review papers in April 2010

And in 2010, it was. In April 2010, Tang Jitian (pronounced Tang Gee-tee’an) and Liu Wei (pronounced Leo Way), two cause lawyers who had represented a practitioner of the spiritual movement Falun Gong and who both quietly left the courtroom in protest when they were unable to present their client’s defense, were hauled before the Beijing Bureau of Justice for a hearing concerning whether they should be disbarred (see China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law). While Tang and Liu both raised Article 37 – that their ability to practice law was being infringed upon – as a defense, both were permanently disbarred under Article 49(6) for “disrupting the courtroom.” (Id.).

Further attempts to limit the advocacy of human rights attorneys have been proposed more recently by the All China’s Lawyers Association (ACLA), the national bar association that operates under the guidance of the Ministry of Justice.  ACLA’s draft revisions to the Lawyers Code of Conduct (proposed in 2014), if adopted, could limit methods of advocacy that lawyers must use when representing vulnerable populations, including the use of the media and internet (draft Article 9), organizing demonstrations or “inflaming” public opinion (draft Article 11), or supporting organizations that do cause lawyering (draft Article 13).  These draft provisions are in contravention of Article 35 of the Chinese Constitution which provides for freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

When your home becomes your prison: residential surveillance

The Criminal Procedure Law (CPL) provides another example. Amended in 2012, it was hoped that the amendments would better protect suspects’ rights and ensure a more fair system. But, as Yaqiu Wang at China Change has pointed out, it left one gaping loophole: “residential surveillance at a designated place.” Articles 72 through 77 of the CPL deal with residential surveillance. Although this sounds like a more mellow way to be detained than at a detention center, for those investigations that might involve crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location – the family is informed of the fact that the person is being detained under residential surveillance (required by CPL, Art. 73), but not necessarily of the location of the residential surveillance. The suspect has a right to retain a lawyer (see CPL, Art. 73, applying CPL, Art. 33).  But because “residential surveillance in a designated place” presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)). And it is not hard to place someone under residential surveillance at a designated place. All that the police need is approval from the chief of public security above the county level. (see Ministry of Public Security Implementing Regulations of the CPL, Art. 106). Residential surveillance pending investigation is permitted for up to six months. (CPL, Art. 77).

Whereabouts Unknown: Lawyer Wang Yu

As Plight and Prospects points out, the use of residential surveillance at a designated place has been used with abandon in the current crackdown. The section entitled “Whereabouts Unknown” highlights that eight of the suspects still being held as a result of the July crackdown are held under residential surveillance at a designated place but no one outside of the police, not even their lawyers, know where. Amnesty International researcher William Nee has pointed out that although a legally-authorized form of detention under the amended CPL, it still carries with it the dangers associated with enforced disappearances: held secretly and without access to a lawyer, these suspects in residential surveillance are vulnerable to torture to force a confession.

By being able to point to the law it is using to crackdown on cause lawyers, the Chinese government likely aspires to punt the international critique of a failure to follow a rule of law. It is following a rule of law, it will say. But as Plight and Prospects notes, it is a hollow one where the Chinese government undermines its own Constitution, other provisions of many of the laws it has used in the crackdown, its international treaty obligations as well as the desires of its own people.

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By Elizabeth M. Lynch, September 17, 2014

China’s Constitution

Qian Gang over at the China Media Project took a hit for the team earlier this month when he read through the recently-published (and likely dull) volume of Chinese president Xi Jinping’s speeches.  As Qian notes, glaringly absent from “A Primer of Important Speeches by General Secretary Xi Jinping” (“the Primer“) is Xi’s ground-breaking 2012 speech that proclaimed the importance of the Chinese Constitution in ruling China.

Bye, Bye, Bye: A Disappearing Constitution

In December 2012 – with less than a year in power – Xi Jinping (pronounced See Gin-ping) commemorated the 30th anniversary of China’s 1982 Constitution with a speech extolling the virtues of that Constitution. In that speech, Xi explained that it is the Constitution which must be used to constrain the government and the Chinese Communist Part (“CCP” or “the Party”):  “[n]o organization or individual has the privilege to overstep the Constitution and the law.”  Appearing to upend prior leader’s commitment to the Party as paramount to the Constitution, Xi highlighted that “[r]ule of the nation by law means, first and foremost, ruling the nation in accord with the constitution; the crux in governing by laws is to govern in accord with the constitution” (emphasis added).

But the currently-published Primer excludes this speech.  Was this intentional Qian wonders?  As Qian points out in his post, in China, anything this important is intentional.  In a society long trained to be hyper-sensitive to a leader’s speech, back in December 2012, Xi’s speech seemed like a watershed.  An inspiration.  The editors at the Guangdong-based newspaper, Southern Weekend, sure thought so.  Only a few weeks after Xi’s 2012 speech, the editors sought to follow his lead, titling the paper’s 2013 New Year’s editorial “China’s Dream, the Dream of Constitutionalism.”

Either the Southern Weekend editors read the tea leaves wrong or, more likely, not everyone in the CCP leadership supported Xi’s call for constitutionalism.  “China’s Dream, the Dream of Constitutionalism” never saw the light of day.  Instead, Guangdong propaganda officials quickly stepped in, changing the title and watering down the article to one that was effectively a paean to the Party-controlled system of governance.

Hello, Is it Me You’re Looking For? The Constitution Re-emerges

Xi Jinping says Hello Again to the Chinese Constiution

With the suppression of the original Southern Weekend New Year’s editorial and the exclusion of Xi’s 2012 speech from the recently-published Primer, constitutionalism would appear to be dead in China, right?  Wrong.  Just last week, in a speech commemorating the 60th anniversary of the founding of the National People’s Congress (“NPC”),  Xi again raised the banner of constitutionalism, stating that the Constitution was China’s most basic document and that ruling the nation must be done in accordance with that Constitution.

Did Xi just not get the hint? Hardly. As Qian Gang, in a new blog post at China Media Project points out, what we are seeing is a rhetorical power play at the highest levels of the CCP.  Xi’s recent pronouncement demonstrates that he wants to continue with this idea that the Constitution is crucial to the CCP’s governance.  But then there are others – others that might have had influence on the final cut of speeches from Xi’s Primer – who are just not that into constitutionalism.   Likely demonstrating the power of this other group, the Global Times, a conservative government-run newspaper, ran an editorial in its English edition noting that “…the popularity of constitutional governance in the public sphere has only brought negative results in recent years. We propose replacing the concept with the rule of law” (the Chinese version of the editorial is slightly different, putting Xi’s concept of constitutionalism in a historical context).

If you are dying to know what happens to the Constitution in current Party rhetoric – does it stay or does it go – you only have to sit tight for a

Another CCP Plenary is to Occur in October with Rule of Law as the Topic of Conversation

month.  In October, the CCP will hold the fourth plenary session of the CCP’s 18th Central Committee and the central agenda item is rule of law.  As the CCP recognized in its announcement, the rule of law is “vital for the Party’s governance, people’s happiness and the nation’s stability.”    Expect the Xi camp to call on that rule of law through the Constitution; expect there to be opposition.  How public this battle will be is anyone’s guess.  Evidently the rhetorical use of the Constitution is causing divisions within the leadership.

But Does the Constitution Make A Difference in China’s Political-Legal System?

But Xi is far from a constitutional convert, at least not in the Western sense.  Even with this rhetorical debate at the upper echelons of the CCP, Xi’s constitutional dream is far from a free society that promotes individual’s civil rights.  Rogier Creemers, a post-doctoral research officer at Oxford’s Programme in Comparative Media Law and Policy, explained this to China Law & Policy.  The State is merely a reflection of the society which it governs and according to Creemers, “the [Chinese] State is there to restore the Chinese nation back to its collective greatness.  One of the key ways in which the CCP justifies its rule is that it knows best how to generate [that] development.  In that sense, law should not be used to constrain the State in its search for national rejuvenation, but to consolidate the progress that has been made on the road towards it. In the economic realm, that means law very often is the outcome of years of policy experimentation, while in the criminal realm, it means vast powers for the State to deal with those who would oppose it, where necessary.”

What is Rule of Law in China?

Thus, even for Xi, use of the Constitution is very top down and is not necessarily that divergent from the official concept of “rule of law.”  The Global Times, in its Chinese version of the editorial makes that clear.  To the Global Times, constitutionalism should be constructed as a neutral term, more in line with what the CCP has determined is the rule of law (“宪政本来是个中性词，与依法治国混用未尝不可”).  China-watcher Shannon Tiezzi, in the Diplomat, perfectly put her finger on what this rule of law is:  “the rule of the CCP through the law. The CCP still controls the legal system, but uses it as one of many available tools to enforce edicts from the center.”

Xi, even with his rhetoric of the Constitution, follows that Party line.  Hence his focus on the idea that the Constitution guarantees that no Party member can act outside of the confines of that document (think Bo Xilai and Zhou Yongkang, both powerful party members that have been taken down by Xi).  But that enforcement still emanates from the center; there is no place for grassroots to help with Xi’s crackdown on government corruption.  Activists Xu Zhiyong (pronounced Sue Zher-young), Liu Ping (pronounced Leo Ping), Wei Zhongping (pronounced Way Jung-ping), and Li Shen (pronounced Lee Shen) know this first hand.  In attempt to fight corruption, all publicly demanded that government officials disclose their assets.  All four have been sentenced to prison terms from three to six years under Xi’s rule.

For Xi, the elements of the Constitution that call for individual rights are to be ignored, which fits with Creemer’s  contention of the purpose

Activist Liu Ping in a photo before she was sentenced to six and a half years in prison

of the State in China.  In fact, Xi’s reign has witnessed one of the largest crackdowns on human rights activists since likely 1989.  As the non-profit Chinese Human Rights Defender‘s has noted, since March 2013 – just three months after Xi’s Constitution speech – in addition to the four mentioned above, over 70 rights activists, lawyers and citizens have been detained, arrested, imprisoned or just “disappeared.”  Their crimes? Usually the minor charge of “gathering a crowd to disrupt order in a public place” or “provocation and causing a disturbance,”  charges distorted by public security forces beyond their original meaning.  The real issue?  These activists often call upon the government to protect their constitutional rights.

Rule of law in China “is about delivering economic outcomes and a certain ideal of virtuous behavior by agents of the State” Creemer  stated.  Nothing in Xi’s rhetorical use of the Constitution diverges from that concept.

Does use of the Word Constitution Mean this Type of a Government?

But the Party is nervous about Xi’s continued use of the word, hence the Global Times editorial which criticizes the “liberals -自由派” (likely the rights activists who have been thrown in jail) who seek to “distort” this Party-mandated perception of the rule of law and putting others on guard to avoid such “traps.”  But can the idea of constitutionalism be raised without giving life to those provisions of the document Xi and the Party would rather ignore – freedom of speech, of association, of religion?  Is Xi’s conception of the Constitution – which would limit official corruption and provide for greater economic development – enough to satisfy the masses?  Or will the Chinese people continue to demand that the Chinese dream be a Western-style constitutional one?

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By Elizabeth M. Lynch, August 11, 2014

China Law & Policy is upgrading!

For those who are regular readers of China Law & Policy, you likely have noticed that we haven’t posted a piece in two weeks.  That is due to the fact that China Law & Policy is doing some upgrades behind the scenes that is requiring a lot more of our time and will also require us to stop blogging for another week or so.  But soon things will be faster, better and brighter here at China Law & Policy providing for a better experience for our readers.

In the meantime, while the summer rolls on, more rights attorneys are being prosecuted in China, Zhou Yongkang is now officially in trouble, and there has been a serious step-up in foreign prosecutions in China on criminal and anit-trust issues.  A few weeks ago, George Washington law professor Don Clarke did any fun podcast on these as well as on rule of law in China generally with the boys over at Sinica.  So in the meantime, you can listen to it by clicking here to get to the Don Clarke Sinica webcast.

Hopefully we will be back to blogging on a regular basis by the end of next week!

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By Elizabeth M. Lynch, June 25, 2014

Criminal Defense Lawyer Tian Wenchang

With the hoopla surrounding actor Huang Haibo’s six month sentence under China’s Custody & Education (“C&E”) system – an administrative punishment outside of the court system – on June 9, 2014, Beijing News ran an article examining that system. Included with the article was a telling diagram that highlighted the lack of a legal basis for C&E. The article effectively called for the repeal of C&E.

For an explanation of C&E and the current debate, see China Law & Policy’s previous post here.

That article is no longer available on the Beijing News website. However, it can still be found here. Additionally, below, China Law & Policy translates the portion of the article that was an interview with Tian Wenchang (pronounced Tea-en When-chang), one of China’s most famous attorneys and the current director of the Criminal Law Committee of the All-China Lawyers’ Association. In the short interview, Tian persuasively argues for C&E’s abolishment.

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Beijing News [BJN]: As one of the people pushing [for reform], why do you want think to do this?

Tian Wenchang [TWC] (Director of the Criminal Law Committee of the All-China Lawyers’ Association): The fact is that after Reeducation through Labor (“RTL”) was abolished, people forgot about Custody & Education (C&E). But because a case relating to C&E recently emerged, society is once again examining C&E, questioning whether it is legitimate and whether it should still exist.

BJN: What do you consider to be the biggest problem with C&E?

TWC: The biggest problem is with C&E is the same as with RTL: administrative agencies can deprive individuals their liberty without due process, so lots of problems appear in implementing it.

BJN: What kinds of problems?

TWC: For example, for sex workers and their clients, after undergoing an administrative punishment [under the Public Security Administrative Punishment law], public security bureaus are able to decide on their own whether the individual should also receive a C&E sentence. There are no specific standards to guide this decision. For example, six months to two years of custody, how is this term determined; it’s very possible that there are variations in the implementation. Without due process and public transparency, it’s easy for there to be a hidden agenda.

BJN: Six months to two years, is that too heavy a punishment for prostitution and solicitation?

TWC: Under the Public Security Administrative Punishment Law, [the police] are able to keep someone in custody for 15 days for a prostitution-related offense. But under C&E, the maximum sentence may be up to two years. This is often more severe than the punishment under the criminal law. Whether this [disparity] is fair or not is pending discussion.

Repealing C&E Will Likely Take A Long Time

BJN: Based on your observation, do local public security bureaus often use C&E as a form of punishment?

TWC: My understanding is that in the overwhelming majority of provinces in the country, C&E is not used very often. But this does not mean that the public security bureaus do not have the right [to use C&E]. So long as they have this right, there will be problems.

BJN: What is the relationship between C&E and RTL?

TWC: Because both are systems that restrict personal liberty, in essence they are the same. It is only the people targeted and the length of the punishment that are different. Furthermore, both are systems that don’t go through the judicial process and instead the administrative agencies unilaterally make the decision. In looking at the legal principles governing C&E, the public security bureaus don’t have a problem; rather the C&E-related legal provision are not in line with the current law. As a result, they must be repealed.

BJN: How likely do you think are the proposals to abolish C&E?

TWC: It will be like RTL which took a long time to repeal; I think repealing C&E will be like that.

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Interview Portion of the Beijing News Article on C&E – Full Article Can Be Found Here

新京报：作为推动人之一，为什么想到做这个事情？

田文昌（全国律协刑事专业委员会主任）：实际上在废除劳教制度后，收容教育制度正在被人们遗忘。但是最近相关案件的出现，让社会重新对它开始有所审视，这个制度到底合不合理，应不应该存在。

新京报：你认为收容教育制度最大的问题是什么？

田文昌：最大问题是它和劳教制度一样，行政机关可以直接剥夺人的人身自由，没有经过正当的司法程序，执行过程中会出现很多问题。

新京报：会有哪些问题？

田文昌：比如说，一个卖淫嫖娼人员，在经过行政处罚后，公安机关可以决定是否进行收容教育，这个决定没有特定的标准。再比如6个月到2年的收教，这个期限怎么判定，很可能出现执行偏差。没有正当的司法程序，没有向社会公开，里面容易有猫腻。

新京报：6个月到2年的收教期限，对于卖淫嫖娼处罚重吗？

田文昌：按照治安处罚法，卖淫嫖娼犯罪行政拘留15天。但是收容教育最高可到两年，这个在很多时候比刑罚还要严重，合不合理是有待商榷的。

　　废止收容教育或需很长时间

新京报：据你观察，各地公安机关用收容教育制度惩戒的情况多不多？

田文昌：据我了解，全国绝大多数省份用这个制度的已比较少了。但是这并不表示公安机关没有这个权力，只要有这个权力，就可能出问题。

新京报：收容教育和劳教制度有什么关联？

田文昌：本质上都属于限制人身自由的制度，是相同的，只是针对的人群和惩戒的期限不同。另外，它们都是没有经过司法程序，行政机关就可以单方决定的制度。从法理上看，收容教育制度并不是公安机关的问题，毕竟以前有这样的相关法规，但是已经和现在法律制度不协调，所以应废止。

新京报：你认为这次建议废止收容教育制度的可能性有多大？

     田文昌：和劳教制度一样，推动废止需要很长的时间，我想废止收教制度也是如此。

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By Elizabeth M. Lynch, June 23, 2014

Actor Huang Haibo

Unfortunately, it took the detention of a famous male actor for the Chinese media to criticize an unlawful detention system that has long been used against low-income female sex workers. Last month, actor Huang Haibo (pronounced Hwang Hi-bwo), affectionately known as China’s clean-cut “son-in-law,” was detained after he was found with a prostitute in his upscale Beijing hotel room.

Prostitution is illegal under China’s criminal law (Crim. L. Arts. 358-59), but neither Huang nor the sex worker was formally arrested. Neither was charged with a crime. Neither ever saw the inside of a courtroom. But both received a six-month sentence under China’s “Custody and Education” (“C&E”), another punishment in China’s myriad administrative detention system where the police serve as prosecutor, judge and jury. Under C&E, the police can unilaterally detain sex workers and their clients for anywhere from six months to two years.

C&E continues even though last November, the Chinese government herald its abolishment of another administrative detention punishment: the notorious “Re-education Through Labor” (“RTL”). Now, with the detention of one of China’s most famous actors, the spotlight is on C&E. China’s media, including the state-run media, is calling for its abolishment. But will C&E go to the same way as RTL?

C&E’s Dubious Legal Status

It’s not surprising that C&E, formally in existence since 1991, has not garnered much press prior to the detention of Huang Haibo. It is a punishment that is reserved exclusively for sex workers and their clients and according to Asia Catalyst‘s seminal report on the topic, the punishment has largely fallen upon lower-income women who often have no other career options, not your usual feel-good story that mainstream media prefers.

But the Beijing police diverged from the usual pattern when, on May 15, 2014, it went after Huang Haibo and presumably a high-end

Potential Victim of China’s Custody & Education System (Photo Sim Chi Yin for The New York Times)

prostitute. Immediately following the May 15 detention, the Beijing police – through their Weibo account (China’s version of Twitter) – alerted the world to Huang’s detention. At first, the police gave Huang and his cohort a lighter sentence of 15 days administrative detention under the more generic Public Security Administrative Punishment Law. But on May 30, 2014, the Beijing police unilaterally decided to continue Huang’s detention, sentencing him and his cohort to six months in C&E which falls under the regulation entitled Measures for the Management of C&E Centers (“C&E Management Measures”).

It was that six-month sentence – a much more serious deprivation of liberty than the prior 15 days – that caused popular uproar with various editorials questioning C&E’s legal status. But even prior to the Huang Haibo incident, back in early May, many China human rights lawyers, including Pu Zhiqiang (pronounced Poo Zhir-chee-ang), recently arrested for “creating disturbances and illegally obtaining personal information,” signed a petition calling for C&E’s abolishment stating that under Chinese law, C&E is illegal.

Recent editorials, including an interview with the director of the Criminal Legal Affairs Committee of the All-China Lawyers’ Association, Tian Wenchang (pronounced Tee-an When-chang), have echoed the arguments found in that May petition which received scant attention at the time. Almost every editorial notes the non-transparent nature of C&E. There is no impartial judge that the individual can appeal to; there is no lawyer. Instead, under the C&E Management Measures, the police have complete power to determine if C&E is appropriate and the length of the sentence. While there is an appeal mechanism, the first step is to ask the police to reconsider the sentence (Art. 20). Only after that reconsideration can the individual seek to bring a lawsuit against the state. But without a lawyer, that rarely happens.

An RTL camp in Shijiazhuang, Hebei province. (File photo/CFP)

Similar factors – the unilateral decisions of the police and absolutely no judicial oversight – pushed the public to call for RTL’s abolition.  But those due process violations alone were not enough to overturn RTL. Also instrumental was the fact that RTL was not based in law. According to the China’s Legislation Law, the law that sets the basic ground rules on how all other laws and regulations are to be written, “[o]nly national law may be enacted in respect of matters relating to. . . (v) . . . compulsory measures and penalties involving restrictions of personal freedom. . . .” (Art. 8). Thus, only the National People’s Congress (“NPC”) or the NPC’s Standing Committee is entitled to make “national law.” And any attempted to deprive an individual of his or her liberty must be based on laws passed by the NPC or its Standing Committee.

In the case of RTL, the three sets of rules that governed the system – the 1957 Decision, the 1979 Supplemental Decision and the 1982 Trial Rules – were instituted by the State Council and the Ministry of Public Security, not by the NPC or its Standing Committee. As a result, RTL was in violation of legal procedure. Making its abolishment legally necessary.

Similar arguments are being made in regards with to C&E.   C&E was first established by the 1991 Measure on the C&E of Prostitutes & Their Clients which was in fact passed by the NPC’s Standing Committee. In that document, the Standing Committee delegated to the State Council the right to draft the C&E Management Measures, the measures which deal with the deprivation of individuals’ liberty. But again, the China’s Legislation Law, this time Article 9, clearly does not permit the NPC or its Standing Committee to delegate the right to draft regulations pertaining to the deprivation of liberty. As a result, the State Council’s 1993 C&E Management Measures are without legal effect, making the whole C&E system in violation of the law.

Will C&E Go the Way of RTL?

There are certainly strong if not convincing legal claims for C&E’s abolition. But one thing to factor in is the amount of money which the

Cha-ching! Women in a Custody & Education Center (Photo from Weibo)

public security bureaus (“PSB”) make off of C&E as highlighted in the Asia Catalyst report. Under C&E, detainees are required to work and although the Management Measures imply that the detainees be paid (Art. 13), they very rarely are. Instead, the income goes to the local PSB’s coffers.

Another source of income: the detainees themselves. Ironically, the Management Measures require that the detainees completely cover the costs of their own detention (Art. 14); RTL did not contain such a provision. As the Asia Catalyst report documents, these costs are substantial and likely inflated – six months in a C&E costs an individual between 5,000 to 10,000 yuan (US $820 to $1,639). Also inflated are the costs of goods. According to the Asia Catalyst interviewees, goods are several times more expensive than on the outside.

With the free labor and the ability to charge detainees for their custody, C&E centers are an important profit center to local PSBs. It’s the local PSB’s profit-motive that will make abolishing C&E more of a challenge. As the Asia Catalyst report points out, local PSBs did not fare so well when China became a market economy and have had to find ways to support themselves. One way is through C&E centers.

Allegedly the woman found with Huang Haibo – a Chinese “any one”?

And on some level, the Chinese government and local PSBs have to recognize that sex workers and their clients do not garner the same level of societal sympathy as those who were getting caught up in RTL. Tang Hui (pronounced Tang Hway), a mother of an 11 year old girl who was raped and sold into prostitution, became the poster-child for the dangers of RTL. After her daughter’s rapists, kidnappers and pimps were given a slight slap on the wrist, Tang protested. But that protest is what landed her in an RTL camp. When she got out, she sued, receiving a tremendous amount of public support and highlighting the dangers of RTL. Similarly, in 2003, when China abolished Custody & Repatriation, another form of administrative detention, the public was aghast that an innocent college student, Sun Zhigang (pronounced Son Zher-gang) could get caught up in such a system and end up dead in police custody.

Tang and Sun were China “any ones” – anyone could be a grieved mother; anyone could be a young

Will public attention to C&E pass once Huang Haibo is freed?

college student. Anyone could have been entrapped by such an unjust system. But here, with C&E, the individuals involved are sex workers, and lower-income, less-educated sex workers. Although C&E has the same abuses as RTL, most Chinese do not fear that they will find themselves entangled in the C&E system. There is a high likelihood that the public spotlight that is currently on C&E will fade once Huang Haibo is freed.

But at the very least the Huang incident has caused the international media to focus on the C&E

system. Supposedly the Chinese Communist Party was intent on repealing RTL because it is an obvious roadblock to its ability to ratify the UN’s Convention on Civil and Political Rights, a treaty which forbids the deprivation of liberty without due process of law and court oversight. But C&E – now that it has been exposed more publicly as a result of the Huang Haibo incident – needs to be abolished before China can ratify that treaty.