Tuesday, March 6, 2012

Detention House Rules Can’t Accommodate Oversight

On March 1, China’s State Council published long-awaited rules governing the management of police-run detention houses (拘留所). Also known as administrative jails, these facilities are primarily used for people given administrative detentions of 10 to 15 days for violations of the Law on Public Security Administration Punishments. (Detention houses are different from criminal detention centers (看守所), which are police-run facilities that hold individuals being investigated or prosecuted for violations of the Criminal Law.)

The regulations include many new protections for detainees, including prohibitions of forced labor and detainee abuse, provisions guaranteeing health and safety standards, and a requirement that relatives be notified “promptly” after detainees are taken into custody. Beijing-based criminal lawyer Tang Hongxin told China Daily that the new provisions are “up to international standards” and will offer better protection to detainees “if they can be enforced well.”

The need for improved detention-house regulation has been evident for some time. The jails are currently regulated by provisional rules formulated in 1990, well before more progressive thinking about rule of law and the need to protect individual rights began to take firm hold in China. Moreover, the nation’s detention facilities have come under scrutiny in recent years for a spate of suspicious detainee deaths that were widely reported by domestic media. Concern over the deaths, and their implications for poor jail management, has been compounded by police who have attributed them to seemingly incredible causes, like falling out of bed during a nightmare or drowning while washing one’s face.

The majority of reported incidents took place in criminal detention centers, but administrative jails have not been immune. It is notable, then, that the new regulations eliminate a draft provision that would have required police to report unnatural deaths and procuratorates to investigate their cause. This is one of several provisions involving external procuratorial oversight that were struck from the rules that become effective next month. Other provisions, including a ban on using detainees to control other detainees, were also removed.
Professor Li Kejie.
Photo credit:
Shandong University of
Political Science and Law

Li Kejie (李克杰), a law professor at the Shandong University of Political Science and Law, argues in a Legal Daily article (translated below) that the omissions demonstrate the limitations of administrative regulations, which are rife with institutional interests. In this case, police may have chosen to omit certain provisions to reduce demands on enforcement, which is their responsibility. It is also simply the case, Li notes, that State Council agencies like the Ministry of Public Security have no authority to legislate action by judicial bodies like procuratorates or the courts. Thus, in order to establish adequate procuratorial oversight of administrative jails, administrative regulations are ineffectual and a law enacted by the National People’s Congress is essential.


Detention House Rules Bound by Administrative Regulation [Status]
Li Kejie, Legal Daily
March 5, 2012

The State Council recently issued Detention House Regulations (拘留所条例) that will take effect on April 1, 2012. The regulations require detention houses to protect the personal safety and legal rights of detainees in accordance with the law; prohibit the act of or the permission or instruction of others to humiliate, corporally punish, or abuse detainees; and prohibit forced labor. However, compared to the previous discussion draft, [the regulations] also eliminate provisions for things such as “submitting to oversight by the procuratorate” and “notifying relatives within 12 hours of custody” (The Beijing News, March 2).

With everything from content to form, the Detention House Regulations clearly show progress towards rule of law. In terms of content, the regulations strengthen the protection of detainees’ rights, providing: when carrying out a detention, [one] shall inform detainees of their rights and promptly notify their relatives. During detention, [one] shall provide detainees with food and drink and respect their ethnic dietary customs; guarantee at least two hours per day of activity outside the holding room; prohibit forced labor; not monitor or intercept correspondence; and not monitor or intercept documents such as those [necessary for] detainees to lodge a complaint or request administrative review. Detainees enjoy visitation rights and may request leave for school-entrance examinations, the birth of a child, or the life-threatening illness or death of a close relative.

In form and in terms of legal hierarchy, the rules are administrative regulations. When they come into effect, they will replace the internal rules that have been used for the past 22 years, strengthening the authority of rule-making and displaying abundant respect for and effective protection of citizens’ personal rights.

However, we also note with disappointment that the formally announced Detention House Regulations concurrently eliminate several major provisions that were included in the discussion draft. These include provisions like “detention houses carrying out detention activities shall submit to legal oversight by procuratorates,” “the death of a detainee from unnatural causes shall be reported to the procuratorate and investigated immediately,” “relatives shall be notified within 12 hours of custody,” and “detainees must not be used to manage other detainees.” Speaking as a matter of rule of law, I think that these provisions ought to be included in the national legal document that governs detention houses. But why were they ultimately removed? Based on my analysis, there are probably two major reasons: First, the regulations strongly tend towards institutional rulemaking, and [provisions] were [thus] eliminated to make enforcement more convenient for the institution or to accommodate reality. The last two of the aforementioned provisions may fall under this category. Second, limited by their nature as administrative regulations, the rules cannot issue orders to procuratorates. So in order to avoid overstepping legislative authority, it was necessary to remove [certain provisions]. The first two of the aforementioned provisions would fall into this group.

In my view, both of these reasons clearly show the limitations of administrative regulations. The only way to better resolve the problems associated with detention houses and have their work follow a truly norm-abiding, rule-of-law path is to speed up the legislative process of the National People’s Congress (NPC) and promptly enact a law on detention houses. Even though administrative regulations enjoy considerable authority in China, they are ultimately administrative legislation that, according to Chinese conventional practice, is mostly drafted by enforcement agencies. Commonly called “institutional rulemaking,” the provisions and even principles of such laws are strongly infused with institutional interests, and many considerations are made to convenience management and enforcement, while insufficient consideration is given to the legal rights of those being managed. As such, there are always doubts about the fairness of “institutional rulemaking.” On the other hand, NPC legislation is able to enact laws that are much fairer and take into account the interests of all parties. This is by virtue of its high level of democratization in which various voices may openly compete as well as the impartiality of the NPC as an institution.

When it comes to issues concerning procuratorial oversight, it is certainly inappropriate for administrative regulations to provide specific provisions. First, there is currently insufficient direct legal basis for [a provision saying that] “detention houses carrying out detention activities shall submit to legal oversight by procuratorates.” Looking at China’s Organic Law of the People’s Procuratorates and Law on Prosecutors, there are only provisions covering legal oversight of prisons and detention centers (看守所), while no provisions concern procuratorates’ legal oversight of detention houses (拘留所). If the Detention House Regulations added such provisions, it would raise concerns that the State Council had exceeded its legislative powers.

“Procutorial oversight in the event that a detainee dies of unnatural causes” should be treated differently. A regulation requiring that “the procuratorate at the same [administrative] level shall immediately investigate and determine the cause of death” also seems like something that an administrative regulation is unable to stipulate because it also involves the separation and arrangement of power. But there is nothing wrong with “the detention house shall immediately notify the procuratorate,” because it has a legal basis. This is because, first of all, the public security organ must avoid suspicion, and second of all, the procuratorate has the legal responsibility to investigate crimes of dereliction of duty. When an unnatural death occurs in a detention house, the procuratorate should arrive at the scene as soon as possible—this is the fundamental requirement set out in Article 18(2) of the Criminal Procedure Law.

(Author is a law professor at Law School of the Shandong University of Political Science and Law)