Tuesday, June 10, 2014

Detained Actor Spotlights Custody and Education, Censors Intervene

Huang Haibo. Photo credit: sohu.com

On May 15, police in Beijing detained well-known Chinese actor Huang Haibo for soliciting a prostitute. He and the prostitute were each subjected to 15 days of administrative detention, after which police decided to send them both to custody and education—a custodial measure targeting sex workers and their clients—for an additional six months. Reversing an earlier decision, Huang's Weibo account announced on June 8 that he will not appeal. On June 9, he terminated the contract with his lawyer Mo Shaoping.

The Chinese public has largely responded with sympathy for Huang and a sense that his punishment is excessive. Since the abolition of reeducation through labor (RTL) in 2013, the Chinese public seems to have become less tolerant for measures that enable police to detain individuals for extended periods without proper legal basis or due process. This has led some to push for abolition of “quasi-RTL” measures like custody and education.

In fact, there were signs of a healthy public debate over custody and education even before Huang’s case helped put the measure in the spotlight. In early May, more than 100 individuals signed a petition calling on the National People’s Congress (NPC) Standing Committee to abolish custody and education. After Huang’s arrest, on June 7, a group of legal experts, scholars, and lawyers met in Beijing leading to another proposal recommending formal abolition of the custody and education system.

Like the debate over RTL in 2012, many of the controversies surrounding custody and education have received widespread attention from the Chinese media. One article, however, appears to have crossed an invisible line. On June 4, an article entitled “What is the Legal Basis for Custody and Education?” was published on the front page of Procuratorate Daily, the official newspaper of the Supreme People’s Procuratorate, one of China’s main law-enforcement bodies. According to a report received by the China Digital Times website, media outlets were later instructed not to republish this article and immediately delete it from their online sites. On the website of Procuratorate Daily, the article is visible on an image of the front page of the June 4 edition, but links have been broken to both that article (available via web cache) and a more legible image of the front page.

It is not clear why this particular article was singled out for censorship. One possibility might be its concluding emphasis on the need for more effective ways for Chinese citizens to challenge the constitutionality or legality of measures or legislation. Although popular discontent over measures like “custody and repatriation” or RTL eventually led officials to abolish these detention measures, the initiative for action has very much remained in the hands of Chinese authorities. Establishing a routine mechanism for constitutional review—like the one suggested in this article—is liable to shift some of that initiative to society, and to give citizens a channel through which to assert the supremacy of constitutional principles and rule of law. China’s current leaders have expressed a certain degree of hostility to a system of constitutional checks and balances, and this article may have tested the limits of that attitude.

What is the Legal Basis for “Custody and Education”?

Xiao Rong
Procuratorate Daily, June 4, 2014

Experts believe that custody and education is unlawful and unjustified and that those sent for custody and education can protect their rights in accordance with the law

Recently, the decision to send actor Huang Haibo to custody and education has put the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes [hereafter, “Custody and Education Measures”] in public view. It has also raised many questions: Is custody and education lawful and justified? Does sending a prostitute or client of prostitutes to custody and education after [they serve] administrative detention violate the prohibition against “double jeopardy”? How should a review mechanism be initiated for “evil laws” that violate the constitution and Legislation Law? On June 3, Procuratorate Daily interviewed legal scholars regarding these questions.

Back on September 4, 1993, the State Council issued the Custody and Education Measures in response to the NPC Standing Committee’s 1991 Decision on the Strict Prohibition of Prostitution. According to these measures, which the State Council revised in 2010, “Prostitutes and the clients of prostitutes, in addition to the penalties provided for under Article 66 of the Public Order Management Penalty Law of the People’s Republic of China, in those cases in which RTL is not yet necessary, may be placed under custody and education by the public security organ.” Custody and education, which can last from six months to two years, primarily involves collective legal and moral education, arrangement of productive labor, and testing and treatment for sexually transmitted diseases for prostitutes and the clients of prostitutes.

“Custody and education is a compulsory measure restricting personal liberty that falls between general administrative penalties and RTL. However, the Administrative Compulsion Law does not have any provision for this kind of compulsory measure,” says Qi Dongwen, assistant professor at Chongqing University of Posts and Telecommunications Law School. Qi believes that the custody and education system is unlawful, both in terms of its legislative status and content.

According to China’s constitution, the personal freedom of citizens is inviolable. According to Article 8 of the Legislation Law, enacted in 2000, compulsory measures and penalties that deprive citizens of their political rights or restrict their personal freedom may only be enacted by law. Jiang Ming’an, director of the Center for Constitution and Administrative Law Studies at Peking University, told Procuratorate Daily that the provisions of the Decision on the Strict Prohibition of Prostitution involving restriction of personal freedom are in conflict with the aforementioned provision of the Legislation Law because that decision is not an act of law. Moreover, Article 9 of the Legislation Law states: “If laws have not been enacted regarding the matters specified in Article 8 of this law, the NPC or its Standing Committee has the power to make a decision to authorize the State Council to formulate administrative regulations first for some of those matters, based on actual needs, excluding criminal offenses and their punishment, compulsory measures and penalties involving deprivation of citizens’ political rights or restriction of the freedom of their persons, and the judicial system.” Therefore, the Custody and Education Measures are also in conflict with the Legislation Law. Qi Dongwen adds: “Custody and education also conflicts with the 2005 Public Order Management Penalty Law, which provides for detention or fines for prostitutes and their clients and makes no mention of custody and education.”

In the view of Fu Dalin, assistant professor at the Xi’an Institute of Political Studies [a unit of the People’s Liberation Army], custody and education is a coercive measure that took shape as part of China’s social management process that specifically targets prostitutes and their customers. In light of its own particular background, it has a certain degree of justification. However, since the enactment of the Legislation Law and Administrative Compulsion Law, the illegal and contradictory nature of this system has become increasingly apparent, and there is no further need for it to exist.

Does it violate the prohibition against “double jeopardy” to send prostitutes and their clients to custody and education after placing them under administrative detention? Fu Dalin told Procuratorate Daily that if you look simply at legal statute, custody and education following administrative detention does not count as “double jeopardy” because custody and education is not an administrative penalty. But looking from the perspective of law enforcement, administrative compulsion involves placing temporary restrictions on a citizen’s personal freedom in accordance with the law or taking temporary control of property belonging to a citizen, legal person, or other organization in accordance with the law, all for the purpose of preventing unlawful behavior, avoiding harm from occurring, and controlling the spread of danger. In prostitution cases, administrative detention or fines should be sufficient, and there is no need to impose additional custody and education.

Given that custody and education lacks clear lawfulness or justification, can Huang Haibo and others sent to custody and education protect their rights [through legal channels]? Fu Dalin says they can: “No matter whether it is an administrative coercive measure or an administrative penalty, if the person concerned believes the measure is unlawful he or she may file administrative litigation in accordance with the law in order to protect his or her own lawful rights and interests.”

Qi Dongwen says: “The Sun Zhigang incident led to the abolition of the custody and repatriation system. Complaints by petitioning mother Tang Hui led to the abolition of RTL. I believe that Huang Haibo’s case is a good chance to initiate the constitutional review mechanism and call an immediate halt to the custody and education system.” Fu Dalin recommends that there ought to be a regular channel within the state’s institutional arrangement for resolving difficult questions of constitutional review. “The review process established in the current Legislation Law only involves the ‘Part One’ issues of raising requests or recommendations for review,” says Fu. “There needs to be additional content added for the more crucial stage of ‘Part Two.’ Review of the Legislation Law is in the works, and I hope that it will establish an appropriate mechanism for constitutional review and oversight.”