Call for Constitutional Review of Custody and Education

Zhu Zhengfu, Vice President of the All-China Lawyers Association and member of the Chinese People’s Political Consultative Conference. Image Credit: Weibo.

In the lead up to this year’s session of the National People’s Congress (NPC), prominent Chinese lawyer, Zhu Zhengfu, called on the NPC to review the constitutionality of the system of custody and education (收容教育). Zhu is the Vice President of the All-China Lawyers Association and a member of the Chinese People’s Political Consultative Conference. Custody and education is a form of administrative detention designed to punish both sex workers and their clients.

Those who find themselves in one of these centers can be detained for up to two years without judicial process. Similar to previous debates over the system of “re-education through labor,” which was abolished in 2013, calls for the abolition of custody and education have been made ahead of the annual NPC meeting. The detention of well-known Chinese actor Huang Haibo in 2014 for soliciting a sex worker also helped put a spotlight on the coercive measure.

During the 2016 NPC session, Taiwanese delegate Zhang Xiaodong proposed to the NPC, on similar grounds as Zhu, that custody and education be abolished. In this years’ proposal, Zhu emphasized the weak legal basis of the system, specifically citing its inconsistency with the Constitution and the Legislation Law.

As a form of administrative detention, custody and education is exclusively overseen and carried out by public security organs and is beyond the supervision of procuratorates and courts. Public security organs have comprehensive control over the investigation and incarceration process as well as the operation of the custody and education centers, an environment in which abuse of power thrives. The centers were originally created with the goal of educating and rehabilitating sex workers and treating sexually transmitted diseases (STD). The education detainees received was intended to direct them towards other occupations upon release, while the treatment of STDs would help contain ongoing public health issues such as the prevalence of HIV/AIDS.

Instead, the centers are often riddled with stories of arbitrary arrests, forced and unpaid labor, and charging detainees fees for their living and medical expenses as well as their rehabilitation treatments. Detainees undergo compulsory testing and treatment for STDs, which they must bear the costs of; many are not informed about the results of their tests or provided adequate counselling. The centers not only violate detainees’ right to health and privacy, but critics argue that they have also been counterproductive at achieving their goal. Detainees frequently return to sex work upon release, having failed to obtain an education, new professional skills, or the health services and counselling needed to protect themselves as they reenter the sex work industry.

Experts estimate that somewhere between 18,000 to 28,000 individuals are sent to custody and education centers each year. From 1987 to 2000, more than 300,000 people had been housed in custody and education centers across China and as of 2014 there were more than 116 custody and education centers in the country.

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Discussing the System of Custody and Education

Restricting the Personal Freedoms of Individuals Through Administrative Regulations Goes Against the Spirit of the Constitution

Beijing News (BJ News): Why does your proposal focus on custody and education? What are the current problems with this system?

Zhu Zhengfu (Zhu): The system of custody and education has many facets, including legislation passed at the 1991 National People’s Congress (NPC) Decision on the Strict Prohibition Against Prostitution, the State Council’s Measures on the Custody and Education of Prostitutes and Clients of Prostitutes, and the Ministry of Public Security’s regulations governing the sites of custody and education centers. The thrust of the legislations targets sex workers and their clients. Around the time of 1991, societal conditions were decadent and sex work was on the cusp of spreading. In hindsight, we cannot say that those who hired sex workers were right or wrong. However, following constitutional amendments and the passage of the Legislation Law, problems underlying custody and education’s legislative process, its legislative jurisdiction, and its enforcement began to gradually surface. The main problem is that as an administrative penalty, custody and education can restrict the personal freedoms of an individual from six months up to two years prior to trial and without judicial process before the punishments take effect. In other words, there is no legal defense and no cross-examination of evidence. Long periods of restricting personal freedoms under administrative penalties, without corresponding procedural safeguards, clearly demonstrates that the measure violates [the principle] of procedural fairness.

BJ News: In other words, when you punish by limiting the personal freedoms of an individual, it should not be governed by administrative regulations.

Zhu: Yes, Article 8(5) of the Legislation Law clearly stipulates that coercive measures and penalties that restrict personal freedoms must be governed by law. Article 9 of the Legislation Law also stipulates that if laws have not been formulated regarding this matter [Article 8(5)], the NPC or its Standing Committee can authorize the State Council to formulate administrative regulations, except for when it involves regulations that restrict personal freedoms. However, the 1991 NPC Decision on the Strict Prohibition Against Prostitution authorized the State Council to formulate specific measures for custody and education, which is legally at odds with the Legislation Law.

Besides its inconsistency with the Legislation Law, custody and education also touches on the issue of the inconsistency of legislative jurisdiction. Custody and education is now regarded as a measure carried out by public security organs. Administrative penalties can be appealed and litigated on. The Law on Administrative Penalties covers different types of administrative penalties, however it does not include custody and education. Even as the most serious form of an administrative penalty, the system of custody and education is inconsistent with the Law on Administrative Penalties.

Furthermore, the Criminal Law provides exemption from criminal punishment in cases where there is a sentence of less than two years' imprisonment; in cases involving six-months [or less] criminal detention or control; and in cases where the circumstances are minor, even though the action constitutes a criminal offence. The Criminal Law targets and punishes those who commit criminal offences, however sex work is merely an administrative offence, yet it carries a punishment that is more severe than a criminal offence. In doing so, [custody and education] has disrupted the order set forth by the various measures stipulated in the Criminal Law.

BJ News: You have repeatedly proposed abolishing the system of custody and education at the time of the Two Meetings, why are you so closely committed to ridding this system?

Zhu: In 2003, I joined several members of the Guangdong People’s Consultative Conference and proposed to abolish the system of Re-education Through Labor (RTL); through many calls for action, media spotlight, and several important RTL cases, RTL was finally abolished in 2013. Custody and education and RTL are similar, on a legislative basis they have clear flaws and they both work through administrative organs that enforce punishments to restrict personal freedoms. Thus in 2014, [I proposed to] abolish custody and education, and again in 2016 and 2017.

Prior proposals have all tackled the issue from an abolitionist perspective, this year’s proposal takes a constitutional review angle. In the 19th Party Congress work report, it clearly states the importance of “strengthening the implementation and supervision of the constitution, advancing constitutional review, and maintaining the authority of the constitution.” Because the work report has such a focus on this area and because I believe that the era of conducting constitutional reviews and establishing constitutional authority has come, I made the proposal to conduct a constitutional review of custody and education.

BJ News: There are many vocal supporters of abolishing custody and education. At present, what do you regard as the hardest part in abolishing this system?

Zhu: The hardest part is that [custody and education] has already become an established system that is well-embedded into mutually beneficial relationships; law enforcement organs may believe that the existing system could aid in problem solving – once you get rid of it, you are also removing a tool of law enforcement.

Uncovering the Obscurity of “Educational Placement”

The public sentencing of 55 people in a stadium in Yining, northern Xinjiang province. Image Credit: AP.

Dui Hua’s research into online judgments has uncovered the first known case of “educational placement” (安置教育, anzhi jiaoyu), a measure imposed on prisoners who are considered “a danger to society” even after they have completed their sentences for terrorism or extremism offenses. Educational placement is a new measure included in the Counterterrorism Law which took effect on January 1, 2016. The measure is classified as a subcategory of a criminal case – carrying its own legal codes and procedures, standardized and stipulated by the Supreme People’s Court.

The uncovered judgment states that the Urumqi Intermediate People’s Court approved a recommendation from Xinjiang No. 5 Prison to order a Uyghur prisoner from Shache County to be placed in educational placement on August 30, 2017, 18 days before his 10-year prison sentence for inciting splittism was due to expire. The court believed that the prisoner, Ismaili Rozi (伊斯马伊力·如则), continued to pose a threat to society because he “refused to admit guilt during imprisonment, refused to accept education and reform, and was deeply influenced by extreme religious thoughts.” The judgment did not state the length of his educational placement. However, it did indicate that Ismaili had the right to lodge a review of the court order to the Xinjiang High People’s Court within 10 days of receiving it.

At present, information about educational placement exists mostly on paper and how it has been implemented remains largely unclear. Article 30 of the Counterterrorism Law states that it is organized and carried out by provincial-level people’s governments. The measure remains effective until the individual is no longer considered a risk to society by the educational placement institute. The implementation measures issued in Xinjiang on August 1, 2016, provide some details about what the "at-risk" prisoners are obliged to learn once they are committed to the institutes. These include “laws and regulations, ideology and morality, psychological health, modern culture, scientific education, religious orthodoxy and vocational trainings." The implementation measures also state that prisons and detention centers shall submit recommendations for educational placement to the intermediate people's courts six months prior to the scheduled release of the prisoners sentenced for terrorism or extremism offenses.

A few Chinese scholars have spoken out on the custodial nature of educational placement. In an article published in the Jilin Province Law Society Journal in May 2017, legal scholar Xu Chi described the measure as both a coercive and custodial measure aimed to prevent released prisoners from re-offending, and as the most severe existing form of post-imprisonment security punishment. Another legal scholar, Zhou Zhenjie, described educational placement as an extension of a criminal sentence and as a security measure independent of the Criminal Law.

Despite scarcely available information, the first-known judgment about educational placement raises several alarming issues. First, the measure was applied beyond the legal scope stipulated by the Counterterrorism Law. The Counterterrorism Law stipulates that educational placement is applicable only to prisoners sentenced to fixed-term imprisonment for terrorism or extremism offenses. However, Ismaili was sentenced for neither of these offenses, but for inciting splittism, which is a crime of endangering state security. When he was sentenced in 2010, the offenses of extremism did not even exist until five years later when they were codified during the ninth amendment to the Criminal Law. The judgment suggests that the scope of offenses for those serving educational placement is likely much greater than the Counterterrorism Law mandates. Educational placement also creates more risks for the arbitrary denial of rights for political prisoners who have already completed their sentences. Ethnic minorities in Xinjiang, who comprise the majority of the country’s endangering state security prison population, are particularly vulnerable to falling prey to this measure.

Another troubling aspect is that it is unclear when Ismaili's educational placement will end, if ever. The Counterterrorism Law provides no time limit for how long someone can be held in educational placement, meaning that the length of punishment can be indefinite. Xu described it as having “the same punitive effect as fixed-term or life imprisonment.” Zhou does not share Xu’s optimism that an indeterminate punishment could be effective in combating terrorism and extremism. Rather, he expressed concerns that it leaves open the possibility of de facto life imprisonment – an individual can be deprived of their lifelong freedom so long as the educational placement facility considers him or her a risk to society.

Another cause for concern is how prisons and detention centers evaluate the risk levels of soon-to-be released prisoners when they make their initial recommendations to the courts for educational placement. Zhou criticized the procedure for being opaque and opening up risk to the notion that all prisoners convicted of terrorism or extremism offenses are predisposed to being perpetually “at risk.” Although the Counterterrorism Law mandates prisons to “hear opinions from grassroots organizations and organs that initially handled the case,” they have never made public how these opinions are accepted, or even considered, when forming their recommendations. Zhou also questioned how they assessed the impact of prisoner releases on the wider community. Do they conduct interviews and surveys? The evaluation process prisons use to decide whether prisoners should be held in educational placement after serving their sentences is highly subjective, wrote Zhou, and how decisions are reached likely depends more on the current political atmosphere and fears surrounding terrorism in a particular region at a given time than on any real indication of potential threat posed by an individual prisoner.

While Ismaili can appeal the educational placement order to the Xinjiang High People's Court in theory, it remains to be seen how he can go about exercising this right. Zhou wrote that it is unclear whether the appellant is allowed under the current law to entrust a third party to challenge the evaluation conducted by the prisons or detention centers.

Zhou questions what the likelihood is of overturning recommendations made by the educational placement bodies to keep an individual incarcerated. Once admitted, an individual will be released only when the institute no longer considers him or her a threat to society, or when their application to lift the educational placement order has been approved by the court. Zhou remarked that the current law does not provide a clear review procedure. Should the application be submitted directly to the court, or indirectly through the educational placement institute? If it is the latter, the institute may censor applications submitted by those it considers a threat to society.

Two years since its formal introduction, educational placement remains a measure shrouded in secrecy. Whether the measure is applied beyond its legal limits, and whether the evaluation mechanisms and review procedures are fair and transparent are not the only issues emanating from the discovered judgment. As Uyghurs in Xinjiang are disproportionately incarcerated for splittism, terrorism and extremism offenses, they are more likely than Han Chinese and other ethnic groups to bear the brunt of this post-imprisonment measure that could put their personal liberty at risk for life. China should promote judicial transparency by making judgments about its use more readily available on its online platforms.

Despite Tensions, American Attitudes Towards China Improve

Gallup’s annual survey of American attitudes towards foreign countries has been released. It shows that 53 percent of Americans have a favorable opinion of China, versus 45 percent who have an unfavorable view of the country. This marks the first time that the long-running poll has yielded in a majority favorability rating for China since the events of June 1989 nearly 30 years ago.

According to Gallup polling, China's image in the United States has risen 10 points since Xi Jinping assumed leadership of the Communist Party in late 2012.

The result is surprising given rising tensions in the relationship over trade, the South China Sea, and other security concerns, as well as a steady diet of negative news on the human rights front.

The poll also recorded that 11 percent of Americans view China as the greatest threat to the United States, down from 12 percent in 2016. There is significant difference between Republicans and Democrats on this issue, with 15 percent of Republicans versus seven percent of Democrats viewing China as the greatest threat to the United States.

The reasons for China’s uptick in popularity are difficult to discern. Given President Trump’s low approval rating, his bashing of China over trade may help actually help China: “The enemy of your enemy is your friend.” According to the RealClear average of polls on President Trump’s handling of foreign policy, 40.4 percent of Americans approve versus 53.6 percent who disapprove.

It might also be that Americans see China as having helped contain North Korea’s missile and nuclear programs by supporting tough sanctions against the regime. The Gallup poll reveals that 92 percent of Americans have an unfavorable view of North Korea, while 51 percent see the reclusive state as America’s biggest enemy, up from 16 percent in 2016.

The poll was conducted February 1-10, 2018. It was based on random telephone interviews with 1,044 adults in all 50 states and the District of Columbia. It has a margin of error of plus/minus four percent.

Ban on Islamic Clothing in Xinjiang

Pedestrians walk past propaganda posters in Urumqi, Xinjiang. Image credit: The Uyghur American Association.

In April 2011, France became the first Western country to ban the wearing of full-face veils in public. Similar national and regional bans in other secular Western countries soon followed, including in Belgium, the Netherlands, Italy, Spain, Switzerland, Austria, and Canada. In Australia, there is ongoing legislative debate on the issue. Under these bans, anybody caught wearing a burka (a veil covering the full face and body) or a niqab (a veil covering the face except the eyes) in public can face fines and in some cases even imprisonment.

China is an officially atheist country. Civil servants and teachers across the country have long been prohibited from participating in religious activities or wearing religious clothing in public. In schools, students can be disqualified from scholarships, government subsidies, attending their graduation ceremonies and even face expulsion if found wearing religious clothing on campus. Around the same time when many in the West were busy passing anti-Islamic legislation, China was rocked by the Urumqi Riots of July 2009. Shortly after, the Xinjiang government began tightening restrictions on Islamic clothing on security grounds in the autonomous region, home to a Muslim population of over 13 million.

In enforcing restrictions on Islamic clothing, Chinese officials have denied that veils are a part of Uyghur culture and have attempted to stigmatize wearers as uneducated and sharing a propensity towards religious extremism. A Phoenix News Media article in 2014 reported that veils had historically never been part of Uyghur culture and only first gained traction in southern Xinjiang in the 1980s. While officials argue that veils are unique to uneducated Uyghurs who share a propensity towards extremism, they also blame religious extremism in Xinjiang as deriving from overseas forces – a line of argument frequently used to justify the forced deportations of overseas Uyghurs. A Uyghur researcher from the Xinjiang Academy of Social Science’s Institute of Sociology opined that the phenomenon of religious extremism was largely driven by the high and disproportionate rates of poverty and unemployment among the Uyghur population. As Xinjiang becomes increasingly dominated by a market-oriented economy run by the Han population, Uyghurs feel they face greater economic, cultural, religious, and political marginalization. The same Uyghur scholar stated that the local Uyghurs’ disillusionment with their future in Xinjiang has led more Uyghur women to adopt the black veil and jilbab in place of their traditional headscarves, especially after the 2009 attacks and the ensuing incidents of ethnic unrest in the region.

Not only has Xinjiang outlawed the wearing of veils in public, but Dui Hua has also uncovered cases of individuals facing criminal charges for wearing veils in their own homes and for selling the banned clothing items.

The “Five Abnormalities”

The restrictions on Islamic clothing in Xinjiang first emerged in a number of localities in province’s southern region. However, after the 2009 Urumqi attacks, similar regulations were implemented in northern Xinjiang. Restrictions in the north remained relatively lax until 2013, when the Xinjiang government issued a provisional-wide directive known as Document No.11. In a question and answer format, the document serves as a set of guidelines for local authorities and as a warning to the public on how “illegal religions and extremism” will be handled; there are three mentions of the ban on the jilbab in the text. The document does not specify what the punishment for wearing a jilbab is. It merely calls on officials to “resolutely handle” violators.

The “Five Abnormalities” in Karamay, Xinjiang. August 2014. Image credit: ifeng.com

It should be noted that the translation of terms used to describe Islamic clothing under Chinese regulations differ from what is generally used in Islamic communities. In August 2014, authorities in Karamay, a city in northern Xinjiang, banned those wearing Islamic clothing and those with beards from boarding a public bus, including women and girls who were wearing what authorities call a jilbab. In Islamic communities, a jilbab refers to a long and loose-fitting garment or cloak designed to cover the entire body while leaving the face visible, whereas under Chinese regulations they use the word jilbab for what would be considered a burka or a niqab in most Islamic communities, which covers the body and the face. The first category of women shown in the "Five Abnormalities," with veils covering their face and hair but not their eyes, are wearing what would be considered a niqab outside of China, but is called a jilbab in China.

The ban also prohibits young women from wearing what China calls a niqab, a garment that would generally be referred to as a hijab (a headscarf covering the hair and neck while leaving the face visible) in most Islamic communities.

As a provincial-wide directive, Document No.11 has been introduced in localities across Xinjiang. In Karamay, authorities have banned the jilbab, the niqab, all face-covering veils, as well as young men from growing “big beards.” The ban has also outlawed clothes featuring the Islamic star and crescent symbol.

Also in 2013, Xinjiang’s Ili Prefecture issued a provisional rule to proscribe the “five abnormalities” from all public spaces. The 2014 Ili Yearbook reported investigating nearly 1,000 violators and confiscating 7,364 jilbabs and garments with the star and crescent symbol. The following year, the capital of Urumqi followed suit. Instead of using the term jilbab, which opens room for debate about what constitutes a jilbab, the Urumqi regulation has added the more secular-sounding but even vaguer term – “face-masking robes” (蒙面罩袍) – to the Chinese legal lexicon, giving authorities even greater power to determine what garments can be considered illegal.

Effective April 1, 2017, Xinjiang’s “Anti-Extremism Regulations” claimed that the wearing of “face-masking robes” and “abnormal beards” symbolized extremism. The regulations also officially expanded the administrative ban to the entire autonomous region.

The five main categories of Islamic clothing in the Islamic world. Image credit: ABC News

Criminalization of Islamic Clothing

Violators of the aforementioned bans can face criminal prosecution under a number of offenses. One can be prosecuted for “forcing others to wear terrorism, extremism clothes or symbols,” a new offense that carries a maximum sentence of three years’ imprisonment. It was added to the Criminal Law in November 2015 and can be used in cases where violence or coercion is involved. Dui Hua is unable to find online judgments to understand how often this offense is being used by authorities. Unofficial news media has reported on cases of Uyghur women sentenced for promoting the wearing of headscarves, but the exact charges remain unknown.

Dui Hua has found one case where the charge of illegal business activity was used to prosecute an individual for selling banned Islamic clothing. Yang Bao’an (杨宝安), a Han Chinese man who originally migrated to Xinjiang from Hunan, was sentenced to three years’ imprisonment in April 2015 in Ili Prefecture for selling a hundred niqabs in a shopping center in Korgas (China’s westernmost port bordering Kazakhstan). Twenty-four of the niqabs carried the star and crescent symbol. The court found that Yang violated the “five abnormalities” ban that had been widely enforced in Ili Prefecture. Yang pled innocent on several grounds – 1. He was not aware of the meaning behind the star and crescent symbol; 2. Nobody had purchased any of the garments from him; 3. He did not know about the local rules since he had only just arrived in Xinjiang. Given that he had obtained a university education, the court found that Yang should have been aware and cautious about local regulations and that his actions had adversely affected the social stability of the area.

There is also evidence that wearing banned Islamic clothing can fall under the purview of the crime of “picking quarrels and provoking troubles.” In September 2014, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued a judicial interpretation to expand the applicable scope of this “pocket crime” in cases related to terrorism and extremism. An individual is now punishable for this offense if they disrupt social order by “willfully attacking, chasing, intercepting, and insulting others” while calling others “infidels or religious traitors.”

In March 2015, China Youth Online reported that a court in Kashgar sentenced a group of religious extremists for “picking quarrels and provoking troubles.” The report cited one case in which a Uyghur couple repeatedly refused to comply with “Project Beauty," a campaign to discourage men from keeping long beards and women from wearing veils and headscarves. The husband was sentenced to six years’ imprisonment for “ignoring the national law.” Not only was he punished for keeping a long beard, but he was also punished for encouraging his wife to wear a veil. As his wife was said to have shown remorse, she was given a relatively lenient two-year imprisonment sentence. The original report was removed the day after it was originally posted. An anonymous source who proclaimed to have written the article allegedly sent an apology statement via WeChat for misreporting the case. Critics remain skeptical of its authenticity, with some suspecting that the apology was made under duress. The article has since been widely circulated online and remains accessible on official news websites.

Banning Islamic Clothing in the Home

Although the ban on Islamic clothing has been enforced in the name of “maintaining public order,” Dui Hua has found cases where authorities in Xinjiang have enforced the ban in people’s homes.

Dui Hua uncovered a judgment in which a Muslim man, Gong Xiaojun (龚小军, ethnicity unknown), was sentenced to two years’ imprisonment for "disrupting official business" in Urumqi after arguing with community cadres in December 2014. When the community cadres paid Gong a home visit in June 2014, they found that Gong had grown an “abnormal beard.” The cadres admonished Gong for his beard and Gong allegedly responded with “extreme language” insisting that he grew the beard because he simply liked the way it looked.

The cadres informed Gong and his wife about the ban on “black religious clothing,” and accused his wife of wearing a jilbab. Gong argued that his wife was wearing a long loose black robe, not what the cadres were calling a jilbab and that the cadres had no right to intervene in what his family chose to wear at home. He claimed that he had requested his wife to wear the robe and his wife agreed that she had done so voluntarily. Gong was first indicted for "picking quarrels and provoking troubles," but was convicted of a different charge – "disrupting official business." The judgment did not explain in what ways Gong’s language was “extreme,” it only vaguely stated that his language was “extreme” and provocative enough to disrupt law enforcement.

Beyond Xinjiang

For Muslims who belong to China’s Hui minority, reports suggest that they currently do not face the same intensity of restrictions as Muslims in Xinjiang do. In a propaganda film entitled Leaving Heart in Hezhou (情定河州) about China’s “One Belt, One Road” initiative, the Hui women of Linxia Hui Autonomous Prefecture in Gansu Province are portrayed in long black garments covering their bodies, hair, and necks. While the same clothes are banned in public and private spaces in Xinjiang and violators can face imprisonment, in Linxia, also known as “China’s Little Mecca,” Hui women are currently free to wear veils in public. However, given the growing restrictions on religious freedom in Linxia, the question remains for how long this freedom will last.

Xinjiang's ban on Islamic clothing is no less controversial than the anti-Islamic legislation we see in the West and is no less discriminatory to Muslims. Since joining the global ranks of countries that impose restrictions on the appearance of its Muslim citizens, China has been under fire by human rights groups for intruding on its citizens’ religious freedoms. Although transparency of criminal cases involving the ban on Islamic clothing leaves much to be desired in Xinjiang, given what we know about how the sellers of Islamic clothing and those who wear Islamic clothing in their homes have fared, it is likely that those caught wearing Islamic clothing in public are facing increasing risks.

Dui Hua Book Review: The People’s Republic of the Disappeared

Michael Caster’s The People’s Republic of the Disappeared: Stories from Inside China’s System for Enforced Disappearances. Image Credit: RSDLMonitor.Com

Dui Hua examines the stories of dissidents held under the coercive measure “residential surveillance in a designated location” in Michael Caster’s The People’s Republic of the Disappeared: Stories from Inside China’s System for Enforced Disappearances (Safeguard Defenders, 2017).

As the waves of repression in China have intensified over the past decade, one encounters the strange phrase “residential surveillance in a designated location” (RSDL) with greater frequency.

It was memorably employed (though by no means for the first time) against the late Nobel Peace Prize laureate Liu Xiaobo, after the publication of “Charter 08” in December 2008. Later, it was used in the crackdown against the so-called “Jasmine Revolution” in the spring of 2011. Most recently, it has been a prominent feature of the ongoing crackdown against rights lawyers and activists that began in July 2015.

This measure, with its relatively benign-sounding name, has been examined critically before, both inside and outside China. The new book The People’s Republic of the Disappeared makes an important contribution to this critique by collecting vivid accounts from those who have been subjected to the measure. Together, these accounts paint a damning portrait of how Chinese law enforcement agents are using the power they have been given under the law to violate human rights with impunity in the name of safeguarding state security.

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What exactly is RSDL? At first glance, it looks like it might be a form of house arrest, although “designated location” suggests that it might involve something other than being confined in one’s own home. “Surveillance” only adds to the mystery, suggesting some sort of monitoring without making exactly clear how intrusive it might be.

In China’s Criminal Procedure Law (CPL), RSDL is what’s known as a “coercive measure.” Simply put, coercive measures authorize law enforcement agents to restrict a person’s liberty in the course of a criminal investigation. The degree and duration of that restriction depends on a variety of factors, but coercive measures are meant to serve a rather limited set of aims: preventing suspects from posing further threats to society or obstructing the investigation process and ensuring their availability to face questioning or stand trial. Coercive measures are not meant to be punitive or to be used as tools of investigation in their own right.

In Chinese criminal procedure, “residential surveillance” exists alongside other coercive measures such as custodial detention (seen as the most restrictive measure) and “release on guarantee pending further investigation” (qubao houshen, which is much less restrictive). The ordinary form of residential surveillance—which, as the name suggests, permits suspects to remain in their homes under certain restrictions—is a relatively lenient, non-custodial measure. For that reason, the CPL allows it to be imposed for up to six months.

Six months spent under house arrest is no picnic, but it is likely to be a more comfortable experience than being sent to a detention center. For this reason, reformers have promoted the greater use of non-custodial measures like residential surveillance as a way of reducing overuse of custodial detention.

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The book features eleven accounts, all but one of them presented in the first-person, from lawyers and political activists who were subjected to RSDL or similar measures between 2011 and 2016. These include well-known human rights lawyers, such as Tang Jitian, Liu Shihui, Sui Muqing, and Wang Yu. It also includes an account by Peter Dahlin, a Swedish human rights activist detained in 2016 for his connection with some of these lawyers and activists. Though each account is distinct, the victims’ experiences under RSDL share some key features. It is difficult to ignore how the measure of RSDL has become an integral part of a systematic regime used by authorities to target particular individuals.

Though regulations require that the locations used for RSDL “possess conditions for ordinary living and rest,” it is clear from these accounts that disruption of routine daily activities is key to how the system operates. Sleep deprivation and the withholding of food and personal hygiene products are common practice. Detainees are cut off from communication with family, friends, and lawyers. Guards and interrogators use humiliation, enforced discipline, physical and verbal abuse, and threats to friends and family members. Family members of victims are also subject to varying degrees of surveillance, including house arrest, such as in the case of Wang Yu’s family. International law recognizes family members of victims of enforced disappearances as full victims.

The victims’ accounts of confinement and interrogation becomes at times indistinguishable, since most detainees are subjected to questioning in the same place they are held—contrary to the provisions of RSDL. Invisible, alone, and at the mercy of guards and investigators who act with impunity, it is unsurprising that, in almost every case included in this book, involuntary confession is what brings the ordeal to an end.

Lawyer Liu Shihui, who describes his 2011 confinement under RSDL, calls the measure “a system designed for prisoners of conscience [and] a place designed for torture.” Time and torment essentially ensure that any resistance gives way to capitulation. However, some accounts reveal that even in their acts of forced “confessions”, victims attempt to resist the abuse of state power. For example, lawyer Sui Muqing recounts the importance he placed in maintaining a degree of personal integrity and dignity by refusing to incriminate others in his confession.

In reading these accounts one cannot escape the recurring sense that authorities use the brutal conditions of confinement in RSDL for the purpose of obtaining these confessions—the veracity and voluntariness of which does not necessarily matter. In this sense, one can certainly see how useful investigators would find RSDL—especially as a tool in sweeping crackdowns with multiple, linked suspects. Even if, as in most of the cases in this book, confessions do not lead to direct criminal prosecution, the authorities can still use them against other suspects. And by recording and broadcasting these forced confessions, the authorities can attempt to bring public discredit on both the individuals and the causes they promoted.

Beyond confessions, the brutal confinement of RSDL constitutes a form of punishment in itself, especially when stretched to its six-month limit. Even the mere existence of RSDL seems designed to spread fear, and threat of its use can be enough, in some cases, to achieve the desired outcome.

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Of course, no matter how well RSDL might serve the aims of the Chinese authorities in terms of maintaining stability and political control, it doesn’t justify the use of torture and many other violations of individual human rights that it enables. Liu Shihui’s judgment that RSDL is a “place where law doesn’t exist” is amply backed up by the other accounts in this book.

The similarities in these accounts unquestionably demonstrate a pattern of abuse. Yet, there may still be some who will claim that these stories are exceptional and do not represent the entirety of RSDL. For every instance of abuse under RSDL, there are sure to be examples in which the measure is being used in more benign ways. Even if these cases are exceptional, this is precisely why RSDL is so insidious. By labeling these acts a form of “residential surveillance,” Chinese authorities are engaged in a deliberate effort to obscure their use of torture and enforced disappearance. Through publishing these accounts, The People’s Republic of the Disappeared is attempting to shatter the veneer behind which these severe violations have tried to hide and expose them for the world to see. And given that the accounts are diverse in both the time frames and geographical regions they represent, it is unlikely that they are simply exceptional cases. The accounts come from two separate sweeps, one carried out in 2011 and the other in 2015-2016 and they take place across four distinct locations: Beijing, Guangzhou, Tianjin, and Changsha.

Of all the people who should read this book, which has also recently been released in Chinese, it can only be hoped that it will be read by all of the Chinese academic legal experts who have been so instrumental in directing the reform of China’s criminal justice system. In the past, many of these experts had publicly criticized the ways Chinese investigators used residential surveillance. Yet these same experts stood by and even defended the inclusion of RSDL measures in the most recent revision to the CPL, rejecting predictions that the measure would be abused. In a perfect world, this book would prod their consciences and, in the name of human rights and rule of law, lead these influential experts to turn their efforts to stopping the outrageous abuses exercised under RSDL.

“Mandarin Only” Visitation Rules

Bilingual education class offered in a juvenile reformatory in Kashgar, Xinjiang. Image: Baidu.cn.

The promotion of Mandarin as China’s lingua franca, commonly referred to as “tuipu,” has been one of the most sweeping initiatives implemented by the Chinese government. Tuipu serves the dual purpose of forging a sense of national identity based on Han culture and weakening regional and ethnic loyalties. Some regional dialects and ethnic minority languages have largely died out in China because of tuipu propaganda that portrays them as “uncivilized” and “barbaric.” The use of regional dialects and ethnic minority languages (e.g. Mongolian, Tibetan, Uyghur) is banned in many government offices and schools, and on television programs. According to the latest official statistics, the literacy rate of Mandarin in urban China has reached 90 percent, however in rural areas it remains around 40 percent.

Within the carceral system, prisoners are not required to speak Mandarin among their peers, but the use of dialects and minority languages are subject to varying degrees of restrictions when it comes to family visitation rules. It should be noted that at the national level neither the Prison Law nor the visitation and correspondence regulations issued by the Ministry of Justice (MOJ) on December 5, 2016, contain provisions restricting the use of dialects or minority languages. However, in practice many local prisons have taken it upon themselves to mandate the use of Mandarin during family visitations, with varying degrees of enforcement. As many of those who come into conflict with the law are from rural areas, it comes as little surprise that many of those subject to prison surveillance have limited economic means and educational opportunities to learn Mandarin. Prisoners and their family members, especially older generations, who can only speak their regional dialects or their minority languages are consequently deprived of their visitation rights. Dui Hua’s research has found that those who fail the “Mandarin only” visitation requirement also have slimmer prospects for obtaining clemency.

Domestic news media in China occasionally report stories about the use of regional dialects during prison visitations to showcase the more “human” side of prison management. A news article in 2004 reported a story from Shanghai’s Tilanqiao Prison where well-behaved prisoners were allowed to speak in their local dialects when making phone calls to family members. A Xinhua article in 2014 covered a story about a prisoner serving time in Guangdong’s Jieyang Prison who spoke in a local dialect during a video call with his mother in Guangxi, who he had not seen in three years.

In Sichuan’s Jinjiang Prison, visitation rules state that prisoners and their family visitors can speak in Mandarin or Sichuanese during visitations. However, such leniency is not extended to many other prisons around the country. In Guangdong, Zhuang Songkun (庄松坤) is one of the Wukan villagers who was sentenced in December 2016 for allegedly instigating protests against local government corruption. When Zhuang’s wife tried to visit him at Guangdong’s Wujiang Prison on February 23, 2017, she was not allowed to speak in her Chaozhou dialect. As she was unable to speak Mandarin, the prison officers confiscated her microphone, which had been attached to a video recording device, cutting short the whole visit to a mere five minutes. Henan-based lawyer Ren Quanniu publicly remarked that such a policy is an abuse of power, especially given that there is no written provision prohibiting the use of regional dialects. The MOJ regulation entitles prisoners to up to one monthly visit from family members or guardians in the form of telephone calls, face-to-face meetings, or video calls. (In some parts of China, visits from family members take place less frequently.) Meetings are not supposed to exceed 30 minutes, though sometimes more time is given as a reward for good behavior. Even during court proceedings, defendants, police, prosecutors, and judges often communicate in regional dialects. It is unlawful to deprive prisoners such as Zhuang of their visitation rights just because prison staff cannot understand them, says Ren.

Wujiang Prison is not alone in prohibiting regional dialects; similar visitation restrictions are commonplace across China. A guide issued by Guangdong’s Gaoming Prison in December 2015 states that a family visit will be cancelled unless both prisoners and visitors speak Mandarin. The same policy is enforced in Fujian’s Qingliu Prison as part of the campaign to “cultivate civilization.” In the same province, an exception is made at Putian Prison, but only for elderly prisoners who cannot speak Mandarin and who are meeting with a relative who can provide translation for the supervising guard.

Despite the generally lower Mandarin proficiency among many ethnic minority groups in China, there are still language restrictions in prisons located in provinces with large ethnic minority populations. In Guizhou province, where one-third of the population is non-Han Chinese, minority languages spoken in prisons are strictly regulated. A provincial visitation guide issued in 2015 bans ethnic minority languages and the use of any “secret languages” during visitations to the provincial judicial police hospital that caters to prisoners in need of medical treatment. The restriction aims to cultivate “linguistic civilization” and maintain “one’s dignified demeanor.” The same restrictions apply to Wenshan Prison and Yiliang Prison in Yunnan province, which has an ethnic minority population of over 15 million. Yiliang Prison does not explicitly forbid the use of Yunnanese among local prisoners, but all other regional dialects and minority languages are prohibited. Violators of the rule can have their family visitation rights taken away for six months and in serious circumstances a case can be filed to investigate the matter.

Sichuan appears to be one of the few exceptions. Given that Sichuan has a non-Han population of approximately five million, the Sichuan Prison Administrative Bureau permits the use of minority languages like Tibetan in prisons throughout the province. Shandong province, although not nearly as ethnically diverse as Sichuan, permits minority language use during visitations, albeit with some restrictions. For instance, Shandong's Luning Prison only allows the use of minority languages when prisoners have obtained prior police approval.

In China’s autonomous regions of Tibet and Xinjiang, regulations on prison visitation rules could not be found by Dui Hua researchers. However anecdotal evidence from formerly incarcerated individuals suggests that these regions are not unlike the rest of China when it comes to enforcing Mandarin during prison visitations. Circumstantial factors such as the particular prison, the language ability of the guards on duty, and the political climate at the time can impact whether and how language and dialect restrictions are enforced.

Dui Hua’s research into clemency judgments found that the practice of speaking regional dialects also has a significant impact on a prisoner’s chances of gaining sentence reductions and parole. The judgments reveal that speaking dialects can be considered evidence of not “showing remorse,” a prerequisite for obtaining early release. Sentence reductions and parole are granted to those who have accrued a certain number of points for good behavior. Between 2013-2016, prisoners in Fujian and Shanghai received point deductions ranging from 0.5 to 2 points for each instance of speaking regional dialects during family visitations. In December 2016, the Fujian Bureau of Justice implemented new measures for assessing clemency points, drastically increasing the penalty for speaking dialects to a deduction of 30-100 points. In accordance with the new provincial directive, Wuyishan Prison deducted 30 points from a prisoner because he did not speak Mandarin on just one occasion during a family visit in March 2017.

The impact these rules have on prisoners who are ethnic minorities or who come from rural areas with limited opportunities to learn Mandarin, or those who come from both backgrounds is significant. The rules not only deny these groups precious contact with their families and opportunities to gain early release but they also function to further stigmatize and criminalize these groups because of their ethnicity and limited economic means.

It is not uncommon for prisons to impose restrictions on communication within prisons for security purposes, such as to guard against distribution of printed materials that can be used to plan escapes or other crimes. However, language restrictions on visitations are now widely uncommon. (In the United States, Utah was the last state to drop the “English only” visitation requirement in August 2013.) While the promotion of Mandarin has been crucial to China’s development, punishments in the form of denying visitation rights and equal opportunities for clemency due to language ability deprive prisoners of their constitutional rights (Article 4 “All nationalities have the freedom to use and develop their own spoken and written languages.”)

Dui Hua has found some cases where prisoners earn points towards clemency as a result of learning Mandarin. In some rare cases, rewards are given to those who learn minority languages and contribute to “bilingual education classes” offered to prisoners to learn both Mandarin and ethnic minority languages in autonomous regions. However, these cases are rare and resources for Mandarin education in prisons are by no means comprehensive.

The suppression of regional dialects and ethnic minority languages that has accompanied tuipu has long been a source of social and ethnic tension, sparking incidents of unrest across China. Learning Mandarin can better equip prisoners with skills for post-release integration and opportunities for clemency provide prisoners with a strong incentive to learn and a chance at earlier reintegration. Rather than directing resources to support prisoner’s education and rehabilitation, the punitive “Mandarin only” visitation rules serve instead to undermine inter-ethnic relationships and run counter to the ideal of the “harmonious society” that the Chinese Communist Party and the Chinese government strive to achieve.

Five Years and Counting

Guangdong Jiangmen Detention Center. It is divided into 79 cells and the buildings form a large enclosed space in the middle. In 2013, the facility held about 1,600 detainees. One of them was Mark Swidan. Image: nandu.com.

A troubling feature of China's criminal justice system is that a judgment in a criminal trial can be postponed indefinitely after the trial concludes. American citizen Mark Swidan was formally detained on drug charges on November 14, 2012. He was tried in 2013 by the Guangdong Jiangmen Intermediate People's Court. The court has yet to announce its judgment; the Supreme People's Court in Beijing has extended the deadline for the court to render a judgment at least a dozen times. The most recent extension was granted on October 14, 2017. This extension, as with the others, is for three months. A judgment must be announced or another extension must be applied for by January 14, 2018. January 14 is Mark Swidan's birthday.

In the meantime, Mark Swidan remains held in the Jiangmen Detention Center run by the Jiangmen Public Security Bureau. He receives monthly visits from an officer at the American Consulate in Guangzhou.

Mark Swidan in happier days. With mother, Katherine, in Houston, 1991. Image credit: Katherine Swidan

Mark Swidan was taken into custody during a police raid on his hotel room on November 12, 2012. He was on a business trip. Two individuals – an interpreter and a driver – had come to his room. Police reportedly found drugs on their persons. No drugs were found on Mr. Swidan or in his room. Drugs were found in the room of another suspect. No forensic evidence has been produced – no drugs in his system, no DNA on the packages, no fingerprints on the packages or drug paraphernalia – tying Mr. Swidan to the drugs. No emails, letters, or phone calls have been found that link Mr. Swidan to any drug transaction. The indictment states that Mr. Swidan played a secondary role in the alleged crime. Prosecutors recommended a lesser sentence. Mr. Swidan has no history of criminal behavior, including using or trafficking in drugs.

The alleged crime involved 11 people, including, in addition to American citizen Mark Swidan, four Mexicans, one Canadian, one Hong Kong resident, and four Chinese citizens. It is believed that some of defendants have pointed the finger at Mr. Swidan, who comes from a Texas family of limited means. He is unable to hire good legal counsel. Mr. Swidan refuses to admit guilt. He is said to rather die than admit to a crime he didn't commit.

Reports given to the family over the years suggest that Mr. Swidan has suffered during his five years in the detention center. He has had his art supplies seized. He has been shackled, bullied, and denied medical treatment. His mother is often unable to have her letters delivered. He has threatened suicide. Detention centers are often accused of being carceral facilities where torture is common place.

According to a human rights officer working for the United Nations in Geneva, the way Mr. Swidan's case has been handled is a "cut and dry case of arbitrary detention." In perhaps the best known case of someone determined by the Working Group on Arbitrary Detention to have been arbitrarily detained in part because of a long delay in announcing a verdict, the WGAD found that the failure to announce a verdict in the case of American journalist Jason Rezaian, detained in Iran in 2014 and tried in the summer of 2015, was a violation of Article 14 of the International Covenant on Civil and Political Rights.

It is not unheard of for Chinese defendants to have their judgments delayed for a period of several months. Prominent dissidents like Gao Yu, Guo Feixiong, and Pu Zhiqiang all had their judgments delayed for many months. But holding a foreigner for five years without adjudication is unheard of. No Chinese official has given an explanation for this interminable delay, merely stating that the case is "complicated."

Article 202 of China's Criminal Procedure Law (CPL) states that a people's court should announce judgment within two months of the completion of the trial, and no more than three months can pass without a judgment being announced. If the crime can result in a death sentence or if there are complicating factors, then the higher court can extend the time for rendering a judgment by three months. "If there are special circumstances requiring additional extensions, the court must apply to the Supreme People's Court for approval." There is no statutory limit for the number of times a judgment can be extended.

Complicating factors leading to an extension of the judgment include 1) if the offense involves both criminal and civil penalties (Article 202); 2) if the case is an important or complicated one in rural areas with inconvenient transportation; 3) if the case involves large criminal organizations; 4) if it is an important case involving crimes committed in multiple locations; and 5) if collecting evidence is difficult (2-5 are covered by Article 156.) In short, there are many reasons why a Chinese court can extend a judgment for as long as it wants, and there are no means to force a decision.

"Justice delayed is justice denied" is a legal maxim, widely ascribed to the British jurist William Gladstone, that is the basis of a fundamental due process right, the right to a speedy trial and judgment. Another legal maxim is that a suspect is innocent until proven guilty. In the eyes of the law, Mark Swidan is an innocent man.

Justice has been denied to Mark Swidan and he and his family have suffered greatly. But China's reputation as a country that respects the letter and spirit of law and protects fundamental rights has also suffered. The Jiangmen Court needs to announce its judgment, a judgment which will hopefully result in Mark Swidan going home without further delay.