Monday, March 12, 2018

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.