Wednesday, April 4, 2018

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 receive is intended to direct them towards other occupations upon release and treatment of STDs is designed to 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.


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.