Wednesday, July 25, 2018

Stalemate on Detention Center Law

Reformers widely agree that changes are needed to the management of detention centers, which are currently governed by a set of administrative regulations issued in 1990. Image credit: Sixth Tone.

It has been more than a year since the Ministry of Public Security circulated a draft of the new Detention Center Law for a one-month period of public comment. The consultation period served as an opportunity for Chinese legal scholars and lawyers to reiterate their strong criticism of the current system of detention and express their visions for reform—positions which have been relatively consistent for many years.

It is difficult to say where the process stands now. As is common in the process of Chinese law-making, there is little transparency about how public comments are incorporated into the legislative process. No new drafts have been made public, and the only news from China’s legislative body, the National People’s Congress (NPC), is that work on the Detention Center Law will continue under a new legislative plan.

Things appear to be in a stalemate. Reformers widely agree that changes are needed to a system that is currently governed by a set of administrative regulations issued in 1990. There is widespread consensus among critics that the key to reforming China’s detention centers is shifting administrative responsibility from the Ministry of Public Security (MPS) to the Ministry of Justice (MOJ). But the draft legislation put forward by the MPS proposes strengthening legal provisions without touching the current institutional arrangement.

The argument for moving detention centers away from MPS control is based on a critique of the overlapping and conflicting functions that detention centers are currently used for. At present, Chinese detention centers play both a custodial role and an investigatory role. In addition to housing suspects and defendants, detention centers are expected to enhance criminal investigation and uncover additional evidence of crimes. According to critics like Professor Chen Ruihua of Peking University, some places have even based performance criteria for detention centers on their role in solving criminal cases. There is estimated to be at least 3,000 detention centers in China housing more than one million individuals.

One consequence of using detention centers to further criminal investigations is the widespread use of “jailhouse bullies” and informants to obtain evidence or confessions from suspects. This clearly violates evidence rules and leads to false confessions and wrongful convictions. It has also been blamed for a number of deaths in detention under mysterious circumstances.

This blurring of functions in Chinese detention centers is made possible because the public security system is responsible for both criminal investigation and detention—with the former being given higher priority in the interest of social stability and national security. Shifting responsibility for detention to the MOJ would put detention facilities in the hands of an institution with no direct interest in the outcome of a criminal investigation. This would, in principle, make detention centers more neutral sites that can focus on the protection of detainees’ rights.

Advocates of such reform believe that putting detention centers under the MOJ would not only help to reduce jailhouse abuses but also facilitate the rights of suspects and defendants to meet with legal counsel. It will lead, they also believe, to a much stronger presumption of innocence throughout the pre-trial phase of the criminal process. The current regulations governing detention centers still refer to detainees as “criminals” (renfan), as opposed to “suspects” (xianyiren) or “defendants” (beigaoren)—terms that have already been well-established in China’s Criminal Law and Criminal Procedure Law. Notably, the draft MPS legislation did propose making these changes in terminology, but critics doubt that changing the wording will lead to changing the mindset and practices that presume all detainees to be guilty. Another benefit to placing detention centers under the MOJ is that it would allow detainees to use points earned for good behavior towards future applications for sentence reductions.

The current stalemate may be hard to overcome given the institutional interests at stake in preserving the practice of using detention as a tool of criminal investigation. The fact that the MPS draft has not been enacted by the NPC suggests that there may be relatively strong support for deeper reform. But the battles and negotiations over Chinese legislation mostly take place behind closed doors, far from the public eye. The next opportunity for insight into the content of the law might well be after it’s passed by the NPC Standing Committee—at which point, the debate will have been settled one way or another.