Sovereign Power and the Law in China : Zones of Exception in the Criminal Justice System [1 ed.] 9789004187689, 9789004182455

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Sovereign Power and the Law in China

China Studies Published for the Institute for Chinese Studies University of Oxford

Editors

Glen Dudbridge Frank Pieke

VOLUME 18

Sovereign Power and the Law in China By

Flora Sapio

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Sovereign power and the law in China / by Flora Sapio. p. cm. — (China studies, ISSN 1570-1344 ; v. 18) Includes bibliographical references and index. ISBN 978-90-04-18245-5 (hbk. : alk. paper) 1. Criminal justice, Administration of—China. 2. Law enforcement—China. 3. Sovereignty—China. I. Sapio, Flora. II. Title. III. Series. HV9960.C53S68 2010 364.951—dc22 2010019416

ISSN 1570-1344 ISBN 978 90 04 18245 5 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints BRILL, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

To the Magnificent, whose splendour shines everywhere. In memory of my father, he who taught me the value of knowledge, honesty and anti-racism. To M., S., L.

CONTENTS List of Figures and Tables .......................................................... List of Plates ................................................................................

xi xi

Chapter One: Introduction ........................................................ 1.1 Paradoxes ........................................................................... 1.2 The Objective of this Book ............................................... 1.3 Concerns ............................................................................ 1.4 Haunting Questions ........................................................... 1.5 Conceptual Gaps ............................................................... 1.6 The State of Exception ...................................................... 1.7 Beyond Liberal Democracy ............................................... 1.7.1 Bare Life ................................................................. 1.7.2 The Zone of Exception ......................................... 1.8 Legal Exceptionalism ......................................................... 1.9 Structure and Method .......................................................

1 1 3 5 6 9 16 17 18 20 23 26

PART ONE

THE FORCE OF A FORCELESS LAW Chapter Two: Legal Nihilism—State of Exception .................. 2.1 Anomie ............................................................................... 2.2 Exceptions in China’s Constitutional Law: Martial Law and Emergency Powers ..................................................... 2.2.1 Martial Law Powers .............................................. 2.2.2 Emergency Powers ................................................. 2.3 Exceptions in China’s Criminal Law ................................ 2.4 “Evil Cults” ........................................................................ 2.4.1 Religious Groups and the Law ............................. 2.4.2 The Falungong and Article 300 ............................ 2.4.3 Is Meditation a Crime? ......................................... 2.4.4 The 6–10 Office ..................................................... 2.5 Conclusion .........................................................................

33 34 41 42 48 56 59 60 62 65 66 70

viii

contents

Chapter Three: Shuanggui ............................................................ 3.1 The CCP’s Regulatory Powers ......................................... 3.1.1 Jurisdiction ............................................................. 3.1.2 A Parallel Criminal Code ...................................... 3.2 Investigative and Detention Powers .................................. 3.2.1 Historical Antecedents ........................................... 3.2.2 From Summons to Investigative Detention .......... 3.2.3 From Investigative Detention to Shuanggui ............ 3.3 Why Shuanggui? ................................................................... 3.4 Enforcing Shuanggui ............................................................ 3.4.1 Harsh Interrogation Techniques ........................... 3.4.2 Psychological Manipulation ................................... 3.5 Conclusion .........................................................................

71 72 73 77 82 82 86 88 96 100 103 105 108

Chapter Four: Stop-and-Question ............................................. 4.1 Precursors of Criminal Behavior? ..................................... 4.2 Stop-and-Question ............................................................. 4.3 The Difference between Stop-and-Question and Summons ............................................................................ 4.4 Problems and Abuses ......................................................... 4.5 Disposable Beings .............................................................. 4.6 Reforming Stop-and-Question? ........................................ 4.7 Conclusion .........................................................................

111 112 115 119 122 128 132 137

PART TWO

EXCEPTIONS IN EVERYDAY SPACES Chapter Five: Para-Police Forces ............................................... 5.1 The Birth and Revival of Para-Police Forces ................... 5.2 Legal Mechanisms ............................................................. 5.3 Public Order Joint Defense Teams ................................... 5.3.1 Powers .................................................................... 5.3.2 Composition, Organizational Structure, and Relationship with the Regular Police Force ......... 5.4 Private Security Companies .............................................. 5.4.1 Typology, Relationship with the Regular Police Force, and Composition ........................................ 5.4.2 Enhancing Police Control .....................................

141 142 144 147 149 152 154 157 159

contents 5.5

Urban 5.5.1 5.5.2 5.6 Urban

ix

Management Officials ............................................ Legalizing Inspection Teams ................................. Administrative Law Enforcement Departments ... Divides ....................................................................

161 163 165 167

Chapter Six: The Camp ............................................................. 6.1 The Evolving Legal Regime 1990–2008 .......................... 6.2 The Roots .......................................................................... 6.3 Birth of the Camp ............................................................. 6.4 Rebirth of the Camp ......................................................... 6.5 Compulsory Rehabilitation and RETL ............................ 6.6 Commitment to Health-Recovery Centers ....................... 6.7 Conclusion .........................................................................

175 176 183 187 190 197 202 205

Chapter Seven: Coercive Interrogation ..................................... 7.1 The Transformation to Bare Life ..................................... 7.2 The PRC Media and Torture .......................................... 7.2.1 Torture in the Press ............................................... 7.2.2 Torture on the Internet ......................................... 7.3 Lifting Pain out of the Body ............................................. 7.4 Posthumous Rehabilitation ................................................ 7.5 Episodes of Ordinary Violence ......................................... 7.6 Friends and Enemies ......................................................... 7.7 Reform? .............................................................................. 7.8 Conclusion .........................................................................

207 208 210 211 212 218 222 225 226 229 238

Chapter Eight: Conclusion ......................................................... 8.1 Mapping Exceptions .......................................................... 8.2 Resilience ........................................................................... 8.3 Dual Structures .................................................................. 8.4 Modes of Exception ........................................................... 8.5 Modes of Bare Life ............................................................ 8.6 The Power and Limitations of Grand Theory .................

241 242 243 246 248 250 253

List of Legal Documents ............................................................ Reference List ............................................................................. Index ...........................................................................................

259 317 355

LIST OF FIGURES AND TABLES Figures Figure 1. Sovereign power as constrained by legal norms ....... Figure 2. The zone of exception ............................................... Figure 3. Central organizational structure of the CCP (simplified), the CCDI and its relation to central party and state organs ...............................................

22 22 76

Tables Table 1. Corruption cases handled by CDIs ........................... Table 2. Size and inmate population of jiedusuos ..................... Table 3. Frequency of press reports on torture ( January 2000–December 2008) ............................... Table 4. Investigations of cases of torture ...............................

98 192 213 221

LIST OF PLATES Plate 1. Plate 2. Plate 3. Plate 4. Plate 5.

Body of Liang Jiping. (Courtesy of MOP.com) ........ Body of Liang Yuncai. (Public domain image) ......... Scars borne by Liu Ping. (Released into the public domain by the author) ............................................... Body of Zhou Zengzhi, detail, legs. (Courtesy of Xinhua) ................................................. Body of Xu Gengrong, detail, right hand. (Courtesy of Tengxun) ...............................................

216 216 217 217 218

CHAPTER ONE

INTRODUCTION What is the sound of an iron flute?

1.1

Paradoxes

In another life, in another time, and in another country, I was a street vendor. I was used to the continuous cajoling and negotiating with the police. However, what I saw in the Hongmiao neighborhood was too much. The man with the armband spun his body around, extended his leg, and hit the small table. A colorful twirl of compact disks rose into the air and then fell around like confetti. Another man swung his arm and slapped the vendor across the face. I could not control myself, and so I stepped forward to ask what was going on. By then, the vendor had already disappeared into their van. You can’t understand, I must have been told as I thought about the vendor. You can’t understand. Only then, as I had ended up being on the other side, did I begin to understand. It was a simple reality. The vendor and I had been close to each other, on the pavement outside the post office, though separated by an immense distance. He had disappeared inside a white van amid the general indifference. The on-lookers and I had not been arrested. The difference between us and the vendors was clear-cut. The men with the armbands could not hit us; they could not arrest us. They had no power over us. We could enjoy the abstract rights to which we were entitled. Our enjoyment of these rights had tangible effects—that night each one of us went back home safe and sound. The only exception was the vendor, over whom they had absolute power. Was he not entitled to the same rights as we were entitled? This book explores some of the manifold ways in which the personal and procedural rights of the individual can be suspended. It illustrates how arbitrary detention can gain a place of its own next to the criminal justice system, thus becoming embedded in China’s legal order. It documents practices and processes that exist outside of the formal

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criminal justice system, or take place in grey areas at the intersection between criminal and administrative law and politics. These indistinct zones were born as a response to real or perceived perils, which resulted in a suspension of citizens’ legal rights. The suspension of rights should have been a transitory condition of the criminal justice system. Instead, it slowly became one of its permanent features. This suspension was replicated in time and space, on different groups, and on diverse grounds until it became ordinary. Once this stage had been reached, various forms of arbitrary detention received a regulatory basis of some sort. They were institutionalized and rationalized. Nowadays, detention can be invoked whenever a potential or actual threat to public order is deemed serious enough to call for flexible proceedings and an elastic evidence regime. While this dynamic can affect any of the rights guaranteed by the Constitution of the People’s Republic of China, undoubtedly it impacts mostly on the right to personal freedom. The denial of this fundamental right results in a chain of consequences, which this book reconstructs. As fact, being detained arbitrarily places a citizen at the complete mercy of his captors. These can be the police, but can also include nonstate or civilian agents who enjoy official or even de facto investigative and detention powers. Regarding the targets of arbitrary detention as somehow deserving a lesser measure of legal protection induces the citizenry to accept the existence of these measures, provided their use is limited to those placed at either extreme of the social ladder. Once such a crucial step is taken, arbitrary detention becomes an ordinary component of both the legal order and public perception. An unspeakable violence enters the realm of citizens’ perception. Exceptions become the norm and are accepted as such. For this reason, a vendor can be beaten and pushed into a van by a man with an armband, as bystanders look on with indifference. For this reason, hooded criminal suspects can be displayed to the masses, who clap and cheer at their sight. For this reason, vignettes portraying torture techniques can be regarded as entertainment.

introduction 1.2

3

The Objective of this Book

This book attempts to shed light on this complex dynamic, advancing the argument that a reconceptualization of the criminal justice system of the People’s Republic of China (PRC) is necessary. While this area of Chinese law slowly moves toward a thin version of the rule of law, it still features elements in sharp contrast with the trends toward regularization, standardization, and greater procedural fairness found elsewhere in the legal system.1 The criminal justice system displays a combination of elements of formality and elements of informality to a greater extent than other areas of the law. Administrative detention is one element of informality that has realized dramatic reforms,2 but this work argues that, notwithstanding the existence of an emerging sphere of legality, lawlessness remains firmly entrenched. This only seems contradictory: the phenomena I subsume under the conceptual label of zones of exception are spawned by juridical mechanisms and procedures. Rather than constraining state power, these can, paradoxically, induce a temporary suspension of legal and procedural rights, and make this suspension of rights into a systemic feature of criminal justice. My thesis is articulated in three propositions. First, a zone of lawlessness is part of the legal order of China. This zone must be regarded not as an aberration, but as an integral component of the legal system. The need to limit coercive power undoubtedly prompted a reform of the state’s monopoly on coercion. Another underlying motive was, however, strengthening the party-state’s coercive capacity. Relevant agencies were enabled to trace an increasingly effective and surgically precise divide between the targets of state coercion and the rest of the citizenry. The uneasy balance between these goals was struck by reforming criminal legislation, while preserving a series of mechanisms existing outside of the criminal law, which allowed the suspension of certain rights. Legal reform has induced or is inducing a transition of these mechanisms toward formal criminal legislation. However, this fundamental passage means that while these mechanisms come to comply with most of the constitutive elements of a thin 1 In other words, with the processes that Randall Peerenboom has nicely summarized using the metaphor of the long march toward the rule of law. Peerenboom 2002. 2 Biddulph 2007.

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theory of the rule of law, they need not necessarily pose significant and actual restraints on state power. Second, a zone of lawlessness is part of normality. The preservation of certain legal mechanisms, processes, and institutions finds its reason to be in the need to exclude the members of some groups from the body politic. Excluding some groups from the legal and procedural guarantees enjoyed by the rest of Chinese citizens creates one important consequence. Once rights are suspended, those state and nonstate actors that exert temporary power over excluded individuals can dispose freely of their bodies and lives. Third, the zone of lawlessness exists to protect sovereign power from alleged or actual threats. This function is the most important and immediate aim of legal exceptionalism and the reason it exists in tandem with formal criminal proceedings. To explain why exceptions to formal criminal proceedings are necessary, various reasons may be offered. Some of the possible justifications may address China´s conditions, its tradition, and past practices. Others may refer to the need to cope with emergencies, to stop the spread of potential pandemics, or to reduce increasing crime rates. None of these reasons needs necessarily be real, credible, or imminent. Simply stated, the formal legal system needs to preserve a space of flexibility to cope with unforeseen circumstances. These propositions are premised on a hypothesis concerning the possible effects of legal reform on authoritarian regimes. Randall Peerenboom has observed how a thin rule of law lacks those normative elements to which liberal-democratic political systems subscribe.3 In the absence of liberal-democratic normative values, transition toward a thin rule of law may strengthen authoritarian regimes and induce a systematic limitation of rights. Legal reform becomes then unable to induce an actual limitation of power. This very process simply contributes to strengthening power. Furthermore, it firms the entrenchment of legal exceptionalism, because the core of sovereignty is nothing but a divide between those who are regarded as a threat and those who are not. From this point of view, progress toward a rule of law then 3 These normative values can be summarized under the rubrics of (1) an economic system that fits the abstract model of neoclassical liberalism; (2) a universalist conception of human rights in which civil and political rights prevail over social, economic, and cultural rights; (3) a liberal-democratic political system with universal suffrage and a system of checks and balances, which work in practice, and are free from corruption and conflict of interest. Peerenboom 2002: 69. For a more in-depth discussion of this argument, see section 1.3.

introduction

5

contributes to consolidating zones of lawlessness. Lawlessness has been endemic since the foundation of the PRC up to the Deng era. Legal reform has induced a transition toward a form of rule of law, which has not succeeded in eliminating administrative detention and other extra-legal phenomena and institutions. Actors in the criminal justice system were instead compelled to justify their powers on legal grounds. Speaking the language of legal reform has empowered them4 and has entrenched an area between lawlessness and legality. This area should be considered a systemic feature of the criminal justice system and, hence, of the legal order. From this position, the regime draws a substantial part of its vital force by neutralizing unforeseen disturbances to social order, stability, and harmony. 1.3 Concerns The birth and the development of zones of exceptions can be best traced by focusing on those investigative, detention, and law enforcement powers that exist outside of criminal, procedural legislation and next to administrative detention powers as reeducation through labor (RETL). Some of them, as shuanggui, are enjoyed by party organs. While some claim that this measure was exceptional, adopted to cope with an imperfect legal system, shuanggui has been quietly smuggled in state legislation, thus becoming a permanent mechanism of sovereignty. The power to stop-and-question (留置盘问 liuzhi panwen)—a prerogative of the police—can engender dynamics very similar to those of shuanggui, with the significant difference that ordinary suspects, rather than Chinese Communist Party (CCP) officials, are targeted. Similar to shuanggui, stop-and-question tactics slowly became a permanent feature of the legal order. The power to shelter for deportation (收容遣送 shourong qiansong), which used to belong to civil affairs organs, has been silently revived by local governments shortly after its abolition in 2003. Now it can be enforced by urban management officials. Other forms of deprivation of freedom are used randomly by parapolice forces or civilian officials. Coercive measures adopted under the criminal procedure law and RETL differ formally and substantively.

4

Biddulph 2007.

6

chapter one

RETL possesses an insufficient legal grounding, consisting of administrative regulations and rules issued by the Ministry of Public Security. As a result of confrontation with other actors in the legal field, the police have been compelled to afford a pale semblance of procedural remedies and guarantees to the targets of RETL, without undergoing any significant limitation of its power.5 Other detention powers may lack any proper legal grounding, or be premised on an inextricable tangle of political, departmental, and local documents. In most cases, these powers developed in the absence of a meaningful confrontation between actors. Therefore, targets cannot always enjoy the guarantees, albeit minimal, afforded to RETL inmates. The substantive differences among these measures lie in the behaviors they target. RETL aims at punishing minor offenders. As questionable as this power may be, it, nonetheless, refers to behaviors that have occurred in the real world, such as theft, gambling, or drunk-driving. The other forms of detention I survey are targeted at a range of behaviors that may have actually taken place, or just exist in the minds of officials, in the form of suspicions about alleged violations of party norms or the state law. 1.4

Haunting Questions

One may then wonder what sense talking about law makes, what legal reform is actually worth, or—echoing Stanley Lubman—whether China has any legal system at all.6 Talking about the law does, indeed, make sense. Doubts about the extent to which the law can limit and regulate state power, thereby protecting the rights and interests of citizens and noncitizens alike, emerge when the law’s sinister potential manifests itself. This ominous ability consists in the law’s potential to suspend rights. If we want to gain a deeper understanding of this process, before our exploration begins, we have to take a brief detour and examine the single most important Chinese objection to Western scholarship on China’s criminal justice. This specific objection is usually raised in informal settings, and its proponents hold that we do not understand the nature of China’s criminal justice system, and that this area of Chinese law can never be entirely understood using norma-

5 6

Biddulph 2007. Lubman 1999.

introduction

7

tive conceptual categories. We can still look at the law, if we find pleasure in doing so, but we should always keep in mind that the law is not as important as we believe. Sometimes, runs the argument, a higher common good requires the use of flexible measures. Public order, clean governance, and a fair provision of public goods—not abstract normative values—are the actual concerns of citizens. This and similar arguments convey one very important point. At least some members of China’s social and intellectual elite profess the acceptance of a power that can shake free from legal constraints. This untamed beast, they add, is necessary to protect us from luan, disorder. The logical consequence of stating this credo is that individuals must forego some of their rights, should a higher good require such a renunciation. These views do not substantially differ from Western advocacy of coercive interrogation techniques: somebody—who may or may not be a terrorist may or may not have placed a bomb in some unknown place. To tame the beast of terrorism, we, therefore, have to unleash the beast of power and torture one person to save a hundred. The possibility that the suspect may provide false information just to end the torture is normally not considered. The chance that a power unbound from legal constraints may be used in abusive ways similarly is overlooked by the proponents of this argument. To understand why lawlessness can be so resilient and, in principle, also accepted, we should unravel the relation between sovereign power and its subjects’ lives. In order to understand this relationship, we should address those juridical procedures and legal mechanisms that make it possible to deprive individuals of their rights. Such a prime cause of abuses, and the relevant technical mechanisms, will be analyzed with reference to four empirical questions: 1. Could the law in practice unleash raw power and allow it a total control over life? If raw power can control life because legal mechanisms allow such a control, a question about what mechanisms are concretely used then arises. 2. If raw power is unleashed, who will its targets be? While a likely expectation is that such power will mostly target marginalized groups, or those who dissent, a more sophisticated postulate would assume that raw power could be used on anybody, regardless of social status. The key determinant would not be the condition of dissident, addiction, or corruption (of party members), but rather the extent to

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which an individual is believed to pose a credible threat to some specific aspect of power. 3. To what extent are legal exceptions visible? Once legal exceptions start to become the norm, there is, in theory, no reason why their existence should be kept hidden from the public. If legal exceptionalism constitutes part of ordinary life, then what is extremely common need not be hidden. Furthermore, legal exceptionalism can find its rationale in the need to counter sudden and grave threats and, therefore, accepted in the name of security. 4. Are legal exceptions aberrant products of the PRC? Given that legal exceptionalism is present also in liberal-democratic systems, it would be worth asking what can then happen in an authoritarian political system, and if legal reform has reshaped the relation between power and its targets. China studies have not yet addressed these questions in a systematic and comprehensive way. The empirical chapters of this book provide an answer to them. I set out to observe subjects situated at the opposite extremes of the social ladder, finding out how those who have political power, as well as those who do not, can become a target of legal exceptions. While party members can be detained under shuanggui, ordinary criminal suspects are the target of the power to stopand-question, a power that, if used, results in suspects being placed outside of procedural guarantees. There is no doubt that questioning under shuanggui or the stop-and-question power takes place in places where the public is not allowed. The consciousness of legal exceptions is shaped by the fact that legal exceptions are visible in those spaces where everyday life is lived. These spaces can be physical or virtual. In physical spaces, legal exceptions find a two-fold manifestation. The first consists of the presence of a panoply of para-police organs. Not only do these organs exist extraneous to any adequate legal framework. The powers they wield stem from the realm of the political and have thus far found no full legal legitimacy. The second manifestation concerns the rebirth and physical expansion of a relatively new typology of detention facilities: camps for compulsory drug rehabilitation. Community policing organizations are a familiar sight in urban and rural areas as well. No attempts are made to disguise the existence of compulsory rehabilitation camps. The most extreme result of the existence of legal exceptions—namely the occurrence of torture—is

introduction

9

also normally acknowledged. In spite of censorship, textual and visual information about this practice is available on the Internet to millions of citizens. The final question, addressed throughout this work, concerns the way in which legal exceptionalism has evolved in relation to these specific areas of inquiry. 1.5 Conceptual Gaps China studies have examined various mechanisms of power, sometimes privileging a Foucauldian perspective. Examples of this view are provided by studies of imperial sacrifices7 and colonialism.8 Others are provided by works on discourses of power9 or on the specific domains of household registration, disability,10 family planning,11 health,12 sexuality13 and prostitution,14 cultural life,15 and sports.16 Analyses of eugenics,17 propaganda, the reaction to health emergencies, and anti-crime policies have adopted a different theoretical lens. Studies of imprisonment have more or less neglected the adoption of a solid theoretical perspective, with the exception of Sarah’s Biddulph recent work, in which Pierre Bourdieu’s theory of the field proves a powerful tool to examine the interlocking spheres of power and legality.18 Analyses of the nexus between power and the law are thus fraught with conceptual gaps. The deeper reasons why administrative detention displays an exceptional resilience have been explored only in part. Administrative detention—not to mention extra-legal forms of deprivation of freedom—has been regarded as an anomaly since the early days of studies of Chinese law. In the late 1920s, George Keeton complained that public security organs could

7 8 9 10 11 12 13 14 15 16 17 18

Zito 1997. Barlow 1997; Hevia 2003. Barlow and Zito 1994. Kohrman 2005. Greenhalg and Winckler 2005. Rogaski 2004. Jeffreys 2004; Dutton 1992; Sigley 1996; Evans and Hershatter 1998. Hershatter 1997. Anagnost 1997. Brownell 1995. Dikötter 1998. Biddulph 2007.

10

chapter one arrest persons and conduct investigations without any reference to the law courts. The remedy against administrative acts by appeal to the administrative court is unsatisfactory, especially as only one court exists for the whole of China.19

Even though more than sixty years have passed and the Nationalist regime no longer exists on mainland China, little seems to have changed. In 2009 Mr. Kumar, Amnesty International’s advocacy director for Asia-Pacific Affairs, delivered a testimony on human rights in China before the United States Congress Human Rights Commission. He concluded that Chinese authorities continue to make extensive use of various forms of extra-judicial or administrative detention in which individuals are deprived of their liberty without charge, trial or judicial review.20

The orientation postulating that this phenomenon is anomalous is shared by most studies of the pre-reform criminal justice system.21 Furthermore, it has been embraced by recent works.22 The adoption of a strictly legalistic approach has enabled this scholarship to raise the awareness about the existence of imperfections in China’s criminaladministrative legislation. This approach has been unable to account for the persistence of this sphere and to formulate any predictions about its developmental trend. We thus know that an entire area of China’s legal system lies outside of the reach of basic procedural guarantees afforded by the PRC Constitution, its Criminal and Criminal Procedure Law. At the onset of legal reform, the persistence of this area could have been justified either by ideology or by the need to adopt a gradualist approach. Neither argument can now satisfactorily explain why forms of deprivation of freedom that in some cases existed before the foundation of the PRC are still a feature of China’s legal order. China’s refusal to bring its legislation in line with international

Keeton 1969: 44. Kumar 2009. 21 Cohen 1968; Chen 1973; Lubman 1969; Leng 1977; Yee 1957; Whyte 1973; Franz 1962; Li 1970, 1977; Buxmaum 1962; Jones 1976; Tao 1974. 22 Cohen 1982; Leng 1981; Chiu 1979, 1980; Bracey 1988; Ladany 1992; Chen 1999; Lo 1995; Biddulph 1993; Brown 1997. Even though Brown offers a very mild criticism of administrative detention measures, he considers them an anomaly. Clarke and Feinerman 1995. Others consider the persistence of administrative detention as signaling an incomplete commitment to the rule of law. See Lubman 1999 and the literature produced by human rights NGOs. Two representative works are Amnesty International 1991; Human Rights in China 1999. 19 20

introduction

11

law or the country’s need for fast and flexible quasi-criminal proceedings should be considered epiphenomena stemming from something other than the country’s focus on substantive rather than procedural justice. Over time, scholarship has slowly been driven away from the main question of why, toward meticulous searches for information about RETL and reform through labor camps.23 Some have pointed out the structural problems of the correctional system and its changes,24 while others have studied its history.25 That RETL is incompatible with rule of law has been pointed out. Chinese scholarship, which emerged in the 1980s, generally followed a very similar trend.26 In the meantime, the RETL and prison system have undergone various rounds of reorganization and industrial reconversion, and several different forms of administrative detention have been revived.27 The trends toward rationalization and regularization of the legal system should have caused this area to shrink. The revival of administrative detention is 23 The most important works are Domenach 1992; Wu and Wakeman 1993; Lee and Copper 1994; Cowen 1993; Seymour and Anderson 1998; Williams and Wu 2004; Wu 1992; Simon 1996; Williams and Wu 2006; Du 2004. 24 Tanner 1994, 1999; Fu 2005a, 2005b; Zou 2001. 25 Dikötter 1997, 2003; Wang 2008. 26 Some recent studies are Liu and Li 1999; Chu, Chen, and Zhang 2002; Guo and Zheng 2005; Xia and Zhang 1997; Xia 2001. 27 So in the early 2000s, RETL existed side-by-side with detention on public security charges (zhi’an juliu), retention for in-camp employment (liuchan jiuye), shelter for deportation (shourong qiansong), shelter for examination (shourong shencha), detention of juvenile offenders in foster homes (shourong jiaoyang), shelter for education (shourong jiaoyu), compulsory drug rehabilitation (qiangzhi jiedu), drug rehabilitation through labor (laodong jiaoyang jiedu), stop-and-question (liuzhi panwen), shuanggui, and internment in psychiatric hospitals. Detention on public security charges is an administrative punishment used on minors, for which the maximum length cannot exceed fifteen days, or twenty days in the case of multiple minor offenses. See articles 10, 16, People’s Republic of China Law on Security Administration Punishments (Zhonghua Renmin Gongheguo zhi’an guanli chufafa 中华人民共和国治安管理处罚法), issued on 28 August 2005 and effective from 1 March 2006, hereinafter referred to as SAPL. It is worth noting how until 2005 detention on public security charges was based on administrative regulations. Retention for in-camp employment is normally mentioned by all studies on RETL, but has never been the object of a systematic analysis. An examination of this measure in connection with administrative detention as practiced on drug addicts is provided in Chapter 6. Regarding shelter for deportation, see Human Rights in China 1999. Shelter for examination has been the object of two studies published in the 1990s, Hsia and Zelding 1992; Wong 1996. A first analysis of compulsory drug rehabilitation, which was reformed in 2008, is Biddulph 2007. The two relevant measures have been merged in one known as “isolation for compulsory drug rehabilitation” (qiangzhi geli jiedu 强制隔离戒毒). For an analysis of compulsory psychiatric care, see Munro 2006.

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a contradiction in its own terms. We have to admit that our thirtyyear quest for precursors of the RETL system abolition, and abolition of all other forms of administrative detention, has left us were we began. There must be some reason why China still needs administrative detention. This important finding and the ensuing observation that an across-the-board abolition of administrative detention may not be feasible, or not take place as soon as we may wish, have met with criticism.28 At this point, it would be worth asking whether a purely legal analysis can shed light on quasi-legal measures existing in a zone where politics and the law blur and merge into each other. If the rule of law, regardless of its existing definitional nuances, cannot explain the existence of Guantanamo and Abu Ghraib, how could the same concept account for abuses taking place in China? How can the law allow the existence of powers that are by definition outside of the law? Analyses based on the rule of law cannot explain what place, if any, arbitrary detention has in China’s legal order. They can easily lead to criticism, arguments that administrative detention be abolished, and observations that there must be some reason why more than six decades have passed, but abolition has not taken place yet. The concept of rule of law allows us to trace the boundary of this zone of lawlessness. However, rule of law models cannot explain what place, if any, arbitrary detention and lawlessness occupy in China’s legal order. Systemic phenomena are conceptualized as mere deviations from an highly abstract, normative model of rule of law. Rather than simplifying reality to understand it better, this process of intellectual abstraction substantially differs from empirical reality. Thus far, legal reform has resulted in the empowerment of those actors who can decide when an exception to procedural guarantees can be made and when administrative detention be used instead of criminal proceedings. While the police must justify their powers on legal grounds, 29 they still can decide on the exception. Is this not paradoxical? Once the law, ideas, and discourses about the rule of law are used to limit rights, then the concept loses most of its explanatory force. To comprehend fully this simple truth, we must briefly go back to the analytical distinction between thick and thin theories of the rule of law outlined by Randall Peerenboom. Peeren-

28 29

Peerenboom 2004; Hung 2003. See Munro 2006 for a critique to Peerenboom. Biddulph 2007.

introduction

13

boom lists the features of a thin rule of law.30 He observes how the concept facilitates productive discussions among those who uphold different political beliefs, yet it lacks an “adequate normative content.”31 He writes further: [M]any critics fear that a thin rule of law could be used instrumentally by an authoritarian government to strengthen the regime and deprive individuals of their rights. In the absence of democracy and opportunities for public participation in the law-making processes, the ruling regime can pass illiberal laws that limit individuals’ rights, such as broad statesecrets laws, rules against endangering the state, or regulations requiring that all social groups register with government authorities.

By grounding rights in a thick conception of rule of law, some scholars hope to offset the socialist tendency to view law in instrumental terms and “to consider rights as positivist grants from the state, that may be revoked and limited by the state as it sees fit.”32 This book shows how, in the criminal justice system at least, progress toward the rule of law leads to a systematic possibility to suspend the enjoyment of rights. Sovereign power, a power wielded primarily by the CCP, is growing stronger.33 While this process involves the Party, it extends also to the criminal justice system, as the entity enjoying the monopoly on punitive power is the party-state. The emerging civil sphere cannot partake of this monistic, unilateral power. It enjoys no opportunity to influence criminal or criminal-administrative law making. While the civil sphere can, indeed, engage state actors in legal debates, it can neither set the rules of the game nor decide how legislation will be interpreted and enforced.34

30 Peerenboom 2002: 65. These consist of significant restraints on state actors, a set of formal legal requirements concerning law-making procedures, transparency, the law’s general nature, a clear content, nonretroactivity, consistency, stability, and two features relevant to the law in action: a narrow gap between law on the books and law in practice, and the acceptability of law to a majority of the population. A thick version of the rule of law is, on the contrary, complemented by assumptions about the most appropriate political and economic system and conceptions of human rights. 31 Ibid., 69. 32 Ibid. 33 Shambaugh 2008. 34 An empirical illustration of this is given by the infamous hide and seek incident (duo maomao shijian), which saw Li Qiaoming, a 24-years-old Yunnan resident, dying under torture in a detention center in February 2009. The justification provided by Yunnan authorities that he died while playing a game of hide and seek fueled civil society’s call for transparency. As a result, the Yunnan propaganda department formed a fifteen-man investigative committee (diaocha weiyuanhui ), comprised of eight ordinary

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Once progress toward a thin rule of law begins to display the potential for a suspension of rights, then further reliance on the concept of rule of law is more likely obscure this process, than to bring it to light. As Peerenboom writes: [I]n the rare case of a rule-of-law-compliant authoritarian government misusing law for normatively reprehensible ends, there surely are more direct and telling criticisms of the regime that it is violating the rule of law . . . to claim that they are violating the rule of law somehow misses the point.35

It would be more productive to conceptualize this entire process as a detour along China’s march toward the rule of law. A shift in perspective, and a turning to the political, is hence needed. In her masterful legal analysis, Sarah Biddulph attributes the resilience of administrative detention to political factors, the focus on strike hard ( yanda) campaigns resulting from the failure of crime prevention by community policing organizations. Within this context, administrative detention still constitutes a flexible tool to repress crime and protect economic reform. Legal reform has not resulted in a significant limitation of police powers, in spite of forceful advocacy for the placing of greater constraints upon them. I take her work as a powerful source of inspiration and try to explore another possible reason for this outcome beyond the yanda, by choosing the relationship between politics and the law as my starting point. This specific choice is grounded in citizens, three journalists, and four political-legal cadres. The report authored by the investigative committee was inconclusive and could not shed light on all the details of the case, because the criminal procedure law does not and cannot empower ordinary citizens to access crucial evidence as CCTV recordings or to hear Li Qiaoming’s cellmates. The deputy director of Yunnan propaganda department, Wu Hao, underscored how civil society played a symbolic role in the entire question: Our position is [we are] not wrong, internet users have a wrong perception instead. We did not say that the investigative committee composed by internet users would replace judicial organs and solve this case. [The investigative committee] was needed only to ensure citizens’ basic rights. We opened a window to let some fresh air in. . . . The law has not vested [internet users] with investigative powers, and it has not vested us [the propaganda department, [with investigative powers]. Media attention and the ensuing pressure from the public opinion indeed resulted in the case being promptly addressed. However, the final decision on how to punish those who instigated and performed torture was, of course, left to the judicial system, not to civil society. Therefore, while the three cell bosses that actually tortured Li were found guilty, of the two policemen involved in the case, one was sentenced to one year in prison; the other, got away with a one-year-and-six-months suspended sentence. Words in square brackets and translation mine. Ma and Chen 2009. Xinhua 2009. 35 Peerenboom 2002: 114, at endnote 60.

introduction

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an explanation lying between the pages of Michael Dutton’s Policing Chinese Politics.36 Since the 1927 Shanghai Massacre, the formation of the PRC as a modern sovereign state took place amidst vital threats to the political entity that in 1949 came to control the leverages of sovereignty. As threats were constant, so was the need to act against those who attempted at the life of the party. Institutions arose to preserve the party’s existence, root out and punish the enemy. As they were induced by the needs of the revolution, their formation and operations would take place extra-legally. Once the power the CCP exerted de facto on China’s territory found its legal-formal legitimacy in the state constitution, the need to preserve the life of the party was extended to the entire nation. The search for the enemy, whether a real or an imagined one, thus continued and was performed mostly through extra-legal or quasi-legal procedures. Deprivation of the enemy’s legal rights took place systematically, fuelled by political passion and intensity. A higher goal was at stake—building a prosperous socialist country—hence the life of one could be sacrificed if such life posed a peril to the revolution and to the lives of the people. The Maoist distinction between friend and enemy, a core concept in Dutton’s analysis of the political, can be considered Mao’s unconscious and roughly contemporary reenactment of a divide similar to the one conceptualized by Carl Schmitt in a context much different from revolutionary China.37 Dutton’s analysis ends at the onset of the reform era, when “the magic spell of the [Maoist] form of commitment politics was broken by the revisionist brilliance of Deng Xiaoping,” a brilliance requiring an explanation beyond Schmitt and Mao.38 In the concept of contractualism, Dutton finds a possible reason for the replacing of divisive political passions by the imperatives of legal reform and economic development. My work begins there, where Dutton’s analysis ends. By deliberately adopting a more legalistic stance, going, at times, back in time before 1927 or 1949, I argue that the emphasis on legality has hidden but not

Dutton 2005. Carl Schmitt was a legal theorist of the national-socialist regime. His critique of the liberal rule of law and affiliation to the German National Socialist Party was awarded with a brilliant career. Schmitt held full professorships at the important intellectual centers of Berlin and Cologne, and chaired the Union of National-Socialist Jurists (Vereinigung nationalsozialisticher Juristen). His thought has received attention from the intellectual left, of which Agamben can be considered a member. On Carl Schmitt, see Scheuerman 1993; Balakrishnan 2000; Müller 2003. 38 Dutton 2005: 314. 36 37

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replaced the division between friend and enemy. As the smokescreen of legal fictions about rights and equality is dispelled, the contours of political exclusion acquire greater visibility. It becomes clear that the divide is now set not by ideology but by law, a law that can suspend rights and spawn extremes of inequality. 1.6 The State of Exception The suspension of legal rights as it takes place in liberal-democratic systems and the consequent processes of exclusion have been explained by contemporary philosopher Giorgio Agamben with his theory of the state of exception.39 Agamben connects Hannah Arendt’s thought on deprivation of rights and concentration camps40 to Foucault’s work on biopower, which he revisits. To Agamben, the original function of power is to subsume life under itself, manage it, and decide whether such life should be allowed, and, therefore, enjoy all that allows its development and preservation, or rather can be killed with little consequences. Power, indeed, resides in the intimate recesses of political and social life. Unlike power addressed in Foucauldian theory, this kind of power did not evolve from the transition between ancien regime and modernity. It can be traced back to the classical Greek mode of governance, based on direct democracy, and to the Roman tradition of justice and rule of law. The system of checks and balances existing in liberal democracies, the principle of rule of law, and a universalist conception of human rights backed by relevant legal instruments can constrain power, harness it, and put it into the service of citizens. To Agamben, these values and principles are mostly fictitious. The most important juridical mechanism that exists to protect the democratic order—the legal institution of the state of exception—allows for the lifting of most personal rights for a limited period of time. As rights are suspended, the legal order loses its force to constrain power, which then increases unharnessed. Neither citizens nor noncitizens can in practice invoke or use rights to protect themselves, but sovereign power is still present, to govern and protect society in the absence of societal participation. The prerogative of power to dispose of life as it wishes is no longer hidden behind the law. Agamben regards the state of 39 40

Agamben 1998, 2005. Arendt 1951, 1958.

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exception as a normal condition of modern politics. As the practice of rule by decrees intensifies in the name of preserving democratic societies from totalitarian deviations, undemocratic internal and external threats, or other possible perils, the state of exception becomes the norm. As the state of exception becomes the normal condition of politics, many sectors of civil society accept the limitation of rights as a lesser evil. In the meantime, everyone acquires the potential to be abused or killed by sovereign power, should those agencies vested with the relevant authority believe that one poses a threat to security or public order; suffers from an irreversible illness that does not justify the cost of treatment; or does not enjoy the right to enter the country. A zone of anomie41 is thus produced, and both a metaphorical and actual space opens up: “the Camp.”42 The Camp, a “hidden paradigm of the political space of modernity,”43 refers to all the physical spaces used to divide those in need of increased scrutiny, or the unwanted, from the rest of the citizenship. It is here that legal exceptionalism finds its physical manifestation. The facilities used to detain illegal aliens prior to their removal and the Guantanamo Bay detention camp provide two possible empirical proofs of Agamben’s theory. 1.7

Beyond Liberal Democracy

Agamben’s investigation of the nexus between sovereign power and life is limited to liberal-democratic systems. Agamben echoes Hannah Arendt’s call for a more systematic exploration of totalitarianism, leaving this endeavor to others. Responding to this call, I attempt first an exploration of this nexus as it exists in China. The question of abstract philosophical interest, which intersects the domains of political and legal studies, empirically focuses on China because of the uncontested fact that the PRC does not share the Graeco-Roman roots of political and legal thought to which Western liberal-political democratic

41 Colloquially referred to as luan, anomie is to be understood both in its original meaning of anomos (ἄνομος) and in the broader connotation the word has acquired in modern sociological theory. Literally, ἄνομος denotes a condition where there is no law, either because legal norms simply do not exist or because they are not applied. Hence, all that takes place does so outside of the law, or against of it. Giddens 1979 discussing Durkheim’s concept of anomie. 42 Agamben 1998: 168–69. 43 Ibid., 123.

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systems directly or indirectly refer. Apart from the differences in its political system, China’s criminal justice system is composed of three different layers. After the original substratum of imperial law was modernized at breakneck speed in an attempt to regain complete sovereignty, throughout the following century Maoist creations coexisted with legal models and institutions adapted from the Soviet Union, as well as those received from continental legal systems or derived from international law.44 As centered as it is on the instrumental use of constitutional law, the theory of the state of exception neglects to observe a similar potential, as it may exist in other areas of a legal system. By examining rules and regulations internal to the Chinese Communist Party, some areas of criminal legislation as well as the regulatory framework on community policing organizations, I prove how a greater variety of juridical mechanisms can be used to hold rights suspended. The theory, furthermore, needs a more solid empirical grounding, as its original version lacks a broad empirical foundation, using historical episodes almost as passing illustrations. By examining three forms of detention, the unconstrained behavior of nonstate actors, and the ways in which extremes of violence enter the public domain without eliciting a resistance that can actually overcome sovereign power, I contribute additional empirical grounding. As another call has been addressed by Agamben to the study of how institutions produce bare life, I begin to observe how this process takes place in China and how it changed at certain key historical junctures. This work concludes with a reflection on bare life in an authoritarian setting, as well as on the power and limitation of Agamben’s theory. 1.7.1

Bare Life

I adopt Agamben’s concept of bare life (zoé) in a nearly unaltered form. Bare life denotes a condition in which a person is totally at the mercy of raw power, as he has been made unable to enjoy the protection human rights could afford. Rights should harness sovereign power, acting as an individual’s shield. Once this protective shield is 44 A recent example is the National Bureau of Corruption Prevention (Guojia yufang fanfubaiju 国家预防反腐败局), a derivation of the CCP Central Commission for Discipline Inspection, established in 2007 to fulfill the obligations arising from article 6, United Nations Convention Against Corruption (UNCAC), adopted 21 October 2003, entered into force 14 December 2005.

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removed and any separation between naked power and the individual collapses, life becomes life as it is. Power can exert its claim of ownership over such life fully and as it sees fit. Thus, individuals can be spared, but also detained, abused, or killed at will. Whether they are treated humanely or not does not depend on the law, and does not depend on their abstract entitlement to rights, but on the moral nature of those who exert sovereign power over them because their rights have been held suspended. While they have preserved an abstract entitlement to rights, they cannot enjoy any right in practice. Bare life has definite and clear links to the legal system. Bare life is always produced by a set of “juridical procedures” reflective of specific “deployments of power.”45 All legal mechanisms used to omit, deny, or temporarily suspend the enjoyment of legal rights or procedural safeguards46 are, for the purpose of this work, considered as potentially productive of bare life. How this phenomenon is grounded in the legal system can be immediately understood if it is thought about shuanggui, an investigative measure that allows party discipline organs to bypass criminal procedure legislation and flout the constitutional right to personal freedom. Legislation at the national level that allows the detainment of addicts in the absence of formal accusations47 and review by an impartial and independent judiciary is a second instance in which the law can generate bare life. The actual manifestation of this legal exception is given

Agamben 1998: 171. These mechanisms are understood as referring to the existence of laws at the national level, administrative rules and regulations, or any other legal or political document that allow arrests, detentions, abductions or any other deprivation or limitation of personal freedom to be enforced by agents of a political party, state agents, or other personnel acting with their support, authorization, or acquiescence. Deprivation or limitation of personal freedom takes place in the absence or effective denial of one or more of the following: right to citizenship, formal accusations, review by an independent civilian judge, representation by a certified lawyer, explanation of the causes of detention, any kind of acknowledgement that a deprivation or limitation of freedom has taken place. With reference to physical integrity, bare life indicates the circumstances that make it possible for a person to be tortured regardless of whether the act of torture is punished or even acknowledged as such, or disguised as a particular style or technique of interrogation. Torture is understood as defined by international law. See 1, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) S. Treaty Doc. No. 100–20, 1465 V.N.T.S. 85 (CAT). 47 In the PRC the use of and dependency on psychotropic drugs do not constitute criminal offenses ( fanzui) but minor offenses (weifa xingwei) punishable by administrative detention. 45 46

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by all those detention facilities used to treat addicts. Those quasi-legal norms that limit the freedom of molest petitioners are a third possible way in which juridical procedures can spawn bare life. Shuanggui and the act of detaining a petitioner do, indeed, constitute the crime of false imprisonment, but once political imperatives have induced their implicit decriminalization, those who used these detention powers may violate the law as written. In practice, the law is systematically made an exception to or misapplied, thus losing its power. The case of addicts instead shows how a close adherence to certain procedural elements of a thin rule of law, too, yields bare life. This phenomenon has deep political significance: the exclusion of some groups from rights and guarantees purportedly takes place for the benefit of those whose lives are worthy of protection (bios). Behind this benevolent façade, lies the will to preserve sovereign power. Corruption undermines governance and distorts the provision of public goods. Most important, it eats away at the legitimacy and credibility of the party. Addicts, most of whom are carriers of sexually transmitted diseases (STDs) or hepatitis, need to be separated from the rest of the population to preserve public health. A right to petition is granted, but it should undergo those limitations necessary to avoid riots and violent protests that disturb the public peace. By excluding these and other subjects, sovereign power claims possession of life, which lies underneath it. 1.7.2

The Zone of Exception

A second concept upon which I elaborate to give empirical grounding to Agamben’s highly abstract theory is the zone of exception. As an operational concept, zone of exception refers to each and every kind of deprivation of freedom taking place in the absence of formal criminal charges and criminal proceedings. Detention can take place before formal criminal proceedings begin or even after a criminal sentence has been served. Judicial review does not normally take place. However, if it does, then its outcome is likely to be determined by political, economic, or administrative considerations about the inconvenience of releasing dangerous elements, more than by abstract legal dictates. These phenomena exist side-by-side formal criminal proceedings and occur in an area that constitutes a well-integrated component of the criminal justice system. Formal criminal proceedings are targeted at some categories of citizens who can reasonably expect that they will

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in practice enjoy those rights to which they have an abstract entitlement. The zone of exception exists for those unable or unwilling to be integrated into the body politic. On an abstract level they, too, enjoy the same rights as everybody else, but these rights are momentarily suspended. How is full membership in the body politic gained? When and how can one be stripped of his membership? The authority to decide these inherently political matters rests with political power and can be wielded using mechanisms with more or less adequate legal forms or be embodied in policies, memos, and political directives. The relationship between law and exception is paradoxical, and presupposes the existence of porous and flexible boundaries between law and politics, so that when matters normally regulated by law are likely to affect sovereignty, the legal and the political sphere come nearer and nearer until they merge into each other. Existing constraints to power can be bent, derogated to, or even lifted when a potential or actual threat is deemed serious enough to deserve an exception to any version of the rule of law. On a normative level, naturally the law continues to pose constraints to arbitrary power—these constraints are needed to ensure stability. The need to protect power—a power that ensures the well-being of all members of society through governance—justifies the exception and leads to its broad acceptance. The zone of exception can never be the object of a generalized acceptance, because its existence reveals hypocrisy and destabilizes the perception of juridical reality at its foundations. In an authoritarian political setting in which resistance is, nonetheless, pervasive,48 the individual and collective reactions engendered by this consciousness will not necessarily be extreme. Those who resist power will not readily dare tread into the zone of exception and confront naked power for the sake of corrupt CCP members or because of missionary urges to rescue addicts and prostitutes. The existence of economic, social, or ideological polarizations can induce a perception of these groups as a threat. Thus, if we want to enjoy good governance, public safety, and orderly neighborhoods, something about these groups must be done.

48

Perry and Selden 2003; Friedman, Pickowicz, and Selden 2007; O’Brien 2008.

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Law Sovereign power

Figure 1. Sovereign power as constrained by legal norms.

Sovereign power Exception Law

Figure 2. The zone of exception.

The tight link between the legal system and zones of exception can be aptly illustrated with reference to set theory. The minimum common denominator of normative conceptualizations of the rule of law is the existence of meaningful restraints on sovereign power. Thus, power exists below and inside the law. Power has been subsumed under the law. By logic, exceptions are not possible. In the zone of exception, the relationship between sovereign power and the law changes significantly. Sovereign power exists above and outside of the law. Therefore, it can decide on the law without being entirely bound by it. However, sovereign power also has a place inside the law; it can use the law as it wishes and decide on the suspension of rights. While in the rest of

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the legal system rights may be preserved, in this area they are not. Exceptions to the norm become possible because power has subsumed the law under itself. The areas where power and law conflate into each other will be referred to as “zones of exception” throughout this work. Exceptions result neither from a lack of legal norms nor from a candid use of poor drafting techniques. Neither do they constitute an implementation problem. These are epiphenomena, and can be thus ameliorated or solved through appropriate reforms. Exceptions are a systemic feature of the legal order. They consist of a different, autonomous, and aberrant mode of operation of the law and legal institutions that persists in spite of legal reform. They lie inside the legal system because mechanisms used to suspend rights are legal ones. At the same time, exceptions exist partially outside the legal system and within the domain of sovereign power. The legal system possesses a built-in potential to suspend some key guarantees, placing some outside of the law. Once this potential becomes actualized, what would be unlawful is instead allowed by the law. Discomforted, we may be tempted to reduce the entire problem to a lack of legal reform or an insufficient legal empowerment, and thus feel the urge to reform, redraft, empower the disempowered, and awake their consciences. In the presence of a systemic feature, these possible reform paths would not necessarily eliminate legal exceptionalism. 1.8

Legal Exceptionalism

This heuristic device differs from the Agambenian state of exception in four ways. First, zones of exception are understood as existing primarily within the criminal justice system, and may not necessarily involve the entire legal order. Second, exceptionalism thus involves only part of the citizenry. Third, zones of exception do not involve institutions. Institutions exist to master the exception, not to be mastered by it. Fourth, while the state of exception has been defined as a steady condition of politics, zones of exception are dynamic and possess five features. Dynamism apart, these features concern their relation to the juridical mechanisms used to create exceptions, their autonomy, their link to the formal criminal justice system, and their publicity. They are outlined in the following five propositions:

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(i) A zone of exception can be opened up by constitutional law, by lower-level legislation, or extra-legal provisions. Mechanisms allowing for an ad hoc suspension of rights can exist in branches of law other than constitutional law. Therefore, I regard a zone of exception as a space that can be engendered by legislation at the national level, and norms posed by any other subordinated source of law. Extra-legal provisions, political documents, internal memos, and praxes enacted by legal or political actors can lead to this outcome, too. These sources may be inadequate or entangled in legislative conflicts. Furthermore, any provision leading to a suspension of legal rights would be unconstitutional. A current problem of China’s legal system is, in fact, the absence of a system of constitutional review. Legal and political documents can thus be issued on an experimental basis to cope with circumstances not amenable to different solutions and continue to be in force notwithstanding the existence of legislative conflicts. Given the proximity of political and legal power and the current weakness of the judiciary, the introduction of constitutional review mechanisms would not necessarily guarantee the disappearance of legal exceptions. (ii) A zone of exception possesses shifting boundaries. Changes in a zone of exception are determined by the degree to which the legal basis of relevant measures complies with formal law-making procedures. If the potential to suspend rights is embodied in norms with an adequate legal grounding, the zone of exception becomes more stable or expands. Grounding administrative detention powers into a national-level law, without providing any credible review mechanisms, would make the zone of exception more stable. Expansion occurs if provisions effective within the CCP are transplanted to the criminal justice system and take the shape of a national-level law. Neither of these processes restores the rights that had already been suspended. Under a more optimistic scenario, the boundaries of the zone of exception may shrink until such a zone disappears. A concrete illustration is provided by the abolition of shelter for deportation, an administrative detention measure targeted at migrants, vagrants, and beggars. The forces that push for stabilization or expansion of zones of exceptions are exclusively endogenous. The forces that push for a shrinkage of the boundaries of the zone of exception can be endogenous or exogenous, and include members of intellectual circles, supra-

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national bodies, legal scholars, the media, NGOs, and the internal and international public opinion. (iii) Changes taking place in one zone of exception do not necessarily effect repercussions on the other zones. Zones of exception have autonomous developmental processes, as each one is targeted at a different group of deviants. Therefore, the closing of a zone, its stability, or entrenchment is not mirrored by a similar dynamics in other zones, unless a partial overlap between subjects targeted by the exception exists. In actual practice, the abolition of shelter for deportation has not affected RETL or other forms of administrative detention. Furthermore, developmental processes taking place in zones of exception do not necessarily reflect the broader trends in the formal criminal justice system. The increasing regularization and institutionalization of criminal law have, for instance, taken place at the same time shuanggui was receiving a more solid grounding. (iv) A zone of exception is an integral component of the political and legal system. Zones of exception operate as proxies of the formal criminal justice system. They are buffer areas between the criminal law and society, used to collect and store so-called unworthy lives. (v) Zones of exception are within the realm of everyone’s perception. Sovereign power need not hide the existence of zones of exception, simply because they are needed to isolate threats to public health and public safety. Exclusion of unwanted elements may be believed to make the social body stronger, exactly as the removal of tumor cells allows the survival of individual bodies. Therefore, information about zones of exception is available to the public. Concerns about public order, health, and safety will likely be invoked to justify the suspension of legal rights. Insofar as zones of exception are believed to contribute to the protection of citizens’ property rights and physical integrity, or prevent unwanted contagions, they will be accepted by wide sectors of the public. If those who are drawn into a zone of exception belong to a group thought threatening or dangerous, very few or no dissenting voices will likely be heard. The same outcome can be expected if the targets of exception belong to a group whose ethnic and cultural difference is viewed with contempt and suspicion. Insofar as ordinary, law-abiding citizens will continue to enjoy the full catalogue of rights

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to which they are entitled, resistance will not likely emerge. Resistance will take place only if abuses are targeted at an entirely normalized subject. The wave of protest sparked by the Sun Zhigang case provides an excellent illustration of this dynamic, while the public’s disinterest is exemplified by the fate of female inmates in Canton’s compulsory drug rehabilitation center (qiangzhi jiedusuo 强制戒毒所). The detainees were presented using tones that underscored their marginalization. The implication was that Canton residents were highly unlikely to be met with their same fate of sexual slavery and forced prostitution: Given that female inmates with a Canton residence could easily escape, “Pimp” ( jitou 鸡头) and the cadres only traded in those outside residents—inmates in rehabilitation no one had cared about for a long time.49

These simple sentences contain three different layers of meaning: (i) law-abiding local residents are safe, as compulsory treatment centers are used only for addicts; (ii) abuses do not involve residents, but members of marginalized groups with which they have no relation. In fact not a single Canton woman was abused; (iii) only outsiders—“those who brought drugs, prostitution and sexually transmitted diseases” to Canton—were abused. Therefore, no mass incident or protest erupted in relation to this, or similar, incidents. 1.9

Structure and Method

This analysis of the relationship between sovereign power, the law, and bare life in a setting different from liberal democracies is divided into two parts. The first part illustrates the relationship between sovereign power and life as it can affect different and non-marginalized social groups. An Agambenian state of exception reigned in the PRC until legal and economic reform put an end to it. At this time, talking about the law may not have made much sense, yet new cleavages were traced along ideological lines. These cleavages collapsed in the reform era. After 1978, the possibility of suspending rights persisted and targeted subjects other than political enemies, such as members of the CCP and ordinary citizens who were not part of any criminogenic group.

49

Sina 2008.

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A composite criterion guided the choice of these categories. First, the measures used on them share the same broader goal, as I explained above. Second, neither party members nor normal people belong to marginalized groups. They do not challenge the monistic nature of political power by forming autonomous political parties. They do not cherish the dream of establishing a sovereign state representing ethnic Uyghurs or Tibetans. Observing these two social groups minimizes the impact of variables that would misrepresent legal exceptionalism as a mechanism preserved for the sake of crushing political opposition, ethnic separatism, or autonomy. Third, regardless of the actual extent to which they may be empowered, ordinary citizens and members of the CCP do not wield the same political clout. A clear asymmetry of power exists between them. My analysis of shuanggui in chapter 3 proves how legal exceptionalism can affect those who enjoy political power. Stop-and-question, a power whose legal rationale is far more similar shuanggui than the rationale of RETL, is described in chapter 4. The goal of this broad comparison is to prove that both the powerful and the powerless can be reduced to bare life. The powers of shuanggui and stop-and-question induce a lifting of procedural rights and guarantees. Shuanggui is based on party documents whose provisions have been received by state legislation, while stop-and-question is now grounded in national-level legislation. Legal reform, therefore, turned what appeared to be two anomalies into normal components of criminal justice. In the second part of the book, my focus shifts to marginalized groups, and I illustrate how exceptions constitute a part of normality, and the production of bare life has become a component of the quotidian. Legal exceptionalism and the production of bare life can take place in the most trivial settings: neighborhoods, gated communities, and public urban spaces. As community policing bodies began swarming urban landscapes with the apparent intention to support police forces, they were informally endowed with quasi-police and quasi-law enforcement powers. Such a bestowal made them agents of a sovereign power. Their anointment with the faculty of tracing divides—distinctions between beggars, the homeless, the mentally ill, and normal unproblematic residents—imbued them with the potential to produce bare life, thus highlighting a dark side of community policing. Where urban spaces find their limits, there lies the camp, which I examine in one of its more recent manifestations. Chapter 6 reconstructs the formation of drug rehabilitation centers, and outlines

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the on-going merger of RETL camps with them. Everyday life possesses both a direct, physical dimension—made of urban corners and familiar faces—as well as an immaterial side, in which real spaces and real bodies are reproduced on Internet pages displaying different arrangements of colored pixels. The production of bare life is, indeed, visible in these virtual spaces and constitutes a normal part of media reporting in ways that underscore how bare life has entered the realm of public perception.50 In Chapter 7, I retrace this process through the observation of stories and vignettes about torture and pictures of wounded bodies and corpses bearing the marks of torture. I argue that these representations can have very potent effects, including a lasting impact on memory. This book relies on previously untapped documental, archival, legal, and local sources I have been collecting since late 2002 in China, the United Kingdom, Germany, Sweden, and, to a much lesser extent, in Italy. I undertook the conscious choice to use public sources of information, because if zones of exception really constitute a normal component of criminal justice, then information about them should be accessible to anyone who can read Chinese. My assumption proved true in most cases, and so the majority of the sources I have used are public. Some of my sources were reproduced in internal circulation volumes printed in the mid-1980s and 1990s. Even though the policy of open government information has declassified these once esoteric treasure troves of information, there are still ways in which documental research can put our persistence and patience to the test. Sometimes, I have made references to certain documents or volumes by blacking out the names of the organs that produced them, as I was not completely sure about the public nature of the materials I used. I have coded the names of persons from whom I received valuable information, choosing—in just two cases—not to reference their statements out of ethical considerations. Some sectors of the criminal justice system this book does not examine, and some marginalized groups and societal dynamics it does not observe. As excellent works on RETL exist already,51 I have chosen to mention RETL exclusively in relation to the changes taking place

50 For the sake of brevity, a more detailed illustration of the methods I use is provided in this chapter. 51 See par. 1.5 for a listing of more, as well as less, recent works on this topic.

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in drug rehabilitation camps. I do not examine the fate of petitioners and dissidents, even though there is no question that in their cases, too, the criminal justice system shifts to a different mode of operation.52 The criterion of publicity, one of the features of zone of exception, applies to petitioners and dissidents outside of China more than it does inside of the country, where the treatment of these groups does not receive the same coverage as it does in some Western countries. In this respect, they seem to have been symbolically erased from the body politic. Dissidents can be subjected to a somewhat extreme form of spatial banishment, which turns them into inhabitants of a no-man’s land. I do not analyze resistance, empowerment, and the pushing back of state power by societal actors. While these voices deserve to be heard, the ultimate decision on the exception is—not only in China— a sovereign decision.

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PART ONE

THE FORCE OF A FORCELESS LAW

CHAPTER TWO

LEGAL NIHILISM—STATE OF EXCEPTION Twentieth century authoritarian regimes, occupied and neutral states alike, wiped out unwanted elements through an instrumental use of the law. In 1922, the Soviet Union suspended due process rights to protect the new order from counter-revolutionary deviations. In Nazi Germany, the 1935 Nuremberg Laws were used to deprive the Israelites of citizenship. Fascist Italy followed suit in 1938. Racial laws were issued or applied in Vichy France, Belgium,1 Sweden,2 Austria, and other countries occupied by Nazi Germany. After the Second World War, the 1948 proclamation of the state of emergency in Taiwan marked the beginning of the longest period of martial law in modern history. In the People’s Republic of China (PRC), a different path was followed. Republican legislation could have been retained and transformed in accordance with the normative values of the Chinese Communist Party. Instead, the Six Codes of the Guomindang were abrogated. Ideological reasons precluded a complete reception of Soviet legal models and institutions and thwarted early attempts at legal construction. The result was an end of law and the rise of a state of anomie that left the population exposed to raw power. Amid political purges and campaigns, neither political influence nor connections nor even the blind worship of sovereign power provided a sufficient guarantee to one’s personal safety. Economic and legal reform caused this space of lawlessness to shrink. However, the mechanisms and procedures that could lead to the suspension of legal rights were preserved. Some of them were revamped. Others were introduced once again into China’s legal system. A general suspension of the legal order can be induced by provisions on the with a state of emergency. In this respect, China’s law does not display significant differences from the law of liberal-democratic systems. However, Chinese law also contains mechanisms that can be used to suspend rights even in the absence of a general suspension of the legal order. 1 2

Fraser 2003. Jarlert 2001, 2006.

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Before turning to a detailed illustration of some of these mechanisms, this chapter examines the rise and fall of legal nihilism in Maoist China. Then it surveys both those juridical mechanisms available in times of emergency and those used to counter less severe threats. While the former are primarily grounded in constitutional law, the latter exist in criminal legislation. Indeed, legal reform has posed significant limits to sovereign power. Nevertheless, the boundaries set by the law can still be removed and adjusted at will. Having veiled itself in the curtain of the law, sovereign power can now face public health emergencies and repress deviant behaviors and atypical groups by suspending rights according to internal law (依法). 2.1

Anomie

Throughout the Mao era, “politics, not law determined what rights and duties people enjoyed.”3 In New China, sovereign power was unbound from the legal constraints that had existed in Imperial China, as well as those in place during the Republican period. Such an unshackling of power had important legal consequences. The law acquired a class nature, and lost its function to impose abstract and generally applicable norms. Legislation was passed to confirm the achievement of political goals or solemnly to declare political principles.4 That the rights of some groups had to be suspended was one of these solemn principles, first enshrined in the Common Program of the Chinese People’s Political Consultative Conference: Ordinary reactionary elements, feudal landlords, bureaucratic capitalists, must—after the elimination of their armed forces, and the eradication of their power—be lawfully deprived of their political rights for the necessary time.5

Wong 2006: 37. Clarke 1999; Wong 2006. 5 Article 7, Common Program of the Political Consultative Conference of the Chinese People (Zhongguo Renmin Zhengzhi Xieshang Huiyi gongtong gangling 中国人民政治协 商会议共同纲领), issued on 29 September 1949 and effective from the same date, hereinafter referred to as the Common Program. Translation mine. 3 4

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This temporary deprivation of rights would last throughout the next thirty-three years, until 1982. It was reinstated by the 1954,6 1975,7 and 1978 constitutions.8 In 1949 the Common Program gave legal grounding to an original organizational feature of the Chinese Communist Party, the merger of political, administrative, and military powers; proclaimed military control (军事管制 junshi guanzhi) over the entire PRC territory; and the creation of a nondemocratic political system. Military control was understood as a temporary measure. It would be lifted once military operations had ended, the agrarian reform was concluded, and members to the people’s assemblies elected.9 Ironically, the popular election of the people’s assemblies was used to create a single party state.10 Once this development had taken place, the 1954 constitution11 formally put an end to the period of military control. Equality among members of all ethnic groups—with the exception of the feudal landlords and bureaucratic capitalists mentioned by article 19—was acknowledged.12 Three years later, the Anti-Rightist Movement signaled the end of attempts at legal construction. The two subsequent decades witnessed the rise of a state of anomie. The pursuit of revolutionary priorities prevailed over all attempts at legal construction. Those laws that were then in force became dead letter. The ones that were being drafted, such as the Criminal Law, were shelved. The three most important pieces of criminal legislation passed since 1949 were disregarded.13

6 Article 19, Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 20 September 1954 and effective from the same date, hereinafter referred to as 1954 Constitution. 7 Article 14, Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 17 January 1975 and effective from the same date. 8 Article 18, Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 5 March 1978 and effective from the same date. 9 Article 19, Common Program. 10 I am indebted to an anonymous reviewer for this observation. 11 The 1954 Constitution was based on the Common Program and the 1936 Stalin constitution. See Hsia 1955; Houn 1955; and Tiffert 2009 for commentaries, analyses, and a history of the 1954 Constitution. 12 Article 3, 1954 Constitution. 13 People’s Republic of China regulations on suppressing counter-revolutionaries (Zhonghua Renmin Gongheguo chengzhi fangeming tiaoli 中华人民共和国惩治反革命条例), issued on 21 February 1951 and effective from the same date. Ministry of Public Security temporary measures on control of counter-revolutionary elements (Gong’anbu

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Among legal institutions, some—such as the Ministry of Justice and the Ministry of Supervision—were shut down.14 Judicial and supervisory power became militarized, as the army and public security organs took control of the courts and procuracies. Lawlessness had become the norm, as existing laws had lost all of their force. None of the movements that eventually culminated in the Cultural Revolution was based on an emergency decree or a law. Mass trials and struggle sessions cannot be understood with reference to legal concepts. Acceptance of Communist rule and socioeconomic background determined who would be included in the political order and who would not. Individuals already deprived of their rights could become the target of class violence. Class labels were used to identify these new nonlegal subjects: “feudalist landlords,” “bureaucratic capitalists,” “reactionary capitalists,” “class enemies,” “traitors,” “bad elements,” “counter-revolutionaries,” “rich peasants,” “rightists,” and “enemies of the people.” Those who belonged to any of these groups had to be isolated, suppressed,15 and “eliminated wherever found.”16 Their execution was reconfigured as a service rendered to the revolution, and thus effectively decriminalized. Political slogans and vignettes that compared class enemies to rats and pests underscored this point. Repression of the enemy had, nonetheless, to take place according to pseudo-legal modalities and involve sham legal proceedings. Such an inherent contradiction between the choice of punishing enemies by law and rejection of the law was among the factors causing considerable confusion. Labels had to be used to draw a line between the people and the enemy, and Mao’s theory of contradictions had to be invoked to justify the

guanzhi fangeming fenzi zanxing banfa 公安部管制反革命分子暂行办法), issued on 17 July 1952 and effective from the same date, hereinafter referred to as Measures on counter-revolutionary elements. People’s Republic of China Regulations on Security Administration Punishments (Zhonghua Renmin Gongheguo zhi’an guanli chufa tiaoli 中华 人民共和国治安管理处罚条例), issued on 22 October 1957 and effective from the same day. Repealed on 1 January 1987. 14 First Plenary Session of the Second National People’s Congress of the People’s Republic of China decision on suppressing the Ministry of Justice and Ministry of Supervision, (Zhonghua Renmin Gongheguo di’erjie quangguo renmin daibiao daihui diyici quanhui guanyu chexiao sifabu, jianchabude jueding 中华人民共和国第二节人民代表大会第一次 全会关于撤销司法部, 监察部的决定), issued on 28 April 1959 and effective from the same date. Reproduced in Renmin Ribao 1959: 4, 29 April. 15 Mao 1969: 416, 418. 16 Mao 1977: 397.

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practice of violence against enemies. Yet neither the friend/enemy distinction nor the theory of contradiction provided clear instructions as to how to deal with concrete judicial cases. In fact, courts still existed and had to conduct legal proceedings. However, they could not use legal categories to classify class enemies and decide on their punishment. Once the identity of a class enemy had been negotiated, pressing problems arose because no one knew precisely what to do with them. Passing a judgment about their behavior could prove a Kafkaesque endeavor. In the first place, it was necessary to determine who, among the crowd attending mass trials, had the power to determine what the person had done to be a class enemy. Assuming, as if was often the case, that party cadres would serve as the people’s vanguard, a set of different problems arose. Power had to establish a criterion to mete out a punishment to the class enemy, to decide how long the punishment should last, who was to enforce it, who could judge if the class enemy had truly been reformed, and what methods of reform were to be used. By admission of the Supreme People’s Court, “the party line and the party policies [could] not solve”17 these and similar problems. Searching for solutions in the law was of little use. As zealous cadres would discover, in most cases the law contained “no particular provisions”18 that could be used. Given that power was unable to trace precise distinctions and that the law was of no use, courts had to device ad personam solutions, and ask for their superiors’ approval. Replies issued by organs as the Supreme People’s Court could be based on common sense, or be of no guidance at all. In 1961, political-legal cadres in Shanxi province were being troubled by cases of adultery. Various localities had subjected adulterers to the criticism of the masses, but this solution was suboptimal, in

17 Supreme People’s Court reply letter on the problem of computing the term of public surveillance (Zuigao Renmin Fayuan guanyu guanzhide xingqi jisuan wentide fuhan 最高 人民法院关于管制的刑期计算问题的复函), issued on 1 February 1960 and effective from the same date. 18 Supreme People’s Court Reply letter to the National Women’s League about the problem of whether women sentenced to fixed-term imprisonment or to death are in need of special care (Zuigao Renmin Fayuan guanyu panchu xingqi he sixingde nüfan zai falüshang shifou you teshu zhaogu wentide gei Quangguo Fuliande fuhan, 最高人民法院关于判 处徒刑和死刑的女犯在法律上是否有特殊照顾问题给全国妇联的复函), issued on 28 September 1960 and effective from the same date.

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that the involvement of the masses in criminal justice hindered the discovery of the truth. Harboring doubts about these practices, the Higher People’s Court requested instructions to the Supreme People’s Court. The Supreme Court’s reply was based on common sense: “[T] he problem of adultery can only be solved by individual education, and if it is serious has to be dealt with particular measures, but it cannot be investigated, discussed and criticized by the masses.”19 A further illustration of how the state of anomie affected citizens is provided by the practices of “education and release” (教育释放 jiaoyu shifang) and public surveillance (管制 guanzhi). “Education and release” was a short-lived administrative punishment targeted at members of the people. In the mid-1950s, the Liaoning Higher People’s Court had nurtured some perplexities on the nature and use of this brief detentive punishment, which in 1957 was outlawed by the Supreme People’s Court.20 In spite of this, education and release somehow managed to persist and was even adapted to the needs of local organs. Gansu province considered it as a criminal punishment that had to be used only on those who were found not guilty. In 1961, not knowing how to use this punishment, some judges requested instructions from the Supreme People’s Court, only to discover that education and release had been already abolished.21 During a state of exception, the normal logic is subverted. Those sentenced to education and release were punished because they were found innocent. Violence against class enemies could not be prosecuted. Placing the enemy under the people’s dictatorship effectively turned the commission of abuses into a service rendered to the Revolution. Confusion took place in other provinces, too. In 1952, the Provisional Measures for Control of Counter-Revolutionary Elements introduced

19 Supreme People’s Court Reply letter on whether it is appropriate to sentence ordinary criminals to public surveillance (Zuigao Renmin Fayuan guanyu dui yiban xingshi fanzui panchu guanzhi shifou tuodangde qingshide fuhan 最高人民法院关于对一般刑事犯 罪判处管制是否妥当的请示的复函), issued on 3 August 1961 and effective from the same date. 20 Supreme People’s Court reply letter on the prohibition of “education and release” (Zuigao Renmin Fayuan guanyu jinhou panjue buzai sheyong “jiaoyu shifang” wentide pifu 最高人 民法院关于今后判决是否适用 “教育释放” 问题的复函), issued on 9 August 1957 and effective from the same date. 21 Supreme People’s Court reply letter to the question on whether the use of “education and release” is prohibited (Zuigao Renmin Fayuan guanyu jinhou panjue shifou shiyong “jiaoyu shifang” wentide fuhan 最高人民法院关于今后判决是否适用 “教育释放” 问题 的复函), issued on 21 June 1961 and effective from the same date.

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the penalty of public surveillance, a punishment to be used exclusively on counter-revolutionaries.22 Two nationwide movements against counter-revolutionaries had taken place by 1960,23 so it seems reasonable to assume that political-legal cadres knew who could be labeled as a counter-revolutionary and who was a member of the people. In spite of the repeated campaigns against counter-revolutionaries, cadres in Jilin province did not understand on whom public surveillance could be used. They requested instructions from Beijing, but the reply they received helped little to dispel their confusion. The Supreme Court did not bother to mention legislation on counter-revolutionaries issued in 1952 and 1956. Instead, it held that the benchmark for identifying counter-revolutionaries was a political document issued in 1959 by the National Meeting on Political-Legal Work.24 This document deserves to be quoted at length because it offers a rare glimpse into the reasoning of top political-legal cadres: The targets of public surveillance are mostly those counter-revolutionaries and bad elements that can be arrested, but are not arrested; those landlords, rich peasants, reactionaries and bad elements who do not keep a good behavior during supervised labor; those landlords, rich peasants, counter-revolutionaries and bad elements who receive repeated education and do not mend their ways; and also other counter-revolutionaries and bad elements who have committed a crime but after they have been arrested it is found out that their crime is not serious enough to warrant fixed-term imprisonment.25

Measures on counter-revolutionary elements. See also Standing Committee of the National People’s Congress decision on public surveillance of counter-revolutionary elements having to be normally decided by the people’s courts (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu dui fangeming fenzide guanzhi yilü you renmin fayuan panjuede jueding 全国人民代表大会常务委员会关于对反革命分子的管制一律由人民 法院判决的决定), issued on 16 November 1956 and effective from the same date. 23 These were the 1950–1953 campaign for the suppression of counter-revolutionaries (镇压反革命 zhenya fangeming), and the 1955 campaign against hidden counterrevolutionaries (肃反 sufan). On these movements, see Yang 2008; Strauss 2002. 24 Regulations on some policy problems in the current struggle against the enemy (Guanyu dangqian duidi douzhengzhong jige zhengce wentide guiding 关于当前对敌斗争中几 个政策问题的规定), quoted in Supreme People’s Court, Supreme People’s Procuracy, Ministry of Public Security joint circular on the targets and the legal procedure of public surveillance (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’anbu guanyu guanzhi sheyongde duixiang he guanzhide falü shouxu wentide lianhe tongzhi 最高人民法 院最高人民检察院公安部关于管制适用的对象和管制的法律手续问题的联合通 知), issued on 28 August 1964 and effective from the same date. 25 Supreme People’s Court reply on the targets of public surveillance (Zuigao Renmin Fayuan guanyu guangzhi duixiangde pifu 最高人民法院关于管制对象的批复), issued on 30 April 1960 and effective from the same date. 22

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A number of questions arise. For simplicity’s sake, I will mention just one of them. Supervised labor in the community was a measure targeted at members of the people. Landlords and reactionaries by definition belonged to the enemy classes. How could an enemy be punished in the same way as a member of the people? Those who attended the National Meeting on Political-Legal Work should have been well versed in the friend/enemy distinction. Enforcing this political document already involved several difficulties. To make things even worse, the Supreme Court never really instructed the Jilin court to implement this document. Rather, it suggested that Jilin comrades get in touch with the provincial party committees. Hopefully, the party committee would be able to decide on whom public surveillance had to be used. The same dynamic was observed in Jiangsu province. In 1961, some landlords who had received criminal sentences wished to file an appeal to the Higher People’s Court and change their class label. In theory, the matter was simple. Given that landlords were members of enemy classes, they could not enjoy the right to an appeal. Showing the will to appeal a criminal sentence implied that they refused reform, so their punishment had to be increased. Filing an appeal was entirely out of question. The Jiangsu Higher People’s Court instead sent a request for instruction to the Supreme People’s Court. The startling reply denied that criminal appeals were part of judicial work: Given that [these matters] do not belong to judicial work, these problems are not to be handled by the people’s court directly. Please report to the provincial committee and ask for their decision, it is appropriate that this be done by the provincial committee.26

By the late 1960s, anomie had become the norm, until it was reverted by a coup d’etat. On the night of 6 October 1976, Beijing was sealed off from the rest of the country, and the military took control of the airport, key institutions, and the media. General Zhang Yaoci walked inside the Zhongnanhai compound together with a few unarmed men to arrest Jiang Qing and her followers.27 Martial law was not pro26 Supreme People’s Court reply letter on how to handle landlords and rich peasants’ requests to appeal and change their status (Zuigao Renmin Fayuan guanyu dizhu funong duiqi chengfen tichu shensu ying ruhe chulide fuhan 最高人民法院关于地主富农对 其成分提出申诉应如何处理的复函), issued on 11 August 1961 and effective from the same date. 27 Wei 1995: 823.

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claimed, but Chinese historiography nonetheless refers to the military coup as “a covert martial law” order issued by Hua Guofeng.28 Thus, the state of anomie ended. 2.2

Exceptions in China’s Constitutional Law: Martial Law and Emergency Powers

At this key historical juncture, the power to suspend rights did not disappear. Rather, it was once more grounded in the constitution. Once Mao’s theory of the continuing revolution was divested,29 the mechanisms to preserve the socialist order were grounded in the constitution, in the guise of martial law powers. As had earlier happened in Republican China, martial law powers were justified by the need to defend the nation’s political system, its territory, and the life of its population. They did not possess any supernatural overtones. Developments that occurred in Republican China first and then in the PRC were not unlike the ones that occurred in Europe with the entry into force of the French 1789 Constitution. Legislation of premodern Europe had contained provisions about high treason or rebellion. The Qing code had obeyed a similar logic, with the difference that while in Europe sovereignty was premised on religious ideals, imperial sovereignty in China had different cosmological connotations. The body of the Emperor was a symbolic vessel conveying heavenly power to the mundane world,30 the point about which all cosmic powers revolved. Threats to his person or his sovereignty were regarded as an attempt to disrupt such a delicate equilibrium.31 Any imbalances individuals may have caused had to be evened out by effusing the blood of the attempter and dismembering his body. The legal-ritual nature of the lingering death was acknowledged by imperial codes. As an extraordinary form of death penalty, the lingchi applied only to the Ten Abominations, offenses suspected of subverting cosmic order. In 1908, the

28 Wu and Zhu 2004: 245. Martial law powers were defined by article 39 (18) of the 1954 Constitution, but were absent from the 1976 Constitution. This was, however, little more than a detail, because the words of he who held sovereign power in his hands could replace any law. 29 Lin 1967. 30 Zito 1995. 31 On cosmological and mythological conceptions in Chinese law, see also MacCormack 2001.

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Constitutional Principles vested the emperor with the power to decide on the state of martial law.32 The emperor still preserved the right to mandate life and death. But, given that imperial sovereignty had been deprived of its supernatural components, death applied to those who tried to overthrow the order of the state instead of cosmic harmony. With the empire’s collapse, the prerogative to decide on deprivation of rights was vested in the provisional president of the Republic of China. The provisional constitution had anointed him with the power to declare the state of siege, and vested broad executive, legislative and military powers in his person.33 Provisions about the limitation or modification of civil and political rights during a state of emergency were made.34 A clear distinction between martial law powers and emergency powers was operated by the martial law.35 2.2.1

Martial Law Powers

Martial law powers existing in the 1982 constitution belonged to collegial organs, which represented the lives and interest of Chinese citizens.36 This claim to representation was not premised on theories of social contract. Behind it, there lay nothing but the revolutionary violence that resulted in the creation of New China, and in the overthrow of the Gang of Four. On a formalistic level, these powers did not differ significantly from the same kind of powers that existed in liberal-

32 Article 8 (8), Constitutional Principles (Xianfa dagang 宪法大纲), issued on 27 August 1908 and effective from the same date. The emperor enjoyed the “right to proclaim the martial law. In times of emergency, the subjects’ freedom shall be limited by imperial edict” (宣告戒严之权. 当紧急时, 得以诏令限制臣民之自由, xuangao jieyanzhiquan. Dang jinjishi, deyi zhaoling xianzhi chenminzhi ziyou). Translation mine. 33 Article 36, Provisional Constitution of the Republic of China (Zhonghua Minguo linshi yuefa 中华民国临时约法), issued on 10 March 1912 and effective from the same date, hereinafter referred to as ROC Constitution. 34 Article 15, ROC Constitution. 35 On the ROC Constitution, see Zhao 1997; Chamberlain 1947. On emergency powers in Taiwan, see Hsia and Zeldin 1990. 36 Article 67 (20), Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 4 December 1982 and effective from the same date, hereinafter referred to as 1982 Constitution. All of these provisions were reinstated in 1996 by the Supreme People’s Procuratorate Circular on diligently implementing the martial law of the People’s Republic of China (Zuigao Renmin Jianchayuan guanyu renzhen zhixing Zhonghua Renmin Gongheguo jieyanfa de tongzhi 最高人民 检察院关于认真执行中华人民共和国戒严法的通知), issued on 29 March 1996 and effective from the same date.

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democratic legal system. They were also consistent with relevant norms of international law.37 Martial law powers are vested in the State Council and in local people’s governments. They can be used to impose martial law on the entire territory of the PRC, in single provinces, or in parts thereof. Martial law can be declared on the entire territory of the PRC whenever unrest, rebellions, or grave riots pose a risk to its territorial integrity, or its state or public security, hence calling for the adoption of extraordinary measures. Should such a scenario occur, the State Council could draft a martial law decree, and submit it for approval to the Standing Committee of the National People’s Congress (NPC). Martial law is then proclaimed by the President of the PRC. The conditions that allow the imposition of martial law in parts of a province are more flexible. Whenever unrest, rebellions, or grave riots involve parts of a province, the State Council can proclaim martial law, bypassing the powers of NPC or the president of the PRC.38 The

37 The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights state that a limitation of rights and freedoms is justified when it is taken to protect the existence of a nation, its territorial integrity, or political independence against force or threat of force. A public emergency that threatens the life of the nation is qualified as any exceptional and actual or imminent danger to the life of the nation. Such a danger must affect the whole of the population and either the whole or part of the territory of the state. Also, it must threaten the physical integrity of the population, the political independence, or the territorial integrity of the state, or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognized in the Covenant. The right to life and freedom from torture cannot be derogated. However, rights and freedoms that go beyond those recognized by the Covenant can be limited. Protection against arbitrary arrest and detention can be lifted, and the right to a fair and public hearing can be derogated. Derogations are not justified by internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation, or by economic difficulties per se. Limitation of rights must be based on a national law. Both the PRC Constitution and the PRC Martial Law are national laws. If the Siracusa Principles are taken seriously, a declaration of martial law by the PRC can be justified whenever any of its provinces or parts thereof tries to secede. Unlike the Soviet Constitution, the right to secession does not exist in the PRC Constitution. Therefore, any attempt at secession would pose a threat to the PRC territorial integrity. This argument can be challenged on moral grounds, but not on legal ones. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984. E/CN.4/1985/4. Online. UNHCR Refworld, available at: [http://www.unhcr.org/refworld/docid/4672bc122.html]. Last accessed on 26 February 2009, hereinafter referred to as the Siracura Principles. 38 Article 3, People’s Republic of China Law on Martial Law (Zhonghua Renmin Gongheguo jieyanfa 中华人民共和国戒严法), issued on 1 March 1996 and effective from the same date, hereinafter referred to as PRC Martial Law.

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State Council’s power becomes thus unchecked.39 If unrest, rebellions, or riots occur in a county or a city, provincial governments can adopt martial law measures pending the state council’s decision, or even in the absence of such a decision.40 In each case, the most immediate consequences are “a change in the power of the state” and the suspension of the legal order and the emergence of an “extraordinary legal system” ( feichang fazhi).41 Administrative, legislative, and law enforcement powers are transferred to the military or to public security organs42 until public order is restored. The NPC, the State Council, or a provincial government can—depending on the size of the areas affected by riots—limit citizens’ fundamental rights and freedoms,43 cordon off the area, impose a press embargo, and adopt other measures.44 All procedural guarantees are lifted,45 all those who are believed to engage in activities against martial law can be detained,46 and weapons can be used against them.47 None of these acts can be challenged administratively.48 Since they were introduced in the PRC legal system, martial law powers have been infrequently

39 Legal scholars hold that such a decision can be made only by the Standing Committee or a plenary session. See Xiong and Xie 1999: 7. 40 Article 31, PRC Martial Law. 41 Zhu 2004: 90. 42 If the martial law is proclaimed on the entire territory of the PRC or in single provinces, its execution is organized by the State Council. The State Council can set up a martial law command and use the army or the police to rule the country until order is brought back. The army or the police, however, are directed by military organs who are answerable to the Central Military Commission, which is essentially a party body. If the martial law is proclaimed in single districts or cities, its execution follows the same procedure, except that the martial law command is set up by the provincial government. Articles 8, 9, 10, PRC Martial Law. 43 Article 4, PRC Martial Law. 44 As curfew, the prohibition of any mass activity, controls on exit and entry, traffic restrictions. Articles 13 (1) (2) (3); 14, 15, PRC Martial Law. 45 Even though arrest is still to be approved by a procuratorate, it is possible to use detention. Article 27, PRC Martial Law. 46 Articles 24, 26, PRC Martial Law. 47 Article 28 (2), PRC Martial Law. 48 Article 23, People’s Republic of China Law on Administrative Litigation (中华人 民共和国行政诉讼法 Zhonghua Renmin Gongheguo xingzheng susongfa), issued on 4 April 1989 and effective from 1 October 1990. Article 2, Supreme People’s Court Interpretation on some problems in the implementation of the People’s Republic of China Law on Administrative Litigation (最高人民法院关于执行中华人民共和国行政诉 讼法若干问题的解释 Zuigao Renmin Fayuan guanyu zhixing Zhonghua Renmin Gongheguo xingzheng susongfa ruogan wentide jieshi), issued on 24 November 1999 and effective from 10 March 2000.

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used to react to large scale rioting and claims for independence and even democracy, too. The first opportunity to declare martial law was provided by the 1959 Lhasa rebellion. Even though the People’s Liberation Army was dispatched to Tibet, and the government of the Special Autonomous Region (SAR) was dissolved, no martial law decree was formally issued. Premier Zhou Enlai signed two orders mandating the dissolution of the local government, neither of which contained mention of the martial law.49 In this case, the suspension of the law took place in absence of a martial law order. Martial law would be proclaimed in Tibet only thirty years later, on 8 March 1989.50 The consequences of its proclamation were entirely predictable. The martial law decree was enforced by the People’s Liberation Army and by public security organs. Military and administrative powers merged. The provincial government ordered that those who rebelled receive punishments above the maximum limits set by the criminal law.51 Two months later,52 martial law was declared in Beijing to quash the Tian’an men movement. In both instances, constitutional powers were used to suspend the legal order. 49 State Council of the People’s Republic of China order (Zhonghua Renmin Gongheguo Guowuyuanling 中华人民共和国国务院令), issued on 28 March 1959 and effective from the same date. Resolution of Tibet Special Autonomous Region’s preparatory committee on implementing the State Council Order of 28 March (Xizang Zizhiqu choubei weiyuanhui guanyu zhixing guowuyuan 3 yue 28 ri minglingde jueyi 西藏自治区筹备委 员会关于贯彻执行国务院 3 月 28 日的命令的决议), issued on 11 April 1959 and effective from the same date. 50 State Council order on implementing martial law in Lhasa city of Tibet Special Autonomous Region (Guowuyuan guanyu zai Xizang Zizhiqu Lasashi shixing jieyande ming 国务院关于在西藏自治区拉萨市实行戒严的命), issued on 7 March 1989 and effective from the same date. 51 This was made possible by declaring, as the three orders issued on 7 March 1989 did, that the Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals Who Seriously Endanger Public Security would be used in place of the Criminal Law. See the following translations by the Tibet Parliamentary Policy Research Center: Order no. 1 of the People’s Government of the Tibet Autonomous Region, issued on 7 March 1989 and effective from the same date; Order no. 2 of the People’s Government of the Tibet Autonomous Region, issued on 7 March 1989 and effective from the same date. 52 State Council order on implementing martial law in selected districts of Beijing municipality (Guowuyuan guanyu zai Bejingshi bufen diqu shixing jieyande mingling 国务院关 于在北京市部分地区实行戒严的命令), issued on 20 May 1989 and effective from the same date. Order of the State Council about lifting martial law in selected districts of Beijing municipality (Guowuyuan guanyu jiechu zai Beijingshi bufen diqu jieyande mingling 国务院关于解除在北京市部分地区实行戒严的命令), issued on 11 January 1990 and effective from the same date.

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After 1989, the drafting of the PRC martial law began. Several rounds of consultations took place among the central government, leaders of Beijing municipality, and Tibet SAR—the ones who could boast an actual experience in enforcing martial law decrees. The law went into force in 1996.53 Martial law powers were used in only one instance. In 2004, the Henan government declared martial law in Zhongmou county, following large-scale rioting between Hui and Han residents.54 The reaction of Henan province was in line with the law, as provincial governments enjoy the power to proclaim martial law even in the absence of a decision by the State Council, whenever “a grave riot suddenly occurs.”55 Severe rioting took place in Lhasa in the spring of 2008. Riots were qualified as “criminal activity,” hence, the Tibet SAR government did not proclaim martial law. On 15 March, the SAR Higher People’s Court, Higher People’s Procuratorate, and Office of Public Security issued a joint notice (通告 tonggao) promising leniency to those who surrendered and threatening with harsh punishments those who aided or abetted rioters. The notice was informally endorsed by the provincial government and published on its website.56 The atmosphere in Lhasa, however, must have felt as if martial law had been adopted. The palpable tension that could be felt in the provincial capital even led the Dalai Lama to state that martial law had been proclaimed. One year later, a very low-profile response was adopted by the government of Xinjiang SAR after riots that left more than a hundred dead and nearly a thousand wounded took place in Urumqi in July 2009.57 The SAR government could have declared martial law, but it chose to pursue a quieter strategy. Less than twenty-four hours after the riot occurred, Urumqi municipal government passed a terse emer-

Qiao 1995. Kahn and Buckley 2004. 55 Article 31, PRC Martial Law. 56 Notice of Tibet Special Autonomous Region Higher People’s Court, Tibet Special Autonomous Region Higher People’s Procuratorate, Tibet Special Autonomous Region Public Security Office (Xizang Zizhiqu gaoji renmin fayuan, Xizang Zizhiqu renmin jianchayuan, Xizang Zizhiqu gong’anting tonggao 西藏自治区高级人民法院, 西藏自治区 高级人民检察院, 西藏自治区公安厅通告), issued on 15 March 2008 and effective from the same date. Available online at . Last accessed 14 March 2009. 57 Renminwang 2009. 53 54

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gency notice.58 The notice mandated that public security organs set up roadblocks to keep public order. Areas affected by the riot were cordoned off and isolated from the rest of the municipality. Any attempt to cross the cordon would have violated relevant provisions of the Law on Road Traffic Safety,59 and be punished either with administrative penalties or with criminal punishments.60 Furthermore, curfew was imposed on the city. This response was extremely efficient: any rioter who wished to leave the area, perhaps simply to go back home, would necessarily have to go through a checkpoint. Here, he could have been arrested on grounds that he had violated the emergency notice and the Traffic Law. No martial law was formally declared in Urumqi, but substantially the legal order was held suspended. Local residents, the ones who knew best what really took place during and after the riots, stated to the Western press that the area was “basically under martial law.”61 In less than twenty-four hours, more than 1,400 people were held by the police under stop-and-question,62 while others may have been detained by state security organs.63 Responses adopted in Tibet

58 Urumqi Municipal Government Emergency notice on protecting public order (Wulumuqi shi zhengfu weihu shehui zhengchang chengxude jinji tonggao 乌鲁木齐市政府维护 社会正常程序的紧急通告), issued on 6 July 2009 and effective from the same date. Reproduced in Zhongguo Xinwenshe 2009, hereinafter referred to as Emergency Notice. 59 The law states that the circulation of motor vehicles and pedestrians can be limited whenever riots suddenly occur. Article 39, People’s Republic of China Law on Road Traffic Safety (Zhonghua Renmin Gongheguo daolu jiaotong anquanfa 中华人民共 和国道路交通安全法), issued on 28 October 2003 and effective from 1 May 2004, as amended on 29 December 2007, hereinafter referred to as Traffic Law. 60 Article 3, Emergency Notice. Besides, Article 99 Traffic Law allows the levying of fines from RMB 200 to 2,000 on those who violate roadblocks, and detainment for up to 15 days. 61 France 24 2009. 62 On stop-and-question, see chapter 4. 63 Human Rights Watch 2009a. In this case the arrest procedure, if performed by state security organs, complied with internal law. As explained in chapter 4, in some circumstances police organs can issue an oral stop order without having to identify themselves. Formal procedures can be fulfilled after the stop order has been issued. This police power is enjoyed by state security organs as well, and can be used whenever somebody is suspected of being involved in espionage. Preamble, Standing Committee of the National People’s Congress decision on the use of police powers of investigation, detention, preliminary examination, and arrest by state security organs (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu guojia anquan jiguan shixing gong’an jiguande zhencha, juliu, yushen he zhixing daibude zhiquande jueding 全国人民代表大 会常务委员会关于国家安全机关行使公安机关的侦查、拘留、预审和执行逮捕 的职权的决定), issued on 2 September 1983 and effective from the same date.

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and Xinjiang complied with PRC legislation and, if criminal charges were levied against rioters, with international law, too. The choice not to use martial law can be attributed to various reasons. Sovereign states enjoy a certain discretion in determining when a state of emergency is present, but their discretion is not unlimited.64 In the case of neither Tibet nor Xinjiang would a declaration of martial law have been appropriate. The riots did not threaten the physical integrity of the PRC population as a whole. Neither did they threaten the political independence or the territorial integrity of the PRC, nor did they affect a significant part of its territory.65 Rather, they qualified as “internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation”.66 If, from a legal point of view, using martial law would have been problematic, from a logistical one it would have been illogical. Issuing a declaration of martial law would have meant that the PLA had to be mobilized. The PLA is essentially trained in warfare,67 and thus unsuited for handling riots. The People’s Armed Police can, on the other hand, provide a faster, more flexible and effective response, as it is trained in antiriot techniques modeled after those of Western anti-riot police. Most important, as I explain in the concluding chapter, there was never an actual need to suspend constitutional guarantees tout court. Unlike most liberal-democratic systems in which constituent assemblies were dissolved shortly after completing their task, in the PRC constituting power—understood as the power that constituted the nation in its current form—still exists side by side with the constitutional order it has created. The Chinese party-state can, therefore, circumvent constitutional provisions on martial law, if the preservation of the life of the nation, its sovereignty, or territorial integrity is at stake. 2.2.2

Emergency Powers

The periodic eruption of dissent in provinces that have historically displayed strong autonomist tendencies is largely a foreseeable event. Natural disasters, health crises, and other emergencies are not. Yet, 64 Article 3, ICCPR General Comment 29 (Seventy-second session, 2001): Derogations from Provisions of the Covenant during a State of Emergency, A/56/40 vol. I (2001) 202. 65 Article 39, Siracusa Principles. 66 Article 40, Siracusa Principles. 67 See Shambaugh 2004; Blasko 2006 for two studies of the PLA.

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they pose no less serious threats than ethnic unrest. PRC legal and policy circles began debating these ideas in the early 1990s, in connection with the concept of emergency powers.68 The choice not to issue any legislation on emergency response until 2003 seems to have rested upon political considerations. The concept of martial law could not be easily replaced by the more neutral one of a state of emergency. It was still necessary to acknowledge the merits of the Tibet SAR and Beijing governments in suppressing dissent. Subscribing to a broad interpretation of the PRC Martial Law, some scholars held that martial law powers could have been used to deal with an emergency, too.69 A debate in legal doctrine soon emerged; some commentators rejected the pretense that no substantive differences existed between martial law and emergency powers.70 Martial law, they observed, was just “one kind of measure to respond to” sudden circumstances.71 Furthermore, these powers would have been of little use in coping with anything other than rebellions. The SARS crisis lent credit to this doctrinal orientation, prompting the introduction of emergency powers in China’s legal system. Isolation The army and the police could detain rioters in Lhasa and Urumqi, yet their detention powers could not stop the SARS virus from spreading. The task of fighting the epidemics befell health officials, who devised a measure of isolation (隔离 geli). Isolation was a merger of two different measures: medical observation (医学观察 yixue guancha) and isolation for treatment (隔离治疗 geli zhiliao). Under PRC law, medical observation is the closest equivalent to quarantine.72 Quarantine is used to limit the activities of asymptomatic subjects who have been exposed to a contagious disease. Its rationale is preventing a potential transmission of the disease, should infection actually occur.

Mo and Xu 1992; Xu and Mo 1994; Chen 2001. Qiao 1995 with his views being accepted by most scholars of public law until 2004. Examples of this is given by Xiong and Xie 1999; Chen and Luo 1996; among others. 70 Zhu 2004. 71 She, Xu, and Zhou 2006: 41. 72 People’s Republic of China Law on the Prevention and Treatment of Infectious Diseases (Zhonghua Renmin Gongheguo chuanranbing fangzhifa 中华人民共和国传染病防 治法), issued on 21 February 1989, as amended on 28 August 2004, effective from 1 December 2004, hereinafter referred to as Law on Infectious Diseases. 68 69

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Isolation for treatment, used on symptomatic patients, is a different measure. Its aim is treatment, thus limiting the actual spread of an infectious disease. There are no substantial differences between isolation for treatment as understood in Western medical circles and as defined by PRC medical legislation. In China, isolation for treatment and medical observation could be used only on patients who had been exposed to or become infected with plague or cholera. In fact, infectious diseases are classified under three categories.73 These measures could be used only on those infected with the diseased listed under class A,74 which were plague and cholera. Only the State Council had the power to change the classification of an infectious disease from class C or B to class A. In March 2003, the State Council held a meeting to discuss how to respond to the SARS emergency, and on 9 May it passed the Regulations on the Urgent Handling of Public Emergencies. The Regulations restated that only the State Council could decide whether an infectious illness fell under Class A.75 In April the National Headquarters for the Prevention and Treatment of SARS was established.76 In none of these occurrences was SARS classified as a class A disease. The State Council could have responded to the emergency by drafting a martial law decree, given that it had the power to do so. Legal doctrine also held that the PLA could be used to respond to health emergencies. None of these options was chosen. Instead, on 8 April, the Ministry of Health decided to classify SARS as a class A disease and ordered that those infected with the SARS virus as well as asymptomatic patients be subjected to isolation.77 Any

Article 3, Law on Infectious Diseases. Article 24 (1), (3), Law on Infectious Diseases. 75 Article 30, People’s Republic of China regulations on the urgent handling of public health emergencies (Zhonghua Renmin Gongheguo tufa gonggong weisheng shijian yingji tiaoli 中华人民共和国突发公共卫生事件应急条例), issued on 9 May 2003 and effective from the same date. Also, adoption of isolation could be decided by an emergency task force headed by local governments and composed by the army and other departments. 76 State Council General Office circular regarding the establishment of the National Headquarters for the Prevention and Treatment of SARS (Guowuyuan Bangongting guanyu chengli Quangguo fangzhi feidianxing feiyan zhihuibude tongzhi 国务院办公厅关于成 立全国防治非典型肺炎指挥部的通知), issued on 28 April 2003 and effective from the same date. 77 Article 1 (2), Ministry of Health circular concerning listing the contagious severe acute respiratory syndrome as a statutory controlled contagious disease (Weishengbu guanyu jiang chuanranxing feidianxing feiyan ( yanzhong jixing huxidao zonghezheng) lieru fading 73 74

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distinction between medical observation and isolation for treatment disappeared, and isolation for treatment was the only measure actually used. The circular issued by the Ministry of Health was technically void. The Ministry had no power to change the classification of diseases or to introduce preventive measures as isolation for treatment. Global concerns about public health were deemed more important than considerations about fairness, so the extra-legal nature of geli was more or less overlooked. The limited usefulness of isolation The targets of geli were not symptomatic or asymptomatic patients, but suspected carriers. The definition of suspected carrier was highly problematic. The key to understanding who a suspected carrier might be was the notion of “close contact” (密切接触 miqie jiechu). Close contact with an infected person or with another suspected carrier was a sufficient reason to place individuals in isolation. Unfortunately, close contact was a flexible concept.78 Reasonable and very detailed criteria to define close contact existed, but such criteria referred only to contacts occurred on vehicles of mass transportation.79 Contacts taking place in any premise other than mass transit were automatically understood as being close, and requiring isolation. Therefore, all those who had been in the same classroom of a suspected carrier could be isolated,80 and all those who had been in the same factory workshop could be isolated, even though no contact occurred between them. To make matters worse, those who had close contact with “suspected patients”81 could be isolated, too. The logic behind geli is not unlike the logic behind some police powers. Geli rested upon the idea that it is somehow possible to foresee who may have contracted SARS and to prevent contagion by isolating

guanli chuanranbingde tongzhi 卫生部关于将传染性非典型肺炎 (严重急性呼吸道综 合征) 列入法定管理传染病的通知), issued on 8 April 2003 and effective from the same date. 78 Experimental principles to identify and handle those who had close contact with those infected by the severe acute respiratory syndrome (Chuanranxing feidianxing feiyan miqie jiechuzhe panding biaozhun he chuli yuanze (shixing) 传染性非典型肺炎密切接触者判 定标准和处理原则 (试行)), issued on 8 May 2003 and effective from the same date, hereinafter referred to as Experimental Principles. 79 For instance, these were the cases of those who rode the same car, sat in the same row of seats, etc. 80 Article 5 (2) (3), Experimental Principles. 81 Article 5 (7), Experimental Principles.

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those individuals. Stop-and-question—which I examine in chapter 4—rests upon the logic that crime leaves signs on the offender. While an experienced policeman can intuitively read them, language cannot express what these signs consist of, so they escape any precise definition. Other forms of detention are justified on grounds that those who commit misdemeanors may, in the future, slide into crime. This assumption lacks any scientific support. In the 1980s, mental health professionals believed that danger could in no way be predicted.82 Later on, this judgment was partially mitigated,83 and violence was found to correlate with a high number of variables. Single variables, however, “seem to play a relatively small role in explaining or predicting the behavior.”84 Police officers do not possess the tools needed to predict whether criminal behavior may occur. Likewise, health officials could not predict whether a suspected carrier would actually develop SARS. In 2003, solid scientific evidence on this illness was still nonexistent. Its “exact means of transmission [were] not fully understood.”85 The DNA sequence of the SARS virus was still unknown. No cure was available. A vaccine had not been produced yet, and no validated diagnostic tests existed.86 So complete was the ignorance about SARS, that the World Health Organization (WHO) recommended citizens to adopt prophylaxis measures such as “washing hands frequently.”87 These recommendations were picked up and disseminated by major international media. Today, there is absolutely no evidence that the use of geli could cut off transmission routes. Health care facilities and households were the only settings posing an increased risk for transmission. Most SARS patients, in fact, became infected in medical facilities,88 the main risk factors being aerosol-generating procedures.89 The consensus document issued by WHO after the SARS crisis stated that most SARS patients were medical doctors or workers at wet markets. Casual and social contacts led to contagion only occasionally. An overly broad use of geli, as it took place in China and elsewhere, was 82 83 84 85 86 87 88 89

Steadman and Cocozza 1980. Apperson, Mulvey, and Lidz 1993; Quinsey 1995. Pinard and Pagani 2001: xii. James 2003. WHO 2003. James 2003. WHO 2004: 12. WHO 2004: 13.

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never needed. Ironically, the use of isolation could have had also an adverse effect on public health “by causing people to keep quiet about symptoms”90 for fear of the stigma associated with it. While it is entirely reasonable to quarantine symptomatic patients, geli was enforced also on healthy persons. According to the elliptical logic and vague definitions of the regulations of the Ministry of Health, it had to be used on them, because they could have been asymptomatic carriers. In the absence of scientific evidence about the illness, people panicked, and isolation was accepted as the only possible solution. When weighting the limitation placed upon personal freedom against the potential risk of infection, suspected carriers chose what they believed was the lesser of two evils. Isolation and rights This choice was, however, entirely fictitious. Suspected carriers could choose whether to accept isolation or refuse it, but whenever a refusal took place geli would be enforced compulsorily.91 The majority of sources in fact refer to geli as “compulsory isolation” (强制 隔离 qiangzhi geli). Once subjected to isolation, suspected carriers could still choose whether to go out or not. Those who chose to go out faced criminal charges.92 Individual and mass resistance was met with repression.93 The only real choice citizens had was to comply with decisions made by health officers, and enforced informally.94 Any other possibility, including claiming compensation for the damage caused Kleinman and Lee 2006: 189. Article 3, Law on Infectious Diseases. 92 These could be levied against those who a) went out during isolation and transmitted illnesses to others; b) used force or threats to resist isolation as enforced by PRC officers or the Red Cross. In the first case, charges of negligent poisoning could be levied under article 115 (2), Criminal Law. In the second case, charges of obstructing official business could be levied under article 277 (1) or (3), Criminal law. Article 1 (2) (8), Supreme People’s Court, Supreme People’s Procuratorate interpretation of provisions to concretely use in criminal cases of jeopardizing the prevention and control of sudden infectious diseases and other disasters (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu banli fanghai yufang, kongzhi tufa chuanranbing yiqing deng miehaide xingshi anjian juti yingyong falü ruogan wentide jieshi 最高人民法院、最高人民检察院关于办理妨害预防、控制突发 传染病疫情等灾害的刑事案件具体应用法律若干问题的解释), issued on 13 May 2003 and effective from the same date. 93 Besides it resulted in stigma and psychological suffering. On these, see Kleinman and Lee 2006. 94 Jacobs 2007. 90 91

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by a mistaken use of isolation, was precluded. No choice could be made of temporarily giving up one’s right to freedom in exchange for the protection of one’s health: isolation was mandatory, regardless of the individual’s wish. Of course, it could be claimed that accepting the limitation posed by geli was a morally commendable act, which manifested one’s social responsibility and abnegation. Any sincere belief in this claim would have underscored the mere acceptance of the fact that one had, basically, no rights to give up to state power. The refusal to hand over one’s freedom for a few days would have been met with criminal punishment. In abstract terms it can be, of course, interpreted that citizens were still basically entitled to their freedom. However, in the real world, exerting this freedom could lead to imprisonment. This paradox did not result from China’s disregard for the law. It was simply the outcome of a health emergency. In the absence of any knowledge about SARS, WHO guidelines gave each country discretion over the measures to adopt.95 China’s choice to use isolation, therefore, complied with international standards, and was absolutely consistent with the International Covenant on Social, Economic, and Cultural Rights.96 Plague-spreaders The immediate outcome of the SARS crisis was the introduction of emergency powers, which, in 2004, received constitutional grounding. Eventually, the notion of a state of emergency came to exist side by side with the notion of martial law. In 2007, an operational framework on emergencies97 and the Law on Emergency Response were adopted.98 Emergencies have been defined as natural or accidental disasters, public health or public safety incidents that require extraordinary measures. Emergencies are classified under four hazard levels. The State Council is the only organ with the power to decide the Potter and Jacobs 2006, WHO 2004: 8. ICCPR General Comment 5 (Thirteenth session, 1981): Article 4: Derogation of Rights, A/36/40 (1981) 110 at paras. 1–3. On the matter of derogation to provisions of this treaty in case of health emergencies, see Gostin 2002. 97 National Plan on Emergency Response (Guojia tufa gonggong shijian zongti yingji yu’an 国家突发公共事件总体应急预案), issued 1 January 2005 and effective from the same date. 98 People’s Republic of China Law on Emergency Response (Zhonghua Renmin Gongheguo tufa shijian yingduifa 中华人民共和国突发事件应对法), issued on 20 August 2007 and effective from 1 November 2007, hereinafter referred to as Law on Emergency. 95 96

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hazard level a given occurrence deserves.99 As the leading national organ for emergency response,100 it enjoys unchecked powers to decide by decree101 the measures to adopt during a state of emergency.102 The procedure to proclaim a state of emergency closely resembles the procedure adopted to declare martial law. The State Council must draft an emergency decree, which needs to be approved by the National People’s Congress or its Standing Committee. Derogations to this procedure are allowed in cases of urgency. Such broad powers have been vested also in governments above the district level. At the moment, it is difficult to determine the concrete shape these powers may take in the future. Some clues about their possible impact are, nonetheless, contained in the National Plan on Response to Public Health Emergencies.103 Other clues have been provided by the case of the H1N1 flu. The National Plan contains instructions on the measures local governments can adopt to counter epidemics. These have been modeled after geli, but with a change. The National Plan does not allow the indiscriminate isolation of citizens on preventive grounds. Instead, it focuses on some sectors of the population. The floating population (流动人口 liudong renkou) has been singled out as one of the foci of response measures because its high geographical mobility makes this group a potential spreader of infectious diseases. Local governments have also been vested with the power to designate some places where nonresidents who are suspected carriers of infectious diseases are to be concentrated (集中 jizhong).104 The high potential for abuse of this measure need not be commented upon. One illustration of the ways in which preventive measures may be implemented has been given by the case of the Mexican citizens suspected of carrying the swine flu virus. In May 2009, as the H1N1 virus began claiming hundreds of lives in Mexico, a total of four hundred Mexican nationals were held in hotel rooms on preventive grounds. The use of geli took place regardless of

Article 3, Law on Emergency. Article 9, Law on Emergency. 101 Articles 50 (5), 69, Law on Emergency. 102 Article 8, Law on Emergency. 103 National Plan on Response to Public Health Emergencies (Guojia tufa gonggong weishang shijian yingji yu’an 国家突发公共卫生事件应急预案), issued on 26 February 2006 and effective from the same date, hereinafter referred to as Health Emergencies Plan. 104 Article 4.2.1 (5), Health Emergencies Plan. 99

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their actual health conditions,105 exactly as it had happened six years earlier during the SARS epidemics. 2.3 Exceptions in China’s Criminal Law Mechanisms that allow for a suspension of rights exist in constitutional law. Furthermore, they exist in other areas of legislation and quasi-legislation. This paragraph describes two such mechanisms as they exist in criminal and criminal procedural law. China’s criminal legislation possesses a tremendous built-in potential to cause legal exceptions simply because this area of the law is unable to serve as “the leading force of legal reform,”106 notwithstanding the changes that have occurred over the last thirty years. Since the first criminal law and criminal procedure law of the PRC were enacted in 1980, criminal legislation has witnessed significant improvements. The party has, for the most part, relinquished its judicial powers107 and prohibited the review of criminal cases by party committees before adjudication.108 Reforms in criminal justice have tried to create a more equitable system. After their substantial 1997 revision, both the criminal and criminal procedural code have become less politicized. The principles of analogy and retroactivity, rooted in socialist legal doctrine, were replaced by the principle of legality. Provisions on counter-revolutionary crimes were amended. Ill-defined provisions about hooliganism, speculation, and dereliction of duties were abrogated. The seven rounds of amendments that took place between 1980 and 2009 signal the will to close some of the loopholes in criminal legislation. Hopes for the emergence of a fairer criminal justice system have, however, been frustrated. Sweeping reforms are held back by economic, social, and institutional variables,109 which result in the persistence of draconian punishments.110 The turn toward a more adversarial criminal trial has played into Branigan 2009. Peerenboom 2007: 202. 107 As I explain in Chapter 3, the party retains the power to judge violations of the law committed by its members. 108 Directive of the CCP Central Committee on guaranteeing the implementation of the Criminal and Criminal Procedure Law (Zhongong Zhongyang guanyu jianjue baozheng xingfa, xingshi susongfa qieshi shishide zhishi 中共中央关于坚决保证刑法, 刑事诉讼法切 实实施的指示), issued on 9 September 1979, summarized in Li 2004. 109 Peerenboom 2007: 199–216. 110 Bakken 2000: 395. 105 106

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the hands of prosecutors, leaving criminal defense lawyers weak and vulnerable.111 The introduction of summary and simplified procedures and experimentations with noncustodial sanctions have failed to elicit a broad compliance.112 Judicial and law enforcement organs try to oppose those changes that would limit their broad powers. Reforms of the criminal code and criminal procedure code have not eliminated practices such as excessive pretrial detention.113 The party-state has capitalized on citizens’ fears of a rising social disorder, which delayed the abolition of the death penalty.114 Faced with such a discouraging scenario, scholarship has focused on the continuities in the criminal justice system,115 rather than its changes. Such continuities apart, criminal legislation and criminal procedural legislation contain mechanisms that allow for the systematic removal of procedural guarantees. Shelter for examination Until 1997, shelter for examination had been a form of administrative detention grounded in normative documents by the Ministry of Public Security116 and used to bypass the time limits for investigation set by the 1980 Criminal Procedure Law (CPL).117 The 1980 CPL allowed the police to detain (拘留 juliu) a criminal suspect pending the issue of an arrest warrant by the procuracy. Pre-arrest detention could last for no more of seven days. Thereafter, the police had to apply for a warrant, which the prosecutor could issue within three days. The period of pre-arrest detention was, therefore, limited to no more than ten days.118 However, shelter for examination could last for one month, with the possibility of a two-month extension.119 Alleging that ten days

111 112

1997.

Yu 2002; Fu 2006; Young 2006. On the compliance and monitoring of public security organs, see also Ma

Clarke 1998; HRIC 2001. Hu 2002. 115 Clarke 2007. 116 A translation of legislation on this measure is available in the September 1994 issue of Chinese Law and Government. For earlier analyses, see Hsia 1992. 117 Criminal Procedure Law of the People’s Republic of China (Zhonghua Renmin Gongheguo Xingshi Susongfa 中华人民共和国刑事诉讼), issued on 1 July 1979 and effective from 1 January 1980, hereinafter referred to as 1980 CPL. 118 Articles 41, 48 1980 CPL. 119 A one-month extension could be applied for if thirty days were not sufficient to conduct investigations in all those cases that involved two different administrative jurisdictions. Under exceptional circumstances, an additional one-month extension could be granted by provincial-level public security organs. Article 3, Circular of the 113 114

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were insufficient to gather the amount of evidence needed to convince prosecutors to approve arrest, the police preferred the use of shelter for examination to pre-arrest detention. Most scholarship on this form of detention believes that shelter for examination was abolished either in 1980,120 or after the 1996 revision of the criminal procedure law.121 In reality, this measure was just rationalized and incorporated in the revised criminal procedure law with no substantial changes.122 Until 1996, shelter for examination had targeted four subjects: those who did not reveal their true name and address, or whose identity was unknown; itinerant criminals who committed crimes roaming from one place to another; those who committed crimes repeatedly; and those who committed crimes in a gang.123 The revised criminal procedure law allows the police to detain four kinds of subjects pending an arrest warrant. They include those who do not tell their true name and address or whose identity is unknown; those who are suspected of committing crimes while roaming from

Ministry of Public Security on strictly controlling the use of shelter for examination (Gong’an bu guanyu yangge kongzhi shiyong shourong shencha shouduande tongzhi 公安部关于 严格控制使用收容审查手段的通知), issued on 31 July 1985 and effective from the same date. 120 Biddulph 1993, 2007. For a slightly different view, see Ma 2003. Sarah Biddulph notices how this was merged with reeducation through labor (RETL). At least conceptually, a certain distinction between shelter for examination and RETL was preserved. Targets of shelter for examination were to join special brigades in RETL camps. Those who were not socially dangerous could be released on bail (取保后审 qubao houshen) or placed under supervised residence (监视居住 jianshi juzhu). In 1980, both chances still precluded RETL inmates. Ironically, the document that merged shelter for examination with RETL was understood by the police as providing shelter for examination with a legal basis. Article 2, State Council circular on merging the two measures of compulsory labor and shelter for examination in reeducation through labor. (Guowuyuan guanyu jiang qiangzhi laodong he shourong shencha lianxiang cuoshi tongyiyu laodong jiaoyang de tongzhi 国务院关于将强制劳动和收容审查两项措施统一于劳动 教养的通知), issued on 29 February 1980 and effective from the same date. 121 Clarke 1998; HRIC 2001. Chen 1999 stating at 206 that the abolition of shelter for examination was announced not in the decision to amend the CPL, but in an explanation delivered to the NPC shortly afterward. 122 Criminal Procedure Law of the People’s Republic of China (Zhonghua Renming Gongheguo Xingshi Susongfa 中华人民共和国刑事诉讼), issued on 1 July 1979 and effective from 1 January 1980. As amended on 17 March 1996, hereinafter referred to as 1996 CPL. 123 Ministry of Public Security reply on the scope of targets of shelter for examination (Gong’anbu guanyu dui shourong shencha fanwei wentide pifu, 公安部关于对收容审查范 围问题的批复), issued on 20 July 1992 and effective from the same date.

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one place to another, repeatedly, or in a gang.124 For the three latter subjects, an arrest warrant can be asked within thirty-seven days,125 exactly as it was the case before the “abolition” of shelter for examination. For those who do not reveal their true identity, or whose identity is unknown, the time limit may be longer because it is calculated from the date on which their identity is confirmed.126 The formalistic change of 1996 produced two interesting consequences. First, vocal and sustained criticism of this measure was no longer heard in the West. Obviously, prior criticism of shelter for examination had been, for the most part, based on its inadequate legal grounding. Once this power came to be grounded on the CPL, thus gaining an appropriate legal basis,127 criticism stopped. Nonetheless, the police still enjoy the power to hold suspects for thirty-seven days in the absence of any accusation. The inclusion of shelter for examination in the CPL has also created a point of convergence between the formal criminal justice system and administrative detention. Suspects who are not charged with a criminal offense after thirty-seven days spent under pre-arrest detention can still be sentenced to a term of RETL. This potential persists thanks to the legalization of shelter for examination. This and other paradoxes are normal attributes of zones of exception. 2.4

“Evil Cults”

In addition to unrest, public health crises, and concerns about public security, exceptions may be generated also by the existence of groups seen as threatening, which cannot be suppressed using criminal legislation. As proved by the case of the Falungong, the criminal justice system then enters a mode of operation that emphasizes the use of extra-legal mechanisms. While activities of Falungong members did not strictu sensu constitute a criminal offense, the open challenge they Article 61 (6), (7), 1996 CPL. Article 69, 1996 CPL. 126 Article 128 (2), 1996 CPL. 127 Previously, this point was doubtful even for the police. See Fujian Province Higher People’s Court Report on the request for instructions on whether shelter for examination has a legal basis (Fujiansheng Gaoji Renmin Fayuan guanyu shourong shencha youfou fagui yijude qingshi baogao 福建省高级人民法院关于收容审查有否法律法规依 据的请示报告), issued on 18 May 1991 and effective from the same date. 124 125

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posed to political power could not be tolerated. The ensuing response was based more on sovereign choices of political power than on the law. In the following paragraphs, I outline the formal legal mechanisms that exist to outlaw religious or spiritual groups. Then, I explain how the conduct followed by Falungong members made legal mechanisms largely useless, prompting an extra-legal reaction. 2.4.1

Religious Groups and the Law

The 1982 constitution guarantees freedom of religion, but with an important qualification.128 The constitution makes a distinction between “normal religious activities”129 and the use of religion to disrupt public order: The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.130

The implication is that state-controlled religions are protected, while religious groups existing outside of the state control are placed outside of this constitutional guarantee. Article 36 specifies two conditions that can restrict religious practice. The first regards religious groups’ control by overseas organizations. The second condition is more sophisticated and refers to the inability to enjoy one’s religious freedom without infringing upon the rights of other citizens. Article 36 contains a statement of principle about the concrete forms of such infringement. It mentions the disruption of public order, infringement upon the right to health, and interference with the state’s provision of education. The 1997 Criminal Law and police regulations provide more detailed indications about which behaviors have been criminalized. Article 300

128 This provision is more carefully articulated than article 88 of the 1954 constitution: “Citizens of the People’s Republic of China enjoy freedom of religion.” Its logic reflects a greater sophistication of state power. The provision of article 28 of the 1975 constitution was on the other hand modeled very closely after article 124 (2) of the 1936 Soviet Constitution. 129 Article 36, Constitution of the People’s Republic of China. 130 Or to harm the health of citizens or interfere with the educational system of the state.

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of the 1997 Criminal Law targets three behaviors.131 The first one is the organization or use of secret societies, evil cults, or superstition to disrupt the enforcement of laws or administrative regulations. The second and third refer, respectively, to the use of superstition to commit crimes against person or against property. A 1990 Circular of the Ministry of Public Security allows the use RETL for those who use superstition to disrupt social order, or to cheat people out of their property.132 The 1994 version of the Regulations on Security Administration Punishments (SAPR)133 allowed for the punishment of behaviors that did not reach the threshold of criminal responsibility, and did not fall under the 1990 Circular. The punishment consisted of no more than 15 days detention ( juliu) and a fine of less than 200 yuan or a warning. Until the late 1990s, this legal framework operated sporadically. During the campaigns against the “Six Evils,” most cases seem to have been handled administratively. China had listed fourteen

The political labeling of secret societies and evil cults as counter-revolutionary or reactionary disappeared from the Criminal Law in 1997. The current formulation of article 300 results from the merging of articles 99 and 165 of the 1980 Criminal Law. Article 99 punished counter-revolutionary activities carried out using feudal superstition, thus recalling the provisions of article 3, Measures for the Control of Counter-revolutionaries, 27 June 1952. Article 165 criminalized the practice of sorcery or witchcraft to swindle people of their money or other property. For a detailed description of the merging, see Keith and Lin 2006. 132 Article 6 (2), Ministry of Public Security circular on acting according to the law, implementing policies, and further carrying out the struggle against the six evils (Gong’anbu guanyu yangge yifa banshi, zhixing zhengce, shenru kaizhan chu liuhai douzhengde tongzhi 公安部关于严格依法办事, 执行政策, 深入开展除六害斗争的通知), issued on 7 May 1990 and effective from the same date, hereinafter referred to as the 1990 Circular. Before, the legal basis to sentence members of “reactionary secret societies” was given by a 1985 joint circular issued by the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security and the Ministry of Justice. Circular of the Supreme People’s Court, Supreme People’s Procuracy, Ministry of Public Security, Ministry of Justice on some problems in the work of handling reactionary sects (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’anbu, Sifabu guanyu chuli fandong huidaomen gongzuozhong youguan wentide tongzhi 最高人民法院最高 人民检察院公安部司法部关于处理反动会道门工作中有关问题的通知), issued on 5 September 1985 and effective from the same date. This document was repealed in October 2000. 133 Article 24 (4), People’s Republic of China Regulations on Security Administration Punishments (Zhonghua Renmin Gongheguo Zhi’an guanli chufa tiaoli 中华人民共和国 治安管理处罚条例), issued on 5 September 1986 and effective from 1 January 1987. As amended on 5 December 1994. Repealed on 1 March 2006. 131

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groups as “evil cults,” but between 1997 and 1999, members of just three of them were tried on charges under article 300.134 2.4.2

The Falungong and Article 300

Since the mid-1990s, the Falungong has fallen almost entirely within the scope of article 300. The survival of the movement until 1999 can be attributed to the few protests it staged and its lack of any direct political confrontation with the CCP. The absence of any violent or political protests did not trigger the use of criminal or public security legislation. However, six characteristics of the movement made it a potential target of state repression. The only condition to make this potential pass into actuality was disruption of public order by its members. First, the nature of the Falungong is a conundrum. Cheris ShunChing Chan qualifies the Falungong as a cult-like New Religious Movement (NRM).135 To make the public understand what the movement is, Chan refers to three conceptual categories (cult, religion, and NRM) that are themselves debated and contested.136 Falungong sources do not shed much more light on what the Falungong actually is.137 International law is of limited guidance in distinguishing normal religious groups from “abnormal” ones,138 which places the Falungong both inside and outside this legal domain: while some immigration courts defined the Falungong as a religion,139 others did not. Some They were members of the Eastern Lightning (Dongfang Yaodian), the Established King Church (Beiliwang), and the Holy Spirit Refoundation Church (Shengling chongjian jiaohui) On the Eastern Lightning, see Dunn 2009. 135 Chan 2004. Benjamin Penny also points out how even though the Falungong “grow[s] out of the centuries-old tradition of internal cultivation practiced by religious believers in China,” it incorporates several features of Western New Age movements. Penny 2003: 644. 136 Chryssides and Wilkins 2006: 6. 137 The official English website of the movement defines it as “high-level cultivation practice guided by the characteristic of the universe—Truthfulness, Benevolence, and Forbearance.” The Falungong does not define itself as a religious movement. Falungong 2009. 138 Peerenboom 2002: 91–102. Also, the very definition of religion in international law is problematic, as it consists of two rather vague elements: “[T]he right to hold or not hold any form of theistic, non-theistic, or atheistic belief” and “the ability to live in accordance with a chosen belief, including participation in or abstention from formal worship and other religious acts, expression of views, and the ordering of personal behaviour.” Hathaway 1991: 145. 139 Particularly, the Immigration and Refugee Board of Canada. See X (Re), 2002 CanLII 52728 (I.R.B.)—2002-08-09. 134

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legal scholars hold that the Falungong is neither a religion nor a political opinion.140 In a context where campaigns against secret societies had taken place since the early 1950s, this objectively atypical group was at risk of being defined as “superstitious,” since it did not entirely place itself within either Buddhist or Daoist tradition. Li Hongzhi states this point clearly: Religions have religious forms, while what we’re transmitting here is the cultivation part of our discipline. We don’t worry about religious forms unless you’re a specialized Falun Dafa disciple. So anyway, we’re not part of Buddhism in the Age of the Law’s End.141

Situating the origins of the Falungong before the birth of the great Asian religions, Li Hongzhi continues: Our Falun Dafa is one of the Buddhist system’s 84,000 disciplines. It’s never been passed on to the general public before during this period of civilization, but it did once save people on a large scale in a prehistoric age.142

Second, the Falungong has existed outside of the scope of state control since 1996. In 1993, the organization placed itself under the state’s wing by obtaining an affiliation to the China Qigong Scientific Research Society, registering as the Falun Dafa Research Branch Society.143 The actual events that led to rescinding the affiliation in 1996 are unknown. Since then, the Falungong has existed outside the law on social organizations. Aware of this matter, its leaders have made three attempts to register as a social organization, all of which were refused. When they were issued with a cease and desist order, they showed their compliance by formally declaring to the Ministry of Civil Affairs and the Ministry of Public Security that the Falungong would no longer exist. On the surface, the organization was disbanded. Telephone lines were disconnected, offices were closed, and account books were no longer kept. Third, law enforcement agents could have seen such compliance as being largely feigned. As James Tong recounts, between 1996 and

Chaney 2005. Li 2003. “Religious forms” refers to institutionalized religions and their rituals. The Falungong does not make claims of kinship to any of them, therefore, it is not to be confused with Buddhism or any other far eastern philosophy. 142 Li 2003. 143 Tong 2002: 640. 140 141

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1997, the Falungong changed its organizational format. What used to be a hierarchical organization became a loosely coordinated network. From a purely organizational point of view, this was an incredibly smart move—as networks are perhaps the most efficient and resilient form of organization. However, for a group that wanted to survive in China, this choice was dangerous, as public security organs could have understood this change as manifesting the will to go into hiding and form a secret organization. Fourth, in 1997 Li Hongzhi moved to the United States.144 He subsequently denied any actual connection to the movement, even though he continues to be its spiritual leader. Li’s move has put him in a position similar to foreign or exiled religious leaders, such as the Pope or the Dalai Lama. The Dalai Lama has no link to the state-controlled Buddhist Church. However, any group of Buddhists yielding their allegiance to him could face problems. The same logic is true for the Pope. Li’s move placed Chinese Falungong followers in a more difficult position, because PRC authorities could claim that the Falungong is a “religious group controlled from abroad,” and thus its members do not enjoy the constitutional guarantee to religious freedom. Fifth, during the period it existed outside of internal law, the Falungong kept recruiting followers from among high-ranking members of the CCP. Sixth, the Falungong had been attracting the authorities’ attention since 1994, when its first protests took place.145 In 1996, Falungong members staged further protests against newspapers and journals that criticized the movement.146 In 1998, the first arrests of its members took place.147 In 1996, the General Administration of Press and Publication ordered six Falungong publications to be seized and destroyed after its registration was terminated. The same order was issued again two years later, in 1998.148

Penny 2001. Chen 2003 (Nancy): 512. 146 Penny 2003. 147 Refugee Review Tribunal 2007. 148 Both documents are referred to in People’s Republic of China General Administration of Press and Publication circular on handling Falungong publications (Zhonghua Renmin Gongheguo Xinwen Chuban Zongshu guanyu chongshen youguan Falungong chubanwu chulide tongzhi 中华人民共和国新闻出版总署关于重审有关法轮功出版物处理的通 知), issued on 12 July 1999 and effective from the same date. 144 145

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To summarize, the Falungong is an organization vaguely reminiscent of secret societies: (1) it is atypical; (2) it is not registered; (3) it has promised to cease all activities but still exists, albeit in a different form; (4) it is led by a person who lives abroad; (5) it can recruit members of the CCP; and (6) it has staged small-scale demonstrations. A violent demonstration would have allowed the use of article 300 of the criminal law to crack down on the movement. This opportunity, however, never happened. 2.4.3 Is Meditation a Crime? In April 1999, 10,000 followers of the Falungong surrounded the Zhongnanhai. Authorities were taken by surprise. While this is undoubtedly true, authorities were confronted also by a thorny political-legal problem. They could not tolerate the Falungong’s challenge and had to respond to it somehow. However, this time all of the existing legal mechanisms had been made useless. Emergency powers did not yet exist. Furthermore, the demonstration did not cause an immediate threat to the life of the nation. The conditions needed to proclaim martial law were not present. No yanda campaign was taking place in the spring of 1999; hence, the Falungong could not be retroactively included among campaign targets. Neither public security nor criminal legislation was of any help in determining whether the gathering was illegal. The logic of the sit-in had entirely circumvented the state’s repressive apparatus, thereby rendering its arsenal of legal weapons useless. The April protest did not involve a disruption of public order. Protesters sat down outside of the Zhonghanhai and meditated from dawn until dusk without shouting slogans or blocking road traffic. Once the sit-in had ended, they left the streets near Zhongnanhai as clean as they found them. The PRC Law on assemblies, processions, and demonstrations requires that any public gathering be approved by the local public security bureau,149 with the exception of normal religious activities.150 The April demonstration could have fallen within this exception. The question was if meditation by an unregistered group could be 149 Article 7, People’s Republic of China Law on Assemblies, Processions and Demonstrations (Zhonghua Renmin Gongheguo jihui youxing shiweifa 中华人民共和国集会游行 示威法), issued on 31 October 1989 and effective from the same date, hereinafter referred to as Law on Demonstrations. 150 Article 2 (3), Law on Demonstrations.

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considered a normal religious activity. To this thorny question no clear answer could be found because the sit-in did “not impair . . . interests or the lawful freedoms and rights of other citizens.”151 It was “held in a peaceful manner,”152 not unlike the activities of underground Catholic and Protestant groups, which the regime tolerates.153 Authorities can easily label a riot taking place in such areas as Tibet or Xinjiang as an attempt at overthrowing state power. Such representation can be accepted by those used to the cultural stereotyping of Tibetans as savages and of Muslims as terrorists. The April sit-in was clearly different. The CCP was confronted with a challenge, and for the first time since 1978, it could not use the law. In its place, a combination of extra-legal and legal mechanisms was used. Given the initial dearth of information on the Falungong,154 extra-legal mechanisms were used to gather intelligence on the movement, control its followers, and place them in a lawless area. 2.4.4

The 6–10 Office

The main actors in the repression of the Falungong were political organs. On 6 June 1999, a party task force under the leadership of the Central Committee of the CCP was set up.155 This extra-legal organ is known as the Leading Group for Handling the Falungong Problem (hereinafter the Leading Group).156 Its local sections exist at the grassroots level,157 and its general office (bangongshi), better known as the 6–10 Office, constitutes its operational arm.

Article 4, Law on Demonstrations. Article 5, Law on Demonstrations. 153 Wenger 2004; Bays 2003; Chen and Huang 2004. 154 Tong 2002. 155 Tong 2002: 638–40. 156 Zhongyang chuli Falungong wenti lingdao xiaozu. This organ operates also under the name State Office for the Prevention and Handling of Evil Cults. The two organs are “the same organization under two different plates” ( yige jigou liangkuai paizi 一个机构两 块牌子). Initially, it was called the “6–10 Leading group” (610 gongzuo lingdao xiaozu). Later, the name of these organs was changed to the “leading group for the prevention and handling of evil cults.” Hence, the office became known as Office for the Prevention and Handling of Evil Cults. An unnamed source reported that this group no longer existed. In reality, local party committees mentioned the existence of the 6–10 Office as late as October 2009. See Zhonggong Zhushan Xianwei 2009. 157 In spite of its importance, there is a total lack of information about this organ in studies of the Falungong. James Tong (2002) mentions it in his analysis of the timing of Falungong repression. He relies on two sources. The first is the 2001 volume of the China Central Television Yearbook (at 805, footnote 44). The second is a 151 152

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The 6–10 Office and the Leading Group are in some cases an appendage (guakao)158 of political-legal committees (hereinafter the Committee). Organizational documents list them as sections of the Committee, qualify their personnel as Committee’s officials,159 and specify that the 6–10 Office shares the Committee’s premises. In other cases, the 6–10 Office is a section of a local party committee. Given their nature as party organs, in theory 6–10 Offices should not be vested with investigative, judicial, or law enforcement powers. They enjoy these powers in an indirect way. The 6–10 Offices are staffed by party officials and by officials drawn from law enforcement organs. The latter can aptly use their legal powers to implement political orders. Hence, this political body can perform investigations, intelligence gathering, and reeducation work. These offices established at the district level consist of three sections: a secretariat, a general department (zongheban), and a section for education.160 The secretariat coordinates investigations on the Falungong and supervises the solving and handling of special cases (zhuan’an zhenpo). In this respect, it acts similarly to an adjudication committee, a body existing within people’s courts, whose main function is to debate and decide the most appropriate way to adjudicate so-called important and complex cases. In the words of a local leader, this is also the task of 6–10 Offices, which must “strengthen the coordination and supervision over important, complicated and dubious cases.”161 Intelligence work is performed by the general department, which monitors the activities of the Falungong, collects relevant information, and transmits it to the next-higher level 6–10 Office. Monitoring is easy because suspected and actual members of groups labeled “evil cults” are one of the nineteen groups presentation given by Zhou Shiyu (2001), an academic and Falungong follower, at the National Press Club. The presentation mentions statistics and internal documents without quoting them. 158 As in Harbin. 159 A 6–10 Office can be headed by a deputy secretary of the Committee. 160 These observations refer to 6–10 Offices existing at the district level. The structure of those existing at the provincial level, or below the district level, may be different, even though the tasks performed by this organ do not change. 161 Circular of *** Committee Political-legal Committee issuing comrade ***’s speech at the *** meeting on party construction work (Zhonggong *** zhengfa weiyuanhui guanyu yinfa *** tongzhi zai *** dangjian gongzuo huiyishangde jianghuade tongzhi 中共 *** 政法委员会关于印发 *** 同志在 *** 党建工作会议上的讲话的通知) issued on 14 May 2007 and effective from the same date. I have made incomplete references to this and three other documents in order to preserve the anonimity of those who made them available.

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included under the “focal population” (zhongdian renkou), on grounds that they pose a threat to state security—their personal data is stored in databases or registers—maintained by the police. Re-registration of Falungong members and “follow-up visits” (huifang) can take place before such events as National Day, party congresses, or the Olympics.162 Before political meetings, Falungong followers can be arrested to take part to study and education (xuexi jiaoyu). In this way, information on members of the movement can be gathered. Also, it can be avoided that they stage demonstrations together with the unemployed or other protesters.163 Members of the Falungong are “educated and transformed” ( jiaoyu ganhua) by the education section of the 6–10 Office. This section’s functions also overlap with those of public security and civil affairs organs because the education section monitors and resettles (anzhi) those Falungong members who have served their term of RETL or imprisonment. Finally, it handles those who try to travel to Beijing to hold demonstrations or petition the authorities. In July 1999, the Falungong was declared an illegal organization and banned.164 Even though the ban allowed the use of criminal legislation, political mechanisms were used instead. Here, sovereign power can be observed as it spills back over into society and claims for itself the fates of some people. Political documents issued by the CCP in 1999 were addressed only to party members, and did not conflict with constitutional guarantees.165 Documents issued by the Central PoliticalLegal Committee were instead applicable to nonparty members, 162 ** county office for the comprehensive management of public order (** xian shehui zhi’an zonghe zhili bangongshi), 20 May 2008. On file with the author. 163 ** street committee (** jiedao banshichu), 29 September 2007. On file with the author. 164 Ministry of Civil Affairs of the People’s Republic of China decision on banning the Falun Dafa research society (Minzhengbu guanyu qudi Falun Dafa yanjiuhuide jueding 中华人民共和国民政部关于取缔法轮大法研究会的决定), issued on 22 July 1999 and effective from the same date. This document made it possible to apply criminal law or administrative provisions to Falungong members. See Notice of the Ministry of Public Security (Gong’anbu tonggao 公安部通告), 22 July 1999. 165 Central Committee circular on forbidding the involvement of party members in the practice of the “Falun Dafa” (Zhonggong Zhongyang guanyu gongchan dangyuan buzhun xiulian “Falun Dafa” de tongzhi 中共中央关于共产党员不准修炼“法轮大法”的通 知), 19 July 1999 and effective from the same date. Central Commission for Discipline Inspection and Central Department for Organization opinion on handling Communist Party members who are involved in the practice of the “Falun Dafa” and other problems (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui, Zhonggong Zhongyang Zuzhibu guanyu dui gongchan dangyuan xiulian “Falun Dafa” deng wentide ruogan chuli yijian 中共中央

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and mandated that reeducation through labor be used on members of the Falungong.166 Courts were instructed to reject those administrative lawsuits filed against RETL decisions. Members of the Falungong were furthermore deprived of the vague resemblance of procedural guarantees other RETL inmates could enjoy. Then, in 2002, the Ministry of Public Security mandated that a hearing (lingxun) be held whenever public security organs proposed the adoption of a term of RETL lasting more than two years.167 The right to a hearing (lingxun quanli) could in no way be equated to due process rights. Yet, having the chances to argue one’s case before the police and to be represented by a lawyer is clearly better than not having them. Both chances were explicitly denied to members of the Falungong,168 until recently.169 Also, while most categories of RETL inmates are held, beginning their third month of detention, in semi-open detention regime (ban kaifangshi), Falungong members are held always in isolation regime ( fengbishi).170

纪律检查委员会、中共中央组织部关于对共产党员修炼“法轮大法”等问题的 若干处理意见), issued on 6 August 1999 and effective from the same date. 166 Chinese Communist Party Central Political-Legal Commission circular on using the legal weapon to severely punish criminal activities and activities that violate the law performed by the Falungong and other evil cult organizations (Zhonggong Zhongyang Zhengfa Weiyuanhui guanyu chongfen yunyong falü wuqi chengzhi Falungong deng xiejiao zuzhi weifa fanzui huodongde tongzhi 中共中央政法委员会关于充分运用法律武器惩治法轮 功等邪教组织违法犯罪活动的通知), issued on 5 November 1999 and effective from the same date. 167 Article 25 (1), Ministry of Public Security regulations on the handling of reeducation through labor cases by public security organs (Gong’anbu guanyu gong’an jiguan banli laodong jiaoyang anjian guiding 公安部关于公安机关办理劳动教养案件规定), issued on 12 April 2002 and effective from 1 June 2002. 168 Ibid. 169 Section 5 (13), Ministry of Public Security implementing opinion on further strengthening and improving the work of reeducation through labor approval (Gong’anbu guanyu jinyibu jiaqiang he gaijin laodong jiaoyang shenpi gongzuode shishi yijian, 公安 部关于进一步加强和改进劳动教养审批工作的实施意见), issued on 13 September 2005 and effective from the same date. 170 Article 11, Ministry of Justice experimental rules on the administration and education of juveniles subjected to reeducation through labor (Sifabu weichengnian laodong jiaoyang renyuan guanli jiaoyu gongzuo guiding shixing, 司法部未成年劳动教养人员管理教 育工作规定[试行]), issued on 22 December 2003 and effective from 1 January 2004. Article 2, Ministry of Justice opinion on further deepening and carrying forward the reform of administration work in reeducation through labor (Sifabu guanyu jinyibu shenhua laojiao ban tese tuijin guanli gongzuo gaigede yijian 司法部关于进一步深化劳教办特色 推进管理工作改革的意见), issued on 13 December 2004 and effective from the same date. The isolation regime is used for new inmates, and as a punitive measure on those who violate RETL discipline. It involves a limitation of the activities inmates can take part in, the obligation to attend individual study sessions, and restrictions on visits.

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Adjudication was framed as a “severe political struggle” rather than as an ordinary activity of the criminal justice system. In a revival of practices seen during the first yanda campaign, judicial documents explicitly mentioned that the arrest and prosecution of Falungong members had to take place under the leadership of party committees,171 to which procuracies had to report their work.172 2.5

Conclusion

Regardless of the forms it took in reality, revolutionary violence caused the birth of the state of anomie and posed an end to it too. The extralegal arrest of political leaders appointed through opaque procedures was the single biggest event that paved the way for economic and legal reform. In subsequent years, ideas about law and legality gained currency. The legal system, however, displays a built-in potential to induce a suspension of legal rights. Legal exceptionalism exists in constitutional provisions about the state of exception, legislation on emergency response, and the criminal and criminal procedure law. A set of regularized and coordinated legal procedures that allow the suspension of rights emerged. Some procedures, such as shelter for examination, have become ordinary components of the criminal justice system. Others, such as geli or the detention of members of certain spiritual groups, were created anew to solve political issues and then turned into permanent features of the legal order. In each instance, those who posed a threat to public health or public order, or who contested sovereign power, were banned from society and placed in legal limbo.

171 Article 2, Supreme People’s Procuratorate notice about conscientiously implementing the “Decision on banning evil cults organizations and preventing and punishing activities by evil cults” and related judicial interpretations (Zuigao Renmin Jianchayuan guanyu renzhen guanche zhixing “guanyu qudi xiejiao zuzhi, fangfan he chengzhi xiejiao huodongde jueding he youguan sifa jieshide tongzhi” 最高人民检察院关于认真贯彻执行 “关于取缔邪教组织 、 防范和惩治邪教活动的决定” 和有关司法解释的通知), issued on 31 October 1999 and effective from the same date, hereinafter referred to as SPP Notice on Cults. 172 Article 5, SPP Notice on Cults.

CHAPTER THREE

SHUANGGUI For the most part, China studies conceive of exclusion in connection to variables such as dissidence, the lack of wealth, political and social capital. At the other end of the spectrum, where money, power, and connections are abundant, scholarship situates privilege. A second unspoken assumption considers status as a variable sufficient to place an individual above the law. As I prove in this chapter, members of the CCP can experience a suspension of legal rights regardless of their status or political clout. This outcome can be explained by institutional and quasi-legal variables: the CCP investigative powers are parallel to the powers of judicial organs. While these powers are not new to post-1949 China, the political sensitivity of corruption has caused their institutionalization. The processes of party reform and adaptation,1 themselves issues of vital importance, and changes in anti-corruption work2 have turned the party’s investigative powers into a core component of criminal justice and induced the transplant of party norms into criminal legislation and vice-versa. Most important, investigation by party discipline organs can result in a suspension of all procedural rights. Party members then pay a heavy price for their privileges, consisting in the post-traumatic stress caused by detention, and, in some cases, even the use of advanced interrogation techniques.3 The following paragraphs describe the genesis and main features of this zone of lawlessness, tracing the history of shuanggui back to forms of investigative detention used in Soviet base areas. While the claim has been made that shuanggui is a temporary measure, it has clearly come to constitute an almost irreplaceable power.

1 See Shambaugh 2008: 131–34 for a discussion of Commissions for Discipline Inspection, hereinafter referred to as CDIs; Gong 2008 for a description of their reinforcement. 2 Zhu 2008. 3 Keller 2006; Germani, Terrieri, and Bernini 2004.

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The CCP’s Regulatory Powers

Members of the CCP are bound to observe the party statute and an extensive corpus of party norms. While the statute repeats familiar motives of sustainable development, social harmony, and integrity, other rules and regulations proscribe and punish behaviors the party regards as injurious to itself as well as those it represents. In 1922 the party’s regulatory powers were defined as the powers to amend the statute4 and issue party resolutions (议决 yijue).5 Their substantial evolution took place in the context of post-1989 party reforms. The dissolution of Leninist regimes and the vehement manifestation of public discontent posed, in a way not less threatening than earlier menaces, a life and death question to the party. A response was found in launching anti-corruption campaigns and in formalizing the party’s so-called legal powers. In 1990 the Provisional Regulations on the Procedure to Draft Laws and Regulations Internal to the Chinese Communist Party6 gave party organs at the central and provincial levels the power to issue five different categories of regulatory documents: 7 norms (准则 zhunze), regulations (条例 tiaoli), rules (规定 guiding, 规则 guize), measures (办法 banfa), and detailed rules (细则 xize).8 Regulations and rules, the two most important categories of party norms, have binding force (具有约束力 juyou yueshulide).9 They can set obligations and prohibitions and sanction those who do not comply with them with penalties. At least formally, the CCP has acknowledged the supremacy of constitutional dictates and the state law over its “legislative” activity10 and has mandated that party members suspected of crimes be dealt with

4 Article 22 (2), Statute of the Chinese Communist Party (Zhongguo gongchandang dangzhan 中国共产党党章), issued on 1 June 1927 and effective from the same date. 5 Article 18, Statute of the Chinese Communist Party (Zhongguo gongchandang dangzhan 中国共产党党章), issued on 23 July 1922 and effective from the same date. 6 (Zhongguo Gongchandang dangnei fagui zhiding chengxu zanxing tiaoli 中国共产党党内 法规制定程序暂行条例), issued on 31 July 1990 and effective from the same date, hereinafter referred to as Provisional Regulations. 7 Articles 2, 3, 10, Provisional Regulations. 8 Article 6, Provisional Regulations. The latter three categories of party norms can be enacted only by the Central Commission for Discipline Inspection and central party organs, while the former can be enacted by province-level bodies as well. 9 Article 7 (11), (12) Chinese Communist Party regulations on handling organizations’ documents (Zhongguo Gongchandang jiguan gongwen chuli tiaoli 中国共产党机关公 文处理条例), issued on 3 May 1996 and effective from the same date, hereinafter referred to as Regulations on Documents. 10 Article 6 (2), Regulations on Documents.

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by judicial organs.11 Therefore, party regulations and rules can proscribe only those behaviors that do not fall under statutory definitions of crime. The distinction between party discipline norms and criminal legislation rests on their relation to the hierarchy of legal sources, their respective purposes, and general features. Party norms are extra-legal sources of norms. Because they are a tool for “implement[ing] the party line, its guiding principles and policies,”12 they should proscribe only those behaviors that contravene principles and policies related to inner-party life. All those conducts that violate both party principles and the state law fall within the scope of the criminal law. In fact, criminal legislation has the goal of protecting the public from harm by punishing those conducts that according to statutory provisions constitute a crime. Party norms are binding only on those who willingly and not coercively pledge to join the CCP.13 Their lack of general applicability stems from the limits of the party’s pseudo-legal jurisdiction. Their limited scope of application means that “some laws and regulations,”14 apart from party norms, need not necessarily be public. On the contrary, the criminal law poses rules that are abstract, generally applicable, and public. 3.1.1 Jurisdiction In the 1980s and 1990s, the CCP Central Committee made ample use of its regulatory powers, as did the Central Commission for Discipline Inspection (CCDI), the party organ responsible for monitoring party discipline.15 Elected by the CCP National Congress every five years,

11 Article 35, Chinese Communist Party regulations on the work of case investigation by discipline inspection organs (Zhonggong Gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli 中国共产党纪律检查机关案件检查工作条例), issued on 25 March 1994 and effective from 1 May 1994. Reproduced in Zhongguo gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli shiyi bianxiezu 2003, hereinafter referred to as Regulations on Case Investigation. 12 Article 6 (1), Regulations on Case Investigation. 13 Article 1, Statute of the Chinese Communist Party (Zhongguo gongchandang zhancheng 中国共产党章程), issued on 21 October 2007 and effective from the same date, hereinafter referred to as 2007 Statute. 14 Article 23, 2007 Statute. 15 Hereinafter referred to as CCDI. A separate discipline commission, the Commission for Discipline Inspection of the Central Military Commission (中央军事委员 会纪律检查委员会 Zhongyang junshi weiyuanhui jilü jiancha weiyuanhui) exists to monitor the military.

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the CCDI operates under the leadership of the Central Committee.16 Instituted at the central and each one of the local levels of the party hierarchy, this organ is firmly embedded in the Leninist system of dual subordination. It exists, thus, tangential to party committees, enforcing its powers on each and every party organ and all party members.17 The CCDI was created in 1949,18 as the CCP newly gained political power required a reorganization of earlier discipline inspection organs19 and the centralization of their powers. In this earlier version, the CCDI mostly enjoyed the powers to investigate, evaluate, and punish violations of party discipline with appropriate penalties.20 As the Gao-Rao case erupted, fears about the presence of enemy agents and counter-revolutionaries paved the way for the 1955 Campaign to Suppress Internal Counter-revolutionaries. Deemed unable to “adapt to the task of strengthening party discipline in the new period Article 43, 2007 Statute. For an analysis of organizational and leadership mechanisms at the central and local levels, see Gong 2008. 18 Chinese Communist Party Central Committee decision on establishing central and local commissions for discipline inspection (Zhonggong Zhongyang guanyu chengli zhongyang ji geji dangde jilü jiancha weiyuanhuide jueding 中共中央关于成立中央及各级党的纪 律检查委员会的决定), issued on 9 November 1949. 19 In the early days of the CCP, no autonomous party disciplinary organ existed. Such a function belonged to the Central Executive Committee (中央执行委员会 zhongyang zhixing weiyuanhui), which later became the Central Committee of the CCP. An autonomous party disciplinary body was created in 1927, with the name of Central Supervision Committee (中央监察委员会 zhongyang jiancha weiyuanhui). Party violations were, however, handled by party cells (党部 dangbu). The Central Supervision Committee had jurisdiction on political violations, while supervision over financial matters belonged to a different body, the Central Examination Committee (中央审查 委员会 zhongyang shencha weiyuanhui), established by the 1928 Party Statute. Chapter 4, First Amendment to the Statute of the Chinese Communist Party (Zhongguo Gongchandang diyici xiuzheng zhangcheng 中国共产党第一次修正章程), issued on 10 July 1923 and effective from 20 July 1923. Article 22 (1), Decision on the Third Amendment to the Statute of the Chinese Communist Party (Zhongguo Gongchandang disanci xiuzheng zhangcheng jue’an 中国共产党第三次修正章程决案), issued on 1 June 1927 and effective from the same date. Articles 44, 45, 46, Statute of the Chinese Communist Party (Zhongguo gongchandang dangzhan 中国共产党党章), issued on 1 July 1928 and effective from the same date. See article 43: “The party National Congress, and the congress of party representatives in provinces, districts, and cities elect the central, provincial, district, or municipal examination committee to supervise financial and accounting work, and the work of all party organs”. Translation mine. 20 By the Central Committee rules on the approval and procedure to inflict penalties on party organizations and party members (Zhonggong Zhongyang guanyu chufen dangde zuzhi ji dangyuande pizhun quanxiang he shouxude guiding 中共中央关于处分党的组织及党 员的批准权限和手续的规定). Procedures to examine cases would be further defined in 1954. Rules on handling cases of accusations and appeals (Guanyu chuli konggao, shensu anjiande ruogan guiding 关于处理控告, 申诉案件的若干规定) Both documents paraphrased in Wei 1993: 98–99. 16 17

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of class struggle,”21 the CCDI was replaced by a different body, the Central Commission for Supervision.22 The Commission doubled the people’s courts, enjoying the much broader powers to investigate allegations of crimes against party members. Clearly, its jurisdiction included counter-revolutionary crimes, too. The generalized institutional instability caused by purges and struggles delayed the regularization of the Commission’s powers to 1962.23 However, soon most of the Commission’s members were labeled internal enemies. Finally, in 1969, the Commission was abolished, and remaining members were sent to May Seventh Schools.24 Special investigation groups (专案组 zhuan’an zu) were, by virtue of their ad hoc establishment, deemed more politically reliable,25 and, thus, wielded investigative powers for more or less a decade, until a brusque reversal came about in 1978. The CCDI was resurrected, 26 becoming the watchdog of Dengist leadership. The dramatic shift in the targets of the party’s punitive power was mirrored by the bestowal of different and much broader powers on the CCDI. The supervision of party discipline was no longer preeminently understood as a purification of party ranks from counter-revolutionaries and enemy agents. A more articulate conception emerged, in which counter-revolutionary tendencies and ideological deviations constituted just two of the possible internal challenges to the party’s legitimacy, power, and governing capability. Other challenges were given by overriding institutional lines of authority and command chains, distorting the implementation of party policies related to economic management, the rejuvenation and pro21 Article 2, National Congress of the Chinese Communist Party decision on establishing central and local supervision committees (Zhongguo Gongchandang quangguo daibiao dahui guanyu chengli dangde zhongyang he difang geji jiancha weiyuanhuide jueding 中国共产党 全国国代表大会关于成立党的中央和地方各级监察委员会的决定), issued on 31 March 1955 and effective from the same date. 22 Hereinafter referred to as the Commission. 23 Tenth Plenum of the Eighth Central Committee of the Chinese Communist Party decision on strengthening discipline inspection organs (Zhongguo Gongchandang dibajie zhongyang weiyuanhui dishici quanti huiyi guanyu jiaqiang dangde jiancha jiguande jueding 中国共产党第八节中央委员会第十次全体会议关于加强党的检查机关的决定), issued on 27 September 1962 and effective from the same date. Reproduced in Zhonggong Zhongyang Wenxian Yanjiushi 1992: 572–74. 24 Wei 1993: 171–72. Accordingly, the 1969 Party Statute contains no mention of party discipline organs. 25 For an account of their workings see Yu 1998: 734; 2008. 26 Proclamation of the Third Plenum of the Eleventh Central Committee of the Chinese Communist Party (Zhongguo gongchandang dishiyi jie zhongyang weiyuanhyui disan quantihuiyi gongbao 中国共产党第十一节中央委员会第三全体会议公报), 22 December 1978, reproduced in Zhonggong Zhongyang Wenxian Yanjiushi 1982: 1–18.

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fessionalization of the cadre’s corps, the relationship to Chinese society, foreign affairs, and so on.27

National Congress

Central Committee

CCDI

Military Commission

Political Office

Standing Committee

Secretary General

Secretariat

Central Committee Departments, Offices, Committees, Research Offices

Judicial System

Central State Organs

Figure 3. Central organizational structure of the CCP (simplified), the CCDI and its relation to central party and state organs. Continuous line: leadership relation. Dotted line: supervision. Curved line: institutionalized interference.

27 The beginning of this process can be traced back to 1980, when the Fifth Planum of the Eleventh Party Congress enacted the Criteria on Inner-Party Political Life (Guanyu dangnei zhengzhi shenghuode ruogan zhunce 关于党内政治生活的若干准则), issued on 29 February 1980 and effective from the same date. Reproduced in Zhonggong Zhongyang Dangxiao Dangjian Jiaojiushi 1981: 53–74.

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The 1980s and 1990s saw an increasingly complex and precise definition of party discipline’s substantive content, leading to the birth of the corpus of party legislation and an expansion of the CCDI’s powers, until, in 2003, the CCP Regulations on Discipline Penalties were enacted.28 Rationalization of disciplinary norms and their enforcement mechanisms has affected another crucial concern of party discipline, namely party members’ violations of discipline norms and of criminal legislation. Deng, Jiang, and Hu’s emphasis on governing capability as a question of party survival eventually led to a systemic encroachment of party powers upon criminal legislation, and the birth of a parallel criminal code. 3.1.2 A Parallel Criminal Code Even so, in theory the party jurisdiction extends over a domain different from the state’s jurisdiction. Hence, allegations of criminal behavior by a party member are investigated by state prosecutors. They gather evidence, evaluate the grounds for indictment, formulate hypotheses as to whether a given behavior meets the statutory elements of a criminal offense, and present their bill of indictment to a court. The responsibility of determining whether accusations are substantiated by the facts is with the court. In principle, party discipline and penalties should be used only in addition to criminal punishments, given also that commissions for discipline inspection have the obligation to refer alleged criminal cases to the judicial system.29 In actual practice, three internal quasi-legal mechanisms allow for the suspension of criminal and criminal procedure legislation, carving out a zone of exception. Criminal offenses are thus placed within the scope of party discipline and outside the state’s jurisdiction. First, criminal provisions are replicated by party discipline norms. Second, criminal offenses are redefined as “mistakes” (错误 cuowu) or “minor infractions” (违法行为 weifa xingwei), and it is suggested that they do not meet the threshold of criminal responsibility. Third, judicial organs receive a formal written opinion that can influence the judgment of party members and may

(Zhongguo Gongchandang jilü chufen tiaoli 中国共产党纪律处分条例), issued on 31 December 2003 and effective from the same date, hereinafter referred to as Regulations on Discipline Penalties. 29 Article 37, Regulations on Case Investigation. 28

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result in the majority being punished internally or receiving noncustodial sentences.30 The Criminal Law of the PRC defines 438 crimes.31 The Regulations on Discipline Penalties define 188 violations of discipline, most of which overlap with behaviors proscribed either by the Criminal Law or by the Security Administration Punishments Law. Seven catch-all clauses cover the remaining criminal offenses and violations of public security.32 Therefore, the party exerts jurisdiction on behaviors punishable by criminal penalties, as well as those which are the target of administrative detention, fines, and warnings. The redefinition of criminal offenses as mistakes is more complex and involves a significant lowering of the level of abstraction of legal

See table on page 98. As defined by the Supreme People’s Procuratorate opinion on the use of statutory designations of offenses listed in the special part of the criminal law (Zuigao Renmin Jianchayuan guanyu sheyong xingfa fenze guidingde fanzuide zuimingde yijian 最高人民检察 院关于适用刑法分则规定的犯罪的罪名的意见), issued on 25 December 1997 and effective from the same date. Supreme People’s Court, Supreme People’s Procuratorate supplementary rules on confirming the statutory designations of offenses in the Criminal Law of the People’s Republic of China (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuiminde puchong guiding 最高人民法院、最高人民检察院关于执行《中华人民共和国刑法》确定罪 名的补充规定), issued on 26 March 2002 and effective from the same date. Supreme People’s Court and the Supreme People’s Procuratorate supplementary rules on confirming the statutory designations of offenses in the Criminal Law of the People’s Republic of China (2) (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuiminde puchong guiding (er) 最高人民法 院、最高人民检察院关于执行《中华人民共和国刑法》确定罪名的补充规定( 二)), issued on 21 August 2003 and effective from the same date. Supreme People’s Court and Supreme People’s Procuratorate supplementary rules on using the statutory designations of offenses of the Criminal Law of the People’s Republic of China (3) (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuiminde puchong guiding (san) 最高人民法院、最高人民检察院 关于执行《中华人民共和国刑法》确定罪名的补充规定(三)), issued on 25 October 2007 and effective from the same date. Supreme People´s Court and Supreme People’s Procuratorate supplementary rules on using the statutory designations of offenses of the Criminal Law of the People’s Republic of China (4) (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuimingde puchong guiding (si ) 最高人民法院、最高人民检察院关于执行《中华人 民共和国刑法》确定罪名的补充规定(四)), issued on 14 October 2009 and effective from 16 October 2009. 32 See articles 82, 112, 126, 139, 148, 154 and 173, Regulations on Discipline Penalties. These catch-all clauses can cover crimes listed under the following chapters of the Criminal Law: crimes against the order of socialist market economy, crimes against public security, crimes against the rights of the person and the democratic rights of citizens, crimes against the order of social administration, graft and bribery, and dereliction of duty. 30 31

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norms. Criminal law provisions are, of course, general and abstract in order to make them fit several possible manifestations of a crime. Statutory provisions describe the subjective (mens rea) and objective (actus reus) elements of a crime in general terms. An example is the definition of the crime of graft as the act of “state personnel” who “take advantage of their office to misappropriate, steal, swindle or use other illegal means to acquire state properties.”33 Enumerating one by one the illegal means that could possibly be used to acquire state property and describing the nature of such property and the ways in which it would be used would be cumbersome. Most important, an insufficient abstraction of statutory provisions would allow offenders to escape punishment, by using illegal means not specified by the law. The statutory definitions of several criminal offenses have been transferred into party discipline regulations. Regulations on party discipline, however, do not just repeat provisions drawn from the Criminal Law (CL). They also list various possible ways in which acta rea can occur, with the result that these become something other than criminal offenses. The process can be better illustrated through the following example. Graft is defined by the Regulations on Discipline Penalties as an act by a party member of “tak[ing] advantage of their office to misappropriate, steal, swindle or use other illegal means to acquire state properties.”34 This definition is perfectly in line with the statutory dictate of 382 CL. Along with graft, the Regulations on Penalties also proscribe acta rea as: 1. [T]ak[ing] advantage of one’s office to acquire state, collective or individual property outside of one’s jurisdiction. 2. Taking items of property or obtaining services for free. 3. Using funds from a work unit to pay for relatives’ expenditures. 4. Using funds from a work unit to pay for children’s overseas schooling.35 5. Acquiring state property to establish enterprises. 6. Acquiring state property for illegal purposes.36 7. Using public funds to travel abroad.

33 34 35 36

Article Article Article Article

382, 1996 CL. 83, Regulations on Discipline Penalties. 72, ibid. 73, ibid.

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8. Using public funds to pay for expensive entertainment or fitness club membership. 9. Using public funds to buy real estate for individual use.37 10. Using public funds for other purposes defined as squandering. According to the criminal law, judicial interpretations, and legal precedents each one of these acts constitute the crime of graft. While these behaviors fit the abstract definition of graft provided by article 83 of the Regulations on Discipline Penalties, they are not considered graft, but “mistakes” against “clean governance and self-restraint.”38 The same drafting techniques are used to redefine most conducts proscribed by the criminal law as violations of party discipline. Norms of discipline replicate the statutory definitions of crimes found in the criminal law and contain separate provisions that define the same act as a mistake. In actual practice, graft can fit both the more abstract and the more detailed provision. Which one, then, applies—the one drawn from the criminal law or the one that defines the very same crime as a mistake? In theory, the answer is simple. Given that precise thresholds for criminal liability exist,39 CDIs should refer to relevant judicial interpretations or to criteria adopted by judicial organs. Those conducts that do not meet the threshold of criminal responsibility should be punished by party discipline penalties, while all the other cases should be referred to the procuracy. CDI officials are capable of such reasoning because they normally interpret party discipline provisions in exactly the same way as a legal professional would understand criminal law provisions.40 Furthermore, provincial and central CDI officials often possess law degrees. Yet they contend that provisions setting the thresholds for criminal responsibility can be binding on judicial organs but not on CDIs: “Criteria to file a case can be used as a reference . . . they are

Article 79, Regulations on discipline penalties. Such acts are proscribed by those discipline regulations dealing with clean governance and self-restraint (廉洁自律 liangjie zilü). Also, the Regulations on Discipline Penalties list them under the category of violations of clean governance rather than under the category of graft and bribery (贪污贿赂 tanwu huilu). 39 Thresholds are set using four criteria: the amount (量化 lianghua) of property involved in a crime, the circumstances (情节 qingjie) under which an act was committed, the means (手段 shouduan) used, and its outcome (后果 houguo). Their specification is found in interpretations issued by the Supreme People’s Court and the Supreme People’s Procuratorates, or by criteria set by the Ministry of Public Security. 40 Zhang 2000: 95–101. 37 38

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relative rather than absolute therefore they are a reference for judicial organs”.41 Party discipline handbooks also mention that In actual practice many offenses meet more than one of these thresholds, as they relate to the amount, circumstances, means or outcome. Therefore cases such as these must be analyzed generally, one must weigh carefully each and every circumstance, and cautiously decide [whether the state law or party norms are relevant to the actual case].42

If it is decided than party rules and regulations apply, the case is handled by the CDI. If the state law applies, judicial organs come into play. In the event a case is referred to judicial organs, CDIs can still determine its outcome. While in the past informal mechanisms may have been used, nowadays formal written instructions can be used. A 1989 CCDI circular stipulates that whenever CDIs find out about a . . . case that needs to be dealt with according to the law by the courts, the procuracy or the police, or whenever a case dealt with by party discipline still needs criminal prosecution . . . they must transfer . . . the case file to the court, the procuracy or public security organs.43

Besides the case file, judicial organs also receive an “opinion.”44 The opinion, to which some recent handbooks refer as a yijianshu (意见书), is an emanation (延伸 yanshen) of the CDI powers, is the documental basis that provides judicial organs with the ground to decide whether to file a case for investigation or not. It embodies the severity of state’s activities, and the binding force of an official document and to a certain extent it also has an influence on the advantage of the person under investigation.45

Yu 2005: 509. Ibid.: 510–11. 43 Article 1, Central Commission for Discipline Inspection, Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security circular on the exchange of case notes among discipline inspection organs, courts, procuracies and public security organs during case investigations (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui, Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’anbu guanyu jilü jiancha jiguan yu fayuan, jianchayuan, gong’an jiguan zai chachu anjian guochengzhong huxiang tigong youguan anjian cailiaode tongzhi 中共中央纪律检查委员会, 最高人民法院, 最高人民检察 院, 公安部关于纪律检查机关与法院, 检察院, 公安机关哉查处案件过程中互相提 供有关案件材料的通知), issued on 17 September 1989 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 115–16, hereinafter referred to as Joint Circular. 44 Article 2, Joint Circular. 45 Yu 2005: 513, italics mine. 41 42

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The opinion contains observations about whether the case is to be filed for investigation or whether it just involves minor matters that can be handled by the party. Judicial organs must conduct their investigation in compliance with the content of such opinion. If a case is first solved by the police or prosecutors, a slightly different procedure applies. “Before the case is handled according to the law,”46 judicial organs must send the case file to the CDI, which makes its decision and then issues the opinion on how to handle the case. Given that judicial organs must pass on to the CDI information about all the measures they subsequently take,47 party organs can virtually eliminate any attempt at independent adjudication. 3.2

Investigative and Detention Powers

In addition to the powers discussed in the preceding paragraphs, CDIs have been also given a range of powers that include but are not limited to the power to conduct “preliminary verification and preliminary examination”48 and investigative powers.49 3.2.1

Historical Antecedents

The use of investigative detention on the politically powerful should be considered not as a creation of Chinese Communists but the adaptation of much earlier practices. Throughout the imperial period, offiArticle 3, Joint Circular. Articles 2, 4, 5, 6, ibid. 48 初步核实 chubu heshi, 初步审查 chubu shencha. Article 44 (4), 2007 Statute: “If a commission for discipline inspection at any level discovers a violation of party discipline by any members of the party committee at the same level, it can conduct a preliminary verification of the facts (初步核实 chubu heshi).” See also 2, Chinese Communist Party Central Commission for Discipline Inspection implementing measures on reiterating [prohibitions] and establishing a five-points supervision system (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu chongshen he jianli dangnei jiandu wuxian zhidude shishi banfa 中共中央纪律检查委员会关于重申和建立党内监督五项制度的实施 办法), issued on 4 February 1997 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 201–6. The difference between preliminary verification and preliminary examination is not clearly articulated. However, the entire phase should last for two months. A one-month extension is possible under certain circumstances. See article 15, Regulations on Case Investigation. 49 Which comprise the powers to file a case for investigation (立案 li’an), conduct investigations, hear cases (审理 shenli), and punish (处理 chuli) those who violate party discipline. 46 47

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cials were bound to observe a code of noblesse oblige, according to which they were required to set an example for commoners.50 The powers to investigate their alleged crimes belonged to the Censorate, yet they could enjoy a series of privileges,51 such as access to the systems of deliberation and petition.52 However, forms of investigative detention could be used on them.53 In 1930 investigative detention was revived by a Red Army regulation.54 Until the end of the Mao era, it targeted internal enemies—alleged enemy agents, spies, and counter-revolutionaries that sneaked into the party to defeat it from the inside. It appears all the more normal, then, that detention powers be wielded by intelligence organs55 directly controlled by the Central Committee, ad hoc commissions, or senior party leaders who, in the name of security, had the prerogative to detain alleged counter-revolutionaries for an indefinite period of time.56 Known under a variety of picturesque names—“confinement” detention in “the room of regret,” and so forth—these powers were enforced in a legal void: the CCP

50 All of the dynastic codes that have come down to us stipulated heavier punishments for officials who appropriated imperial property, engaged in extra-marital relationships, and—generally speaking—violated stricter codes of conducts. 51 These involved avoiding the monetary redemption of corporal punishments, the more or less automatic reduction of sentences, and the possibility to avoid punishment by being disenrolled, dismissed, or by relinquishing official titles. Officials could not be interrogated by regular judicial officials. 52 Both of these very articulated processes eventually involved the imperial approval of interrogation and of the sentence. These privileges have been documented with regards to the following dynasties: Liang, Chen, Qi, Later Zhou, and other dynasties that existed during the Period of Disunion, Sui, Tang, Song, Yuan, Ming, and Qing. See Balasz 1954; Ch’ü 1961; Bodde and Morris 1967; Jones 1994; Jiang 2005. 53 In early imperial China, they could be subjected to a form of detention known as “drawing (a circle) on the ground (as) a prison” (画地为牢 huadi weilao), which allowed them a certain freedom of movement. Huadi weilao refers to mild forms of punishment used on officials as far back as the Han dynasty. Tung-Tsu Ch’ü reports how they had to wear a white hat and carry a sword to signal they were being investigated for alleged crimes. Ch’ü 1961.This expression has survived in modern Chinese as a metaphor for self-imposed limitations. I would like to thank an anonymous referee for pointing out to me the existence of continuities that went back to the Yan’an era and even further back to the imperial period. 54 Known as confinement (禁闭 jinbi), this measure was abolished in 1950, and reintroduced in the People’s Liberation Army in 1998 in a slightly different form. See Wang 1989. 55 As the Special Section (特科 teke) and the Social Ministry (社会部 shehuibu). See Xue 1999; You 1999. 56 For an historical account, see Wang 2004.

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investigative powers over its members had not yet been defined, and relevant procedural norms did not exist either. As extra-legal detention yielded information of some ostensible value, it could be expected that once the CCP power had turned from revolutionary to sovereign, these or similar measures would persist. Coercive interrogation often produced the oral evidence interrogators were looking for, invariably proving the existence of widespread counter-revolutionary activity. The resilience of this and other threats—whether actual or imagined—led to the continuing use of extra-legal detention. The only difference was that after 1949 the practice was designated with the umbrella term “solitary confinement for investigation.”57 As it had happened in base areas, solitary confinement was decided and enforced by political organs. During the Cultural Revolution, its use took place in connection to political crimes, investigated by so-called special investigation groups, another kind of ad hoc party intelligence task force. These practices were outlawed between 1978 and 1980. In October 1978, the Supreme People’s Court issued a reply that prohibited solitary confinement.58 In November of the same year, Hua Guofeng stated that no more “special investigation groups” would be established to question cadres.59 The Supreme People’s Court reiterated these prohibitions in the spring of 1979 and again in 1980.60 In the meantime, 57 These covered all the detention measures used to investigate alleged crimes and political and ideological deviations. “Administrative surveillance” and other forms of detention that bore superficial similarities to shelter for examination were in reality more similar to geli. These measures were known under diverse names, such as “study classes for unlawful elements,” “mass dictatorship teams,” and “people’s militia headquarters.” Supreme People’s Court reply on offsetting the term of “solitary confinement for investigation” against the term of a criminal sentence (Zuigao Renmin Fayuan guanyu zuifan zai daibuqian bei “geli shencha” de riqi kefou zhedi xingqi de fuhan 最高人民法院 关于罪犯在逮捕前被“隔离审查”的日期可否折抵刑期的复函), issued on 17 April 1979 and effective from the same date. Supreme People’s Court reply on offsetting the term of solitary confinement for investigation against the term of a criminal sentence (Zuigao Renmin Fayuan guanyu zuifan bei shourong shencha riqi zhedi xingqi wentide pifu 最高人 民法院关于罪犯被收容离审查的日折抵问题的批复), issued on 11 June 1979 and effective from the same date. 58 Supreme People’s Court reply on offsetting the term spent under solitary confinement for investigation in a detention center against the term of a criminal sentence (Zuigao Renmin fayuan guanyu zuifan beibu qian zai kanshousuo geli shencha riqi kefou zhedi xingqide pifu 最高人民法院关于罪犯被捕前在看守所隔离审查日期可否折抵刑期的 批复), issued on 21 October 1978 and effective from the same date. 59 Wang 1989; Lieberthal and Dickson 1989. 60 Supreme People’s Court reply on offsetting the term of solitary confinement for investigation against the term of a criminal sentence in criminal cases cleared during

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the Criminal Procedure Law was issued, vesting public security organs with the power to detain criminal suspects. No other organ of the state enjoyed the power to deprive a criminal suspect of his personal freedom, a fundamental right guaranteed by the Constitution.61 All cases involving detention under solitary confinement were filed with the second section of the CCDI, which was responsible for their review and reversal. If reviewing these cases was relatively easy, it soon became clear that forces more powerful than the law were at play. Documental evidence points to the persistence of solitary confinement, which by the 1980s62 and early 1990s63 had become an informal practice followed by party committees and CDIs.64 Once more, the need to preserve the life of the party resulted in disregarding the prohibition of this form of arbitrary detention. The dilution of ideology that came with legal and economic reform did not mean that the enemy within disappeared. As long as the party’s legitimacy was grounded on ideology and revolutionary fervor, talking about counter-revolutionaries and spies made sense. What other kind of enemy could have existed in a revolutionary regime? As soon as political legitimacy found a renewed foundation in governmental performance, the enemy had to somehow change, and coincide with those who ate away at the regime’s new foundation. The use of public power for private gain—something pervasive that hampered and distorted governmental performance—was now perceived as a much more potent threat than in the 1950s. High ranking positions

the struggle against the “Gang of Four” (Zuigao Renmin Fayuan guanyu shenpi “sirenbang” douzhengzhong qingcha chulaide fanzui fenzi zai daibuqian bei geli shencha de riqi kefou zhedi xingqide pifu 最高人民法院关于审批 “四人帮” 斗争中清查出来的犯罪分子在逮捕 前被隔离审查的日期可否折抵刑期的批复), issued on 17 April 1980 and effective from the same date. 61 Article 37, 1982 Constitution; article 89, 1954 Constitution; article 29, 1975 Constitution; article 47, 1978 Constitution. 62 Zhang 1996: 280–83. 63 Supreme People’s Court Research Office telephone reply on offsetting the term of solitary confinement for investigation against the term of a criminal sentence (Zuigao renmin fayuan yanjiushi guanyu geli shencha riqi kefou zhedi xingqi wenti de dianhua dafu 最高 人民法院研究室关于隔离审查日期可否折抵刑期问题的电话答复), issued on 17 December 1991 and effective from the same date. 64 A 1987 CCDI procedural regulation does not mention them. See Chinese Communist Party Central Commission for Discipline Inspection regulations on case examination work (Zhongguo Gongchandang Jilü jiancha jiguan anjian shenli gongzuo tiaoli 中国共产 党纪律检查机关案件审理工作条例), issued on 14 July 1987 and effective from the same date. Reproduced in Zhongyang Jiwei Jianchabu Faguishi, Xuanjiaoshi 1996: 321–31.

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held by “some targets of anti-corruption”65 and their possible influence on the judicial system justified the use of extra-legal detention as the most appropriate investigative measure. The law, of course, said something different. Article 37 of the PRC Constitution guaranteed the personal freedom also of those under investigation for their alleged infringement of party regulations and rules.66 Moreover CDIs only had the power to summon officials suspected of corruption to account for their actions. Flouting constitutional and criminal procedural dictates, party discipline summons were gradually turned to a form of detention. Times of emergency, so the claim went, called for the use of exceptional measures. .

3.2.2

From Summons to Investigative Detention

Before 1990, supervisory organs could summon civil servants suspected of corruption, provided they acted through the police.67 In 1990, the Rules on Administrative Supervision gave them the power to investigate civil servants suspected of corruption or misconduct and summon them. Administrative supervisory organs enjoyed the power to “order those concerned to appear at a specific time and place to provide an explanation of the matters under investigations.”68 In the political jargon, the “specific time” and the “specific place” where a civil ser-

Ouyang 2006. This point has been underscored also by Liu 2006. Article 4, Chinese Communist Party regulations on guaranteeing the rights of members of the Communist Party of China (Zhongguo Gongchandang dangyuan quanli baozhan tiaoli 中国共产党党员权利保障条例), issued on 22 September 2004 and effective from the same date. Reproduced in Zhongguo Gongchandang dangyuan quanli baozhan tiaoli 2004. Preamble, Central Commission for Discipline Inspection opinion about party discipline organs investigating cases in strict compliance with the law and discipline norms (Zhongyang Jilü jiancha weiyuanhui guanyu jijian jiancha jiguan yangge yiji yifa ban’ande yijian 中央纪律检查委员会关于纪检监察机关严格依纪依法办案的意见), 2005. No issue date available Reproduced in Xuyixian 2009. 67 Article 2, Ministry of Supervision and Ministry of Public Security circular on the coordination between public security organs and supervision organs in the investigation and handling of cases (Jianchabu, Gong’anbu guanyu jiancha jiguan zai chaban anjianzhong gong’an jiguan yuyi xiezhu peihede wentide tongzhi 监察部, 公安部关于监察机关在查 办案件中公安机关予以协助配合的问题的通知), issued on 16 November 1989 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 117–18. 68 Article 21 (5) People’s Republic of China regulations on administrative supervision (Zhonghua Renmin Gongheguo xingzheng jiancha tiaoli 中华人民共和国行政监察条例), issued on 9 December 1990 and effective from the same date. Repealed on 9 May 1997. Reproduced in Zhongguo Falü Nianjian Bianjibu 1991: 242–45, hereinafter referred to as 1990 Regulations. 65 66

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vant could be summoned were referred to as the “two specifics” (lianggui). Administrative supervisory organs were reestablished in 1986 as departments of the people’s governments.69 Their main responsibilities were monitoring the behavior of civil servants,70 enforcing regulations on administrative discipline, and punishing violations of state laws or discipline norms. Therefore, lianggui was used only on state officials, not party members, as the latter were under the jurisdiction of CDIs. Yet the lack of separation between administrative and political powers resulted in most state offices being held by party members. Thus, lianggui was used to question civil servants who concurrently held party membership. On the other hand, party members who did not hold any state office would not be subjected to lianggui. Vesting supervisory organs with such a power was necessary to strengthen them,71 vis-à-vis the much more authoritative CDIs, thereby attempting to place greater constraints on corrupt officials. This attempt was, however, of little use; in 1993 supervisory organs were merged with CDIs. The merger took place according to the principle of “two signs, one team,” and supervision officers were transferred to the commissions, where they continued to monitor civil servants.72 The merger extended the power to use lianggui to CDIs. In 1997 lianggui met the formal standards of a thin rule of law as the Regulations on Administrative Supervision were replaced by the Law on Administrative Supervision. According to the Law, supervisory organs still had the power to “order personnel suspected of violations of administrative discipline to appear at a designated time and place to provide an explanation of the matters under investigation”.73 In contrast to the 1990 Regulations, the 1997 Law

69 Standing Committee of the National People’s Congress decision on establishing the Ministry of Supervision of the People’s Republic of China (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu sheli Zhonghua Renmin Gongheguo Jianchabude jueding 中华 人民共和国代表大会常务委员会关于设立中华人民共和国监察部的决定), issued on 2 December 1986 and effective from the same date. Reproduced in Zhonghua Renmin Gongheguo Jianchabu 1993: 3–4. On this and other organs responsible for administrative monitoring, see Huang 1995. 70 Article 14, 1990 Regulations. 71 Yan 2004: 168–71. 72 Supervision organs continued to exist in name only, in practice they became a section of CDIs. 73 Article 20 (3), People’s Republic of China Law on Administrative Supervision (Zhonghua Renmin Gongheguo xingzheng jianchafa 中华人民共和国行政监察法), issued on 9 May 1997 and effective from the same date, hereinafter referred to as 1997 Law. The place and the time that previously had been referred to as “specific” became

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prohibited the use of liangzhi as a form of detention.74 As this measure was a summons, cadres were reminded that the hour, day, month, and year when a suspect was summoned did not mark the beginning of his detention. They indicated only when a suspect had to meet discipline inspection cadres. The rationale of this provision was very clear. CDIs had the powers to gather evidence, such as statements by a suspect or by any other person who may be familiar with a case under investigation. To make a statement in front of a CDI official, one needed either to go to the official’s office or to be visited by that official. Nothing was, in principle, wrong with this rationale. A more sinister development took place as provisions about lianggui were moved into regulations on party discipline. 3.2.3

From Investigative Detention to Shuanggui

The move occurred when the CCDI issued the Regulations on the Work of Case Investigation. The Regulations on Case Investigation gave CDIs the power to order party cadres to appear at a “specific time” and a “specific place” to account for their actions. Article 28. All organs and individuals who are familiar with the circumstances of a case have the duty to provide their testimony. Investigation groups enjoy the right to adopt the following measures in accordance with procedural rules, to conduct investigation and gather evidence, and concerned organizations and individuals must provide evidence which conforms to the truth, without refusing or obstructing [investigations]. (. . .) (3) Require the concerned personnel to appear at a designated time and place to provide an explanation of problems pertaining to the case.75

The summons was almost immediately referred to as shuanggui, a contraction of the two “specifics” as spelled out in the Rules on Investigation. Subsequently, the CCDI issued five internal circulations norms

“designated”. Thus, such summons became known by the contraction of liangzhi. They applied to “state officials and other personnel appointed by organs of the state administration”. 74 It was “not to be used as detention or as a disguised detention” (但是不得对其 实行拘禁或者变相拘禁 budei duiqi shixing jujin huozhe bianxiang jujin). Ibid. Translation mine. 75 Article 28 (3), Regulations on Case Investigation.

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on this measure,76 which prove how this summons had been turned into a form of detention. Once more, a preexisting fact was turned into a quasi-law, in complete disregard for the fact that the CCDI has no formal power to legislate on detention.77 Shuanggui is broader in scope than liangzhi. While liangzhi could only be used with civil servants, shuanggui could be applied to “individuals possessing knowledge of the circumstances of a case”. This wording has been interpreted to apply to party members as well as individuals not affiliated with the party.78 Even an ordinary citizen could be put under shuanggui if a CDI believed that person could provide valuable information on a case under investigation. A second circular, “Regarding Some Problems in the Use of Liangzhi and Lianggui by Commissions for Discipline Inspection,” was issued in 1998.79 The circular stated plainly that shuanggui 76 Norms on shuanggui are not public. In mainland China, attempts at publicizing them are met with censorship. An instance is given by a recent discussion on the Tianya forum, in which it was claimed that norms “refer to affairs internal to social organizations, not to state organs therefore they must not be posted on the internet.” . Last accessed 20 March 2009, on file with the author. 77 This power belongs to the National People’s Congress only: Legislative power belongs to the NPC and to its Standing Committee. . . . The following matters can be regulated by law only: 4. Crime and punishment. 5. Sanctions resulting in citizens being deprived of their political rights, and coercive measures resulting in a limitation of the freedom of their person. Articles 7, 8 (4) (5), People’s Republic of China Law on Law-Making (Zhonghua Renmin Gongheguo Lifafa 中华人民共和国立法法), issued on 15 March 2000 and effective from 1 July 2000. 78 Article 28, Regulations on Case Investigation, stating that this investigative measure is applicable to all those individuals and organizations possessing knowledge about the circumstances of a case. The CCDI Legal Office has officially interpreted article 28 in this sense: The expression “individuals possessing knowledge of the circumstances of a case” includes party organs and organs external to the party, party members and nonparty personnel. All of them have the duty to provide evidence. Party members who refuse to provide testimony or intentionally provide false information ought [to], if circumstances are serious, receive discipline sanctions in accordance with relevant provisions. CDIs can propose that relevant organ prosecute nonparty personnel who refuse to provide testimony or intentionally provide false information.” Zhongjiang Jiwei Faguishi, Jianchabu Faguisi 2003: 61. Translation mine. 79 Circular regarding some problems in the lawful use of “liangzhi” and “lianggui” by Commissions for Discipline Inspection (Guanyu jijian jiancha jiguan yifa caiyong “liangzhi”, “lianggui” cuoshi ruogan wentide tongzhi 关于纪检监察机关依法采用 “两指”, “两规” 措施若干问题的通知), issued on 5 June 1998 and effective from the same date. Reproduced in Zhonggong Zhongyang Jiwei Faguishi and Jianchabu Faguishi 1998: 723–24.

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was not be used as a form of detention or disguised detention and instructed CDIs at all levels to stop immediately the establishing of detention centers. In fact, between 1994 and 1998, CDIs had begun to use shuanggui to deprive suspects of their personal freedom. In some cases, CDIs detained party members in facilities managed by public security organs. Otherwise, makeshift detention centers were created just for the occasion. The prohibition was short-lived. In January 2000, the General Office of the CCDI issued a document pointing to a radical change. The “Experimental Measures on the Use of Lianggui”80 allowed the commissions to detain CCP members under investigation. At the same time, it tried to regulate the use of this form of investigative detention. Shuanggui could be used only by commissions at the county level and above.81 Commissions were now allowed to detain officials in two kinds of cases: “important” and “complex” cases.82 Important cases were those involving officials at the county level rank or above. Complex cases were those that involved a conspiracy among officials and/or agencies of the party-state. But shuanggui could not be used in all important and complex cases. CDIs had to have already gathered evidence proving the commission of acts punishable by party discipline penalties. This evidence had to point to the existence of violations of party discipline, different from the ones under investigation. In addi-

80 Experimental measures on the use of “lianggui” by Commissions for Discipline Inspection ( Jijian jiancha jiguan shiyong “lianggui” cuoshide banfa (shixing) 纪检监察机关使用 “两规” 措施的办法试行), issued on 1 January 2000 and effective from the same date. Reproduced in Zhonggong Sichuansheng jiwei zhu jiaotongting jijianzu and Sichuansheng jianchating zhu jiaotongting jianchazu 2003: 140–142. 81 This document also contains provisions on the procedure that CDIs below the county level have to follow in the implementation of shuanggui. The power to use this measure is vested exclusively in CDIs at the county level and above. Organs at the grassroots level should send a request to county-level CDIs whenever they deem necessary to detain a suspect. 82 Cases can be classified as “big” ones according to the amount of sums they involve. For instance, a case of graft can be big if it involves the subtraction of more than RMB 500,000, while a case of temporary misappropriation of public funds is considered big if the sums involved exceed RMB 1,000,000. Other considerations that may lead to consider a case big, important, or complex pertain to the number of persons involved, the means used to commit the crimes, and so on. See Supreme People’s Procuratorate circular on intensifying the work of investigating and dealing with big and important cases (Zuigao Renmin Jianchayuan guanyu jinyibu jiaqiang da’an yao’an chachu gongzuode tongzhi 最高人民检察院关于进一步加强大案要案查处工作的 通知), issued on 4 November 1993 and effective from the same date. Reproduced in Zuigao Renmin Jianchayuan 1993: 29–30. jjjj

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tion to these two conditions, one of the following had to be present: the chance that suspects may fabricate a confession; or the possibility that a suspect may retract his confession, flee abroad, destroy or fabricate evidence, or obstruct investigations in any other possible way. The Experimental Measures should have restricted shuanggui’s scope of application significantly, as the conditions they set were much more restrictive than those which allowed state organs to detain a suspect prior to formal arrest.83 Also while any criminal suspect could be detained by the police, only a fraction of party members could be put under shuanggui. Besides, party members had to be suspected of multiple discipline violations, at least one of which had been already proven by CDIs. Meeting these conditions was not easy. As far as graft, misappropriation, and passive bribery are concerned, a general guideline is that evidence needs to prove the theft or illicit exchange of sums above RMB 5,000.84 Other violations of discipline, such as adultery, are infinitely more difficult to prove. In 2000, time limits for shuanggui had not been set yet. The Experimental Measure did not encourage local organs to detain officials for an excessive period of time, although it intimated that their detention should not last for too short a time either. Approval procedures were straightforward. The decision to conduct shuanggui rested solely with CDIs secretaries.85 Specifications Article 61, CPL. The threshold of criminal liability in cases of corruption is RMB 5,000, as set by the Chinese Communist Party Central Commission for Discipline Inspection reply on the monetary threshold of discipline sanctions for those responsible of the mistakes of graft and bribery (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu dui fanyou tanwu, huilu cuowu dangji chufende shu’e jiexiang wentide qingshide dafu 中共中央纪律检查 委员会关于对犯有贪污, 贿赂错误党纪处分的数额界限问题的请示的答复), issued on 1 September 1997 and effective from the same date, hereinafter referred to as Reply on monetary threshold. Reproduced in Dangzheng ganbu dangnei jiandu he jilü chufen guiding 2004: 222. This threshold was raised in 1997, as before it had been set to RMB 2,000. See Chinese Communist Party Central Commission for Discipline Inspection experimental rules on punishing violations of the law and of discipline committed by party member during their economic activities (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu gongchan dangyuan zai jingji fangmiande weifa weiji chufende ruogan guiding shixing 中共中央纪律检查委员会关于共产党员在经济方面的违法违纪处分 的若干规定实行), issued on 1 July 1990 and effective from the same date. Reproduced in Zhongyang jiwei jijian jiancha yanjiusuo 2002: 264–76. 85 Or it rested with the deputy secretary leading investigations on a case. Zhonggong Sichuansheng jiwei zhu jiaotongting jijianzu and Sichuansheng jianchating zhu jiaotongting jianchazu 2003: 141–42. Of course, this is the very simple approval procedure existing before 2001, on paper. If a senior figure, such as the secretary or the deputy secretary, was involved, then exceptions to this procedure had to be made, and involve the party committee, higher-level party organs or ad hoc investigative 83 84

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about the place where suspects could be detained were vague. Any place CDIs deemed suitable to detain an official could be used as a detention facility. Although some minor clarifications were made in September 2000,86 procedural norms were, on the whole, set by party regulations issued between 2001 and 2005. In 2001, CCDI Document no. 15, “Circular on Further Standardising Liangzhi”87 posed rules about the scope of application of shuanggui, its time limits, approval procedures, and the facilities that can be used to enforce it. The scope of application of shuanggui was limited to party members. Ordinary citizens and civil servants not holding a party membership could no longer be detained under this measure.88 Before 2001, shuanggui could also be used on potential witnesses, who in most instances would hesitate to disclose any information to CDIs for fear of reprisals. Thus, this measure was a benign attempt to protect their anonymity. The questioning of Tao Mi illustrates this situation.89 Shuanggui was used on her, and for “over two months” Tao had to live in a hotel room that “she was not free to leave.”90 CDI officials taped her lengthy account of the Yuanhua case. This taped evidence was later examined by Canadian forensic experts who concluded that Tao had not been subjected to coercive interrogation. Document no. 15 signalled a growing concern with the excessive length of detention under shuangtask forces regardless of what norms said. In practice, even this exceptional measure could be made exceptions to. 86 These involved the administrative rank of organs that were allowed to use shuanggui. Chinese Communist Party Central Commission for Discipline Inspection reply to the question on the use of “lianggui” by commissions for discipline inspection established in professional units directly controlled by ministries and provinces (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu sheng, bu zhishu shiye danwei jiwei, jijianzu kefou shiyong ‘lianggui’ cuoshide dafu 中共中央纪律检查委员会关于省, 部直属事业单位纪 委, 纪检组可否使用 “两规” 措施的答复), issued on 4 September 2000 and effective from the same date. Reproduced in Zhonggong Zhongyang Jiwei Faguishi and Jianchabu Faguishi 2000: 758. 87 Chinese Communist Party Central Committee, Central Commission for Discipline Inspection, Circular on further standardising “liangzhi” (Zhonggong Zhongyang Jiwei guanyu jinyibu guifan shiyong “liangzhi” cuoshide tongzhi 中共中央纪委关于进一步规范使 用“两指”措施的通知), issued on 28 September 2001 and effective from the same date. Reproduced in Zhonggong Sichuansheng jiwei zhu jiaotongting jijianzu and Sichuansheng jianchting zhu jiaotongting jianchazu 2003: 144–47. 88 State officials who are not party members cannot be detained under shuanggui, but, they can be detained under liangzhi, given that provisions of article 20 (3) of the Law on Administrative Supervision specifically apply to them. 89 Tao was the secretary of Zeng Mingna, who was the wife of Xiamen’s smuggling scandal mastermind, Lai Changxing. 90 Immigration and Refugee Board of Canada 2002.

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gui, even though it did not set any precise time limits. Rather, it simply instructed CDIs to determine the duration of shuanggui in advance. An extension could be applied for to CDIs standing committees if the first period of detention did not result in the suspect providing valuable and usable information about his or others’ alleged crimes. Clearly, the duration of shuanggui could still be extended at will, because the circular did not stipulate a limit to the number of extensions that could be requested and obtained. Strict time limits were introduced only in 2005. Shuanggui could last for an initial term of three months, during which detainees were allowed to communicate with their relatives.91 If three months were not sufficient to acquire the evidence needed to solve a case, CDIs could obtain a three-months extension. This brought the total duration of shuanggui to no more than six months, which should suffice to obtain a confession or to gather evidence. The lifting of shuanggui did not necessarily mean a release of the party member under investigation. If CDIs believed that the evidence they had collected pointed to the possible commission of a crime, then an arrest warrant was issued by the procuratorate, and shuanggui was converted into an arrest. The detainee was simply transferred from one detention facility to another, as his case was referred to judicial organs.92 If found guilty by a court, he was then transferred to a prison.93 If CDIs believed the detainee had violated only party discipline, he was released and punished with party discipline penalties. Those detainees who were found not guilty of any violation of party discipline were released. Until 2001, shuanggui could be approved by a decision (决定 jueding) by the CDI secretary. By introducing a more complex approval procedure, the CCDI signaled its will to control shuanggui. Nowadays, use of this form of investigative detention must be approved by province-level CDIs. A district-level CDI wishing to use shuanggui has first to convene a meeting of its standing committee,94 91 Until 2005, any form of communication with relatives was in theory strictly forbidden. 92 It is to be noticed how in practice prosecutors can, and indeed do, form joint investigation groups with party discipline organs. In some cases, the use of shuanggui is formally requested by them, to bypass the time limits allowed for by 1996 CPL. 93 Crimes of corruption are not among the offenses punishable by reeducation through labor, so this form of detention is never used on public officials guilty of those specific crimes. Common crimes committed by public officials, on the other hand, do fall within the scope of application of reeducation through labor. 94 Chinese Communist Party Central Commission for Discipline Inspection opinion on strengthening the coordination in case investigation and further improving and

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which deliberates upon the matter. The CDI standing committee then has to send a request for instruction to the same level’s party committee. The request is examined and answered by the party secretary, who has to submit his answer to the next-higher level CDI for review and approval. The current approval procedure is still biased, although it involves more decision makers and the supervision of province-level CDIs. The most concrete risk is that the party secretary who has to examine the request to use shuanggui may be corrupt. To obviate this possibility, an additional supervisory mechanism has been introduced. The approval procedure must take place at the provincial level whenever the party secretary, his relatives, or any of its close associates are to be detained. Furthermore, organization departments have to be notified whenever shuanggui is enforced.95 All documentation regarding cases of shuanggui must be filed to province-level CDIs who, in turn, must file them to the CCDI. The filing of cases to the CCDI started in 2001,96 but it took five years for the CCDI to start actually receiving information on the use of shuanggui by local organs.97 This has made possible the collection of statistical data on the use of this measure.98 Specifications abut the facilities where suspects could be held were introduced gradually. In 2000, the Experimental Measure stated that suspects could be detained in any place the commissions deemed suitable. In 2005, the CCDI ordered that suspects be held in rooms in single-story buildings or in rooms on the first floor of multi-story

standardizing lianggui (Zhonggong Zhongyang Jiwei guanyu wanshan chaban anjian xietiao jizhi jinyibu gaijin he guifan lianggui cuoshide yijian 中央纪委关于完善查办案件协调机制已进 一步改进和规范两规措施的意见), issued on 20 April 2005 and effective from the same date, hereinafter referred to as Opinion on lianggui. On file with the author. 95 This is necessary to ensure a smooth flow of information among party organs. In fact, there have been a few instances of cadres being promoted while they were under shuanggui. 96 A document that required CDIs at the provincial level and below to report the number of cases in which shuanggui was used was issued in November 2001. Ministry of Construction Section of the Central Committee for Discipline Inspection circular on comrade Yao Bing’s speech at the working meeting of discipline inspection groups in the construction sector of Eastern and Central China (Zhongyang Jiwei zhu Jianshebu jijianzu guanyu yinfa Yao Bing tongzhi zai Huadong, Zhongnan diqu jianshe xitong jijian jiancha gongzuo yanjiuhui shangde jianghuade tongzhi 中央纪委驻建设部纪检组关于印发耀彬 同志在华东, 中南地区建设系统纪检监察工拙研究会上的讲话的通知), . Last accessed on 12 January 2005. 97 In 2001, an opinion requiring CDIs at the provincial and district level to file cases of shuanggui to the CCDI was issued. Relevant province-level regulations were published in the first months of 2006. See Opinion on lianggui. 98 This information is however classified as a party secret.

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buildings.99 The rationale was to prevent suicide attempts. Norms on shuanggui contain no expressed rights to habeas corpus. Redress measures and administrative reconsideration of shuanggui are not possible. The reason is very simple: CDIs are party organs, not administrative bodies, and the Administrative Litigation Law, which could provide a basis for appealing against a shuanggui decision, applies only to detention measures enacted by administrative organs.100 Filing an appeal would not be possible even if shuanggui was represented as an administrative investigative measure, (行政侦查措施 xingzheng zhencha cuoshi), as it is not possible to appeal against the adoption of this kind of measures.101 The legislative conflicts that can be observed in other areas of the legal system do not seem to exist with regards to this measure. Localities have shown a high degree of compliance with the regulatory framework on shuanggui. The content of all central level regulations has been replicated by local regulations, as those issued by Daxing County CDI of Beijing Municipality,102 Shaanxi province CDI,103 Shijiazhuang CDI,104 besides other district-level CDIs.105 Opinion on lianggui. Article 2, People’s Republic of China Law on Administrative Litigation (Zhonghua Renmin Gongheguo xingzheng susongfa 中华人民共和国行政诉讼法), issued on 4 April 1989 and effective from 1 October 1990. 101 Supreme People’s Court Administrative Section telephone reply on whether litigation cases filed by those who have been subjected to house or bodily searches by public security organs in the absence of the statutory procedure to file a case can be accepted by courts as administrative cases. (Zuigao Renmin Fayuan Xingzheng Shenpanting guanyu gong’an jiguan weiju fading li’an soucha shouxu dui gongmin jinxing zhuzhai renshen soucha bei soucharen tiqi susong renmin fayuan kefou an xingzheng anjian shouli wentide dianhua dafu 最高人民法院行政审判庭关于公安机关未具法定立案搜查手续对公民进行住 宅人身搜查被搜查人提起诉讼人民法院可否按行政案件收理问题的电话答复), issued on 18 June 1991 and effective from the same date. 102 Summarised in Zhonggong Beijingshi Jiwei, Beijingshi Jianchaju 2005. On file with the author. 103 Shaanxi Province Party Committee Commission for Discipline Inspection measures on implementing the CCDI opinion on strengthening the coordination mechanisms in case investigation and on further regulating the measure of lianggui (Zhonggong Shaanxisheng Jilü Jiancha Weiyuanhui guanyu guanche shishi Zhongyang Jiwei guanyu wanshan chaban anjian xietiao jizhi, jinyibu gaijin he guifan lianggui cuoshide yijian shishi banfa 中共陕西 省纪律检查委员会关于贯彻实施中央纪委关于完善查办案件协调机制, 进一步改 进和规范两规措施的意见实施办法), issued on 11 January 2006 and effective from the same date. On file with the author. 104 Shijiazhuang Commission for Discipline Inspection and Shijiazhuang Supervision Office rules on further standardizing the use of lianggui and liangzhi (Shijiazhuangshi jiwei, Shijiazhuangshi Jianchaju guanyu jinyibu guifan shiyong lianggui, liangzhi cuoshide guiding 石家庄市纪委, 石家庄市监察局关于进一步规范使用两规, 两指措施的规定), issued on 25 May 2004 and effective from the same date. Reproduced in Shijiazhuang Weishengting 2007. 105 Zhonggong Guanyangqu jiwei, jianchaju. 2003. 99

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chapter three 3.3 Why Shuanggui?

The CCDI has openly stated that shuanggui is an extralegal measure.106 The official position on this measure has never denied the existence of serious legislative conflicts between regulations on shuanggui and the Constitution of the CCP, the Constitution of the PRC, the Criminal Procedure Law, and the Law on Legislation. The main argument used to justify shuanggui relates to the presence of extraordinary circumstances, as officials’ power to obstruct investigation, the launch of anti-corruption campaigns, and the difficulty that complex forms of corruption pose to investigations. Official commentaries aside,107 it is widely held that shuanggui is the only truly effective way to investigate crimes by CCP officials. The use of shuanggui makes it more difficult to obstruct investigations, as officials cannot communicate with their accomplices.108 Also, isolating party officials for investigation can avoid their possible interference on a judicial system still subjected to the party’s leadership. Moreover, shuanggui has been justified by referring to restrictions on civil liberties enacted by England, the United States, and other Western governments in the wake of 9/11. The logic of this argument postulates that in times of emergency a subject can be stripped of the right to personal freedom and procedural rights. Party members, too, can be reduced to bare life. While they may enjoy conditions better than those of a vagrant, a beggar, or an ordinary criminal suspect, they are, nonetheless, placed outside of the law’s protection. The difference between these groups can then be reduced to the fact that while an ordinary criminal suspect may be tortured in a filthy cell, a party cadre may be coercively interrogated in an elegant hotel room. The choice of whether to use coercion or not depends not on the law, but on the will of those who enjoy power over these suspects.109

106 107

2003.

Li Yongzhong 2003. Han 2002. The same point is underscored in a more explicit way by Tang

108 In reality, this does not always happen. *** told this author that when a relative of his was “shuanggui’d a little”, he got in touch with colleagues at the CDI to make sure he was treated fairly. 109 The little sympathy and cynicism with which the fate of corrupt officials is met proves how observers, commentators, and the public can accept the existence of bare life if this condition affects some group with which they do not identify. The fact that if legal exceptions become the norm anybody can potentially be reduced to bare life is simply overlooked. Discourses on citizens’ rights and judicial fairness then take on a shade of

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In the case of shuanggui, the emergency has nothing to do with variables such as epidemics, mass unrest, or terrorism. It is rather caused by approaches to law enforcement and other structural variables. In a single-party system, corruption has a far greater impact on the ruling party’s legitimacy than in a multiparty system. Anti-corruption campaigns are periodically launched to prove the party’s determination in fighting corruption. During each campaign, CDIs must investigate and punish an ever increasing number of crimes, a requirement similar to the one posed on public security organs. However, while ordinary offenders have relatively little chance to escape investigation by public security organs and then prosecution, the opposite is true for party cadres. Most of the cases reaching the judicial system are dropped by procuratorates and, therefore, never tried by the people’s courts.110 To be filed to the procuratorate, a case needs to meet a threshold of criminal responsibility set to 5,000 yuan.111 Various mechanisms can be used to bypass these provisions. Some of them have been illustrated already in this chapter. Others are provided by local regulations that set higher monetary thresholds; consider bribes as loans, overheads, or administrative costs; or maintain that corrupt officials need not be prosecuted if they return the bribes or rectify their misdeeds.112 The goal is to qualify crimes of corruption as violations of discipline, yet the party still needs to prosecute an ever higher number of officials. A steady increase in figures for prosecution can be observed in all of China’s provinces since the late 1980s.113 The diffusion of statistics showing how more and more cases are punished is believed to function as a deterrent114 and constitutes an indicator of a province’s compliance

hypocrisy, because the admission that exceptions can be made denies the core concepts of rights and equality, and supports sovereign power’s logic of exclusion. 110 Manion 1998. 111 Reply on monetary threshold. 112 There are many instances of this. One of them is provided by Fujian province Xiamen city tax office provisions on stopping the exchange of red envelopes among party and state personnel (Fujiansheng Xiamenshi difang shuiwuju guanyu zhizheng dang he guojia gongzuo renyuan zengsong he jieshou hongbaode zanxing guiding 福建省厦门市 提防税务局关于执政党和国家工作人员赠送和接受红包的暂行规定), on file with the author. 113 This is always followed by a sharp drop, as soon as the central phase of a campaign is over. Zhongguo Jiancha Nianjian Bianjibu 1988–2008. 114 Supreme People’s Procuratorate opinion on strengthening the work on preventing white collar crimes (Zuigao Renmin Jianchayuan guanyu jiaqiang yufang zhiwu fanzui gongzuode yijian 最高人民检察院关于加强预防职务犯罪工作的意见), issued on 29

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with the party center.115 Given that the filing of cases to judicial organs is reviewed and approved by CDIs, the main responsibility for maintaining this upward trend rests with them. CDIs are under pressure to find and process more cases to offset those that will never reach the judicial system. At the same time, party organs cannot allow a thorough investigation of corruption for fear of its destabilizing effect. Neither can they relinquish their dominance over the policing of corruption, lest the party loses an important component of its legitimacy and widespread investigations induce slow-downs in economic growth. Eventually, as CDI handbooks point out, investigations must “obey and serve economic growth.”116 Rather than facing the risk of instability, the party prefers to channel the people’s feelings of distrust and betrayal into the cases of carefully handpicked officials. A clear tension exists between political needs and more neutral policy priorities. Table 1. Corruption cases handled by CDIs117 Year

Reports received

1990 1991 1993 1995 1996 1997 1998 2003 2004 2005 2006 2008 2009

816,884 620,223 818,734 1,634,978 1,800,000 1,826,000 1,612,000 – – – – – 1,318,362

Cases filed for investigation 51,261 52,039 – 155,485 168,398 174,320 142,000 172,511 166,705 147,539 123,849 143,000 140,828

Punished internally

Handed over to procuracies

46,811 50,184 42,195 147,132 165,000 171,127 124,000 174,507 170,850 115,143 97,260 151,000 106,626

4,450 1,855 – 8,353 3,000 3,193 – – – 15,177 3,530 – –

January 1999 and effective from the same date. Reproduced in Zhongguo Jiancha Nianjian Bianjibu 2000: 444–46. 115 Prosecution figures show only a few deviations from this trend. Whenever such deviations occurred, non compliant provinces were immediately reined in. During the 1993–1997 anti-corruption campaign, only eight provinces deviated from this general trend, spurring investigations by central-level officials. Zhongguo Jiancha Nianjian Bianjibu 1999: 277–80. 116 For a concrete illustration of this principle see Sun 2005: 174 and ff. 117 Zhongguo Falü Nianjian Bianjibu 1991, 1992, 1996, 1998; Banyuetan Neibuban 1997: 7–8; Zhongguo Xinwenwang 2005; Xinhuawang 2009; Wu 2006, 2007; Li 2008.

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Shuanggui plays an important role because it allows CDIs to control investigations from the onset. By using this measure, CDIs can trace the divide between those who can be punished internally—and who are the majority—and those who must be criminally prosecuted. By controlling the kinds and amounts of evidence to hand over to procuracies, CDIs can try to influence the outcome of judicial proceedings. Shuanggui is also useful as it may not always be easy to investigate complex and rapidly evolving types of crime. The party discipline system is decentralized, and the commissions are established in each organ of the state or the party. They operate locally, on a small scale, within the framework of dual subordination. This Leninist arrangement dates back to the 1920s. Between the late 1970s and the early 1980s, it made possible the investigation of crimes that did not exceed the parameters of the danwei. At a time when the country witnessed a limited level of mobility of people, goods, and capitals, corruption was practiced by individuals or else by small groups of officials.118 Hence, commissions possessed sufficient skills and resources to investigate such simple crimes. When more complex forms of corruption emerged in the early 1990s, commissions were unable to cope with them. The same can be said for all those cases when corruption is used to forge a nexus between political elites and organized criminal groups. A solution to investigate these very complex cases has been found in forming ad hoc joint investigation teams composed of CDIs officials and personnel drawn from procuracies and public security organs. The “joint investigation of cases” (联合办案 lianhe ban’an) can further strengthen the relationship between CDIs and the state judicial system,119 but it constitutes a suboptimal solution. Shuanggui is believed to provide an efficient mean to cope with radically new forms of crime, particularly because it allows CDIs to overcome some of their weaknesses, such as a relative lack of professionalism.120 While the CCDI is highly professionalized, the same may not always be true for CDI existing at the local levels or in poor inland provinces. In municipalities such as Beijing, the CDI is staffed by officials whose average age is 53.5 years, with a background in the judicial system (19 percent), and a

For an illustration of these forms of corruption, see Chan and Unger 1982; Østergaard 1986. 119 In various instances, CDIs can be staffed by party officials, but also by personnel drawn from procuracies, courts, or public security organs. 120 Manion 2004: 210. 118

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law degree (38 percent).121 In developed coastal cities, such as Guangzhou, a similar age structure (51 years) can be observed, with a significantly lower presence of officials trained in law (1 percent).122 In poorer provinces, county level CDIs may be led by officers boasting an army background.123 Sometimes, CDI officers seem to be unfamiliar with investigative methods and evidence collection procedures: a member of the elite team that investigated the notorious Yuanhua smuggling scandal candidly admitted that evidence was lost during investigations because no measures were taken to secure the crime scene.124 In the last seven years, this situation has been changing, and in late 2009, the CCDI took measures to rejuvenate and professionalize party discipline organs.125 Shuanggui has been used as a temporary measure that will undergo a gradual process of legalization. However, even though CDIs may be staffed by younger, better educated, and more professional officials, and even though abuses may still be taking place during shuanggui, effectual steps to reform this measure have not been made yet. 3.4

Enforcing Shuanggui

In the meantime, the use of shuanggui still results in a suspension of the state law, hence the most important determinant of a detainee’s treatment lies in the moral qualities of individual investigators. A sample of 380 cases illustrates this dynamic.126 Detainees appeared to be mostly

121 Zhonggong Beijingshi Jilü Jiancha Weiyuanhui, Beijingshi Jianchaju 2009. Detailed information about the age and education of one of the seventeen members of Beijing CDI standing committee was not made public. In most cases legal education was earned on the job (zaizhi). One official has a background in the army. 122 Zhonggong Guangzhoushi Jiwei, Guangzhoushi Jianchaju 2009. Also in Guangzhou, the CDI standing committee includes one former soldier. 123 As in Ximeng county, Pu’er, in Yunnan Province. Yunnansheng Renmin Zhengfu 2009. 124 Immigration and Refugee Board of Canada 2002. 125 2009–2013 National plan on the work of discipline inspection cadres’ education and training (2009–2013 nian quangguo jijian jiancha ganbu jiaoyu peixun gongzuo guihua 2009–2013 年全国纪检监察干部教育培训工作规划), issued on 10 December 2009. 126 To construct the sample, the following seventy-nine publications comprising national and local periodicals, newspapers, and journals published by party organs, as well as CDI publications, were monitored from 1990—the year shuanggui was introduced—to 2005. 21 Shiji Jingji Baodao (21st Century Economic News), Anhui Kejibao (Anhui Technology Daily), Baolin, Bingtuan Ribao (Production and Construction Corps Daily), Beijing Qingnianbao (Beijing Youth Daily), Beijing Ribao (Beijing Daily), Beijing

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male. Their detention lasted for a period ranging from two days to more than one year, with the average period of detention being between three and six months. Longer periods of detention were, on the whole, more common than shorter ones. Shuanggui can be enforced in two ways. Officials can be called in by the local CDI for a confidential talk, or they may report to the CDI on their own. Once there, they are informed of their detention under shuanggui. CDIs can also employ harsher methods, resulting in a suspect’s disappearance. A common

Wanbao (Beijing Evening News), Caijing (Economics and Finance), Dangzheng Ganbu Xuekan (Party-State Cadres Monthly Review), Dangjian Jingwei (Party Building), Diyi Caijingbao (Economics and Finance No. 1), Falü yu Shenghuo (Law and Life), Fazhi Ribao (Legal System Daily), Fazhi Zaobao (Legal System Morning Post), Fenghuang Zhoukan (Phoenix Magazine), Gansu Ribao (Gansu Daily), Gaige Yuebao (Reform Monthly Review), Gong’an Yuekan (Public Security Monthly), Guowuyuan Fazhan Yanjiu Zhongxing Xinxiwang (State Council Center on Research and Development News Net), Gongchangdangyuan (Communist Party Member), Gongsi Xinwen (Company News), Gongguan Shijie (Public Relations World), Haichengshi Shenjiju (Haicheng Tax Office), Jiage yu Shichang (Price and Market), Jiancha Fengyun (Procuratorial News), Jiancha Ribao (Procuratorial Daily), Jiangsu Guojia Shuiwuju (Gansu Tax Office), Liaowang (Outlook), Lingdao Wenhui (Leaders and Essays), Longtou Lüshiwang (Longtou Lawyers Net), Mianyang Nongminwang (Mianyang Agriculture Network), Minzhu yu Fazhi Shibao (Democracy and Legal System Times), Nanfang Doushibao (Southern Capital Daily), Nanfangwang (Southern Net), Nanfang Zhoumo (Southern Weekend), Ningxia Ribao (Ningxia Daily), Ningxia Shenji (Ningxia Audit), Qingnian Cankao (Youth Reference), Renmin Fayuanbao (People’s Courts Daily), Renmin Ribao (People’s Daily), Renmin Daibiaobao (People’s Delegates Daily), Renmin Jiancha (People’s Procuratorate), Renminwang (People’s Network), Sanxia Wanbao (Three Gorges Evening Post), Shanghai Qingnianbao (Shanghai Youth Daily), Shenzhen Shangbao (Shenzhen Commercial News), Shenzhen Tequbao (Shenzhen Special Economic Zone Daily), Shenzhen Xinwenwang (Shenzhen News Net), Shichangbao (Market Daily), Shuiwu Zhengna (Tax Revenues), Xiangzhen Luntan (County and Township Tribune), Xibu Shibao (West China Times), Xinhuawang (New China Net), Xinhua Meiri Dianxun (Xinhua Daily), Xinjingbao (New Beijing Standard), Xinjiapo Lianhe Zaobao (Singapore Morning Post), Xinxibu (New West), Yangcheng Wanbao (Yancheng Evening Standard), Wengaobao (Wengao Daily), Zhengfu Fazhi (Government and Legal System), Zhengce (Policy), Zhengquan Shichangbao (Stock Market Daily), Zhejiang Guoshuiwang (Zhejiang Tax Network), Zhonghua Caihuiwang (China Economics and Finance Network), Zhongguo Chanjing Xinwenbao (China Property News), Zhonghua Gongshang Shibao (China Industrial and Commercial Times), Zhonghua Renmin Gongheguo Jianshebu (Ministry of Construction of the People’s Republic of China), Zhongguo Fangdichan bao (China Real Estate Daily), Zhongguo Gaige (China Reform), Zhongguo Gansu (Gansu Province), Zhongguo Jiancha (China Procuratorate), Zhongguo Jingji Shibao (China Economic Times), Zhongguo Jingmao Daokan (China Business and Trade Review), Zhonggguo Shangbao (China Trade Daily), Zhongguo Shenji (China Audit), Zhongguo Qingnianbao (China Youth Daily), Zhongguo Xinwenwang (China News Net), Zhongguo Zhongxiao Qiye (China Small and Medium Enterprise), Zhongshuiwang (China Tax Network). Informal conversations with people who are knowledgeable about shuanggui, or who have experienced it, were held and used as a secondary source. Regulations were collected between 2001 and 2005, during four fieldwork trips to China.

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method of apprehension by CDI officials—who wear plainclothes— involves waiting for suspects at their work unit, apprehending them, and driving them away: A van came, and it drove us seven kilometers from the county headquarters to the Zhanggou township office of justice. County cadres handcuffed me and led me to a jinbishi. It was a bare room with a concrete floor, used to detain people. Outside, it was guarded twenty-four hours a day.127

Officials can be also summoned to take part in an urgent meeting at their work unit—only to discover that the purpose of the meeting in question is to put them under shuanggui. Officials on business trips are suddenly called back to their place of residence under diverse pretexts and picked up by CDI officials. Detainees are held in hotel rooms or guesthouses. But these are not the only places used for shuanggui: hospital rooms, factory dormitories, shelter for deportation centers, and even company offices have been used too. Consequently, detainees are allowed very little living space. Personal privacy can further be reduced by the presence of CDI officials, private security guards, or even civilians whose duty it is to observe the officials. The number of persons who live with the detainee ranges from two to four. CDI officials and those who guard suspects can exert their control on the detainee’s physiological functions, his nourishment, his sense of time, and his sleep. The detainee is guarded and watched even then he urinates or defecates.128 The amount and quality of the food and water he receives can be controlled, and CDI officials have the option even to refuse to feed the detainee. Furthermore, all contacts with the outside world can be severed. Windows and blinds in the room where an official is detained can be kept constantly shut, so the detainee slowly loses his sense of time. Also detainees cannot read or watch television. Communications with one’s relatives can be forbidden. Notifying the family of a detainee about the suspect’s detention is not in the interest

Zhongguo Qingnianbao 2003. “Guardians are not allowed to let the person under guardianship go out of their visual field. As for instance when the person under guardianship uses the toilet, eats or showers.” (监护人的视线不准离开被监护人活动范围, 如被监护人员在卫生 间、就餐、洗浴等). Anshan Commission for Discipline Inspection rules on the responsibilities of guardians in “lianggui” and “liangzhi” (Anshan jiwei guanyu “lianggui”, “liangzhi” jianhuren zhizede ruogan guiding 鞍山纪委关于 “两规”, “两指” 监护人职责的若干规定), issued on 26 April 2003 and effective from the same date. Translation mine. 127 128

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of the commission. The detainee’s relatives must find his whereabouts. Eventually, they approach the local commission, where they can be told that their relative will be detained for as long as necessary. 3.4.1 Harsh Interrogation Techniques A strong link exists between torture and interrogation: “[T]orture consists of a primary physical act, the infliction of pain, and a primary verbal act, the interrogation. The first rarely occurs without the second.”129 Torture is even more likely to occur when a suspect’s legal rights have been suspended and interrogators cannot be indicted on charges of torture.130 Shuanggui involves all of these circumstances. Even though “harsh interrogation techniques” may not be used in all cases of shuanggui, they, nonetheless, have taken place. As soon as shuanggui begins, the detainee is asked to confess his alleged crimes and to provide evidence. Obtaining such evidence is a crucial element of investigations; a confession must be supported by at least two pieces of evidence.131 Normally interrogations start in a rather mild way. Suspects are informed that the length of their detention depends on their willingness to confess their crimes. Then they are required to write a confession. In the words of a former detainee: They told me that until I confessed I could not leave the hotel. When I was transferred from Yulin Hotel to Shengli hotel, I first checked in to room no. 215. The window of room 215 had no iron bars and they said it did not comply with the requirements of shuanggui. I was moved to room 227, where there were iron bars at the window.132

The first confession a detainee makes can be rejected on grounds that is insufficient or insincere, and the suspect is informed that he will not be freed until he writes a satisfactory confession detailing all of Scarry 1985: 28. The statutory definition of the subject of the crime of torture does not cover CDI officials, as they do not fall within the definition of state officials. In those cases when a CDI official holds both a party and a government office, he can be charged with the crime of torture only if he performed the act using his government office. Needless to say, this condition is unlikely to occur in practice as interrogation is commonly performed using the investigative powers that come with a CDI appointment. 131 This can be either direct (zhijie) or indirect ( jianjie) evidence. For an illustration of this distinction see articles 32, 34 Regulations on Investigations. 132 “Yulin shiweide ‘She Xianglin’ Liu Binde shensu.” Document on file with the author. 129 130

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his crimes. At this stage, a lengthy process of self-examination begins. Its aim is to induce a complete disorientation of the suspect and his remolding into a docile subject. The self is constituted of both body and mind, and so to be complete, any process of disorientation must work on both of these planes. Because a psychologically strong person may resist those techniques that target the mind only, torture can be used during interrogations. The available evidence does not point to the existence of uniform methods of torture. The cases sampled show that different teams of investigators used clean as well as dirty techniques. The most common clean techniques involve sleep deprivation and the use of stress positions. These methods can be used independently or in combination. In some cases, detainees were allowed to lie down only to be waked every time they fell asleep.133 Sometimes they were forced to stand for twenty-four hours. Other times, they were compelled to maintain stress positions for hours. These involved standing on their toes, holding glasses full of boiling water, pressing small objects against the wall with the tip of their nose or forehead, and so on. Chen Yucun, an entrepreneur, was forced to stand up for six days and five nights. He was punched and kicked as soon as he fell down or showed signs of falling asleep. Also he was handcuffed to the wall for seventy-two hours.134 Occasionally, the circumstances during which suspects died raise the suspicion that some form of water torture may have been used: an officer put under shuanggui in Henan province died from drowning.135 The use of dirty techniques has, however, received more attention because such treatments leave signs on the body, which can contradict the official explanations given for “unexpected deaths.” Such is the case of Kong Chengdan, the director of Hengyang hospital in Hunan province. Having spent ten days under shuanggui, Kong was found by a peasant lying in the middle of a country road, his face covered in blood. According to Hengyang CDI spokespeople, he had fled shuanggui and had been run over by a car “driving at galloping speed” down country roads.136 On other occasions, the official explanation given for the death of suspects is that they “fell.” However, their bodies tell a different story. Liang Yuncai, the chairman of Hebei Trust and 133 134 135 136

Informal conversation n. 2. Notes on file with the author. Xinhuawang 2005. Liu and Wei 2007. Xinhuawang 2006b.

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Investment Corporation, died after two months in custody as he purportedly fell.137 When his wife Geng Qingxiu went to the mortuary, she realized that Liang had become extremely thin. Also his eyelids were purple and swollen. Liang’s body was covered with wounds, and his clothes were soaked in blood. Geng filed a complaint to the Hebei Higher People’s Procuratorate asking that an autopsy be conducted. The autopsy revealed that “Liang Yuncai’s death resulted from the damage received by a wide area of the soft tissues, hemorrhage, and traumatic shocks.”138 Several cuts and multiple fractures were found on his body. Subcutaneous, muscular, pulmonary, and brain hemorrhages had occurred at different times. All these injuries signaled that Liang’s beatings must have taken place over a relatively prolonged period of time. Eventually, it was determined that the beatings were ordered by two CDI officials, Zhang Zitao and Sun Wei,139 but administered by a policeman, a driver, and a clerk using a mop handle, a stick, and even a stool.140 Liang was beaten to death because investigators believed that he refused to render a sincere confession. Other instances of abnormal deaths received similarly weak explanations. 3.4.2 Psychological Manipulation Self-examination is very similar to the thought control practices described by Robert Jay Lifton and Edgar Schein.141 Of course, the process does not involve the use of scarring torture techniques. Nonetheless, abduction by CDI officials normally has a high emotional impact on the subject. The detainee feels powerless and disoriented. These feelings are reinforced by the severance of links with the outside world and the holding of round-the-clock or otherwise lengthy interrogations.142 At the same time, a bond of dependency is created between the suspects and his interrogators. Sometimes, the only person

Luo 2005. Luo 2005(b). 139 Zhang was the director of the CDI at the Hebei Trust and Investment Corporation, while Sun was his deputy. Ibid. 140 The Shijiazhuang Qiaoxi District Court found Zhang Zitao guilty of dereliction of duty. Zhang received a suspended sentence to 3 years fixed term imprisonment. His deputy Sun Wei was instead sentenced to 7 years. Their accomplices were sentenced for intentional wounding ( guyi shanhaizui ) to penalties ranging from 10 years to life imprisonment. Chongqing Chenbao 2007. 141 Schein, Schneier and Backer 1961; Lifton 1961. 142 For a description of these instances see Zhang, Zhuang and Ye 2001. 137 138

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with whom a detainee is in touch is his interrogators. Such a bond of dependency can be strengthened by interrogation techniques that skilfully alternate abusive treatments with displays of gentleness. These factors can induce in the detainee a psychological response similar to the Stockholm Syndrome,143 leading to the eventual display of loyalty to one’s captor or abuser. Exposure to contrasting stimuli—such as a combination of sympathy, physical pain, and psychological suffering— for a sufficient amount of time can destabilize the detainee. The suspect is suddenly deprived of all the symbolic extensions of his ego—all with which he used to identify and from which he received psychological gratification. Never again will he be featured on TV shows as a model entrepreneur. No more will he walk in the People’s Hall, the photographers’ flashes blinding him. No longer will he enjoy his material possessions. These things are suddenly gone. He will give-in to feelings of guilt and self-loathing, either because he could not endure the torture, or because he has been denounced by his colleagues. Under these circumstances, the detainee’s psychological equilibrium needs to find a new balance. Eventually, he will reframe his self-perception and the perception of his alleged crimes to the point that he will identify with commission officials and render a sincere confession. He will make amends and accept any punishment that the party may decide as the essential condition of his rebirth as a party member. Persuasive techniques used during shuanggui can be very similar to those experimented with by the People’s Liberation Army on Western prisoners of war during the Korean War. Methods used to manipulate war prisoners into compliance involved not only deprivation of freedom and the writing of a confession, but also controlling the amount of food they received; severing all links to the outside world; letting them believe their families had betrayed them; and sleep deprivations. Psychological manipulation techniques, however, are not effective in all cases. As proven by Lifton and Schein, they may not work on some subjects. If investigators are unable to correctly gauge the suspect’s psychological resistance and they push these techniques too far, the suspect

143 The Stockholm Syndrome is a self-defense mechanism whereby captives that are subjected to coercive persuasion reframe the perception of their selves to the point that they identify with their captors, sympathize with them, display loyalty to them and eventually cooperate with them. On the Stockholm syndrome, see Strentz 1979; Fuselier 1999.

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may commit suicide. In the first two months of 2003, more than 120 detained officials took their lives.144 These and similar instances take place mostly at the subprovincial level, while CDIs at the provincial level may act more humanely. The CCDI has adopted a practice known as the “Three Allowed” (san yunxu): officials under shuanggui are allowed to communicate with their relatives, may be assisted by their personal secretaries, and are allowed outdoor exercise.145 In some cases, officials put under shuanggui managed to escape or even beat their captors. While torture may not be practiced in all cases, it can easily occur because all basic procedural guarantees are removed as soon as shuanggui begins. Maintaining that shuanggui takes place in response to extraordinary circumstances provides a weak moralistic justification for the lifting of a suspect’s legal rights. Whenever allegations of discipline violations or criminal behavior are based on evidence obtained through torture, shuanggui clearly becomes ineffective in uncovering actual crimes. Rather it fabricates criminal behavior in exactly the same way as torture enabled Mao era investigation teams to uncover as many traitors and enemy spies as they wished. The CCDI is well aware of this problem, and eradicating torture is one of its concerns.146 The eradication of torture and the suspension of legal rights, however, do not go hand in hand. As long as this lawless area is allowed to exist, the risk that innocent persons will be charged with violations they never committed will always be there, as prosecutor Kuang lived to tell: They wanted me to admit that Xiao ** had given me some benefit. They asked and asked again, without coming to anything in the end. Then they told me that I had sex with Xiao **’s wife, and wanted me to confess to this. . . . [E]ventually I ended up confessing all that they wanted me to confess.147

China News Digest 2004. Sun 2005: 25. 146 Yu 2005: 181. Article 3, Chinese Communist Party Central Commission for Discipline Inspection rules on the gathering, examination and use of evidence during investigations on cases of violations of discipline (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu chachu dangyuan weiji anjianzhong shouji, jianbie, shiyong zhenjude juti guiding 中共 中央纪律检查委员会关于查处党员违纪案件中收集, 鉴别, 使用证据的具体规定), issued on 23 July 1991 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 137–41. 147 Kuang, the deputy head prosecutor of Yizhang county, Hunan Province, was put under shuanggui because of his alleged crime of dereliction of duty. He had refused 144 145

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Conclusion

Historical continuities exist between shuanggui and earlier forms of extra-legal detention. Each of these measures found its rationale in the need to isolate and neutralize those whose behaviors posed a threat to party ideology in the Mao era and to its governing capability and moral legitimacy in the reform period. Seen from this perspective, the concrete efforts of the party-state to limit, centralize, and regulate the use of shuanggui turned what was initially conceived as a temporary measure into a normal component of the legal system. Does this dynamic signal that shuanggui will be abolished in the future? Any reasoning about the future of shuanggui needs to take into account how the party has come to play a strong role in criminal proceedings against its own members, and the possible ways in which legal dictates can be used to create exceptions. Wu Guanzheng, a former secretary of the CCDI, six years ago stated that party discipline organs have the choice to turn the most “mature” institutions and norms into state laws.148 The Law on Administrative Supervision allows supervision organs to summon state officials. As CDIs operate under a dual façade of party discipline and state supervision, any power contained in national laws on administrative supervision belongs to them, too. China’s ratification of the United Nations Convention against Corruption (UNCAC) has resulted in the criminalization of trading in influence.149 At the same time, it has also induced a rationalization of party discipline norms prohibiting the very same act.150 Given this trend, in to approve the arrest of a suspected fraudster, thus causing the anger of the secretary of the local CDI, Zeng Jinchun. Yi 2007. 148 Renmin Ribao 2003: 2. 149 Article 388 (2) (3) CL. 150 Albeit using a different wording, that addresses relatives of party officials and other persons who have a close relationship to them indirectly. Some examples of these scattered norms are Chinese Communist Party Central Commission for Discipline Inspection General Office circular transmitting the Hainan Party Committee General Office circular on some opinions on province-level leading cadres clean governance, self-restraint, preventing and countering corruption (Zhonggong Zhongyang Jiwei Bangongting guanyu yinfa Zhonggong Hainan shengwei bangongting guanyu yinfa shengji lingdao ganbu lianjie zilü jufu fangbiande ruogan yijiande tongzhide tongbao 中共中央纪委办公 厅关于印发中共海南省委办公厅关于印发省级领导干部廉洁自律拒腐防变的若 干意见的通知的通报), issued on 8 October 1995 and effective from the same date. Reproduced in Zhongyang Jiwei Bangongting 2003: 230–33. Articles 5 (2), (5), 51, 52, 53, 54, Some experimental criteria on clean governance of Chinese Communist Party members and leading cadres (Zhongguo Gongchandang dangyuan lingdao ganbu lianjie congzheng ruogan zhunze shixing 中国共产党党员领导干部廉洁从政若干准则试行),

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principle an amendment to the Law on Administrative Supervision, or the Criminal Procedure Law, would allow the transformation of shuanggui into a legal measure, giving party organs a stronger foothold in state law. While any such legalization would solve the most pressing legislative conflicts, it is unsure whether it would significantly change the nature of shuanggui or limit CDI powers.

issued on 28 March 1997 and effective from the same date, repealed on 30 December 2009 by the Criteria on clean governance of Chinese Communist Party members and leading cadres (Zhongguo Gongchandang dangyuan lingdao ganbu lianjie congzheng ruogan zhunze 中国共产党党员领导干部廉洁从政若干准则).

CHAPTER FOUR

STOP-AND-QUESTION Who killed Li Siyi? Was the police her only murderer? More recent studies have indicated a genetic predisposition for many disorders and antisocial behaviors . . . all the chemical messengers in our body are influenced by genes . . . these allow us to target that particular anomaly, both medically with drugs that can intervene in this system and also emotionally and socially.*

While party members suspected of crimes can be summoned and detained under shuanggui, ordinary citizens are the target of a measure known as stop-and-question. Stop-and-question is a police power used to clarify suspicions of minor offenses or of crimes ( fanzui), which results in a short limitation of personal freedom. This little researched power mirrors shuanggui, with which it shares various substantive similarities. In both cases, suspects—albeit belonging to much different social strata—are called in for questioning before formal charges against them have been filed. Exactly as it happens during a shuanggui session, those who are stopped and questioned cannot leave the premises where their questioning takes place. Furthermore, they cannot be assisted by a lawyer. Neither during shuanggui nor during stop-and-question is a verdict of guilt made. As is true in the case of shuanggui, prolonged periods of detention may be frequent. Finally, the existence and the nature of this measure can easily lead to the use of so-called advanced interrogation techniques. This police power, which has long existed in the absence of any regulatory framework, was formalized in the mid-1980s as the malfunctioning of specific policing techniques led to an increased reliance on community policing. Given that violence by community policing bodies, particularly the so-called joint defense teams,1 became pervasive,

* Kang 2003: 50 and Anderson 2007: 118. 1 This body is discussed in chapter 5.

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a solution was found in partially replacing them with police patrols endowed with stop-and-question powers. Stop-and-question powers, however, were soon abused. In a fashion that is now familiar, abuses led to reform. Reform gave this measure an adequate legal grounding. Once this legal step was made, the police acquired even broader and unfettered powers. The murky nature of stop-and-question, however, did not change. This chapter reconstructs the genesis and evolution of the stop-and-question measure. 4.1

Precursors of Criminal Behavior?

Stop-and-question is one of the weapons in the arsenal of the comprehensive management of public order. Its formalization in 1985 took place as a reaction to the imperfect workings of earlier mechanisms of social control. Until 1912, a conception of persons as unique human beings underlay Confucian thought about statecraft and social control. Ruling individuals through moral suasion and benevolence meant, largely, adapting to them. Appeals to moral and ethical qualities necessarily rested upon the use of social control methods that were non-standardized. After 1949, especially after 1979, individualized methodologies of social control lost their reason to be. The use of modern policing techniques instead prevailed. Deviants were no longer regarded as distinct individuals. To maintain social order, this group had to be conceived of as a multitude of interchangeable, equivalent elements. Individuals were distinguished not through their moral values and emotions, but through group attributes. A categorization of the people, of which imperial modes of administrative control constituted an embryonic form, was necessary to manage the population more easily, to regulate its flow, and to single out and reeducate deviants. Understandably, contemporary political-legal commentators discuss such concepts as managing ( guanli) the population, listing and ranking (lieguan), and deleting (xiaoguan) anonymous and undifferentiated individuals. Until the reform era, Mao’s theory of contradiction2 had been used to draw the dividing line between compliant subjects, and those who,

2 The theory of contradiction started to take shape in 1926 and reached its final formulation in 1957. The 1926 essay “Analysis of the Classes in Chinese Society” contains the very first articulation of the friend/enemy distinction; the 1937 essay “On

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by virtue of their propensity toward crime, needed close observation. Those regarded as possessing an actual, consciously formed intent to harm the people were—almost exclusively—members of the exploiting classes. Those belonging to the proletariat were believed to be incapable, purposely and/or knowingly, of causing harm. Any damage they may have inflicted to the people could be only the result of their recklessness or negligence. By virtue of their revolutionary spirit, proletarians could only commit minor offenses (weifa xingwei). The forging of a link between class and social dangerousness in 1956 led the Ministry of Public Security to identify six groups that had to be singled out for increased surveillance.3 Collectively known as the “focal population” (zhongdian renkou), the groups included landlords, rich peasants, reactionaries, ideological enemies, and counter-revolutionaries. Criminal suspects, an ideologically neutral group, were mentioned only in passing. As economic growth sparked a wave of crime involving mostly members of the proletarian classes, the framework of reference provided by the theory of contradiction became inadequate. If experience was truly the sole criterion of truth, it had then to be acknowledged that social class was not the key determinant of criminal conduct. The demise of the theory of contradiction did not mean that the police lost its power to trace divides. The resurgence of criminal behavior intensified the task of tracing dividing lines within the population. As the divide was now premised on social dangerousness rather than on class, a gradual broadening of the focal population occurred. Counter-revolutionaries were still mentioned in a 1985 police administrative regulation, the Work Rules on Managing the Focal Population. The focus was placed, however, on those who were suspected of crimes, of violations of public security, those who were involved in civil controversies that could have escalated into criminal cases, and finally those who simply caused disturbances. Further categories included those sentenced to nondetentive punishment, imprisonment, RETL, and shelter for education. The Work Rules were amended twice, in Contradiction” spells out the idea that different measures applied to different “contradictions.” The 1957 essay “On the Correct Handling of Contradictions among the People,” is credited as providing an ideological foundation to administrative detention in post-1949 China. Cohen 1968; Clarke and Feinerman 1995; Xiao 1996. 3 Ministry of Public Security work rules on managing the focal population (Gong’anbu guanyu zhongdian renkou guanli gongzuode guiding 公安部关于重点人口管理工作的规定), April 1956, document summarized in Heilongjiangsheng Difangzhi Bianji Weiyuanhui 1996: 678.

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1991 and 1998, showing a further expansion of targets. Currently, nineteen categories of people are deemed socially dangerous. Sixteen of them are referred to as suspects; one, minor offenders; and one, former inmates or individuals detained for RETL.4 The existence of two catchall provisions, however, allows officials to expand the scope of these categories beyond statutory limits. Behind the existence of this classification is clearly a preventive rationale. Yet no fixed criterion exists to distinguish who can be suspected of a crime from who cannot. A district-level police officer observes that a suspect is someone who may violate the law, by giving in to “his criminal psychology, as it is proven by his words and actions.”5 This characteristic—the officer goes on to say—is something typical of the focal population. In theory, crime could have been easily controlled by registering suspects and monitoring them. In practice, crime prevention never worked this way. Surveillance through the database of the focal population works in theory better than in practice.6 It is also regarded by policemen as a task of less importance and subject to various problems.7 This broad pool of criminal suspects is not a hotbed of criminal activity.8 Public security organs have also lost control over the management of the focal population9 and seem to be content with simply listing in the database enough entries to meet their quota.10 The failure of this policing technique has had several consequences. Michael Dutton has observed how it has resulted in an increased reliance on auxiliary police forces. A second outcome, pointed out by

4 Ministry of Public Security rules on managing the focal population (Gong’anbu zhongdian renkou guanli gongzuo guiding 公安部重点人口管理工作规定), issued on 22 May 1998 and effective from the same date. Ministry of Public Security circular on listing those who use psychotropic drugs among the focal population (Gong’anbu guanyu jiang xidu renyuan liewei zhongdian renkou guanlide tongzhi 公安部关于将吸毒人员列为重 点人口管理的通知), issued on 6 August 1998 and effective from the same date. 5 Lin 2006: 54. 6 Luo and Gao 1997, mentioning how suspects are registered in the focal population database without being monitored, and the majority of cases cracked by the police are discovered through different channels. 7 For a discussion of specific problems see Biddulph 2007. 8 Tian 1999, mentioning how only 49 of the 1,521 persons registered by the police in Shunyi district, Beijing, actually committed criminal offenses. 9 Qiu 2004: 29. 10 Tian 1999; Luo and Gao 1997, for a more explicit mention of the existence of quotas.

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Sarah Biddulph,11 has been basing crime control and deterrence on the use of periodic anti-crime campaigns.12 A third outcome has been the birth of police patrols and of the power to stop and question suspects, a power existing outside of criminal procedure legislation. The most benign result has been an over-reliance on this power. Under the worst-case scenario, abuses have occurred. In the last twenty years, stop-and-question has undergone various formal changes. Eventually, its grounding in a national-level law turned de facto derogations from the criminal procedure law into a built-in feature of the criminal justice system. The Police Law allows public security organs to suspend certain procedural guarantees when an officer encounters someone who may harbor a criminal psychology. The criteria used to assess the latent intention to commit crimes can be, at times, as unreliable as a Lombrosian checklist of malformed ears and small foreheads. 4.2 Stop-and-Question In 1986, the Ministry of Public Security established a network of public security patrols.13 To make the activity of patrols credible and effective, the Ministry decided that patrol squads had the power to “question and search persons whose movements and appearance [were] suspicious.”14 The formalization of this power was a new development. At the time the Ministry opinion became effective, police powers were grounded in the 1957 version of the Regulations on Security Administration Punishments (SAPR) and did not include the power to stop-and-question. This power had existed in the absence of any legal grounding. In the 1950s, presumably, no one would object to being stopped and asked questions by a party secretary, a member of the militia, or the regular police forces. It is also difficult to imagine that activists and members of the Red Guards would refrain from stopping people, searching their persons, and locking them up just because they had not been vested with the relevant powers. In the mid-1990s, another Ministry of Public Security rule reinstated that urban patrols had the Biddulph 2007. Tresvaskes 2003. 13 Ministry of Public Security opinion on establishing a network of urban public security patrols (Gong’anbu guanyu zujian chengshi zhi’an xunluo wangde yijian 公安部关于组 建城市治安巡逻网的意见), issued on 1 July 1986 and effective from the same date. 14 盘查形迹可疑的人员 pancha xingji keyide renyuan. 11 12

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power to “question and search suspects.”15 Throughout the 1980s and for much of the 1990s, neither the substantive nor the procedural content of this measure was defined. Stop-and-question failed to attract much interest,16 and studies of the police took a different direction.17 In 1995, the entry into force of the Police Law18 turned stop-and-question from an obscure measure grounded in ministerial rules into a power premised on an adequate legal basis. The Police Law designated four different kinds of suspects as targets of stop-and-question: 1. Those who have been accused of a crime. 2. Those who are suspected of recent criminal conduct (作案 zuo’an). 3. Those who are suspected of criminal conduct and whose identity is unknown. 4. Those who are suspected of carrying stolen property. Subtle formalistic differences exist between those who can be subjected to stop-and-question and those criminal suspects (犯罪嫌疑人 fanzui xianyiren) who can be initially detained ( juliu) under the CPL. Clearly, the range of targets of stop-and-question is broader. Such flexibility, on the other hand, is needed to investigate those who have been accused of crimes but do not meet all the conditions that allow detention.19 The 15 Article 5 (1), Ministry of Public Security rules on police patrols in urban areas (Gong’anbu chengshi renmin jingcha xunluo guiding 公安部城市人民警察巡逻规定), issued on 25 February 1994 and effective from the same date. 16 With the exception of Peerenboom 2004, 2007: 94; Biddulph 2007; Ma 1997. 17 Studies of the police and have focused on the organizational structure of police organs (Tanner 2002; Li Xiancui 1998), on their history (Dutton 1992, 2005), on policing techniques derived from tradition (Chen 2002; Wong 2007), on their failure (Dutton and Lee 1993), and on their problems (Tanner and Green 2007). For a critical review of this sub-field of studies, see Dai 2008 and in part also Wong 2000, 2007 criticizing the lack of focus on variables such as culture and tradition. 18 People’s Republic of China Law on Police (Zhonghua Renmin Gongheguo jingchafa 中华人民共和国警察法), issued on 28 February 1995 and effective from the same date, hereinafter referred to as Police Law. For an analysis see Ma 1997 and Li Xiancui 1998. 19 These conditions are stricter than those set by the Police Law. First, a mere accusation of crime is not enough: a person has to be also identified by a victim or by an eyewitness, who acknowledges that the accused has engaged in a certain conduct. Second, the allegation of criminal conduct needs to be based on evidence found on the person’s body or at his place of residence and acquired through a search. The suspicion that one may carry stolen property does not meet such a condition. In theory, the lawful acquisition of any piece of item one wears or carries may be questioned. Third, the suspect must try to obstruct investigations, by engaging in behaviors ranging from flight and destruction of evidence to suicide. Fourth, to be initially detained

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same logic applies also to those suspected of minor offenses.20 Stopand-question differs from both police and public security summons.21 Because the conditions under which one qualified as a person to be stopped were flexible, in theory anyone might have fallen within the range of application. The Ministry of Public Security was conscious of this potential. Thus, in 2000, it made some clarifications about the targets of stop-and-question. The range of stop-and-question became broader, covering the four original categories, individuals who could be initially detained under 61 CPL,22 and those who were already suspected of minor crimes punishable under the SAPR.23 Any such subject could be stopped and questioned for twenty-four hours from the time the suspect was brought in a police station. This limit could be extended to forty-eight hours if “extraordinary circumstances” called for an extension.24 While the scope of targets was broadened, procedural norms did not progress. Stop-and-question could be enforced at any policeman’s discretion. In practice, its use was approved by the director of a public security station. The only procedural requirements regarded the extension of this measure, which had to be approved by a public security organ at the district level. After questioning the suspect,

under the CPL, the individual has to be discovered in the preparation of a crime, during the commitment of a crime, or immediately afterward. For example, someone who is found aiming and shooting at another person, or holding a smoking gun near a corpse, can be initially detained. A pivotal concept in the decision of whether to detain or not is contemporaneity, or at least an extremely short time between the alleged criminal conduct and its outcome. The concept of contemporaneity is absent from stop-and-question, so this measure also can be used if some time has passed after the commitment of an alleged crime. Article 61 CPL 1996, largely subsuming article 6, People’s Republic of China Regulations on Arrest and Detention (Zhonghua Renmin Gongheguo daibu juliu tiaoli 中华人民共和国逮捕拘留条例), issued on 23 February 1979 and effective from the same date. Repealed on 1 January 1997. 20 The distinction between crimes and minor offenses is determined by the harm caused by the conduct. Harm is quantified, or else assessed, weighing the conduct against the statutory definitions of the Criminal Law, the Security Administration Punishment Law and relevant interpretative norms. 21 All Chinese literature on this measure has unanimously acknowledged that stopand-question is an autonomous measure. For an illustration, see Qiu Guanghui 2004; Zhang Hui 2003; Kang 2005. 22 Ministry of Public Security reply on some problems in the implementation of the Administrative Reconsideration Law of the People’s Republic of China (Gong’anbu guanyu shishi ‘Zhonghua Renmin Gongheguo xingzheng fuyifa’zhong youguan wentide pifu, 公安部 关于实施中华人民共和国行政复议法中有关问题的批复), issued on 3 March 2000 and effective from the same date. 23 The SAPL became effective on 1 March 2006. 24 Article 9, Police Law.

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public security officers could determine whether the suspect could be charged with a violation of public security laws or with a crime. In the former case, coercive or administrative detention measures could be used. If the suspect was to be charged with a criminal offense, public security organs could arrest (逮捕 daibu) him or use other nondetentive measures.25 If no evidence of criminal conduct was found, the suspect had to be released. Use of this measure required the notification of the suspect’s family, and a record of the questioning session had to be made. In the early 2000s, the Ministry of Public Security ordered that all cases in which stop-and-question was used be filed with the supervision departments (监督部门 jiandu bumen) of public security organs within thirty minutes of initiation.26 In 2001, the lawful use of stop-and-question was included among the indicators of police performance.27 Some suspects, mostly foreign and Taiwanese, Hong Kong, and Macao citizens, could be detained only upon approval of a district level public security bureau. Furthermore, province level public security organs had to be notified of their cases.28 As a measure that involved deprivation of personal freedom, stop-and-question could be challenged either through administrative reconsideration (行政复议 xingzheng fuyi) or administrative litigation. While stop-andquestion complies with constitutional and legislative guarantees to personal freedom, on a substantive level, it allows the police to detain suspects in the absence of any clear accusations and to question them in the absence and without the assistance of their lawyer. The power to stop-and-question is, moreover, largely redundant. Stop-and-question

Such as release on bail or supervised residence. On the filing of cases of stop measures by public security organs, see Ministry of Public Security rules on the filing of cases of stop-and-question (Gong’anbu guanyu gong’an jiguan shishi liuzhi cuoshi bei’an guiding 公安部关于公安机关实施留置措施备案 规定), issued on 28 June 2002 and effective from the same date, hereinafter referred to as Rules on filing cases. In actual practice, most public security organs do not seem to implement its provisions. On this point, and more generally on the difficulties involved in supervising the use of this measure, see Yan and Ji 2003. 27 Article 7 (3), Ministry of Public Security rules on the evaluation and appraisal of law enforcement quality (Gong’anbu guanyu gong’an jiguan zhifa zhiliang kaohe pingyi guiding, 公安部关于公安机关执法质量考核评议规定), issued on 10 October 2001 and effective from the same date. 28 Zhang 2001: 2, mentioning how this was originally a praxis followed by public security organs. 25 26

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differs from police powers to question and search suspects, even though it bears superficial similarities.29 4.3

The Difference between Stop-and-Question and Summons

Under the PRC criminal and administrative legislation, the police have the power to use public security summons, criminal summons, and coercive summons to question a criminal suspect. Police public security summons can be issued in an oral or written form. Substantively, an oral summons (口头传唤 koutou chuanhuan) allows the police literally to stop a subject and to question him. 30 The only condition to this procedure is that a suspect be found on the crime scene (当场 dangchang). Legal doctrine subscribes to an extensive interpretation of the concept of a crime scene. Mirroring actual practices followed by public security organs, commentators, who are mostly public security officials, unequivocally state that the crime scene is to be understood as each place from which the police may gather evidence or where a suspect may actually be.31 Under public security legislation, the police may stop and question a suspect regardless of whether he is found on the crime scene, in its vicinity, or even in a different province. Suspects may be stopped regardless of the time when an alleged crime took place. If a suspect refuses to comply with the police order to stop or tries to flee, restraining devices may be used on him. An oral summons is a very flexible tool in that its approval procedure is fulfilled ex post, when the subject has been already stopped, restrained, and brought to a police station to be questioned. Oral summons can be used in case of urgency. In less urgent cases, public security organs have the power to question (讯问 xunwen) those who may have committed minor offenses or crimes.32 Questioning can take place at the place of residence of the suspect or at his work place. Before questioning can 29 For a more detailed illustration of the differences summarized in the following paragraph, see Qiu 2002; Li 2003; Zhang 2003. 30 Articles 46, 47, Ministry of Public Security rules of procedure on investigating administrative cases (Gong’an jiguan banli xingzheng anjian chengxu 公安机关办理行政案 件程序), issued on 26 August 2004 and effective from the dame date, as amended on 29 March 2006, hereinafter referred to as Rules on administrative cases. 31 Ke 2004: 178. 32 Articles 10, 44 CPL 1979. Article 62 CPL 1996. Article 34 (2), People’s Republic of China Regulations on Security Administration Punishments, (Zhonghua Renmin Gongheguo zhi’an guanli chufa tiaoli 中华人民共和国治安管理处罚条例) issued on

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begin, public security officers must show their identification card to the suspect.33 The police can also perform bodily searches or search the premises without necessarily having to produce a search warrant. Oral summons can be issued before a case has been formally filed for investigation. Written summons are used on those suspects who are unlikely to flee or to refuse questioning. They can be asked by the police to appear at a designated (指定 zhiding) time and place to be questioned. A summons can last for no more than twelve hours, during which a questioning session must take place.34 This time limit can be extended to twenty-four hours if the person is suspected of minor crimes punishable with detentive penalties. Regardless of the time limit that applies, the maximum length of a questioning session is now eight hours.35 Written summons can be used only if a case involving minor offenses has been formally filed for investigation. To avoid the risk of actually using public security summons to detain a suspect, they cannot be used more than once or in connection with criminal summons. Criminal summons (刑事传唤 xingshi chuanhuan) are instead used for those suspected of a conduct that violates the criminal law. Coercive summons (拘传 juchuan) are targeted at criminal defendants who refuse to comply with the summons,36 but need not be subjected to arrest

12 May 1994 and effective from the same date. Repealed on 1 March 2006 by SAPL, hereinafter referred to as 1994 SAPR. 33 Gong’an jiguan banli xingzheng anjian chengxu guiding shiyong shouce bianxiezu 2004: 102. This power is based on article 45, Regulations on administrative cases. 34 1994 SAPR determined the maximum duration of a summons in twenty-four hours. This time limit has been shortened under the SAPL. Article 48, SAPL. 35 This is a rather strict limit; police and prosecutors in some Western countries can, in practice, hold much longer questioning sessions, during which tiredness and nervousness make the suspect and the interrogators unable to give—and receive—a precise and objective account of the facts under investigation. Author’s participant observations as a civilian interrogator, 2004 and 2006. In certain Western systems, the holding of extremely long questioning sessions is motivated by various factors, which in practice induce police and prosecutors barely to meet the time limits for preliminary investigations. 36 Article 64, Supreme People’s Court explanation regarding some problems in the implementation of the People’s Republic of China Criminal Procedure Law (Zuigao Renmin Fayuan guanyu zhixing Zhonghua Renmin Gongheguo xingshi susongfa ruogan wentide jieshi 最高人民法院关于执行中华人民共和国刑事诉讼法若干问题的解释), issued on 8 September 1998 and effective from the same date, hereinafter referred to as SPC explanation on CPL. Article 60, Ministry of Public security rules of procedure on investigating criminal cases (Gong’an jiguan banli xingzhi anjian chengxu guiding 公安机关 办理刑事案件程序规定), issued on 14 May 1998 and effective from the same date.

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or pre-trial detention.37 The time limit of both criminal and coercive summons is twelve hours. As with public security summons, criminal summons cannot be used more than once on the same suspect.38 If there is a legitimate need to limit a suspect’s personal freedom, further coercive measures—such as arrest or pre-trial detention—can be used. Otherwise, the suspect will be cleared and can leave the police station. A criminal suspect can refuse the summons by choosing not to sign the police order.39 A necessary condition for the use of this kind of summons is that a criminal case has been already filed for investigation. Public security organs cannot use coercive summons before a case has been filed.40 As pointed out in chapter 2, the Criminal Procedure Law is flexible enough to allow the police to bypass provisions about summons. Public security organs can detain and question a suspect prior to arrest and perform searches even before a case has been filed for investigation.41 These activities can take place for a maximum of thirty-seven days and have been allowed by the incorporation of shelter for examination in the Criminal Procedure Law. When stop-and-question was introduced, the police already enjoyed the powers to issue stop orders, perform searches, and summon suspects. The Criminal Procedure Law contained a mechanism that allowed a bypass of the time limits set for public security and criminal summons. The power to stop-andAs amended on 25 October 2007, hereinafter referred to as Rules of procedure on criminal cases. 37 Articles 50, 52 1996 CPL. In some cases, suspects can be directly subjected to coercive summons. See article 2 (1), Supreme People’s Procuratorate opinion on some problems in the implementation of the Criminal Procedure Law in investigations by procuratorial organs (Zuigao Renmin Jianchayuan guanyu jiancha jiguan zhencha gongzuo guanche xingshi susongfa ruogan wentide yijian 最高人民检察院关于检察机关侦查工作贯 彻刑事诉讼法若干问题的意见), issued on 31 December 1996 and effective from the same date. Tang 2002: 407. 38 Article 92 CPL; article 65, SPC explanation on CPL. 39 Article 61, Rules of procedure on criminal cases. 40 Ministry of Public security circular on problems in the investigation of cases of contract fraud (Gong’anbu guanyu banli liyong jingji hetong zhapian anjian youguan wentide tongzhi 公安部关于办理利用经济合同诈骗案件有关问题的通知), issued on 9 January 1997 and effective from the same date. 41 “[I]nvestigators may search the person, belongings and residence of a criminal suspect” as well as anyone who may be hiding him, article 109 CPL 1996. Normally, a search can be conducted only after a search warrant has been issued, as specified by article 111 CPL 1996. In some cases, the police, however, may conduct such a search even in the absence of an arrest warrant. Those are the cases in which it is absolutely necessary to arrest or detain a criminal suspect. While arrest needs to be approved by a procuracy, pre-arrest detention does not.

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question therefore was redundant. Given the broad definitions provided by the Police Law, anyone guilty of looking suspicious could have been the target of this measure. In fact, public security organs relied on “their experience”42 to determine who was suspicious enough to be held under stop-and-question. The most significant difference between police summons and stopand-question is that stop-and-question existed outside both the criminal procedure law and public security legislation. This measure was legal, as it was grounded on a national level law. However, it could easily be abused, as its targets were broadly defined and procedural norms for it were extremely flexible. Ironically, this situation stemmed from concerns expressed by members of the Standing Committee of the National People’s Congress. After police patrols were born, delegates called for the Police Law to be amended to curb abuses of power.43 4.4

Problems and Abuses

Two variables could effect a disregard for the dictates of the police law, causing the law to exist in theory while losing part of its force in practice. The first was the introduction of a new incentive structure, which encouraged the police to privilege the solving of cases over procedural fairness. Since the introduction of the contract system into public security work,44 monetary incentives became tied to performance indicators. One of the most important of these indicators was high case-clearance rates. This incentive structure proved more powerful than the constraints on police behavior posed by procedural norms on stop-and-question. Therefore, if faced with a choice between detaining a suspect, forcing a confession, and solving a case or respecting procedural norms, quite likely the police chose what made them look efficient. A second factor was the murky and redundant nature of this power. These features of stop-and-question could be a powerful incentive to its indiscriminate use. The existence of quotas for case-clearance induced the police to register only those cases that had been solved

42 43 44

Zhao 2009: 128. Zhou 1995: 39. See Dutton 2007 for an analysis of the consequences of this process.

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already, or which could easily be solved. Stop-and-question then came in very handy. Unlike summons, it could be used before a case was filed for investigation. This gave the police the time they needed to understand the basics of a case, gather evidence, and pass a judgment over whether the case was an easy one or not. Uncomplicated cases could, hence, be filed for investigation and dealt with promptly because most of the work had already taken place during the time of stop-and-question. Public security organs could, therefore, boast of solving over 80 or even 90 percent of cases at an alacritous speed. Given they had been using this power since the mid-1980s, they knew its potential. No sooner did the Police Law come into effect that the widespread use of stop-and-question began.45 According to Chinese scholars, stop-and-question was used in almost all criminal and public security cases.46 This trend suggests how this measure became a normal part of administrative and criminal proceedings against common offenders, exactly as shuanggui became a normal part of proceedings against members of the party. A Fujian prosecutor has illustrated this situation by mentioning internal data of a Fuzhou district-level procuracy. In January 1997, the procuracy received 302 requests for arrest approval. Stop-and-question was used in 94 percent of the cases, or 283 times.47 The generic use of stop-andquestion does not constitute a problem per se. This power exists also in other legal systems, and it is essential to keep public order. In the case of China, stop-and-question had become dangerous because, in practice, it caused the birth of a zone situated outside the legal order. This process has been aided by the existence of a weak judiciary with a politically strong police force, who could suspend the legal order in all cases where it deemed this measure necessary.48 Those subjected to stop-and-question were deprived of their procedural rights the very moment they stepped into a police station. They were formally outside the criminal procedure, and so they could not be assisted by a defense lawyer. They were also outside the administrative procedure, 45 Jiang 2004, referring to stop-and-question as the police’s preferred means of investigations. 46 Pan 2003; Chen 2004. Data are available to prosecutors, who receive case notes filed by the police whenever the police request an arrest warrant. In spite of this, no figures on stop-and-question have thus far been made public. Even if they were, they may contain strong biases. See my discussion of this point below. 47 Wan 1998: 53. 48 I am indebted to an anonymous reviewer for this observation.

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so they could not even enjoy the much weaker legal representation to which most RETL inmates are entitled.49 No formal accusations had been levied at them, and yet they were pressured to confess to some crime. In some cases, the unlawful use of stop-and-question would induce no further consequences on the physical and psychological integrity of a suspect. The chances that torture would be used during stop-andquestion were however high, considering that the police had relatively little time to obtain a confession or other evidence of criminal behavior.50 In the first four months of 2003, cases of torture were reported by Yunnan, Hunan, Sichuan, Henan, Hebei, and Anhui provinces.51 At times, procedural violations may have been simply caused by the murky nature of this power. The police enjoyed both administrative and criminal powers. However, there was a certain degree of confusion as to whether stop-and-question was an administrative coercive measure, a criminal coercive measure, or a combination of administrative and criminal measures. Some provincial lawmakers genuinely understood stop-and-question as a form of criminal detention.52 So did some prosecutors, who argued that the Police Law had actually introduced a new criminal detention power.53 Other administrative organs listed it as one form of administrative deprivation of freedom,54 following the orientation of most legal scholarship. This confusion could result in 49 Ministry of Public Security regulations on the handling of reeducation through labor cases by public security organs (Gong’anbu guanyu gong’an jiguan banli laodong jiaoyang anjian guiding 公安部关于公安机关办理劳动教养案件规定), issued on 12 April 2002 and effective from 1 June 2002. 50 This very clear and simple point is regrettably seldom acknowledged by legal commentators, most of who belong either to public security organs or to procuracies. Hence, they tend to frame torture as a problem related mostly to the disregard of procedural norms, rather than something caused by a suspension of the legal order. For a defense lawyer’s point of view, see Yang 2002. 51 Yan and Ji 2003: 90. 52 For an instance of this, see Jiangxi province rules on protecting the personal freedom of delegates to the local people’s congresses (Jiangxisheng baohu renmin daibiao dahui daibiao rensheng ziyoude guiding 江西省保护人民代表大会代表人身自由的规定), issued on 18 December 1998 and effective from the same date. Reproduced in Jiangxisheng Renda Xinwenwang 2009. 53 Wang 2001: 45. 54 Article 38 (3), Chongqing municipality measures on implementing the People’s Republic of China law on delegates to the National People’s Congress and local people’s congresses (Chongqingshi shishi Zhonghua Renmin Gongheguo quangguo renmin daibiao dahui he difang geji renmin daibiao dahui daibiaofa banfa 重庆市实施中华人民共和国全国 人民代表大会和地方各级人民代表大会代表发办法), issued on 30 July 2007 and effective from 1 November 2007, as amended on 3 December 2008.

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actual repercussions on the treatment of defendants and minor offenders. If stop-and-question is considered a criminal investigation measure, and if this claim is accepted by a court politically weaker than the police, then it cannot be challenged through administrative litigation.55 In 1998 the Ministry of Public Security instructed lower level units to offset stop-and-question against terms of RETL.56 This decision can be interpreted as an implicit statement that stop-and-question was an administrative measure. However, as late as 2003, judges at the Hebei Higher People’s Court did not know whether a confession made during stop-and-question could be considered a mitigating circumstance.57 The problem was, again, that this measure was used before administrative or criminal investigations began, and before charges under SAPL or the Criminal Law were made. One of the most frequent violations involved the use of stop-andquestion after the filing of an administrative or criminal case. When the police already knew that a case was administrative or criminal, this measure could not be used. Public security or criminal investigations had to take place, and investigative coercive measures had to be used. For instance, if Zhang has a quarrel with Mao and hits him, the case is clearly an administrative one. To question Zhang, the police can use an oral summons and then open an investigation on public security charges. At this point, it makes no sense to use stop-and-question, because we already know who Zhang is, what he did, and why. The same logic applies to criminal cases. If Zhang wishes to slap Mao, but Mao unexpectedly loses his balance, falls over, hits his head, and dies, the police have to use a criminal summons to try to reconstruct the event. From the onset, this looks like a case of unintentional murder. If a policeman on patrol sees Zhang walking in a state of confusion

55 Article 11, People’s Republic of China Law on Administrative Litigation (Zhonghua Renmin Gongheguo xingzheng susongfa 中华人民共和国行政诉讼法), issued on 4 April 1989 and effective from 1 October 1990. 56 Ministry of Public Security reply on whether the period spent under stop-andquestion can be offset against a term of reeducation through labor (Gonganbu guanyu panwen liuzhi shijian kefou chedi laodong jiaoyang qixiande pifu 公安部关于盘问留置时间 可否彻底劳动教养期限的批复), issued on 13 October 1998 and effective from the same date. 57 Supreme People’s Court Research Office reply on the problem of how to understand voluntary surrender by a criminal suspect (Zuigao Renmin Fayuan Yanjiushi guanyu ruhe lijie fanzui xianyiren zidong tou’ande youguan wentide dafu 最高人民法院研究室关于 如何理解犯罪嫌疑人自动投案的有关问题的答复), issued on 27 August 2003 and effective from the same date.

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and holding a knife, he can use stop-and-question to determine what he has done. He could also use an oral summons. In practice, these guidelines were overlooked. Stop-and-question was used on criminal suspects such as robbers who had been accused by their accomplices and, hence, were targets of arrest58 or on murderers who were already known to the police. These and similar practices were acknowledged openly by the state-controlled media.59 Provisional norms could be set aside; to the police stop-and-question was a convenient way to bypass the limits of pre-arrest detention. Under normal circumstances, the police have three days to obtain an arrest warrant from the procuracy.60 During this period, evidence sufficient to persuade the prosecutor to issue an arrest warrant must be gathered; otherwise, the suspect must be released. Under the best-case scenario, stop-and-question allowed the police two more days to apply for the arrest warrant. However, stop-and-question could be used well beyond its time limit. Such procedural violations were rather frequent.61 Stop-and-question was also used on migrants62 and prostitutes.63 In theory, these subjects should never have been detained under this measure because they are registered as members of the focal population. Therefore, their presence in a neighborhood should be known both to community policing organizations and to the police itself. If registration and community policing worked flawlessly, then stop-andquestion would have been useless. A constant, discrete surveillance by community policing organizations would have been sufficient to gather enough information on these individuals and their conduct. In reality, neither mechanism worked well. Stop-and-question could become a convenient substitute for detention on public security charges and be used to restrain drunkards and educate them.64 Given that it could be used in the absence of any accusations and on those who just looked suspicious, stop-and-question could be used to intimidate petitioners65 Tianfu Zaobao 2001. Zhongguo Xinwenshe 2002. 60 The time limit can be raised to seven days under extraordinary circumstances and to a total of thirty-seven days if the identity of a suspect is not known or other circumstances are present. See 69, 61 CPL 1996. 61 Sichuansheng Nantongshi Zhongji Renmin Fayuan 1999; Sichuansheng Liangshan Yizu Zizhizhou 2000; Shenzhen Tequbao 2001. 62 Guangzhoushi Panyuqu Renmin Fayuan 2007. 63 Sichuansheng Nantongshi Zhongji Renmin Fayuan 1999. 64 Yunnansheng Kunmingshi Zhongji Renmin Fayuan 2000. 65 Ha’erbin ribao, 23 August 2004. 58 59

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or remove vagrants.66 Other problems concerned the falsification of police forms. Stop-and-question could last twice as long as a public security or criminal summons, so it could be used to extend the time limits of summons.67 Furthermore, the police would use stop-and-question, but instead fill in the approval forms for any criminal coercive measure and postdate it. The immediate effect of this practice was to induce a systematic bias in the collection of statistical data on police and prosecutorial work. On the surface, it appeared that public security organs were using summons and complying with their time limit. Reality, of course, could be much different. Stop-and-question came under criticism also because relatives of detainees were seldom notified of its use.68 Furthermore, it was often used on the mentally ill.69 Interrogational torture created another pressing problem. Various episodes, routinely mentioned by media reports, highlight that detainees were regarded as, more or less, worthless beings. These stories had become normal. One might read how Han ** was stopped and questioned by two patrolmen who raped her and then beat her until she admitted to having had sex with other men.70 Other similar episodes involved questioning women found in the company of their lovers, subjecting them to a pregnancy test, and forcing them to have an abortion;71 torturing a schoolchild to make him confess he had stolen a motorbike;72 and locking up female teenagers in a cell together with male criminal suspects.73 Such horrifying chronicles might have been

Liu 2005: 171, mentioning its use to round up vagrants and beggars. Tao 2004: 56; Li 1997, illustrating how this practice was illegal. 68 Wan 1998: 53, stating that this was common practice. Sichuansheng Leshanshi Shizhongqu Renmin Fayuan 2001. 69 Zhang 2001: 2. 70 It can be argued that police rape is symptomatic of widespread and systematic abuses, which go far beyond stop-and-question. This truth cannot be denied. In the cases I mention here, commission of rape and other crimes was however aided by the existence of stop-and-question. In fact the police first used stop-and-question, and only then performed rape. In principle, there was no reason why the victim should have been subjected to this measure. Rape is rape, a crime that can be performed in the most diverse circumstances. Why then bother to use stop-and-question? The fact that the use of this measure leads to a temporary deprivation of procedural rights is something well known to the police. Moreover—whenever the enjoyment of rights is suspended—abuses become easier to perpetrate. The other episodes mentioned here prove how this dynamic was by no means an isolated occurrence. 71 Shijiazhuang Ribao, 8 May 2004. 72 Nanfang Doushibao, 14 November 2003. 73 Yangcheng Wanbao, 26 February 2000. 66 67

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featured on Falungong media; instead, they could be found routinely in state-controlled newspapers. 4.5

Disposable Beings

Stop-and-question failed to elicit much attention until the summer of 2004. Discussions about it took place mostly within the scholarly community, with some commentators calling for its inclusion in the Criminal Procedure Law.74 Press reports featuring gruesome stories were met by the public with a jaded indifference; disgust that the public may have felt did not effect any visible manifestations of discontent or opposition to this specific police power. A similar reaction was unsurprising: Wasn’t stop-and-question used on suspects? Shouldn’t the police have the means to protect our property and our persons? The roar of public indignation eventually came, caused by the death of a three-year-old, Li Siyi. On June 4, 2003, Li Siyi’s mother, Li Guifang, was caught by a supermarket security guard (保安bao’an) as she stole two bottles of shampoo. The case was reported to the Jingtang county police station,75 and an officer soon arrived at the supermarket. Guifang was placed under stop-and-question. The commercial value of two bottles of shampoo was within the monetary threshold of 500 RMB, which was used to distinguish between public security and criminal cases of theft.76 Li had been summoned more than ten times by the local police station,77 so she was an old acquaintance of the police. As an addict and a minor criminal, she had been registered in the database for the focal population and was kept under community surveillance. Li had to inform the residents’ committee of all of her movements, greeting them every time she went out and came back. Furthermore, she lived two hundred meters from the police station; both the police and their para-police aides had a clear opportunity to see her several times. Consequently, there was never an actual need to use stop-and-question on Li Guifang. However, the officer, Huang Xiaobing, had a different opinion. He stopped Li because he deemed her a suspicious character.78 He 74 75 76 77 78

Wang 2001; Jiang 2004. The case took place in Sichuan province. Geng 2004: 335. Xinhuawang 2004. Zhongguo Qingnianbao 2003.

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must have formed such a judgment based on Li’s appearance. The woman had the dirty, scruffy look of an addict. When a urine test was performed on her, Li was found positive and sentenced to a term of compulsory drug rehabilitation (强制戒毒 qiangzhi jiedu).79 During and after the questioning session, Li told the police that she had left her three-year-old baby home alone and asked them to get in touch with her sister so she could take care of Siyi. The officers knew that Li was a single mother. In previous instances, they had chosen not to send her to RETL precisely on these grounds. This time, circumstances worked against Li Siyi who died of hunger and thirst. Her body was found after seventeen days, on June 21, in an advanced state of decomposition. Only after the child’s death was the public uproar heard, both in China and abroad. Similar incidents include the case of Sun Zhigang, a fashion designer beaten to death in a shelter for deportation center, and the “hide and seek case,” in which a suspect, Li Qiaoming, died in a detention center while purportedly playing a game of hide and seek.80 These, however, were not the only abuses that took place in relation to administrative detention, a truth acknowledged, in spite of information control, by the Ministry of Public Security81 and the media alike. What had been of all the other victims whose names were not Sitai, Zhigang and Qiaoming? Cries for justice for some victims were heard, and then police work was challenged openly. All the other victims went mostly unnoticed. No one wrote eulogies for them, no one opened online memorials, reforms were not invoked, and no citizens’ committees were formed to investigate the cause of their deaths. Clearly, the public cannot spend their entire time protesting the deaths and abuses taking place in detention facilities; the public needs, somehow, to be selective in its protests. A partial explanation can then be found in the high profiling of the Li Siyi, Sun Zhigang, and Li Qiaoming cases, if we assume that, to a certain extent, the media can, indeed, influence people. If their stories obtained a wide audience, it meant that there was something significant about them. Apparently, the public identified 79 At the time, this detention measure still bore its name, as the People’s Republic of China anti-drug law was not effective yet. For subsequent changes, see Chapter 6. 80 Fazhi zaixian 2009. 81 Ministry of Public Security Circular on strictly controlling the use of shelter for examination (Gong’anbu guanyu yangge kongzhi shiyong shourong shencha shouduande tongzhi 公安部关于严格控制使用收容审查手段的通知), issued on 31 July 1985 and effective from the same date.

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with Siyi, Zhigang, and Qiaoming, but not with other victims, whose names and faces fell into oblivion. An honest and provocative question would be whether Siyi, Zhigang, and Qiaoming were better than other victims and if such an inherent superiority made them worth the attention that was denied to countless other victims. To the police, there may have been formal differences between Siyi, Sun Zhigang, or She Xianglin: Li Siyi was an addict’s baby, and Sun and She were criminal suspects. Preserving the life of Li Siyi was beyond the police’s responsibility—the police had no legal guardianship over her. Even so, the police conduct suggests that she was not worth their concern. Sun Zhigang did not have his documents when he was stopped while entering an internet cafe. Because the police suspected him to be an illegal migrant, Sun was sheltered for deportation. She Xiangling claimed that his wife had disappeared, and yet the decayed body of a woman was found in the village near to where he lived. The treatment meted out to them testifies to how Sun and She had become bare life. After being admitted to the detention center’s hospital, Sun’s cries for help induced an assistant nurse to order eight other patients to beat the man. If the police had regarded the life of Sun Zhigang as valuable (bios), they would not have detained him in the first place, because Sun—whose crime was that he had left his ID at home—did not entirely fall within the scope of targets of shelter for deportation.82 If the assistant nurse had not looked upon

These were defined by Guangdong regulations as: (1) indigent vagrants and beggars who drift about; (2) those who sleep on the street and have no means of livelihood; (3) those suffering from mental illnesses or severe cognitive impairment who sleep on the street and have no legal guardian; (4) those rescued during a suicide attempt, whose identity is not clear, and have no relatives or work unit to return to; (5) abducted women and children, or women and children who have been abducted and sold, who after being rescued have no relatives or work unit to return to; (6) those without identification documents, without stable residence, without source of income who drift about; (7) those who voluntarily ask for help at a shelter for deportation station and conform to the condition for being sheltered. Article 9, Guangdong province rules on the administration of shelter for deportation (Guangdongsheng shourong qiansong guanli guiding 广东省收容遣送管理规定), issued on 23 March 2002 and effective from 1 April 2002. Repealed on 25 July 2003 by the Guangdong People’s Congress Standing Committee decision on repealing the Guangdong province rules on the administration of shelter for deportation (Guangdongsheng Renda Changweihui guanyu feizhi Guangdongsheng shourong qiansong guanli guidingde jueding 广东省人大常 委会关于废止广东省收容遣送管规定的决定).

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Sun as bare life, she would not have ordered his beating. If officers had respected She’s dignity, they would not have cut off his finger to stamp his fingerprint on the confession they had forged. In each of these three cases, and presumably in the case of the nameless victims too, there was always a crucial point at which state or nonstate agents had to make the fundamental decision of whether to unleash their powers against their subjects. The suspension of procedural rights, the emphasis on confessions, and other well-entrenched mechanisms of the legal order could highlight the difference of power between state actors and their subjects, thus contributing to their dehumanization, one of the important variables that allow torture to happen.83 The public, on the other hand, could identify more easily with Li Siyi or Sun Zhigang than with those believed to be guilty of an offense. Indeed, suspected offenders posed a potential threat to the citizenry. Their detention could be justified, and their fate would not necessarily meet with the public’s sympathy. The cases of Siyi and Zhigang were different: a baby and an honest fashion designer who had just forgotten to take his ID on his way to an internet cafe. Furthermore, these cases could be indicative of a subtle fear. The random stopping, arresting, and killing of ordinary people could signal that the friend/enemy distinction had collapsed from the police perspective, leaving their power unconstrained. Therefore, each one of us might have been regarded as the enemy. Each one of us might have been wrongly suspected by the police and compelled to sign a bogus confession. Albeit existing only in a potential state, this fear seemed to approach an actual state more each time an innocent person died. Popular media reports reinforced these worries: “Regarding Sun Zhigang as one of us, considering each and every victim as

Sun Zhigang, who was arrested in Guangzhou, did not have a temporary residence permit but could prove his identity by his identification card. After he was stopped and brought to the police station, he called a friend and a colleague and asked him to bring the identification card and to post his bail. Article 11 of the Guangdong rules does not allow to shelter for deportation those who are found without documents during a police check: “Those with an identification document, a stable residence, a legitimate source of income, who do not carry their identification documents are not to be sheltered by relevant department if they provide an explanation which is proven true by the facts.” Clearly, this article should have applied to the case of Sun, but it was not. 83 Rejali 2007, discussing the effects of dehumanization at 415.

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one of our brothers and sisters will perhaps make people appreciate humanism.”84 Rather than delving in abstract ideas about humanism, the public might, instead, become fearful of the police and mistrust them. Police powers that could cross the friend/enemy distinction and target anyone meant that anyone might meet with the same fate of Sun Zhigang or She Xianling. Children might even suffer the same fate of Siyi. As this potential risk became understood, citizens began writing angry letters and publishing memorials about innocent victims.85 Clearly, the fate of those who were guilty was not the public’s concern: criminals were on the other side of the friend/enemy divide. 4.6

Reforming Stop-and-Question?

In 2003, protests over the death of Sun Zhigang had led to the socalled abolition of shelter for deportation. Instead, stop-and-question followed a different reform path and was further rationalized.86 Stop-and-question was formally abolished on 1 October 2004, by the rules on the use of continued questioning,87 a document issued by the Ministry of Public Security, which also mandated that interrogation rooms (liuzhishi 留置室) be closed down. To replace this power, “continued questioning” ( jixu panwen 继续盘问) was introduced, and interrogation rooms were replaced by houwenshi 候问室. Formal changes brought the content of this measure in line with relevant statutory dictates of the Criminal Procedure Law. Earlier, subtle differences in the definition of targets had been replaced by a slightly different definition. The targets of continued questioning are:

Jian 2003. Kang 2003. 86 This observation is generally absent from the body of literature on continued questioning. Most authors show an exaggerated optimism about this measure. One scholar has pointed this out how reform of stop-and-question has caused further legislative conflicts to arise. See Dong 2005: 12. 87 Ministry of Public Security rules on the use of continued questioning (Gong’anbu guanyu shiyong jixu panwen guiding 公安部关于适用继续盘问规定), issued on 12 July 2004 and effective from 1 October 2004, hereinafter referred to as Rules on continued questioning. Article 44 of this document repeals all the departmental legislation until then issued. 84 85

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1. Individuals who have been accused of criminal conduct by a victim or eyewitness. 2. Individuals who are committing a violation of public security or are suspected of committing a crime. 3. Individuals who are suspected of violations of public security or of crimes, and whose identity is unknown. 4. Individuals who carry goods or other property that may have been obtained through violations of public security or crimes.88 The Rules contain specifications about those on whom continued questioning cannot be used. Individuals apprehended at their homes or work places cannot be stopped, as they are, instead, the targets of summons. Offenders who surrender voluntarily cannot be subjected to this measure for there is no objective need to stop them. Suspects who already are under public security or criminal investigation cannot be stopped either, as well as those who may have committed infractions punishable with nondetentive, public security punishments.89 In addition, the mentally ill, suspected carriers of infectious diseases, and individuals outside police jurisdiction are also excluded from the range of targets of this measure.90 Introducing these specifications was necessary to make a clear distinction between continued questioning and summons, a distinction that was absent in the case of stop-and-question, which led to its use in place of summons. The Rules also established the obligation to question suspects on the spot, before they were brought to a police station for further questioning. In the absence of on-the-spot questioning, continued questioning could not be used. Obviously, individuals who had been questioned on the spot and cleared of all suspicions were no longer brought in for further questioning. By no means were these provisions new. They did nothing but reinstate what was already written in all existing police manuals, namely that stop-and-question, public security summons, and criminal summons were to be used on different targets, and that stop-and-question could not be used illegally to extend the duration of summons. Because limitations on or deprivation of freedom could be used on the mentally

88 89 90

Article 8, Rules on continued questioning. Article 9 (3) (4) (5) (6), ibid. Article 9 (1) (2) (7) (8), ibid.

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ill and carriers of infectious diseases, there was no need to stop them. After the existence of psychiatric pathology had been assessed, the mentally ill could receive compulsory psychiatric care at police-run mental clinics. Coercive medical care was provided for infectious patients. The freedom of infectious patients could be limited under such measures as geli while their conditions were assessed by health officials. Individuals whose “cases do not belong to the jurisdiction of public security organs”91 are to be understood as party members. As their cases fall first under the jurisdiction of CDIs and then of the procuracy, those suspected of corruption could not be summoned by the police because they would be detained under shuanggui. The Rules set clear guidelines on how to distinguish continued questioning from summons and administrative and extra-judicial forms of detention. This legal document served as a reminder to public security officials that each group of deviants, actual or suspected, had to be managed differently and dispatched to the appropriate detention facility. This process of exclusion, which can in practice be quite complex, was rationalized so detention powers could be exerted in rational and efficient ways: [T]ime limits . . . end at the hour when the person under questioning can freely leave the police organ, or when it is decided that he will be summoned, arrested, put under public security detention (xingzheng juliu), shelter for education (shourong jiaoyu), [or] compulsory drug rehabilitation (qiangzhi jiedu) and transferred to the relevant detention facility.92

Ideally, police stations had to check, sort, and classify deviants instead of indiscriminately bringing everyone in for abusive interrogation. The introduction of different time limits follows this same logic. The time limits of continued questioning range from four to forty-eight hours.93 The shortest time limit of four hours applies to pregnant and nursing women and those below sixteen or above seventy years of age.94 It is adopted out of consideration for their state of vulnerability. They are to be released between nine in the evening and seven in the morning,95 when presumably their relatives have time to pick them up at the police station. A twelve-hour time limit applies to the majority of sus91 92 93 94 95

Article Article Article Article Article

9 (7), Rules on continued questioning. 11, ibid. 11, ibid. 10, ibid. 10, ibid.

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pects. This limit can be extended up to twenty-four hours if a single session is not enough to clear the suspect.96 A further extension to forty-eight hours is possible in all those cases when a suspect does not reveal his true name, address, or identity. The current approval procedure of continued questioning has become far more articulated than the older one. The old procedure was fairly simple and flexible: police officers were required to show their identification documents before pronouncing the stop order. The officer had to then complete a stop-and-question notice and obtain the approval of the station’s director.97 The next step was the notification of the suspect’s family of this measure, which was followed by the actual interrogation, of which a record was mandated. If twenty-four hours were not sufficient to rule out suspicion, a further twenty-fourhours extension could be applied for at a district-level public security office. Once such an extension was granted, there were only two possible outcomes. Either the suspect was cleared and could leave the station, or—if the police suspected him of a crime or a minor offense—a summons could be requested. Compliance with these procedural norms was relatively easy. New procedural norms, on the other hand, are articulated potentially to induce noncompliance, given the variety of tasks the police must perform, tight schedules, and shortage of personnel. Under the new procedure, a suspect is first questioned on the spot. A record of the questioning must be compiled before the suspect can be brought in. As soon as he enters a police station, the use of continued questioning should be approved within twelve hours by the director or deputy director. Furthermore, the actual time of a suspect’s arrival must be recorded. These requirements alone are sufficient to let a suspect free, or to limit his freedom extra-legally. If a suspect is apprehended at two in the morning, and the director and deputy director are unavailable until three in the afternoon, then the approval of this measure cannot take place. The individual officers are left with the choice between setting the suspect free and holding him, which may be in violation

Article 11, Rules on continued questioning. Article 1, Ministry of Public Security interpretation on some problems in the implementation of the People’s Police Law (Gong’anbu guanyu gong’an jiguan zhixing Renmin jingchafa youguan wentide jieshi 公安部关于公安机关执行人民警察法有关问题的 解释), issued on 15 July 1997 and effective from the same date. 96 97

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of procedure. Notification of this measure at the district level,98 to the suspect and his relatives, in fact, should take place within thirty minutes after this measure’s approval. Similarly, the mechanisms introduced to avoid the occurrence of torture appear to be of difficult implementation. The most stringent requirements in this respect concern interrogation rooms. Since 2004, such rooms must measure no less than six square meters, the ceiling must be higher than 2.55 meters, and the cell must have a window, a bed, and a toilet. Most important, the room must be next to the reception area from which it is separated with either a glass wall or a large window. The detention of suspects in any other room or facility is prohibited.99 Questioning, however, can take place in an office room or at a police station equipped with a room meeting these requirements. Not all stations can comply with these requirements. All wounds and marks on the body of a suspect must be noted and recorded before the questioning session. The Rules contain no provisions on the minimum number of officers who can take part to the questioning session.100 Preservation of the scene is mandatory when a suspect dies during a questioning session. Furthermore, the suspect’s relatives and the district-level public security organ must be immediately notified. It is not clear what role, if any, the procuracy plays in investigating these cases. In fact, the power to appoint a forensic expert to assess the cause of death belongs first to the public security organ. The victim’s relatives can reject the autopsy report and make a request to the province-level public security bureau that a second autopsy be performed. In this case, however, the forensic expert is appointed by the district-level public security organ,101 the organ that should report cases of police torture to the procuracy. The establishment of forensic centers by public security organs provides ample grounds for questioning a forensic expert’s neutrality.102 It should

This measure cannot be used by district-level organs. Article 30, Rules on continued questioning. 100 The procedure to be followed to extend the time of questioning has not changed. 101 Articles 24, 25, Rules on continued questioning. 102 See Ministry of Public Security circular about adding the title “judicial forensic center” to forensic organs established by public security organs (Gong’anbu guanyu gong’an jiguan jianding jigou jiagua “sifa jianding zhongxin” chengwei de tongzhi 公安部关于公 安机关鉴定机构加挂 “司法鉴定中心” 称谓的通知), issued on 24 December 2008 and effective from the same date. 98

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come as no surprise that deaths during torture are often qualified as deaths from natural causes and monetary compensation is offered to the victim’s family to dissuade them from taking legal action. The same weaknesses are revealed by those supervision mechanisms used on cases of wounding, self-wounding, suicide, improper use of weapons or restraining devices, and procedural violations.103 Each of these occurrences is investigated first by the supervision departments (ducha bumen) of the people’s police. The adoption of internal investigation mechanisms clearly cannot balance the incentives the police have in practicing interrogational torture. 4.7

Conclusion

As with shuanggui, stop-and-question allows detention in the disregard of procedural norms. According to the Criminal Procedure Law and SAPL, information about a suspect’s conduct should be acquired using summons. Summons should constitute the first stage of criminal or public security investigations. In practice, a summons is used only after a suspect has been detained under stop-and-question, to extend the time limits for investigation artificially. This power is unlike both criminal and public security summons. Substantively, it exists outside the criminal procedure legislation. Stop-and-question lies in a grey area where procedural guarantees can be bypassed and the rights of suspects can be suspended. In principle, this power can be used on anyone. The birth of this power constitutes the acknowledgement of a situation of fact, in which the police could act upon their suspicions, ignoring minimal legal constraints. Until the late 1970s, flaws in criminal and criminal procedure legislation could justify the malfunctioning of legal constraints, or their absence, and, thus, explain police abuses. The Police Law should have ideally put a check on this situation. If it did not, it is because the pre-existing situation of fact was turned into a situation of law. In other words, stop-and-question was subsumed under national-level legislation, thus becoming part of the legal order, which had the potential to deprive suspects of their rights as no significant constraints were placed on power. On the contrary, now a national-level law legitimized the unleashing of police

103

Chapter 5, Rules on continued questioning.

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powers. Unworkable supervision mechanisms were introduced that gave the police greater control over the investigation of torture. However, the Police Law received, on the whole, positive evaluations. Faith in the law’s quasi-mystical power to eliminate police abuses was thus entirely misplaced, because—this time—the law had put in place mechanisms that enabled the police to ignore summons and call in suspects using stop-and-question. As soon as a suspect was placed under stop-and-question, that individual was deprived of his procedural rights and guarantees and placed under the nearly complete, albeit temporary, power of police officers. How could the law—the very same law that had placed a stamp of approval on preexisting police practices—have the force to protect a suspect? Legal scholars can analyze the law, legal commentaries can be written, and the substantive contents of the Police Law can be disseminated by legal education campaigns. Legal knowledge, thus, becomes power. However, as soon as the threshold of a police station was crossed, this power was confronted by the power of those who monopolized punishment. The power a suspect drew from knowledge of his legal rights became mere fiction once his procedural rights were suspended. This state of things, which was foreseeable, came almost unexpectedly, and induced ample discussions by mainland legal scholars and, of course, by the media. The discussions lasted until 2004. The reform of stop-and-question should have made for its more rational and efficient use. It is hard to say whether this goal has been in practice achieved. The new approval procedure, in some cases, is difficult to adhere to; Chinese legal commentators hold that reform has not resulted in substantial changes. In some areas, the new stop-and-question may exist more in theory than in practice. Elsewhere, police officers simply disregard the Rules, which they see as posing too many unnecessary restraints on investigations.

PART TWO

EXCEPTIONS IN EVERYDAY SPACES

CHAPTER FIVE

PARA-POLICE FORCES Arrest robbers, and execute them on the spot.*

This chapter surveys the genesis and powers of public security joint defense teams, private security companies, and urban management officials and outlines the links between them and public security organs. Community policing organs have been seen under a favorable light. Aside from descriptive1 and comparative analyses,2 the emerging scholarship on this topic conceives of community policing as a social resource,3 stressing the role inclusion processes play in crime prevention,4 and highlighting continuities with Confucian heritage.5 Inclusion, self-help, and empowerment have thus become the new buzzwords employed in relation to para-police forces. Noticing that a rigorous definition and theorization of this new paradigm of policing are still lacking,6 mainstream scholarship is somewhat less optimistic. Some scholars have observed how bottom-up approaches to policing still result in the rounding up of the usual suspects.7 The extent to which communities have been empowered8 and marginalized groups addressed has been questioned.9 A partial explanation may be provided by the inherent incompatibility between the bottom-up philosophy * Haikou, Changsha, Zhengzhou—public slogan. August 2007. 1 Chen 2002. 2 Jiao 2001. 3 Wong 2009. 4 Zhong 2009. However, Zhong and Grabowsky have noticed how abuses of power persist. See Zhong and Grabosky 2009. Earlier studies have found that the relationship between citizens and the police is marked by a low level of trust. See Cao and Hou 2001; Du 1997. 5 Advocating the use of a bottom-up and empirical approach to the matter, Kam C. Wong writes: “If we should look at China from bottom’s up and empirically, we will find that ‘policing’ as a function starts with self and ends with the family/community, i.e., “self-governance” and then takes a turn to traditional Chinese culture: “Kongfu [Confucius] household is an ideal type of self-governance and informal social control.” Wong 2007: 122. 6 See Williamson 2008, part 1. 7 Crawford 1997. 8 Friedman 1994. 9 Skogan 1990.

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of community policing and the values and culture of the police.10 In the case of China, different variables could be at play. Changes in community policing took place as a reaction to problems similar to those experienced by the United States in the 1970s, specifically, the police’s lack of credibility and its strained relationship with marginalized groups.11 In China, community policing organizations may not be bound by the same constraints existing in liberal democratic or corporatist states.12 Para-police bodies exist more or less in the absence of any appropriate legal basis, are closely linked to the police, and in practice wield some of their powers. Monitoring and accountability systems are also rather weak. The pervasive presence in society of these bodies’ unconstrained power can easily result in abuses, rather than the empowerment of residents’ communities. 5.1

The Birth and Revival of Para-Police Forces

Known as fujing (辅警), para-police forces are composed of a broad array of civilian, private, and administrative bodies ancillary to regular police forces. Chinese commentators normally suggest that the birth of these forces was spurred by the fourth high tide of crime13 and the marketization of security. In this respect, there seems to be an uninterrupted continuity between the reform era and the imperial period. During the imperial period, resident militias, personal guards, and private armed forces were maintained by the noblemen, gentry, and lineages to guard property, recover debts and collect taxes, perform beat patrols, and arrest bandits.14 The background of members of private forces was such as to cause problems: in the Qin dynasty, watchmen (hou) were recruited from among hard labor convicts, or

10 By its own nature, the police has a paramilitary structure, and “superimposing community policing onto a paramilitary organization is difficult. The philosophies of the two approaches are not entirely compatible.” Hodgson 1998: 47. 11 These findings have been echoed by a study of community policing in Hong Kong, observing that the police are unable to relate to society meaningfully. Wong 2001. 12 Williamson 2008, referring to Japan as an oriental corporatist state. 13 Bin 2008: 83 and ff., providing descriptive statistics about the crime rate. For a discussion of crime waves, see Bakken 2000: 380 and ff.; Bakken 2005. 14 Zelin 1990, referring to resident milias and private armed forces in the late Ming and Qing dynasties.

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those who had suffered mutilating punishments.15 Much later, private guards and village militiamen ( genglian) were recruited from among disbanded soldiers and tricksters who shared a background similar to the one of those bandits they should have arrested.16 Guards and milita’s connections to secret societies, coupled to their harsh living conditions, often caused violence and rebellions.17 The formation of security guard teams and local militia intensified18 and persisted throughout the Republican period.19 Clearly, these forces existed to trace a divide between the resident population and offenders. A radical change came about as the CCP organized the first workers’ pickets ( gongren jiuchadui 工人纠察队) in 1927.20 From this moment on, the core task of para-police bodies had turned to identifying and eliminating those whose ideas were incompatible with the CCP conception of political order. These and other irregular bodies played a key role in most mass movements and mushroomed during the Cultural Revolution. Elizabeth Perry recounts how one of them, the Shanghai Physical Education Battlefront Revolutionary Rebel Headquarters, fought internal enemies: Victims of Shangtisi assaults might . . . find themselves dragged off to the headquarters of the Physical Education Committee for a roughing up (sometimes completed with vicious attack dogs). The organization was led by Hu Yongnian. . . . Hu established a security group that forged links with the rebels in the Public Security Bureau (PSB). Members of the bureau served as advisers to the rebel athletes, issuing passes for Shangtisi leaders to enter the PSB freely, and authorizing joint investigations and arrests.21

Once internal enemies were redefined in nonideological terms and offenders took the place of counter-revolutionaries, the state’s response changed. The days of mass movements were gone; enemies now had

15 Hulsewé 1985: 15, 175 discussing watchmen and palace watchmen (gonggengren). Rawski 2002: 82 and ff., discussing the role of bondservants as personal and imperial guards. Dermott 1981: 681 mentioning how personnel often would be assigned by the state to noblemen. 16 Eng 1986: 13, 28 discussing alluvial guards in the early Qing dynasty. 17 Tong 1991, particularly chapter 7, for a discussion of bondservants’ rebellions in the Ming dynasty. 18 Lin 2002. 19 For a discussion of the Republican period, see McCord 1990 and Liang 2003 on the Guangdong militia. See Wakeman 1996 for a study of the secret police in Republican Shanghai. 20 Liao 2001: 215. 21 Perry 2007: 216. Italics mine.

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to be rooted out through a policy of comprehensive management of public order, with its corollaries of “strike hard” ( yanda) campaigns, and more focused campaigns held at the local level.22 Para-police forces were preserved, and old political directives wormed their way in the legal order of technocratic China. To understand this process, it is necessary to jump back in time, to the early days of the Maoist regime. 5.2

Legal Mechanisms

In May 1951, the Third National Conference on Public Security Work was held in Beijing.23 It was a time when the recently established people’s police was still seriously understaffed and filled with politically unreliable Republican officers.24 A solution to these problems was found in mass-line policing. An ideologically colored version of community policing, mass-line policing allowed a capillary penetration of police power in society through the creation of informal policing organs, the public order committees. These committees are the realization of words Mao Zedong personally added to the Conference’s final resolution: [P]ublic order committees must be organized among the masses everywhere. These committees should be elected by the people in every township in the countryside and in every department and organization, school, factory and neighbourhood in the cities. The number of committee members may be as small as three and as large as eleven and must include reliable non-Party patriots so as to make the committee a united front type of organization to safeguard public order. Under the leadership of grassroots governments and public security organs, committees have the responsibility to assist the people’s government in eliminating counter-revolutionaries, guarding against traitors and spies and safeguarding our national and public security.25

Mao’s instructions were fleshed out in June 1952, when the Ministry of Public Security drafted a provisional regulation on public order com-

22 23 24 25

On anti-crime campaigns, see Tresvaskes 2007; Biddulph 2007; Tanner 1999. Lieberthal and Dickson 1989: 5. Dutton 2005: 143–49 discusses these points in detail. Mao 1951: 52.

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mittees.26 Two years later, urban resident committees were vested with the power to establish work committees for public order defense (zhi’an baowei gongzuo weiyuanhui ),27 thereby leading mass-line public order defense work.28 The rationale behind the birth of mass-line policing was clearly political.29 As a matter of fact, the creation of para-police forces could take place outside this skeletal legal framework. As I have mentioned in chapter 2, during the Cultural Revolution, party bodies wielding investigative and judicial powers were established. During the Mao-Deng transition, great care was taken in disbanding them and prohibiting their formation under any other guise. At this point in time, a development that would have dense future consequences occurred. The words Mao had written in 1951 were inserted into the 1982 Constitution, becoming article 111:30 Residents and villagers’ committees establish committees for . . . public order, . . . in order to help maintain public order, convey residents’ opinions and demands and make suggestions to the people’s government.31

An old political directive had thus given legal form to para-police organs. As a final step, in 1987 rural residents committees were formally

26 State Council Organic Provisional Regulations on public order committees, (Guowuyuan zhi’an baowei weiyuanhui zanxing zuzhi tiaoli 国务院治安保卫委员会暂行组 织条例), issued on 27 June 1952 and effective from the same date. 27 Article 3 (3), ibid. 28 Article 2 (4), People’s Republic of China Organic Regulations on urban residents’ committees (Zhonghua Renmin Gongheguo chengshi jumin weiyuanhui zuzhi tiaoli 中华人民共和国城市居民委员会组织条例), issued on 21 December 1954 and effective from the same date. Repealed on 1 January 1990 by the People’s Republic of China Organic Law on urban residents’ committees (Zhonghua Renmin Gongheguo chengshi jumin weiyuanhui zuzhifa 中华人民共和国城市居民委员会组织法), issued on 26 December 1989 and effective from 1 January 1990, hereinafter referred to as Law on urban residents’ committees. 29 Internal protection units, another mass-line policing organ, were standardized in 1950. This difference can be explained by the fact that internal protection units had existed since the early 1930. For a description of these organs in the 1980s and 1990s, see Dutton 2005: 290–93. Government Administrative Council decision on carrying out internal protection work within financial departments and departments for economics (Zhengwuyuan guanyu zai guojia caizheng jingji bumenzhong jianli baowei gongzuode jueding 政务院关于在国家财政经济部门中建立保卫工作的决定), issued on 24 March 1950 and effective from the same date. Described in Zhongguo Baowei Gongzuo Shiwu yu Guanli Quanshu Bianweihui, 1996: 369 and ff. 30 Committees for public order defense were never mentioned in any of the constitutions in effect before 1982. 31 Article 111 (2). Italics mine.

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vested with the same powers their urban counterparts had enjoyed since the 1950s.32 Deng’s regime wished to avoid situations whereby self-proclaimed policemen harassed innocent people. At the same time, the need to draw a binary distinction among the people persisted. In the post-1978 era, a new ideological foundation based on pragmatism, social stability, and economic growth meant that threats now arose from different quarters. The rising crime rate and a generic feeling of social disorder meant that the distinction between those whom the state had to protect and those who had to be punished now rested on intents to harm the community. That urban and rural residents were involved in tracing this distinction by leading the committees seemed all the more natural in light of Chinese traditions of policing, Communist conceptions of the police as servants of the people, and Western views of the police as a social service agency. An equally natural development was reforming policing organizations that were hastily established in the 1950s. A noteworthy consequence of the 1988 reform of police stations was the introduction of police oversight on “autonomous mass defense work” (qunfang qunzhi gongzuo 群防群 治工作)33 and the rebuilding of a network of community organizations. The network had to include committees for public order, but it could also include other para-police bodies. In 1988, the Ministry recommended that “Residents’ committees and enterprise units . . . raise funds and assemble people that will be deployed to protect public order in neighborhoods and enterprises.”34 Soon afterwards, the Central Committee of the CCP echoed words very similar to those of Mao, with the apparent intent to empower local communities in the fight against crime: 32 Articles 2, 14, People’s Republic of China Organic Law on rural residents’ committees (for trial implementation) (Zhonghua Renmin Gongheguo cunmin weiyuanhui zuzhifa (shixing) 中华人民共和国村民委员会组织法(试行)), issued on 24 November 1987 and effective from 1 January 1988. Repealed on 4 November 1998 by the People’s Republic of China Organic Law on rural residents’ committees (Zhonghua Renmin Gongheguo cunmin weiyuanhui zuzhifa 中华人民共和国村民委员会组织法), issued on 4 November 1998 and effective from the same date. 33 Article 2 (2), Ministry of Public Security opinion on some problems in the work of reforming urban public security stations (Gong’anbu guanyu gaige chengshi gong’an paichusuo gongzuo ruogan wentide yijian 公安部关于改革城市公安派出所若干问题的意见), issued on 15 January 1988 and effective from the same date. 34 Ministry of Public Security request for instruction about further strengthening mass-line joint defense work (Gong’anbu guanyu jixu jiaqiang qunzhongxing zhi´an lianfang gongzuode qingshi 公安部关于继续加强群 性治安联防工作的请示), issued on 29 November 1988 and effective from the same date.

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The requirement posed by the work of comprehensive management of public order [is] as follows[: . . .] implementing each measure down to the grassroots level in urban and rural centers, by setting up a network of autonomous mass defense organs, inducing a generalized strengthening of the masses legal consciousness, daring to fight against minor crimes and crimes.35

As expected, the National People’s Congress quickly gave binding force to these instructions.36 These developments can be seen as a sort of “top-down empowerment” of resident communities. Mao’s words, as appearing in the 1982 constitution and repeated by the Thirteenth Central Committee, had given citizens the juridical means to trace a divide between law-abiding citizens and those citizens who might cause them harm. Most important, a preexisting situation was normalized. Before any of these documents acquired binding force, members of para-police bodies were already part of the normal landscape of special economic zones, neighborhoods, offices, and factories. 5.3

Public Order Joint Defense Teams

Public order joint defense teams ( JDTs) were born once defense committees elected by citizens joined forces with security organs established in work units.37 The merger was necessary because without the support of these more politically powerful security units, residential committees would have achieved little in the fight against counterrevolutionaries. The biggest and most important38 para-police bodies were established in major urban centers39 and staffed by local cadres,

35 Article 2 (3), Central Committee of the Chinese Communist Party and State Council decision on strengthening the comprehensive management of public order (Zhonggong Zhongyang, Guowuyuan guanyu jiaqiang shehui zhi’an zonghe zhilide jueding 中共 中央, 国务院关于加强社会治安综合治理的决定), issued on 19 February 1991 and effective from the same date. Italics mine. 36 Article 5, Standing Committee of the National People’s Congress decision on strengthening the comprehensive management of public order (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu jiaqiang shehui zhi’an zonghe zhilide jueding 全国人民代 表大会常务委员会关于加强社会治安综合治理的决定), issued on 3 February 1991 and effective from the same date, hereinafter referred to as 1991 NPC decision. 37 Dutton 2005: 166. 38 Jin 2003, echoing most of the slim body of Chinese literature on this para-police force. 39 Beijingshi Fangshanqu zhi bianji weiyuanhui: 452, with an early mentioning of this organization in the post-Mao era.

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civilian personnel, and members of the military.40 Local chronicles give detailed information about the existence of JDTs in the 1950s, without mentioning their legal basis. The reason is simple: JDTs were a creative solution devised to protect the revolutionary order. Public order defense committees and protection units did possess an inadequate legal basis, but the force generated by their union was something new, and something that existed outside the law. In the post-Mao era, the Ministry of Public Security mentioned this force in passing towards the end of the 1980s.41 Only in 1991 did the National People’s Congress acknowledge its existence.42 Its peculiar status has confused those who tried to conceive of JDTs as of a law-based, para-police body. To justify their existence with reference to the Constitution, some Chinese scholars43 consider them a derivation of public order committees44 while others—such as the Ministry of Public Security—confute these views.45 In 1993, the Ministry ordered that teams established in rural areas be disbanded.46 This action elicited similar responses by local governments.47 The rationale of these measures lay in the fact that this “non-regular army” (zapaijun), did not function according to the postulates of community policing theories. Instead, it perpetrated

Dutton 2005: 232 footnote 106. Ministry of Public Security request for instructions about continuing the work of joint defense of public order (Gong’anbu guanyu jixu qunzhong zhi’an lianfang gongzuode qingshi 公安部关于继续群 治安联方工作的请示), referred to in Shandongsheng Difangzhi Bangongshi 1998. 42 1991 NPC decision. 43 Guo 2001: 20. 44 Making confusion even greater, sources sometimes refer to joint defense teams as workers’ pickets, pointing out at the same time that this kind of workers’ pickets differ both from those established in 1927 and from those that were created during the Cultural Revolution. 45 Gao 2005; Liu and He 2007 maintain that article 111 refers only to public order committees and explain the structural differences between these and joint defense teams. On the same topic, see also Gao 2005. 46 Ministry of Public Security circular on strengthening the work of establishing public order joint defense corps (Gong’anbu guanyu jiaqiang zhi’an lianfang duiwu jianshede tongzhi 公安部关于加强治安联防队伍建设的通知), issued on 17 May 1993 and effective from the same date, hereinafter referred to as Circular on establishing joint defense groups. 47 Hunan Province People’s Government, General Office circular on disbanding professional public order joint defense organs in the entire province (Hunansheng Renmin Zhengfu Bangongting guanyu chexiao quansheng zhuanye zhi’an lianfang zuzhide tongzhi 河南 省人民政府办公厅关于撤销全省专业治安联防组织的通知), issued on 10 October 1998 and effective from the same date, hereinafter referred to as Hunan circular. 40 41

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the worst abuses,48 in some cases going as far as establishing private torture rooms49 or implementing highly unpopular policies such as birth control or forced demolition of buildings.50 Hence, the Ministry decided that teams in urban centers also be abolished.51 JDTs are gradually disappearing,52 as of 1 January 2008, the recruitment of any new officers to replace retirees has been forbidden. Localities seem, however, to be resisting reform. While some scholarship maintains that JDTs perform anti-terrorism functions similar to those of Britain’s metropolitan police,53 some provinces have revived JDTs to keep public order during the spring festival54 or adopted cosmetic changes.55 Elsewhere delegates to local political-consultative conferences have suggested that more teams be established,56 thus strengthening a force that, with its two or even two and a half million people,57 has eventually outnumbered the police.58 5.3.1 Powers If one considers that JDTs were initially created to pervade society with a loyal force that could root out those who opposed the Revolution, then violence appears as something inherent to this institution. The teams were created to implement a process of social exclusion. If one, instead, regards the teams as a social resource, then it must follow that some members of local communities have, indeed, been empowered. Presently, empowerment is to be understood also as a Amnesty 2001: 11 and following. I am further indebted to an anonymous reviewer for the point about abuses. 49 Lin 2008, describing an episode that took place in 1993. 50 Zhou 1995: 25. 51 Their abolition should have taken place between 2004 and 2007. First, all the members of this force should have been screened. Those who obtained a favorable evaluation would have been deployed for one more year, until the end of 2008 at the latest. The others should have resigned. Li 2004. 52 Article 21, Ministry of Public Security 2004–2008 program on regularizing police forces (Gong’anbu guanyu 2004–2008 nian quangguo gong’an duiwu zhengguihua jianshe gangyao 公安部关于 2004–2008 年全国公安队伍正规化建设纲要), issued on 23 October 2004. 53 Zhou and Li 2008. 54 Lai 2009, referring to Guangxi province. 55 2, Hunan circular. 56 Zhang 2009. 57 Official figures refer to the existence of 360,000 officers. Li Tao 2004; Zhou 1995: 25. Referring to the 1990s, Dutton mentions a figure of 2,500,000 people, more or less 58 Dutton 2005: 232, footnote 106. 48

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chance to partake in the punishment of offenders. However, punitive power is a component of sovereignty, and, hence, a monopoly of state agencies. Therefore, JDTs enjoy powers that complement those of the police59 Given that JDTs are “autonomous mass organization for self-defense and the defense of public order,”60 rather than state organs61 or law enforcement organs, local legislation prohibits their use of investigative, interrogation, or detention powers.62 It is true that the police can delegate some of its statutory powers to community policing organs, but these organizations must exist as a result of a national-level law, and they must be professional organizations. 63 JDTs do not meet any of these conditions, so they should focus on those tasks that, in Western contexts, pertain to civil defense corps or to local community patrols. The call of sovereign power, however, has been stronger than legal constraints. Localities, and in some cases also party committees,64 have entrusted (weituo 委托) the teams with the powers to manage the “administration of public order” (zhi’an xingzheng 治安行政).65 JDTs

Circular on establishing joint defense groups. Qunzhongxin zifang zizhide zhi’an baowei zuzhi 群 性自防自治的治安保卫组织. Article 5, 1991 NPC decision. 61 Reply Letter of the Supreme People’s Court Research Office on whether harm inflicted to members of joint defense teams can be regarded as harm inflicted to a public official during the performance of his duties (Zuigao Renmin Fayuan Yanjiushi guanyu zhi’an lianfang duiyuan zai zhixing renwuzhong shoudao bufa qinhai dui qinhairen nengfou an “moumou gongwu” chuli wentide fuhan 最高人民法院研究室关于治安联防队员在 执行任务中收到不法侵害对侵害人能否按”某某公务”处理问题的复函), issued on 22 September 1991 and effective from the same date. 62 Article 6, Anhui Province regulations on the administration of grassroots public order joint defense teams (Anhuisheng xiangzhen zhi’an lianfangdui guanli tiaoli 安徽省乡 镇治安联防队管理条例), issued on 31 May 1996 and effective from the same date hereinafter referred to as Anhui regulations. Article 9, Xiamen provisional measures on strengthening the work of public order joint defense in cities and townships (厦门 市加强城镇治安联防工作暂行办法 Xiamenshi jiaqiang chengzhen zhi’an lianfang gongzuo zanxing banfa), issued on 21 October 1992 and effective from the same date. 63 Articles 18, 19 People’s Republic of China Law on Administrative Penalties (Zhonghua Renmin Gongheguo Xingzheng Chufafa 中华人民共和国行政处罚法), issued on 17 March 1996 and effective from 1 October 1996, hereinafter referred to as Law on Administrative Penalties. 64 Shen and Cheng 1993: 59. 65 Article 15, Beijing Higher People’s Court experimental opinion on some problems in the examination of shelter for examination cases, reeducation through labor cases and other administrative cases (Beijingshi Gaoji Renmin Fayuan guanyu shenli shourong shencha, laodong jiaoyang deng xingzheng anjian youguan wentide yijian shixing 北京市高级人 民法院关于审理收容审查, 劳动教养等行政案件有关问题的意见试行), issued on 4 April 1994 and effective from the same date. 59 60

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are deployed on patrols66 and have the powers to stop, search, and interrogate ( pancha 盘查) criminal suspects as well as those suspected of violations against public order such as substance abuse, prostitution, and gambling.67 They can clean up vagrants, beggars, and those suffering from psychiatric disorders or lacking mental capacity (daisha).68 They can keep order in public places69 by stopping behaviors constituting minor crimes, determining their degree of social harm, and deciding whether their perpetrators need to be educated or arrested.70 Local legislation provides convoluted and nonsensical definitions of the groups that joint defense teams should target. These groups include individuals who roam the streets purporting to be peddlers; wander the streets at night either alone or in a group; perform divination and thereby cheat the masses; and hold weapons or carry goods of suspect origins.71 Empowerment has indeed taken place. Rather than fostering Article 6, Anhui regulations. Article 11, Yunnan Province experimental rules on public order joint defense (Yunnansheng zhi’an lianfang zanxing guiding 云南省治安联防暂行规定), issued on 25 July 1992 and effective from the same date, hereinafter referred to as Yunnan rules. Article 3, Beijing municipality rules on the duties and responsibilities of workers and masses’ public order joint defense teams (Beijingshi guanyu zhigong qunzhong zhi’an lianfangduide renwu he duiyuan zhizede guiding 北京市关于职工群 治安联防队的人物和队员职责 的规定), issued on 20 May 1985 and effective from 1 July 1985, hereinafter referred to as Beijing rules on joint defense. 68 Beijing rules on joint defense. 69 Article 6, Guizhou Province rules on the administration of public order joint defense organizations (Guizhousheng zhi’an lianfang zuzhi guanli guiding 贵州省治安联防 组织管理规定), issued on 7 July 1992 and effective from the same date. Reproduced in Guizhousheng Renmin Zhengfu 1992. Article 7, Liaoning province provisional rules on public order joint defense work (Liaoningsheng zhi’an lianfang gongzuo zanxing guiding 辽宁省治安联防工作暂行规定), issued on 9 January 1990 and effective from the same date. 70 Article 11, Yunnan rules. 71 Articles 7, 8, 9, Xiamen provisional measures on strengthening the work of public order joint defense in cities and townships (Xiamenshi jiaqiang chengzhen zhi’an lianfang gongzuo zanxing banfa 厦门市加强城镇治安联防工作暂行办法), issued on 21 October 1992 and effective from the same date. Articles 8, 9 Ningxia Hui Autonomous Region rules on the administration of public order joint defense work (Ningxia Huizu Zizhiqu zhi’an lianfang gongzuo guanli guiding 宁夏回族自治区治安联防工作管理规定), issued on 27 November 1991 and effective from the same date. Articles 7, 8 Henan Province rules on the administration of public order joint defense work (Henansheng zhi’an lianfang gongzuo zanxing guiding 河南省治安联防工作暂行规定), issued on 30 May 1992 and effective from the same date. Article 4, Guangdong Province rules on mass-line public order joint defense organizations (Guangdongsheng qunzhong zhi’an lianfang zuzhide guiding 广东省群 治安联防组织的规定), issued on 20 January 1990 and effective from 1 February 1990. Article 5, Shanghai Municipality provisional rules on public order joint defense organizations (Shanghaishi zhi’an lianfang zuzhi zanxing guiding 上海市治安 联防组织暂行规定), issued on 26 January 1988 and effective from 1 March 1988, 66 67

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a greater social inclusion, it has induced the redrawing of the old distinction between those who deserve to enjoy their rights and those who do not. In the past, the latter category was constituted by regime opposers. In what Michael Dutton calls the era of the contract, the dividing line—a dividing line which a presumably empowered community determines—seemingly has no reason to exist other than separating quiet middle-class residents from drunken gamblers, madmen, and sex workers. In any case, it should be remembered that once certain powers are bestowed upon para-police organs, they, rather than the citizenry, decide who deserves what. 5.3.2 Composition, Organizational Structure, and Relationship with the Regular Police Force In this respect, what is called the suzhi—the quality—of those who enjoy the power to protect us can play a fundamental part in shaping their behavior. As this force has existed outside the law for more or less sixty years, the morality and sense of responsibility of individual officers are the only two variables capable of constraining their actions. Chinese police commentators write that the typical member of a joint defense team has received no further education beyond primary schooling72 and is often a civilian hired on a temporary employment contract. While in the 1950s this force may have provided a channel for political mobility for youthful activists, nowadays, at least in some provinces, JDTs are a form of welfare for middle-aged industrial workers and their relatives.73 Their members are recruited by social welfare agencies,74 so the teams seem to be mostly staffed by laid-off, (xiagang 下岗) workers and the unemployed.75 This disgruntled army of the new urban poor is an appendage of public security organs. hereinafter referred to as Shanghai rules on joint defense. Article 5, Guangxi Zhuang Autonomous Region provisional rules on public order joint defense organizations (Guangxi Zhuangzu zizhiqu zhi’an lianfang zuzhi zanxing guiding 广西壮族自治区治安联防 组织暂行规定), issued on 22 February 1991 and effective from the same date. 72 Ma 2006: 62, drawing from survey data in selected localities within his jurisdiction and referring to 72.5 percent of members of joint defense teams. 73 Article 12, Ningxia Hui Autonomous Region rules on the administration of public order joint defense work (Ningxia Huizu Zizhiqu zhi’an lianfang gongzuo guanli guiding 宁夏回族自治区治安联防工作管理规定), issued on 27 November 1991 and effective from the same date. 5, Shanghai rules on joint defense. 74 Wuming 2003. 75 Jin 2003: 59. Before SOEs privatization, enterprises would contribute the less productive and unruliest workers to JDTs. Ge 1997: 95.

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A general headquarters (zhihui zhongxin 指挥中心) established by citylevel governments leads teams established in districts and neighborhoods.76 While the general department is led by a civilian officer, the truly operational tasks belong to his deputy, who is normally either the director or the deputy director of the public security bureau. The practice of establishing the headquarters’ general office within public security bureaus underscores the fact that joint defense teams are controlled by the police. Team members are, in fact trained and equipped with nonlethal weapons by joint defense small groups (lianfang xiaozu 联防小组) established in local police stations. Decisions about the team’s deployment and tasks are made by policemen. Access to the profession, often a very much needed source of income for the unemployed or precarious worker, is controlled by the police. The teams’ personnel is formally chosen by government organs and enterprises and then recommended to neighborhood committees. However, the ultimate decision as to their employment rests with the public security station,77 which decides the total number of personnel to appoint,78 examines candidates, and chooses whom to hire. Public security stations can also recruit joint defense officers independently, outside the channels provided by enterprises and work units. Close and solid links exist between the regular police force and this community organization to which policing tasks are delegated. Interestingly, members of JDTs are not considered state officials; therefore, they cannot be held responsible for the crime of torture. If torture is committed by them,

76 JDTs are divided between ordinary teams and so-called special teams (zhuanyexing zhi’an lianfangdui 专业性治安联防队). The latter can be organized only by transportation and forestry departments and must serve within these industries. Ordinary teams are led by civilian authorities at the local level and serve within any other industry, any government organ, or neighborhood. 77 In practice, between the late 1980s and the early 1990s, JDTs were established and staffed also by local party committees. For a discussion of this practice, see Shen and Yuan 1993: 59. 78 Some municipalities have set a limit on the total number of JDTs officers. For instance, in Chongqing, a maximum of five officers per thousand residents is allowed. See Article 1, Chongqing Municipality Price Office, Chongqing Municipality Finance Office circular on joint defense fees and insurance for railway transportation of goods (Chongqingshi wujiaju, Chongqingshi caizhengju guanyu zhi’an lianfangfei he tielu yunshu wuzi anquanfei shoufei biaozhunde tongzhi 重庆市物价局, 重庆市财政局关于治安联防费和铁 路运输物资安全费收费标准的更正通知), issued on 5 November 2001 and effective from the same date.

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the act is redefined as wounding and punished as such.79 Four variables can, therefore, concur in inducing this community policing body to turn against members of local communities. These are the very historical genesis of JDTs, its control by the police, its personnel’s low social status, and the existence of JDTs outside the law. 5.4

Private Security Companies

Globalization, the failure of community policing by JDTs, and the will of the police to ensure a steady source of revenues are the factors that created private security companies. The style of community policing followed in the 1980s, based as it was on an ideology of exclusion, was unsuited to the new requests posed by globalization, and particularly by foreign businessmen. Once businesses set up their enterprises in China, they should have taken part in mass defense by contributing men or paying joint defense fees. But, entrepreneurs saw the presence of mass-line security forces in their businesses as intrusive.80 At least some investors regarded joint defense fees as a form of extortion, if not outright corruption.81 Although mistrusting the police, they demanded that security services be provided to them. The solution to this conundrum was found in establishing “service enterprises” that would provide “security and surveillance consulting”.82 The first 79 Supreme People’s Court Research Office reply to the question on whether members of joint defense teams are a subject of the crime of torture (Zuigao Renmin Fayuan Yanjiushi guanyu lianfang duiyuan shifou goucheng xingxun bigongzui zhuti wentide dafu 最高人 民法院研究室关于联防队员是否构成刑讯逼供罪主体问题的复函), issued on 26 September 1990 and effective from the same date. Supreme People’s Procuratorate Reply on whether members of joint defense teams can be a subject of the crime of torture (Zuigao Renmin Jianchayuan guanyu lianfang duiyuan nengfou goucheng xingxun bigongzuide fanzui zhuti de pifu 最高人民检察院关于联防队员能否构成刑讯逼供罪的犯罪主体 的批复), issued on 7 November 1991 and effective from the same date. Repealed on 25 February 2002, because this document overlaps with provisions of articles 94 and 247 CL, by the Supreme People’s Procuratorate decision on repealing certain judicial interpretations and normative documents (Zuigao Renmin Jianchayuan guanyu feizhi bufen sifa jieshi he guifangxing wenjiande jueding 最高人民检察院关于废止部分司法解释和规 范性文件的决定), issued on 25 February 2002 and effective from the same date. 80 Dutton 2005; Guo 2005. 81 Conversations with entrepreneurs: “Lambda,” November 1998, Beijing; K., June 2006, Europe; F., July 1999, Italy; P., July 2008, Italy. Author’s diaries. A., January 2006, MSN chat on file with the author. 82 Article 1, Ministry of Public Security Circular issuing the “Report about establishing private security companies” (Gong’anbu guanyu yinfa “guanyu zujian bao’an fuwu gongside baogao”de tongzhi 公安部关于印发“关于组建保安服务公司的报告”的通知),

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such enterprise was established in Longkou, an industrial district of Shenzhen, in December 1984, at the behest of Peng Zhen and Chen Pixian. Trying to find a pragmatic solution to the shortage of police officers and needing not to scare off much-needed investors, Peng and Chen thought that “learning from foreign experience” would prove “advantageous for the management of public order.”83 The opinion of the CCP Central Political-Legal Committee’s secretaries was sufficient to induce the birth of private security companies, even though no adequate legal framework existed. Between 1986 and 1987, companies were established in Beijing,84 Yunnan,85 Shandong,86 Heilongjiang,87 Jilin,88 and elsewhere. In 1988, the Ministry of Public Security confirmed that this situation would become an established practice.89 An actual demand for security services, and the fiscal incentives granted to these companies90 soon caused their number to skyrocket. In 1992, there were barely 11,000 security guards.91 Eleven years later, the figure jumped to 600,000,92

issued on 2 July 1988 and effective from the same date, hereinafter referred to as Circular on private security companies. 83 General Office of the Central Committee of the Chinese Communist Party Circular transmitting comrades Peng Zhen and Chen Pixian’s speech at the National Conference on Political-Legal Work (Zhonggong Zhongyang Bangongting guanyu zhuanfa Peng Zhen, Chen Pixian tongzhi zai quangguo zhengfa gongzuo huiyishang jianghuade tongzhi 中共中 央办公厅关于转发彭真、陈丕显同志在全国政法工作会议上讲话的通知), quoted in Preamble, Circular on private security companies. 84 Beijingshi Difangzhi Bianji Weiyuanhui 2003: 350. 85 Yunnan Nianjian Bianji Weiyuanhui 1988: 222. 86 Shandongsheng Difangzhi Bianji Weiyuanhui 1989: 326. 87 Ha’erbin Nianjian Bianjibu 1988: 531. 88 Jilin Nianjian Bianjibu 1989: 264. 89 Circular on private security companies. 90 State Administration of Taxation circular on fiscal exemptions for public security companies (Guojia Shuiwuju guanyu dui bao’an fuwu gongsi zhengmianshuide tongzhi 国家税务 局关于对保安服务公司征免税的通知), issued on 15 September 1989 and effective from the same date. State Administration of Taxation circular on exempting private security companies from the income tax due for 1991 (Guojia Shuiwuju guanyu bao’an fuwu gongsi mianzheng yijiujiuyi niandu suodeshuide tongzhi 国家税务局关于保安服务公司 免征一九九一年度所得税的通知), issued on 20 January 1992 and effective from the same date. 91 Ministry of Public Security circular on further enhancing the work on private security services (Gong’anbu guanyu jinyibu zuohao bao’an fuwu gongzuode tongzhi 公安部关 于进一步做好保安服务工作的通知), issued on 27 May 1992 and effective from the same date, hereinafter referred to as 1992 Circular on private security. 92 Wang 2004: 39.

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and reached 900,000 people in 200593 and 2,300,000 in 2007.94 This spectacular growth has been justified with the most diverse arguments. The police maintain that private security guards are needed to join the police in the nearly permanent war against crime95 in a much more disciplined way that the unruly JDTs. Some have raised the point that private security is needed to confront constant threats of terrorism posed by the Falungong, ethnic separatists, religious extremists, those seeking their revenge against social inequality, and even the mentally ill (sic!).96 While questionable, this reasoning exemplifies the possible lines of divide that are traced in the Deng, Jiang, and Hu eras, a time when the friend/enemy distinction is not premised on the need to root out counter-revolutionaries and enemy agents. The existence of the private security industry is still based on ministerial decrees, normative documents, and local rules. As with the JDTs, security guards cannot be deployed in crime prevention duties; nor are they an anti-terrorism task force. While their presence is likely to deter criminal activities, they do not possess law enforcement powers. The range of services they can offer is limited to providing security at buildings and public events, surveillance technology and consulting, and escorting and transporting valuables.97 They can arrest and deliver to the police those who are caught committing crimes. How-

Guo 2005: 34. Li Shu 2007: 4, 6. 95 Article 6, General Program for police work during the Ninth Five Years Plan (“ Jiuwu” gong’an gongzuo gangyao “九五”公安工作纲要), issued on 3 March 1996 and effective from the same date. The same article also mandates legislating on the bao’an. 96 Guo 2005: 36. 97 Article 10, Ministry of Public Security rules on regularizing the management of private security companies (Gong’anbu guanyu bao’an fuwu gongsi guifan guanlide ruogan guiding 公安干部关于保安服务公司规范管理的若干规定), issued on 1 March 2000 and effective from the same date, hereinafter referred to as Rules on regularizing. Article 10, Fujian Province measures on the administration of private security services (Fujiansheng bao’an fuwu guanli banfa 福建省保安服务管理办法), issued on 1 April 2000 and effective from the same date. Article 6, Jinan provisional measures on the administration of the private security industry ( Jinanshi bao’an fuwuye guanli zanxing banfa 济南市报案服务业管理暂行办法), issued on 26 March 1999 and effective from the same date. Article 9, Guangdong Province regulations on the management of security services (Guangdongsheng bao’an fuwu guanli tiaoli 广东省保安服务管理条例), issued on 2 April 1999 and effective from 1 July 1999. Article 6, Chongqing Municipality measures on the administration of security services (Chongqingshi bao’an fuwu guanli banfa 重庆市保安服务管理办法), issued on 5 June 1996 and effective from 1 July 1996. 93 94

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ever, this power belongs to any PRC citizen,98 rather than being their unique prerogative. 5.4.1

Typology, Relationship with the Regular Police Force, and Composition

Three different typologies of private security companies exist. The first is the company organized and supervised by public security organs. A minority of companies have been formed by work units, to replace internal protection units.99 Besides, some companies are established privately. Lawfully established private security companies are really state-owned enterprises in disguise, regardless of their ostensible ownership.100 Most of the capital allocated to these companies comes from police coffers,101 as organizing public security companies is among the powers enjoyed by the police.102 The major stockholder in Sino-foreign joint stock companies is—indirectly—the Ministry of Public Security. The legal representatives of joint stock companies are appointed by public order departments (zhi’an guanliju 治安管理局),103 a section of public security that also leads these companies.104 Naturally, in most cases, the legal representative of a private security company will be a police officer. The Ministry of Public Security also establishes, controls, and funds the China Security Association (Zhongguo Bao’an Article 63, CPL 1996. Private security companies have been established also by real estate management companies. Article 47, State Council Regulations on real estate management (Guowuyuan wuye guanli tiaoli 国务院物业管理条例), issued on 8 June 2003, effective from 1 September 2003, amended on 26 August 2007. These are independent from the Ministry of Public Security. 100 Yue 2006: 29. Xu Xiaojun, an author within the security industry, writes that the majority of joint stock companies have been formed in the fields of surveillance equipment and in security transport. No doubt the former are indirectly controlled by the Ministry of Public Security. Research in surveillance technologies is performed mostly by the Ministry of Public Security Number One Research Center (Gong’anbu diyi yanjiusuo 公安部第一研究所), which owns ten different leading corporations in the surveillance sector. Gong’anbu diyi yanjiusuo 2009. 101 Xu 2005: 21. 102 This particular kind of power rests upon ministerial rules and belongs to public security bureaus in municipalities, provincial capitals, districts, and a limited number of cities directly administered by the provincial government. Article 3, Rules on regularizing. 103 Article 6, ibid. 104 Article 3 (5), General Office of the State Council circular issuing the plan determining the functions, internal structure and personnel allocation of the Ministry of Public Security (Gong’anbu bangongting guanyu yinfa gong’anbu zhineng peizhi, neishe jigou he renyuan bianzhi fang’ande tongzhi 公安部办公厅关于印发公安部只能配置, 内设机构和 人员编制方案的通知), issued on 24 March 1994 and effective from the same date. 98 99

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Xiehui 中国保安协会), a not-for-profit civil society organization.105 The variable with the greatest potential to cause abuses is not just private security’s symbiotic relationship to the police. A bigger problem is the composition of private security companies. Many security guards are demobilized soldiers,106 People’s Armed Police officers, or unemployed youths.107 Since their inception, private security companies have provided employment opportunities not only for these individuals, but also for those para-police officers who were the targets of subsequent clean-ups. In 1996, the Ministry of Public Security ordered the reorganization of contract policemen, who were notorious for perpetrating abuses.The reorganization took place by hiring abusive officers at private security companies.108 Subsequently, private security companies began employing demobilized JDTs members,109 a practice which still continues.110 Transferring abusive para-police forces from one organization to another may contribute to a firmer entrenchment of abuses rather than their reduction. Furthermore, employment as a private security guard is hardly attractive to skilled personnel. As a guard earns about RMB 600 per month,111 rural migrants and individuals with little education make up a considerable part of the private security force.112 Ninety percent of security guards have only a primary education,113 and most of them do not undergo any training before taking office.114 This force is highly unstable, with turnover rates ranging from 20115 to 50 percent.116 Bent on maximizing profits, secu-

105 Articles 2, 16 (4), Ministry of Public Security circular issuing the “Statute of the China Security Association” (Gong’anbu guanyu yinfa “Zhongguo bao’an xiehui zhangchengde tongzhi” 公安部关于印发“中国保安协会章程”的通知), issued on 7 November 1994 and effective from the same date. 106 I am indebted to an anonymous referee for this observation. 107 Shandongsheng Difangzhi Bianji Weiyuanhui 1989: 326. 108 Article 3, Ministry of Public Security circular on the work of cleaning up the remaining contract policemen (Gong’anbu guanyu zuohao qingtui hetong minjing shouwei gongzuode tongzhi 公安部关于做好清退合同民警收尾工作的通知), issued on 5 February 1996 and effective from the same date. 109 Li 2000. 110 Xiu 2009. 111 Or even 400 if he works at a nonregistered company. Yue and Tan 2002: 85. A squad leader earns no more than RMB 1,300 per month. Li Shu 2007: 4. 112 Yue and Tan 2002: 85. 113 Li 2003: 33. 114 Chen and Wang 2004: 61. 115 Ibid., 62. 116 Li Shu 2007: 5.

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rity companies regard guards undergoing training as an unproductive resource. 5.4.2 Enhancing Police Control Each one of the four rounds of reforms of private security companies this far occured has contributed to a tightening of the police’s grip over the industry. In the late 1980s, security forces established by neighborhood committees, enterprises, and local governments117 were dissolved or merged with companies formed by the police.118 Companies, which often were led by retired police officers were formally separated from the police,119 but placed under its supervision.120 More than severing this organizational link, the concern that motivated the first round of reforms was prohibiting trade in weapons by the police and its companies.121 Ten years later similar worries, this time related to commercial activities in general, would induce a ban on PLA and police businesses.122 Private security companies were, however, listed under the category of special enterprises (teshu qiye 特殊企业),123 so public security organs were allowed to keep them.124 The most immediate consequence was a strengthening of police control over the industry, as security compaWang 2004: 40. Circular on private security companies. 119 Ministry of Public Security rules on the prohibition of public security organs to perform trade and entrepreneurial activities and for public security cadres to perform entrepreneurial activities (Gong’anbu guanyu jinzheng gong’an jiguan jingshang ban qiye he gong’an ganbu congshi jingying huodongde guiding 公安部关于禁正公安机关经商办企业和 公安干部从事经营活动的规定), issued on 30 July 1993 and effective from the same date. 120 1992 Circular on private security. 121 Ministry of Public Security circular on the prohibition for private security companies to trade in firearms (Gong’anbu guanyu jinzheng bao’an fuwu gongsi jingying gelei qiangzhide tongzhi 公安部关于禁正保安服务公司经营各类枪支的通知), issued on 29 April 1994 and effective from the same date. 122 On the divestiture, see Mulvenon 2001; Lee 2006. 123 Article 5, (3) General Office of the Central Committee of the Chinese Communist Party and General Office of the State Council circular issuing the implementation plan for the divestiture of commercial enterprises by political-legal organs (Zhonggong Zhongyang Bangongting, Guowuyuan Bangongting guanyu yinfa zhengfa jiguan buzai congshi jingshang huodongde shishi fang’ande tongzhi 中共中央办公厅, 国务院办公厅关于印发政法 机关不再从事经商活动的实施方案的通知), issued on 28 October 1998 and effective from the same date. Reproduced in Sifabu Jianyu Guanliju 2003: 1–8. 124 The only requirements were approval by province level public security organs and possession of a business licence. Ministry of Public Security Decision on reorganizing the industry of private security services (Gong’anbu guanyu qingli zhengdun bao’an fuwu 117 118

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nies established by municipalities and prefecture level cities were given financial autonomy and placed under police jurisdiction.125 The two rounds of reform that took place since 2000 were made in light of China’s upcoming accession to the World Trade Organization (WTO). The most pressing need was reforming the industry’s management rather than curbing violence. So the industry was reformed in ways which eventually reinstated the police’s control on private security companies. While in the past such control was direct, after 2000, ownership and management of private security companies, and evaluation of their performance,126 became the new levers of police power over the industry. Even though security companies were financially separated from public security organs, the police still enjoyed the power to appoint and remove their managers and train private officers.127 In theory, WTO-induced liberalization of the private security market should have eroded police’s interference; foreign security companies could have operated in China outside the control of the government’s administrative agencies. However, the 2002 round of reforms posed some barriers to foreign companies’ entry to the market and bestowed renewed regulatory powers on the Ministry. As a first step, a further clean-up of private security and reregistration of their business license were mandated.128 While industry and trade organs were involved in this process, the power to approve the establishment hangyede jueding 公安部关于清理整顿保安服务行业的决定), issued on 6 November 1997 and effective from the same date. 125 Ministry of Public Security reply on the establishment of private security companies by provinces and prefectures (Gong’anbu guanyu dui sheng, di gong’an jiguan zujian bao’an fuwu gongsi wentide pifu 公安部关于对升, 地公安机关组建保安服务公司问题 的批复), issued on 26 May 1998 and effective from the same date. 126 General Office of the Central Committee of the Chinese Communist Party and General Office of the State Council rules on standardizing the management of enterprises retained by political-legal organs (Zhonggong Zhongyang Bangongting, Guowuyuan Bangongting guanyu zhengfa jiguan baoliu qiye guifan guanli ruogan guiding 中共中央办公厅, 国务 院办公厅关于政法机关保留企业规范管理若干规定), issued on 14 May 1999 and effective from the same date. Reproduced in Sifabu Jianyu Guanliju 2003: 340–43. 127 Rules on regularizing. 128 Ministry of Public Security, Ministry of Construction, Ministry of Culture, State Administration of Industry and Trade, State Administration for Sports plan on the work of cleaning up illegal private security organizations and the special struggle of reorganizing the market of security services (Gong’anbu, Jianshebu, Wenhuabu, Guojia Gongshang Guanli Zongju, Guojia Tiyu Zongju guanyu qingli feifa bao’an zuzhi guifan bao’an fuwu shichang zhuanxiang zhengzhi gongzuo fang’an 公安部, 建设部, 文化部, 国家工商 管理总局, 国家体育总局关于清理非法保安组织规范保安服务市场专项整治工作 方案), issued on 22 November 2002 and effective from the same day. Repealed on 6 November 2007.

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of security companies still rested with the police. Therefore, the Ministry had the ultimate authority over who could join this newly-created market and who could not. As a second step, the requisites security officers had to possess were specified. The most important of these concerned not their education level, but their training, which had to be provided by the police. In fact, companies employing personnel not trained by the police could be fined or expelled from the market. Training institutions founded since 2006 are established or approved129 by the Ministry of Public Security and staffed by teachers with a background in the army or in political-legal organs.130 Various vocational institutions are affiliated with the China Security Association. These measures, ostensibly taken to curb abuses, gave increased legitimacy to certain police powers. A further step, the entry into force of the Regulations on the Management of Private Security Companies,131 may put an ex post stamp of legality on choices and measures made outside of the law.132 5.5

Urban Management Officials

Before 1978, the management of public services had been a political task, performed by communes, planning departments,133 or through

129 Articles 5, 6, 7, Ministry of Public Security measures on the management of training institutions for private security (Gong’anbu guanyu bao’an peixun jigou guanli banfa 公安部关于保安培训机构管理办法), issued on 31 December 2005 and effective fom 1 March 2006, hereinafter referred to as Measures on Training. 130 Article 4 (7), Measures on Training. 131 Draft regulations on private security companies (Bao’an fuwu gongsi tiaoli cao’an 保安服务公司条例草案), 31 May 2009. 132 The regulations on the management of security services were passed during the revision of this manuscript, confirming this hypothesis. First, they reinstated the police power to supervise the industry down to the district level, both directly and through the CSA. Second, the police still have the power to approve the hiring of public security personnel by units (danwei), to form private security companies and their branches, to issue business licenses, and to license security agents. Third, security guards have been implicitly given the power to stop (zhizhi 制止) crimes and minor misdemeanors. Finally, a further round of reregistration of existing security companies was mandated to begin on 1 January 2010. Articles 3, 9, 16, 29, State Council regulations on the management of security services (Guowuyuan bao’an fuwu guanli tiaoli 国务院保安服务 管理条例), issued on 13 October 2009 and effective from 1 January 2010. 133 Beiping Party Committee decision on strengthening urban management and building up production (Zhonggong Beipingshiwei guanyu jiaqiang chengshi guanli yu shengchan jianshede jueding 中共北平市委关于加强城市管理与生产建设的决定), issued on

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mass movements.134 As old ideological imperatives were replaced by the motives of efficiency and growth, the capacity to manage urban life became one of the new grounds on which to evaluate local officials. Hence, deputy mayors, who invariably held one of the two top positions of local party hierarchies, found themselves chairing leading groups that would provide public services. In 1978, one pioneering such group was established in Shanghai to enforce legislation on traffic and urban hygiene. Tianjin soon followed suit by establishing squads to tear down illegal constructions.135 Leading groups drew personnel from various administrative agencies, formed inspection teams ( jianchadui 监察队), and placed them under the leadership of relevant agencies and, of course, the police.136 Hence, in 1990, teams roamed the streets of Canton enforcing hygiene laws,137 wielding the power to issue administrative penalties. Clearly, they drew these powers directly from local leaderships; until 1996, the power to issue administrative penalties was based on SAPR and was a monopoly of public security organs. Chaos soon ensued. Teams were established temporarily, prior to the launch of local drives.138 In such areas as Shenzhen, this practice was observed until the early 1990s. In 1993, SEZ launched a drive against the “four pests”—flies, mosquitoes, rats, and cockroaches.139 The drive was led by a committee for the patriotic hygiene movement,140 but the concrete tasks of ensuring compliance befell inspection teams, which would visit restaurants and fine their owners fifty yuan for each fly found on the premises.141 Where drives were less frequent, government agencies established permanent organs or contracted out law

12 April 1949 and effective from the same date. Summarized in Beijingshi difangzhi bianji weiyuanhui 1998: 48. 134 An example is provided by the eradication of rats. What is nowadays a task of urban management organs, in the Mao era was the object of the campaign against the four pests. On this campaign, see Shapiro 2001: 86–89. 135 Li 2009. 136 Long, Yu and Chen 1986: 32. 137 Guangzhou Zhengbao 1990: 53. 138 Ye 2008: 120. 139 Shenzhen Special Economic Zone measures on eliminating the “four pests” (Shenzhen jingji tequ chu “sihai” guanli banfa 深圳经济特区除“四害”管理办法), issued on 28 October 1993 and effective from the same date, hereinafter referred to as Measures on the four pests. 140 Aiguo weisheng yundong weiyuanhui 爱国卫生运动委员会. 141 Article 22 (3), Measures on the four pests.

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enforcement powers to service companies.142 Subsequent attempts to legalize and standardize inspection teams largely succeeded. Their powers, however, could not easily be limited. Law enforcement powers bestowed on inspection teams were vested upon them by party leaders donning the hats of mayors and deputy mayors. The specific powers vested in inspection teams had their origin in the word of local leaders. It was a kind of original power, existing before the concept of urban management legislation. Eventually, this original power would come to shape and regulate their actions, given that no specific legislation on inspection teams existed. Largely for this reason, much later, the chengguan would not hesitate to beat—even kill—those individuals who dared, for example, to contest the existence of illegal waste disposal plants. The power of these forces arises from the word of local leaders, a power existing without and above the law-in-the-books. 5.5.1 Legalizing Inspection Teams The 1996 legalization of enforcement teams, the centralization of leadership over them, and the grounding of administrative law enforcement powers in the Law on Administrative Penalties143 were merely the subsuming of a situation of fact under the law. The words uttered by local leaders in the late 1970s had now been legitimized by article 16: The State Council or the people’s government of a province, autonomous region or municipality directly under the Central Government empowered by the State Council may decide to have an administrative organ exercise other administrative organs’ power of administrative penalty.144

Other organs were permanent and assembled by administrative agencies: administrations for industry and commerce would organize squads to fine and clean up street vendors, environmental departments would form teams to supervise waste disposal, and so on. Li Bowen 2007: 16 mentions the case of teams organized by construction organs. 143 The Law introduced six kinds of administrative penalties: warnings ( jinggao 警告), fines (fakuan 罚款), confiscations (moshou 没收), orders to cease production or business activities (zeling tinchang tingye 责令停厂停业), suspension or cancellation of permits and licenses (zankou 暂扣 diaoxiao 吊销), and administrative detention (xingzheng juliu 行政拘留). Article 8, Law on Administrative Penalties. 144 Article 16, ibid. Administrative detention powers were not included in the scope of these powers. 142

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The rationale behind article 16 was the creation of a national or local administrative police corps,145 placed under the leadership of provincial governments (i.e., party cum government, political cum administrative power). However, the waves of government streamlining launched in 1988, 1993, and 2002 mandated a reduction, rather than a swelling, of personnel ranks. A new government department ( ju) could not be created.146 Beginning in 1997 in Beijing147 and elsewhere, enforcement teams were, instead, reorganized148 or established anew, according to the Law on Administrative Penalties and other organizational norms.149 The foreseeable claims of success induced a broadening of the range of experiments in 1999150 and 2000.151 Government departments and street committees began establishing new squads under the guise of reorganizing or cleaning-up existing ones.152 Enforcement departments were established in disregard of relevant procedures.153 Confusion between the situation of law and the situation of fact increased. In the meantime, enforcement officers were free to do whatever they wanted and to whomever the chose. For instance, a chengguan could break the nose to a baozi vendor who had accidentally bumped into him while walking on a crowded street, and benefit from total impunity. An investi145 Lamenting inter-departmental conflicts, some mayors already had been calling for these or similar responses. For an illustration of these views, see Yan 1997. 146 The new law enforcement organ could not be “an organ established within a government department or under it”. Article 2, State Council General Office circular on continuing the work of experimenting with the centralization of administrative punishment power (Guowuyuan Bangongting guanyu jixu zuohao xiangdui jizhong xingzheng chufaquan shidian gongzuode tongzhi 国务院办公厅关于继续做好相对集中行政处罚权 试点工作的通知), issued on 8 September 2000 and effective from the same date, hereinafter referred to as Circular on centralization. 147 Li Bowen 2007. 148 Article 3, State Council circular on implementing the Law of the People’s Republic of China on Administrative Penalties (Guowuyuan guanyu guanche shishi Zhonghua Renmin Gongheguo Xingzheng Chufafade tongzhi 国务院关于贯彻实施中华人民共和国 行政处罚法的通知), issued on 15 April 1996 and effective from the same date. 149 This meant that the establishment of law enforcement departments had to be approved by the State Council. See article 64 (3), People’s Republic of China Organic Law of the local people’s congresses and local people’s governments (Zhonghua Renmin Gongheguo difang geji renmin daibiao dahui he difang geji renmin zhengfu zuzhifa 中华人民共和 国地方各级代表大会和地方各级人民政府组织法), issued on 1 July 1979 and effective from the same date, as amended on 27 October 2004. 150 State Council decision on overall advancing administration according to the law, (Guowuyuan guanyu quanmian tuijin yifa xingzhengde jueding 国务院关于全面推进依法 行政的决定), issued on 8 November 1999 and effective from the same date. 151 Circular on centralization. 152 Li Yuan 2008. 153 Ye 2008: 122.

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gative journalist who, after discovering the fact, tried to interview the chengguan was imprisoned in his office and beaten senseless. Once this case was reported to the ever powerful CDI, the party answered that the matter simply “fell outside” of their jurisdiction.154 5.5.2 Administrative Law Enforcement Departments Given this background, recent reforms have a built-in potential to entrench this situation further. In 2002, the powers and personnel of enforcement teams were centralized155 in urban management administrative law enforcement departments (chengshi guanli xingzheng zhifaju 城市管理行政执法局). Inspection teams were turned into a quasiadministrative police. Various responses were adopted to comply with reform. Besides establishing new enforcement organs,156 the old law enforcement brigades (zhifa dadui 执法大队) were kept,157 or enforcement departments were merged with various administrative organs,158 which would then form law enforcement brigades and squads (dui 队) located in suburban districts. Leadership over the chengguan was not always centralized. Leaderships over brigades belonged to the offices that had created them, while squads could be controlled by neighborhood committees or other grassroot government organs.159 Such confusion took place even in such major centers as Shanghai.160 Nothing was done to disentangle this organizational chaos, as centralization had become the overwhelming priority.161 Absurd episodes resulted. Qiu 1999. State Council decision on further advancing the work of centralizing the power to impose administrative penalties (Guowuyuan guanyu jinyibu tuijin xiangdui jizhong xingzheng chufaquan gongzuode jueding 国务院关于进一步推进相对集中行政处罚权工作的 决定), issued on 22 August 2002 and effective from the same date. 156 Such as in Hangzhou. See Hangzhou People’s Government circular issuing the rules on the powers, internal structure, and personnel of the urban management administrative law enforcement department (Hangzhoushi renmin zhengfu guanyu yinfa Hangzhoushi chengshi guanli xingzheng zhifaju zhineng peizhi, neishe jigou he renyuan bianzhi guidingde tongzhi 杭州市人民政府关于印发杭州市城市管理行政执法局职能配置、内 设机构和人员编制规定的通知), issued on 28 August 2001 and effective from the same date. 157 Such as Neixiang district, in Henan province. See the motion by a member of the local CCP United Front Work Department, Zheng 2006. 158 Anhuishi Renmin Zhengfu Fazhi Bangongshi 2005; Zhongguo Chengshi Guanli Xingzheng Zhifawang 2009. 159 Li Boyu 2007: 15. 160 Li Yuan 2008. 161 State Council circular issuing the implementation program on the overall advancement of administration according to law (Guowuyuan guanyu yinfa quanmian tuijin 154 155

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In July 2006, the Shenzhen urban management office dispatched an enforcement brigade to the Longhua district. No sooner had the brigade begun its patrol, than it was surrounded by several other chengguan, hired by the Longhua residents’ committee. Eventually, the Longhua squad tied up all members of the Shenzhen brigade, forced their trousers down to their ankles, and exposed the semi-naked colleagues to the public. The Longhua squad believed that the Shenzhen brigade was composed of bogus officers, so it had called the Shenzhen urban management office to perform a check on their identity. The employee who answered the phone told them that the Shenzhen urban management office had no enforcement team. So the zealous Longhua officers proceeded to arrest their colleagues.162 As the ranks of the chengguan continued to swell, their qualifications continued to drop. Enforcement offices were still led by bureaucrats who, in some cases, boasted a police or army background.163 A new fictitious criterion—meritocracy has been introduced as chengguan are now appointed through a public competition.164 In some cases, strict age and educational criteria have been set.165 Yet employment as a chengguan seems still to be a form of social welfare, as retired soldiers,166 laid off workers, or to those suffering from minor disabilities are more likely to he hired than young, able-bodied candidates. While a regular chengguan may earn an average of 600 RMB per month,167 those hired on temporary contracts or as auxiliaries have to content themselves with some 350 RMB.168 This disgruntled personnel enjoys the power to enforce a shockingly broad range of administrative legislation. Manyifa xingzheng shishi gangyaode tongzhi, 国务院关于印发全面推进依法行政实施纲要的 通知), issued on 22 March 2004 and effective from the same date. 162 Nanfang Doushibao 2006. 163 Zhonggong Nanyuequwei, Nanyuequ zhengfu 2008; Tianjinshi Renmin Zhengfu 2008. Shanyouxian Renmin Zhengfu 2008. These observations are confirmed by Wu 2005: 50. 164 Articles 3 (2), (4), State Commission Office for Public sector Reforms opinion on the clean up and reorganization of administrative law enforcement teams and experimenting with the comprehensive administrative law enforcement (Zhongyang bianban guanyu qingli zhengdun xingzheng zhifa duiwu shixing zonghe xingzheng zhifa shidian gongzuode yijian 中央编办关于清理整顿行政执法队伍实行综合行政执法试点工作 的意见), issued on 17 September 2002 and effective from the same date. 165 Hefeishi 2009. 166 Shi 2006: 33, classifying the chengguan in four categories: contract personnel, former soldiers, auxiliaries, and personnel who already served in inspection teams during the 1990s. 167 Xiangtanshi Chengshi Guanli Xingzheng Zhifaju 2009. 168 Luo 2006: 142, referring to wages in Chengdu.

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uals distributed to chengguan can count more than six hundred pages and list tens of different items of legislation,169 which the chengguan has to enforce in the entire territory of a city. 5.6 Urban Divides In 2003, in Shanghai the chengguan merged with the police. The resulting bodies were enforcement squads,170 a “new” force established to take care of vagrants and beggars. This development stemmed from the so-called abolition of shelter for deportation. Urban divides between the wanted and the unwanted became more visible toward the end of the Qing dynasty and persisted throughout the Republican period,171 when relief centers for vagrants were established. Around 1949, this division was reinstated in political terms. Relief measures were aimed at war refugees and others but also at former Guomindang soldiers and officials and targets of criminal policies.172 If refugees were repatriated, the homeless, vagrants and beggars were expelled from urban spaces and detained in one of the existing 900 “productive education centers,”173 or resettled at state farms and factories.174 Waves of ruralto-urban migration soon encouraged the use of this measure to manage internal population movements.175 In the mid 1990s, as migrants were slowly integrated into urban centers, provinces, however, ruled 169 ** qu chengshi guanli xingzheng zhifaju fagui huibian. Internal compilation on file with the author. 170 “Strengthening the management of relief, building up a pure social environment,” work plan on implementing the 2009 program on a peaceful Putuo district (2009 nian Putuoqu ping’an jianshe “jiaqiang liulang qitao jiuzhu guanli, jinghua shehui huanjing” shishi xiangmu gongzuo fang’an 2009 年普陀区平安建设加强流浪乞讨救助管理净化社 会环境实施项目工作方案), issued on 29 June 2009. 171 Heilongjiangsheng Difangzhi Bianji Weiyuanhui 1993: 476–80. 172 Such as those displaced by natural disasters, the homeless, the mentally ill, abused children, professional beggars, roving criminals, swindlers, opium-smokers, prostitutes, and compulsive gamblers. Wang Jian 2005. 173 Shengchan jiaoyangyuan 生产教养院. 174 Ministry of Internal Affairs, Ministry of Public Security, Ministry of Grains, Ministry of Labour, Ministry of Commerce joint circular on solving the problems regarding the registration certificates and supplies for personnel of resettlement farms led by civil affairs departments (Neiwubu, Gong’anbu, Liangshibu, Laodongbu, Shangyebu guanyu jiejue minzheng bumen lingdaode anzhi changsuo shourong renyuande hukou, quxi gongyin deng wentide lianhe tongzhi 内务部、公安部、粮食部、劳动部、商业部关于解决民 政部门领导的安置场所收容人员的户口、物资供应等问题的联合通知, issued on 22 March 1963 and effective from the same date. 175 Human Rights in China 1999; Tong 2003.

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that certain subjects could voluntarily contact shelter centers and ask to be repatriated.176 Legislation never specified to whom the chance 176 Together with those who voluntarily ask for assistance. Article 9 (4), Chongqing Municipality measures on shelter for deportation (Chongqingshi shourong qiansong banfa 重庆市收容遣送办法), issued on 16 October 1995 and effective from 1 December 1995. Reinstated by article 13, Chongqing Municipality regulations on shelter for deportation (Chongqingshi shourong qiansong tiaoli 重庆市收容遣送条例), issued on 29 May 1998 and effective from 1 September 1998. Repealed on 1 August 2003 by the Chongqing People’s Congress Standing Committee decision on repealing the Chongqing Municipality regulations on shelter for deportation (Chongqingshi Renda Changweihui guanyu feizhi Chongqingshi shourong qiansong tiaolide jueding 重庆市人大常委会关于废止重 庆市收容遣送条例的决定). Article 6, Shenyang regulations on shelter for deportation (Shenyangshi shourong qiansong tiaoli 沈阳市收容遣送条例), issued on 30 May 1995 and effective fom 15 June 1995. Article 2, Shenyang detailed implementing rules on shelter for deportation (Shenyangshi shourong qiansong tiaoli shishi xize 沈阳市收容遣送条 例实施细则), issued on 22 March 1999 and effective from the same date, repealed on 22 December 2003 by the Shenyang People’s Congress Standing Committee decision on repealing the Shenyang rules on shelter for deportation (Shenyangshi Renda Changweihui guanyu feizhi Shenyangshi shourong qiansong tiaolide jueding 沈阳市人大常委会关于 废止沈阳市收容遣送条例的决定). Article 7, Shanghai Municipality regulations on the administration of shelter for deportation (Shanghaishi shourong qiansong guanli tiaoli 上 海市收容遣送管理条例), issued on 19 December 1991 and effective from 15 April 1992. Repealed on 5 August 2003 by the Shanghai People’s Congress Standing Committee decision on repealing the Shanghai Municipality rules on the administration of shelter for deportation (Shanghaishi Renda Changweihui guanyu feizhi Shanghaishi shourong qiansong guanli tiaolide jueding 上海市市人大常委会关于废止上海市收容遣送管理条 例的决定). Article 7, Nanjing Municipality measures on the administration of shelter for deportation (Nanjingshi shourong qiansong guanli banfa 南京市收容遣送管理办法), issued on 7 January 2000 and effective from the same date. Repealed on 4 September 2003 by the Nanjing Municipal Government decision on repealing certain administrative rules and normative documents (Nanjing shizhengfu guanyu feizhi bufen zhengfu guizhang he guifangxing wenjiande jueding 南京市政府关于废止部分政府规章和规范性文件的决 定). Article 6, Beijing Municipality rules on the administration of shelter for deportation (Beijingshi shourong qiansong guanli guiding 北京市收容遣送管理规定), issued on 7 August 1999 and effective from 1 September 1999. Repealed on 29 July 2003 by the Beijing People’s Government decision on repealing the Beijing Municipality Rules on the administration of shelter for deportation (Beijingshi renmin zhengfu guanyu feizhi Beijingshi shourong qiansong guanli guidingde jueding 北京市人民政府关于废止北京市收容 遣送管理规定的决定). Article 2, Hainan rules on shelter for deportation (Hainansheng shourong qiansong zanxing guiding 海南省收容遣送暂行规定), issued on 2 December 1991 and effective from the same date. Article 8, Wuhan measures on the administration of shelter for deportation (Wuhanshi shourong qiansong guanli banfa 武汉市收容遣 送管理办法), issued on 15 March 1996 and effective from the same date. Article 7, Tianjin Municipality regulations on shelter for deportation (Tianjinshi shourong qiansong guanli tiaoli 天津市收容遣送管理条例), issued on 15 May 1996 and effective from the same date. Repealed on 11 July 2003 by the Tianjin Municipality People’s Congress Standing Committee decision on repealing the Tianjin Municipality regulations on shelter for deportation (Tianjinshi Renda Changweihui guanyu feizhi Tianjinshi shourong qiansong tiaolide jueding 天津市人大常委会关于废止天津市收容遣送管理条例的决定). For legislation that mentions the voluntary seeking of assistance, see also Luoyang City measures on the administration of shelter for deportation to indigent vagrants and

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to apply for sheltering belonged, but it is clear that only migrants could voluntarily request this measure, because of the simple fact that, differently from vagrants and beggars, they had a home to go back to. Later, targets were classified into two categories: those who were not objects of relief ( fei jiuji duixiang) and those who were objects of relief ( jiuji duixiang). The former were those individuals who could scrape up enough money to pay the “shelter fees” (shourongfei ),177 as migrants. The latter were those with no money and no one on whom they could rely. Various forms of internment applied to people in the second classification.178 Of course, those migrants without documents, criminal suspects, and members of marginalized groups could still be detained either under this or other measures.

beggars (Luoyangshi shourong qiansong liulang qitao renyuan guanli banfa 洛阳市收容遣送流 浪乞讨人员管理办法), issued on 23 February 1994 and effective from the same date. Repealed on 15 October 2003 by the Luoyang People’s Congress Standing Committee decision on repealing the Luoyang city measures on the administration of shelter for deportation to indigent vagrants and beggars (Luoyangshi Renda Changweihui guanyu feizhi Luoyangshi shourong qiansong liulang qitao renyuan guanli banfa de jueding 洛阳市人大常委 会关于废止洛阳市收容遣送流浪乞讨人员管理办法的决定). Article 9, Guangdong Province rules on the administration of shelter for deportation (Guangdongsheng shourong qiangsong guanli guiding 广东省收容遣送管理规定), issued on 23 March 2002 and effective from 1 April 2002. Repealed on 25 July 2003 by the Guangdong People’s Congress Standing Committee decision on repealing the Guangdong province rules on the administration of shelter for deportation (Guangdongsheng Renda Changweihui guanyu feizhi Guangdongsheng shourong qiansong guanli guidingde jueding 广东省人大常委会关于废 止广东省收容遣送管理规定的决定). Article 7, Hunan Province regulations on shelter for deportation of urban indigent vagrants and beggars (Hunansheng chengshi liulang qitao renyuan shourong qiansong tiaoli 湖南省城市流浪乞讨人员收容遣送条例), issued on 28 April 1994 and effective from 1 July 1994, as amended on 29 March 2002. Repealed on 30 July 2003 by the Hunan People’s Congress Standing Committee decision on repealing the Hunan Province regulations on shelter for deportation of urban indigent vagrants and beggars (Hunangsheng Renda Changweihui guanyu feizhi hunansheng chengshi liulang qitao renyuan shourong qiansong tiaoli 湖南省人大常委会关于废止湖南省城市流 浪乞讨人员收容遣送条例的决定). Article 3, Liaoyang City temporary measures on the administration of shelter for deportation (Liaoyangshi shourong qiansong guanli zanxing banfa 辽阳市收容遣送管理暂行办法), issued on 3 July 2002 and effective from the same date. Ministry of Civil Affairs General Office circular about using the national quarterly form on shelter for deportation transfer stations (Minzhengbu bangongting guanyu qiyong “Quangguo shourong qiansong duikouzhong zhuanzhan jibaobiao” de tongzhi, 民政部办公 厅关于起用全国收容遣送对口中转站季报表的通知), issued on 18 December 2000 and effective from the same date. 177 The fees were determined on a provincial basis. 178 Children, the elderly, and the disabled would enter foster homes. The mentally ill would be placed into psychiatric hospitals. Carriers of various infectious diseases would be hospitalized and—if no one claimed them—then enter state resettlement farms or factories.

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Shelter for deportation was abolished in 2003,179 and detention centers were turned into aid stations, to which vagrants and beggars, too, could apply for relief. Critics of this reform point out how its real purpose is still “to return ‘vagrants’ to their home village.”180 Periodic clean-ups of unwanted elements have been explained with the occurrence of politically sensitive events.181 The actual picture could be more complex. The 2003 Measures on vagrants explicitly state that the police can only inform vagrants and beggars that they can obtain aid on a voluntary basis182 in ways which do not involve any limitation of personal freedom.183 The staff of aid centers can persuade (quandao) recipients of aid to go back to their place of residence, but no legal obligation to leave urban centers is linked to the receipt of aid. Local governments have sneaked detention powers into new legislation. Urban management officials have been given the power to order (zeling) beggars to cease and desist from begging. Since this is a typology of police order,184 its recipients must fully comply. Those who fail to comply are to be escorted to aid centers.185 In the 2003 Measures on vagrants, the expression “escort to aid centers”186 appears in an entirely different context and has hence a different meaning. Beggars

179 By the State Council measures on the administration of aid to indigent vagrants and beggars in cities (Chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli banfa 城市生活无着的流浪乞讨人员救助管理办法), issued on 18 June 2003 and effective from 1 August 2003, hereinafter referred to as Measures on vagrants. 180 Cox 2007: 420–21. See Peerenboom 2006: 856–57 for a discussion of this measure not in line with the consensus about the actual abolition of more or less coercive measures targeted to beggars. 181 Congressional Executive Commission on China 2005: 29; Hand, 2006: 114 quoting CECC’s report. 182 Article 5, Measures on vagrants. 183 Article 14, Measures on vagrants. 184 Any measure adopted as a response to noncompliance is hence a “punitive and education measure” (chuzhi jiaoyu cuoshi 处置教育措施). For a discussion of police orders, see Xing, Tai, and Li 2004: 42–43. 185 Article 4, Jiangmen People’s Government implementing opinion on strengthening the district’s administration of aid to indigent vagrants and beggars ( Jiangmenshi Renmin Zhengfu guanyu jiaqiang shiqu shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli shishi yijian 江门市人民政府关于加强市区生活无着的流浪乞讨人员救助管理实施 意见), issued on 29 December 2005 and effective from the same date, hereinafter referred to as Jiangmen. Article 3, Foshan City implementing opinion on strengthening the administration of aid to indigent vagrants and beggars in cities (Foshanshi guanyu jiaqiang dui chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli shishi yijian 佛山市 关于加强对城市生活无着的流浪乞讨人员救助管理实施意见), issued on 21 February 2005 and effective from the same date, hereinafter referred to as Foshan. 186 Husong jiuzhuzhan 护送救助占.

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can be escorted to aid centers if they are unable to walk to the aid center because of illness or physical disability and if they ask for help. In local legislation, the act of escorting somebody to an aid station has a punitive nature because it takes place following incompliance with an order to stop begging. Similar provisions have been issued by local governments in Guangdong, Jiangxi,187 Jiangsu,188 Fujian,189 and Shandong provinces. In Qingdao, the act of escorting beggars to aid centers has been defined as a right (quanli ) belonging to administrative law enforcement organs and ordinary citizens.190 Apart from this, local legislation contains the legal fiction whereby some targets of aid are deemed either to lack or to possess limited civil capacity. This empowers the chengguan to help those who would not want to be brought to an aid station and hence limit their freedom of movement. Local legislation191 specifies that aid “ought to (yingdang) be actively implemented on those subjects who do not possess civil capacity, or who possess limited civil capacity.”192 They “can be regarded as having applied for aid 187 Articles 2 (1), 4 (1), Pingxiang City People’s Government opinion on the work of further strengthening the administration of aid to indigent vagrants and beggars in cities (Pingxiangshi renmin zhengfu guanyu jinyibu jiaqiang chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode yijian 萍乡市人民政府关于进一步加强城市生活无 着的流浪乞讨人员救助管理工作的意见), issued on 2 November 2007 and effective from the same date. 188 Article 1, Taizhou City People’s Government notice on strengthening the administration of aid to indigent vagrants and beggars in the municipal territory (Taizhoushi Renmin Zhengfu guanyu jiaqiang shiqu liulang qitao renyuan jiuzhu guanlide tonggao 台州市人民政府关于加强市区流浪乞讨人员救助管理的通告), issued on 25 March 2004 and effective from the same date. 189 Article 2 (4), Yiwu Civil Affairs Office opinion on the work of further strengthening the administration of aid to indigent vagrants and beggars in the municipal territory (Yiwushi Minzhengju guanyu jinyibu jiaqiang shiqu liulang qitao renyuan jiuzhu guanli gongzuode yijian 义乌市民政局关于进一步加强市区流浪乞讨人员救助管理工 作的意见), issued on 23 February 2006 and effective from the same date, hereinafter referred to as Yiwu. 190 Article 2, Qindgdao City, Sifang District People’s Government opinion on the work of strengthening the administration of aid to indigent vagrants and beggars in cities (Qingdaoshi Sifangqu Renmin Zhengfu guanyu jiaqiang chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode shishi yijian 青岛市四方区人民政府关于加强城市生 活无着的流浪乞讨人员救助管理工作的事实意见), issued on 2 May 2007 and effective from the same date, hereinafter referred to as Sifang. 191 Inner Mongolia Autonomous Region People’s Government circular on the work of administering aid to indigent vagrants and beggars in cities (Neimenggu Zizhiqu Renmin Zhengfu guanyu zuohao chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode tongzhi 内蒙古自治区人民政府关于做好城市生活无着的流浪乞讨人员救 助管理工作的通知), issued on 15 August 2003 and effective from the same date. 192 Article 5, Jiangxi Province rules on the work of administering aid to indigent vagrants and beggars in cities (Jiangxisheng chengshi shenghuo wuzhuode liulang qitao renyuan

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voluntarily, and be escorted to aid management centers.”193 Provisions stating that aid recipients who are defective in civil capacity cannot exit the station without staff ’s approval appear in central, provincial, district, and sub-district level legislation as well. The practice of performing clean-ups of beggars persists in several provinces, and it is explicitly prescribed by local legislation. In Heilongjiang province, the conduction of clean-ups before political events has been mandated by the provincial government.194 Those who refuse to seek voluntary aid can, given certain conditions,195 receive public security punishments.196 Elsewhere, district-level governments issue ad

jiuzhu guanli guiding 江西省城市生活无着的流浪乞讨人员救助管理规定), issued on 22 March 2008 and effective from the same date. See also article 3, Xinyu Special Economic Zone circular on strengthening the work of administering aid to indigent vagrants and beggars in cities (Xinyu jingji kaifaqu guanyu jiaqiang dui chengshi liulang qitao renyuan jiuzhu guanlide tongzhi 新余经济开发区关于加强对城市生活无着的流浪乞讨 人员救助管理的通知), issued on 29 April 2005 and effective from the same date. 193 Article 2 (3), Hangzhou opinion on the work of administering aid to indigent vagrants and beggars in cities (Hangzhoushi chengshi liulang qitao renyuan jiuzhu guanli gongzuode yijian 杭州市城市生活无着的流浪乞讨人员救助管理工作的意见), issued on 8 October 2003 and effective from the same date. Article 2, Xiangtan City Civil Affairs Office experimental opinion on further strengthening the work of administering aid to indigent vagrants and beggars in cities (Xiangtanshi Minzhengju guanyu jinyibu jiaqiang chengshi liulang qitao renyuan jiuzhu guanli yijian 鹰潭市民政局关于进一步加强城 市流浪乞讨人员救助管理意见), 17 June 2005. 194 Article 4, Heilongjiang Province People’s Government, General Office circular on the work of administering aid to indigent vagrants and beggars in cities (Heilongjiangsheng Renmin Zhengfu Bangonting guanyu zuohao chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode tongzhi 黑龙江省人民政府办公厅关于做好城市生活无 着的流浪乞讨人员救助管理工作的通知), issued on 8 June 2004 and effective from the same date. 195 Such as disturbing public order; refusing to be educated by the police; persisting in begging; not listening to persuasion; lodging in schools, hospitals, and other public places. Ibid. 196 Public security punishment and administrative punishment based on the traffic law or criminal punishment can be meted out to beggars who: do not listen to dissuasion, beg by force, make disturbances, disrupt public order, enter highways, instigate violence or kidnap people. Articles 5, 6 Jiangmen; Article 2 (4) Yiwu; Article 3, (3) (4) Foshan. Article 3, Sifang. Similar provisions have been issued in Fujian, Sichuan, and Xinjiang. Sanming People’s Government circular on administering aid to indigent vagrants and beggars in urban districts (Sanmingshi Renmin Zhengfu guanyu jiaqiang dui shiqu youliulang qitao renyuan jiuzhu guanlide tongzhi 三明市人民政府关于对市 区有流浪乞讨人员救助管理的通知), issued on 25 April 2005 and effective from the same date. Article 4, Urumqi implementation plan on the work of administering aid to vagrant and beggars (Wulumuqishi liulang qitao renyuan jiuzhu guanli gongzuo shishi fang’an 乌鲁木齐市流浪乞讨人员救助管理工作实施方案), issued on 26 April 2006 and effective from the same date. Chengdu City Administration Office work plan on further strengthening the work of administering aid to indigent vagrant and beggars (Chengdushi guanliju guanyu jinyibu jiaqiang liulang qitao renyuan jiuzhu guanli de gongzuo fang’an

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hoc circulars shortly before the Yuandan festival, the lunar New Year,197 the annual “two sessions” of the people’s congress, and political consultative conference.198 Provincial legislation also makes it clear that during clean-ups, the homeless are to be escorted to relief centers.199 Those unable to work—the ill, the mentally ill, the disabled, the underaged, and the elderly—are to be made unable to continue wandering and begging.200 Other provinces may implement more humane policies: the decision to shelter vagrants against their will can be motivated by concrete concerns about their deaths from the cold.201 There is no question that the most immediate outcome of reforming the chengguan has allowed them to assume quasi-police powers. Experiments under way in Shenzhen in 2008 will likely further reinforce this trend. There, law enforcement powers enjoyed by administrative law enforcement offices were decentralized and vested in street and neighborhood committees. Lamenting a shortage in personnel, grassroots organs soon began hiring retired soldiers and police officers to carry out joint patrols with the chengguan. While this personnel is led by residents’ committees, it is formally employed by real estate companies, and thus belongs to the private sector. In the meanwhile,

成都市城市管理局关于进一步加强流浪乞讨人员救助管理的工作方案), issued on 4 May 2008 and effective from the same date. 197 Shanghai Pudong New District People’s Government circular establishing the leading group for the work of guiding and escorting vagrant beggars (Shanghaishi Pudong Xinqu Renmin Zhengfu guanyu chengli liulang qitao renyuan yindao husong gongzuo lingdao xiaozude tongzhi 上海市浦东新区人民政关于成立流浪乞讨人员引导护送工作领导小组 的通知), issued on 11 December 2005 and effective from the same date. 198 As in Shandong Province, Qingdao Civil Affairs Office circular on further intensifying the work of providing aid to vagrant beggars during the two meetings and one session (Qingdaoshi minzhengju guanyu jiaqiang liangjie yihui qijian liulang qitao renyuan jiuzhu guanli gongzuode tongzhi 青岛市民政局关于加强两节一会其间流浪乞讨人员救助管 理工作的通知), issued on 29 September 2006 and effective from the same date. 199 Article 4, Sifang. 200 Article 2, Jiangsu Province People’s Government circular on conscientiously implementing the measures on administering aid to indigent vagrants and beggars in cities ( Jiangsusheng Renmin Zhengfu guanyu qieshi zuohao chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli banfa guanche shishi gongzuode tongzhi 江苏省政府关于切实做好 城市生活无着的流浪乞讨人员救助管理办法贯彻实施工作的通知), issued on 26 July 2003 and effective from the same date. 201 Jilin Province Civil Affairs Office urgent circular on further intensifying the work of providing aid to vagrant beggars during the winter season ( Jilinsheng minzhengting guanyu jinyibu jiaqiang dongji qijian liulang qitao renyuan jiuzhu gongzuode jingji tongzhi 吉林 省民政厅关于进一步加强冬季期间流浪乞讨人员救助工作的紧急通知), issued on 21 January 2008 and effective from the same date.

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policy-makers have suggested that these patrols and the chengguan be merged into a municipal police force.202 5.7

Conclusion

The failure of JDTs was one of the factors inducing the birth of private security companies. These have undergone various rounds of restructuring, none of which has addressed the key variable that produces abuses. A similar dynamic can be observed in the case of urban management organs. The question of whether members of community policing organizations can turn against communities deserves, therefore, a positive answer.203 If applied to the case of China, theories of community policing would highlight the most immediate causes of abuses, namely legal loopholes, central-local legislative conflicts, the low educational level of para-police officers, their lack of training, and perhaps the insufficient reach of market mechanisms. One, more important reason for the possibility of abuses is given by the existence of para-police bodies in a zone of exception. Community policing organizations were originally born as a force anointed with political tasks. While the concrete nature of these tasks has shifted over time, the political rationale for them has not. These forces exist outside the sphere of traditional policing because their members are drawn from the community. However, they have been empowered to create a distinction between members of communities and those who need to be temporarily excluded from neighborhoods, streets, and other everyday urban spaces. The removal of a homeless person, a vendor or a beggar then becomes a legal duty fulfilled in the name of the citizenry.

Shenzhen bao’an qu 2009. Chinese commentators have estimated that abuses are performed by almost one third of community police officers. See Ma 2006: 62, giving the figure of twenty-eight per cent. 202 203

CHAPTER SIX

THE CAMP Even though the Law on Prohibiting Drugs has abolished drug rehabilitation through labor, this does not mean that all addicts will undergo community rehabilitation before coercive measures are adopted. It is according to the new law, and to the degree of their addiction that it will be decided whether they can undergo community rehabilitation or isolation for compulsory rehabilitation.*

In China studies, the notion of “camp” is evocative of reeducation through labor camps. This concept possesses also a metaphorical dimension, referring to all those forms of spatial banishment or segregation spawned by processes of exclusion. In this respect, the camp should be considered one of the possible manifestations of exceptionalism.1 Outside the criminal justice system, spatial banishment can take various forms. Slums, urban ghettoes, or the current reforming hukou system are three illustrations of physical spaces embodying a continuing social and economic exclusion. Within the criminal justice system, processes of exclusion find their physical manifestation in detention facilities. By all standards, China has a very low incarceration rate.2 In spite of this incontestable fact, economic reform has resulted in the birth of detention facilities whose rationale differs greatly from RETL camps. While RETL camps were initially established to manage minor counter-revolutionaries and other unwanted or unproductive elements, compulsory drug rehabilitation camps came into existence to separate addicts from the rest of society. This chapter illustrates the legal regime of drug rehabilitation and reconstructs the genesis of compulsory drug rehabilitation centers,

* Yu 2008. 1 Agamben 1998. 2 Peerenboom 2007: 98 for a discussion of China’s incarceration rate.

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arguing that the earliest attempts to establish them were caused by the perception of widespread opium smoking as a threat to the nation. As substance dependency continued to be regarded as disruptive of public order, compulsory rehabilitation camps persisted. Their existence was, however, marked by continuous ebbs and flows, by a cycle of emergence and dismantling that spanned through eighty years. This sequence began in Republican China, when compulsory rehabilitation was introduced in the ROC legal system as a safety measure (bao’an chufen 保安处分). As this measure was transplanted into Soviet base areas, it became, instead, a form of arbitrary detention. Compulsory rehabilitation ended in the early 1950s, to be revived in the post-Mao era. After 1978, problems very similar to those existing in Republican China induced its reform. While preserving its earlier features, compulsory rehabilitation become more firmly entrenched in the legal system. Rather than bestowing increased procedural safeguards to the targets of this measure—thus going back to a situation of law analogous to the one existing in the ROC—changes in its legal regime have encouraged a reorganization of drug rehabilitation camps, their merging with RETL camps, and the rebirth of forced job placement (liuchang jiuye) under a different guise. 6.1

The Evolving Legal Regime 1990–2008

Between the 1950s and the late 1980s, the policy response to the criminological consequences of addictions was weak. Legislation adopted in the 1950s went into disuse, and rehabilitation institutions were closed down. Around the mid-to-late 1980s, drug abuse once again surfaced in China, causing a dramatic change. To counter the social and criminological consequences of addictions, five different measures were adopted. The first mandated the registration of addicts at public security bureaus. The knowledge about addicts gathered by this simple method should have ideally enabled the police to make an optimal use of the four remaining measure. Of these, one was voluntary, and consisted of the addict’s signing up at private rehabilitation clinics. The three remaining measures were enforced coercively by the police. In an increasing degree of severity, they were administrative detention on public security charges, compulsory drug rehabilitation, and compulsory rehabilitation through labor. Detention on public security charges applied to recreational drug users and could last from five to

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fifteen days.3 The targets of compulsory drug rehabilitation and compulsory rehabilitation through labor were, instead, defined as those individuals who smoked or injected psychotropic drugs and became addicted to them.4 This group included persons with no prior criminal record as well as public security and criminal suspects.5 The method used to detect addiction consisted of a urine test administered by the police. The obtainment of a positive result was considered sufficient grounds for compulsory drug rehabilitation (qiangzhi jiedu 强治戒毒).6 This measure was a form of administrative detention lasting between three and six months. Its term could be extended to one year if six months were insufficient to achieve a complete withdrawal.7 After release, those who still could not overcome their addiction or resumed their habit could be sentenced to compulsory rehabilitation through labor (laodong jiaoyang jiedu 劳动教养戒毒), with a term lasting from one to a maximum of four years.8 3 They could also be levied with a fine of no more than RMB 200. Article 24 (3), 1994 SAPR. Article 8, Standing Committee of the National People’s Congress Decision on prohibiting drugs (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu jindude jueding 全国人民代表大会常务委员会关于禁毒的决定), issued on 28 December 1990 and effective from the same date. Repealed on 1 June 2008. Setting fines up to RMB 2,000, hereinafter referred to as Decision on Prohibiting Drugs. 4 Article 8, Decision on Prohibiting Drugs; article 1, State Council measures on compulsory drug rehabilitation (Guowuyuan qiangzhi jiedu banfa 国务院强制戒毒办法), issued on 12 January 1995 and effective from the same date, hereinafter referred to as the Measures on Compulsory Rehabilitation. 5 Article 4 (4), Ministry of Public Security circular on some problems in implementing the measures on compulsory drug rehabilitation (Gong’anbu guanyu guanche zhixing qiangzhi jiedu banfa youguan wentide tongzhi 公安部关于贯彻执行强制戒毒办法有关问 题的通知), issued on 30 May 1996 and effective from the same date. 6 Ministry of Public Security reply on the criteria to determine addiction of those who smoke or inject drugs (Gong’anbu guanyu dui xishi, zhushe dupin renyuan chengyin biaozhun jieding wentide pifu 公安部关于对吸食注射毒品人员成瘾标准界定问题的批复), issued on 22 April 1998 and effective from the same date, hereinafter referred to as MPS criteria. 7 Article 8, Decision on Prohibiting Drugs. Article 6, Measures on Compulsory Rehabilitation. 8 Article 8, Decision on Prohibiting Drugs. The maximum length of reeducation through labor is three years, but it can be extended by a three-month period for no more than four times in cases of escape from custody, absconding, and recidivism. 3, State Council Supplementary rules about reeducation through labor (Guowuyuan guanyu laodong jiaoyang buchongde guiding 国务院关于劳动教养补充的规定), issued on 29 January 1979 and effective from the same date. Other conditions were introduced in 1982. See article 58, State Council experimental measures on reeducation through labor (Guowuyuan Guanyu laodong jiaoyang shixing banfa 国务院关于劳动教养实行办法), issued on 21 January 1982 and effective from the same date. Several of the provisions under the Experimental Measures have been abrogated by article 93, Ministry

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The adoption of administrative detention measures was motivated by the fact that drug abuse is considered a violation of public security administration rather than a crime. The approval procedure of compulsory drug rehabilitation and drug rehabilitation through labor was controlled by the police and took place through a decision ( jueding) made by public security bureaus at the district level. The decision was to be delivered to the addict before his detention began. His relatives, work unit, and the public security station at the place of his residence were notified within three days. 9 Procedural remedies could be accessed independently and included administrative reconsideration (xingzheng fuyi ) and administrative litigation (xingzheng susong).10 Out of consideration for their vulnerability, some subjects would benefit from measures other than detention.11 The revival of these two forms of detention had significant empirical as well as theoretical consequences. First, detention facilities to receive those sentenced to compulsory rehabilitation were constructed. Rehabilitation through labor could, on the other hand, take place in RETL camps. As a system of detention facilities parallel to RETL camps slowly began to take shape, RETL acquired an additional func-

of Public Security rules on the handling of reeducation through labor cases by public security organs (Gong’anbu guanyu gong’an jiguan banli laodong jiaoyang anjian guiding 公安部 关于公安机关办理劳动教养案件规定), issued on 12 April 2002 and effective from 1 June 2002. Article 1, Standing Committee of the National People’s Congress decision on reform and reeducation through labor inmates who escape from custody or are recidivists (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu chuli taopao huozhe chongxin fanzuide laogaifan he laojiao renyuande jueding 全国人民代表大会常务委 员会关于处理逃跑或者重新犯罪的劳改犯和劳教人员的决定), issued on 10 June 1981 and effective from the same date. The Criminal Law of the People’s Republic of China has abrogated this decision, replacing the provisions under the first sentence of article 1 with the crime of absconding from lawful custody (tuotaozui 脱逃罪). Appendix 1, paragraph 5, article 316 CL 1997. The existence of administrative detention measures makes the understanding of the words “lawful custody” ( yifa guanya 依法关 押) somewhat controversial. The main point of contention is if lawful custody is to be understood as comprising only pre-trial detention and fixed-term imprisonment following a finding of guilt by a jury or as administrative detention as well. If the concept of lawful custody excludes administrative detention, then RETL detainees cannot be the subjects (fanzui zhuti 犯罪具体) of this crime. See Gao and Ma 2000: 563; Cheng and Xu 2000: 92–94 advocating that only criminal convicts can commit this crime. For a more nuanced interpretation see Meng 2008. 9 Article 5, Measures on Compulsory Rehabilitation. 10 These could be accessed independently. See 7, ibid. 11 These were carriers of infectious or serious diseases, pregnant or nursing women, and other subjects. See article 20, ibid.

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tion, given that drug rehabilitation was not the reason for its birth.12 Theoretically, a zone of exception was created, and another one— RETL—witnessed an expansion as it now covered a new category of subjects. Both measures had inadequate legal groundings,13 as they were based on administrative regulations and rules issued either by the State Council or the Ministry of Public Security. In both cases, the criminal justice system shifted to a different mode of operation: punitive power was exerted by public security organs in the absence of formal charges and outside trial procedures. Hence, deprivation of freedom took place in the generalized absence of rights even though inmates still could challenge the police’s decision. Naturally, they would continue to be detained during review or litigation procedures. Thus, the availability of procedural remedies was still not a sufficient condition to protect them from grip of the police, who exerted temporary sovereign power over them.14 Compulsory drug rehabilitation and rehabilitation through labor have shown the same resilience as other zones of exception: revived to counter unforeseen phenomena, they have acquired a legitimacy of their own, slowly becoming a normal component of criminal justice. The final stage of this process took place over a period of seventeen years, culminating with the entry into force of the People’s Republic

On the establishment of RETL camps in the 1950s, see Fu 2005b. For an in-depth discussion of this point, see Biddulph 2007. 14 The availability of these remedies is different from their actual accessibility and operation. In principle, policy considerations may lead to a systematic bias of review mechanisms in favor of the police. Procedural remedies would then change little, as considerations other than legal dictates would still prevail over the law and lead to setting aside the rights of this group. Even though no systematic study of this specific issue has been conducted, inmates’ demographics suggest how due to their background they may experience strong difficulties in accessing available remedies. For instance, 61.8 percent of addicts in Suzhou compulsory rehabilitation camp surveyed in 2000 had received only an elementary education, and 66 percent of them were unemployed. Luo and Liu 2000. 70 percent of the detainees in Wuhan had the same educational level, and 55 percent of them had no stable source of income. Cao and Cheng 1996. 72.3 percent of addicts detained in Canton psychiatric hospital in 1996 had received lower-level secondary education and a significant part of them (43.7 percent) were unemployed. Dai and Zhao 1996; Prosser, Cohen et al. 2006. Even admitting that addiction had not impaired these persons’ cognitive functions and they possessed a full and ample consciousness of their procedural rights, they may simply lack the means to bear the burden of administrative litigation costs. On the other hand, the actual use of procedural remedies against RETL seems to be minimal. On this point see Peerenboom 2006: 1014–15. 12 13

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of China Law on Prohibiting Drugs in June 2008.15 According to a well-rehearsed continuity, analyzed by Sarah Biddulph, the AntiDrug Law has provided this administrative detention power with an adequate legal grounding without limiting police discretion.16 Addicts are now detained in accordance with procedures set by a national law ( guojia falü), informed of the reasons for their detention, and enjoy the right to challenge their detention. But the power to decide on this measure still belongs to the police. Ironically, police powers operate within the law. At the same time, these powers exist outside of the law, because no meaningful, independent and prompt review of the rehabilitation decision takes place. Both compulsory rehabilitation and drug rehabilitation through labor have been replaced by a more rational set of custodial as well as noncustodial measures. Habitual users have become the target of a different power, known as isolation for compulsory drug rehabilitation (qiangzhi geli jiedu 强治隔离戒 毒). The definition of habitual user has not changed. Furthermore, even though drug-testing procedures have been the object of further regulations,17 thus far the only variation involves supplementing urine test results with evidence (zhengju) that proves that drug use was not simply occasional.18 Hence, isolation for compulsory drug rehabilitation applies to those suspects who test positive,19 as well as to occasional or recreational users. Beginning in June 2008, they became targets of 15 Zhonghua Renmin Gongheguo jindufa 中华人民共和国禁毒法, issued on 29 December 2007 and effective from 1 June 2008, hereinafter referred to as the Anti-drug Law. 16 Biddulph 2007: 152–93. 17 Ministry of Public Security rules on the procedure to determine drug use (Gong’anbu xidu jiance chengxu guiding 吸毒检测程序规定), issued on 27 September 2009 and effective from 1 January 2010. 18 Article 38, Anti-drug Law. Evidence consists of confessions made by those who were found in possession of psychotropic substances or objects used to consume drugs, such as needles, chillums, water pipes, and other paraphernalia. Alternatively, it can consist of a report ( jubao) confirmed by a confession and urine test results. In the absence of a regulatory regime governing evidence collection, the potential for abuse remains high. Evidence collection is sometimes still plagued by the extortion of confessions by means of torture, an excessive reliance upon anonymous reports and confessions. Lu and Miethe 2003 point out that the rate of confessions is still high, even though during the reform era confessions have diminished. The article is based on statistical analyses performed on a sample of criminal cases. Confessions by addicts take place in an environment where the procedural safeguards allowed by the Criminal Procedure Law are absent. Such an environment resembles more the prereform criminal justice system than its 1980s and 1990s counterparts. Therefore, the confession rate within such an environment could be higher. 19 MPS criteria.

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community rehabilitation (shequ jiedu 社区戒毒), a measure alternative to detention. A refusal to undergo community rehabilitation, or the use of drugs during the period of community rehab, is, however, met with a term of isolation.20 Under the possibly worst scenario, isolation for compulsory drug rehabilitation can last for a total of six years. The normal term of detention under this measure is usually two years. At end of the first year of detention, an evaluation of the addict’s rehabilitation is carried out. If significant signs of recovery are revealed, release can be ordered, otherwise the term of detention can be extended to two years.21 A further one-year extension can be imposed if two years have not been sufficient to achieve a complete withdrawal. After this three-year period, public security organs can order (zeling) addicts to undergo community recovery (shequ kangfu) for an additional three years22 in order to consolidate the results achieved while under detention.23 Addicts who use drugs more than just once during this three-year period can be sentenced to a second term of compulsory rehabilitation, with a threeyear maximum length.24

20 Article 38 (4), Anti-drug Law. There is evidence that the interpretation of article 38 (4) may be subjected to regional variations. Some localities in Anhui province, for instance, ruled that a delay in contacting civil society organs providing community treatment is sufficient grounds for the adoption of compulsory measures. Delay in requiring community treatment has been specified as the elapse of seven days from receipt of the police order to seek community treatment. Article 8 (5.3.1), Huainan work plan on community rehabilitation and community recovery (Huainanshi kaizhan shequ jiedu he shequ kangfu gongzuo fang’an 淮南市开展社区戒毒和社区康复工作方案), issued on 28 November 2008 and effective from the same date. Otherwise, detention is used on those who do not reveal their true name, or whose identity is unclear. Article 8 (5.3.5), ibid. 21 Article 47, Anti-drug Law. 22 Article 48, ibid. 23 This measure does not differ from social assistance (shehui bangjiao 社会帮教) provided to addicts under earlier, particularly local, legislation. See Dafang District Public Security Bureau Rules about the follow-up urine tests of persons released from compulsory drug rehabilitation camps (Dafangxian gong’anju guanyu jiedu chusuo renyuan genzong niaojiande youguan guiding 大方乡公安局关于戒毒处所人员跟踪尿检的有关规 定). Bijie Anti-drug Committee General Office implementing opinion on the work of social assistance to addicts (Bijie diqu jindu weiyuanhui bangongshi, Bijie diqu xidu renyuan shehui bangjiao gongzuo shishi yijian 毕节地区禁毒委员会办公室, 毕节地区吸毒人员社 会帮教工作实施意见), issued on 20 January 2006 and effective from the same date. Articles 21, 22, Guizhou Province Public Security Bureau measures on managing drug addicts (Guizhou gong’anting xidu renyuan guanli banfa 贵州公安厅吸毒人员管理办法). On file with the author. 24 Article 38 (4), Anti-Drug Law.

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The occurrence of a rehab-relapse-rehab cycle resulting in an addict serving several consecutive terms of detention was a well-known feature of rehabilitation measures existing before 2008. By mandating longer terms of detention, the Anti-Drug Law should ideally break this cycle. Studies conducted before 2008 proved how a six-month term was insufficient to achieve a complete withdrawal, suggesting that longer terms of detention were necessary. Commentators voiced for an extension of compulsory rehabilitation to two or even three years, so addicts could be cured once and for all.25 While the reform of rehabilitation measures had introduced longer periods of custody, no changes in procedural norms have taken place. Rather, the main elements of shelter for examination have been incorporated into approval procedures, so whenever an addict does not reveal his true identity or address, or if his identity is believed to be unclear (buming), detention formally begins only after public security organs have correctly identified him.26 Various preventive, follow-up, and control measures ( genzong diaocha) introduced in the 1990s to cure mild addictions and to lower the relapse rate of former inmates27 have been rationalized under the guise of community rehabilitation and community recovery. Known under the umbrella term of “help-and-teach measures,” (bangjiao cuoshi), grounded in local-level legislation, and often adopted on an experimental basis,28 these included community control, group therapy, and methadone maintenance therapy. Community rehabilitation can be required as an alternative measure for the same subjects who before were placed outside the scope of compulsory rehabilitation.29 Community recovery is used for former inmates. Both measures

Yang and Wang 2004; Quangguo Renmin Daibiao Dahui 2008, 2008b. Article 40, Anti-Drug Law. This measure was included in the revised criminal procedure law. Article 61, (6), (7) CPL 1996. On shelter for examination see Fu 1994; Wong 1996, 1997. 27 Article 45, Ministry of Public Security measures on the administration of compulsory drug rehabilitation camps (Gong’anbu qiangzhi jiedusuo guanli banfa 公安部强制戒 毒所管理办法), issued on 17 April 2000 and effective from the same date, hereinafter referred to as Measures on Compulsory Rehabilitation Camps. 28 Feng 2006. 29 Article 33 of the Anti-Drug Law mentions that community rehabilitation can be ordered (keyi zeling) by the police to addicts, without much further specifications. This provision has been interpreted as referring to subjects belonging to categories which, under earlier legislation, were already outside the scope of compulsory rehabilitation. These subjects have been included in the Anti-drug Law. They are women who are pregnant or nursing a child of less than one year of age, those younger than sixteen years, first-time users who are not heavily addicted, those over seventy years 25 26

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can constitute a gateway to compulsory isolation, as—after users have signed a pledge of abstention from drugs and been admitted to the community30—their second violation of the pledge is punished with a term of administrative detention.31 6.2

The Roots

Compulsory rehabilitation is neither a novelty nor a product of the PRC. The grandiose project to cleanse the body of China from addictions took its first steps much earlier, as the smoking of opium was prohibited during the Qianlong period.32 The birth of compulsory rehabilitation as a legal institution took place only in 1929, as the Nationalist government, endorsing the suggestions made by the National Anti-Opium Association,33 enacted the Temporary Rules on Prohibiting Drugs.34 The rationale behind the Temporary Rules was the elimination of addictions by the end of the Guomindang 1935 Six Years Anti-Drug Plan. What was at stake were nothing less than the life and territorial integrity of a nation torn by internal strife, and over which hovered the Damoclean sword of a further Japanese expansion. Given this context and the devastating effects of addictions, a means to preserve public health was found in compulsory rehabilitation, a draconian measure made even worse by the heavy terms of detention used to punish those who relapsed back into addiction. Inmates who were still addicted by 1936 were punished with a term of detention from one and three years. Those who could not detoxify by 1937 were punished of age, the ill, the disabled, those with no means of livelihood, and those who are not deemed socially dangerous. Article 33, Anti-Drug Law. Quangguo Renda Fagongwei 2008: 96–99, discussing community rehabilitation. See also Hainansheng Gong’anting 2008. 30 Article 35, Anti-drug Law 31 Article 38, ibid. The first violation of the pledge is punished with criticism and education (piping jiaoyu). Those who due to their age or physical conditions are unsuited for community rehabilitation may sometimes be detained in public security detention centers, as measures alternative to detention may not yet be generally used. Article 2, 1 [1] Ouhai district Chashan neighborhood implementation plan on the work of drug rehabilitation and recovery (Ouhaiqu Chashan jiedao shequ jiedu (kangfu) gongzuo shishi fang’an 瓯海区茶山街道社区戒毒(康复)工作实施方案), issued on 10 July 2008 and effective from the same date. Ouhai is a district in Wenzhou. 32 Lu, Miethe, Bin 2009: 39. 33 Slack 2000: 88. 34 Temporary Rules on Prohibiting Drugs ( Jindu Zhizui Zanxing Tiaoli 禁毒治罪暂 行条例), reproduced in Qiu 1998: 789–90.

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with a three-to-seven-year term of detention,35 while those who continued to use drugs after 1938 could be sentenced to death.36 Ironically, the treatment came at the addict’s expense. In 1935, the incorporation of the Temporary Rules in the Criminal Law of the Republic of China took place, making compulsory rehabilitation a permanent component of the legal order. At this point, a key development marking a bifurcation in the subsequent development of compulsory rehabilitation took place. Nationalist lawmakers listed compulsory rehabilitation under chapter 12 of the 1935 Criminal Law,37 effectively turning this legal institution into a safety measure (bao’an chufen). As Jerome Alan Cohen noticed, the Guomindang criminal code was modeled after continental legal codes.38 The logos—the creative principle—of the Republican Code contained a category of measures variously known as preventive safety measures (mesures de sûreté, misure di sicurezza) or measures of reform and prevention (Maßregeln der Besserung und Sicherung). Advocated by early criminologists such as Enrico Ferri, Cesare Lombroso, and Cesare Beccaria, personal safety measures induced the deprivation of freedom of the socially dangerous. The rationale was preventive rather than punitive. Some measures, such as placement in preventive detention, were collateral to imprisonment. Others, such as the expulsion of migrants and commitment to a psychiatric hospital or to an institution for treatment could be ordered for those who may commit crimes because of their social dangerousness, lack of capacity, or proclivity to use intoxicant substances to excess. The Republican code closely followed its continental models, mandating that this measure be subjected to judicial review. Under article 88, compulsory rehabilitation could last for a maximum six months and be adopted either before criminal or administrative punishments or as an alternative measure. Difficulties in

Article 7, Temporary Rules on Prohibiting Drugs. Article 8, ibid. 37 The others were reform and education (ganhua jiaoyu 感化教育), used on juvenile light offenders; detention of the mentally ill (“those who are not culpable because of mental illnesses must be ordered to enter a suitable location or to undergo guardianship”); detention of chronic alcohol abusers (“those who commit crimes because of drunkenness are ordered, after the completion of their sentence or after receiving a pardon, to enter a suitable location to undergo rehabilitation”); detention of habitual offenders, professional offenders (yi fanzui wei changye 一犯罪为常业), floaters (youdang 游荡) and the lazy (landuo 懒惰), at, respectively, articles 86, 87, 89, 90 Criminal Law of the Republic of China (Zhonghua Minguo Xingfa 中华民国刑法), promulgated on 10 March 1935 and effective from 1 September 1935. Translations mine. 38 Cohen 1966: 474. 35 36

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implementing the Six Years Plan soon induced changes in anti-drug legislation, with sentences becoming somewhat lighter.39 Compulsory rehabilitation was, however, retained. It is still a safety measure under the criminal law of Taiwan. In areas controlled by the Communist forces, matters took a less linear turn. Before and after the Sino-Japanese War, Republican legislation was effectively transplanted into Communist base areas. Administrative documents issued in base areas mandated the implementation of the Nationalist Anti-Opium Law: The purchase, sale, transportation and production of all opiates are forbidden. Violators will be punished under article 6 of the Anti-Opium Law ( jinyanfa) (issued by the Nationalist Government on 25 July of the Eighteenth Year of the Republic, amended on 16 March of the Twentysecond year of the Republic).40

The legal documents issued in Jinxibei,41 Jinjiluyu,42 Shandong,43 Liaoji,44 Subei,45 Suiyuan,46 and elsewhere were, however, administrative rules and regulations, not laws—how could they possibly have been laws, given that in these areas no law-making organs and procedures, as we understand them, existed? Apart from this formalistic difference, the substantive content of this early legislation was very 39 Temporary rules on prohibiting drugs (Jindu zhizui zanxing tiaoli 禁毒治罪暂行 条例), issued on 3 June 1937 and effective from the same date. Temporary rules on prohibiting drugs (Jindu zhizui zanxing tiaoli 禁毒治罪暂行条例), issued on 8 February 1947 and effective from the same date, reproduced in Qiu 1998: 791–93; 795–96. 40 Jinchaji border area temporary measures on cracking down on opium smuggling ( Jinchaji bianqu jisi yapian zanxing banfa 晋察冀边区缉私鸦片暂行办法), issued on 21 November 1945 and effective from the same date. Ibid., 781–82. Translation mine. 41 Jinxibei temporary regulations on prohibiting opium (Jinxibei jinyan zhizui zanxing tiaoli 晋西北禁烟治罪暂行条例), issued on 1 January 1941 and effective from the same date. Ibid., 782, hereinafter referred to as Jinxibei Temporary Regulations. 42 Jinjiluyu temporary regulations on prohibiting drugs (Jinjiluyu bianqu dupin zhizui zanxing tiaoli 晋冀鲁豫边区毒品治罪暂行条例), issued on 15 July 1941 and effective from 15 July, Thirty-seventh year of the Republic of China. Ibid., 782–83, hereinafter referred to as Jinjiluyu Temporary Regulations. 43 Shandong temporary regulations on prohibiting drugs (Shandongsheng jindu zhizui zanxing tiaoli 山东省禁毒治罪暂行条例), issued on in February 1943 and effective from 1 May 1943. Ibid., 785, hereinafter referred to as Shandong Temporary Regulations. 44 Liaoji anti-opium and anti-drug regulations (Liaojiqu jinyan jindu tiaoli 辽吉区禁烟 禁毒条例), issued on 25 August 1946 and effective from the same date. Ibid., 786. 45 Subei temporary anti-opium and anti-drug measures (Subeiqu jinyan jindu zanxing banfa 苏北区禁烟禁毒暂行办法), no issue date. Ibid., 786–87. 46 Suiyuan temporary measures on giving up drugs (Suiyuansheng jiexi dupin zanxing banfa 绥远省戒吸毒品暂行办法), issued on 20 August 1949 and effective from the same date. Ibid., 787–88.

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similar to Nationalist law: addicts had the obligation to register at police stations,47 to undergo coercive rehabilitation, and cover the cost of treatment. Those who did not give up their addiction could be sentenced to forced labor,48 imprisonment,49 or even to death.50 To the Communist forces at this time, addictions were a question of life or death. Earlier, in the 1930s, they even adopted such measures as enlisting addicts and dispatching them to “drug rehabilitation battalions” ( jiedulian 戒毒连) before allowing them to join combat forces.51 In the face of such a pressing political imperative as survival, Nationalist legal models were necessary. A fundamental difference, though, existed between rehabilitation measures existing in Nationalist legislation and compulsory rehabilitation as it existed in Communist-controlled areas. What in the rest of China had been a safety measure, became a form of arbitrary detention in areas controlled by the CCP.52 In fact, compulsory rehabilitation was decided and enforced without judicial review and in the absence of formal accusations as well as procedural safeguards. The life of the Revolution was deemed more important than procedural justice. Furthermore, the civil war possibly proved a sufficient motive to push this and similar concerns from CCP rule-makers. Slowly, the use of arbitrary detention was becoming a normal way of managing addicts in the PRC. The first signs of this process could be seen in the early 1950s, a time when talking about law may have not made much sense. Administrative decrees could draw a clear distinction between ordinary addicts ( yiban yanmin 一般烟民), understood as those with a stable residence and source of income, and a group composed of vagrants and beggars. Their singling out for increased attention was necessary; this transient population was believed to be a hot-bed of criminal activity and a safe harbor for anti-party ele47 Article 6, Administrative Council Order on Severely Prohibiting Opium and Drugs (Zhengwuyuan guanyu yanjin yapian yandude tongling 政务院关于严禁鸦片烟毒的通 令), issued on 24 February 1950. Reproduced in Qiu 1998: 824–25. 48 Article 6, Shanganning border area draft Anti-Opium and Anti-Drug Rules (Shanganning bianqu jinyan jindu tiaoli (cao’an) 陕甘宁边区禁烟禁毒条例草案), ibid., 783–84. 49 Article 6, Jinxibei Temporary Regulations. 50 Article 5, Jinjiluyu Temporary Regulations; article 6, Shandong Temporary Regulations. 51 These episodes happened in 1933. Ruan 1996. 52 The concept of safety measure was absent from legislation issued in base areas as well as from early PRC legislation. According to Sarah Biddulph, this concept is still absent from Chinese criminal legislation, even though the introduction of safety measures has been suggested. Biddulph, 2007: 345–48.

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ments such as former Guomindang personnel and spies. Thus, the innocuously ordinary addicts would receive drug rehabilitation and ideological and political education53 at home54 under the supervision of the community,55 or at drug rehabilitation centers.56 These measures were used during the 1952 anti-drug campaign, too. Members of the transient population were instead routinely detained in compulsory rehabilitation centers ( jiedusuo 戒毒所) and subjected to forced labor. 57 After rehabilitation, they were transferred to RETL camps,58 which then performed welfare functions, too.59 The indigenous model for rehabilitation was set. 6.3

Birth of the Camp

Thus, one of the manifold empirical manifestations of the camp, understood as the hidden matrix of modernity, came to life. Placing the blame on educated Nationalist lawmakers and their Western advisors, or

53 Articles 9, 10, North-East Administrative Region implementing measures on prohibiting opium and drugs (Dongbeiqu jinyan jindu guanche shishi banfa 东北区禁烟 禁毒贯彻实施办法), issued on 13 October 1950 and effective from the same date. Reproduced in Qiu 1998: 826–27. Internal Affairs Ministry directive on anti-opium and anti-drug work (Neiwubu guanyu guanche yanjin yandu gongzuode zhishi 内务部关于贯 彻严禁烟毒工作的指示), issued on 12 September 1950. Ibid., 826–27. 54 Zhengxie Liboxian Weiyuanhui, 2008. In most administrative regions, detention was used only on vagrants and beggars. Two exceptions were the Northwest China region and Inner Mongolia, where compulsory rehabilitation was practiced regardless of an addict’s residential status. Article 8, North-West Administrative Region temporary measures on prohibiting opium and drugs (Xibeiqu jinyan jindu zanxing banfa 西北区禁烟禁毒暂行办法), issued on 16 February 1951. Ibid., 830. Article 17, Inner Mongolia Autonomous Region implementing measures on prohibiting opium and drugs (Neimenggu zhizhiqu jinjue yapian yandu shishi banfa 内蒙古自治区鸦片烟毒实施办 法), issued on 14 April 1951. Ibid., 829–30, hereinafter referred to as Inner Mongolia Measures. 55 Wang 1997. 56 Article 6, Beijing People’s Government circular on the measures and decision on the implementation plan on opium prohibition (Beijingshi Renmin Zhengfu guanyu chajin yandu banfa ji zhixing jihua juedingde tongzhi 北京市人民政府关于查禁烟毒办法及执行 计划决定的通知), issued on 25 April 1950 and effective from the same date, reproduced in Beijingshi Dang´anguan 2001. 57 While these distinctions were based on ideology, others were based on objective considerations, such as the addict’s age and state of health. Those whom could not be treated at home, like the elderly, the ill, and those heavily addicted, were treated at hospitals. Beijingshi difangzhi bianji weiyuanhui 2003: 100; Shanghaishi Gong´anju Gong´anzhi Bianji Weiyuanhui 1997: 426. 58 Reeducation through labor camps were the next stop also for those residents who failed to detox. Article 17, Inner Mongolia Measures. 59 Fu 2005b.

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on ignorant Communist rule-makers and their Soviet advisors would obscure two fundamental facts. First, regardless of the merits of the drafting techniques and the legality of detention, pre-1949 legislation just gave legal form to a situation of fact existing before the birth of rehabilitation as a legal institution. Second, in mid-nineteenth-century China was plagued by opium addictions. If this resulted in unsuccessful attempts to ban the drug trade, it also posed the objective need to cure addicts using the means and methods that were then available. The introduction of compulsory rehabilitation was suggested by no one other than Lin Zexu, in an 1838 memorial to Emperor Daoguang. Even though Lin’s memorial was turned down,60 drug rehabilitation centers were, nonetheless, established to respond to the addiction epidemic. In the early twentieth century, treatment centers surfaced in various areas, as Heilongjiang province (1908),61 and in Changsu district, Jiangsu province (1913).62 Their appearance set in motion a cycle that would see the hurried establishment of rehabilitation centers, their unsatisfactory performance, and their disappearance or reform. The first treatment centers were opened by local governments and consisted mostly of small, make-shift facilities that were more similar to informal prisons than to rehabilitation clinics. Bringing this modern kind of epidemic under control subsequently became part of the Guomindang’s effort at modernization. A pressing need to regularize drug rehabilitation measures was posed also by the inconsistency of responses devised by provincial governments. Enjoying a substantial freedom in defining anti-drug policy, local governments continued to establish anti-opium clinics (禁烟所 jinyansuo), which were, as a result, extremely non-standardized. In addition to detention facilities,63 treatment centers included workshops that “emphasized the moral reform of the addict, through education or labor,”64 medical clinics funded by opium sale revenues, private hospitals,65 and opium dens disguised as treatment centers. The management of these structures seems to have been extremely inefficient. Plagued by a chronic lack of medical personnel, they seldom provided treatment, and often a bribe could

60 61 62 63 64 65

Slack 2000: 88. Heilongjiangsheng difangzhi bianji weiyuanhui 1993: 485. This center existed in Changshu district. Cheng 1997: 365. Qian 1997: 392–93. Baumler 1997: 208. Cheng 1997: 365.

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easily buy one’s way out.66 A substantial change should have come with the adoption of the Six Year Anti-Drug Plan. The first modern opium treatment hospital opened up in Nanjing in 1934, and between 1935 and 1936 drug rehabilitation centers were constructed systematically. Their number grew from 597 in 1934 to 1,160 in 1937.67 Some provinces—such as Fujian, where opium suppression was particularly strict—built drug rehabilitation centers in each county. As it would subsequently happen in the PRC, these facilities were jointly managed by the Ministry of Interior and health organs.68 Beyond the glossy surface of modernity, the situation was, however, discouraging and displayed problems similar to those that would surface in the PRC sixty years later. Historians recount how, in the frenzy to comply with the plan, addicts would be randomly arrested and detained in requisitioned hotels.69 In the face of this pressing political imperative, neither the sophisticated Western-like legislation nor the new modern facilities were of much use. As a former jieyansuo officer recalled in his memories: [A]part from the anti-drug medicine and ordinary medicaments . . . there was nothing. Addicts had to bring their own blanket, and would lay to sleep [sic] on the floor after they had swept away the grass.70

Violence and the funding of treatment centers through opium sales revenues were two serious problems.71 Most jieyansuo had been opened in a hurry, with the view to fulfill the Anti-Drug Plan. As a result, they were very small and lacked even the most basic equipment. The situation was not very different in Communist zones. There, anti-drug strategies were defined independently by each base area,72 with the result that neither treatment nor the centers nor periods of detention were standardized.73 Within a single area or province, different colloquial expressions were used to designate detention centers: “Addicts tie-up-and-treat centers” and “persuading-to-detox centers” ( yinmin lejiesuo, quanjiesuo 瘾民勒戒所, 劝戒所) were just two of them. Unlike developments that occurred before 1935 and from 1935 until

66 67 68 69 70 71 72 73

Zhang 1997: 343; Chang 1971: 366. Levich 1993: 153. Beijingshi difangzhi bianji weiyuanhui 2003: 11, 272, and 318. Slack: 108. Tao 1997: 494–95. Wang 1997: 215. Huang 1997. Zhao 1997: 101–5.

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the end of the civil war, the treatment centers established in the PRC seem to have been devised as a temporary solution. Early PRC legislation mentions that anti-smoking through labor centers—known as laodong xiyisuo—had to be built in those areas where drug consumption was widespread.74 The costs of treatment and expenditures had to be paid for by the addicts. Anti-smoking rehabilitation centers ( jieyansuo) and classes ( jieyanban) were established in most Chinese provinces. Regulation by local authorities persisted, and the system, too, was still scattered and decentralized. The center’s allegedly temporary nature was proven by their dismantling or conversion after the PRC first war on drugs ended.75 Relevant legislation adopted in the Six Great Administrative Areas went into disuse. Such a going into disuse should have looked suspicious from its onset. If economic reform had witnessed a rise in addictions, would the policy response have changed? One feature of the post-1978 legal system, namely the weakness of the judiciary coupled with the strength of the police, meant that the preferred response strategy would still have relied on administrative detention. 6.4 Rebirth of the Camp All of the detention facilities established from the 1950s until 1990 were unsuited to treat addicts. To overcome his physical and psychological dependence from psychotropic substances, an addict needs pharmacological, medical, and psychological treatment. The chain of detention facilities instead existed to identify minor or transient criminals, punish them, and educate or reform them through labor. Public security detention centers (zhi’an juliusuo), where recreational users could be detained, did not possess rehabilitation facilities, neither

74 Article 11, South-West Military Committee implementing measures on prohibiting opium and drugs (Xinan junzheng weiyuanhui guanyu jinjue yapian yandude shishi banfa 西南军政委员会关于禁绝鸦片烟毒德实施办法), issued on 31 July 1950 and effective from the same date. Reproduced in Qiu 1998: 825. Article 6, South-West Military Committee directive on anti-opium and anti-drug work (Xinan junzheng weiyuanhui guanyu kaizhan jinyan jindu gongzuode zhishi 西南军政委员会关于开展禁烟禁毒工作的 指示), issued on 16 November 1950 and effective from the same date. Ibid., 826–28. 75 Heilongjiangsheng difangzhi bianji weiyuanhui 1993: 487; Guo and Zheng 2004: 388.

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did other kinds of administrative detention centers or RETL camps. Prison-camps ( jianyu) did not provide rehabilitation to those sentenced to criminal detention (xingshi juliu) and who had an addiction. The concept of criminal reform (gaizao) was, furthermore, inherently unable to cover addictions, given that substance abuse does not constitute a criminal offense under Chinese law. Faced with this bleak situation, in 1987 Lanzhou authorities established a compulsory rehabilitation camp,76 thus laying the foundation for a new system of detention facilities. Between the late 1980s and until the late 2000s, drug rehabilitation camps existed independently from RETL and prison-camps. While these were administered by justice organs,77 jiedusuos were embedded in the public security apparatus78 and constituted subordinate units (xiashu danwei) of public security bureaus. Most jiedusuos were concentrated in the southern and southeastern provinces.79 Their numbers in northern provinces seem to have been smaller. This imbalance in spatial distribution, which persisted until the late 2000s, clearly reflected the relative prevalence of addictions in wealthier coastal provinces. The growth of jiedusuos resulted mostly from local initiatives, with the central state occasionally stepping in to perform clean-ups of the system or curb the most blatant abuses. Even though the construction of jiedusuos should have followed a so-called unified planning (tongyi guihua 统一规划),80 the concrete task of creating these structures befell public

Li and Jiao 2008: 12. Ministry of Public Security rules implementing the center’s decision to transfer the management of reform and reeducation through labor work to the departments for the administration of justice (Gong’anbu, Sifabu guanyu guanche zhixing zhongyang jiang laogai, laojiao gongzuo yijiao gei sifa xingzheng bumen guanlide ruogan guiding 公安部司法部关 于贯彻执行中央将劳改劳教工作移交给司法行政部门管理的若干规定), issued on 9 June 1983 and effective from the same date. 78 “Compulsory rehabilitation camps are facilities where public security organs—in accordance with the law and for a limited period of time—adopt administrative coercive measures on those who smoke or inject drugs and have become addicted to them to perform detoxification, to provide psychological counseling, to engage them in a moderate manual labor, and to give them legal and moral education.” Article 2, Measures on Compulsory Rehabilitation Camps. Translation mine. 79 Tian 2002. 80 The construction is normally proposed by the public security bureau and then approved by the local level government. Then the provincial government and the Ministry of Justice are notified. Construction projects are funded jointly by the central, provincial, and sub-provincial governments. 76 77

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chapter six Table 2. Size and inmate population of jiedusuos81 Year

Registered addicts

Compulsory Rehabilitation camps

Population

1990 1991 1992 1993 1994 1995 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

70,000 148,000 250,000 – 380,000 520,000 540,000 596,000 681,000 860,000 901,000 1,000,000 1,050,000 – – – 957,000

– – 251 More than 200 404 500 696 – 746 – More than 700 583 554 746 – – –

– – 46,000 50,000 – 60.000+ – 140,000 224,000 248,000 217,000 252,500 220,000 273,000 298,000 269,000 268,000

81

security organs, who had to comply with the requirement that a camp be opened whenever more than 1,000 addicts had been registered.82 A hasty response then occurred, which seems to have been based more on perceptions than reliable data about the number of addicts.83 The

Compiled from Li and Jiao 2008: 12; Gong’anbu Jinduju 2000–2008; Guo 1997; Zhongguo Falü Nianjian Bianji Weiyuanhui 2004; Zhongguo Dazhong Shiyong Nianjian Bianjibu 2001: 30; Guojia Jindu Weiyuanhui Bangongshi and Gong’anbu Jinduju 2004: 31; Li Jianhua 2003; Du 2002; Zhai 2004; Guo and Zheng 2005; Gu 2004. 82 Zhai 2004: 1. Localities where the number of addicts was not high enough to justify the creation of a jiedusuo, could transfer their addicts to jiedusuos existing in nearby centers or to those designated by provincial public security bureaus. Article 1, Ministry of Public Security circular on some problems in implementing the measures on compulsory drug rehabilitation (Gong’anbu guanyu guanche zhixing qiangzhi jiedu banfa youguan wentide tongzhi 公安部关于贯彻执行强制戒毒办法有关问题的通知), issued on 30 May 1996 and effective from the same date. 83 Official figures about addicts should be considered rough estimates at best. Most commentators held that the figure was grossly underestimated, and even official police sources admitted that the actual number of addicts may have surpassed the official figure of one million by five or even ten times. Hou and Chen 2005. 81

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most immediate result was an irrational development of treatment centers: jiedusuos could be established in old dilapidated buildings,84 be joined to kanshousuos,85 or exist inside police-run psychiatric hospitals.86 In 2000, a clean-up aimed at rehabilitation camps opened by private enterprises, sometimes jointly with the police, reinstated the police control over the system87 and divided jiedusuos into four categories based on their size.88 Eventually compulsory rehabilitation camps came to outnumber RETL camps89 and displayed very similar population figures, even though rehabilitation camps seem to have been, on the whole, smaller. In 2004 only 22 (2.94 percent) of the 746 existing camps qualified as very large (tedaxing), and 48 (6.43 percent)90 were considered large (daxing). Given that the system witnessed no significant changes until 2008, more or less 686 facilities (91.95 percent) had between 60 and 400 units. Exactly as in Republican China, the system had the potential to become seriously overcrowded.91 Furthermore, addicts had to pay for their treatment and living expenditures.92 Drug rehabilitation fees could weigh significantly on individual incomes. On

Ren, Gao, and Zhou 1996. Yu 2002. This latter practice took various forms. In some cases, the same facility was used both as a kanshousuo and jiedusuo according to the formula of “hanging two signs” (liangge paizi) on the same building. Thirty percent of the jiedusuo existing before 2001 existed within the kanshousuo or the administrative detention center. Xin 2001. 86 In 2004, 23 drug rehabilitation centers existed within the ankang. Liu and Zeng: 571. In theory, the ankang should only provide voluntary treatment. Ministry of Public Security circular on conscientiously implementing the measures on compulsory drug rehabilitation (Gong’anbu guanyu renzhen zhixing “qiangzhi jiedu banfa” youguan wentide tongzhi 公安局关于认真执行强治戒毒办法有关问题的通知), issued on 9 September 2000 and effective from the same date. 87 Ministry of Public Security Circular on cleaning up and reorganizing compulsory drug rehabilitation camps (Gong’anbu guanyu qingli zhengdun qiangzhi jiedusuode tongzhi 公安 部关于清理整顿强制戒毒所的通知), issued on 21 January 2000 and effective from the same date. 88 Article 4, Measures on Compulsory Rehabilitation Camps. The categories were small (xiaoxing), medium (zhongxing), large (daxing), and very large (tedaxing). A small jiedusuo had a capacity of 60–200 units. Medium-sized jiedusuos could accommodate between 200 to 400 people, while large jiedusuos had a capacity of 400–800 beds, and very large ones could take over 800 people. 89 In 2008, there were 350 reeducation through labor camps. Zhonghua Renmin Gongheguo Sifabu 2008. 90 Guo and Zheng 2005: 389. 91 Jin 2005. 92 Article 15, Measures on Compulsory Rehabilitation Camps. 84 85

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average, undergoing three months of treatment could cost 52 percent of one’s annual income.93 Fees would normally be approved on an 93 This calculation is based on drug rehabilitation fees that were practiced in sixteen provinces. Beijing Municipality Price Office letter on fees practiced by compulsory drug rehabilitation camps (Beijingshi wujiaju guanyu qiangzhi jiedu shoufei biaozhunde han 北京市物价局关于强制戒毒收费标准的函), issued on 3 July 1998 and effective from the same date. Beijingshi Tongjiju 2004: 178. Data on income refer to the medium income level. Fujian Province Price Office, Fujian Province Finance office circular setting compulsory drug rehabilitation fees in our province (Fujiansheng wujiaju, Fujiansheng caizhengting guanyu heding wosheng qiangzhi jiedu shoufei biaozhunde tongzhi 福建省物价局, 福 建省财政厅关于核定我省强制戒毒收费标准的通知), issued on 26 September 2000 and effective from the same date and until 28 September 2002. Fujian Province Price Office, Fujian Province Finance office reply on once more setting compulsory drug rehabilitation fees (Fujiansheng wujiaju, Fujiansheng caizhengting guanyu chongxin heding quansheng qiangzhi jiedu shoufei biaozhunde fuhan 福建省物价局, 福建省财政厅关于重新核定 全省强制戒毒收费标准的复函), issued on 20 December 2002 and effective from 1 January 2003 until 31 December 2004. Fujian Province Price Office, Fujian Province Finance office reply on the problem of drug rehabilitation fees in our province (Fujiansheng wujiaju, Fujiansheng caizhengting guanyu wosheng qiangzhi jiedu shoufei wentide fuhan 福建 省物价局, 福建省财政厅关于我省强制戒毒收费问题的复函), issued on 4 December 2007 and effective from 1 January 2008 until 31 December 2010. Fujiansheng Tongjiju 2000: 106. Gansu Province Price Office, Gansu Province Finance office circular setting compulsory drug rehabilitation fees (Gansusheng wujiaju, sheng caizhengting guanyu heding qiangzhi jiedu shoufei biaozhunde tongzhi 甘肃省物价局, 省财政厅关于核定 强制戒毒收费标准的通知), issued on 2 December 2002 and effective from the same date. Confirmed by Gansu Province Price Office, Gansu Province Finance office circular setting compulsory drug rehabilitation fees (Gansusheng wujiaju, sheng caizhengting guanyu heding qiangzhi jiedu shoufei biaozhunde tongzhi 甘肃省物价局, 省财政厅关于核定 强制戒毒收费标准的通知), issued on 2 December 2002 and effective from 1 January 2003. Gansusheng Tongjiju 2007. Guangxi Zhuang Autonomous Region Price Office letter on provincial compulsory drug rehabilitation fees (Guangxi zhuang zizhiqu wujiaju guanyu quanqu jiedusuo shoufei biaozhunde fuhan 广西壮族自治区物价局关于全 区戒毒收费标准的复函), issued on 1 August 2001 and effective from 1 September 2001. Guangxi Zhuang Zizhiqu Tongjiju, 2000: 117. Guizhou Province Price Office, Finance Office circular on regularizing provincial compulsory drug rehabilitation fees (Guizhousheng wujiaju, Guizhousheng caizhengting guanyu guifan quansheng gong´an qiangzhi jiedusuo jiedu shoufei biaozhunde tongzhi 贵州省物价局, 贵州省财政厅关于规范全省公安 强制戒毒所戒毒收费标准的通知), issued on 26 April 2003 and effective from 19 May 2003. Guizhousheng Tongjiju 2004: 269. Hebei Province Price Office, Finance Office reply setting compulsory drug rehabilitation fees in Shijiazhuang (河北省物价 局, 财政厅关于制定石家庄市公安局强制戒毒所收费标准的复函 Hebeisheng wujiaju, caizhengting guanyu zhiding Shijiazhuangshi gong´anju qiangzhi jiedusuo shoufei biaozhunde fuhan) issued on 13 April 2004 and effective from the same date. Hebeisheng Tongjiju 2005: 237. Henan Province Finance Office, Henan Province Development and Reform Commission reply agreeing to the question on whether public security organs should continue receiving drug rehabilitation fees (Henansheng caizhengting, Henansheng fazhan he gaige weiyuanhui guanyu tongyi geji gong´an jiguan jixu shouqu jiedu zhiliao shoufei youguan wentide han 河南省财政厅, 河南省发展和改革委员会关于同意各级公安机关继续收取戒 毒治疗收费有关问题的函), issued on 19 May 2005 and effective until 31 December 2008. Henansheng Tongjiju 2006: 184. Hainan Province Development and Reform Commission reply about compulsory drug rehabilitation fees and other problems

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experimental basis, but the trend was toward reconfirming or even increasing them. As of 2008, drug rehabilitation was to be provided free of charge, but there are indications that some localities may still

(Hainansheng fazhan yu gaigeting guanyu qiangzhi jiedusuo yiliao jiage deng wentide han 海南省 发展与改革厅关于强制戒毒医疗价格等问题的函), 14 December 2005 and effective from the same date. This document mentions treatment fees only. Hainansheng Tongjiju 2005: 190. Hubei Province Price Office and Finance Office circular on the problem of drug rehabilitation fees (Hubeisheng wujiaju, sheng caizhengting guanyu jiedu shoufei biaozhun wentide tongzhi 湖北省物价局、省财政厅关于戒毒收费标准问题的通知), issued on 19 January 1999 and effective retroactively from 1 January 1999. Hubeisheng tongjiju 1999: 158. Hunan Province Price Office reply on setting experimental fees in compulsory drug rehabilitation camps in the provincial public security system (Hunansheng wujiaju guanyu heding quansheng gong’an xitong qiangzhi jiedufei shixing biaozhunde fuhan 湖南省物价局关于核定全省公安系统强制戒毒费试行标准的复函), issued on 6 July 2002 and effective from 20 July 2002. Hunansheng Tongjiju 2003: 175. Jiangsu Province Price Office, Finance Office reply on setting experimental subsistense and treatment fees for personnel undergoing compulsory drug rehabilitation ( Jiangsusheng wujiaju, caizhengting guanyu jiedu renyuan shenghuo, zhiliao shoufei shixing biaozhunde fuhan 江 苏省物价局, 财政厅关于戒毒人员生活, 治疗收费试行标准的复函), issued on 27 March 2001, effective from 10 April 2001 until 10 April 2002. Jiangsusheng Tongjiju 2001: 146. Jiangxi Development and Reform Commission reply on setting provincial compulsory drug rehabilitation fees ( Jiangxisheng fagaiwei guanyu heding quansheng gong’an xitong qiangzhi jiedu shoufei biaozhunde pifu 江西省发改委关于核定全省公安系统强制 戒毒收费标准的批复), issued on 7 September 2005 and effective from 1 October 2005. Jiangxisheng tongjiju 2003: 168. Shaanxi Province Price Office reply on fees in public security detention centers, compulsory drug rehabilitation camps and shelter for education centers (Shaanxisheng wujiaju guanyu gong’an jiguan zhi´an juliusuo, qiangzhi jiedusuo he shourong jiaoyusuo youguan shoufei wentide fuhan 陕西省物价局关于公安机关 治安拘留所, 强制戒毒所和收容教育所有关收费问题的复函), issued on 9 October 2005 and effective from the same date. Fees include accommodation only. Shaanxisheng Tongjiju 2005: 174. Sichuan Province Price Office, Sichuan Province Finance office circular on compulsory drug rehabilitation fees (Sichuansheng wujiaju, Sichuansheng caizhengting guanyu jiedu zhiliao shoufei biaozhunde tongzhi 四川省物价局, 四川省财 政厅关于戒毒治疗收费标准的通知), issued on 15 March 2000 and effective from 1 April 2000. Sichuansheng tongjiju 2004: 191. Income data refer to middle income, while fees refer only to treatment. Zhejiang Province Price Office, Zhejiang Province Finance Office reply letter setting fees for institutes of administrative detention (Zhejiangsheng wujiaju, Zhejiangsheng caizhengju guanyu heding gong’an jiguan xingzheng jiangguan changsuo shoufei biazhunde fuhan 浙江省物价局, 浙江省财政局关于核定公安机关行政 监管场所收费标准的复函), issued on 12 January 2006 and effective from 1 February 2006. Zhejiangsheng tongjiju 2005: 211. Urumqi Price Office circular on determining fee items and fees for the service of drug rehabilitation (Wulumuqishi wujiaju guanyu minque jiedu fuwufei shoufei xiangmu ji biaozhunde tongzhi 乌鲁木齐物价局关于明确戒毒 服务费收费项目及标准的通知), issued on 23 December 1998 and effective from the same date. Xinjiang Weiwuerzu Zizhiqu Tongjiju 2003: 298. When several options were available, the cheapest available tariff was calculated. When several fee items were available, they were counted only once. Whenever possible, income data refer to the average urban disposable income in the year when the relevant regulations were issued.

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be extracting fees.94 Besides reform, the need to cover the cost of treatment was one factor that justified the practice of forced labor. Inmates seem to have engaged in agriculture, fishing, animal husbandry, and manufacturing.95 Mining and the production of dangerous materials were forbidden in 2004.96 As various jiedusuos were located in technological development zones,97 one suspects that foreign-invested enterprises or Sino-foreign joint ventures might have used inmate labor force. The total contribution of inmate labor to the economic growth seems, however, to have been minimal.98 The small size and lack of financial resources of jiedusuos also meant that not all of them ran production facilities.99 Variables such as lack of space and scarce funding made the jiedusuo incapable of providing satisfactory treatment. Cold turkey withdrawal was said to have been practiced in 30 percent of the detention facilities.100 Elsewhere, factors such as a simple lack of will or an actual shortage of qualified personnel meant that treatment was provided on paper only.101 In most cases, inmates continued to 94 Heilongjiang Province Finance Office, Price Office reply allowing public security ankang hospitals to receive fees for the judicial assessment of mental illness, for the treatment of mentally ill patients who disrupt public security and for compulsory drug rehabilitation (Heilongjiangsheng Caizhengting, wujiaju guanyu tongyi sheng gong’anting ankang yiyuan jixu shouqu sifa jingshenbingxue jiandingfei, weihai shehui zhi’an jingshenbingren zhuyuanfei he qiangzhixing jiedu zhiliaofeide pifu 黑龙江省财政厅, 物价局关于同意省公安厅安康 医院继续收取司法精神病学鉴定费, 危害社会治安精神病人住院费和强治性戒毒 治疗费的批复), issued on 12 June 2008 and effective from the same date. Article 3, Wenzhou People’s Government General Office circular on the work of implementing the People’s Republic of China Law on Prohibiting Drugs (Wenzhoushi Renmin Zhengfu Bangongshi guanyu guanche shishi Zhonghua Renmin Gongheguo jindufa youguan gongzuode tongzhi 温州市人民政府办公室关于贯彻实施《中华人民共和国禁毒法》有关工作的通 知), issued on 2 December 2008 and effective from the same date. 95 See the accounts published in the section of public security of provincial yearbooks, such as, for instance, Guangxi Nianjian Bianjibu 2001; Haikou Nianjian Bianji Weiyuanhui 2004, 2006; Kunming Nianjian Bianjibu 2001. 96 Article 16, Ministry of Justice rules on the administration of production safety in reeducation through labor camps (Sifabu laodong jiaoyang changsuo anquan shengchan guanli guiding 司法部劳动教养场所安全生产管理规定), issued on 6 July 2004 and effective from the same date, reproduced in Zhonghua Renmin Gongheguo Sifabu 2005: 227–35. 97 Fuzhou Jingji Jishu Kaifaqu Tongjiju, 2000: 154. Another instance was given by the Changsha jiedusuo. Author’s unpublished list of jiedusuos. 98 By way of illustration the Kunming jiedusuo—one of the biggest in China—had a product of 2,280,000 yuan in 1999. Compared to the city 1999 GDP figure of RMB 5,840,000,000, the contribution of inmate labor to local economic growth was a mere 0.039 percent. Kunming Nianjian Bianjibu 2001: 140, 157. 99 Guo and Zheng 2005: 389. Author’s unpublished list of jiedusuos. 100 Jin 2005: 31. 101 Ma 2004: 14; Chin 2004: 7.

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use drugs while under detention. Soon, the success stories disseminated during the early to mid-1990s were replaced by more sobering accounts. Localities admitted that compulsory rehabilitation was more or less a failure; the recidivism rate of former inmates was 90 percent shortly after their release.102 This caused them to enter a vicious cycle whereby they would serve several consecutive terms of detention without ever detoxing. The sharing of needles would also cause inmates to contract hepatitis, sexually transmitted diseases, or HIV infections.103 In 2006, during the programming of a national addicts’ database that would replace the old registers,104 another disheartening discovery was made. The 2,851,000 inmates that transited through the system between 1990 and 2007105 may have well constituted no more than 5 to 10 percent of existing addicts that should have been cured during the same period. The remaining 90 percent was still at large. 6.5

Compulsory Rehabilitation and RETL

To make this alarming situation worse, a new development took place on the RETL front. Since the early 1990s, RETL camps had been used to provide treatment to former jiedusuo inmates relapsing back into addiction, thus gaining a new function.106 Quarters where addicts could be separated from the rest of inmates were established in 2004.107 This provisional arrangement soon became permanent, with the small quarters evolving in drug rehabilitation brigades (dadui) and squads

Li Huihua 1998. In one jiedusuo in Hunan, 21.7 percent of the detainees were HIV positive. He et al. 2004. Detainees are among the groups most at risk of contracting syphilis, see Lin et al. 2006. 104 Renmin Gong’anbao 2008. 105 Unfortunately, only aggregate data are available. These are, moreover, incomplete, as they refer only to eighteen of the twenty years during which the system of compulsory drug rehabilitation camps existed. However, between 1991 and 1997 550,000 addicts transited in the jiedusuo, while about 100,000 were sentenced to laojiao. The figure for the period between 1998 and 2003 is 1,493,000 people. Xinhua 2004; Renmin Gong’anbao 2008. 106 Wang 2002; Fu 2005b. 107 Article 10, Standards on modern and civilized reeducation through labor camps (Xiandai wenming laojiaosuo biaozhun 现代文明劳教所标准), issued on 11 October 2004 and effective from the same date, reproduced in Zhonghua Renmin Gongheguo Sifabu 2005: 236–42. 102 103

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(zhongdui).108 Apart from the minority of subjects sentenced to drug rehabilitation through labor, an increasing number of RETL inmates and minor offenders were becoming addicted to drugs. This phenomenon, which is amply discussed in the medical literature, concerned a sizeable part of the RETL population. These addicts could not be transferred to the already overcrowded jiedusuos; also they had been sentenced for minor crimes other than drug abuse, and, therefore, had a RETL term to serve. The final solution was found in merging jiedusuos to RETL camps. This new arrangement made it possible to reorganize the system of small, scattered jiedusuos using the RETL camps’ drug rehabilitation function and infrastructure. At the same time, minor offenders could receive treatment during their reeducation. In the summer of 2008, a further round of change, which has not yet completely ended, thus took place in the geography of jiedusuos and of RETL camps. As the dismantling of jiedusuos began, these structures were replaced by socalled isolation for compulsory rehabilitation centers (qiangzhi geli jiedusuo 强制隔离戒毒所). As of this writing, it is still too early to account for the final outcome of this process. Thus far, the restructuring of the system is taking place in three different and possibly overlapping ways. First, in some cases, existing RETL camps are being additionally designated as rehabilitation institutions.109 Second, the construction of new camps has begun110 and addicts have been transferred to these bigger facilities.111 Third, RETL camps have expanded their facilities in order to receive and

108 In those laojiao that ran factories, these divisions are replaced by the “shopfloor” (chejian) or by the class (banzu). Article 2, Ministry of Justice rules on drug rehabilitation through labor (Sifabu laodong jiaoyang jiedu gongzuo guiding 司法部劳动教养戒毒工 作规定), issued on 2 June 2003 and effective from 1 August 2003 made a distinction between those sentenced to laojiao jiedu, those interned in forced drug rehabilitation brigades in the laojiao, and those inmates who had been sentenced to RETL but had an addiction. The point that this distinction may have been more theoretical than real is supported by the following sources: Haikou Nianjian Bianji Weiyuanhui 2006; Zhonghua Renmin Gongheguo Sifabu 2005: 227–35. 109 Fu 2009. 110 Li 2009; Lai 2008; Fujian Jinduwang 2008. Zhejiang Public Security Bureau, Office for the Administration of Detention Facilities circular on reporting the five year construction plan for isolation for compulsory rehabilitation camps (Zhejiangsheng Gong’anting Jiangguan Zongdui guanyu bianbao gong’an qiangzhi geli jiedusuo wunian jianshe jihuade tongzhi 浙江省公安厅监管总队关于编报公安强治隔离戒毒所五年建设计划 的通知), issued on 19 August 2008 and effective from the same date. 111 Anshunshi Renmin Zhengfu Bangongting 2008.

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treat those sentenced to compulsory rehabilitation. In June 2008, for instance, such an expansion involved thirty-eight RETL camps.112 A first result of this process has been the birth of large compounds functioning as jiedusuo and RETL camps, but also as administrative detention centers (xingzheng juliusuo), and kanshousuo. These multifunctional detention complexes can also host a squad of the People’s Armed Police (wujing dadui).113 The apparent intent of this reform has been a rational ordering of existing detention facilities. Accordingly, throughout the summer of 2008 and later, legal commentators held that RETL had lost its function to provide drug rehabilitation and was now being used only to reeducate minor offenders, given that a new measure of compulsory rehabilitation had been introduced. To understand the extent to which these claims are preposterous, a comparison between RETL and drug rehabilitation is necessary. Conceptually, RETL and rehabilitation are two entirely distinct measures, which cannot be executed at the same time on the same subject.114 The rehabilitation of a RETL detainee who abuses drugs is qualified as something different from administrative detention. While RETL is admittedly an administrative detention measure, detention of addicts is a form of compulsory medical treatment (行政强制治疗).115 Even though this measure is decided and enforced by the police, this difference may be crucial to any future reform of RETL. The pivotal element lies precisely in the formalism of this distinction. As a party to the 1961 Single Convention against Narcotic Drugs, China has accepted the obligation to provide “measures of treatment”116 as an alternative to criminal punishment for drug-related crimes. Behaviors punished by RETL do not constitute crimes under Yang 2008. In some provinces, such as Guangdong, these compounds, alternatively, are comprised of a detention for education center (shourong jiaoyusuo). 114 Ministry of Public Security reply on whether isolation for compulsory drug rehabilitation and RETL can be implemented together (Gong’anbu guanyu dui qiangzhi geli jiedu yu laodong jiaoyang nengfou hebing zhixing wentide pifu 公安部关于对强制隔离戒毒与 劳动教养能否合并执行问题的批复), issued on 1 April 2009 and effective from the same date, hereinafter referred to as Reply on compulsory treatment and RETL. 115 Article 2, Ministry of Public Security Reply on some problems in the implementation of the People’s Republic of China Law on Prohibiting Drugs (Gong’anbu guanyu zhixing Zhonghua Renmin Gongheguo Jindufa youguan wentide pifu 公安部关于执行《中华 人民共和国禁毒法》有关问题的批复), issued on 23 December 2008 and effective from the same date. 116 Article 36 1 (b) Single Convention on Narcotic Drugs, as amended by the 1972 protocol amending the Single Convention on Narcotic Drugs 1961. 112 113

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Chinese law; in principle, any substance abuser who committed a weifa xingwei as a result of his dependency could be offered enrolment in a voluntary, state-run rehabilitation program as an alternative to RETL. Rehabilitation “would not be considered compulsory unless the punishment for refusing or failing treatment were more severe than the penal sanction it replaced.”117 As it has been seen, the punishment for refusing or failing voluntary rehabilitation is compulsory rehabilitation, which formally does not constitute a criminal punishment. It also fulfils the goal of diverting drug users from the formal criminal justice system. In his recent analysis of RETL, Fu Hualing noticed a constant, progressive drop in the number of inmates,118 and hypothesized that a future reform of RETL may push political dissidents and members of spiritual movements into the “harsher end of the criminal process,”119 while allowing for a less severe treatment of minor offenders. Those minor offenders who committed drug-related offenses could be offered voluntary treatment as an alternative to RETL. This alternative may be offered by the police or even by a newly created drug court or drug-control organ. A refusal of treatment may, nonetheless, still cause one to enter the long cycle of compulsory rehab. Much will then depend on the demographic features of minor offenders and on how the jurisdiction over compulsory rehabilitation and the camps will evolve. In theory, minor offenders who have been incapacitated by drug abuse may be committed to a rehabilitation institution and, furthermore, be denied the choice of an alternative measure. Those who are carriers of hepatitis, STDs, or HIV/AIDS may be committed to a medical institution to receive compulsory treatment as an alternative to RETL. In all cases in which drug abuse has triggered a latent psychopathological condition, the alternative to RETL may be commitment to a psychiatric hospital. Formally, any such choice would constitute an alternative to RETL, and also differ from it. While any prediction is difficult to make, the existing trend in the criminal justice system suggest that the possibility to use any alternative measure that, nonetheless, involve a deprivation of personal WHO 2009: 9. This point is, however, controversial, insofar as the current approval procedures of rehabilitation will continue to exist. 118 Fu 2005b. 119 WHO 2009: 58. 117

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freedom exists. Each one of these options would conform to the PRC approach in managing deviance and still result in a period of confinement of a length comparable to a RETL term, which, in most cases, is of less than two years.120 It is difficult to imagine how rehabilitation or psychiatric patients would be allowed to leave the relevant facility freely. Given the merger of jiedusuo and RETL camps, the adoption of rehabilitation as an alternative measure would mean that minor offenders would simply be transferred from one brigade to another, from one building to another, within the four walls of the same multifunctional compound. State-run voluntary drug rehabilitation programs are already provided by medical facilities established in RETL camps and psychiatric hospitals. By now, compulsory rehabilitation already appears as an atypical sort of alternative to RETL. Individuals sentenced to RETL as a result of drug-related offenses first receive compulsory rehabilitation. Then, once the duration of their RETL term has elapsed, they serve the remaining period of rehabilitation in the drug rehabilitation section of the RETL camp.121 A limited amount of procuratorial supervision over RETL hearings already takes place, without reducing the police discretional power. In the future, procuratorial supervision over RETL may be strengthened or approval mechanisms may be introduced that in actual practice do not affect police decision-making or do not cause an excessive reversal of police decisions. This solution would bring China closer to the standards set by the International Covenant on Civil and Political Rights (ICCPR),122 while still being acceptable to public security organs. It would neither substantially alter the existing balance of power nor 120 This is because since 2002 a so-called inquisitorial hearing (lingxun 聆询) can be held whenever public security organs intend to impose a sentence of more than two years. This has led various public security organs to adopt lower terms of RETL, thus avoiding compliance with this procedure, which can involve a limited extent of procuratorial supervision. Guo and Zheng 2995: 544 observing how in Shaanxi and Liaoning provinces only one-third of RETL inmates received a sentence above two years. Chapter IV, Ministry of Public Security rules on the handling of reeducation through labor cases by public security organs (Gong’anbu guanyu gong’an jiguan banli laodong jiaoyang anjian guiding 公安部关于公安机关办理劳动教养案件规定), issued on 12 April 2002 and effective from 1 June 2002. Article 25 excluded addicts and members of atypical religious groups if cannot in the case of members of religious groups. Now a hearing can be held only in the case of addicts. 121 Reply on compulsory treatment and RETL. 122 See Peerenboom 2004: 1011–12 for a discussion of how, in the cases of France and Switzerland, procuratorial review of the decision to arrest and detain has been

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interfere with the requirements that wars on drugs and crime pose on the police. 6.6

Commitment to Health-Recovery Centers

Around 2006, as the revision of the Anti-Drug law was under way, some localities in Yunnan and in Hainan provinces found a possible solution to the “rehab-relapse-rehab” cycle. To break the cycle, and also avoid the spread of various diseases, those who had served their term of detention should have stayed within the rehabilitation camp! The Ministry of Public Security supported this “innovation,”123 and delegates to the National People’s Congress showed their enthusiasm: [It is necessary to] disseminate the measures adopted in Yunnan, Hainan and elsewhere on those addicts who have relapsed into addiction several times, who have no home or employment, whom nobody can help— namely encouraging [them] to undergo forced placement, to break the cycle of detox-relapse-detox.124

Reviving forced job placement under a different guise would accomplish three goals: a reduction in crime rates, infectious diseases, and addictions. Naturally, the media publicized “retention for in-center employment” (liu zhongxin jiuye) as a necessary and beneficial measure:125 Several of those [relatives] who came to Sanya rehabilitation farm saw the work and life environment there, and then all of them persuaded their children to remain in the camp and work there.126

The implication of this statement is that this, after all, was not really a safety measure. In fact, there was no judge who assessed social dangerousness, ruling that former inmates be committed to a healthrecovery center (kangfu zhongxin). There was no coercion either. Purportedly, inmates decided to live and work in recovery centers, which

held to be consistent with the requirement that a person arrested or detained be promptly brought before a judge. 123 Gong’anbu 2006. In 2007, the Ministry of Justice drafted a document entitled Opinion on the trial establishment of health recovery centers in RETL camps (Sifabu guanyu yituo laojiao changsuo jianli jiedu kangfu zhongxin shidiande yijian 司法部关于依托劳 教场所建立戒毒康复中心试点的意见). 124 Zhang 2008. Words in square brackets are mine. 125 Xinhuawang 2008. 126 Jia and Zhang 2008.

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were established as part of RETL camps. Some of them even feared release: I do not have self-esteem and I know that if I were released I would use drugs again, putting an end to my life. . . . I have spent a year in this camp, seeing how the farm changed. Here, the conditions are very good. This is my warm home. Here I am self-assured and I feel as if I was a normal person.127

While this specific story may well have been concocted, it makes clear how addicts are regarded as less than human. Its implicit moral message is that once the step onto the path to addiction has been made, all chances to be integrated in the social order are gone. An addict can enjoy some semblance of normality only if he is placed with those who are like him. The Anti-Drug law legalized this measure.128 Provinces soon began enlarging RETL facilities to accommodate those who chose to spend a three-year recovery period in them.129 In 2008, thirty-eight recovery centers hosting 5,000 people were established in RETL camps130 as a part of China’s national anti-drug infrastructure131 after experiments carried out in Xinjiang were deemed successful.132 Some evidence points out that some recovery centers are operated by psychiatric hospitals, too.133 Forced job placement, an old measure showing strong resemblances to safety measures, was thus revamped under a different guise. Rules about forced job placement were first laid out in 1954.134 Two variants of this measure existed. So-called ordinary forced job

Fujian Jindu Weiyuanhui Bangongshi 2006. Italics mine. Article 49, Anti-Drug Law. 129 Article 2 (3), Zhejiang People’s Government General Office circular on the work of implementing the People’s Republic of China Law on Prohibiting Drugs, (Zhejiangzheng Renmin Zhengfu Bangongting guanyu guanche shishi Zhonghua Renmin Gongheguo Jindufa youguan gongzuode tongzhi 浙江省人民政府办公厅关于贯彻实施中华人民共和国禁毒 法有关工作的通知) issued on 25 June 2008 and effective from the same date. 130 Zhonghua Renmin Gongheguo Sifabu 2008b. 131 State Commission for Development and Reform, Ministry of Public Security, Ministry of Justice circular on re-adjusting the construction plan of the national antidrug infrastructure, (Quangguo Fazhan he Gaige Weiyuanhui, Gong’anbu, Sifabu guanyu tiaozheng quangguo jindu jichu shishi jianshe guihuade tongzhi 国家发展和改革委员会公安部司法部 关于调整全国禁毒基础设施建设规划的通知), issued on 30 December 2006 and effective from the same date. 132 Fazhi Ribao 2008. 133 Jiningshi Jianshe Gongcheng Zhaobiao Toubiao Guanli Bangongshi 2009. 134 Article 2, Government Administrative Council temporary measures on the handling of criminals who have served their term of reform through labour, and 127 128

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placement ( yiban liuchang jiuye) took place on a voluntary basis,135 while compulsory job placement (qiangzhi liuchang jiuye) was used on escapees, recidivists, those without means of livelihood, and other categories of inmates.136 This measure was of dubious legality, as it was based exclusively on administrative rules issued in the 1980s, most of which were not retained by the 1997 Criminal Law. The process begun in 2008 parallels the one that took place in the Mao era, but with the significant difference that, this time, the commitment to camps has become a normal component of criminal legislation. Apart from the most immediate cause, the key element that has led to this result has been the depoliticization of this measure. James Seymour has observed how the adoption of forced job placement rested upon the fear that offenders may spread their antisocial tendencies to other members of society.137 As long as antisocial tendencies were understood mostly in political terms, forced job placement underwent several shifts. Its actual scope of application underwent a gradual expansion, until the Ministry of Public Security ordered that, in principle, it had to be used on all offenders.138 This trend was ended in March 1979, when the Ministry instead ruled that “from now on, those who have served their term of criminal detention will not be retained in camps.”139

their job arrangement (Zhengwuyuan laodong gaizao fanzui xingman shifang ji anzhi jiuye zanxing chuli banfa 政务院劳动改造犯罪刑满释放级安置就业暂行处理办法), issued on 26 August 1954 and effective from the same date. 135 “Reform through labor organs can retain and employ (shouliu anzhi jiuye) criminals who have already served their term of detention, if one of the following circumstances exists: (1) [they] voluntarily remain with their squad, and are needed for reform through labor production.” Article 2, Temporary Measures on Handling Criminals. Translation mine. 136 For a listing, see Ministry of Public Security, Ministry of Work and Personnnel, Ministry of Agriculture, Animal Husbandry and Fishery, Ministry of Education, Ministry of Commerce joint circular on the settling and job arrangment of criminals who have served their sentence (Gong’anbu, Laodong Renshibu, Nongmuyuyebu, Jiaoyubu, Shangyebu guanyu fanren xingman shifanghou luohu he anzhide lianhe tongzhi 公安部, 劳动人 事部, 农牧渔业部, 教育部, 商业部关于犯人刑满释放后落户和安置的联合通知), issued on 5 May 1983 and effective from the same date. 137 Seymour and Anderson 1999: 190. 138 Ministry of Public Security circular on temporarily suspending the release of criminal elements from reform through labor units during the Cultural Revolution (Gong’anbu guanyu zai wenhua dageming qijian laogai danwei zanting shifang fanzui fenzide tongzhi 公安部关于在文化大革命期间劳改单位暂停释放犯罪分子的通知), issued on 14 October 1966 and effective from the same date. Summarized in Beijingshi Difangzhi Bianji Weiyuanhui 2006: 101. 139 Beijingshi Difangzhi Bianji Weiyuanhui 2006: 101

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After 1978, forced job placement was to be used only in exceptional cases. Eventually, the number of those retained in camps decreased to fewer than 100,000.140 In the mid-1960s, forced job placement drew Peng Zhen’s sharp criticism.141 Nowadays, at a time when many voices argue against the creation of preventive safety measures,142 the first and oldest preventive safety measure has been revived. The rationale behind this choice does not differ from considerations that led to introducing preventive safety measures in continental legal systems. Social dangerousness is explicitly mentioned by documents of the Ministry of Public Security, stating that forced job placement was to be used on those whose release posed a danger.143 6.7

Conclusion

By focusing on compulsory drug rehabilitation, this chapter has surveyed the birth and development of a zone of exception. The roots of compulsory rehabilitation can be eventually traced back to the ROC, whose legal code was modeled on continental legislation.144 The story behind compulsory rehabilitation cannot be reduced to China’s lack of will to reform. A complex interplay of transplanted norms and history, as well as the ideological and policy imperatives of the legal systems that received transplanted norms lie beneath the surface. Ironically, preventive safety measures transferred into the criminal legislation of the ROC from continental systems made their way first to Communist base areas and then to the PRC. At each historical juncture, these measures were adapted to various pressing imperatives concerning the

Seymour and Anderson 1999: 193. This figure refers to 1988. Report of the Party Group at the Ministry of Public Security about the Sixth National Conference on Reform through Labor Work (Gong’anbu Dangzu guanyu diliuci Quangguo Laogai Gongzuo Huiyide Qingkuang Baogao 公安部党组关于第六次全国劳改工 作会议的情况报告), 5 August 1964. 142 For an illustration of this debate, see Biddulph 2007: 345–48. 143 The others were those who had not completed their reform, those without a family they could return to, those without employment, those who lived in distant border or coastal areas, those who could not find any employment after their release due to overpopulation and other circumstances, mostly because—it seems—of famine or food shortages. Report of the Party Group at the Ministry of Public Security about the Sixth National Conference on Reform Through Labor Work (Gong’anbu Dangzu guanyu diliuci Quangguo Laogai Gongzuo Huiyide Qingkuang Baogao 公安部党组关于第六次 全国劳改工作会议的情况报告), 5 August 1964. 144 De Angeli 2009. 140 141

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survival of the nation, the revolution, or popular demands for public order. Each one of these imperatives had an urgency of its own. Each one, together with various ideological shifts, punctuates a different phase in the transition towards Chinese modernity. This transition was also accompanied by the need to devise a suitable arrangement to ban temporarily those whose presence was disturbing, and potentially dangerous, too. The banning of addicts, a divide on which the very notions of normality, public health, and public order are eventually premised, slowly became an integral and normal component of the criminal justice system.

CHAPTER SEVEN

COERCIVE INTERROGATION A questioning technique used by the police in** is known as ‘roasting the sheep.’ Towels are wrapped around the suspect’s hands and feet, and his limbs are tied up with a rope. Then he is hanged [ from a pole which is placed] horizontally. He is not beaten. He is not verbally abused. [But] being suspended is painful, to the point that you will confess. No wounds are left, no signs are left. It doesn’t even count as torture.*

For most Chinese citizens, torture is a remote threat. Their physical and psychological integrity is susceptible to harm by minor offenders, rather than by the police. While ordinary citizens quietly spend their lives outside of zones of exception, they, nonetheless, know what waits for those who might be drawn into them. This chapter documents how such knowledge enters the realm of the collective consciousness. The spaces of interrogation rooms, informal jails, and prison cells have been appropriated by the media and made visible to the public. They have become part of normality. Pictures of tortured bodies are featured beside other visual artifacts—the picture of a pop star, of a model, or an Olympic champion. Torture can be talked about, it can be written about, and it can be read about. Stories about torture offend the public’s moral sensibility and lead to resistance when the victim of torture is represented as belonging to an in-group. However, most of the time, the destiny of criminal suspects fails to elicit much attention or sympathy. The pattern of media reporting described in this chapter can lead the public to overlook or tolerate torture, provided that its victim belongs to an out-group.

* Wang 2006.

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The Transformation to Bare Life

Torture consists of the infliction of pain on somebody who has been made entirely defenseless. Suffering may be caused by acts of physical or psychological violence or by medical or scientific experimentations performed by state or nonstate actors1 without the victim’s consent. Pain can be inflicted for a variety of reason. Obtaining a confession or any kind of information from the victim of torture or from a third person seems to be the most common reasons. Torture, however, can take place also for other reasons, such as intimidation, compelling individuals to perform actions they would otherwise not engage in; or for punishment of the victim or a third person for actual or alleged deeds. Physical and psychological pain can be inflicted also because the victim is in some way different from the perpetrator. Differences may include ethnicity, religion, nationality, political beliefs, or any other attribute, quality, or idea of an individual. Regardless of the most immediate reasons for its practice, torture involves a complex psychology. Two key components in the psychology of torture are obedience to authority on the part of the torturer2 and his moral disengagement from the victim.3 In other words, the victim of torture is dehumanized or blamed4 and thus effectively made inferior to the torturer who—as aberrant as his task may be—nonetheless, may feel that he is acting for a greater good.5 A third important

1 I adopt a definition of torture broader than the one contained in the PRC Criminal Law. My choice to rely on a broad definition of torture rests upon the consideration that the specificities of the PRC political and legal system do not justify reliance on the so-called Chinese definition of torture, which excludes the criminal responsibility of nonstate actors. I doubt that any Chinese citizen who experienced physical or psychological violence first hand would still agree that being beaten by a chengguan or a bao’an fits his different cultural background, Asian values, or Confucianism. Article 1, International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984 and effective from 26 June 1987, hereinafter referred to as CAT. 7, International Covenant on Civil and Political Rights, adopted on 16 December 1966 and effective from 23 March 1976, hereinafter referred to as CCPR. 2 Milgram 1967. 3 Bandura 1990. 4 Rejali 2007 at 414 and ff. discussing dehumanization also in connection with the different level of public attention received by different victims of torture. Kelman 2005. 5 Conroy 2000, particularly chapter 4, for interviews illustrating the point of view of torturers.

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component is the extreme asymmetry of power between torturer and victim. Torture should, in theory, be absent from all those legal systems in which suspected offenders enjoy the same rights as their interrogators. The right to equality is inherent to every person. It follows that, while this right can be violated, no one can be truly deprived of it, because the right to equality is inseparably attached to each and every human being. International conventions and criminal procedure norms exist to ensure that everyone enjoys, in practice, the rights to which he has an abstract entitlement. Therefore, the binding force of law should be able to protect the body and the mind of any criminal suspect from abuses. However, when the force of law is suspended, a crucial transformation occurs. At the abstract level, citizens continue to enjoy their rights. In actual reality rights remain abstract notions without any actual force. When legal rights cannot be invoked to protect the body, life is reduced to bare life (zoé). A suspect is reduced to nothing more than a pulsating complex of tissues, fluids, and bones. He is made inferior to any other man and is, hence, treated as if he were entitled to no rights. This assumption can open up the door to each and every possible abuse. The force of law may exert its magnetic pull even on the rights of animals,6 but it is simply absent from zones of exceptions. In these zones, only the moral and ethical sense of public security officials, party discipline officials, or para-police officers can prevent abuses. While not every criminal suspect becomes a victim of torture, the existence of legal exceptions removes external constraints to violence, leaving the sovereign decision about his life or death to those who exert power over him. The transformation to bare life is productive of visible consequences, as it takes place in those spaces carved out from normality, inhabited by the deviants and the unwanted.

6 In June 2009, a proposed draft of the PRC Law on the Protection of Animals was completed by legal scholars at the Chinese Academy of Social Sciences, the China University of Politics and Law, Wuhan University, and the North-West University of Politics and Law. Sina 2009. In 2008, an “expert draft” of a PRC Law on the Protection of Human Rights was authored by Mo Jihong. However, chances that the draft may be included in the legislative plan are very slim. See Mo 2008; Author’s notes, 19 June 2009.

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The PRC Media and Torture

In the PRC, the media do not omit the mention of torture. The television, the press, and the internet normally report cases of torture. While this openness results from the media’s evolution, it is not necessarily a signal of sweeping liberalization. Censorship apart, in the PRC control over media contents is still wielded through what Herman and Chomsky called the three “filters” to information.7 Conglomeration has resulted in the birth of large media groups owned or controlled by party and state organs.8 Conglomerates owning or managing several media outlets can produce more media content than their smaller competitors, easily outperform them, and drive them outside of the market. The dissemination of truly independent and impartial views is further limited by the sources of information that conglomerates use. While reliance on state and government news agencies may reduce costs, it has also the effect of further propagating official views. The free market of the media still offers contents indirectly produced by the party-state even though most of the times, this content sinks amid news about fashion, sport, movies, music, financial markets, politics, and real estate. The abolition of state subsidies has made the media dependent on advertisement as their main source of revenue. The media have been induced to pursue profit in spite of news quality,9 and to sell audiences to their advertisers: an important corollary of news is, then, attracting consumers toward certain commodities. However, the profit orientation, state control, and censorship have not discouraged the media from reporting information about torture. The occurrence of abuses has entered the public domain, and there seems to be no particular need to cover up information about them. Stories about torture are reported by the television and the press and are available on the internet. While the publicity of this information does, indeed, testify to a greater openness and transparency, the use of certain stylistic devices and patterns of reporting can shape perceptions and views in ways that are difficult to change or reengineer. Televised reports about torture are featured by news broadcasts and by the existing plethora of shows about the legal system and investigative journalism, such as Law Today ( Jinri shuofa 今日说法), Focus (Jiaodian 7 8 9

Herman and Chomsky 1988, particularly chapter 1. Zhao 2000. Chan 2003; He and Chen 1998.

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fangtan 焦点访谈), Economics and Law (Jingji yufa 经济与法), and News Analysis (Xinwen diaocha 新闻调查). Their coverage of torture is limited to the most prominent cases. Typical and recent examples are the cases of Sun Zhigang, She Xianglin, Li Siyi, and the “hide and seek” (duo maomao 躲猫猫) cases. Press reports on torture are mostly featured by media outlets owned or controlled by law enforcement organs. Investigating and prosecuting cases of torture falls within the mandate of procuracies; therefore, it is natural to find discussions about torture in newspapers controlled by the procuracy. Internet reporting displays a different pattern. Stories of torture are offered by the biggest internet portals, which are privately funded, as well as by state-controlled websites. 7.2.1 Torture in the Press Compared to news broadcasts and televised shows, newspapers feature news reports about torture rather frequently. The 700 biggest and most popular among the 1,938 existing newspapers10 published 1,195 news reports on torture from January 2000 until December 2008.11 In other words, a piece of news about torture is published every other day (2.18 days). The bulk of reports is provided by just a few press sources, 29.71 percent of the 700 newspapers analyzed—which consisted of 208 newspapers. Information about torture features prominently only in three newspapers owned or controlled by law enforcement organs. The Legal Daily (Fazhi ribao 法制日报), controlled by the Ministry of Justice, published stories on torture once every two weeks. The same frequency of news reports was observed in the case of the Procuratorial Daily ( Jiancha ribao 检察日报), while the People’s Police Daily (Renmin Gong’anbao 人民 公安报) published one story about torture a month. Together these three media sources constitute 0.15 percent of all Chinese newspapers, but they offer 34.03 percent of the available information about torture, which is, furthermore, not easily accessible. Together, the Legal Daily, Procuratorial Daily and People’s Policy Daily have a circulation of barely 1,200,000 copies a day.12 In actual terms, only 0.002 percent

Zhonghua Renmin Gongheguo Xinwen Chuban Zongshu 2008. Observations had to be restricted to the last eight years due to limitations of the databanks used to perform the analysis. 12 400,000 copies a day of the Legal Daily are published, while the Procuratorial and People’s Public Security Daily publish 500,000 and 300,000 copies a day, respectively. 10 11

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of the more than 500 million urban residents enjoy a chance to access this information.13 A further constraint on accessibility is posed by the limited diffusion of these papers, which are available by subscription only. Also, their subscribers are mostly law enforcement organs. More liberal newspapers published a story about torture once every six months. The Southern Weekend (Nanfang Zhoumo 南方周末) and the Beijing Evening News (Xinjingbao 新京报) published twenty stories (0.16 percent of available stories) on torture in eight years. In relative terms, readers of the Southern Weekend and Beijing Evening News were exposed to news about torture once every four months. These more outspoken papers—and also the Southern Capital Daily (Nanfang Dushibao 南方都 是报) and China Youth Daily (Zhongguo Qingnianbao 中国青年报)—have each a circulation of slightly more than one million copies.14 In general terms, their readership is extremely limited. The remaining 65.97 percent of press reports is scattered over 193 central and local newspapers (93.26 percent of 208 newspapers) and published much less frequently. The majority of information on torture (43.09 percent) appears with annual or septennial frequency. Some of the outlets featuring it, such as the People’s Daily, are seldom read in spite of their allegedly wide circulation.15 7.2.2

Torture on the Internet

The only media that has the potential to reach a broad audience is the internet, which now “stand[s] on a par with mainstream media.”16 China boasts 298 million internet users, 61.8 percent of whom look for major news on the internet before consulting other media outlets.17 The internet is generally believed to be a much more open and outspoken source of information than television and the press. Information originating from this medium can be immediately available to roughly 184 million people, a figure that far surpasses the readership of even the most popular newspapers. While the airing of television shows follows a rigid schedule, web pages or videos remain visible for a compara13 The exact 2007 figure for China’s urban population is of 562,120,000 people. Zhonghua Renmin Gongheguo Guojia Tongjju 2008: 99. 14 The circulation of the Southern Weekend is over 1,300,000 copies. Renminwang 2006. 15 Having a circulation of 2,325,500 copies a day. Zhongguo Gongchandang Xinwenwang 2008. 16 China Internet Information Centre, 2009: 35. 17 Ibid., 3, 50.

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Table 3. Frequency of press reports on torture ( January 2000–December 2008) Frequency

Articles

Newspapers

Controlled by

Number of articles

% 1,195 articles

% 208 newspapers

15 days 30 days 2 months

168 84 42

2 1 2

MOJ, SPP MPS Youth league

313 89 76

26.50 7.53 6.43

0.96 0.48 0.96

3 months

28

5

Xinhua CC-CCP

137

11.60

2.40

57

4.82

1.92

220 289 1181

18.62 24.47 99.97

13.46 79.80 99.98

SPC Chinese legal association

6 months

12 months 7 years

14

7 1

4

28 166

Political legal commission, provinces Liberal newspapers Party committee Office of justice .... ....

tively longer period of time. The slow penetration rate of the internet in rural areas means that most internet users are urban residents.18 In spite of this limitation, the availability of information about torture to nearly two hundred million people is a significant fact in itself. Search engines and major news portals are the most consulted virtual channels of information. Articles on torture are often reposted on each one of these outlets or on several of them at the same time. The content available to the readership of different websites is in this respect similar, when not utterly repetitive. Search engines are the privileged tool to reach web contents. Most internet users adopt unsophisticated search techniques, preferring the use of general and decontextualized

18 Only 84.6 million people among the 727.5 million rural residents access the internet. China Internet Network Information Centre 2009: 16. Zhonghua Renmin Gongheguo Guojia Tongjiju 2008.

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words as search keys.19 Adoption of simple search strategies normally yields several hundred pages of results. Confronted with nearly a million pages of search results, users adopt passive behaviors, choosing to browse through a mean of 2.2 pages. The staggering majority of the public (97.5 percent) normally picks one or two of the ten most visible search results.20 While some users may view a maximum of twenty-two sources of information,21 the public exploits the internet’s potential for information to a very limited extent. Rather than delving deeply inside of the web, users choose to read whatever source of information is ranked at the top of search results or occupies the most prominent place on a news portal. These patterns of online behavior can make internet users easy targets of the biggest and most popular news portals.22 Tengxun, better known as QQ , popular portals, internet forums and in some cases even blogs recycle contents originating from Xinhua or other internet media controlled by the party-state. The search for alternative sources of information still exposes surfers to contents produced by party-controlled media. These captivatingly designed websites clearly do not provide truly free information. In spite of existing controls, major search engines23 and news portals24

Jansen, Spink, and Saracevic 2000; Jansen and Spink 2003; iProspect 2006. Jansen and Spink 2003: 67. This study has adopted different search engine logs; therefore, its results show a slight difference. On the whole, 94 percent of internet users consult only the first five pages of search results. 21 Ibid. 22 This is because search engines’ ranking algorithms place at the top of search results those pages hosted by websites that have the higher number of incoming links and those websites that are updated more frequently. 23 China Internet Information Centre, 2009: 36. To evaluate the accessibility of news about torture, I have surveyed the four major search engines: Baidu (百度) ; Google China ; Yahoo China (中国雅虎) ; and Youdao (有道) . Other websites and portals that provide search functions normally use the services of one or more of these four search engines. 24 The following 15 major news portals were surveyed: Sina (Xinlang 新浪 ; NetEase (Wangyi 网易) ; Souhu (搜狐) ; Tengxun (腾讯) ; TOM ; Hexun (和讯) ; Qianlong (千龙) ; Soso (搜搜) ; Beelink (百灵) ; Dayhoo (大洋网) ; Enorth (北方网) ; Rednet (红网) ; China News (中国新闻网) ; 21CN ; Eastday (东方新闻) ; Xinhua (新华) . 19 20

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still offer a wealth of information about torture,25 which is significantly more accessible than information offered by the television, the press, or even the Western internet. It should not be forgotten that while torture is, indeed, pervasive in China, in Western countries torture occurs by proxy,26 by handing over asylum seekers to countries where they will be tortured,27 or during criminal investigation.28 The Chinese internet portrays torture as something taking place in China more than elsewhere. Information about the Guantanamo abuses is available to only 4 percent of internet users, while news about torture in the European Union is within the reach of an even smaller percentage of surfers. Relevant information is literally buried under a number of reports about Chinese victims. Patterns of reporting represent torture as something extremely common, which may happen to anybody regardless of status, wealth, or political power. An internet user with enough time to consult the 250 most accessible news reports would discover that more than a half of them (53.12 percent) recount the killing, maiming, or wounding of innocent persons. Only a minority (36.56 percent) of news reports are devoted to the topic of reducing torture. Then, there are occasional legal discussions of the subject matter, reports mentioning its diminution, others pointing out how torture is on the rise, and historical information. News about torture can have a deep emotional impact on readers, particularly when graphic descriptions are accompanied by visual stimuli. In several instances, one or more pictures portraying damaged limbs or corpses bearing the marks of torture are placed at the top of the internet page. 25 To reduce bias, this study analyzed 250 sources of information available on the Chinese internet, which is twenty-five times the amount of information consulted by average internet users. Pictures and reports about torture were collected by connecting to the internet through a Chinese ISP. This measure was taken to perform searches within a censored environment. During preliminary tests, it was found that the results yielded by one search engine (Google) differed depending on whether the connection originated in China or abroad. Variations were found to affect 56 percent of the information yielded by this search engine. To a limited extent, this information has been compared to that yielded by 250 pieces of information available in five Western countries: the United States, the United Kingdom, Sweden, Germany, and Italy. In these countries information about torture was within the reach of only 6 percent of internet users. The only exceptions were the United States, where it was within the reach of any internet user. 26 Hersch 2004; Danner 2004; Human Rights Watch 2004, 2006; Amnesty International 2007: 122–24, 248. 27 “Agiza v. Sweden,” Communication No. 233/2003, U.N. Doc. CAT/C/34/ D/233/2003. BBC 2005; Human Rights Watch 2007. Amnesty International 2007: 150–52. 28 Human Rights Watch 1995.

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Plate 1. Liang Jiping (梁继平). Deputy director, electricity supply office, Ganyu district, Jiangsu province. Suspected of corruption, Liang died during questioning by prosecutors. (Courtesy of MOP.com).

Plate 2. Liang Yuncai (梁云才). Chairman, Hebei Trust and Investment Corporation. Liang Yuncai, a corruption suspect, died while under shuanggui. (Public domain image).

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Plate 3. Liu Ping (刘萍). Director, Section for urban aesthetics and hygiene, Urban Management Office, Funing County, Yangcheng, Jiangsu Province. Prosecutors detained Liu for five months in violation of procedural norms, as he was suspected of absconding with the proceeds from his father’s-in-law acts of corruption. Scars on the feet and lower legs. (Released into the public domain by the author).

Plate 4. Zhou Zengzhi (周增志). 17-year-old Kaifeng resident, suspected of having stolen thirteen bicycles. Placed under criminal detention, Zhou died on his eighth day in the Kaifeng detention centre (kanshousuo). Cigarette burns on the back of the thighs. (Author’s screenshot of Xinhua webpage).

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Plate 5. Xu Gengrong (徐梗荣). 19-year-old resident of Dangfeng county, Shaanxi province. Xu was summoned on suspicion of murder and died on the eighth day of questioning. Burn scars on the right wrist and hand. (Author’s screenshot of Tengxun webpage).

7.3 Lifting Pain out of the Body As emotions cause these images to remain in the memory over a long term,29 readers become aware of the physical damage caused by torture. If they still remember the picture of the student confronting a tank on Tian’anmen Square, how soon will these same readers forget the image of the cigarette burns on the boy’s thighs? Only the image of the wound can lift pain outside of the body and make it visible.30 The use of this communication strategy by the media is intentional and necessary because of all possible perceptive experiences, pain is the most inexpressible. The reality of pain—that knotted jumble of aversive emotions and physical sensations—is never effectively conveyed. Pain can be truly known and understood only by he who experiences it through his own body and mind.31 Vogt and Magnussen 2007; Buchanan and Lovallo 2001. Scarry 1985. 31 Jean Améry, who was arrested and tortured by the Gestapo for joining the Belgian resistance, described this fact as follows: “It would be totally senseless to try and 29 30

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Before the advent of the internet, pain became visible through other venues. Under the Greek Military Junta, the testimony of torture was borne by victims released before their wounds had completely healed.32 In the early 1980s, in Guatemala, the mutilated corpses of dissidents were dumped intentionally where the population would easily see them.33 During the Cultural Revolution, the macabre message was once more carried by the victim’s body. The internet has amplified this message, as internet users repost gruesome pictures on a plethora of message boards, blogs, and discussion forums. Obviously, pictures are not published to deter crime but to voice anguished cries for justice. The way in which pictures are used to advocate for judicial integrity does not show significant variations. It is exemplified by the cases of Liang Jiping and Li Zhaoyang. Liang Jiping was a public official in Jiangsu province.34 One day, he was taken away by prosecutors and “interrogated”. His torment lasted for seventy-two hours. As soon as the questioning session began, his feet were bound. Then, Liang was made to keep his arms raised, he was forced to hold basins full of water or filled with sand, and he was compelled to do sit-ups. The goal of these clean torture techniques was to cause Liang pain without actually touching his body. Scarring techniques were used on him, too, which caused his veins and arteries to break and blood to spread subcutaneously. An electric prod had left deep, red-dot scars on his head and chest. After he died, pictures of his body were taken to document what investigators had done to him. Soon, eleven images of his legs, chest, head, and full body were reposted on the NetEase, Tengxun, Sina, and Sohu portals. They

describe here the pain that was inflicted on me. . . . One comparison would only stand for the other, and in the end we would be hoaxed by turn on the hopeless merry-goround of figurative speech. The pain was what it was. Beyond that there is nothing to say. Qualities of feeling are as incomparable as they are indescribable. They mark the limit of the capacity of language to communicate. If someone wanted to impart his physical pain, he would be forced to inflict it and thereby become a torturer himself.” Schulz 2007: 82–83. Darius Rejali, one the world’s leading scholars on torture shares the same opinion of torture victims: “Expressing pain is about the conventions that acknowledge the recognition of others, not about our certainty or doubt about whether others have pain. The failure to grasp pain is not a failing of the intellect, but the failing of spirit, the inclination to give up when the conventions one counts on break down.” Rejali 2007: 443. In this, Rejali amply agrees with Scarry. 32 Tindale 1996: 132–33; Shue 1978. 33 Blakeley 2007: 318. 34 Liang was the deputy director of the power supply office in Lianyungang’s Ganyu county.

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could also be found on Baidu, several government websites, web logs, and internet forums. A court official named Li Zhaoyang encountered similar circumstances, and was met with the same fate. When he died, his body was laid down on a blue sheet of plastic and photographed. The skin on Li’s buttocks and shoulder-blades was brownish. It looked thickened and hardened, as if it had been touched with a very hot implement. On the right side of his chest was a round burn, with another one across his thighs. Bruises, scars, and red marks were all around his neck. Something—perhaps an electric prod—had left two deep, round marks next to his spine. No sooner were these pictures published than they were reposted on message boards and blogs hosted by the Sina and Hexun portals.35 This dynamic is in sharp contrast with the dynamics thus far unearthed by studies of torture. Normally, images of torture are meant for a limited distribution.36 They circulate either in times of war or are used as trophies of colonial domination. The Guantanamo and Abu Ghraib pictures were taken to be exchanged among soldiers and were never meant to be distributed to the public. Pictures of executions in the late Qing dynasty had the purpose of documenting the alleged cruelty of the Chinese as a people. These macabre genres make torture look trivial and dehumanize its victims. The bodies of Liang Jiping, Li Zhaoyang, and others were instead photographed to document what happened to them and denounce injustice. The fundamental difference between these pictures and those of Qing executions, of Abu Ghraib, and Guantanamo lies precisely in this point. Those who portrayed Li, Liang and the others were not abusive soldiers but individuals in search of justice. The release of their pictures was allowed. The rationale for such unexpected transparency lies in concerns about the fairness of the judicial system. As one party commentator explains: The reason why the party and the state have repeatedly forbidden torture is because extorting evidence through force and confessing to false charges under torture not only does not stop crime, but also seriously harms the reputation of the party and the state, seriously harms a society

35 Tengxun 2007. Li was an official at the Leping county court in Guangxi province. 36 Tétreault 2006: 34.

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based on law, seriously harms the construction of democracy and the legal system.37

Available statistics show the extent to which procuracies have filed investigations on cases of torture.38 Table 4. Investigations of cases of torture39 Year

Investigations filed

1988

167 (1048, 170)40 472 407 378 409 412 110 (598)41 930 55542 (1062)43

1990 1991 1993 1994 1995 2005 2006 2008

Jian 2009. Detailed statistics on the criminal punishment of torture are not available. Only aggregated data are made public. Torture cases are counted together with other crimes against the rights of the person and the democratic rights of citizens, punished under chapter 4 of the Criminal Law. Even if disaggregated statistics were available, precise information on the extent to which torture is criminally punished would still be difficult to obtain. Cases of torture leading to death, in fact, are punished as the crime of intentional murder, and those resulting in the victim’s “injuries” or “physical disablement” are punished as the crime of intentional wounding. See article 247 CL. Public security bureaus in provinces regularly report cases of torture to the Ministry of Public Security, but these data are not made public. 39 Cao 2009; Liu 1989, 1991, 1992, 1993; Jia 2006, 2007; Zhang 1994, 1995, 1996; Zhongguo Jiancha Nianjian Bianjibu 1989. 40 The figures in brackets refer respectively to the cases received by procuracies and those actually filed for investigation in 1988. A slight discrepancy can be noticed between the figure mentioned in the 1989 work report and those published in the statistical tables of the 1989 Procuratorial Yearbook. Incidentally, this issue of the yearbook is the only one providing figures for the crime of torture. 41 This figure refers to cease and desist orders ( juzheng yijian), issued to stop acts of torture and extortion of testimony through force, and does not include the number of cases investigated. 42 Aggregated figure, including also cases of false imprisonment, retaliation and framing, disrupting elections. 43 Aggregated figure, including also cases of illegal collection of evidence, extortion of testimony by force, maltreatment of prisoners. Zhuang, Song, and Wang 2009. 37 38

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The diffusion of pictures is part of this discourse. Besides, it can result in important side effects, inducing spectators to identify with the victims, their trauma, and suffering.44 7.4

Posthumous Rehabilitation

There are three differences between the visual documentation of abuses taking place outside of China, those that happened at earlier times in Chinese history, and those that still occur in detention centers. The first two genres normally portray orientalized subjects or dehumanize the victim of torture. Dehumanization takes place through three sequential steps. The victim of torture is made faceless. Pictures taken toward the end of the Qing dynasty, during the Cultural Revolution, and during the war on terror shift attention away from the victim of torture as a human being. Spectators are unable to see the victim’s face either because he is hooded or because he has been beheaded.45 At times, pictures play across the divide between porn, fetishism, and torture, which, in the post-9/11 world, has become almost normal.46 Therefore, we can see the buttocks and genitals of detainees.47 Our attention is caught not by the human being and his suffering, but by lesser details, such as a woman holding a lash, or a glove stuffed into the counter-revolutionary’s mouth.48 The victim of torture is made nameless. We will never know the names of offenders who were executed in late imperial China or of those who were abused during the Cultural Revolution. Victims’ names do not matter to the press. To the public, the victim of torture may be represented as an Arab dubbed “the Claw.” His first name may have been Ali or maybe Satar—no one knows for sure.49 The victim of torture is made worthless. In some instances, detainees were tortured for the soldiers’ amusement. As one sergeant stationed at Fallujah, Iraq, recounted:

Hesford 2004. Bourgon 2003–2004. 46 See the September 2006 issue of Vogue Italia for Steven Maisel’s controversial picture series entitled “State of Emergency.” 47 BBC 2006. 48 Li Zhengsheng 2003. 49 Kurtz 2006; Scelfo and Nordland 2004. 44 45

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We would give them blows to the head, chest, legs and stomach, and pull them down, kick dirt on them. . . . [T]his happened every day. . . . Some days we would just get bored, so we would have everyone sit in a corner and then make them get in a pyramid. This was before Abu Ghraib bust just like it. We did it for amusement.50

To celebrate the soldiers’ braveness, pictures were taken and used as screensavers. In earlier historical periods, pictures of torture were printed on postcards one would send to friends.51 These uses illustrate how the victim of torture was considered worth less than other human beings. Dehumanization plays mostly on the difference between victim and spectator. Spectators can be appalled by what they see, but to them it is extremely difficult to identify with a colonial subject who was put to death more than a hundred years ago on a market square far away in an exotic country. Equally difficult is to identify with a suspected terrorist or a counter-revolutionary. Such a lack of identification stems from a basic principle of social psychology, the preference of people for their own group. De-individualizing people, representing them as “interchangeable members of an out-group,” triggers neurological “responses of disgust and arousal.”52 Disgust and arousal are what make possible for the torturer to inflict pain and for the viewer to look at pictures of torture as something else than the document of another’s pain: as postcards, as historical documents, or as fictions of our soldiers’ strength, courage, and masculinity.53 Pictures of Chinese torture victims show unique individuals instead. After the criminal suspect has been made into bare life, the media attempt to rehabilitate him using visual and narrative tactics that underscore how the victim of torture is also a member of an in-group. While the Guantanamo pictures mostly portray nameless and faceless Arabs, on the Chinese media we can see the face of the victim, who is always referred to by his first name. Victims of torture appear on the media to recount their stories to us. As one browses through electronic media, the picture of a man holding on to a cane can be seen. His brown eyes are red with rage and resentment. They seem to pierce through the screen, making us curious as to who he is. We learn that

50 51 52 53

Schmitt, Eric, 2005. Bourgon 2003–2004b. Fiske, Harris, and Cuddy 2004: 1482. Rejali 2007.

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his name is Wang Shuhong. He has been falsely accused of murder and detained for more than two hundred days. He has been maimed, so now he cannot walk without a stick.54 But Wang, nonetheless, managed to survive, and now shows us how the police wrapped a rope around his neck, and then pulled it violently to simulate suffocation. She Xianglin, another innocent victim, looks to the camera and shows his hand; part of his index finger is missing. Prosecutors cut it off and then used it to put its print on a forged confession. We see how Liu Jiuming once looked, a cheerful man in his forties, with beautiful dark blue-black hair. Torture robbed him of his vitality. Now Liu’s hair is completely white. The most essential part of posthumous rehabilitation is conveying a clear message about the victim’s innocence. Most accounts of torture refer to only three categories of victims: criminal suspects, those who committed such minor offenses such as shoplifting or stealing bicycles, and those who were tortured at officials’ whims because they were perceived as confronting their so-called power. An instance of the latter category is provided by the case of Li Binghao, punished for urinating next to a chenguan’s car.55 Each one of the victims is portrayed as being very similar to the spectator. The media point out how they enjoyed ordinary lives and spent their time in activities with which most of us are familiar. Liang Jiping played volleyball on the First of May tournament, and in his free time went to the sea with his family. Others would watch television at their neighbor’s house or sit outside playing cards with their friends. References to ordinary past-times and normal lives are necessary to underscore the point that victims are like us. Their lives are very similar to those of countless spectators. They belonged to the same ethnicity as them. They also lived in the same province or in the very same city. The media talk to us about persons who have retained their humanity. On the Chinese media, the victim of torture is not constructed as an aberrant war trophy, but as a human being whose dignity needs to be reinstated. The bodies of victims are always dressed. Nakedness, when it occurs, is justified by forensic pathology. Nakedness is necessary to photograph the wounds, to examine the body, and let us known the entity of damage that was inflicted on it.

54 55

Nanfangwang 2005. Sohu 2006.

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Its aim is literally to expose abuses to the public and to aid the search for truth. The naked body is never photographed for fun. These communication strategies illustrate to spectators what really takes place within a zone of exception. Media accounts of torture have optimistic overtones. After we have been exposed to images of wounds and corpses, after we have read how innocent persons were whipped, compelled to kneel on chains, waterboarded, and stunned with electric cattle prods, we eventually learn that the state compensated the victim. Justice steps back in and a reversal of roles takes place. The victim of torture is freed and torturers are jailed. The victim of torture now proclaims his faith in justice and the law. The torturer is tried and found guilty. Unable to endure the shame and guilt, he may declare “I don’t want to live anymore”56 before taking his life. The state readjusts the friend enemy divide overstepped by those who tortured the innocent. 7.5

Episodes of Ordinary Violence

Displaying bodies that bear the marks of torture has achieved the primary goal of denouncing injustice. Underscoring how wrongs were redressed aims at making the public aware that torture constitutes an exception in the criminal justice system. However, the media’s sustained focus on cases of abnormal deaths produces also unintended effects: it shapes the perception of who may be at risk of torture and what behaviors may trigger such risks. Representing the victim of torture as the enemy and avoiding any identification with the spectator have the indirect effect of making the public feel safe. An American or European who looks at the Guantanamo pictures may be appalled, but he won’t feel at risk because the majority of the American and European public does not belong to the same groups as suspected terrorists. The narrative of Chinese media instead suggests that everybody may be at risk of torture. The media seldom reports abuses performed on members of certain religious groups or autonomist movements. Members of marginalized groups seldom become the protagonists of this narrative, unless their conviction was wrong, that is to say, unless their exclusion was a mistake. The main

56

Xinjingbao 2005.

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characters in the narrative of torture are ordinary people belonging to diverse social strata, who were abused for no particular reason. The fashion designer Sun Zhigang was detained and beaten to death because he was found without his identification papers.57 Twenty interns at Meijin, an energy company, were detained and tortured by internal security personnel when some electric cable was found missing.58 When Ding Tianyu and Gao Zhanguo one day began quarrelling, their wives asked the local police sub-station to mediate the controversy. Both Ding and Gao entered the station. Gao later left, safe and alive. Ding died while being tortured.59 Seventeen-years-old Tang Bin walked by a lianfang patrol squad on his way home. One of the lianfang, who was drunk, thought that Tang looked suspicious, so Tang was arrested and tortured to make him confess crimes he never committed.60 Issuing arrest warrants was part of Li Zhaoyang’s job. His colleagues called him one day, claiming that his signature was urgently needed on an arrest warrant. But once Li arrived to his office, he was detained and tortured, because he was suspected of corruption.61 What course of action can lead to torture? In this Kafkaesque world, where the drunken opinion of a lianfang can, in practice, be worth more than constitutional guarantees, the question remains unanswered. Ordinary citizens may feel threatened by the possibility, no matter how remote, of becoming victims of random abuses. It is difficult to determine a priori what course of action will be punished with torture—walking back home, as Tang did? Going to work, as Li did? Asking the police for help, as Ding and Gao did? As I have discussed in chapter 4, the latent fears induced by these abuses can coalesce into an impromptu public opinion movement calling for justice. 7.6

Friends and Enemies

The public reacts strongly to reports of abuses performed on members of the people. However, torture seems to be tolerated whenever it is performed on ordinary offenders or on members of China’s political and

57 58 59 60 61

Renmin Ribao 2003b. Shenzhen Tequbao 2007. Dahewang 2007. Beijing Qingnianbao 2002. Dayangwang 2007.

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economic elite. In fact, a trivialization of degrading treatment and a dehumanization of offenders eventually led the public to have a high threshold of tolerance for abuses committed on members of either group. These processes started when the first experiments in governance took place in Chinese soviets62 and have continued since then. In the days of the revolution, physical punishments and degrading and humiliating treatment were qualified as aberrations, remnants of Old China at odds with Socialist modernity. At the same time, revolutionary power was established and preserved through means that were automatically conducive to torture. The prohibition of physical punishments63 could, in practice, be ignored by cadres bent on suppressing class enemies. After the foundation of the PRC, torture was popularized by crimecontrol strategies. The mass trial, a constant feature of the Mao era, could not have existed without the humiliation, degradation, and sometimes public execution of suspects. The generation of the 1950s grew up regarding this spectacle as the ordinary way of administering justice and treating offenders. Public degradation, its core component, escalated during the Cultural Revolution. Victims of struggle meetings (pidouhui) were notoriously flogged with bolted leather belts, subjected to stress positions, exposed to extremes of temperature, had their heads shaved, and had their faces smeared with ink or dirty fluids.64 The 1978 repudiation of the Mao line and the adoption of the comprehensive management of public order were equally premised on violence, with two differences. Violence had now become institutionalized, and the removal of class labels had resulted in the use of such violence against common offenders rather than on class enemies. Post-1978 crime control is premised on yanda campaigns, which subsequently evolved into concerted struggles.65 Their central component,

See for instance Han and Chang 1981: 477. “Neither during the ‘three anti’ nor during the ‘five anti’ must methods of compelling by the use of corporal punishments be used. It is necessary to take strict precautions against the occurrence of suicides,” Measures and criteria of the Chinese Communist Party Central Committee to differentiate the treatment of industrial and commercial households during the “five anti” movement (Zhonggong Zhongyang guanyu zai “wufan” yundongzhong dui gongshanghu fenlei chulide biaozhun he banfa 中共中央关于在 五反运动中对工商户分类处理的标准和办法), issued on 5 March 1952 and effective from the same date, reproduced in Zhonggong Zhongyang Wenxian Yanjiushi 1992: 112–15. 64 Chen 2000: 87; Thurston 1984, 1985. 65 Biddulph 2007. 62 63

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the public arrest and sentencing rally,66 has, however, persisted. The public arrest and sentencing rally is a symbolic enactment whereby sovereign power becomes visible and it is projected onto the public. In the eyes of the public, reverence and respect for the law and the state’s power are produced by the “ritual destruction of the criminal.”67 Rituals of destruction allow power to constitute itself. It is not by coincidence that public arrest and sentencing rallies are mandated before such events as the Olympic Games68 or political meetings. During the sentencing rally, both physical and psychological pain is inflicted on offenders. Placards are hung around their necks, as their arms and hands are tightly bound or handcuffed behind their backs, and their heads are forced downwards. Offenders thus experience pain in the cervical and shoulder regions, the wrists, arms, shoulders, and elbow joints. The ropes or handcuffs may cut into their flesh, damaging the tissues or their nerves. Hanging placards around offenders’ necks actually labels them as “rapists,” “smugglers,” or “murderers.” This is how they are presented to the public while they are driven on an open truck to the site of the sentencing rally. Here, the public cheers and applauds while their death sentences or heavy jail terms are read out aloud. From this perspective, what takes place at public arrest and sentencing rallies is nothing less than a public torture session. Pain is inflicted intentionally on the offender, who has been deprived of any possibility to defend himself or to react. The aim of this treatment is to punish but also to deter other potential offenders as well. Such extreme, asymmetrical power mirrors the fictive asymmetry of power existing between torturer and victim. Once the offender is bound, citizens who would otherwise be afraid of him can afford the luxury of mocking him. During a sentencing rally, power reassures the people about the state’s capacity to cope with the rising crime rate69 and to guarantee their security. Backed by the state and those officials who represent it, the public can hence freely express its violence. An unintended outcome of sentencing rallies has been making degrading treatment acceptable to most of those who grew up during the last three decades. 66 67 68 69

Tresvaskes 2003. Ibid., 364. Chongqingshi diwuji renmin fayuan 2008; Pu’er renmin zhengfu 2008. Tresvaskes 2003.

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This “culture of social violence”70 has impacted not only on the treatment of ordinary offenders. Abuses performed on CCP members are met with a similar smugness. When Liang Jiping died, the Southern Capital Daily published pictures of his ravaged body. To illustrate the twenty-one different torture methods used on him, the newspaper’s website published a series of twenty vignettes. Very soon, the series became a popular item on the internet. The public appropriated it, using the vignettes to convey messages of their own. With the exception of some who observed how the vignettes were “violent,” the overarching theme in this discourse was the acceptability of torture. Readers’ views converged on this point. Generally speaking, it was held that forced nudity, the use of stress positions, and the falaka did not really amount to torture—even though obviously they had caused the death of the suspect. Some contested that prosecutors could have used stealth techniques, avoiding signs on the suspect’s body. Others joked that the suspect, who was overweight, was forced to exercise to the point of physical exhaustion so he could lose weight. On the whole, the use of torture was considered necessary in order to make officials confess to their crimes. Only unbearable pain would overcome their arrogance. Vignettes were also decontextualized, and treated as humor. Such a discourse constitutes a counterpart to the public sentencing rally. Unlike the sentencing rally, however, the public is here autonomous. It can appropriate the offender and use him to frame its own discourse about law, “legality” and the punishment of crime. This discourse takes place outside any official framework, but only a few compassionate voices can be heard. Not one of those who made fun of Liang Jiping would ever dared joke about the torture techniques used on Sun Zhigang. Sun was one of us, somebody who shared our dreams and hopes. 7.7

Reform?

With a few exceptions, scholarship on torture has ignored how the use of clean techniques is on the rise in China, and why. Since the 1950s, the range of techniques used by policemen, prosecutors, and CDI officials

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has expanded to cover clean methodologies that Rejali classifies under different styles of torture. The PRC police use electric torture, something typical of the French model, as well as Anglo-Saxon methodologies that use stress positions. These are combined with techniques of Soviet and local derivation, emphasizing psychological coercion and disorientation. None of these techniques leave physical marks. Sustained media attention is likely to accelerate the transition to clean torture techniques,71 as those who do practice torture wish to avoid demotion and possibly criminal prosecution, too. Clean torture techniques can be easily—and dangerously—misunderstood as mild and ultimately innocuous corporal punishments, or as rituals of shaming and education rooted in Chinese tradition. The public is already used to witnessing a substantial amount of violence, which has eventually lead them to accept as normal the public display of psychological torture occurring at mass sentencing rallies. Campaigning by exiles and international pressure,72 two factors which could aid resistance, do not seem to be able to play any key role in reducing torture. China’s dissident diaspora is not only sharply divided. In approaching torture, this group has overlooked the dynamic whereby extremes of violence can become normal. Rather than devoting its attention to ordinary people, exiles have focussed mostly on cases involving Tibetan autonomists, high profile dissidents, and members of the Falungong. In doing so, the diaspora has dug a deep divide between itself and the rest of the Chinese population. The Chinese public is not exposed to accounts of torture as it takes place on members of these groups. Rather, the public has to cope with the subterranean fear that they, too, could end up as Tang Bin and Ding Tianyu did. International pressure has focussed on those groups that are invisible to the Chinese citizenry. In its search for security and reassurance, the citizenry has hence turned to the party-state, rather than joining forces with exiles or international critics. Citizens have voiced strong concerns about their physical integrity, and the state has answered by playing the reform card. In 2003, the abolition of shelter for deportation was proclaimed after Sun Zhigang’s death outraged the public. In 2009, a nationwide inspection of pretrial detention facilities (kan-

71 72

Rejali 2007. Blakeley 2007: 393.

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shousuo) was launched after Li Qiaoming’s death under custody drew widespread attention.73 Regardless of their actual effectiveness, these responses did appease the public opinion. Piecemeal measures were closely tailored for the group the public cares for the most: the People. This reactive stance has been insufficient to address the root causes of torture, with the result that anti-torture legislation has proved effective only to a limited extent.74 Conventional explanations of why antitorture initiatives have not caused a diminution of torture rely on three sets of more or less implicit postulates. They concern modernity, structural factors, and legal reform. Modernity should lead to a decrease in torture, or to its abolition Although it has never been clearly articulated, this first assumption has had the power to shape much of Western and Chinese thinking on torture in China. Not unlike what had happened in Europe, torture was a formal component of the imperial criminal justice system.75 An elaborated legal discipline specified the conditions in which it could be used,76 defined the areas of the body that could be hit; the maximum number of blows that could be administered; and the kind and size of torture implements.77 The extortion of false confessions and extrajudicial torture were criminalized.78 Calls for the abolition of torture and corporal punishments emerged already between the eleventh and twelfth centuries.79 The abolitionist trend was motivated partly by concerns about Confucian morality and partly by the admission that interrogational torture yielded unusable information: “[A]fter

Zhongxinwang 2009. Kjærum and Thelle 2003. 75 The earliest available mention of interrogational torture dates back to the Qin dynasty (221–206 B.C.). Hulsewé 1985. 76 See section 10 of the Yuan Code. Ch’en 1979: 76–77 and 153–54. Those over seventy or under fifteen years of age, and the incapacitated, could not be subjected to interrogational torture. Johnson 1979: 30. Other exceptions were pregnant women, women who had given birth less than 100 days before the interrogation, and those who could benefit from the “eight deliberations” (bayi ): relatives of the emperor, old retainers of the imperial family, meritorious subjects, “worthies,” “talents,” diligent subjects, subjects of high position, and descendants of preceding imperial families. See Jiang 2005: 19–20, 230–231, 240. 77 Bodde and Morris 1967: 97–98, 126; Miyazaki 1980: 61. 78 Jiang 2005: 234; Jones 1994: 370–371; Meijer 1981: 184–203. Also, the accused could retract a confession extorted by means of torture, in which case a new investigation would begin. Miyazaki 1980: 63. 79 Bourgon 2003b: 858. 73 74

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repeated examinations and undergoing various tortures, the charges brought against many persons are seen to be entirely unfounded.”80 This simple truth has been well known since antiquity: “[O]nce the stick is applied (the prosecutor) can obtain anything.”81 Judicial torture was formally abolished in 1905, when the “cruel punishments” (kuxing) were outlawed.82 The adoption of modern legal codes should have caused this practice to disappear. This uncontested logic leads us to the second assumption. Torture is caused mostly by structural factors. Therefore, legal reform should lead to its decrease The transition to modernity, with its corollary of Western-inspired legal codes and a stable political order, instead induced the emergence of clean torture techniques. New means were devised to induce behavioral compliance without even touching the body. Harold Rigney, a Catholic priest suspected of espionage, described the effects thought reform had on him: “I came to the point where, when I had a reactionary thought, a critical thought of communism, I would expel this from my mind for fear that I would express this on my face.”83 Eventually, Father Rigney began thinking in the way his captors wanted him to: he tried not to be critical of Communism. Trying to achieve this result by beating Rigney would have left marks on his body. Assaulting his personality left marks inside him, which no one could ever see. Hence, the claim that thought reform did not amount to torture, but it was just a form of reeducation. So while scarring torture has been prohibited since the 1930, legal prohibitions never extended to clean torture. Besides, Rigney’s identity as an enemy spy would place him in a zone of exception, where he could not enjoy the rights granted to the people. The cleric thus became bare life. Both clean and dirty torture techniques could be passed on from one generation of law enforcers to another and be used on those who, today, are placed in zones of exclusion. Police officers are not trained in torture. They learn the practice by imitation, or through their own Peking Gazette 1817. Hulsewé 1985: 7. 82 These were death by slicing (lingchi ), decapitation (xiaoshou) with exposure of the head, and desecration of the corpse (lushi ). 83 Rigney 1956: 505, 507. Rigney was a Catholic priest and the former dean of the Catholic University in Beijing. He was believed to be a spy and captured following the CCP’s conquest of the capital. 80 81

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trauma, and can transmit it to their younger colleagues. The first generation of police officers was composed of former soldiers, who had served in the anti-Japanese or the civil war or on the Korean or Vietnamese fronts. To them, flogging and beating a suspect could still be regarded as somehow less damaging than the trauma and perils they had witnessed during combat. Once they had made their way into the public security apparatus, these macabre skills could be learned on the job by the next generation of police officers. The subculture of secrecy and complicity that binds torturers together would then lead to countless cover-ups and denials. Legal prohibitions cannot constrain actions taking place in these zones, as the tension between law and torture can be tilted in favor of the latter. As it had happened during Maoist campaigns, the ban on torture clashed with a more urgent priority, this time consisting in the heavy demands posed on the police. Since 1978, law enforcement has taken place in an atmosphere of emergency: concerted struggles and anti-crime actions still stress the celerity of proceedings, vis à vis procedural fairness. The contractualization of police work has caused a renewed emphasis on productivity.84 Once bonuses and career prospects were pegged to the achievement of high caseclearance rates these incentives proved more powerful than abstract legal norms. What does fairness then count if a policeman’s salary and career depend on him meeting quantitative targets? Torture does produce bad intelligence, indeed. But once police work is evaluated on the basis of the percentages of cases solved, rather than on the quality of the intelligence obtained, then the benefits of torture clearly surpass its costs, at least in the policeman’s eyes. Coupled with a judicial model that still places a high emphasis on confessions,85 the contractualization of police work eventually did more harm than good. Further legal reform can remove the obstacles to enforcement of anti-torture legislation While criminal policies produce bare life and the contractualization of public security can induce policemen to exploit their power over bare life, further legal reform is still considered as a magic wand capable of constraining behaviors. When a new scandal proves that legislation against torture is incapable of curbing this practice, the existence

84 85

Dutton 2005. Zhang and Liu 2002; Miethe and Lu 2003.

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of legal loopholes is blamed,86 and calls for more legal reforms are voiced. Legislation on the prevention of torture does, indeed, possess serious flaws. The PRC definition of torture does not meet the obligations set by the International Convention against Torture (CAT), to which China is a party. Public security organs can hence use members of joint defense teams, private security officers, and the chengguan to practice torture by proxy. One can assume that bringing the PRC definition of torture in line with CAT standards would reduce or eliminate torture. Filling in existing gaps in legislation on the exclusion of illegally obtained evidence may also be beneficial. Legislation on criminal procedure has posed the principle of exclusion of illegally obtained evidence both implicitly87 and explicitly.88 This principle can-

Cao 2005; Wei and Cao 1998:35–37. Neither article 42 nor article 43 CPL pose an explicit prohibition on the use of illegally obtained evidence. Article 42 CPL merely mandates that evidence be “verified to be true before it can be used as the basis for deciding cases.” It does not specify whether examination of evidence entails only their credibility, sufficiency, and accuracy or whether it extends to the nature of the methods used to obtain it. In theory, article 42 CPL allows for the use of a confession obtained through torture, provided that the victim of torture said the truth. Article 43 CPL is mentioned by default in discussions of the exclusionary rule, even though it refers only to the collection of evidence: “[I]t shall be strictly prohibited to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means.” Its statutory dictate does not provide indications about whether the evidence that has already been collected and presented before the court shall be admitted or not. This prohibition has been reinstated or supported by the following most important pieces of legislation: Articles 140, 160 Supreme People’s Procuratorate People’s Procuratorates rules on criminal procedure (Zuigao Renmin Jianchayuan renmin jianchayuan xingshi susong guize 最高人民检察院人民检察院刑事诉讼规则), issued on 16 December 1998 and effective from 18 January 1999, adding detention as one of the means that cannot be used to coerce somebody to provide their oral testimony, hereinafter referred to as Rules on Criminal Procedure. Ministry of Public security rules of procedure on investigating criminal cases (Gong’an jiguan banli xingshi anjian chengxu guiding 公安机关办理刑事案件程序规定), issued on 14 May 1998 and effective from the same date. As amended on 25 October 2007; article 14 (3, 4, 5) People’s Republic of China Law on Prisons (Zhonghua Renmin Gongheguo jianyufa 中华人民共和国监狱法), issued on 29 December 1994 and effective from the same date. 88 An explicit enunciation of this principle as it should be applied during pre-trial and trial proceedings can be found in the Rules on Criminal Procedure and in judicial interpretations. Article 265, Rules on Criminal Procedure sets forth the prohibition to use illegally obtained evidence to indict a suspect. Relevant departments of the people’s procuracies have the obligation to issue a cease “order” ( juzheng yijian) whenever they find out that statements, confessions, and testimonies have been obtained illegally. Investigators can be replaced and collection of evidence begins anew. Otherwise, supplementary investigations can take place. Article 61, Supreme People’s Court explanation regarding some problems in the implementation of the People’s Republic of China Criminal Procedure Law (Zuigao Renmin Fayuan guanyu zhixing Zhonghua Renmin Gongheguo xingshi susongfa ruogan wentide jieshi 最高人民法院关于执行中华人民共和国 86 87

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not be made operational, due to the lack of procedural rules on the verification of evidence. The reorganization of this legal basis, which will most probably take the form of a law on evidence,89 is one of the goals of the Third Five-Year Reform Program for the People’s Courts.90 The introduction of provisions about the right to silence, the right against self-incrimination, procedures that apply during searches and seizures and to evidence obtained through covert investigation would further fill in existing loopholes.91 At the moment of this writing, renewed legislation on the exclusion of illegally obtained evidence is being experimented in selected areas.92 In the meantime, the principle of exclusion of illegally obtained evidence should be made operational through the use of disincentives such as the audio-visual recording of police activities and interrogations.93 China’s administrative structure, which is still tailored on the Leninist model, has biased the system in favor of internal, administrative controls. Until

刑事诉讼法若干问题的解释), issued on 8 September 1998 and effective from the same date prohibits gathering evidence by illegal means. It states that evidence should be verified, and if it is found that it has been obtained by torture, threat, deception, or other unlawful means, it cannot be used as a basis to reach a verdict (ding’ande genju). Evidence can be produced by parties, but the judge shall not use it to decide the merits of a case. In 2001, this prohibition was reinstated by the Supreme People’s Procuratorate circular on the prohibition to reach verdicts using confessions from criminal suspects obtained through the use of torture (Zuigao Renmin Jianchayuan guanyu yanjin jiang xingxun bigong huoqude fanzui xianyiren hongshu zuowei ding’ande yijude tongzhi 最高人民检察院关于严禁将刑讯逼供获取的犯罪嫌疑人供述作为定案依据的 通知), issued on 2 January 2001 and effective from the same date. 89 A draft law has existed since 2005. 90 Article II, 1 (2), Third Five-Years Reform Program for the People’s Courts (2009– 2013), (Renmin Fayuan disange wunian gaige gangyao (2009–2013) 人民法院第三个五年 改革纲要2009–2013). 91 Article 116 CPL allows investigators to seize the mail or telegrams of a criminal suspect after obtaining approval by the public security organs or the procuratorate. It does not mention other evidence obtained through such methods as police informants, phone interceptions, video surveillance, etc. No precise criteria exist to evaluate this evidence. 92 In March 2009, Beijing Chaoyang District Procuratorate and Zhengfa Daxue launched a pilot program on the exclusion of illegally obtained evidence. The program is bound to end in October 2010 and involves application of trial rules by prosecutors to a sample of 80 cases. Fazhi Ribao 2009. The actual presence of lawyers during questioning sessions, frequent colloquia with criminal suspects, an increased role in investigations, a reform of pretrial detention, and of measures such as stop-andquestion would constitute additional mechanisms to avoid the use of illegal methods to obtain evidence. 93 Not all questioning sessions are being recorded. Currently, this method is used only in those cases where the main proof consists of a confession. Most of these seem to be cases of corruption and dereliction of duty. Xinhuawang 2007.

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monitoring mechanisms and the forensic pathology system are controlled by the police, reform of procedural legislation will most likely prove only a partial solution. While investigations on cases of torture are carried out by the procuracy, monitoring mechanisms controlled by the police involve the so-called system of “report and self-criticism” (huibao jiantao zhidu). Allegations of torture can be investigated (li’an) whenever the presence of physical or psychological symptoms is assessed.94 Physical symptoms include light or serious wounding, self-inflicted wounding, serious damage to health, and death. Psychological symptoms comprise the loss of psychological balance, suicide attempts, and suicide. Given that torture is conducive to posttraumatic stress disorder (PTSD),95 including psychological symptoms among the conditions needed to prosecute torture makes possible—at least in theory—to leave no case of torture unpunished. It is however, unclear how the medical assessment and documentation of torture take place. At the moment, in China no independent center for the documentation of torture and the rehabilitation of torture victims exists. Documenting forensic evidence of torture is an extremely delicate task fraught with difficulties. Particularly when low-tech scarring techniques are used, the marks of torture could be easily confused with small scars and wounds on those parts of the body—such as the elbows and the legs—which are more prone to damage. In the words of forensic pathologists: The evaluation of scars on the legs is particularly difficult as many people who have not been tortured have scars there. . . . [D]eep incisions of the thighs are likely to have been caused by torture, but burns on the front of the thighs could be accidental.96

Documenting the use of clean techniques is, clearly, more difficult. An expertise in psychology and the use of diverse techniques is needed to

94 Section 2, article 2, par. 3, Supreme People’s Procuratorate rules on the threshold to file criminal cases of dereliction of duty and violation of rights (Zuigao Renmin Jianchayuan guanyu duzhizui qinquan fanzui anjian li’an biaozhunde guiding 最高人民检察院 关于渎职罪侵权犯罪案件立案标准的规定), issued on 29 December 2005 and effective from 26 July 2006. 95 There is a wealth of studies on the long-term psychological and psychosomatic consequences of torture. For an illustration of the long-term consequences of torture, see Ebert and Dick 2004. 96 Peel and Jacopino 2002: 158.

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assess the physical and mental impact of severe trauma.97 Issues related to the assessment of torture and rehabilitation of victims are seldom discussed in the Chinese medical literature. Once can observe a systemic bias in favor of clean torture and nonfatal torture. Procuracy guidelines use the term “beating” (ouda) to refer to torture, and allow for the prosecution of perpetrators only if more than three people are tortured, or if the same state agent tortures a same person more than three times.98 According to the system of “self-reporting and criticism,” provincial procuracies should collect statistics about torture and transmit them to the Supreme People’s Procuracy. But, the main role is still played by public security organs. Documentation about torture should reach the Ministry no later than five days after the case has been discovered.99 Immediate notification to the procuracy is due only when a criminal suspect is found out to be seriously wounded (zhongshang) or to have died while under custody.100 Written reports to the Ministry of Public Security are to be filed only if more than two cases of torture leading to death take place in a province during a year’s time. Furthermore, this monitoring mechanism does not allow an easy follow-up of cases. Reports to the Ministry must provide details about the penalties

Gacono and Evans 2007. Physical marks are evaluated according to the criteria used to evaluate light wounds. Instances of light wounding would include a one-centimeter-deep cut on a limb, a one square-centimeter-wide wound on the head, burns that alter the appearance ( yiniang waixing) of any part of the body, etc. Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice experimental criteria on light wounding (Renti qingshang jianding biaozhun (shixing ) 最高人民法院, 最高 人民检察院, 公安部, 司法部人体轻伤鉴定标准试行), issued on 2 April 1990 and effective from 1 July 1990, reproduced in Falü Chubanshe Fagui Zhongxin 2007: 566–68. 99 Ministry of Public Security circular on strengthening the leadership responsibility system on investigating and reporting cases of torture leading to death and other tasks (Gong’anbu guanyu jinyibu jiaqiang dui xingxun bigong zhiren siwang anjian zhuiqiu zeren he zhuji huibao yantao dengxiang gongzuode tongzhi, 公安部关于进一步加强对刑讯逼供致人 死亡案件追究领导责任和逐级汇报检讨等项工作的通知), issued on 16 June 1999 and effective since the date of receipt by grassroots level public security organs. 100 Supreme People’s Procuratorate and the Ministry of Public Security circular on strengthening the coordination between procuratorates and public security organs during investigations on cases of torture (Zuigao Renmin Jianchayuan, Gong’anbu guanyu jiaqiang jiancha, gong’an jiguan zai chaban xingxun bigong anjianzhong miqie peihede tongzhi 最高人民检察院，公安部关于加强检察公安机关在查办刑讯逼供案件中密切配 合的通知), issued on 6 January 1993 and effective from the same date. If torture has been committed by prosecutors, public security organs must report the case to the next higher level procuratorate. This mechanism has, however, been replaced by the one discussed below. 97 98

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meted out to perpetrators. However, the choice to step-in and actually supervise these cases has been left to the Ministry’s discretion. Directors of public security bureaus have to report in person before central level leaders101 only if central-level leaders believe the measures they have taken are insufficient. The prosecution of perpetrators, their superiors, and those who otherwise aided or abetted torture constitutes only the final step of this lengthy internal investigation. Localities have been quick to exploit loopholes. Anti-torture legislation issued in Yunnan102 explicitly mandates that torture has to be dealt with internally whenever it involves minor circumstances, and mandates that cases be filed to the procuracy only if the victim dies or suffers permanent physical damage. Spurred by public protests, reforms have bestowed upon the police and the procuracy a greater discretionary power, as they can choose whether to punish torturers or not. At the same time, reforms have not addressed the existence of legal exceptions that allow state and nonstate agents to collude in the practice of torture. 7.8

Conclusion

Torture causes public protests mostly when its victims are represented as belonging to the people. Such protests can be successfully appropriated by the state and law enforcement agencies. By compensating victims and punishing torturers, the state confirms and reinforces its power over the law and draws citizens within the discourse of law and legality. This operation provides citizens with a vocabulary to articulate

101 These are the secretary of the Discipline Inspection Commission instituted at the Ministry of Public Security and the head of the political department and the head of the legislative office. Normally, the secretary of the discipline inspection commission is also the deputy minister of public security and, as such, occupies a seat in the Central Committee of the Chinese Communist Party. 102 See, for instance, Yunnan People’s Congress Standing Committee decision on reiterating the severe prohibition of torture and mandating the strict observance of time limits for investigations and other rules (Yunnansheng Renmin Daibiao Dahui Changwu Weiyuanhui guanyu chonsheng yanjin xingxun bigong he yange zhixing ban’an shixian deng guidingde jueding 云南省人民代表大会常务委员会关于重申严禁刑讯逼供和严格执行办案时 限等规定的通知), issued on 22 September 2000 and effective from the same date. This decision mandates that torture—whenever it involves “minor circumstances”— has to be dealt with internally, by the unit where it took place, or by the next-higher level unit. Cases should be filed to the procuratorate only if they result in serious wounding or death. This is a clear case of legislative conflict between provincial and central level regulations.

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their opposition. As the vocabulary of resistance is first and foremost a legal vocabulary, citizens can only ask that perpetrators be punished in accordance with the law. Posing any other request, using any other words, asking that torturers be punished outside of the law would be unthinkable. If only the language of the law can be used, a language taught by legal dissemination (pufa), are citizens left with words of their own? A request expressed in the language graciously given to us by someone else may, indeed, be formulated consciously, but will eventually acknowledge the state’s moral and legal authority to monopolize punitive power. It is no surprise, therefore, that such requests be met, and the well-rehearsed rites of compensation, public rehabilitation of the victim, and punishment of the offender be performed for citizens’ satisfaction. The same public that protests over abnormal deaths can, at the same time, see how a criminal suspect is degraded in public and consider the infliction of physical and psychological pain as a normal spectacle. The inability to condemn this practice eventually stems from one’s collocation on the good side of the friend/enemy line. The fact that crime control policies can be conducive to torture is not regarded as a point of concern, unless one directly experiences the condition of bare life. Eventually, all the people can ask that the party-state’s power to “decide[s] on the exception”103 target somebody else.

103

Schmitt 2005: 5.

CHAPTER EIGHT

CONCLUSION Before the Law stands a doorkeeper. To the doorkeeper there comes a man from the countryside who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man reflects, then asks if he will be allowed to enter later. “It is possible,” says the doorkeeper, “but not now.” *

The processes and phenomena analyzed in the empirical chapters of this book bring us back to the questions raised in chapter 1. Eventually, these can be reduced to the quotidian of this book’s opening scene: Does a vendor enjoy the same rights as the men with the red armbands? The answer to this and to all the other questions will change depending on whether we look at them through the lens of normative values and ideas or adopt a positive frame of reference. At a normative level, a vendor, a suspect under shuanggui or stopand-question, and an addict are equal to the chengguan, CDI officials, and policemen. They all enjoy the same rights with their corollaries of universality, inalienability, indivisibility, interdependence, and interrelatedness. By placing significant and effective constraints on the power of state and nonstate actors, the law should guarantee the enjoyment of rights in practice. Whenever empirical reality deviates from this scenario, a different measure of reengineering or reforming the political or legal system is believed to provide the solution. Advocates of diverse theoretical approaches, methodological orientations, and reform measures share the optimistic—tacit or explicit—assumption that the law can, indeed, subsume sovereign power within itself and limit it. If in liberal-democratic systems sovereign power can never be totally limited, as proved by the very existence of the Guantanamo prison and the control of migration flows through administrative detention, what will then happen in a single-party authoritarian system? If, given certain

* Franz Kafka, Vor dem Gesetzt (Before the Law).

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justifications, restraints on sovereign power can be lifted, thus empting the law of any capability to protect rights, would it not be more intellectually useful to make the deliberate choice to leave normative reasoning aside? Would it not be more useful to regard all normative values as things that can be repeatedly derogated to, until exceptions become the norm? If it is accepted that normative ideals are not objects in the real world—they convey our aspirations toward a reality that does not exist at the moment of writing and, as such, they cannot explain why reality is as it is—then we should choose a different perspective and find a different formal specification, a different ontology, for our perspective. Another scenario will then emerge in which chengguan and vendor, criminal suspect and state or nonstate actor, addict and policeman will not be equal. Their equality will be a fiction, or at best an attribute of which they can be stripped whenever the most diverse needs and circumstance justify derogations and exceptions to an otherwise general principle. Their inequality will not then result from a deficit in rule of law. It will stem from the law, and from the sovereign decision of a power that can step inside and outside of the law as it sees fit, determining who can, in practice, enjoy abstract rights and who cannot. Embracing Agamben’s paradigm of the state of exception, I held that this feature of sovereign power deserved an exploration going beyond the different façades legal and political systems may display. Supreme and independent authority over a given territory is, after all, an attribute of every state. If in liberal-democratic systems sovereign power is hidden behind provisions on the state of exception, where will its hiding place be in China? With this question in mind, I began my exploration. 8.1

Mapping Exceptions

A necessary first step was the mapping of legal exceptionalism. In China, zones of exception are scattered throughout the quasi-legal or legal spheres of party norms, constitutional law, criminal law and criminal procedure law, and administrative law. Constitutional law contains provisions that can give rise to a state of exception. However, emergency powers were used only in 1989, and in some parts of the PRC territory, so a generalized suspension of legal rights never took place in the PRC. Other mechanisms have been used more frequently to react to phenomena that do not amount to a concrete and

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imminent threat to the PRC’s life or territorial integrity. Each one of these mechanisms can lead to a deprivation of personal freedom in the absence of formal accusations and of due process rights, actualizing everyone’s potential to become bare life (zoe). Hence, legal exceptionalism can target party members, who can be placed under shuanggui, as well as ordinary citizens, who are a target of stop-and-question or shelter for examination. In each one of these cases, the use of available alternative measures—as summons—would likely pose a limitation to sovereign power. In practice, the most diverse reasons are invoked to eschew any legal choice in favor of exceptional means. The same dynamic affects criminogenic or marginalized groups. Conducts which do not constitute criminal offenses, such as drug addiction, begging, and vagrancy, are punished by administrative detention, or through a form of shelter for deportation revived by local administrative agencies. In some cases, the suspension of rights can affect potential carriers of infectious diseases. Elements of legal exceptionalism can be involved in the levying of specific criminal charges, too, with political power crossing the boundary of legality to interfere in the work of the judicial system. Mapping legal exceptionalism by choosing not to focus on the over-researched issue of RETL has led to the discovery of other areas in which lawlessness persists. This empirical finding corroborates those analyses relying upon a more or less explicit conceptualization of law and politics as two closely linked entities.1 However, it goes beyond them as it leads to conceptualizing an ample zone of lawlessness as an organic, systemic component of China’s criminal justice system, and hence of its legal order. 8.2

Resilience

A strand in the scholarship of China’s legal criminal system justice has pointed out the existence of an emerging sphere of legality and of attempts to place meaningful constraints on power.2 Lawlessness, however, constitutes a resilient feature of the system under observation. Legal exceptionalism should be regarded as the norm, rather than a

1 Cohen 1966; Clarke and Feinerman 1995; Lubman 1999; Worden 2009 just to name a few representative works. 2 Peerenboom 2002; Biddulph 2007; Fu 2005c.

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transient condition induced by the birth of a new political regime in 1949 or by the Mao-Deng transition. Most of the mechanisms analyzed in this book are not novelties. In the past, they existed outside any legal framework, or were grounded in obscure normative documents. Their existence dates back to before the birth of the PRC, or has been, to a certain extent, influenced by non-Chinese models and practices. Shuanggui resembles premodern forms of investigative detention. Compulsory rehabilitation was born as the Chinese Communists adapted Republican safety measures to their needs. Stop-and-question emerged as part of the slow modernization of police forces. Parapolice forces and urban management officials were strengthened out of considerations not dissimilar from those which led to the emergence of community policing in the West. The transplant of Republican or imperial practices to base areas and the adaptation of Western practices marked several critical junctures, when original legal models were either lost or adapted beyond recognition to the local context and made compatible to the beliefs and background of Communist leaders. Eventually, each one of these mechanisms grew roots outside of the law. A lack of distinction between military, political, administrative, executive, and legislative power meant that codified norms were justified by political-legal needs, and drafted, issued, and implemented by weighty political actors. Invariably, these actors were those anointed with the task of protecting sovereign power: party organs or organs which—such as the Ministry of Public Security—stemmed from party security bodies. Eventually, those criminal provisions that had been transplanted from Nationalist China became administrative or even extra-legal powers once Communist party-state officials decided that addicts and minor offenders had to be deprived of freedom. Investigative measures existing during the imperial era encountered the same fate. All were deregulated, simplified, and freed from procedural constraints because of the very simple reason that preserving the life of the party so required. In the meantime, diffidence for codification and the loss of the intellectual capital and knowledge base accumulated since the late-Qing meant that basic legal concepts and distinctions disappeared. Sources of criminal legislation could hence be found in policy documents enacted by political or military organs. Those conceptual boundaries so familiar to legal scholars and political scientists were erased or repositioned in unfamiliar, unexpected places. The differences between these forms of detention as they existed when they

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were first adopted and then revived in the early 1980s were minimal. Each one of them had the same shaky legal basis as before, was targeted to the same ill-defined subjects, and enforced by the same or similar bureaucracies in the absence of judicial review or adequate procedural norms. The Mao-Deng transition was expected to cause significant changes that came about in the Jiang and Hu eras instead. The reform of these detention powers began at different stages in these periods. Some were subsumed under the law, while others are still in the middle of this transition. The crucial provision about liangzhi made it through the final drafting stage of the Administrative Supervision Law,3 opening up the way for a possible smuggling of shuanggui into the state law. Stop-and-question achieved a transition from obscure normative documents to a national level law, as so did the powers of shelter for examination and of compulsory drug rehabilitation. The disbanding of joint defense teams resulted in their members joining private security companies, regulations about which have entered into force without addressing the main causes of abuses. The same trend towards privatization can be observed in the case of urban management officials. The legality of these detention measures and community policing bodies is more formal than substantive. In any case, legal reform has increased the law’s potential to suspend rights, turning the law not into an entity that constrains power, but into an entity that allows sovereign power to break free from self-imposed constraints. The transition toward a form of rule of law began displaying this sinister potential as the party undertook a systematic attempt to avoid the fate of other Leninist regimes. The resilience and strengthening of the CCP have been explored mostly in connection to the political system,4 emphasizing the ways in which the party’s institutionalization and reform, rejuvenation and retreat had the goal to protect its life. Political science does not extend these findings to reform of party, criminal, and administrative legislation. Legal analyses do not give preeminence to the hypothesis that a similar logic may be at work beneath legal reform. Political scientists and legal scholars who take China as the object of their inquiries nonetheless share the same views about the

Xue 1997. Brodsgaard and Zheng 2006; Shambaugh 2001, 2008; Nathan 2003; Miller 2008. 3 4

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seamless fusion of the party and the state system. The choice of a theoretical approach grounded in contemporary political and legal philosophy has enabled this work to bridge both fields of knowledge, observing the political side of the law and the legal emanations of sovereign power. The result has not only linked exceptionalism to legal reform, a process which is mostly conceived of as productive of opposite consequences. More important, it has found a possible answer to an important question: Why, in this particular system, has legal reform not yet swept away these zones of lawlessness, and why is it not likely to do so over the short term? 8.3

Dual Structures

This answer lies in the typical solution used by Leninist regimes to preserve a relationship between constituent and constituted power. In liberal-democratic regimes, constitutional provisions about the state of exception allow for the preservation of the democratic order. The ethical, moral, and political values expressed by constitutional assemblies in the name of the people can thus be protected even in the absence of the body that first constituted the state and its organs. Constituent power, an original kind of power that precedes the political order, is, nonetheless, still hidden behind the state of exception. Agamben notices how Leninist regimes found a different solution to the problem of preserving constituent power in the coexistence of a party apparatus with the formal architecture of the state.5 Exactly as in liberal-democratic systems, China’s state organs draw their authority from constituent power. Unlike liberal-democratic systems, constituent power is not only hidden behind the state of exception. It is, moreover, visible, alive, and moving, and goes by the name of Chinese Communist Party. The existence of this dual structure has produced a variant of legal exceptionalism Agamben does not observe. This variant of legal exceptionalism has features absent in different political systems. If compared to the original theory, legal exceptionalism as it exists in China loses its static nature and becomes dynamic. The mechanisms concretely used to suspend rights and preserve power can change over time. Their changes are, in turn, determined by the nature of specific

5

Agamben 1998: 42.

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(alleged or actual ) threats to sovereign power. This process is exemplified by the Mao-Deng transition. In the Mao era, legal exceptionalism was motivated by the fear of external attacks and political subversion. At that time, these were the life-and-death questions for the CCP. Consequently, the rights of political enemies were suspended. Such a suspension took place in the absence of the law. In the context in which Mao had become a living nomos, a living law, his word was a sufficient condition to ignore the need of legal codification. Pure ideology was used to set a divide between friends and enemies, depriving the latter of their rights and excluding them from the political order. Processes of exclusion were chaotic, unpredictable, and extremely irregular. In 1978 a coup d’état produced a different form of legal exceptionalism. An “ideology of equivalence,”6 replaced revolutionary fervor. Constitutional provisions depriving enemy classes of their rights were scrapped, and the legal fiction of equality was created. Unlike other Leninist systems, the CCP gradually retreated from society, leaving economic management to the market and the state bureaucracy to a professional corps of civil servants. The ideals of the Revolution died out. A source of political legitimacy stronger than ideology was the party’s governing capability, its capacity to deliver economic growth, public goods and services to those who, having experienced revolutionary excess, had lost their faith in the revolution. The party’s retreat from societal and economic domains did not mean relinquishing the responsibility for major strategic governance choices. Corruption, crime, vagrancy, potential pandemics, and drug abuse were perceived as policy problems instead of ideological questions. These issues did not lose their political nature because all major policy choices were still directed by the CCP. A failure in each one of these domains would first and foremost be a mistake of the CCP, posing a challenge to its power. The empirical forms of these challenges may have been different from earlier challenges. What did not change was the fact that they still posed a threat to the party’s legitimacy and, therefore, indirectly to its life. Exactly as it had happened some decades before, in each one of these cases, sovereign power would react by using its prerogative to decide on the exception. In the meantime, legal reform had forever changed the shape of exceptionalism. The grounds on which

6

Dutton 2005: 300.

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rights could be suspended became objective and impersonal and were defined in technical-legal terms. Exceptions were now set by law and targeted the conducts of legal subjects, defined in more or less precise ways. As a result, the same groups, namely minor offenders, prostitutes, addicts, vagrants, and deviant party members, could be targeted with a greater precision. Law enforcement agents could with greater confidence decide who could enjoy the guarantees afforded by court proceedings, and who could not. Relevant conducts were no more conceived as a manifestation of counter-revolutionary tendencies, or as a consequence of foreign imperialism—they were minor offenses against public order, or crimes. This punitive power has a deterrent quality, and it is declared in laws that are public and generally accessible. These laws are also generally applicable and, generally speaking, fulfill most requirements of a thin rule of law.7 Legal reform cannot change the perception or the nature of these phenomena as political problems. The issues at stake, administrative rule-making procedures and the “selection of delegates to the NPC,”8 preclude any meaningful input from those societal forces that are trying to push back state power, and leave criminal law-making to the party-state. Legal reform thus appears more likely to contribute to a strengthening of political power, by making the mechanisms of legal exceptions more sophisticated, and more compliant with a thin version of the rule of law. As a result, the incorporation of administrative detention powers in laws at the national level will still allow rights to be suspended, albeit in different forms, and with the provision of procedural guarantees that in practice may be bended or ignored out of nonlegal considerations. 8.4

Modes of Exception

If sovereign power is premised on exclusion, and if processes of exclusion generate bare life, then legal exceptionalism and the production of bare life will be two irreplaceable components of modern politics. The paradigm of the state of exception will enable us to understand processes existing in China, and see how the juridical mechanisms concretely used to produce the exception differ from those existing in liberal-democratic polities. On the whole, emergency decrees are 7 8

Peerenboom 2002: 65–67. Corne 2002: 379.

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seldom used in China. Rather, it is possible to observe a massive use of administrative rules, which are slowly upgraded to legislation at the national level, receiving a formal stamp of approval by law-making bodies. While extra-legal bodies may influence law-making, this influence will be exerted only in the most sensitive issues. Legal reform may play an important role in this process. In a modernizing Leninist system, legal reform can enable the partystate to recognize a more precise divide between friend and enemy, without necessarily taming the beast of power. Until those key features that induce an instrumentalist conception of the law are altered from within, legal reform may be more likely to speed up the entire process. The hope that reforms of private law will eventually affect areas of public law as criminal legislation will then be unfulfilled. Rather, exogenous legal institutions will be adapted to the existing political-legal context, in ways which may often defy our expectations. Before 1949, this dynamic resulted in the oversimplification of certain Nationalist legal institutions. Before 1978, oversimplification instead affected the transplant of Soviet legal institutions. Since 1978, a strong source of inspiration in reforming criminal legislation have been continental legal institutions as they were retained by the criminal legislation of Taiwan, or as they existed in European legal systems. A common assumption among continental legal scholar is that the formalistic similarities between their codes and PRC legislation would allow for a smooth reception of continental models. However, if PRC “criminal-administrative” law hides nothing else but sovereign power, then reform, transplant, and reception of international standards may paradoxically bestow an increased legitimacy upon legal exceptionalism and accelerate the process whereby exceptions become the norm. As I have illustrated in chapter 2, a broad use of quarantine was condoned by WHO guidelines. Such a choice put the stamp of approval on the possibility to use this measure in broad, unchecked, and eventually arbitrary ways, as states were given substantial discretion over how to deal with the SARS pandemic. China used this discretion, and was eventually praised for its effort to contain epidemics. When the H1N1 flu broke out in 2009 and a response based on the SARS mechanism was adopted, the country was criticized when health officials attempted to use this exceptional mechanism on foreigners. Yet, the precedent that allowed a selective use of quarantine on nonresidents existed already, thanks to the WHO decision to allow discretion. Given the dynamics of zones of exception, these provisions could have

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been used to cover any new threat to public health. In fact, health officials felt free to quarantine Mexican nationals who could have been carriers of the new virus. Another instance of this process is given by nothing less than World Trade Organization accession and the ensuing need to liberalize the private security market. This requirement naturally alarmed the Ministry of Public Security, which had a monopoly on the industry. As a response, each round of reform thus far has had as its goal the prevention of an erosion of the Ministry’s monopoly, rather than severing the links between community policing bodies and public security organs. Failure to address these variables has induced a persistence of this zone of exception in spite of WTO requirements. A third and final illustration is given by the ratification of the Convention Against Torture and those related initiatives that, nonetheless, have not caused a disappearance of torture, but may well be speeding up the transition from scarring to clean techniques, a process well documented in the case of Western democracies. Ideally, reform should have substantially reduced bare life. Unable to address the nexus between sovereign power and the law, legal reform also empowered the party-state to produce bare life in ways unlike those existing in liberal-democratic systems and in China during the Mao era. A countervailing empowerment of societal actors has, thus far, been unable to induce substantial changes in the behavior of the sovereign power. The reduction to bare life can be challenged insofar as its targets are represented or perceived as members of in-groups. In this respect, legal exceptionalism seems to have gained a legitimacy of its own. Its targets, who are nearly invisible, do not normally elicit the attention of the Western public opinion—responsiveness to the fate of dissidents, ethnic separatists, and the Falungong is not matched by concerns about other groups. Neither do the others attract the attention of the Chinese public. They have effectively been transformed into beings worthy of little consideration. 8.5

Modes of Bare Life

Once the state of exception slowly becomes a steady condition of politics, all life potentially becomes bare life. The condition of bare life does not depend, then, on the existence of any given political system, but on the inherent capacity to be killed or abused. Sadly, this capacity is acquired the very moment one is born. Such a generalized potential

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to become bare life should not blind us to the fact that different modes of bare life can indeed be observed, regardless of differences in political and legal systems. In a reforming Leninist system, bare life will be triggered by behaviors other than those likely to cause the same condition in liberal-democratic polities. Also, a different kind of subjects will be more likely to concretely experience the reduction to bare life. Both similarities and differences can be observed with regards to behaviors that turn zoé from a latent to a manifest condition. An obvious similarity is given by attempts to subvert political power through violent means—terrorism and armed insurrections. The key difference concerns suspected criminal behavior and minor misdemeanors. As I have explained, insofar as political legitimacy rests upon policy performance, then corruption, public order, the management of public spaces, and public health will manifest both political and policy problems. The conceptual category of enemy will, therefore, cover not just those who try to subvert state power both through peaceful and violent means, but also those whose existence poses a political problem albeit in different ways. Once economic reform gave a new and less passionate foundation to the regime, productivity, growth, and health—in a word, governance—replaced revolutionary fervor as the new political imperative. This shift has partially changed the nature of threats to power, with a result that the range of subjects that needs to be temporarily excluded from political life (bios) has expanded to those whose presence may disrupt stability and public order. In the past, prostitution, drug addiction, vagrancy, and minor offenses could be observed through an ideological lens and considered consequences of imperialist exploitation. In 1978, after three decades of Socialism, they could not. The same behaviors were instead regarded as something that disturbed public order and social stability, with the result that they still had to be suppressed. Regardless of the regime’s shifting source of legitimacy, sovereign power is still premised on the exclusion of some individuals from political life. In liberal-democratic systems, processes of exclusion seem mostly to affect noncitizens. An empirical illustration is given by Arkin Mahmud, the remaining Uyghur detained in Guantanamo,9 and by those who

9

At least until late 2009. Mears 2009.

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after their release spent their time in a heavily guarded refugee center in Tirana, Albania,10 or elsewhere. A second example is provided by those refugees, asylum seekers, and migrants placed in administrative detention. A final example specifically involves the European Union and it’s the legal construct of “noncitizen” (negrazhdanin). In the legal order of Latvia and Estonia, members of the ethnic Russian community do not enjoy the same rights granted to ethnic Latvians and Estonians.11 Clearly, this decision, too, is premised on notions about the security of the new Latvian and Estonian states, and the fear that former KGB or military personnel may infiltrate democratic governments or somehow come to political power. In the PRC, the condition of bare life can, indeed, affect noncitizens, as proven by the case of North Korean asylum seekers. However this group is reduced to bare life in exactly the same way as those who seek asylum to liberal-democratic countries. That the latter enjoy better living conditions than the former is not a matter of law, as the law has already limited, or else entirely eliminated, their rights. Furthermore, this condition is also experienced by citizens, too. The attempt to preserve constituent power through the existence of a dual structure can easily turn the condition of bare life from a potential to an actual status. This situation stems from a conception of human rights as entitlements that are granted by the state. In reality, the existence of a different conception of rights does not impact the production of bare life. Regardless of how we conceive of them, rights are just abstract entitlements that, given a state of exception, can be suspended at will by the very same states that profess a belief in the universality and inalienability of these rights! The juridical mechanisms that in China are used to produce bare life are not affected by the existence of a different conception of rights. The PRC recognizes everybody’s equality before the law. However, rights can be suspended on the grounds of one’s potential to pose either a direct threat to the regime or an indirect menace to it. In principle, a change in the conception of rights, or the existence of a more assertive judiciary, would not necessarily eliminate the production of bare life. Perhaps a more sophisticated legal reasoning and a more sophisticated drafting technique could

Golden 2007. Council of Europe 2008. I have to thank Marina Chernysh, a student of mine, for making me aware of this case. 10 11

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yield legal constructs that, as in the case of the Latvian noncitizens or the illegal enemy combatant, may be used to create new and different lawless spaces. A democratic transition would undoubtedly induce a change in those mechanisms used to produce bare life, and in the existing modes of bare life, too. Yet the empirical evidence available in liberal-democratic systems has not sufficiently proven that a democratic transition would effect a disappearance of zoe. 8.6

The Power and Limitations of Grand Theory

This controversial theoretical approach possesses an explanatory and predictive power that has shed light on different dimensions of criminal justice in the PRC. Explanatory power is closely linked to a theory’s level of abstraction. The choice to adopt a low level of abstraction can lead to framing phenomena as unique,12 with the emphasis falling on those cultural, institutional, and historical differences existing between China and the West. At this point, one could easily explain the existence of a sphere of lawlessness with the familiar motives of culture, the existence of the Communist party, or history. Other possible explanations would include a lack of legal reform, rights consciousness, or empowerment. Some of these conclusions would be, to a certain extent, built in any analysis marked by an excessive empiricism. Generally speaking, empiricism has been the hallmark of the study of administrative detention, with some rare exceptions.13 While this choice has been valuable to unearth factual knowledge about this under-researched sector of China’s political-legal sphere, it cannot uncover phenomena that are systemic and highly resilient to transience. What constitutes an integral part of the criminal justice system would, therefore, be conceived of as a temporary aberration. A logical hypothesis at this point would entail a future disappearance of lawlessness. This hypothesis would unfortunately prove invalid. A similar reasoning was articulated thirty-three years ago by Jerome Alan Cohen in relation to the impact of political transition on the criminal process:

12 13

Sartori 1970. Biddulph 2007.

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chapter eight The police and the Party, supplemented by the military whenever public order is seriously threatened, will continue to enjoy sufficient flexibility to operate an essentially inquisitorial system. In both the PRC and the ROC self-constituted governing elites are determined not only to mobilize the people and resources of a nation that has an authoritarian heritage but also to permit no challenge to their rule. In these circumstances the prospects for major change in the criminal process must remain modest.14

Cohen’s reasoning identified two features of the state of exception well before Agamben articulated his paradigm: the contiguity among political, military, and administrative powers, and the need for flexible measures to face challenges to political power broadly understood. In the last thirty years, the criminal process has undergone various reforms, but these factors are still at play in the exceptional zones of China’s criminal justice system. Zones of exception are eventually coterminous with sovereign power, the power of those self-constituted governing elites that have retreated from society, that tolerate a certain freedom, resistance, and even opposition, but do not yet allow challenges to their exclusive domain. Authoritarian heritage apart, legal exceptionalism should be considered as a necessary component of power, which in China will take on indigenous forms. Accordingly, the resilience of these areas of lawlessness can be also accounted for by the absence of viable alternatives, given the features of the Chinese state. In the absence of a genuine and functioning system of checks and balances, a drastic reduction in CDI powers could be counterproductive. In the absence of CDI powers, existing links between the party and the judiciary would allow individual CCP members a power to interfere in investigations. Investigations would be conducted by formally independent organs, but the majority of prosecutors would still hold a party membership, as the party would still provide a valuable channel for social mobility. Unlike the current situation, prosecutors would have to make the difficult choice between indicting corrupt CCP officials and potentially risking their careers and reputations, or exempting these officials from prosecution. As unfair and as politicized as it may be, the current system at least avoids any demonization of prosecutors and judges as a group by powerful corrupt officials. Given that prosecutors and judges should take into account opinions issued from CDIs, they can investigate some cases of corruption with relative ease, and know 14

Cohen 1977: 355.

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that fulfilling their duty will not put them at risk of reprisals. Under a different scenario, systematic attacks to the judiciary may disrupt the administration of criminal justice. An even more fearful scenario could be a generalized collusion among politics, organized criminal groups, and the judiciary. Other forms of arbitrary detention respond to the demands of citizens for increased security and harsher punishments15 and lead to confining minor offenders to those places that law abiding, middle-class citizens never see. Criminalizing their behavior would not just result in harsher punishments,16 it would also go against the basic principle of PRC criminal legislation, whereby a given conduct constitutes a crime only if it causes a certain degree of social harm.17 Reliance on this approach allows for the formulation of realistic predictions about the evolution of exceptional measures: 1. In the absence of alternative mechanisms, the abolition of any administrative detention measure may lead to their revival under a different guise, provided that a group similar to the one for which the measure was originally devised still exists. 2. In the presence of alternative mechanisms, abolition of any administrative detention measure may really cause their disappearance, provided that unwanted groups have been eliminated (i.e., by providing free housing and vocational training to the homeless) or that they can be managed through measures that allow them to enjoy their rights. 3. Reform of administrative detention measures can result in their transition to the formal criminal justice system, albeit in a different form, rather than in their actual abolition. The case of shelter for deportation illustrates the first possibility, our understanding of which has been limited by the lack of theory-driven analyses. Since its very beginning, the use of administrative detention to control migration flows was somehow considered uniquely Chinese. As a result, our attempts to understand this strange phenomenon have led us to examine various features of the PRC political, economic, and legal system. Because this measure originated to control population

15 16 17

Dutton and Lee 1993. Peerenboom 2004. Article 13, CL 1996; Gao and Ma 2000: 47.

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movements, changes in shelter for deportation took place only as the planning system vanished. Around the mid-1990s, this measure became partially voluntary. In 2003, it was abolished. At this point, it was easy to conclude that shelter for deportation no more existed, in this or any other guise. Taking a broader theoretical stance would have unveiled a different scenario. The use of administrative detention on migrants would have been regarded as the norm rather than something uniquely Chinese. Therefore, in one form or another, this measure could have persisted in spite of its formal abolition. Shelter for deportation, in fact, was targeted at a broad group composed of migrants, vagrants, beggars, and molest petitioners. Given that economic reform required a mobile and cheap labor force, largely composed by rural migrants, sooner or later shelter for deportation may have changed. Migration flows may have been managed through noncustodial measures, if these were more rational and efficient. One or more conditions had, however, to be met: restrictions on internal migration had to be eased; reforms had to be called for; civil administrations were to give up some powers and accept reform, and so forth. Migrants had an inherent potential to become integrated in the political body. Vagrants, beggars, and petitioners instead lacked this potential. They were furthermore regarded as unwanted. It was therefore foreseeable that custodial measures would have still been used on them. In fact, the 2003 abolition of shelter for deportation induced the birth of different measures. First, local governments gave chengguan the power to persuade vagrants and beggars to seek voluntary aid and to perform so-called “clean-ups” before political meetings. Second, molest petitioners were represented as suffering from mental illnesses or simply locked up in informal detention facilities before their repatriation. Grand theory is not, however, a magical wand. To understand the limitations of this theoretical approach, the best place to start is with Michael Dutton’s Policing Chinese Politics, a work to which I have made a claim of intellectual kinship. A notable difference between Dutton’s work and mine concerns one crucial episode in Chinese history, the Mao-Deng transition. Here Dutton’s work concludes and mine begins. To Dutton, the Mao-Deng transition marked a shift to contractualism and the seductive power of the market. These joint forces carved out a political space and signaled the end of those political passions that motivated revolutionary violence and a demise of ideology. The rise

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of fictions about contractual equality and marketization had important consequences in police work. This variable is absent from my analysis. In this respect, most variables, other than sovereign power and the lives of its subjects, are reduced to zero. The importance of the Mao-Deng transition is flattened, so to speak, and so are the renewed demands placed on the police. These demands eventually induced the adoption of the policy of comprehensive management of public order, of which administrative detention is an important component. While the existence of this causal chain is undisputable, an equally uncontestable fact is that the new demands, and also the use of governance mechanisms premised on the contract, were decided not by the police themselves. It may be argued that my conception of sovereign power suffers from an excessive emphasis on monism and a total neglect of resistance, while, in reality, internal divisions and cleavages are commonplace in the CCP, and power is routinely met with resistance. Conceptualizations of sovereign power as a loose grouping of factions are valuable tools in the analysis of elite politics and policy shifts. In the case of administrative detention, strong continuities that cannot be accounted for by pluralistic analytical frameworks can instead be observed. Under my theoretical orientation, resistance comes into play exclusively as something to manage, manipulate, or suppress in increasingly refined and subtle ways. While resistance is pervasive throughout Chinese society, it has little room for maneuvering those branches of the law that regulate the relationship between individual entities and the (party-)state. This relationship eventually concerns the state’s choice to impose punishments to achieve social order. Society has very little input on this matter. Those areas of the law that regulate the relationship between individuals in the absence of an intervention by the state relate, by definition, to a different realm. In this realm, individuals have indeed been turned into bearers of obligations voluntary entered into through a contract, actors in the emerging civil sphere, and consumers. The addition of these layers of identity has obscured the fact that citizens are still subjects. While citizens can, indeed, resist power, forms of resistance that arise to the level of threats are managed through zones of exception. A petitioner enjoys the right to enter any contractual obligation he wishes and be equal to other parties to the contract. He can resist power by filing a petition against local officials. But he knows he will be arbitrarily detained if he organizes a collective protest.

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While contractualization has affected key governmental actors such as the police, its more general outcome has been to replace one economic coordination mechanism—the plan—with a different one. This change has not taken away the police’s prerogative to exert coercion on behalf of sovereign power. Further changes have altered governmental functions as well as the ideology, role, and composition of the party. The CCP’s enduring claim to represent the will of the people, however, persists. This specific claim is still not the object of a contractual choice or any other kind of negotiation between political and societal actors. In this claim sovereign power is rooted and from this claim stems the decision on the exception. Even if a contractual choice would be possible, such a choice would never be inclusive. Power would still set criteria to determine who can enjoy political life (bios), and who should be reduced to bare life (zoe). Furthermore, a social contract would still give “the body politic an absolute power over all its members”.18 The nexus between sovereign power and the law eventually leads to the question, are we witnessing a form of sovereignty that exists beyond the purview of classic as well as modern theories? Only unearthing the qualities and attributes of sovereignty as it exists in the PRC will allow us to discover what else, if anything, lies behind the power to decide on the exception.

18

Rousseau 1968: 74.

LIST OF LEGAL DOCUMENTS

CHINESE COMMUNIST PARTY National Party Congress, Central Committee Statute of the Chinese Communist Party (Zhongguo Gongchandang dangzhan 中国共产党党章), issued on 23 July 1922 and effective from the same date. First Amendment to the Statute of the Chinese Communist Party (Zhongguo Gongchandang diyici xiuzheng zhangcheng 中国共产党第一次修 正章程), issued on 10 July 1923 and effective from 20 July 1923. Statute of the Chinese Communist Party (Zhongguo Gongchandang dangzhan 中国共产党党章), issued on 1 June 1927 and effective from the same date. Decision on the Third Amendment to the Statute of the Chinese Communist Party (Zhongguo Gongchandang disanci xiuzheng zhangcheng jue’an 中国共产党第三次修正章程决案), issued on 1 June 1927 and effective from the same date. Statute of the Chinese Communist Party (Zhongguo Gongchandang dangzhan 中国共产党党章), issued on 1 July 1928 and effective from the same date. Chinese Communist Party Central Committee decision on establishing central and local commissions for discipline inspection (Zhonggong Zhongyang guanyu chengli zhongyang ji geji dangde jilü jiancha weiyuanhuide jueding 中共中央关于成立中央及各级党的纪律检查委员会的决定), issued on 9 November 1949 and effective from the same date. Measures and criteria of the Chinese Communist Party Central Committee to differentiate the treatment of industrial and commercial households during the “five anti” movement (Zhonggong Zhongyang guanyu zai “wufan” yundongzhong dui gongshanghu fenlei chulide biaozhun he banfa

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中共中央关于在五反运动中对工商户分类处理的标准和办法), issued on 5 March 1952 and effective from the same date, reproduced in Zhonggong Zhongyang Wenxian Yanjiushi 1992: 112–15. National Congress of the Chinese Communist Party decision on establishing central and local supervision committees (Zhongguo Gongchandang quangguo daibiao dahui guanyu chengli dangde zhongyang he difang geji jiancha weiyuanhuide jueding 中国共产党全国国代表大会关于成立党的中央 和地方各级监察委员会的决定), issued on 31 March 1955 and effective from the same date. Tenth Plenum of the Eighth Central Committee of the Chinese Communist Party decision on strengthening discipline inspection organs (Zhongguo Gongchandang dibajie zhongyang weiyuanhui dishici quanti huiyi guanyu jiaqiang dangde jiancha jiguande jueding 中国共产党第八节中央 委员会第十次全体会议关于加强党的检查机关的决定), issued on 27 September 1962 and effective from the same date. Reproduced in Zhonggong Zhongyang Wenxian Yanjiushi 1992: 572–74. Criteria on Inner-Party Political Life (Guanyu dangnei zhengzhi shenghuode ruogan zhunce 关于党内政治生活的若干准则), issued on 29 February 1980 and effective from the same date. Reproduced in Zhonggong Zhongyang Dangxiao Dangjian Jiaojiushi 1981: 53–74. Provisional regulations on the procedure to draft laws and regulations internal to the Chinese Communist Party (Zhongguo Gongchandang dangnei fagui zhiding chengxu zanxing tiaoli 中国共产党党内法规制定程序暂 行条例), issued on 31 July 1990 and effective from the same date. Chinese Communist Party regulations on handling organizations’ documents (Zhongguo Gongchandang jiguan gongwen chuli tiaoli 中国共产 党机关公文处理条例), issued on 3 May 1996 and effective from the same date. Chinese Communist Party regulations on the work of case investigation by discipline inspection organs (Zhongguo Gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli 中国共产党纪律检查机关案件检查 工作条例), issued on 25 March 1994 and effective from the same date.

list of legal documents

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Reproduced in Zhongguo gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli shiyi bianxiezu 2003. Some experimental criteria on clean governance of Chinese Communist Party members and leading cadres (Zhongguo Gongchandang dangyuan lingdao ganbu lianjie congzheng ruogan zhunze shixing 中国共产党党员领导 干部廉洁从政若干准则试行), issued on 28 March 1997 and effective from the same date. Repealed on 30 December 2009 by the Criteria on clean governance of Chinese Communist Party members and leading cadres (Zhongguo Gongchandang dangyuan lingdao ganbu lianjie congzheng ruogan zhunze 中国共产党党员领导干部廉洁从政若干准则). Central Committee circular on forbidding the involvement of party members in the practice of the “Falun Dafa” (Zhonggong Zhongyang guanyu gongchan dangyuan buzhun xiulian “Falun Dafa” de tongzhi 中共中 央关于共产党员不准修炼“法轮大法”的通知), 19 July 1999 and effective from the same date. Chinese Communist Party regulations on discipline penalties (Zhongguo Gongchandang jilü chufen tiaoli 中国共产党纪律处分条例), issued on 31 December 2003 and effective from the same date. Chinese Communist Party regulations on guaranteeing the rights of members of the Communist Party of China (Zhongguo Gongchandang dangyuan quanli baozhan tiaoli 中国共产党党员权利保障条例), issued on 22 September 2004 and effective from the same date. Reproduced in Zhongguo Gongchandang dangyuan quanli baozhan tiaoli 2004. Statute of the Chinese Communist Party (Zhongguo Gongchandang zhancheng 中国共产党章程), issued on 21 October 2007 and effective from the same date. Central Commission for Discipline Inspection Chinese Communist Party Central Commission for Discipline Inspection regulations on case examination work (Zhongguo Gongchandang Jilü jiancha jiguan anjian shenli gongzuo tiaoli 中国共产党纪律检查机关案件 审理工作条例), issued on 14 July 1987 and effective from the same

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date. Reproduced in Zhongyang Jiwei Jianchabu Faguishi, Xuanjiaoshi 1996: 321–31. Chinese Communist Party Central Commission for Discipline Inspection experimental rules on punishing violations of the law and of discipline committed by party members during their economic activities (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu gongchan dangyuan zai jingji fangmiande weifa weiji chufende ruogan guiding shixing 中共中央纪律 检查委员会关于共产党员在经济方面的违法违纪处分的若干规定 实行), issued on 1 July 1990 and effective from the same date. Reproduced in Zhongyang jiwei jijian jiancha yanjiusuo 2002: 264–76. Chinese Communist Party Central Commission for Discipline Inspection rules on the gathering, examination and use of evidence during investigations on cases of violations of discipline (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu chachu dangyuan weiji anjianzhong shouji, jianbie, shiyong zhenjude juti guiding 中共中央纪律检查委员会关于查处 党员违纪案件中收集，鉴别，使用证据的具体规定), issued on 23 July 1991 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 137–41. Chinese Communist Party Central Commission for Discipline Inspection regulations on case investigation work (Zhonggong Gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli 中国共产党纪律检查机关案件 检查工作条例), issued on 25 March 1994 and effective from 1 May 1994. Reproduced in Jijian jiancha jiguan anjian jiancha anjian shenli changyong fagui fenlei shouce bianxiezu 2004: 193–200. Chinese Communist Party Central Commission for Discipline Inspection General Office circular transmitting the Hainan Party Committee General Office circular on some opinions on province-level leading cadres clean governance, self-restraint, preventing and countering corruption (Zhonggong Zhongyang Jiwei Bangongting guanyu yinfa Zhonggong Hainan shengwei bangongting guanyu yinfa shengji lingdao ganbu lianjie zilü jufu bianbaide ruogan yijiande tongzhide tongbao 中共中央纪委办公厅关于印 发中共海南省委办公厅关于印发省级领导干部廉洁自律拒腐防变 的若干意见的通知的通报), issued on 8 October 1995 and effective from the same date. Reproduced in Zhongyang Jiwei Bangongting 2003: 230–33.

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Chinese Communist Party Central Commission for Discipline Inspection implementing measures on reiterating [prohibitions] and establishing a five-points supervision system (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu chongshen he jianli dangnei jiandu wuxian zhidude shishi banfa 中共中央纪律检查委员会关于重申和建立党内监督五项制度 的实施办法), issued on 4 February 1997 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 201–6. Chinese Communist Party Central Commission for Discipline Inspection reply on the monetary threshold of discipline sanctions for those responsible of the mistakes of graft and bribery (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu dui fanyou tanwu, huilu cuowu dangji chufende shu’e jiexiang wentide qingshide dafu 中共中央纪律检查委员会关于对犯 有贪污，贿赂错误党纪处分的数额界限问题的请示的答复), issued on 1 September 1997 and effective from the same date. Reproduced in Dangzheng ganbu dangnei jiandu he jilü chufen guiding 2004: 222. Circular regarding some problems in the lawful use of “liangzhi” and “lianggui” by Commissions for Discipline Inspection (Guanyu jijian jiancha jiguan yifa caiyong “liangzhi”, “lianggui” cuoshi ruogan wentide tongzhi 关于纪检监察机关依法采用“两指”, “两规”措施若干问题的通知), issued on 5 June 1998 and effective from the same date. Reproduced in Zhonggong Zhongyang Jiwei Faguishi and Jianchabu Faguishi 1998: 723–24. Experimental measure on the use of “lianggui” by Commissions for Discipline Inspection ( Jijian jiaguan shiyong “lianggui’ cuoshide banfa (shixing) 纪检监察机关使用 “两规” 措施的办法试行), issued on 1 January 2000 and effective from the same date. Reproduced in Zhonggong Sichuansheng jiwei zhu jiaotongting jijianzu and Sichuansheng jianchating zhu jiaotongting jianchazu 2003: 140–142. Chinese Communist Party Central Commission for Discipline Inspection reply to the question on the use of “lianggui” by commissions for discipline inspection established in professional units directly controlled by ministries and provinces (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui guanyu sheng, bu zhishu shiye danwei jiwei, jijianzu kefou shiyong “lianggui” cuoshide dafu 中共中央纪律检查委员会关于省, 部直属事业单位

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纪委, 纪检组可否使用“两规”措施的答复), issued on 4 September 2000 and effective from the same date. Reproduced in Zhonggong Zhongyang Jiwei Faguishi and Jianchabu Faguishi 2000: 758. Chinese Communist Party Central Commission for Discipline Inspection circular on further standardising “liangzhi” (Zhonggong Zhongyang Jiwei guanyu jinyibu guifan shiyong “liangzhi” cuoshide tongzhi 中共中央纪 委关于进一步规范使用“两指”措施的通知), issued on 28 September 2001 and effective from the same date. Reproduced in Zhonggong Sichuansheng jiwei zhu jiaotongting jijianzu and Sichuansheng jianchating zhu jiaotongting jianchazu 2003: 144–47. Chinese Communist Party Central Commission for Discipline Inspection opinion on strengthening the coordination in case investigation and further improving and standardizing lianggui (Zhonggong Zhongyang Jiwei guanyu wanshan chaban anjian xietiao jizhi jinyibu gaijin he guifan lianggui cuoshide yijian 中央纪委关于完善查办案件协调机制已进一步改进和 规范两规措施的意见), issued on 20 April 2005 and effective from the same date. On file with the author. Central Commission for Discipline Inspection opinion about party discipline organs investigating cases in strict compliance with the law and discipline norms (Zhongyang Jilü jiancha weiyuanhui guanyu jijian jiancha jiguan yangge yiji yifa ban’ande yijian 中央纪律检查委员会关于纪检 监察机关严格依纪依法办案的意见), 2005. No issue date available Reproduced in Xuyixian 2009. Central Political-Legal Commission Chinese Communist Party Central Political-Legal Commission circular on using the legal weapon to severely punish criminal activities and activities that violate the law performed by the Falungong and other evil cult organizations (Zhonggong Zhongyang Zhengfa Weiyuanhui guanyu chongfen yunyong falü wuqi chengzhi Falungong deng xiejiao zuzhi weifa fanzui huodongde tongzhi 中共中央政法委员会关于充分运用法律武器惩 治法轮功等邪教组织违法犯罪活动的通知), issued on 5 November 1999 and effective from the same date.

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Central Commission for Discipline Inspection opinion about party discipline organs investigating cases in strict compliance with the law and discipline norms (Zhongyang Jilü jiancha weiyuanhui guanyu jijian jiancha jiguan yangge yiji yifa ban’ande yijian 中央纪律检查委员会关于纪检 监察机关严格依纪依法办案的意见), 2005. No issue date available Reproduced in Xuyixian 2009. Joint Documents Central Commission for Discipline Inspection, Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security circular on the exchange of case notes among discipline inspection organs, courts, procuracies and public security organs during case investigations (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui, Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’anbu guanyu jilü jiancha jiguan yu fayuan, jianchayuan, gong’an jiguan zai chachu anjian guochengzhong huxiang tigong youguan anjian cailiaode tongzhi 中共中央纪律检查委员会，最高人民法 院，最高人民检察院，公安部关于纪律检查机关与法院， 检察院, 公安机关哉查处案件过程中互相提供有关案件材料的通知), issued on 17 September 1989 and effective from the same date. Central Committee of the Chinese Communist Party and State Council decision on strengthening the comprehensive management of public order (Zhonggong Zhongyang, Guowuyuan guanyu jiaqiang shehui zhi’an zonghe zhilide jueding 中共中央，国务院关于加强社会治安综合治理的决定), issued on 19 February 1991 and effective from the same date. General Office of the Central Committee of the Chinese Communist Party and General Office of the State Council circular issuing the implementation plan for the divestiture of commercial enterprises by political-legal organs (Zhonggong Zhongyang Bangongting, Guowuyuan Bangongting guanyu yinfa zhengfa jiguan buzai congshi jingshang huodongde shishi fang’ande tongzhi 中共中央办公厅，国务院办公厅关于印发政法机关 不再从事经商活动的实施方案的通知), issued on 28 October 1998 and effective from the same date. Reproduced in Sifabu Jianyu Guanliju 2003: 1–8.

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General Office of the Central Committee of the Chinese Communist Party and General Office of the State Council rules on standardizing the management of enterprises retained by political-legal organs (Zhonggong Zhongyang Bangongting, Guowuyuan Bangongting guanyu zhengfa jiguan baoliu qiye guifan guanli ruogan guiding 中共中央办公厅，国务院办 公厅关于政法机关保留企业规范管理若干规定), issued on 14 May 1999 and effective from the same date. Reproduced in Sifabu Jianyu Guanliju 2003: 340–43. Central Commission for Discipline Inspection and Central Department for Organization opinion on handling Communist Party members who are involved in the practice of the “Falun Dafa” and other problems (Zhonggong Zhongyang Jilü Jiancha Weiyuanhui, Zhonggong Zhongyang Zuzhibu guanyu dui gongchan dangyuan xiulian “Falun Dafa” deng wentide ruogan chuli yijian 中共中央纪律检查委员会、中共中央组织部关于 对共产党员修炼“法轮大法”等问题的若干处理意见), issued on 6 August 1999 and effective from the same date. Ministry of Public Security, Ministry of Construction, Ministry of Culture, State Administration of Industry and Trade, State Administration for Sports plan on the work of cleaning up illegal private security organizations and regulating the market of security services (Gong’anbu, Jianshebu, Wenhuabu, Guojia Gongshang Guanli Zongju, Guojia Tiyu Zongju guanyu qingli feifa bao’an zuzhi guifan bao’an fuwu shichang zhuanxiang zhengzhi gongzuo fang’an 公安部，建设部，文化部，国家工商管理总局，国 家体育总局关于清理非法保安组织规范保安服务市场专项整治工 作方案), issued on 22 November 2002 and effective from the same day. Repealed on 6 November 2007. Local-Level Party Regulations and Rules Anshan Commission for Discipline Inspection rules on the responsibilities of guardians in “lianggui” and “liangzhi” (Anshan jiwei guanyu “lianggui”, “liangzhi” jianhuren zhizede ruogan guiding 鞍山纪委关于”两 规”， “两指”监护人职责的若干规定), issued on 26 April 2003 and effective from the same date. Shaanxi Province Party Committee Commission for Discipline Inspection measures on implementing the CCDI opinion on strengthening the coordination mechanisms in case investigation and on further

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regulating the measure of lianggui (Zhonggong Shaanxisheng Jilü Jiancha Weiyuanhui guanyu guanche shishi Zhongyang Jiwei guanyu wanshan chaban anjian xietiao jizhi, jinyibu gaijin he guifan lianggui cuoshide yijian shishi banfa 中共陕西省纪律检查委员会关于贯彻实施中央纪委关于完善查办 案件协调机制进一步改进和规范两规措施的意见实施办法), issued on 11 January 2006 and effective from the same date. On file with the author. Shijiazhuang Commission for Discipline Inspection and Shijiazhuang Supervision Office rules on further standardising the use of lianggui and liangzhi (Shijiazhuangshi jiwei, Shijiazhuangshi Jianchaju guanyu jinyibu guifan shiyong lianggui, liangzhi cuoshide guiding 石家庄市纪委，石家庄市监察 局关于进一步规范使用两规，两指措施的规定), issued on 25 May 2004 and effective from the same date. Reproduced in Shijiazhuang Weishengting 2007. National Level Laws, Decisions and Regulations Basic Laws Common Program of the Political Consultative Conference of the Chinese People (Zhongguo Renmin Zhengzhi Xieshang Huiyi gongtong gangling 中国人民政治协商会议共同纲领), issued on 29 September 1949 and effective from the same date. Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 20 September 1954 and effective from the same date. Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 17 January 1975 and effective from the same date. Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 1978 and effective from the same date. Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 4 December 1982 and effective from the same date.

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Constitution of the People’s Republic of China (Zhonghua Renmin Gongheguo Xianfa 中华人民共和国宪法), issued on 4 December 1982 and effective from the same date. As amended on 14 March 2004. Criminal Law of the People’s Republic of China (Zhonghua Renmin Gongheguo Xingfa 中华人民共和国刑法), issued on 1 July 1979 and effective from 1 January 1980. As revised on 14 March 1997; 25 December 1999; 31 August 2001; 29 December 2001; 28 December 2002; 28 February 2005; 29 June 2006; 28 February 2009. People’s Republic of China Organic Law of the local people’s congresses and local people’s governments (Zhonghua Renmin Gongheguo difang geji renmin daibiao dahui he difang geji renmin zhengfu zuzhifa 中华 人民共和国地方各级代表大会和地方各级人民政府组织法), issued on 1 July 1979 and effective from the same date, as amended on 27 October 2004. Criminal Procedure Law of the People’s Republic of China (Zhonghua Renmin Gongheguo Xingshi Susongfa 中华人民共和国刑事诉讼法), issued on 1 July 1979 and effective from 1 January 1980. Criminal Procedure Law of the People’s Republic of China (Zhonghua Renmin Gongheguo Xingshi Susongfa 中华人民共和国刑事诉讼法), issued on 1 July 1979 and effective from 1 January 1980. As amended on 17 March 1996. People’s Republic of China Organic Law on rural residents’ committees (for trial implementation) (Zhonghua Renmin Gongheguo cunmin weiyuanhui zuzhifa (shixing) 中华人民共和国村民委员会组织法(试行)), issued on 24 November 1987 and effective from 1 January 1988. People’s Republic of China Organic Law on urban residents’ committees (Zhonghua Renmin Gongheguo chengshi jumin weiyuanhui zuzhifa 中华人 民共和国城市居民委员会组织法), issued on 26 December 1989 and effective from 1 January 1990. People’s Republic of China Organic Law on rural residents’ committees (Zhonghua Renmin Gongheguo cunmin weiyuanhui zuzhifa 中华人民共 和国村民委员会组织法), issued on 4 November 1998 and effective from the same date.

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Laws People’s Republic of China Law on the Agrarian Reform (Zhonghua Renmin Gongheguo tudi gaigefa 中华人民共和国土地改革法), issued on 28 June 1950 and effective from the same date. Repealed on 24 November 1987. People’s Republic of China Law on the Prevention and Treatment of Infectious Diseases (Zhonghua Renmin Gongheguo chuanranbing fangzhifa 中华人民共和国传染病防治法), issued on 21 February 1989, as amended on 28 August 2004, effective from 1 December 2004. People’s Republic of China Law on Administrative Litigation (Zhonghua Renmin Gongheguo xingzheng susongfa 中华人民共和国行政诉讼法), issued on 4 April 1989 and effective from 1 October 1990. People’s Republic of China Law on Administrative Procedure (Zhonghua Renmin Gongheguo xingzheng susongfa 中华人民共和国行政诉讼法), issued on 4 April 1989 and effective from 1 October 1990. People’s Republic of China Law on Assemblies, Processions and Demonstrations (Zhonghua Renmin Gongheguo jihui youxing shiweifa 中华人民共 和国集会游行示威法), issued on 31 October 1989 and effective from the same date. People’s Republic of China Law on Prisons (Zhonghua Renmin Gongheguo jianyufa 中华人民共和国监狱法), issued on 29 December 1994 and effective from the same date. People’s Republic of China Law on Police (Zhonghua Renmin Gongheguo jingchafa 中华人民共和国警察法), issued on 28 February 1995 and effective from the same date. People’s Republic of China Law on Martial Law (Zhonghua Renmin Gongheguo jieyanfa 中华人民共和国戒严法), issued on 1 March 1996 and effective from the same date. People’s Republic of China Law on Administrative Penalties (Zhonghua Renmin Gongheguo xingzheng chufafa 中华人民共和国行政处罚法), issued on 17 March 1996 and effective from 1 October 1996.

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People’s Republic of China Law on Administrative Supervision (Zhonghua Renmin Gongheguo xingzheng jianchafa 中华人民共和国行政监察法), issued on 9 May 1997 and effective from the same date. People’s Republic of China Law on Law-Making (Zhonghua Renmin Gongheguo lifafa 中华人民共和国立法法), issued on 15 March 2000 and effective from 1 July 2000. People’s Republic of China Law on Road Traffic Safety (Zhonghua Renmin Gongheguo daolu jiaotong anquanfa 中华人民共和国道路交通安 全法), issued on 28 October 2003 and effective from 1 May 2004, as amended on 29 December 2007. People’s Republic of China Law on Security Administration Punishments (Zhonghua Renmin Gongheguo zhi’an guanli chufafa 中华人民共和 国治安管理处罚法), issued on 28 August 2005 and effective from 1 March 2006. People’s Republic of China Law on Emergency Response (Zhonghua Renmin Gongheguo tufa shijian yingduifa 中华人民共和国突发事件应对法), issued on 30 August 2007 and effective from 1 November 2007. People’s Republic of China Law on Prohibiting Drugs (Zhonghua Renmin Gongheguo jindufa 中华人民共和国禁毒法), issued on 29 December 2007 and effective from 1 June 2008. Decisions Standing Committee of the National People’s Congress decision on public surveillance of counter-revolutionary elements having to be normally decided by the people’s courts (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu dui fangeming fenzide guanzhi yilü you renmin fayuan panjuede jueding 全国人民代表大会常务委员会关于对反革命 分字的管制一律由人民法院判决的决定), issued on 16 November 1956 and effective from the same date. First Plenary Session of the Second National People’s Congress of the People’s Republic of China decision on suppressing the Ministry of Justice and Ministry of Supervision (Zhonghua Renmin Gongheguo di’erjie quangguo renmin daibiao daihui diyici quanhui guanyu chexiao sifabu, jianchabude jueding

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中华人民共和国第二节人民代表大会第一次全会关于撤销司法部, 监察部的决定), issued on 28 April 1959 and effective from the same date. Reproduced in Renmin Ribao 1959: 4, 29 April. Standing Committee of the National People’s Congress decision on prohibiting drugs (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu jindude jueding 全国人民代表大会常务委员会关于禁毒的决定), issued on 28 December 1990 and effective from the same date. Standing Committee of the National People’s Congress decision on reform and reeducation through labor inmates who escape from custody or are recidivists (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu chuli taopao huozhe chongxin fanzuide laogaifan he laojiao renyuande jueding 全国人民代表大会常务委员会关于处理逃跑或者重新犯罪 的劳改犯和劳教人员的决定), issued on 10 June 1981 and effective from the same date. Standing Committee of the National People’s Congress decision on the use of police powers of investigation, detention, preliminary examination, and arrest by state security organs (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu guojia anquan jiguan shixing gong’an jiguande zhencha, juliu, yushen he zhixing daibude zhiquande jueding 全国人民代表大 会常务委员会关于国家安全机关行使公安机关的侦查、拘留、预 审和执行逮捕的职权的决定), issued on 2 September 1983 and effective from the same date. Standing Committee of the National People’s Congress decision on establishing the Ministry of Supervision of the People’s Republic of China (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu sheli Zhonghua Renmin Gongheguo Jianchabude jueding 中华人民共和国代表大 会常务委员会关于设立中华人民共和国监察部的决定), issued on 2 December 1986 and effective from the same date. Reproduced in Zhonghua Renmin Gongheguo Jianchabu 1993: 3–4. Standing Committee of the National People’s Congress decision on strengthening the comprehensive management of public order (Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui guanyu jiaqiang shehui zhi’an zonghe zhilide jueding 全国人民代表大会常务委员会关于加强社会治 安综合治理的决定), issued on 3 February 1991 and effective from the same date.

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Regulations People’s Republic of China Organic Regulations on urban residents’ committees (Zhonghua Renmin Gongheguo chengshi jumin weiyuanhui zuzhi tiaoli 中华人民共和国城市居民委员会组织条例), issued on 21 December 1954 and effective from the same date. People’s Republic of China Regulations on Security Administration Punishments (Zhonghua Renmin Gongheguo zhi’an guanli chufa tiaoli 中华人 民共和国治安管理处罚条例), issued on 22 October 1957 and effective from the same date. Repealed on 1 January 1987. People’s Republic of China Regulations on Arrest and Detention (Zhonghua Renmin Gongheguo daibu juliu tiaoli 中华人民共和国逮捕拘留 条例), issued on 23 February 1979 and effective from the same date. Repealed on 1 January 1997. People’s Republic of China Regulations on Security Administration Punishments (Zhonghua Renmin Gongheguo zhi’an guanli chufa tiaoli 中华人 民共和国治安管理处罚条例), issued on 12 May 1994 and effective from the same date. Repealed on 1 March 2006. Administrative Regulations and Rules, Normative Documents Communist Base Areas Jinchaji border area temporary measures on cracking down on opium smuggling ( Jinchaji bianqu jisi yapian zanxing banfa 晋察冀边区缉私鸦片 暂行办法), issued on 21 November 1945 and effective from the same date. Reproduced in Qiu 1998: 781–82. Jinjiluyu temporary regulations on prohibiting drugs ( Jinjiluyu bianqu dupin zhizui zanxing tiaoli 晋冀鲁豫边区毒品治罪暂行条例), issued on 15 July 1941 and effective from 15 July, Thirty-seventh year of the Republic of China. Reproduced in Qiu 1998: 782–83. Jinxibei temporary regulations on prohibiting opium ( Jinxibei jinyan zhizui zanxing tiaoli 晋西北禁烟治罪暂行条例), issued on 1 January 1941 and effective from the same date. Reproduced in Qiu 1998: 792.

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Liaoji anti-opium and anti-drug regulations (Liaojiqu jinyan jindu tiaoli 辽吉区禁烟禁毒条例), issued on 25 August 1946 and effective from the same date. Reproduced in Qiu 1998: 786. Shandong temporary regulations on prohibiting drugs (Shandongsheng jindu zhizui zanxing tiaoli 山东省禁毒治罪暂行条例), issued on in February 1943 and effective from 1 May 1943. Reproduced in Qiu 1998: 785. Shanganning border area draft anti-opium and anti-drug regulations (Shanganning bianqu jinyan jindu tiaoli (cao’an) 陕甘宁边区禁烟禁毒条例 草案), reproduced in Qiu 1998: 783–84. Subei temporary anti-opium and anti-drug measures (Subeiqu jinyan jindu zanxing banfa 苏北区禁烟禁毒暂行办法), no issue date. Reproduced in Qiu 1998: 786–87. Suiyuan temporary measures on giving up drugs (Suiyuansheng jiexi dupin zanxing banfa 绥远省戒吸毒品暂行办法), issued on 20 August 1949 and effective from the same date. Reproduced in Qiu 1998: 787–88. Government Administrative Council Government Administrative Council decision on carrying out internal protection work within financial departments and departments for economics (Zhengwuyuan guanyu zai guojia caizheng jingji bumenzhong jianli baowei gongzuode jueding 政务院关于在国家财政经济部门中建立 保卫工作的决定), issued on 24 March 1950 and effective from the same date. Described in Zhongguo Baowei Gongzuo Shiwu yu Guanli Quanshu Bianweihui, 1996: 369 and ff. Government Administrative Council temporary measures on the handling of criminals who have served their term of reform through labour, and their job arrangement (Zhengwuyuan laodong gaizao fanzui xingman shifang ji anzhi jiuye zanxing chuli banfa 政务院劳动改造犯罪刑 满释放级安置就业暂行处理办法), issued on 26 August 1954 and effective from the same date. Administrative Council order on severely prohibiting opium and drugs (Zhengwuyuan guanyu yanjin yapian yandude tongling 政务院关于严禁鸦片烟毒 的通令), issued on 24 February 1950. Reproduced in Qiu 1998: 824–25.

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Administrative Regions and Military Committees North-East Administrative Region implementing measures on prohibiting opium and drugs (Dongbeiqu jinyan jindu guanche shishi banfa 东北 区禁烟禁毒贯彻实施办法), issued on 13 October 1950 and effective from the same date. Reproduced in Qiu 1998: 826–27. North-West Administrative Region temporary measures on prohibiting opium and drugs (Xibeiqu jinyan jindu zanxing banfa 西北区禁烟禁毒暂 行办法), issued on 16 February 1951. Reproduced in Qiu 1998: 830. South-West Military Committee implementing measures on prohibiting opium and drugs (Xinan junzheng weiyuanhui guanyu jinjue yapian yandude shishi banfa 西南军政委员会关于禁绝鸦片烟毒德实施办法), issued on 31 July 1950 and effective from the same date. Reproduced in Qiu 1998: 825. South-West Military Committee directive on anti-opium and antidrug work (Xinan junzheng weiyuanhui guanyu kaizhan jinyan jindu gongzuode zhishi 西南军政委员会关于开展禁烟禁毒工作的指示), issued on 16 November 1950 and effective from the same date. Reproduced in Qiu 1998: 826–28. State Council Regulations and Rules People’s Republic of China regulations on suppressing counter-revolutionaries (Zhonghua Renmin Gongheguo chengzhi fangeming tiaoli 中华人民 共和国惩治反革命条例), issued on 21 February 1951 and effective from the same date. State Council provisional organic regulations on public order committees, (Guowuyuan zhi’an baowei weiyuanhui zanxing zuzhi tiaoli 国务院 治安保卫委员会暂行组织条例), issued on 27 June 1952 and effective from the same date. State Council supplementary rules about reeducation through labor (Guowuyuan guanyu laodong jiaoyang buchongde guiding 国务院关于劳动 教养补充的规定), issued on 29 January 1979 and effective from the same date.

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People’s Republic of China regulations on administrative supervision (Zhonghua Renmin Gongheguo xingzheng jiancha tiaoli 中华人民共和国行政 监察条例), issued on 9 December 1990 and effective from the same date. Repealed on 9 May 1997. Reproduced in Zhongguo Falü Nianjian Bianjibu 1992: 242–45. State Council regulations on the registration and management of social organisations (Guowuyuan shehui tuanti dengji guanli tiaoli 国务院社 会团体登记管理条例), issued on 25 October 1998 and effective from the same date. People’s Republic of China regulations on the urgent handling of public health emergencies (Zhonghua Renmin Gongheguo tufa gonggong weisheng shijian yingji tiaoli 中华人民共和国突发公共卫生事件应急条例), issued on 9 May 2003 and effective from the same date. State Council Regulations on real estate management (Guowuyuan wuye guanli tiaoli 国务院物业管理条例), issued on 8 June 2003, effective from 1 September 2003, amended on 26 August 2007. State Council measures on the administration of aid to indigent vagrants and beggars in cities (Chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli banfa 城市生活无着的流浪乞讨人员救助管理办 法), issued on 18 June 2003 and effective from 1 August 2003. Draft Regulations on private security companies (Bao’an fuwu gongsi tiaoli cao’an 保安服务公司条例草案), 31 May 2009. State Council regulations on the management of security services (Guowuyuan bao’an fuwu guanli tiaoli 国务院保安服务管理条例), issued on 13 October 2009 and effective from 1 January 2010. Orders State Council of the People’s Republic of China order (Zhonghua Renmin Gongheguo Guowuyuanling 中华人民共和国国务院令), issued on 28 March 1959 and effective from the same date. State Council order on implementing martial law in Lhasa City of Tibet Special Autonomous Region (Guowuyuan guanyu zai Xizang Zizhiqu

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Lasashi shixing jieyande ming 国务院关于在西藏自治区拉萨市实行戒 严的命), issued on 7 March 1989 and effective from the same date. State Council order on implementing martial law in selected districts of Beijing Municipality (Guowuyuan guanyu zai Bejingshi bufen diqu shixing jieyande mingling 国务院关于在北京市部分地区实行戒严的命令), issued on 20 May 1989 and effective from the same date. State Council order on lifting martial law in selected districts of Beijing Municipality (Guowuyuan guanyu jiechu zai Beijingshi bufen diqu jieyande mingling 国务院关于解除在北京市部分地区实行戒严的命令), issued on 11 January 1990 and effective from the same date. Decisions, Circulars and Other Normative Documents State Council circular on merging the two measures of compulsory labour and shelter for examination in reeducation through labor (Guowuyuan guanyu jiang qiangzhi laodong he shourong shencha lianxiang cuoshi tongyiyu laodong jiaoyang de tongzhi 国务院关于将强制劳动和收容审查两 项措施统一于劳动教养的通知), issued on 29 February 1980 and effective from the same date. State Council Experimental measures on reeducation through labor (Guowuyuan Guanyu laodong jiaoyang shixing banfa 国务院关于劳动教养实 行办法), issued on 21 January 1982 and effective from the same date. General Office of the State Council circular issuing the plan determining the functions, internal structure and personnel allocation of the Ministry of Public Security (Gong’anbu bangongting guanyu yinfa gong’anbu zhineng peizhi, neishe jigou he renyuan bianzhi fang’ande tongzhi 公安部办 公厅关于印发公安部只能配置，内设机构和人员编制方案的通知), issued on 24 March 1994 and effective from the same date. State Council measures on compulsory drug rehabilitation (Guowuyuan qiangzhi jiedu banfa 国务院强制戒毒办法), issued on 12 January 1995 and effective from the same date. State Council circular on implementing the Law of the People’s Republic of China on Administrative Penalties (Guowuyuan guanyu guanche shishi Zhonghua Renmin Gongheguo Xingzheng Chufafade tongzhi 国务院关于贯彻

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实施中华人民共和国行政处罚法的通知), issued on 15 April 1996 and effective from the same date. State Council decision on overall advancing administration according to the law, (Guowuyuan guanyu quanmian tuijin yifa xingzhengde jueding 国务 院关于全面推进依法行政的决定), issued on 8 November 1999 and effective from the same date. State Council General Office circular on continuing the work of experimenting with the centralization of administrative punishment power (Guowuyuan Bangongting guanyu jixu zuohao xiangdui jizhong xingzheng chufaquan shidian gongzuode tongzhi 国务院办公厅关于继续做好相对集中 行政处罚权试点工作的通知), issued on 8 September 2000 and effective from the same date. State Council decision on further advancing the work of centralizing the power to impose administrative penalties (Guowuyuan guanyu jinyibu tuijin xiangdui jizhong xingzheng chufaquan gongzuode jueding 国务院关于 进一步推进相对集中行政处罚权工作的决定), issued on 22 August 2002 and effective from the same date. State Council General Office circular regarding the establishment of the National Headquarters for the Prevention and Treatment of SARS (Guowuyuan Bangongting guanyu chengli Quangguo fangzhi feidianxing feiyan zhihuibude tongzhi 国务院办公厅关于成立全国防治非典型肺炎指挥部 的通知), issued on 28 April 2003 and effective from the same date. State Council Circular on institutional set-up (Guowuyuan guanyu jigou shezhide tongzhi 国务院关于设置的通知), issued on 21 March 2003 and effective from the same date. Measures on the administration of aid to indigent vagrants and beggars in cities (Chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli banfa 城市生活无着的流浪乞讨人员救助管理办法), issued on 18 June 2003 and effective from 1 August 2003. State Council circular issuing the implementation program on the overall advancement of administration according to law (Guowuyuan guanyu yinfa quanmian tuijin yifa xingzheng shishi gangyaode tongzhi, 国务院 关于印发全面推进依法行政实施纲要的通知), issued on 22 March 2004 and effective from the same date.

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list of legal documents Supreme Peoples’s Court Judicial Interpretations

Supreme People’s Court Reply on the prohibition to use “education and release” (Zuigao Renmin Fayuan guanyu jinhou panjue buzai sheyong “jiaoyu shifang” wentide pifu 最高人民法院关于今后判决是否适用“教育释放”问题 的复函), issued on 9 August 1957 and effective from the same date. Supreme People’s Court reply letter on the problem of computing the term of public surveillance (Zuigao Renmin Fayuan guanyu guanzhide xingqi jisuan wentide fuhan 最高人民法院关于管制的刑期计算问题的复函), issued on 1 February 1960 and effective from the same date. Supreme People’s Court reply on the targets of public surveillance (Zuigao Renmin Fayuan guanyu guanzhi duixiangde pifu 最高人民法院关于 管制对象的批复) issued on 30 April 1960 and effective from the same date. Supreme People’s Court Reply letter to the National Women’s League about the problem of whether women sentenced to fixed term imprisonment or to the death penalty are in need of special care (Zuigao Renmin Fayuan guanyu panchu xingqi he sixingde nüfan zai falüshang shifou you teshu zhaogu wentide gei Quangguo Fuliande fuhan, 最高人民法院关于判处 刑期和死刑的女犯在法律上是否有特殊照顾问题的给全国妇联的 复函), issued on 28 September 1960 and effective from the same date. Supreme People’s Court reply letter to the question on whether the use of “education and release” is prohibited (Zuigao Renmin Fayuan guanyu jinhou panjue shifou shiyong “jiaoyu shifang” wentide fuhan 最高人民法院关 于今后判决是否适用“教育释放”问题的复函), issued on 21 June 1961 and effective from the same date. Supreme People’s Court Reply letter on whether it is appropriate to sentence ordinary criminals to public surveillance (Zuigao Renmin Fayuan guanyu dui yiban xingshi fanzui panche guanzhi shifou tuodangde qingshide fuhan 最高人民法院关于对一般刑事犯罪判处管制是 否妥当的请示 的复函), issued on 3 August 1961 and effective from the same date. Supreme People’s Court reply letter on how to handle landlords and rich peasants’ requests to appeal and change their status (Zuigao Ren-

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min Fayuan guanyu dizhu funong duiqi chengfen tichu shensu ying ruhe chulide fuhan 最高人民法院关于地主富农对其成分提出申诉应如何处理的 复函), issued on 11 August 1961 and effective from the same date. Supreme People’s Court reply on offsetting the term spent under solitary confinement for investigation in a detention center against the term of a criminal sentence (Zuigao Renmin fayuan guanyu zuifan beibu qian zai kanshousuo geli shencha riqi kefou zhedi xingqide pifu 最高人民法院关 于罪犯被捕前在看守所隔离审查日期可否折抵刑期的批复), issued on 21 October 1978 and effective from the same date. Supreme People’s Court reply on offsetting the term of “solitary confinement for investigation” against the term of a criminal sentence (Zuigao Renmin Fayuan guanyu zuifan zai daibuqian bei “geli shencha” de riqi kefou zhedi xingqi de fuhan 最高人民法院关于罪犯在逮捕前被“隔离审 查”的日期可否折抵刑期的复函), issued on 17 April 1979 and effective from the same date. Supreme People’s Court reply on offsetting the term of solitary confinement for investigation against the term of a criminal sentence (Zuigao Renmin Fayuan guanyu zuifan bei shourong shencha riqi zhedi xingqi wentide pifu 最高人民法院关于罪犯被收容离审查的日折抵问题的批复), issued on 11 June 1979 and effective from the same date. Supreme People’s Court reply on offsetting the term of solitary confinement for investigation against the term of a criminal sentence in criminal cases cleared during the struggle against the “Gang of Four” (Zuigao Renmin Fayuan guanyu shenpi “sirenbang” douzhengzhong qingcha chulaide fanzui fenzi zai daibuqian bei geli shencha de riqi kefou zhedi xingqide pifu 最高人民法院关于审批“四人帮”斗争中清查出来的犯罪分子在逮 捕前被隔离审查的日期可否折抵刑期的批复), issued on 17 April 1980 and effective from the same date. Supreme People’s Court Research Office reply on whether members of joint defense teams are a subject of the crime of torture (Zuigao Renmin Fayuan Yanjiushi guanyu lianfang duiyuan shifou goucheng xingxun bigongzui zhuti wentide fuhan 最高人民法院研究室关于联防队员是否构成刑讯 逼供罪主体问题的复函), issued on 26 September 1990 and effective from the same date.

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Supreme People’s Court Administrative Section telephone reply on whether litigation cases filed by those who have been subjected to house or bodily searches by public security organs in the absence of the statutory procedure to file a case can be accepted by courts as administrative cases (Zuigao Renmin Fayuan Xingzheng Shenpanting guanyu gong`an jiguan weiju fading li´an soucha shouxu dui gongmin jinxing zhuzhai renshen soucha bei soucharen tiqi susong renmin fayuan kefou an xingzheng anjian shouli wentide dianhua dafu 最高人民法院行政审判庭关于公安机关未 具法定立案搜查手续对公民进行住宅人身搜查被搜查人提起诉讼 人民法院可否按行政案件收理问题的电话答复), issued on 18 June 1991 and effective from the same date. Reply Letter of the Supreme People’s Court Research Office on whether harm inflicted to members of joint defense teams can be regarded as harm inflicted to a public official during the performance of his duties (Zuigao Renmin Fayuan Yanjiushi guanyu zhi’an lianfang duiyuan zai zhixing renwuzhong shoudao bufa qinhai dui qinhairen nengfou an “moumou gongwu” chuli wentide fuhan 最高人民法院研究室关于治安联防队员在 执行任务中收到不法侵害对侵害人能否按”某某公务”处理问题的 复函), issued on 22 September 1991 and effective from the same date. Supreme People’s Court Research Office telephone reply on offsetting the term of solitary confinement for investigation against the term of a criminal sentence (Zuigao renmin fayuan yanjiushi guanyu geli shencha riqi kefou zhedi xingqi wenti de dianhua dafu 最高人民法院研究室关于隔离审 查日期可否折抵刑期问题的电话答复), issued on 17 December 1991 and effective from the same date. Supreme People’s Court explanation regarding some problems in the implementation of the People’s Republic of China Criminal Procedure Law (Zuigao Renmin Fayuan guanyu zhixing Zhonghua Renmin Gongheguo xingshi susongfa ruogan wentide jieshi 最高人民法院关于执行中华人民共和 国刑事诉讼法若干问题的解释), issued on 8 September 1998 and effective from the same date. Supreme People’s Court Interpretation on some problems in the implementation of the People’s Republic of China Law on Administrative Litigation (Zuigao Renmin Fayuan guanyu zhixing Zhonghua Renmin Gongheguo xingzheng susongfa ruogan wentide jieshi 最高人民法院关于执行 中华人民共和国行政诉讼法若干问题的解释), issued on 24 November 1999 and effective from 10 March 2000.

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Supreme People’s Court interpretation about some problems in the implementation of the Administrative Procedure Law of the People’s Republic of China (Zuigao Renmin Fayuan guanyu zhixing Zhonghua Renmin Gongheguo xingzheng susongfa ruogan wentide jieshi 最高人民法院关于执行 中华人民共和国行政诉讼法若干问题的解释), issued on 10 March 2000 and effective from the same date. Supreme People’s Court Research Office reply on the problem of how to understand voluntary surrender by a criminal suspect (Zuigao Renmin Fayuan Yanjiushi guanyu ruhe lijie fanzui xianyiren zidong tou’ande youguan wentide dafu 最高人民法院研究室关于如何理解犯罪嫌疑人自动投 案的有关问题的答复), issued on 27 August 2003 and effective from the same date. Supreme People’s Procuratorate Procuratorial Interpretations Supreme People’s Procuratorate reply on whether members of joint defense teams can be a subject of the crime of torture (Zuigao Renmin Jianchayuan guanyu lianfang duiyuan nengfou goucheng xingxun bigongzuide fanzui zhuti wentide pifu 最高人检察院关于联防队员能否构成刑讯逼供 罪的犯罪主体问题的批复), issued on 7 November 1990 and repealed on 25 February 2002. Supreme People’s Procuratorate circular on intensifying the work of investigating and dealing with big and important cases (Zuigao Renmin Jianchayuan guanyu jinyibu jiaqiang da’an yao’an chachu gongzuode tongzhi 最高人民检察院关于进一步加强大案要案查处工作的通知), issued on 4 November 1993 and effective from the same date. Reproduced in Zuigao Renmin Jianchayuan 1993: 29–30. Supreme People’s Procuratorate circular on diligently implementing the Martial Law of the People’s Republic of China (Zuigao Renmin Jianchayuan guanyu renzhen zhixing Zhonghua Renmin Gongheguo jieyanfa de tongzhi 最高人民检察院关于认真执行中华人民共和国戒严法的通 知), issued on 29 March 1996 and effective from the same date. Supreme People’s Procuratorate opinion on some problems in the implementation of the Criminal Procedure Law in investigations by procuratorial organs (Zuigao Renmin Jianchayuan guanyu jiancha jiguan zhencha gongzuo guanche xingshi susongfa ruogan wentide yijian 最高人民检察

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院关于检察机关侦查工作贯彻刑事诉讼法若干问题的意见), issued on 31 December 1996 and effective from the same date. Supreme People’s Procuratorate opinion on the use of statutory designations of offenses listed in the special part of the criminal law (Zuigao Renmin Jianchayuan guanyu sheyong xingfa fenze guidingde fanzuide zuimingde yijian 最高人民检察院关于适用刑法分则规定的犯罪的罪名的意见), issued on 25 December 1997 and effective from the same date. Supreme People’s Procuratorate People’s Procuratorates Rules on Criminal Procedure (Zuigao Renmin Jianchayuan renmin jianchayuan xingshi susong guize 最高人民检察院人民检察院刑事诉讼规则), issued on 16 December 1998 and effective from 18 January 1999. Supreme People’s Procuratorate opinion on strengthening the work of preventing white collar crimes (Zuigao Renmin Jianchayuan guanyu jiaqiang yufang zhiwu fanzui gongzuode yijian 最高人民检察院关于加强预防职务 犯罪工作的意见), issued on 29 January 1999 and effective from the same date. Reproduced in Zhongguo Jiancha Nianjian Bianjibu 2000: 444–46. Supreme People’s Procuratorate notice about conscientiously implementing the “Decision on banning evil cults organizations and preventing and punishing activities by evil cults” and related judicial interpretations (Zuigao Renmin Jianchayuan guanyu renzhen guanche zhixing “guanyu qudi xiejiao zuzhi, fangfan he chengzhi xiejiao huodongde jueding he you-guan sifa jieshide tongzhi” 最高人民检察院关于认真贯彻执行 “关 于取缔邪教组织, 防范和惩治邪教活动的决定”和有关司法解释的 通知), issued on 31 October 1999 and effective from the same date. Supreme People’s Procuratorate circular on the prohibition to reach verdicts using confessions from criminal suspects obtained through the use of torture (Zuigao Renmin Jianchayuan guanyu yanjin jiang xingxun bigong huoqude fanzui xianyiren hongshu zuowei ding’ande yijude tongzhi 最高人民检 察院关于严禁将刑讯逼供获取的犯罪嫌疑人供述作为定案依据的 通知), issued on 2 January 2001 and effective from the same date. Supreme People’s Procuratorate decision on repealing certain judicial interpretations and normative documents (Zuigao Renmin Jianchayuan

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guanyu feizhi bufen sifa jieshi he guifangxing wenjiande jueding 最高人民检察 院关于废止部分司法解释和规范性文件的决定), issued on 25 February 2002 and effective from the same date. Supreme People’s Procuratorate rules on the threshold to file criminal cases of dereliction of duty and violation of rights (Zuigao Renmin Jianchayuan guanyu duzhizui qinquan fanzui anjian li´an biaozhunde guiding 最高 人民检察院关于渎职罪侵权犯罪案件立案标准的规定), issued on 29 December 2005 and effective from 26 July 2006. Joint Documents of the Supreme People’s Court and Supreme People’s Procuracy and Other Administrative Agencies Supreme People’s Court, Supreme People’s Procuracy, Ministry of Public Security joint circular on the targets and the legal procedure of public surveillance (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’anbu guanyu guanzhi sheyongde duixiang he guanzhide falü shouxu wentide lianhe tongzhi 最高人民法院 最高人民检察院 公安部关于管制适 用的对象和管制的法律手续问题的联合通知), issued on 28 August 1964 and effective from the same date. Supreme People’s Court, Supreme People’s Procuratorate supplementary rules on confirming the statutory designations of offenses in the Criminal Law of the People’s Republic of China (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuiminde puchong guiding 最高人民法院、最高人民检察 院关于执行《中华人民共和国刑法》确定罪名的补充规定), issued on 26 March 2002 and effective from the same date. Supreme People’s Court, Supreme People’s Procuratorate interpretation of provisions to concretely use in criminal cases of jeopardizing the prevention and control of sudden infectious diseases and other disasters (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu banli fanghai yufang, kongzhi tufa chuanranbing yiqing deng miehaide xingshi anjian juti yingyong falü ruogan wentide jieshi 最高人民法院、最高人民检察院关于 办理妨害预防、控制突发传染病疫情等灾害的刑事案件具体应用 法律若干问题的解释), issued on 13 May 2003 and effective from the same date.

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Supreme People’s Court and the Supreme People’s Procuratorate supplementary rules on confirming the statutory designations of offenses in the Criminal Law of the People’s Republic of China (2) (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuiminde puchong guiding (er) 最高人民法院、最 高人民检察院关于执行《中华人民共和国刑法》确定罪名的补充 规定(二)), issued on 21 August 2003 and effective from the same date. Supreme People’s Court and the Supreme People’s Procuratorate supplementary rules on using the statutory designations of offenses of the Criminal Law of the People’s Republic of China (3) (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuiminde puchong guiding (san) 最高人民法院、 最高人民检察院关于执行《中华人民共和国刑法》确定罪名的补 充规定(三)), issued on 25 October 2007 and effective from the same date. Supreme People´s Court and Supreme People´s Procuratorate supplementary rules on using the statutory designations of offenses of the Criminal Law of the People’s Republic of China (4) (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan guanyu zhixing “Zhonghua Renmin Gongheguo xingfa” queding zuimingde puchong guiding [si ] 最高人民法院、 最高人民检察院关于执行《中华人民共和国刑法》确定罪名的补 充规定[四]), issued on 14 October 2009 and effective from 16 October 2009. Ministerial Rules, Regulations, and Normative Documents Internal Affairs Ministry Internal Affairs Ministry directive on anti-opium and anti-drug work (Neiwubu guanyu guanche yanjin yandu gongzuode zhishi 内务部关于贯彻严 禁烟毒工作的指示), issued on 12 September 1950. Reproduced in Qiu 1998: 826–27. General Administration of Press and Publication People’s Republic of China General Administration of Press and Publication circular on handling Falungong publications (Zhonghua Renmin Gongheguo Xinwen Chuban Zongshu guanyu chongshen youguan Falungong chubanwu chulide tongzhi 中华人民共和国新闻出版总署关于重审有关法

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轮功出版物处理的通知), issued on 12 July 1999 and effective from the same date. Ministry of Civil Affairs Ministry of Civil Affairs of the People’s Republic of China decision on banning the Falun Dafa research society (Minzhengbu guanyu qudi Falun Dafa yanjiuhuide jueding 中华人民共和国民政部关于取缔法轮大 法研究会的决定), issued on 22 July 1999 and effective from the same date. Ministry of Civil Affairs General Office circular about using the national quarterly form on shelter for deportation transfer stations (Minzhengbu bangongting guanyu qiyong “Quangguo shourong qiansong duikouzhong zhuanzhan jibaobiao” de tongzhi, 民政部办公厅关于起用全国收容遣送对口中转 站季报表的通知), issued on 18 December 2000 and effective from the same date. Ministry of Health Ministry of Health circular concerning listing the contagious severe acute respiratory syndrome as a statutory controlled contagious disease (Weishengbu guanyu jiang chuanranxing feidianxing feiyan (yanzhong jixing huxidao zonghezheng) lieru fading guanli chuanranbingde tongzhi 卫生部关于 将传染性非典型肺炎(严重急性呼吸道综合征)列入法定管理传染 病的通知), issued on 8 April 2003 and effective from the same date. Experimental principles to identify and handle those who had close contact with those infected by the severe acute respiratory syndrome (Chuanranxing feidianxing feiyan miqie jiechuzhe panding biaozhun he chuli yuanze (shixing) 传染性非典型肺炎密切接触者判定标准和处理原则(试行)), issued on 8 May 2003 and effective from the same date. Ministry of Justice Ministry of Justice standards on criminal reform (Sifabu zuifan gaizao xingwei guifan 司法部罪犯改造行为规范), issued on 6 November 1990 and effective from the same date, reproduced in Gong’an ban’an shiwu congshu bianwei 2006: 221–27. Ministry of Justice circular on strengthening hygienic-sanitary conditions in prisons and reeducation through labor camps and preventing

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drug and food poisoning (Sifabu guanyu jiaqiang jianyu laojiao changsuo shenghuo weisheng guanli yufang yaowu shiwu zhongdude tongzhi 司法部关于 加强监狱劳教场所生活卫生管理预防药物食物中毒的通知), issued on 2 September 2001 and effective from the same date, reproduced in Zhonghua Renmin Gongheguo Sifabu 2002: 150–151. Ministry of Justice rules on drug rehabilitation through labor (Sifabu laodong jiaoyang jiedu gongzuo guiding 司法部劳动教养戒毒工作规定), issued on 2 June 2003 and effective from 1 August 2003. Ministry of Justice experimental rules on the administration and education of juveniles subjected to reeducation through labor (Sifabu weichengnian laodong jiaoyang renyuan guanli jiaoyu gongzuo guiding shixing, 司法部未成年劳动教养人员管理教育工作规定(试行)) issued on 1 January 2004 and effective from the same date. Ministry of Justice rules on the administration of production safety in reeducation through labor camps (Sifabu laodong jiaoyang changsuo anquan shengchan guanli guiding 司法部劳动教养场所安全生产管理规定), issued on 6 July 2004 and effective from the same date, reproduced in Zhonghua Renmin Gongheguo Sifabu 2005: 227–35. Standards on modern and civilized reeducation through labor camps (Xiandai wenming laojiaosuo biaozhun 现代文明劳教所标准), issued on 11 October 2004 and effective from the same date, reproduced in Zhonghua Renmin Gongheguo Sifabu 2005: 236–42. Ministry of Justice opinion on further deepening and carrying forward the reform of administration work in reeducation through labor (Sifabu guanyu jinyibu shenhua laojiao ban tese tuijin guanli gongzuo gaigede yijian 司法部关于进一步深化劳教办特色推进管理工作改革的意见), issued on 13 December 2004 and effective from the same date. Ministry of Public Security Ministry of Public Security temporary measures on control of counterrevolutionary elements (Gong’anbu guanzhi fangeming fenzi zanxing banfa 公安部管制反革命分子暂行办法), issued on 17 July 1952 and effective from the same date.

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Ministry of Public Security rules implementing the center’s decision to transfer the management of reform and reeducation through labor work to the departments for the administration of justice (Gong’anbu, Sifabu guanyu guanche zhixing zhongyang jiang laogai, laojiao gongzuo yijiao gei sifa xingzheng bumen guanlide ruogan guiding 公安部司法部关于贯彻执行 中央将劳改劳教工作移交给司法行政部门管理的若干规定), issued on 9 June 1983 and effective from the same date. Ministry of Public Security circular on strictly controlling the use of shelter for examination (Gong’an bu guanyu yangge kongzhi shiyong shourong shencha shouduande tongzhi 公安部关于严格控制使用收容审查手段的 通知), issued on 31 July 1985 and effective from the same date. Ministry of Public Security opinion on establishing a network of urban public security patrols (Gong’anbu guanyu zujian chengshi zhi’an xunluo wangde yijian 公安部关于组建城市治安巡逻网的意见), issued on 1 July 1986 and effective from the same date. Ministry of Public Security opinion on some problems in the work of reforming urban public security stations (Gong’anbu guanyu gaige chengshi gong’an paichusuo gongzuo ruogan wentide yijian 公安部关于改革城市公 安派出所若干问题的意见), issued on 15 January 1988 and effective from the same date. Ministry of Public Security circular issuing the “Report about establishing private security companies” (Gong’anbu guanyu yinfa “guanyu zujian bao’an fuwu gongside baogao” de tongzhi 公安部关于印发“关于组建保安 服务公司的报告” 的通知), issued on 2 July 1988 and effective from the same date. Ministry of Public Security request for instruction about further strengthening mass-line joint defense work (Gong’anbu guanyu jixu jiaqiang qunzhongxing zhi’an lianfang gongzuode qingshi 公安部关于继续加强群 性治安联防工作的请示), issued on 29 November 1988 and effective from the same date. Ministry of Public Security circular on strengthening the management of private security companies (Gong’anbu guanyu jiaqiang bao’an fuwu gongsi

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guanlide tongzhi 公安部关于加强保安服务公司管理的通知), issued on 3 January 1989 and effective from the same date. Ministry of Public Security circular on acting according to the law, implementing policies, and further carrying out the struggle against the six evils (Gong’anbu guanyu yangge yifa banshi, zhixing zhengce, shenru kaizhan chu liuhai douzhengde tongzhi 公安部关于严格依法办事, 执行政 策， 深入开展除六害斗争的通知), issued on 7 May 1990 and effective from the same date. Ministry of Public Security circular on further enhancing the work on private security services (Gong’anbu guanyu jinyibu zuohao bao’an fuwu gongzuode tongzhi 公安部关于进一步做好保安服务工作的通知), issued on 27 May 1992 and effective from the same date. Ministry of Public Security reply on the scope of targets of shelter for examination (Gong’anbu guanyu dui shourong shencha fanwei wentide pifu, 公安部关于对收容审查范围问题的批复), issued on 20 July 1992 and effective from the same date. Ministry of Public Security circular on strengthening the work of establishing public order joint defense corps (Gong’anbu guanyu jiaqiang zhi’an lianfang duiwu jianshede tongzhi 公安部关于加强治安联防队伍建 设的通知), issued on 17 May 1993 and effective from the same date. Ministry of Public Security rules on the prohibition for public security organs to perform trade and entrepreneurial activities and for public security cadres to perform entrepreneurial activities (Gong’anbu guanyu jinzheng gong’an jiguan jingshang ban qiye he gong’an ganbu congshi jingying huodongde guiding 公安部关于禁正公安机关经商办企业和公安干部 从事经营活动的规定), issued on 30 July 1993 and effective from the same date. Ministry of Public Security rules on police patrols in urban areas (Gong’anbu chengshi renmin jingcha xunluo guiding 公安部城市人民警察巡 逻规定), issued on 25 February 1994 and effective from the same date. Ministry of Public Security circular on the prohibition for private security companies to trade in firearms (Gong’anbu guanyu jinzheng bao’an fuwu gongsi jingying gelei qiangzhide tongzhi 公安部关于禁正保安服务公司经

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营各类枪支的通知), issued on 29 April 1994 and effective from the same date. Ministry of Public Security circular issuing the “Statute of the China Security Association” (Gong’anbu guanyu yinfa “Zhongguo bao’an xiehui zhangchengde tongzhi” 公安部关于印发“中国保安协会章程”的通知), issued on 7 November 1994 and effective from the same date. Ministry of Public Security circular on the work of cleaning up the remaining contract policemen (Gong’anbu guanyu zuohao qingtui hetong minjing shouwei gongzuode tongzhi 公安部关于做好清退合同民警收尾工作 的通知), issued on 5 February 1996 and effective from the same date. General Program for police work during the “Ninth Five Years Plan” (“ Jiuwu” gong’an gongzuo gangyao “九五”公安工作纲要), issued on 3 March 1996 and effective from the same date. Ministry of Public Security circular on some problems in implementing the measures on compulsory drug rehabilitation (Gong’anbu guanyu guanche zhixing qiangzhi jiedu banfa youguan wentide tongzhi 公安部关于贯 彻执行强制戒毒办法有关问题的通知), issued on 30 May 1996 and effective from the same date. Ministry of Public security circular on problems in the investigation of cases of contract fraud (Gong’anbu guanyu banli liyong jingji hetong zhapian anjian youguan wentide tongzhi 公安部关于办理利用经济合同诈骗案件 有关问题的通知), issued on 9 January 1997 and effective from the same date. Ministry of Public Security interpretation on some problems in the implementation of the People’s Police Law (Gong’anbu guanyu gong’an jiguan zhixing renmin jingchafa youguan wentide jieshi 公安部关于公安机关 执行人民警察法有关问题的解释), issued on 15 July 1997 and effective from the same date. Ministry of Public Security decision on reorganizing the industry of private security services (Gong’anbu guanyu qingli zhengdun bao’an fuwu hangyede jueding 公安部关于清理整顿保安服务行业的决定), issued on 6 November 1997 and effective from the same date.

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Ministry of Public Security reply on the criteria to determine addiction of those who smoke or inject drugs (Gong’anbu guanyu dui xishi, zhushe dupin renyuan chengyin biaozhun jieding wentide pifu 公安部关于对吸食注 射毒品人员成瘾标准界定问题的批复), issued on 22 April 1998 and effective from the same date. Ministry of Public security rules of procedure on investigating criminal cases (Gong’an jiguan banli xingshi anjian chengxu guiding 公安机关办理刑 事案件程序规定), issued on 14 May 1998 and effective from the same date. As amended on 25 October 2007. Ministry of Public Security rules on managing the focal population (Gong’anbu zhongdian renkou guanli gongzuo guiding 公安部重点人口管理 工作规定), issued on 22 May 1998 and effective from the same date. Ministry of Public Security reply on the establishment of private security companies by provinces and prefectures (Gong’anbu guanyu dui sheng, di gong’an jiguan zujian bao’an fuwu gongsi wentide pifu 公安部关于对省, 地公安机关组建保安服务公司问题的批复), issued on 26 May 1998 and effective from the same date. Ministry of Public Security circular on listing those who use psychotropic drugs among the focal population (Gong’anbu guanyu jiang xidu renyuan liewei zhongdian renkou guanlide tongzhi 公安部关于将吸毒人员列 为重点人口管理的通知), issued on 6 August 1998 and effective from the same date. Ministry of Public Security reply on whether the period spent under stop-and-question can be offset against a term of reeducation through labor (Gonganbu guanyu panwen liuzhi shijian kefou chedi laodong jiaoyang qixiande pifu 公安部关于盘问留置时间可否彻底劳动教养期限的批复), issued on 13 October 1998 and effective from the same date. Ministry of Public Security circular on strengthening the leadership responsibility system on investigating and reporting cases of torture leading to death and other tasks (Gong’anbu guanyu jinyibu jiaqiang dui xingxun bigong zhiren siwang anjian zhuiqiu zeren he zhuji huibao yantao dengxiang gongzuode tongzhi, 公安部关于进一步加强对刑讯逼供致人死亡 案件追究领导责任和逐级汇报检讨等项工作的通知), issued on 16

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June 1999 and effective since the date of receipt by grassroots level public security organs. Ministry of Public Security notice (Gong’anbu tonggao 公安部通告), issued on 22 July 1999 and effective from the same date. Ministry of Public Security Circular on cleaning up and reorganizing compulsory drug rehabilitation camps (Gong’anbu guanyu qingli zhengdun qiangzhi jiedusuode tongzhi 公安部关于清理整顿强制戒毒所的通知) issued on 21 January 2000 and effective from the same date. Ministry of Public Security rules on regularizing the management of private security companies (Gong’anbu guanyu bao’an fuwu gongsi guifan guanlide ruogan guiding 公安干部关于保安服务公司规范管理的若干规定), issued on 1 March 2000 and effective from the same date. Ministry of Public Security reply on some problems in the implementation of the Administrative Reconsideration Law of the People’s Republic of China (Gong’anbu guanyu shishi Zhonghua Renmin Gongheguo xingzheng fuyifazhong youguan wentide pifu, 公安部关于实施中华人民共 和国行政复议法中有关问题的批复), issued on 3 March 2000 and effective from the same date. Ministry of Public Security measures on the administration of compulsory drug rehabilitation camps (Gong’anbu qiangzhi jiedusuo guanli banfa 公安部强制戒毒所管理办法), issued on 17 April 2000 and effective from the same date. Ministry of Public Security circular on conscientiously implementing the measures on compulsory drug rehabilitation (Gong’anbu guanyu renzhen zhixing “qiangzhi jiedu banfa” youguan wentide tongzhi 公安局关于认 真执行强治戒毒办法有关问题的通知), issued on 9 September 2000 and effective from the same date. Ministry of Public Security Office for Detentive Facilities circular on issuing the standards on the behaviour of compulsory drug rehabilitation personnel (Gong’anbu jiansuo guanliju guanyu yinfa qiangzhi jiedu renyuan xingwei guifan de tongzhi 公安局监所管理局关于印发强治戒毒 人员行为规范的通知), issued on 1 February 2001 and effective from

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the same date, reproduced in Gong’an ban’an shiwu congshu bianwei 2006b: 218–221. Ministry of Public Security circular issuing the measures on regularizing the management of productive enterprises in prisons and reeducation through labor camps (Sifabu guanyu yinfa jianyu laojiao shengchan qiye guifan guanli banfade tongzhi 司法部关于印发监狱劳教生产企业 规范管理办法的通知), issued on 27 August 2001 and effective from the same date, reproduced in Zhonghua Renmin Gongheguo Sifabu 2002: 147–49. Ministry of Public Security rules on the evaluation and appraisal of law enforcement quality (Gong’anbu guanyu gong’an jiguan zhifa zhiliang kaohe pingyi guiding, 公安部关于公安机关执法质量考核评议规定), issued on 10 October 2001 and effective from the same date. Ministry of Public Security rules on the handling of reeducation through labor cases by public security organs (Gong’anbu guanyu gong’an jiguan banli laodong jiaoyang anjian guiding 公安部关于公安机关办理劳动教养 案件规定), issued on 12 April 2002 and effective from 1 June 2002. Ministry of Public Security rules on the filing of cases of stop-andquestion (Gong’anbu guanyu gong’an jiguan shishi liuzhi cuoshi bei’an guiding 公安部关于公安机关实施留置措施备案规定), issued on 28 June 2002 and effective from the same date. Ministry of Public Security rules on the use of continued questioning (Gong’anbu guanyu shiyong jixu panwen guiding 公安部关于适用继续盘问 规定), issued on 12 July 2004 and effective from 1 October 2004. Ministry of Public Security rules of procedure on investigating administrative cases (Gong’an jiguan banli xingzheng anjian chengxu 公安机关办理 行政案件程序), issued on 26 August 2004 and effective from the dame date, as amended on 29 March 2006. Ministry of Public Security 2004–2008 program on regularizing police forces (Gong’anbu guanyu 2004–2008 nian quangguo gong’an duiwu zhengguihua jianshe gangyao 公安部关于2004–2008 年全国公安队伍正规化 建设纲要), issued on 23 October 2004.

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Ministry of Public Security implementing opinion on further strengthening and improving the work of reeducation through labor approval (Gong’anbu guanyu jinyibu jiaqiang he gaijin laodong jiaoyang shenpi gongzuode shishi yijian, 公安部关于进一步加强和改进劳动教养审批工作的实 施意见), issued on 13 September 2005 and effective from the same date. Ministry of Public Security measures on the management of training institutions for private security (Gong’anbu guanyu bao’an peixun jigou guanli banfa 公安部关于保安培训机构管理办法), issued on 31 December 2005 and effective fom 1 March 2006. Ministry of Public Security Reply on some problems in the implementation of the People’s Republic of China Law on Prohibiting Drugs (Gong’anbu guanyu zhixing Zhonghua Renmin Gongheguo jindufa youguan wentide pifu 公安部关于执行中华人民共和国禁毒法有关问题的批复), issued on 23 December 2008 and effective from the same date. Ministry of Public Security circular about adding the title “judicial forensic center” to forensic organs established by public security organs (Gong’anbu guanyu gong’an jiguan jianding jigou jiagua “sifa jianding zhongxin” chengwei de tongzhi 公安部关于公安机关鉴定机构加挂“司法 鉴定中心”称谓的通知), issued on 24 December 2008 and effective from the same date. Ministry of Public Security reply on whether isolation for compulsory drug rehabilitation and RETL can be implemented together (Gong’anbu guanyu dui qiangzhi geli jiedu yu laodong jiaoyang nengfou hebing zhixing wentide pifu 公安部关于对强制隔离戒毒与劳动教养能否合并执行问题的批复), issued on 1 April 2009 and effective from the same date. Ministry of Public Security rules on the procedure to determine drug use (Gong’anbu xidu jiance chengxu guiding 吸毒检测程序规定), issued on 27 September 2009 and effective from 1 January 2010. Ministry of Public Security circular on some problems regarding the further standardization of anti-drug work (Gong’anbu guanyu jinyibu guifan jindu zhifa gongzuo ruogan wentide tongzhi 公安部关于进一步规范禁毒执 法工作若干问题的通知).

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State Administration of Taxation State Administration of Taxation circular on fiscal exemptions for public security companies (Guojia Shuiwuju guanyu dui bao’an fuwu gongsi zhengmianshuide tongzhi 国家税务局关于对保安服务公司征免税的通知), issued on 15 September 1989 and effective from the same date. State Administration of Taxation circular on exempting private security companies from the income tax due for 1991 (Guojia Shuiwuju guanyu bao’an fuwu gongsi mianzheng yijiujiuyi niandu suodeshuide tongzhi 国家税务 局关于保安服务公司免征一九九一年度所得税的通知), issued on 20 January 1992 and effective from the same date. State Commission Office for Public Sector Reforms State Commission Office for Public sector Reforms opinion on the clean up and reorganization of administrative law enforcement teams and experimenting with the comprehensive administrative law enforcement (Zhongyang bianban guanyu qingli zhengdun xingzheng zhifa duiwu shixing zonghe xingzheng zhifa shidian gongzuode yijian 中央编办关于清理整顿行 政执法队伍实行综合行政执法试点工作的意见), issued on 17 September 2002 and effective from the same date. Joint Documents Ministry of Internal Affairs, Ministry of Public Security, Ministry of Grains, Ministry of Labour, Ministry of Commerce joint circular on solving the problems regarding the registration certificates and supplies for personnel of resettlement farms led by civil affairs departments (Neiwubu, Gong’anbu, Liangshibu, Laodongbu, Shangyebu guanyu jiejue minzheng bumen lingdaode anzhi changsuo shourong renyuande hukou, quxi gongyin deng wentide lianhe tongzhi 内务部、公安部、粮食部、劳动部、商业部关 于解决民政部门领导的安置场所收容人员的户口、物资供应等问 题的联合通知, issued on 22 March 1963 and effective from the same date. Ministry of Public Security, Ministry of Work and Personnnel, Ministry of Agriculture, Animal Husbandry and Fishery, Ministry of Education, Ministry of Commerce joint circular on the settling and job arrangment of criminals who have served their sentence (Gong’anbu, Laodong Renshibu, Nongmuyuyebu, Jiaoyubu, Shangyebu guanyu fanren xingman shifanghou luohu he anzhide lianhe tongzhi 公安部，劳动人事部，农牧渔业部，教

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育 部 ， 商 业 部 关于 犯 人 刑 满释放 后 落 户 和 安 置 的 联 合 通 知 ) , issued on 5 May 1983 and effective from the same date. Circular of the Supreme People’s Court, Supreme People’s Procuracy, Ministry of Public Security, Ministry of Justice on some problems in the work of handling reactionary sects (Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gong’anbu, Sifabu guanyu chuli fandong huidaomen gongzuozhong youguan wentide tongzhi 最高人民法院最高人民检察院公安部 司法部关于处理反动会道门工作中有关问题的通知), issued on 5 September 1985 and effective from the same date. Ministry of Supervision and Ministry of Public Security circular on the coordination between public security organs and supervision organs in the investigation and handling of cases ( Jianchabu, Gong’anbu guanyu jiancha jiguan zai chaban anjianzhong gong’an jiguan yuyi xiezhu peihede wentide tongzhi 监察部，公安部关于监察机关在查办案件中公安机关予以 协助配合的问题的通知), issued on 16 November 1989 and effective from the same date. Reproduced in Jijian jiancha ban’an chengxu guiding bianxiezu 1999: 117–18. Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice experimental criteria on light wounding (Renti qingshang jianding biaozhun (shixing) 最高人民法院，最高 人民检察院，公安部，司法部人体轻伤鉴定标准试行), isssued on 2 April 1990 and effective from 1 July 1990, reproduced in Falü Chubanshe Fagui Zhongxin 2007: 566–68. Supreme People’s Procuratorate and Ministry of Public Security circular on strengthening the coordination between procuratorates and public security organs during investigations on cases of torture (Zuigao Renmin Jianchayuan, Gong’anbu guanyu jiaqiang jiancha, gong’an jiguan zai chaban xingxun bigong anjianzhong miqie peihede tongzhi 最高人民检察院，公安部 关于加强检察公安机关在查办刑讯逼供案件中密切配合的通知), issued on 6 January 1993 and effective from the same date. Ministry of Public Security, Ministry of Construction, Ministry of Culture, State Administration of Industry and Trade, State Administration for Sports plan on the work of cleaning up illegal private security organizations and the special struggle of reorganizing the market of

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security services (Gong’anbu, Jianshebu, Wenhuabu, Guojia Gongshang Guanli Zongju, Guojia Tiyu Zongju guanyu qingli feifa bao’an zuzhi guifan bao’an fuwu shichang zhuanxiang zhengzhi gongzuo fang’an 公安部，建设部，文化 部，国家工商管理总局，国家体育总局关于清理非法保安组织规 范保安服务市场专项整治工作方案), issued on 22 November 2002 and effective from the same day. Repealed on 6 November 2007. Ministry of Finance and the State Administration of Taxation circular on some problems in the policy of prison and reeducation through labor camps’ enterprises exemption from the income tax and the rural land use tax, (Caizhengbu, Guojia Shuiwu Zongju guanyu dui jianyu, laojiao qiye youguan qiye suodeshui chengzhen tudi shiyongdui zhengce wentide tongzhi 财政部国家税务总局关于对监狱，劳教企业有关企业所得税城镇 土地使用税政策问题的通知), issued on 28 April 2001, retroactive effect from 1 January 2001, in force until 31 December 2003, reproduced in Sifabu Jianyu Guanliju 2003: 352. State Commission for Development and Reform, Ministry of Public Security, Ministry of Justice circular on re-adjusting the construction plan of the national anti-drug infrastructure, (Quangguo Fazhan he Gaige Weiyuanhui, Gong’anbu, Sifabu guanyu diaozheng quangguo jindu jichu shishi jianshe guihuade tongzhi 国家发展和改革委员会公安部 司法部关于调 整全国禁毒基础设施建设规划的通知), issued on 30 December 2006 and effective from the same date. Local Level Laws Local Administrative Rules, Regulations and Normative Documents Anhui Province Anhui Province regulations on the administration of grassroots public order joint defense teams (Anhuisheng xiangzhen zhi’an lianfangdui guanli tiaoli 安徽省乡镇治安联防队管理条例), issued on 31 May 1996 and effective from the same date. Huainan work plan on community rehabilitation and community recovery (Huainanshi kaizhan shequ jiedu he shequ kangfu gongzuo fang’an 淮南市开展社区戒毒和社区康复工作方案), issued on 28 November 2008 and effective from the same date.

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297

Beijing Municipality Beijing People’s Government circular on the measures and decision on the implementation plan on opium prohibition (Beijingshi Renmin Zhengfu guanyu chajin yandu banfa ji zhixing jihua juedingde tongzhi 北京市 人民政府关于查禁烟毒办法及执行计划决定的通知), issued on 25 April 1950 and effective from the same date, reproduced in Beijingshi Dang´anguan 2001. Beijing Municipality rules on the duties and reponsibilities of workers and masses’ public order joint defense teams (Beijingshi guanyu zhigong qunzhong zhi’an lianfangduide renwu he duiyuan zhizede guiding 北京市关于 职工群 治安联防队的人物和队员职责的规定), issued on 20 May 1985 and effective from 1 July 1985. Beijing Municipality Price Office letter on fees practiced by compulsory drug rehabilitation camps (Beijingshi wujiaju guanyu qiangzhi jiedu shoufei biaozhunde han 北京市物价局关于强制戒毒收费标准的函), issued on 3 July 1998 and effective from the same date. Beijing Higher People’s Court experimental opinion on some problems in the examination of shelter for examination cases, reeducation through labor cases and other administrative cases (Beijingshi Gaoji Renmin Fayuan guanyu shenli shourong shencha, laodong jiaoyang deng xingzheng anjian youguan wentide yijian shixing 北京市高级人民法院关于审理收容 审查, 劳动教养等行政案件有关问题的意见试行), issued on 4 April 1994 and effective from the same date. Beijing Municipality rules on the administration of shelter for deportation (Beijingshi shourong qiansong guanli guiding 北京市收容遣送管理规定), issued on 7 August 1999 and effective from 1 September 1999. Beijing People’s Government decision on repealing the Beijing Municipality Rules on the administration of shelter for deportation (Beijingshi renmin zhengfu guanyu feizhi Beijingshi shourong qiansong guanli guidingde jueding 北京市人民政府关于废止北京市收容遣送管理规定的决定), issued on 29 July 2003 and effective from the same date.

298

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Chongqing Municipality Chongqing Municipality measures on shelter for deportation (Chongqingshi shourong qiansong banfa 重庆市收容遣送办法), issued on 16 October 1995 and effective from 1 December 1995. Chongqing Municipality measures on the administration of security services (Chongqingshi bao’an fuwu guanli banfa 重庆市保安服务管理办法), issued on 5 June 1996 and effective from 1 July 1996. Chongqing Municipality regulations on shelter and deportation (Chongqingshi shourong qiansong tiaoli 重庆市收容遣送条例), issued on 29 May 1998 and effective from 1 September 1998. Chongqing Municipality Price Office, Chongqing Municipality Finance Office circular on joint defense fees and insurance for railway transportation of goods (Chongqingshi wujiaju, Chongqingshi caizhengju guanyu zhi’an lianfangei he tielu yunshu wuzi anquanfei shoufei biaozhunde tongzhi 重庆市物价局，重庆市财政局关于治安联防费和铁路运输物资安 全费收费标准的更正通知), issued on 5 November 2001 and effective from the same date. Chongqing People’s Congress Standing Committee decision on repealing the Chongqing Municipality regulations on shelter for deportation (Chongqingshi Renda Changweihui guanyu feizhi Chongqingshi shourong qiansong tiaolide jueding 重庆市人大常委会关于废止重庆市收容遣送条例的 决定), issued on 1 August 2003 and effective from the same date. Chongqing Municipality measures on implementing the People’s Republic of China law on delegates to the National People’s Congress and local people’s congresses (Chongqingshi shishi Zhonghua Renmin Gongheguo quangguo renmin daibiao dahui he difang geji renmin daibiao dahui daibiaofa banfa 重庆市实施中华人民共和国全国人民代表大会和地 方各级人民代表大会代表发办法), issued on 30 July 2007 and effective from 1 November 2007, as amended on 3 December 2008. Fujian Province Fujian Province Higher People’s Court Report on the request for instructions on whether shelter for examination has a legal basis (Fujiansheng Gaoji Renmin Fayuan guanyu shourong shencha youfou fagui yijude qing-

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299

shi baogao 福建省高级人民法院关于收容审查有否法律法规依据的 请示报告), issued on 18 May 1991 and effective from the same date. Fujian Province measures on the administration of private security services (Fujiansheng bao’an fuwu guanli banfa 福建省保安服务管理办法), issued on 1 April 2000 and effective from the same date. Fujian Province Price Office, Fujian Province Finance office circular setting compulsory drug rehabilitation fees in our province (Fujiansheng wujiaju, Fujiansheng caizhengting guanyu heding wosheng qiangzhi jiedu shoufei biaozhunde tongzhi 福建省物价局，福建省财政厅关于核定我省强 制戒毒收费标准的通知), issued on 26 September 2000 and effective from the same date and until 28 September 2002. Fujian Province Price Office, Fujian Province Finance office reply on once more setting compulsory drug rehabilitation fees (Fujiansheng wujiaju, Fujiansheng caizhengting guanyu chongxin heding quansheng qiangzhi jiedu shoufei biaozhunde fuhan 福建省物价局，福建省财政厅关于重新核定 全省强制戒毒收费标准的复函), issued on 20 December 2002, and effective from 1 January 2003 until 31 December 2004. Fujian Province Price Office, Fujian Province Finance office reply on the problem of drug rehabilitation fees in our province (Fujiansheng wujiaju, Fujiansheng caizhengting guanyu wosheng qiangzhi jiedu shoufei wentide fuhan 福建省物价局、福建省财政厅关于我省强制戒毒收费问题的 复函), issued on 4 December 2007, and effective from 1 January 2008 until 31 December 2010. Sanming People’s Government circular on administering aid to indigent vagrants and beggars in urban districts (Sanmingshi Renmin Zhengfu guanyu jiaqiang dui shiqu youliulang qitao renyuan jiuzhu guanlide tongzhi 三 明市人民政府关于对市区有流浪乞讨人员救助管理的通知), issued on 25 April 2005 and effective from the same date. Xiamen provisional measures on strengthening the work of public order joint defense in cities and townships (Xiamenshi jiaqiang chengzhen zhi’an lianfang gongzuo zanxing banfa 厦门市加强城镇治安联防工作 暂行办法), issued on 21 October 1992 and effective from the same date.

300

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Zhangzhou People’s Government General Office circular about the functions, internal structure and personnel allocation of Zhengzhou public security bureau (Zhengzhoushi Renmin Zhengfu Bangongting guanyu yinfa Zhengzhoushi gong´anju zhineng peizhi, neishe jigou he renyuan bianzhi guidingde tongzhi 郑州市人民政府办公厅关于印发郑州市公安局职能 配置，内设机构和人员编制规定的通知), issued on 22 January 2002 and effective from the same date. Zhangzhou Reform and Planning Commission reply on adjusting the time limit for building up Zhangzhou City public security office compulsory drug rehabilitation building, examining and approving the [proposed] bid form (Zhangzhoushi fazhan he gaige weiyuanhui guanyu Zhangshoushi gong´anju qiangzhi jiedulou jianshe qixiangde diaozheng he hezhu zhaobiao xingshide pifu. 漳州市发展和改革委员会关于漳州市公安局 强制戒毒楼建设期限的调整和核准招投标形式的批复) issued on 23 October 2006 and effective from the same date. Gansu Province Gansu Province Price Office, Gansu Province Finance office circular setting compulsory drug rehabilitation fees (Gansusheng wujiaju, sheng caizhengting guanyu heding qiangzhi jiedu shoufei biaozhunde tongzhi 甘肃省 物价局，省财政厅关于核定强制戒毒收费标准的通知), issued on 2 December 2002 and effective from 1 January 2003. Guangdong Province Guangdong Province rules on mass-line public order joint defense organizations (Guangdongsheng qunzhong zhi’an lianfang zuzhide guiding 广东 省群 治安联防组织的规定), issued on 20 January 1990 and effective from 1 February 1990. Guangdong Province regulations on the management of security services (Guangdongsheng bao’an fuwu guanli tiaoli 广东省保安服务管理条例), issued on 2 April 1999 and effective from 1 July 1999. Guangdong Province rules on the administration of shelter for deportation (Guangdongsheng shourong qiansong guanli guiding 广东省收容遣送管 理规定), issued on 23 March 2002 and effective from 1 April 2002. Guangdong People’s Congress Standing Committee decision on repealing the Guangdong Province rules on the administration of shelter for

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301

deportation (Guangdongsheng Renda Changweihui guanyu feizhi Guangdongsheng shourong qiansong guanli guidingde jueding 广东省人大常委会关于废止 广东省收容遣送管理规定的决定), issued on 25 July 2003 and effective from the same date. Foshan City implementing opinion on strengthening the management of aid to indigent vagrants and beggars in cities (Foshanshi guanyu jiaqiang dui chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli shishi yijian 佛山市关于加强对城市生活无着的流浪乞讨人员救助管理实施 意见), issued on 21 February 2005 and effective from the same date. Jiangmen People’s Government implementing opinion on strengthening the district’s management of aid to indigent vagrants and beggars ( Jiangmenshi Renmin Zhengfu guanyu jiaqiang shiqu shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli shishi yijian 江门市人民政府关于加强市区生 活无着的流浪乞讨人员救助管理实施意见), issued on 29 December 2005 and effective from the same date. Shenzhen Special Economic Zone measures on eliminating the “four pests” (Shenzheng jingji tequ chu “sihai” guanli banfa 深圳经济特区除“四害”管理 办法), issued on 28 October 1993 and effective from the same date. Guangxi Zhuang Autonomous Region Guangxi Zhuang Autonomous Region provisional rules on public order joint defense organizations (Guangxi Zhuangzu Zizhiqu zhi’an lianfang zuzhi zanxing guiding 广西壮族自治区治安联防组织暂行规定), issued on 22 February 1991 and effective from the same date. Guangxi Zhuang Autonomous Region Price Office letter on provincial compulsory drug rehabilitation fees (Guangxi Zhuangzu Zizhiqu wujiaju guanyu quanqu jiedusuo shoufei biaozhunde fuhan 广西壮族自治区物价局关 于全区戒毒收费标准的复函), issued on 1 August 2001 and effective from 1 September 2001. Guizhou Province Guizhou Province rules on the administration of public order joint defense organizations (Guizhousheng zhi’an lianfang zuzhi guanli guiding 贵州省治安联防组织管理规定), issued on 7 July 1992 and effective from the same date.

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Guizhou Province Public Security Bureau measures on managing drug addicts (Guizhou gong’anting xidu renyuan guanli banfa 贵州公安厅吸毒人 员管理办法). No issue date. Guizhou Province Price Office, Finance Office circular on regularizing provincial compulsory drug rehabilitation fees (Guizhousheng wujiaju, guizhousheng caizhengting guanyu guifan quansheng gong’an qiangzhi jiedusuo jiedu shoufei biaozhunde tongzhi 贵州省物价局，贵州省财政厅关于规范全 省公安强制戒毒所戒毒收费标准的通知), issued on 26 April 2003 and effective from 19 May 2003. Bijie Anti-drug Committee General Office implementing opinion on the work of social assistance to addicts (Bijie diqu jindu weiyuanhui bangongshi, Bijie diqu xidu renyuan shehui bangjiao gongzuo shishi yijian 毕节地区 禁毒委员会办公室 ， 毕节地区吸毒人员社会帮教工作实施意见), issued on 20 January 2006 and effective from the same date. Dafang District Public Security Bureau Rules about the follow-up urine tests of persons released from compulsory drug rehabilitation centers (Dafangxian gong’anju guanyu jiedu chusuo renyuan genzong niaojiande youguan guiding 大方乡公安局关于戒毒处所人员跟踪尿检的有关 规定). No issue date. Hainan Province Hainan Province rules on shelter for deportation (Hainansheng shourong qiansong zanxing guiding 海南省收容遣送暂行规定), issued on 2 December 1991 and effective from the same date. Hainan Province Development and Reform Commission reply about compulsory drug rehabilitation fees and other problems (Hainansheng fazhan yu gaigeting guanyu qiangzhi jiedusuo yiliao jiage deng wentide han 海南 省发展与改革厅关于强制戒毒医疗价格等问题的函), 14 December 2005 and effective from the same date. Hebei Province Hengshui People’s Government General Office circular about the functions, internal structure and personnel allocation of Hengshui public security bureau (Hengshuishi Renmin Zhengfu Bangongting guanyu yinfa Hengshuishi gong´anju zhineng peizhi, neishe jigou he renyuan bianzhi guid-

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303

ingde tongzhi 衡水市人民政府关办公厅于印发衡水市公安局职能配 置，内设机构和人员编制规定的通知), issued on 3 July 2002 and effective from the same date. Hebei Province Price Office, Finance Office reply setting compulsory drug rehabilitation fees in Shijiazhuang (河北省物价局，财政厅关于 制定石家庄市公安局强制戒毒所收费标准的复函 Hebeisheng wujiaju, caizhengting guanyu zhiding shijiazhuangshi gong’anju qiangzhi jiedusuo shoufei biaozhunde fuhan), issued on 13 April 2004 and effective from the same date. Henan Province Henan Province rules on the administration of public order joint defense work (Henansheng zhi’an lianfang gongzuo zanxing guiding 河南省 治安联防工作暂行规定), issued on 30 May 1992 and effective from the same date. Henan Province Finance Office, Henan Province Development and Reform Commission reply agreeing to the question on whether public security organs should continue receiving drug rehabilitation fees (Henansheng caizhengting, Henansheng fazhan he gaige weiyuanhui guanyu tongyi geji gong’an jiguan jixu shouqu jiedu zhiliao shoufei youguan wentide han 河南省财 政厅, 河南省发展和改革委员会关于同意各级公安机关继续收取 戒毒治疗收费有关问题的函), issued on 19 May 2005 and effective until 31 December 2008. Luoyang City measures on the administration of shelter for deportation to indigent vagrants and beggars (Luoyangshi shourong qiansong liulang qitao renyuan guanli banfa 洛阳市收容遣送流浪乞讨人员管理办法), issued on 23 February 1994 and effective from the same date. Luoyang People’s Congress Standing Committee decision on repealing the Luoyang City measures on the administration of shelter for deportation to indigent vagrants and beggars (Luoyangshi Renda Changweihui guanyu feizhi Luoyangshi shourong qiansong liulang qitao renyuan guanli banfa de jueding 洛阳市人大常委会关于废止洛阳市收容遣送流浪乞 讨人员管理办法的决定), issued on 15 October 2003 and effective from the same date.

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Jiaozuo City circular about the functions, internal structure and personnel allocation of Jiaozuo public security bureau ( Jiaozuoshi gong´anju zhineng peizhi neishe jigou he renyuan bianzhi guiding 焦作市公安 局职能配置，内设机构和人员编制规定). No issue date. Heilongjiang Province Heilongjiang Province People’s Government, General Office circular on the work of administering aid to indigent vagrants and beggars in cities (Heilongjiangsheng Renmin Zhengfu Bangonting guanyu zuohao chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guangli gongzuode tongzhi 黑龙江省人民政府办公厅关于做好城市生活无着的流浪乞讨人员 救助管理工作的通知), issued on 8 June 2004 and effective from the same date. Heilongjiang Province Finance Office, Price Office reply allowing public security ankang hospitals to receive fees for the judicial assessment of mental illness, for the treatment of mentally ill patients who disrupt public security and for compulsory drug rehabilitation (Heilongjiangsheng Caizhengting, wujiaju guanyu tongyi sheng gong’anting ankang yiyuan jixu shouqu sifa jingshenbingxue jiandingfei, weihai shehui zhi’an jingshenbingren zhuyuanfei he qiangzhixing jiedu zhiliaofeide pifu 黑龙江省财政厅, 物价局关于同意省 公安厅安康医院继续收取司法精神病学鉴定费, 危害社会治安精神 病人住院费和强治性戒毒治疗费的批复), issued on 12 June 2008 and effective from the same date. Zhaoyang village circular about the functions, internal structure and personnel allocation of the public security bureau (Zhaoyangxiang gong’anju zhineng peizhi, neishe jigou he renyuan bianzhi guidingde tongzhi 朝阳乡公 安局职能配置，内设机构和人员编制规定的通知). No issue date. Hubei Province Hubei Province Price Office and Finance Office circular on the problem of drug rehabilitation fees (Hubeisheng wujiaju, sheng caizhengting guanyu jiedu shoufei biaozhun wentide tongzhi 湖北省物价局, 省财政厅关 于戒毒收费标准问题的通知), issued on 19 January 1999 and effective retroactively from 1 January 1999. Wuhan measures on the administration of shelter for deportation (Wuhanshi shourong qiansong guanli banfa 武汉市收容遣送管理办法), issued on 15 March 1996 and effective from the same date.

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Hunan Province Hunan Province People’s Government, General Office circular on disbanding professional public order joint defense organs in the entire province (Hunansheng Renmin Zhengfu Bangongting guanyu chexiao quansheng zhuanye zhi’an lianfang zuzhide tongzhi 湖南省人民政府办公厅关于撤 销全省专业治安联防组织的通知), issued on 10 October 1998 and effective from the same date. Hunan Province regulations on shelter for deportation of urban indigent vagrants and beggars (Hunansheng chengshi liulang qitao renyuan shourong qiansong tiaoli 湖南省城市流浪乞讨人员收容遣送条例), issued on 28 April 1994 and effective from 1 July 1994, as amended on 29 March 2002. Hunan People’s Congress Standing Committee decision on repealing the Hunan Province regulations on shelter for deportation of urban indigent vagrants and beggars (Hunangsheng Renda Changweihui guanyu feizhi hunansheng chengshi liulang qitao renyuan shourong qiansong tiaoli 湖南 省人大常委会关于废止湖南省城市流浪乞讨人员收容遣送条例的 决定), issued on 30 July 2003 and effective from the same date. Hunan Province Price Office reply on setting experimental fees in compulsory drug rehabilitation camps in the provincial public security system (Hunansheng wujiaju guanyu heding quansheng gong’an xitong qiangzhi jiedufei shixing biaozhunde fuhan 湖南省物价局关于核定全省公安系 统强制戒毒费试行标准的复函), issued on 6 July 2002 and effective from 20 July 2002. Inner Mongolia Autonomous Region Inner Mongolia Autonomous Region implementing measures on prohibiting opium and drugs (Neimenggu Zizhiqu jinjue yapian yandu shishi banfa 内蒙古自治区鸦片烟毒实施办法), issued on 14 April 1951. Reproduced in Qiu 1998: 829–30. Inner Mongolia Autonomous Region People’s Government circular on the work of administering aid to indigent vagrants and beggars in cities (Neimenggu Zizhiqu Renmin Zhengfu guanyu zuohao chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode tongzhi 内蒙古自治 区人民政府关于做好城市生活无着的流浪乞讨人员救助管理工作 的通知, issued on 15 August 2003 and effective from the same date.

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Jiangxi Province Jiangxi Province rules on the work of administering aid to indigent vagrants and beggars in cities ( Jiangxisheng chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli guiding 江西省城市生活无着的流浪乞 讨人员救助管理规定), issued on 22 March 2008 and effective from the same date. Jiangxi Province rules on protecting the personal freedom of delegates to the local people’s congresses ( Jiangxisheng baohu renmin daibiao dahui daibiao rensheng ziyoude guiding 江西省保护人民代表大会代表人身自由 的规定), issued on 18 December 1998 and effective from the same date. Reproduced in Jiangxisheng Renda Xinwenwang 2009. Jinan provisional measures on the administration of the private security industry (济南市报案服务业管理暂行办法 Jinanshi bao’an fuwuye guanli zanxing banfa), issued on 26 March 1999 and effective from the same date. Jiangxi Development and Reform Commission reply on setting provincial compulsory drug rehabilitation fees in the province public security system ( Jiangxisheng fagaiwei guanyu heding quansheng gong’an xitong qiangzhi jiedu shoufei biaozhunde pifu 江西省发改委关于核定全省公安系统强 制戒毒收费标准的批复), issued on 7 September 2005, and effective from 1 October 2005. Pingxiang City People’s Government opinion on the work of further strengthening the management of aid to indigent vagrants and beggars in cities (Pingxiangshi renmin zhengfu guanyu jinyibu jiaqiang chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode yijian 萍乡市人民政 府关于进一步加强城市生活无着的流浪乞讨人员救助管理工作的 意见), issued on 2 November 2007 and effective from the same date. Xinyu Special Economic Zone circular on strengthening the work of administering aid to indigent vagrants and beggars in cities (Xinyu jingji kaifaqu guanyu jiaqiang dui chengshi liulang qitao renyuan jiuzhu guanlide tongzhi 新余经济开发区关于加强对城市生活无着的流浪乞讨人员救助 管理的通知), issued on 29 April 2005 and effective from the same date.

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Jiangsu Province Jiangsu Province Price Office, Finance Office reply on setting experimental subsistense and rehabilitation fees for personnel undergoing compulsory drug rehabilitation ( Jiangsusheng wujiaju, caizhengting guanyu jiedu renyuan shenghuo, zhiliao shoufei shixing biaozhunde fuhan 江苏省物价 局，财政厅关于戒毒人员生活，治疗收费试行标准的复函), issued on 27 March 2001, effective from 10 April 2001 until 10 April 2002. Jiangsu Province People’s Government circular on conscientiously implementing the measures on administering aid to indigent vagrants and beggars in cities ( Jiangsusheng Renmin Zhengfu guanyu qieshi zuohao chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli banfa guanche shishi gongzuode tongzhi 江苏省政府关于切实做好城市生活无着的流 浪乞讨人员救助管理办法贯彻实施工作的通知), issued on 26 July 2003 and effective from the same date. Nanjing Municipality measures on the administration of shelter for deportation (Nanjingshi shourong qiansong guanli banfa 南京市收容遣送管 理办法), issued on 7 January 2000 and effective from the same date. Nanjing Municipal Government decision on repealing certain administrative rules and normative documents (Nanjing shizhengfu guanyu feizhi bufen zhengfu guizhang he guifangxing wenjiande jueding 南京市政府关于废 止部分政府规章和规范性文件的决定), issued on 4 September 2003 and effective from the same date. Taizhou City People’s Government notice on on strengthening the management of aid to indigent vagrants and beggars in the municipal territory (Taizhoushi Renmin Zhengfu guanyu jiaqiang shiqu liulang qitao renyuan jiuzhu guanlide tonggao 台州市人民政府关于加强市区流浪乞讨 人员救助管理的通告), issued on 25 March 2004 and effective from the same date. Jilin Province Jilin Province Civil Affairs office urgent circular on further intensifying the work of providing aid to vagrant beggars during the winter season ( Jilinsheng minzhengting guanyu jinyibu jiaqiang dongji qijian liulang qitao renyuan jiuzhu gongzuode jingji tongzhi 吉林省民政厅关于进一步加 强冬季期间流浪乞讨人员救助工作的紧急通知), issued on 21 January 2008 and effective from the same date.

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Liaoning Province Liaoning Province provisional rules on public order joint defense work (Liaoningsheng zhi’an lianfang gongzuo zanxing guiding 辽宁省治安联防工作 暂行规定), issued on 9 January 1990 and effective from the same date. Shenyang detailed implementing rules on shelter for deportation (Shenyangshi shourong qiansong tiaoli shishi xize 沈阳市收容遣送条例实施细则), issued on 22 March 1999 and effective from the same date. Shengyang People’s Congress Standing Committee decision on repealing the Shenyang rules on shelter for deportation (Shenyangshi Renda Changweihui guanyu feizhi Shenyangshi shourong qiansong tiaolide jueding 沈阳 市人大常委会关于废止沈阳市收容遣送条例的决定), issued on 28 November 2003 and effective from 22 December 2003. Liaoyang City temporary measures on the administration of shelter for deportation (Liaoyangshi shourong qiansong guanli zanxing banfa 辽阳 市收容遣送管理暂行办法), issued on 3 July 2002 and effective from the same date. Ningxia Hui Autonomous Region Ningxia Hui Autonomous Region rules on the administration of public order joint defense work (Ningxia Huizu Zizhiqu zhi’an lianfang gongzuo guanli guiding 宁夏回族自治区治安联防工作管理规定), issued on 27 November 1991 and effective from the same date. Shaanxi Province Shaanxi Province Price Office reply on fees in public security detention centers, compulsory drug rehabilitation centers and shelter for education centers (Shaanxisheng wujiaju guanyu gong’an jiguan zhi’an juliusuo, qiangzhi jiedusuo he shourong jiaoyusuo youguan shoufei wentide fuhan 陕西省物价局 关于公安机关治安拘留所，强制戒毒所和收容教育所有关收费问 题的复函), issued on 9 October 2005 and effective from the same date. Shandong Province Qingdao City provisional rules on public order defense work (Qingdaoshi zhi’an lianfang gongzuo zanxing guiding 青岛市治安联防工作暂行规定), issued on 22 April 1989 and effective from the same date.

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Qingdao civil affairs office circular on further intensifying the work of providing aid to vagrant beggars during the two meetings and one session (Qingdaoshi minzhengju guanyu jiaqiang liangjie yihui qijian liulang qitao renyuan jiuzhu guanli gongzuode tongzhi 青岛市民政局关于加强两节一会 其间流浪乞讨人员救助管理工作的通知), issued on 29 September 2006 and effective from the same date. Qindgdao City, Sifang District People’s Government opinion on the work of strengthening the management of aid to indigent vagrants and beggars in cities (Qingdaoshi Sifangqu Renmin Zhengfu guanyu jiaqiang chengshi shenghuo wuzhuode liulang qitao renyuan jiuzhu guanli gongzuode shishi yijian 青岛市四方区人民政府关于加强城市生活无着的流浪乞讨人 员救助管理工作的事实意见), issued on 2 May 2007 and effective from the same date. Shanxi Province Shanxi Province provisional rules on the administration of public order (Shanxisheng shehui zhi’an fangfan guanli zanxing guiding 山西省社会 治安防范管理暂行规定), issued on 26 June 1989 and effective from the same date. Shanghai Municipality Shanghai Municipality provisional rules on public order joint defense organizations (Shanghaishi zhi’an lianfang zuzhi zanxing guiding 上海市治 安联防组织暂行规定), issued on 26 January 1988, and effective from 1 March 1988. Shanghai Municipality regulations on the administration of shelter for deportation (Shanghaishi shourong qiansong guanli tiaoli 上海市收容遣送 管理条例), issued on 19 December 1991 and effective from 15 April 1992. Shanghai Municipality provisional rules on community security squads (Shanghaishi shequ bao’andui zanxing guiding 上海市社区保安队暂行规定), issued on 27 January 1999 and effective from the same date. Shanghai People’s Congress Standing Committee decision on repealing the Shanghai Municipality rules on the administration of shelter for deportation (Shanghaishi Renda Changweihui guanyu feizhi Shanghaishi

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shourong qiansong guanli tiaolide jueding 上海市市人大常委会关于废止上 海市收容遣送管理条例的决定), issued on 5 August 2003 and effective from the same date. Shanghai Pudong New District People’s Government circular establishing the leading group for the work of guiding and escorting vagrant beggars (Shanghaishi Pudong Xinqu Renmin Zhengfu guanyu chengli liulang qitao renyuan yindao husong gongzuo lingdao xiaozude tongzhi 上海市浦东新 区人民政关于成立流浪乞讨人员引导护送工作领导小组的通知), issued on 11 December 2005 and effective from the same date. Sichuan Province Sichuan Province Price Office, Sichuan Province Finance Office circular on compulsory drug rehabilitation fees (Sichuansheng wujiaju, Sichuansheng caizhengting guanyu jiedu zhiliao shoufei biaozhunde tongzhi 四川省 物价局，四川省财政厅关于戒毒治疗收费标准的通知), issued on 15 March 2000 and effective from 1 April 2000. Chengdu Price Office, Financial Office reply on drug rehabilitation fees (Chengdushi wujiaju, Chengdushi caizhengju guanyu jiedu zhiliao shoufei biaozhunde tongzhi 成都市物价局, 成都市财政局关于戒毒治疗收费 标准的通知), issued on 20 June 2002 and effective from 1 July 2002. Chengdu City Administration Office work plan on further strengthening the work of administering aid to indigent vagrant and beggars (Chengdushi guanliju guanyu jinyibu jiaqiang liulang qitao renyuan jiuzhu guanli de gongzuo fang’an 成都市城市管理局关于进一步加强流浪乞讨人员 救助管理的工作方案), issued on 4 May 2008 and effective from the same date. Luzhou Price Office, Financial Office circular on drug rehabilitation fees (Luzhoushi wujiaju, caizhengju guanyu jiedu zhiliao shoufei biaozhunde tongzhi 泸州市物价局财政局关于戒毒治疗收费标准的通知), issued on 15 May 2000 and effective from the same date. Pangzhihua Price Office, Financial Office reply on the public security bureau compulsory drug rehabilitation centers’ fee (Pangzhihuashi wujiaju, caizhengju guanyu dui shigong´anju qiangzhi jiedusuo shoufei biaozhunde pifu 攀枝花市物价局，财政局关于对市公安局强制戒毒所收费标准的 批复), issued on 3 April 2006 and effective from the same date.

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Tianjin Municipality Tianjin Municipality regulations on shelter for deportation (Tianjinshi shourong qiansong guanli tiaoli 天津市收容遣送管理条例), issued on 15 May 1996 and effective from the same date. Tianjin Municipality People’s Congress Standing Committee decision on repealing the Tianjin Municipality regulations on shelter for deportation (Tianjinshi Renda Changweihui guanyu feizhi Tianjinshi shourong qiansong tiaolide jueding 天津市人大常委会关于废止天津市收容遣送管理 条例的决定), issued on 11 July 2003 and effective from the same date. Tibet Special Autonomous Region Resolution of Tibet Special Autonomous Region’s preparatory committee on implementing the State Council Order of 28 March (Xizang Zizhiqu choubei weiyuanhui guanyu zhixing guowuyuan 3 yue 28 ri minglingde jueyi 西藏自治区筹备委员会关于贯彻执行国务院３月２８日的命 令的决议), issued on 11 April 1959 and effective from the same date. Notice of Tibet Special Autonomous Region Higher People’s Court, Tibet Special Autonomous Region Higher People’s Procuratorate, Tibet Special Autonomous Region Public Security Office (Xizang Zizhiqu gaoji renmin fayuan, Xizang Zizhiqu renmin jianchayuan, Xizang Zizhiqu gong’anting tonggao 西藏自治区高级人民法院, 西藏自治区高级人民检察院, 西藏 自治区公安厅通告), issued on 15 March 2008 and effective from the same date. Available online at . Last accessed 14 March 2009. Copy on file with he author. Xinjiang Uyghur Autonomous Region Xinjiang Uyghur Autonomous Region Planning Commission circular on the problem of subsistence and rehabilitation fees for the personnel of compulsory drug rehabilitation camps (Xinjiang Weiwuerzu Zizhiqu jiwei guanyu qiangzhi jiedusuo jiedu renyuan shenghuofei he zhiliaofei youguan wentide tongzhi 新疆维吾尔自治区计委关于强制戒毒所戒毒人员生 活费和治疗费有关问题的通知), issued on 27 June 2003 and effective from 1 July 2003. Urumqi Price Office circular on determining fee items and fees for the service of drug rehabilitation (Wulumuqishi wujiaju guanyu minque jiedu fuwufei shoufei xiangmu ji biaozhunde tongzhi 乌鲁木齐物价局关于明确戒

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毒服务费收费项目及标准的通知), issued on 23 December 1998 and effective from the same date. Xinjiang Weiwuerzu Zizhiqu Tongjiju 2003: 298. Urumqi implementation plan on the work of administering aid to vagrant and beggars (Wulumuqishi liulang qitao renyuan jiuzhu guanli gongzuo shishi fang’an 乌鲁木齐市 流浪乞讨人员救助管理工作实施方案), issued on 26 April 2006 and effective from the same date. Urumqi Municipal Government emergency notice on protecting public order (Wulumuqi shi zhengfu weihu shehui zhengchang chengxude jinji tonggao 乌鲁木齐市政府维护社会正常程序的紧急通告), issued on 6 July 2009 and effective from the same date. Reproduced in Zhongguo Xinwenshe 2009. Yunnan Province Yunnan People’s Congress Standing Committee decision on reiterating the severe prohibition of torture and mandating the strict observance of time limits for investigations and other rules (Yunnansheng Renmin Daibiao Dahui Changwu Weiyuanhui guanyu chongsheng yanjin xingxun bigong he yange zhixing ban’an shixian deng guidingde jueding 云南省人民代表大 会常务委员会关于重申严禁刑讯逼供和严格执行办案时限等规定 的通知), issued on 22 September 2000 and effective from the same date. Yunnan Province experimental rules on public order joint defense (Yunnansheng zhi’an lianfang zanxing guiding 云南省治安联防暂行规定), issued on 25 July 1992 and effective from the same date. Kunming detailed rules on public order joint defense work (Kunmingshi zhi’an lianfang gongzuo xize 昆明市治安联防工作细则), issued on 17 February 1987 and effective from the same date. Zhejiang Province Zhejiang Province Price Office, Zhejiang Province Finance Office reply letter setting fees for public security organs’ institutes of administrative detention (Zhejiangsheng wujiaju, Zhejiangsheng caizhengju guanyu heding gong’an jiguan xingzheng jiangguan changsuo shoufei biazhunde fuhan 浙江省

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物价局, 浙江省财政局关于核定公安机关行政监管场所收费标准 的复函), issued on 12 January 2006 and effective from 1 February 2006. Zhejiangsheng tongjiju 2005: 211. Zhejiang Province Public Security Bureau circular on some problems in advancing the implementation of anti-drug legislation (Zhejiangsheng gong´anting guanyu jinyibu guifan jindu zhifa gongzuo ruogan wentide tongzhi, 浙江省公安厅关于进一步规范禁毒执法工作若干问题的通知) issued on 25 August 2006 and effective from the same date. Zhejiang People’s Government General Office circular on the work of implementing the People’s Republic of China Law on Prohibiting Drugs (Zhejiangzheng Renmin Zhengfu Bangongting guanyu guanche shishi Zhonghua Renmin Gongheguo jindufa youguan gongzuode tongzhi 浙江省人民 政府办公厅关于贯彻实施中华人民共和国禁毒法有关工作的通知) issued on 25 June 2008 and effective from the same date. Zhejiang Public Security Bureau General Squad for the Management of Correctional Institutes circular on compiling and reporting the five year plan on the construction of compulsory drug rehabilitation camps, (Zhejiangsheng Gong’anting Jianguan Zongdui guanyu bianbao gong’an qiangzhi geli jiedusuo wunian jianshe jihuade tongzhi 浙江省公安厅监管总队关于编 报公安强治隔离戒毒所五年建设计划的通知), issued on 19 August 2008 and effective from the same date. Hangzhou People’s Government circular issuing the rules on the powers, internal structure, and personnel of the urban management administrative law enforcement department (Hangzhoushi renmin zhengfu guanyu yinfa Hangzhoushi chengshi guanli xingzheng zhifaju zhineng peizhi, neishe jigou he renyuan bianzhi guidingde tongzhi 杭州市人民政府关于印发杭州市 城市管理行政执法局职能配置, 内设机构和人员编制规定的通知), issued on 28 August 2001 and effective from the same date. Hangzhou opinion on the work of administering aid to indigent vagrants and beggars in cities (Hangzhoushi chengshi liulang qitao renyuan jiuzhu guanli gongzuode yijian 杭州市城市生活无着的流浪乞讨人员救 助管理工作的意见), issued on 8 October 2003 and effective from the same date.

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Wenzhou People’s Government General Office circular on the work of implementing the People’s Republic of China Law on Prohibiting Drugs (Wenzhoushi Renmin Zhengfu Bangongshi guanyu guanche shishi Zhonghua Renmin Gongheguo jindufa youguan gongzuode tongzhi 温州市人民政府 办公室关于贯彻实施《中华人民共和国禁毒法》有关工作的通 知), issued on 2 December 2008 and effective from the same date. Xiangtan City Civil Affairs Office experimental opinion on further strengthening the work of administering aid to indigent vagrants and beggars in cities (Xiangtanshi Minzhengju guanyu jinyibu jiaqiang chengshi liulang qitao renyuan jiuzhu guanli yijian 鹰潭市民政局关于进一步加强 城市流浪乞讨人员救助管理意见试行), 17 June 2005. Yiwu Civil Affairs Office opinion on the work of further strengthening the management of aid to indigent vagrants and beggars in the municipal territory (Yiwushi minzhengju guanyu jinyibu jiaqiang shiqu liulang qitao renyuan jiuzhu guanli gongzuode yijian, 义乌市民政局关于进一步加 强市区流浪乞讨人员救助管理工作的意见), issued on 23 February 2006 and effective from the same date. Republic of China Provisional Constitution of the Republic of China (Zhonghua Minguo linshi yuefa 中华民国临时约法), issued on 10 March 1912 and effective from the same date. Temporary regulations on prohibiting drugs ( Jindu zhizui zanxing tiaoli 禁毒治罪暂行条例), reproduced in Qiu 1998: 789–90. Criminal Law of the Republic of China (Zhonghua Minguo xingfa 中华民国刑法), promulgated on 10 March 1935 and effective from 1 September 1935. Temporary regulations on prohibiting drugs ( Jindu zhizui zanxing tiaoli 禁毒治罪暂行条例) issued on 3 June 1937 and effective from the same date, reproduced in Qiu 1998: 791–93.

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Temporary regulations on prohibiting drugs ( Jindu zhizui zanxing tiaoli 禁毒治罪暂行条例) issued on 8 February 1947 and effective from the same date, reproduced in Qiu 1998: 795–96.

REFERENCE LIST Agamben, Giorgio. 1993. The Coming Community. Minneapolis: University of Minnesota Press. ——. 1995. Homo Sacer. Il Potere Sovrano e la Nuda Vita. Torino: Einaudi. ——. 1998. Homo Sacer. Sovereign Power and Bare Life. Stanford, CA: Stanford University Press. ——. 2001. La Comunità che viene. Torino: Bollati Boringhieri. ——. 2005a. State of Exception. Chicago: University of Chicago Press. ——. 2005b. Stato di Eccezione. Torino: Bollati Boringhieri. ——. 2006. Che cos’è un dispositivo? Roma: Nottetempo. Aggleton, Peter, Andrew Ball, and Purnima N. Mane. 2006. Sex, Drugs and Young People: International Perspectives. London: Routledge. Ajani, Gianmaria. 2003. “Legal Taxonomy and European Private Law.” In Gemeinsame Prinzipien des Europäischen Privatrechts, edited by Gianmaria Ajani and Reiner Schulze. BadenBaden. Ajani, Gianmaria, L. Lesmo, G. Boella, A. Mazzei, and P. Rossi. 2007a. “Multilingual Ontological Analysis of European Directives.” In Proceedings of the 45th Annual Meeting of the Association for Computational Linguistics (Companion Volume: Proceedings of the Demo and Poster Sessions). June. Prague: Association for Computational Linguistics. pp. 21–24. ——. 2007b. “Terminological and Ontological Analysis of European Directives: Multilinguism in Law.” In Proceedings of the International Conference on Artificial Intelligence and Law. June 4–8. Stanford, CA: Stanford Law School, Stanford. pp. 43–48. Alabaster, Ernest. 1899. Notes and Commentaries on Chinese Criminal Law, and Cognate Topics. London: Luzac and Company. Albrecht, Hans-Jörg, and Chen Guangzhong. 2004. Coercive Measures in a Socio-Legal Comparison of the People’s Republic of China and Germany. Freiburg im Bresgau: Edition Iuscrim. Amnesty International. 1991. China: Punishment Without Crime: Administrative Detention. London and New York: Amnesty International Publications. ——. 2001. Torture—A Growing Scourge in China. Time for Action. ASA 17/004/2001. ——. 2005. Italy: Temporary Stay—Permanent Rights: The Treatment of Foreign Nationals Detained in “Temporary Stay and Assistance Centres” (CPTAs). EUR 30/004/2005. ——. 2007. Amnesty International Report 2007. The State of the World’s Human Rights. London: Amnesty International Publications. Anagnost, Ann. 1997. National Past-Times. Narrative, Representation and Power in Modern China. Durham, NC: Duke University Press. Anderson, Gail Scott. 2007. Biological Influences on Criminal Behavior. Boca Raton, Fla: CRC/Taylor and Francis. Anhui zaixian (安徽再线). 2007. “Gongdianju fujuzhang bei bigong dasi” (供电局副 局长被逼供打). 13 November. Available online at . Last accessed 16 January 2008. Copy on file with the author. Anhuisheng, Renmin Zhengfu Fazhi Bangongshi (安徽省人民政府办公室). 2005. “Hefeishi chengshi guanli xingzheng zhifaju jijiang zhengzhi guapai yunxing” (合肥市城市管理行政执法局即将正式挂牌运行). Anhuisheng Renmin Zhengfu Fazhi Bangongshi (安徽省人民政府法制办公室). 26 August. Available online at . Last accessed 15 February 2009. Copy on file with the author.

318

reference list

Anshunshi, Renmin Zhengfu (安顺市人民政府). 2008. “Anshun laojiaosuo shouci shourong qiangzhi geli jiedu renyuan” (安顺劳教所首次收容强制隔离戒毒人员). Anshunshi Renmin Zhengfu. (安顺市人民政府). 25 June. Available online at . Last accessed 13 May 2009. Copy on file with the author. Apperson, Joy L., Edward J. Mulvey, and Charles W. Lidz. 1993. “Short-Term Criminal Prediction of Assaultive Behavior: Artifacts of Research Methods.” The American Journal of Psychiatry 150, n. 9:1007–11. Bakken, Børge. 2000. The Exemplary Society: Human Improvement, Social Control, and the Dangers of Modernity in China. Oxford: Oxford University Press. ——. 2005. “Comparative Perspectives on Crime in China.” In Crime, Punishment and Policing in China, edited by Børge Bakken, pp. 64–99. Lanham: Rowman and Littlefield. Balakrishnan, Gopal. 2000. The Enemy. An Intellectual Portrait of Carl Schmitt. London: Verso. Balazs, Étienne. 1954. Le Traité Juridique du “Souei-Chou.” Leiden: E. J. Brill. Bandura, Albert. 1990. “Selective Activation and Disengagement of Moral Control.” Journal of Social Issues 46: 27–46. Banyuetan, Neibuban (半月谈内部版), n. 136 (8 April 1997). Barlow, Tani. 1997. Formations of Colonial Modernity in East Asia. Durham, NC: Duke University Press. Bauman, Zygmunt. 2004. Wasted Lives: Modernity and Its Outcasts. Cambridge: Polity Press. ——. 2005. Liquid Life. Cambridge: Polity Press. ——. 2006. Liquid Fear. Cambridge: Polity Press. Baumler, Alan Thomas. 1997. “Playing with Fire: the Nationalist Government and Opium in China, 1927–1941.” Ph.D. diss., University of Illinois. Bays, Daniel H. 2003. “Chinese Protestant Christianity Today, “The China Quarterly, n. 174, Religion in China Today, June, pp. 488–504. BBC. 2006. “In Pictures: New Abu Ghraib Images.” BBC News, 16 February. Available online at . Last accessed 15 January 2009. Copy on file with the author. Beccaria, Cesare. 1973. Dei Delitti e delle Pene. Milano: U. Mursia and C. Beijing daxue fazhi xinxi zhongxin, Beida yinghua keji youxiang gongsi (北京大学 法制信息中心 北大影华科技有限公司). 2001. Zhongguo falü fagui daquan 2001 (中国法律法规大全 2001). Beijing: Beijing Daxue Chubanshe (北京: 北京大学出 版社). Beijing jindai chengshi falü fagui zhengli yu yanjiu ketizu (北京近代城市法律法规整 理与研究课题组). 2006. Jindai Beijing chengshi guanli fagui yanjiu (近代北京城市管理 法规研究). Beijing: Xinhua Chubanshe (北京: 新华出版社). Beijing, Qingnianbao (北京青年报). 2002. “Jingcha xingxun bigong shoushen” (警察刑讯逼供受审). 24 December. Available online at . Last accessed 10 April 2009. Copy on file with the author. Beijingshi difangzhi bianji weiyuanhui (北京市地方志编辑委员会). 1998. Beijingzhi. Jihuazhi (北京志 计划志). Beijing: Beijing Chubanshe (北京: 北京出版社). ——. 2002. Beijingzhi. Shizhengjuan. Huanjing weishengzhi (北京志 市政卷 环境卫生). Beijing: Beijing Chubanshe (北京: 北京出版社). ——. 2003. Beijingzhi weishengjuan (北京志 卫生卷). Beijing: Beijing Chubanshe (北京: 北京出版社). ——. 2006. Beijingzhi. Zhengfajuan. Jianyu laojiaozhi (北京志 政法卷 监狱劳教志). Beijing: Beijing Chubanshe (北京: 北京出版社). Beijingshi Fangshanqu zhi bianji weiyuanhui (北京市房山区志编辑委员会). 1999. Beijingshi Fangshanqu zhi (北京市房山区志). Beijing: Beijing Chubanshe (北京: 北京 出版社).

reference list

319

Beijingshi, Tongjiju (北京市统计局). 2004. Beijing tongji nianjian 2003 (北京统计年鉴). Beijing: Beijing Tongji Chubanshe (北京: 北京统计出版社). Bentham, Jeremy. 1995. The Panopticon Writings. Edited by Miran Bozovic. London: Verso. Berman, Harold J., Susan Cohen, and Malcom Russel. 1982. “A Comparison of the Chinese and Soviet Codes of Criminal Law and Procedure.” Journal of Criminal Law and Criminology 73, n. 1: 238–58. Bianco, Lucien. 2001. Peasants without the Party. Grass-Roots Movements in Twentieth-Century China. Armonk, New York: M. E. Sharpe. Biddulph, Sarah. 1993. “Review of Police Powers of Administrative Detention in the People’s Republic of China.”Crime and Delinquency, 39: 337–54. ——. 2007. Legal Reform and Administrative Detention Powers in China. Cambridge, MA: Cambridge University Press. ——. 2009. “Rehabilitating Drug Addicts: Reeducation through Labour and the 2007 Drug Prohibition Law.” Paper presented at the ECLS Fourth Annual Conference, 20 June, Wien. Paper on file with the author. Bin, Liang. 2008. The Changing Chinese Legal System, 1978–Present. Centralization of Power and Rationalization of the Legal System. New York: Routledge. Bing’ Lu, and Wu Xuejun (炳路 学军). 2005. “She Xianglin shaqi yuan’anxu: yiming dangnian ban’an minjing ziyi shenwang” (佘祥林杀妻冤案续：一名当年办案 民警自缢身亡). Xinjingbao (新京报). 26 May. Available online at Last accessed 24 January 2010. Blakeley, Ruth. 2007. “Why Torture?” Review of International Studies 33: 373–94. Bodde, Derk, and Clarence Morris. 1967. Law in Imperial China Exemplified by 190 Ch’ing Dynasty Cases. Cambridge, MA: Harvard University Press. Bourgon, Jerôme. 2003a. “Chinese Executions: Visualising Their Differences with European Supplices.”European Journal of East Asian Studies 2, n. 1: 153–84. ——. 2003b. “Abolishing ‘Cruel Punishments’: A Reappraisal of the Chinese Roots and Long-Term Efficiency of the Xinzheng Legal Reforms.” Modern Asian Studies 37, n. 4: 851–62. ——. 2003–2004a. Chinese Torture. Decapitation in Beijing. Available online at . Last accessed on 10 March 2010. ——. 2003–2004b. Chinese Torture. Visual Sets. Postcards Serial. Les supplices chinois n. 3. 70008. Available online at . Bracey, Dorothy H. 1988. “Like a Doctor to a Patient, Like a Parent to a Child— Corrections in the People’s Republic of China.”The Prison Journal, n. 68: 24–33. Branigan, Tania. 2009. “China Quarantines Mexicans over Swine Flu Fears.” The Guardian, 3 May. British Broadcasting Corporation. 2005. “Sweden ‘Violated’ Torture Treaty.”British Broadcasting Corporation. 21 May. Available online at . Last accessed 4 March 2008. Copy on file with the author. Brodgsard, Kjeld Erik, and Zheng Yongnian., eds. 2006. The Chinese Communist Party in Reform. London and New York: Routledge. Brook, Timothy, Jérôme Bourgon, and Gregory Blue. 2008. Death by a Thousand Cuts. Cambridge, MA: Harvard University Press. Brown, Ronald C. 1997. Understanding Chinese Courts and Legal Process: Law with Chinese Characteristics. The Hague: Kluwer Law. Brownell, Susan. 1995. Traning the Body for China: Sports in the Moral Order of the People’s Republic. Chicago: University of Chicago Press. Brugger, Bill. 1981. China, Liberation and Transformation, 1949–1962. Lanham: Rowman and Littlefield.

320

reference list

Bu, Yuntong, and Ji Qinwei (卜云彤 冀琴伟). 2008. “Liuchang jiuye: gei jiedu renyuan huigui shehui yige guoduqi” (留场就业：给戒毒人员回归社会一个过渡期). Available at . Last accessed 11 December 2008. Buchanan, Tony W., and William R. Lovallo. 2001. “Enhanced Memory for Emotional Material Following Stress-Level Cortisol Treatment in Humans.” Psychoneuroendocrinology 26: 307–17. Buxmaum, David. 1962. “Preliminary Trends in the Development of the Legal Institutions of Communist China and the Nature of the Criminal Law.” The International and Comparative Law Quarterly 11, n. 1: 1–30. Cao, Jianming. (曹建明). 2009. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民 检察院工作报告). 10 March. Available online at < http://news.xinhuanet.com/ newscenter/2009-03/17/content_11025262_1.htm>. Last accessed 10 March 2010. Copy on file with the author. Cao, Liqun, and Charles Hou. 2001. “A Comparison of Confidence in the Police in China and in the United States.” Journal of Criminal Justice, n. 29: 87–99. Cao, Ruixing, and Cheng Hui (曾瑞星 陈慧). 1996. “Wuhan diqu 186 li xiduzhe shehuixue diaocha” (武汉地区 186 例吸毒者社会学调查). Hubei Yufang Yixue Zazhi (湖北预防医学杂志), n. 7: 36–38. Cao, Wen’an. (曹文安) 2005. “Xingxun bigongzuide lifa wanshan” (刑讯逼供罪的立 法完善). Gong’an Yanjiu (公安研究), n. 5: 34–39. Ceng, Pengyu (曾鹏宇). 2004. “Younü esi neiju shezhiguo. Ban’an minjing haishi xidu muqin?” (幼女饿死悲剧谁之过 办案民警还是吸毒母亲?). 26 June. Available at . Last accessed 24 January 2010. Chan, Anita, and Jonathan Unger. 1982. “Grey and Black: The Hidden Economy of Rural China.” Pacific Affairs 55, n. 3: 452–71. Chan, Cheris Shun-ching. 2004. “The Falungong in China. A Sociological Perspective.” The China Quarterly, n. 179: 665–83. Chan, Joseph Man. 2003. “Administrative Boundaries and Media Marketization. A Comparative Analysis of the Newspaper, TV and Internet Markets in China.” In Chinese Media, Global Contexts, edited by Chin-cuan Lee, pp. 159–76. London, New York: Routledge, 2003. Chaney, Christopher. 2005. “The Despotic State Department in Refugee Law: Creating Legal Fictions to Support Falun Gong Asylum Claims.”Asian-Pacific Law and Policy Journal 6, no. 1: 130–73. Chang, I-Huai. 1998. “An Analysis of the CCP’s Role in Mainland China’s State Supervisory System.” Issues and Studies 34, n. 1: 38–78. Chang, Kuo-T’ao. 1971. The Rise of the Chinese Communist Party. 1921–1927. Lawrence: The University of Kansas. Chen, Cunfu, and Huang Tianhai. 2004. “The Emergence of a New Type of Christian in China Today.” Review of Religious Research 46, n. 2 (December): 183–200. Chen, Fan (陈凡). 1990. “Shilun youguan zhi’anduide jige falü wenti” (试论有关治安 队的几个法律问题). Gong’an Daxue Xuebao (中国人民公安大学学报), n. 4: 38–39. Chen, Guangzhong, and Xu Jingcun (陈光中 徐静村). 2000. Xingshi Susongfaxue (刑事诉讼法学). Beijing: Zhongguo Zhengfa Daxue Chubanshe (北京: 中国政法 大学出版社). Chen, Jianfu. 1999. Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Development. The Hague: Kluwer Law. ——. 2008. Chinese Law: Context and Transformation. Leiden, Boston: Martinus Nijhoff. Chen, Nancy. 2003. Breathing Spaces: Qigong, Psychiatry and Healing in China. New York: Columbia University Press. Ch’en, Paul Heng-chao. 1979. Chinese Legal Tradition under the Mongols. The Code of 1291 as Reconstructed. Princeton: Princeton University Press.

reference list

321

Chen, Philip M. 1973. Law and Justice. The Legal System in China 2400 B.C. to 1960 a.d. New York: Dunellen Publishing Company. Chen, Xi (陈曦). 2004. “Dui renmin jingcha liuzhi panwenquande falü sikao” (对人 民警察留置盘问权的法律思考). Yunnan Jingguan Xueyuan Xuebao (云南警官学院 学报), n. 2: 79–81. Chen, Xiaoming. 2002. “Community and Policing Strategies: A Chinese Approach to Crime Control.” Policing and Society 12, n. 1: 1–13. Chen, Yongfeng (陈永峰). 2004. “Yange guifan liuzhi panwen cuoshi” (严格规范留 置盘问错事). Renmin Gong’anbao (人民公安报), 24 September, 6. Chen, Yunsheng (陈云生). 2000. Fan kuxing. Dangdai zhongguode fazhi he renquan baohu (反酷刑 当代中国的法制和人权保户). Beijing: Shehui Kexue Wenxian Chubanshe (北京: 社会科学文献出版社). Chen, Zhimin, and Wang Xiaosuo (陈志民 王晓锁). 2004. “Nanjiang diqu bao’an fuwuye xianzhuang diaocha” (南疆地区保安服务业现状调查). Xinjiang Jingguan Gaodeng Zhuangke Xuexiao Xuebao (新疆警官高等专科学校学报), n. 2: 61–63. Cheng, Weirong (程维荣). 2004. Dangdai zhongguo sifa xingzheng zhidu (当代中国司法行 政制度). Shanghai: Shanghai Xuelin Chubanshe (上海: 上海学林出版社). China Internet Network Information Centre. 2009. Statistical Survey Report on the Internet Development in China. Available online at . Last accessed 22 June 2009. Copy on file with the author. China News Digest. 2004. “Tangguan zhennu: Zhongguo 120ming ‘shuanggui’ renyuan zisha,” 30 August. China’s Prison Police. 2008. Xin Shiji Jianyuwang (新世纪监狱网). Available online at . Last accessed 9 August 2008. Copy on file with the author. Chiu, Hungdah. 1979. “Certain Problems in Recent Law Reform in the People’s Republic of China.” Comparative Law Yearbook, n. 3: 1–31. ——. 1980. Socialist Legalism: Reform and Continuity in Post-Mao’s People’s Republic of China. Baltimore: University of Maryland, School of Law. Chongqing, Chenbao (重庆晨报). 2007. “Dongshizhang shuanggui zhisi`an, Hebei guoziwei liang jijian ganbu bei panxing” (董事长双规致死案, 河北国资委两纪检 干部被判刑). 4 February 2006. Reprinted on Peixian guoziban. Available at . Last accessed 22 November 2007. Copy on file with the author. Chongqingshi Yongchuanqu Renmin Fayuan (重庆市永川区人民法院). 2008. “Yongchuanqu zhaokai gongbu gongpan dahui” (重庆永川区召开公捕公判大会). Chongqing Yongchuan Pufawang (重庆永川普法网). 26 June. Available at . Last accessed 30 July 2009. Copy on file with the author. Chryssides, George D., and Margaret Z. Wilkins. 2006. A Reader in New Religious Movements. New York: Continuum. Chu, Huaizhi, Chen Xingliang, and Zhang Shaoyan (储槐植 陈兴良 张绍彦). 2002. Lixing yu zhixu. Zhongguo laodong jiaoyang zhidu yanjiu (理性与秩序 中国劳动教养制度 研究). Beijing: Falü Chubanshe (北京: 法律出版社). Ch’ü, Tung-tsu. 1961. Law and Society in Traditional China. Paris: Mouton and Company. Chu, Yongqiang, and Hao Jianmin (咎永强 郝建民). 1995. “Qianxi zhongdian renkou guanli shikongde chengyin ji duice” (浅析重点人口管理失控的成因及对策). Beijing Renmin Jiancha Xueyuan Xuebao (北京人民警察学院学报), n. 6: 42–44. Clarke, Donald D. 1998. Wrongs and Rights: A Human Rights Analysis of China’s Revised Criminal Law. New York: Lawyers Committee for Human Rights. ——. 1999. “Alternative Approaches to Chinese Law: Beyond the ‘Rule of Law’ Paradigm.” Waseda Proceedings of Comparative Law 2: 49–62.

322

reference list

——. 2001. “Puzzling Observations in Chinese Law: When Is a Riddle just a Mistake?” Available at SSRN . Last accessed 10 March 2010. Clarke, Donald D., and James Feinerman, 1995. “Antagonistic Contradictions: Criminal Law and Human Rights in China.” The China Quarterly, n. 141: 135–54. Cohen, Jerome Alan. 1966. “The Criminal Process in the People’s Republic of China: An Introduction.” Harvard Law Review 79, n. 3 ( January): 469–533. ——. 1968. The Criminal Process in the People’s Republic of China, 1949–1983: An Introduction. Harvard: Harvard University Press. ——. 1978. “China’s Changing Constitution.” The China Quarterly, n. 76: 794–841. ——. 1982. “Foreword: China’s Criminal Codes.” The Journal of Criminal Law and Criminology 73, n. 1: 135–37. Cohen, Jerome, and Eva Pils. 2009. “The Disappearance of Gao Zhisheng. Another ‘Disappeared’ Dissident in China”, The Wall Street Journal, 9 February. Cohen, Elizabeth J., and Joseph J. Amon 2008. “Health and Human Rights Concerns of Drug Users in Detention in Guangxi Province, China.” PloS Medicine 5, no. 12:1682–88. Congressional Executive Commission on China, 2005. Annual Report 2005. Washington: U.S. Government Printing Office. ——. 2009. Political Prisoner Database. Available online at . Conroy, John. 2000. Unspeakable Acts, Ordinary People. The Dynamics of Torture. Berkeley: University of California Press. Corne, Peter. 2002. “Creation and Application of Law in the PRC.” The American Journal of Comparative Law 50, n. 2: 369–443. Council of Europe. 2008. “No One Should Have to Be Stateless in Today’s Europe.” Viewpoint of 9 June. Available at . Last accessed 12 January 2010. Cox, Lawrence. 2007. “Freedom of Religion in China: Religious, Economic and Social Disenfranchisement for China’s Internal Migrant Workers.” The Asian-Pacific Law and Policy Journal 8, no. 2: 371–430. Cowen, Jonathan M. 1993. “One Nation’s ‘Gulag’ Is Another Nation’s ‘Factory within a Fence’: Prison-Labor in the People’s Republic of China and the United States of America.” UCLA Pacific Basin Law Journal, 12 (fall): 190–236. Crawford, Adam. 1997. The Local Governance of Crime: Appeals to Community and Partnerships, Oxford: Clarendon. Dai, Mengyan. 2008. “Policing in the People’s Republic of China: A Review of Recent Literature.”Crime, Law and Social Change, n. 50: 211–27. Dai, Suoping, and Zhao Zhenhuan (戴俊平 赵振环). 1996. “Guangzhou diqu hailuoyin yilaizhe shehui diaocha” (广州地区海洛因依赖者社会调查). Jiankang Xinlixue (健康心理学), n. 4: 256–57. Dahewang (大河网). 2007. “Nanzi paichusuo nei liqi siwang. Gong’anju fujuzhang daibairen qianghu” (男子派出所内离奇死亡 公安局副局长带百人抢尸). 5 May 2007. Available at . Last accessed 15 November 2008. Copy on file with the author. Dangzheng ganbu dangnei jiandu he jilü chufen guiding (党政干部党内监督和纪律 处分规定). 2004. Dangzheng ganbu dangnei jiandu he jilü chufen guiding (党政干部党内监 督和纪律处分规定). Beijing: Zhongguo Fazhi Chubanshe (北京: 中国法制出版社). Danner, Mark. 2004. Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review of Books. Dayangwang (大洋网). 2007. “Guangxi faguan kanshousuo baowang, yizao xingxun bigong” (广西法官看守所疑遭刑讯逼供暴亡). 24 April. Available at . Last accessed 15 January 2008. Copy on file with the author.

reference list

323

De Angeli, Aglaia. 2008. “Early 1930s China: State, Fascism and Law.” Paper presented at the Seventeenth Biennial Conference of the European Association for Chinese Studies, Lund University, 6–10 August 2008. Dermott, Joseph P. 1981. “Bondservants in the T’ai-hu Basin during the Late Ming: A Case of Mistaken Identities.” The Journal of Asian Studies 40: 675–701. Dikötter, Frank. 1997. “Crime and Punishment in Post-Liberation China: The Prisoners of a Beijing Gaol in the 1950s.” The China Quarterly, n. 149: 147–59. ——. 1998. Imperfect Conceptions: Medical Knowledge, Birth Defects, and Eugenics in China. New York: Columbia University Press. ——. 2003. “The Emergence of Labour Camps in Shandong Province, 1942–1950.” The China Quarterly, n. 175: 803–17. Domenach, Jean-Luc. 1992. Chine: l’Archipel Oublié. Paris: Fayard. Dong Yanming (董艳明). 2005. “Jiedu ‘gong’an jiguan shiyong jixu panwen guiding’ xiangguan wenti” (解读公安机关适用继续盘问规定相关问题). Wuhan Gong’an Ganbu Xueyuan Xuebao (武汉公安干部学院学报), n. 3:12–16. Du, James J. 2004. Punishment and Reform: An Introduction to the Reform-through-Labour System in the People’s Republic of China. Hong Kong: Lo Tat. Du Jinfeng. 1997. “Police-Public Relations: A Chinese View.” The Australian and New Zealand Journal of Criminology 30, n. 1: 87–94. Du Xinzhong (杜新忠). 2002. “Zhiliao shequ zai qiangzhi jiedusuode yinyong” (治疗社区在强制戒毒所的应用). Zhongguo Yaowu Yilaixing Zazhi (中国药物依赖性 杂志) 11, n. 4: 310–12. Dunn, Emily C. 2009. “ ‘Cult,’ Church, and the CCP: Introducing Eastern Lightning.” Modern China 35, n. 1: 96–119. Dutton, Michael. 1992. Policing and Punishment in China: From Patriarchy to “The People.” Cambridge, MA: Cambridge University Press. ——. 2005. Policing Chinese Politics: A History. Durham: Duke University Press. ——. 2007. “Toward a Government of the Contract: Policing in the Era of Reform.” In Crime, Punishment and Policing in China, edited by Børge Bakken, pp. 189–235. Lanham: Rowman and Littlefield. Dutton, Michael, and Lee Tianfu. 1993. “Missing the Target? Policing Strategies in the Period of Economic Reform.” Crime & Delinquency, n. 39: 316–36. Ebert, Angela, and Murray J. Dick. 2004. “The Experience of Mental Death: The Core Feature of Complex Posttraumatic Stress Disorder.” Clinical Psychology Review, n. 24: 617–35. Eng, Robert Y. 1986. “Institutional and Secondary Landlordism in the Pearl River Delta, 1600–1949.” Modern China 12, n. 1: 3–37. Erie, Matthew S. 2003. “Through Culture and its Disciplines: Human Rights and the Institutionalization of Law in China.” Working paper 13, Ithaca, New York: Cornell Law School Working Paper Series. Falü Chubanshe Fagui Zhongxin (法律出版社法规中心). 2007. Xinbian gong’anfa xiaoquanshu 2007 (新编公安法小全书 2007). Beijing: Falü Chubanshe (北京: 法律 出版社). Falun Dafa Association. 2007. “What is Falun Dafa?” Available online at . Last accessed 10 June 2008. Copy on file with the author. Fazhi Ribao (法制日报). 2008. “Dazao jiedu kangfu “zhongtudao” Xinjiang laojiao jiedu kangfu zhongxinde gushi”. (打造戒毒康复 “中途岛” 新疆劳教康复中心的 故事). 24 June. On file with the author. ——. 2009. “Beijingshi Chaoyangqu jianchayuan shidian feifa yhengju paichu, wenti zhengju tongguo tingzheng jueding shifou caixing” (北京市朝阳区检察院试点非 法证据排除 问题证据通过听证决定是否采). 26 March. Available at . Last accessed on 11 January 2010.

324

reference list

Feng, Liping (冯丽平). 2006. “Dui xidu renyuan houxu jiaoyu moshi he shenghuo fangshide sikao” (对吸毒人员后续教育模式和生活方式的思考) Yunnan Jingguan Xueyuan Yuebao (云南警官学院学报), n. 1: 25–28. Feng, Yao (冯玥). 2003 . “Chengdu younü Li Siyi bei esi’an chensi: meyou ren xing mianyu zui” (成都幼女李思怡被饿死案沉思：没有人幸免于罪). Zhongguo Qingjianbao (中国青年报). 25 August. Available at . Last accessed 25 January 2010. Fiske, Susan T., Lasana T. Harris, and Amy J. C. Cuddy. 2004. “Why Ordinary People Torture Enemy Prisoners.” Science 306: 1482–83. Foucault, Michel. 1970. The Order of Things: An Archaeology of the Human Sciences. New York. Pantheon. ——. 1978. Discipline and Punish: The Birth of the Prison. New York: Pantheon. ——. 1984. The Foucault Reader. Edited by Paul Rabinow. Pantheon: New York. ——. 1998. The Will to Knowledge: The History of Sexuality. Vol. 1. London: Penguin. France 24. 2009. “Scores Killed in Xinjiang Riots.” 6 July. Available online at . Last accessed 7 July 2009. Copy on file with the author. Fraser, A. D., and D. Worth. 2004. “Urinary Excretion Profiles of 11-nor-9-carboxy-delta9-tetrahydrocannabinol and 11-hydroxy-delta9-THC: Cannabinoid Metabolites to Creatinine Ration Study 4.” Forensic Science International 133, n. 1–2: 147–52. Fraser, David. 2003. “The Fragility of Law: Anti-Jewish Decrees, Constitutional Patriotism, and Collaboration Belgium 1940–1944.” Law and Critique, n. 14: 253–75. Fravel, Taylor M. 2000. “Online and on China: Research Resources in the Information Age.” China Quarterly, n. 163 (September): 821–42. Friedman, Edward, Paul G. Pickowicz, and Mark Selden. 2005. Revolution, Resistance, and Reform in Village China. New Haven, CN: Yale University Press. Friedman, Warren. 1994. “The Community Role in Community Policing.” In The Challenge of Community Policing, edited by P. Rosenbaum, pp. 263–73. Thousand Oaks, CA: Sage. Fu, Hualing. 1994. “A Case for Abolishing Shelter for Examination: Judicial Review and Police Powers in China.” Police Studies 17, n. 4: 41–60. ——. 2005a. “Punishing for Profit: Profitability and Rehabilitation in a Laojiao Institution.” In Engaging the Law in China. State, Society, and Possibilities for Justice, edited by Neil J. Diamant, Stanley B. Lubman, and Kevin J. O’Brien, pp. 213–30. Stanford, CA: Stanford University Press. ——. 2005b. “Re-Education through Labour in Historical Perspective.” The China Quarterly, n. 184: 811–30. ——. 2005c. “Zhou Yongkang and Recent Police Reform in China.” Australian and New Zealand Journal of Criminology 38, n. 2: 241–53. ——. 2009. “Dissolving Laojiao.” China Rights Forum, n. 1: 54–58. Fujian Jindu Weiyuanhui Bangongshi (福建禁毒委员会办公室). 2006. “Sanyashi tansuo jiedu kangfu xinlu, peiyang xueyuan yizhi zhizhang” (三亚市探索戒毒康 复新路, 培养学员一技之长). Fujian Jinduwang (福建禁毒网). 21 December. Available online at . Last accessed 14 January 2009. Copy on file with the author. Fujiansheng Tongjiju (福建省统计局). 2000. Fujian tongji nianjian 1999 (福建统计年鉴 1999). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Fuselier, Dwayne G. 1999. “Placing the Stockholm Syndrome in Perspective.” FBI Law Enforcement Bulletin, n. 68, issue 7: 22–26. Fuzhou Jingji Jishu Kaifaqu Tongjiju (福州经济技术开发区统计局). 2000. Fuzhou jingji jishu kaifaqu nianjian 1999 (福州经济技术开发区年鉴 1999). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Gacono, Carl B., and Barton Evans. 2007. The Handbook of Forensic Rorschach Assessment. London: Routledge.

reference list

325

Gan, Jiang, and Fang Cun (赣江 方寸). 2002. “Saomiao Jiangxi hei bao’an” (扫描江 西黑保安). Jingcha Tiandi (警察天地), n. 5: 8–10. Gansusheng, Tongjiju (甘肃省统计局). 2007. “2007nian 10 yue gansu chengzhen renmin shenghuo” (2007年10月甘肃城镇人民生活). Gansu tongji xinxiwang (甘肃统计 信息网). Available at . Last accessed 28 April 2008. Copy on file with the author. Gao, Jieru (高洁如). 2005. “Zhi’an lianfang zhidu huigu yu zhanwang” (治安联防制 度回顾与展望). Xinjiang Jingguan Zhuanke Xuexiao Xuebao (新疆警官专科学校学报), n. 2: 24–27. Gao, Mingxuan, and Ma Kechang (高明铉 马克昌). 2000. Xingfaxue (刑法学). Beijing: Beijing Daxue Chubanshe (北京: 北京大学出版社). Ge, Zhishan (葛志山). 1997. “Zhi’an lianfang duiyuan buliang xinli yishi jiqi duice” (治安联防队员不良心理意识及其对策). Jiangsu Gong’an Zhuangke Xuexiao Xuebao (江苏公安专科学校学报), n. 3: 94–97. Geng, Lianhai (耿连海). 2004. Gong’an jiguan guanxia’an zhuisu biaozhun (公安机关管辖 案追诉标准). Beijing: Qunzhong Chubanshe (北京: 群 出版社). Germani, Massimo, Salvatore Terriero, and Paolo Bernini. 2004. “Psychopathological Consequences of Extreme Trauma in a Population of Refugees Who Survived Torture.” Journal of Psychosomatic Research 56, n. 6: 581. Giddens, Anthony. 1979. Émile Durkheim. New York: Viking Press. Gilbert, Martin. 1993. Atlas of the Holocaust. New York: William Morrow and Company. Golden, Tim. 2007. “Chinese Leave Guantámo for Albanian Limbo.” The New York Times, 10 June. Gong, Ting. 2002. “Dangerous Collusion: Corruption as a Collective Venture in Contemporary China.” Communist and Post-Communist Studies 35, no. 1: 85–104. ——. 2008. “The Party Discipline Inspection in China: Its Evolving Trajectory and Embedded Dilemmas.” Crime, Law and Social Change 49, n. 2: 139–52. Gong’an ban’an shiwu congshu bianji weiyuanhui (公安办案事务丛书编辑委员会). 2006a. Zhi’an guanli falü shiyong zhinan (治安管理法律适用指南). Beijing: Zhongguo Fazhi Chubanshe (北京: 中国法制出版社). ——. 2006b. Jiansuo guanli falü shiyong zhinan (监所管理法律适用指南). Beijing: Zhongguo Fazhi Chubanshe (北京: 中国法制出版社). Gong’an jiguan banli xingzheng anjian chengxu guiding shiyong shouce bianxiezu (公安机关办理行政案件程序规定使用手册编写组). 2004. Gong’an jiguan banli xingzheng anjian chengxu guiding shiyong shouce (公安机关办理行政案件程序规定使用 手册). Beijing: Minzu Chubanshe (北京: 民族出版社). Gong’anbu diyi yanjiusuo (公安部第一研究所). 2009. Gong’anbu diyi yanjiusuo, The First Research Institute of the Ministry of Public Security of P.R.C. Available at . Last accessed 3 July 2009. Copy on file with the author. Gong’anbu Jinduju (公安部禁毒局). 2000. 2000nian Zhongguo jindu baogao (2000年中 国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中 国国家禁毒委员会办公室). ——. 2001. 2001nian Zhongguo jindu baogao (2001 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). ——. 2002. 2002nian Zhongguo jindu baogao (2002 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). ——. 2003. 2003nian Zhongguo jindu baogao (2003 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). ——. 2004. 2004nian Zhongguo jindu baogao (2004 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). ——. 2005. 2005nian Zhongguo jindu baogao (2005 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). ——. 2006. 2006nian Zhongguo jindu baogao (2006 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室).

326

reference list

——. 2007. 2007nian Zhongguo jindu baogao (2007 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). ——. 2008. 2008nian Zhongguo jindu baogao (2008 年中国禁毒报告). Beijing: Zhongguo Guojia Jindu Weiyuanhui Bangongshi (北京: 中国国家禁毒委员会办公室). Greenhalg, Susan, and Edwin Winckler. 2005. Governing China’s Population: From Leninist to Neoliberal Biopolitics. Stanford, CA: Stanford University Press. Gries, Peter Hays, and Stanley Rosen. 2004. State and Society in Twenty-First Century China: Crisis, Contention and Legitimacion. New York: Routledge. Gu, Yingchun (谷迎春). 2004. “Chonggou woguo xianxing sanzhong jiedu moshi” (重构我国现行三种戒毒模式). Gong’an Xuekan (公安学刊), n. 3: 5. Guan, Xiangdong, Yi Haiming, and Peng Xiaoyun (关向东 尹海明 彭小云). 2007. “Qiangjie jubu, dangchang jibi: shiye? Feiye? Haikoushi Longhuaqu yitiao zhi’an biaoyu yinfa zhenglun” (抢劫拒捕、当场击毙”:是耶?非耶?海口市龙华区一条治 安标语引发争论). Zhongguo Renda, n. 21: 46–48. Guangdongsheng Caizhengting (广东省财政厅). 2003. Guangdongsheng 2003 nian yusuan zhixing qingkuang he 2004 nian yusuan cao’ande baogao (广东省2003年预算执行情况和 2004年预算草案的报告). Guangxi Nianjian Bianjibu (广西年鉴编辑部). 2001. Guangxi nianjian 2001 (广西年鉴 2001). Guangxi: Guangxi Nianjian Chubanshe (广西: 广西南洋出版社). Guangxi Zhuang Zizhiqu Tongjiju (广西壮自治区统计局). 2000. Guangxi tongji nianjian 1999 (广西统计年鉴1999). Beijing: Zhongguo Tongji Chubanshe (北京: 中国 统计出版社). Guangzhou Zhengbao (广州政报). 1990. “Woshi jiang chengli chengguanhui” (我市 将成立城管会), n. 7: 53–55. Guangzhoushi Difangzhi Bianji Weiyuanhui (广州市地方志编辑委员会). 1995a. Guangzhoushi zhi (广州市志). Guangzhou: Guangzhou Chubanshe (广州: 广州出版社). ——. 1995b. Guangzhoushi zhi, juan san, chengjian zongshu (广州市志 卷三 城建综述). Guangzhou: Guangzhou Chubanshe (广州: 广州出版社). Guizhousheng Renmin Zhengfu (贵州省人民政府). 1992. Guizhousheng Renmin Zhengfu Gongbao, di ba qi (贵州省人民政府公报第八期). Guizhousheng Tongjiju (贵州省统计局). 2004. Guizhou tongji nianjian 2003 (贵州省统 计年鉴2003). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Guo, Jian’an, and Zheng Xiaze (郭建安 郑霞泽). 2005. Xianzhi dui rensheng ziyoude xianzhi (限制对人生自由的限制). Beijing: Falü Chubanshe (北京: 法律出版社). Guo, Jianhua (郭建华). 2001. “Shilun woguo qunfang qunzhi gongzuode lilyn yu shijian” (试论我国群防群治工作的理论与实践). Gong’an Xuekan (公安学刊), n. 5: 20–23. Guo, Taisheng (郭太生). 2005. “Shehui jiegoude bianhua yu bao’anyede fazhan” (社会 结构的变化与保安业的发展). Zhongguo Renmin Gong’an Daxue Xuebao (中国人民公 安大学学报), n. 5: 32–43. Guo, Xiang (郭翔). 1997. “Zhongguo dupin wenti ji duice yanjiu” (中国毒品问题及 对策研究). Zhengfa Xuekan (政法学刊), n. 4: 19–28. Guojia Jindu Weiyuanhui Bangongshi, Gong’anbu Jinduju (国家禁毒委员会办公室 公安部禁毒局). 2004. Jiedu kangfude lilun yu shijian (戒毒康复理论与实践). Beijing: Zhongguo Minzhu Fazhi Chubanshe (北京: 中国民主法制出版社). Ha’erbin Nianjian Bianjibu (哈尔滨年鉴编辑部). 1988. Ha’erbin nianjian 1988 (哈尔 滨年鉴1988). Harbin: Heilongjiang Renmin Chubanshe (哈尔滨: 黑龙江人民出 版社). Ha’erbin Ribao (哈尔滨日报). 2004. “Shangfangzhe bude fengzhu daolu lanjie cheliang” (上访者不得封住道路拦截车辆), 23 August. Haikou Nianjian Bianji Weiyuanhui (海口年鉴编辑委员会). 2004. Haikou nianjian 2003 (海口年鉴 2003). Shenzhen: Haitian Chubanshe (深圳: 海天出版社). ——. 2006. Haikou nianjian 2005 (海口年鉴 2005). Hainan: Hainan Chubanshe (海南: 海南出版社).

reference list

327

Hainansheng Gong’anting (海南省公安厅). 2008. “ ‘Jindufa’ shixing Sheng Gong’anting jinduchu jieshi shedu wenti” (禁毒法施行省公安厅禁毒处解释涉毒 问题). Available online at . Last accessed 9 August 2008. Copy on file with the author. Hainansheng Tongjiju (海南省统计局). 2005. Hainan tongji nianjian 2005 (海南省统计 年鉴2005). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Han, Yanlong, and Chang Zhaoru. (韩延龙、常兆儒) 1981. Zhongguo Xinminzhuzhuyi geming shiqi genjudi fazhi wenxian xuanbian disan juan (中国新民主主义革命时期根据 地法制文献选编第三卷). Beijing: Zhongguo Shehui Kexue Chubanshe (北京: 中 国社会科学出版社). Han, Zhongxing (韩忠信). 2002. “Dui jijian jiancha gongzuo gaige chuangxinde jidian sikao” (对纪检监察工作改革创新的几点思考), Zhongguo Dangzheng Ganbu Xuekan (中国党政干部学刊), n. 10: 9–11. Hand, Keith J. 2006. “Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People’s Republic of China.” Columbia Journal of Transnational Law, n. 45, issue 1: 114–95. Hao,Wei (郝伟). 2003. “Woguo xidu xianzhuang, xiangguan wenti yu duice” (我国 吸毒现状相关问题与对策). In Guojia Jindu Weiyuanhui Bangongshi, Gong’anbu Jinduju (ed.) (国家禁毒委员会办公室 公安部禁毒局) Jiedu kangfu lilun yu shijian (戒毒康复理论与实践). Beijing: Zhongguo Minzhu Fazhi Chubanshe (北京: 中国 民主法制出版社), pp. 3–12. He, Jianmei, et al. 2004. “Hunansheng mou laojiao jiedusuo xueyuanzhong HIV yu meidu ganrao qingkuang diaocha.” Shiyong yufang yixue 11, n. 2: 230–231. He, Zhou, and Chen Huailin (何舟 陈怀林). 1998. Zhongguo chuanmei xinlun (中国传 媒新论). Xiangang: Taipingyang Shiji Chubanshe Youxian Gongsi (香港: 太平洋 世纪出版社有限公司). Head, John W., and Wang Yanping. 2005. Law Codes in Dynastic China. A Synopsis of Chinese Legal History in the Thirty Centuries from Zhou to Qing. Durham, NC: Carolina Academic Press. Hebeisheng Tongjiju (河北省统计局). 2005. Hebei jingji nianjian 2005 (河北省经济 年鉴 2005). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Hefeishi (合肥市). 2009. Hefeishi 2009 nian zhaopin shiqu chengshi guanli xingzheng zhifa renyuan jianzhang (合肥市2009年招聘市区城市管理行政执法人员简章). On file with the author. Heilongjiangsheng difangzhi bianji weiyuanhui (黑龙江省地方志编辑委员会). 1993. Heilongjiang shengzhi di liushi’er juan, minzhengzhi (黑龙江省志第六十二卷 民政志). Harbin: Heilongjiang Renmin Chubanshe (哈尔滨: 黑龙江人民出版社). ——. 1996. Heilongjiang shengzhi di 57 juan, renkouzhi (黑龙江省志第57卷 人口志). Harbin: Heilongjiang Renmin Chubanshe (哈尔滨: 黑龙江人民出版社). Henansheng Tongjiju (河南省统计局). 2006. Henan tongji nianjian 2006 (河南统计 年鉴 2006). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Herman, Edward S., and Noam Chomsky. 1988. Manufacturing Consent. The Political Economy of the Mass Media. New York: Pantheon Books. Hersch, Seymour M. 2004. Chain of Command: The Road from 9/11 to Abu Ghraib. New York: Harper Collins. Hershatter, Gail. 1997. Dangerous Pleasures. Prostitution and Modernity in Twentieth Century Shanghai. Berkeley: University of California Press. Hesford, Wendy S. 2004. “Documenting Violations: Rhetorical Witnessing and the Spectacle of Distant Suffering.” Biography 27, n. 1: 104–44. Hevia, James L. 2003. English Lessons: The Pedagogy of Imperialism in Nineteenth-Century China. Durham, NC: Duke University Press. Hodgson, Heather. 1998. Community Policing: Working Together to Build Safe Communities. Toronto: Emond Montgomery. Honig, Emily, and Gail Hershatter. 1988. Personal Voices: Chinese Women in the 1980s. Stanford, CA: Stanford University Press.

328

reference list

Hou, Shasha, and Cheng Ping (侯莎莎 程平). 2005. “Jingfang ducu xiduzhe dao paichusuo dengji” (警方督促吸毒者到派出所登记). Beijing Ribao (北京日报). 12 May Available online at . Last accessed 16 January 2010. Hsia, Tao-tai, and Wendy Zeldin. 1990. “Laws on Emergency Powers in Taiwan.” In Coping with Crises: How Governments Deal with Emergencies. Vol. 2, edited by Leng Shao Chuan, pp. 173–209. The Miller Centre Series on Asian Political Leadership. New York, Oxford: University Press of America. ——. 1992. “Sheltering for Examination (shourong shencha) in the Legal System of the People’s Republic of China.” China Law Reporter, n. 7: 97–128. Hu, Yongzheng (胡永正). 2006. “Dangqian bao’an fuwuye cunzaide wenti ji duice sikao” (当前保安服务业存在的问题及对策思考). Gong’an Xuekan (公安学刊), n. 2: 41–43. Hu, Zhongming (胡忠明). 2005. “Qianxi xinshiqi bao’an fuwuye cunzaide wenti yu duice” (浅析新时期保安服务业存在的问题与对策). Shanxi Gaodeng Xuexiao Shehui Kexue Xuebao (山西高等学校社会科学学报) 17, n. 2: 41–43. Huang, Huoqing (黄火青). 1980. Zuigao Renmin Jianchayuan gongzuo baogao (最高人 民检察院工作报告), 2 March. Available online at . Last accessed 10 March 2010. Copy on file with the author. ——. 1983. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 7 June. Available online at < http://www.spp.gov.cn/site2006/2006-02-22/00018274.html>. Last accessed 10 March 2010. Copy on file with the author. Huang, Yasheng. 1995. “Administrative Monitoring in China.” The China Quarterly, n. 143: 828–43. Huang, Zixun (黄资训). 1997. “Qijiang jinyan jianshi” (綦江禁烟简史). In Jindai Zhongguo yandu xiezhen xiajuan (近代中国烟毒写真下卷), edited by Wenshi Jinghua Bianjibu (文史精华编辑部), pp.217–29. Shijiazhuang: Hebei Renmin Chubanshe (石家庄: 河北人民出版社). Hubeisheng tongjiju (湖北省统计局) 1999. Hubei tongji nianjian 1999 (湖北统计年鉴 1999). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Huizhoushi, Gong’anju (惠州市公安局). 2003. Qiangzhi jiedusuo qiangzhi jieduqu weiqiang ji 3hao, 4hao sushe gongcheng shigong zhaobiao zige yushen wenjian (强治戒毒所强治戒毒 区围墙级3号, 4号宿舍工程施工招标资格预审文件). 12 December. On file with the author. Hulsewé, Anthony François Paulus. 1985. Remnants of Ch’in Law: An Annotated Translation of the Ch’in Legal and Administrative Rules of the Third Century b.c., Discovered in Yünmeng Prefecture, Hu-pei Province, in 1975. Leiden: Brill. Human Rights in China, 1999. Not Welcome at the Party: Behind the ‘Clean-Up’ of China’s Cities—A Report on Administrative Detention under Custody and Repatriation. New York: Human Rights in China. ——. 2001. Empty Promises: Human Rights Protection and China’s Criminal Procedure Law. New York: Human Rights in China. Human Rights Watch. 1995. “Germany for Germans” Xenophobia and Racist Violence in Germany. New York: Human Rights Watch. ——. 2004. “Sweden: Torture Inquiry Must Be Under U.N. Auspices. Independent Panel Must Probe Abuses by Sweden, Egypt and U.S. Operatives.” Human Rights Watch. 27 May. Available online at . Last accessed 15 June 2008. Copy on file with the author. ——. 2006. Dangerous Ambivalence: UK Policy on Torture since 9/11. November. Available online at . Last accessed 17 April 2008. Copy on file with the author. ——. 2007. “Letter to the Italian Government Regarding Nassim Saadi’s Deportation and the Use of Diplomatic Assurances.” 20 September. Available online at

reference list

329

. Last accessed 4 March 2008. Copy on file with the author. Hunansheng Tongjiju (湖南省统计局). 2003. Hunan tongji nianjian 2003 (湖南统计 年鉴2003). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Hung, Veron Meiying. 2003. “Improving Human Rights in China: Should Reeducation through Labour be Abolished?” Columbia Journal of Transnational Law 41, n. 2: 303–26. Immigration and Refugee Board of Canada. 2002. “Lai Decisions and Reasons.” Full text document can be requested at . On file with the author. iProspect. 2006. iProspect Search Engine User Behavior Study. April. Available at . Last accessed 27 February 2008. Jacobs, Lesley. 2007. “Rights and Quarantine during the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto.” Law and Society Review 41, n. 3: 511–51. James, Barry. 2003. “Frequently Asked SARS questions,” The International Herald Tribune, April 22. Jansen, Bernard J., and Amanda Spink. 2003. “An Analysis of Web Documents Retrieved and Viewed.” In Proceedings of the Fourth International Conference on Internet Computing. 23–26 June. Las Vegas, NV, pp. 65–69. Jansen, Bernard J., Amanda Spink, and Tefko Saracevic. 2000. “Real Life, Real Users and Real Needs: A Study and an Analysis of User Queries on the Web.” Information Processing and Management 6, issue 2, n. 1 (March): 207–27. Jarlert, Anders. 2006. Judisk “ras” som äktenskapshinder I Sverige: effekten av Nürnberglagarna i Svenska kyrkans statliga function som lysningsförrättare 1935–1945. Malmö: Sekel. Jeffreys, Elaine. 2004. China, Sex and Prostitution. London: Routledge. Jia, Chunwang (贾春旺). 2006. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检 察院工作报告), 11 March. Available online at < http://www.gov.cn/jrzg/200603/19/content_230765.htm>. Last accessed 10 March 2010. Copy on file with the author. ——. 2007. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 13 March. Available online at . Last accessed 10 March 2010. Copy on file with the author. Jia, Yuanping, and Zhang Yunxu (贾远平 张运煦). 2008. “Sanya jiedu kangfu nonchang 174ming jiedu renyuan ziyuan liuchang jiuye” (三亚戒毒康复农厂174名戒 毒人员自愿留场就业). Zhongguo Sanya, 6 November. Available online at [http:// www.sanyaly.com/news/lyzx/11028703923.html]. Last accessed 10 June 2009. Copy on file with the author. Jian, Da (建 达). 2009. “Kuasheng zhuipu jizhe’an, xingxun bigong delaide zhengju kexing ma?!” (跨省追捕记者案，刑讯逼供得来的证据可信吗?!). 16 May. Available online at Last accessed 10 March 2010. ——. 2003. “Ba Sun Zhigang dangzuo women ziji” (人民时评：把孙志刚当作我们 自己). Renminwang (人民网), 10 June. Available online at . Last accessed 10 March 2010. Jiang, Songhua (姜松华). 2004. “Liuzhi panwen ying naru xingshi susong qiangzhi cuoshi” (留置盘问应纳入刑事诉讼强制措施). Shaanxi Jiaoyu Xueyuan Xuebao (陕西 教育学院学报) 20, n. 1: 39–42. Jiang, Wei, ed. (江伟) 2005. Zhongguo zhengjufa cao’an ( jianyigao) ji lifa liyoushu. (中国证 据法草案(建议稿)及立法理由书). Beijing: Zhongguo Renmin Daxue Chubanshe (北京: 中国人民大学出版社). Jiang, Yonglin. 2005. The Great Ming Code/Da Ming lü. Translated and introduced by Jiang Yonglin. Seattle and London: University of Washington Press.

330

reference list

Jiangsusheng Tongjiju (江苏省统计局). 2001. Jiangsu tongji nianjian 2000 (江苏统计年 鉴2000). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Jiangxisheng Tongjiju (江西省统计局). 2003. Jiangxi tongji nianjian 2003 (江西统计年鉴 2003). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Jiao, Allan. 2001. “Police and Culture: A Comparison Between China and the United States.” Police Quarterly 4, n. 2: 156–85. Jiayuguanshi Jianshe Gongcheng Jiaoyi Zhongxin (嘉峪关市建设工程交易公司). 2008. “Jiayuguanshi Gong’anju qiangzhi jiedusuo zhuanmen jianli gongcheng zhaobiao gonggao” (嘉峪关市公安局强制戒毒所专门监理工程招标公告) 19 March 2008. On file with the author. Jijian Jiancha Anjian Jiancha Anjian Shenli Changyong Fagui Fenlei Shouce Bianxiezu (纪检检察案件检查案件审理常用法规分类手册编写组). 2004. Jijian jiancha anjian jiancha anjian shenli changyong fagui fenlei shouce (纪检检察案件检查案件审理 常用法规分类手册). Beijing: Zhongguo Fangzheng Chubanshe (北京: 中国方正 出版社). Jilin Nianjian Bianjibu (吉林年鉴编辑部) 1989. Jilin nianjian 1989 (吉林年鉴1989). Changchun: Jilin Nianjianshe (长春: 吉林出版社). Jin, Cheng (金诚). 2002. “Shilun woguo fuzhu jingli zhidude gailiang” (试论我国辅助 警力制度的改良), Gong’an Daxue Xuebao (公安大学学报), n. 4: 97–101. ——. 2003. “Shilun woguo fujing zhidu gaige” (试论我国辅警制度改革). Gong’an Yanjiu (公安研究), n. 4: 56–60. Johnson, Wallace. 1979. The T’ang Code. Vol. 1, General Principles. Princeton: Princeton University Press. Jones, William C. 1976. “A Possible Model for the Criminal Trial in the People’s Republic of China.” The American Journal of Comparative Law 24, n. 2: 229–45. ——. 1994. The Great Qing Code. A New Translation with Introduction by William C. Jones. Oxford: Clarendon Press. Jowitt, Kenneth. 1983. “Soviet Neotraditionalism: The Political Corruption of a Leninist Regime”, Soviet Studies 35, n. 3: 275–97. Kahn, Joseph, and Chris Buckley. 2004. “Martial Law Declared as Nearly 150 Die in Clashes in Central China,”The New York Times, 1 November. Kang, Haijun (康海军). 2005. “Lun zhi’an xingzheng qiangzhide kexue dingwei” (论治安行政强制的科学定位). Fanzui Yanjiu (犯罪研究), n. 1: 21–29. Kang, Xiaoguang (康晓光). 2003. Qisu. Weile Li Siyide beiju buzai chongyan (起诉 为了李 思怡德悲剧不再重演). Beijing: Zhongguo Kexueyuan Guoqing Yanjiu Zhongxin (北京: 中国科学院国情研究中心), printed for the author. Kantorowicz, Ernst H. 1997. The King’s Two Bodies. A Study in Mediaeval Political Theology. Princeton: Princeton University Press. Ke, Huanrui (柯焕锐). 1987. “Dui jianquan bao’an fuwu gongside jidian falü jianyi” (对健全保安服务公司的几点法律建议). Gansu Zhengfa Xueyuan Xuebao (甘肃政法 学院学报), n. 3: 29–31. Ke, Liangdong (柯良栋). 2004. Gong’an jiguan banli xingzheng anjian chengxu guiding (xiuding) shiyi yu xingzheng falü wenshu zhizuo zhinan (公安机关办理行政案件程序规定修 订释义与行政法律文书制作指南). Beijing: Zhongguo Renmin Gong’an Daxue Chubanshe (北京: 中国人民公安大学出版社). Keeton, George William. 1969. The Development of Extraterritoriality in China. Vol. 2. New York: Howard Fertig. Keller, Allen S. 2006. “Torture in Abu Ghraib.” Perspectives in Biology and Medicine 49, n. 4: 553–69. Kelman, Herbert C. 2005. “The Policy Context of Torture: A Social-Psychological Analysis.”International Review of the Red Cross 87, n. 857 (March): 123–34. Kjærum, Morten, and Hatla Thelle. 2003. Trends in the International Work against Torture. How to Eradicate Torture. A Sino-Danish Joint Research on the Prevention of Torture. Beijing: Social Sciences Documentation Publishing house.

reference list

331

Kleinman, Arthur, and Sing Lee. 2006. “SARS and the Problem of Social Stigma.” In SARS in China. Prelude to Pandemic? edited by Arthur Kleinman and James L. Watson, pp. 173–85. Stanford, CA: Stanford University Press. Kohrman, Matthe. 2005. Bodies of Difference: Experiences of Disability and Institutional Advocacy in the Making of Modern China. Berkeley: University of California Press. Kong, Weiya (孔维亚). 2004. “Fuxi dupinde yuanyin ji qi sikao” (复吸毒品的原 因及其思考). In Jiedu kangfu lilun yu shijian, edited by Guojia Jindu Weiyuanhui Bangongshi, Gong’anbu Jinduju, pp. 428–31. Beijing: Zhongguo Minzhu Fazhi Chubanshe (北京: 中国民主法制出版社). Kumar, T. 2009. “Amnesty International Testimony Human Rights in China and UN’s Universal Periodic Review before Tom Lantos Human Rights Commission Committee on Foreign Affairs United States Congress.” 27 January. Available online at . Last accessed 7 February 2009. Copy on file with the author. Kunming Nianjian Bianjibu (昆明年鉴编辑部). 2001. Kunming nianjian 2000 (昆明年 鉴2000). Kunming: Yunnan Keji Chubanshe (昆明: 云南科技出版社). ——. 2004. Kunming Nianjian 2003 (昆明年鉴2003). Kunming: Yunnan Keji Chubanshe (昆明: 云南科技出版社). Kurtz, Howard. 2006. “Times Says It Misidentified Iraqi as Hooded Prisoner,” Washington Post, 18 March, p. C01. Ladany, Laszlo. 1992. Law and Legality in China: The testament of a China-Watcher. London: Hurst and Company. Lai, Jianhui (赖建辉). 2009. “Luzhai zujian chunjie minbing zhi’an lianfangdui” (鹿寨组建春节民兵治安联防队). Guangxi Xinwenwang (广西新闻网). 23 January. Available online at . Last accessed 19 January 2010. Lai, Jun (赖骏). 2009. “Beijing Tiantanghe qiangzhi geli jiedusuo” (北京天堂河强 制隔离戒毒所), Beijing jindu zaixian (北京禁毒在线). Available online at . Last accessed 24 June 2009. Copy on file with the author. Laogai Research Foundation. 2006. Laogai Handbook 2005–2006. Washington, D.C. Lawyers Committee for Human Rights. 1996. Opening to Reform? An Analysis of China’s Revised Criminal Procedure Law. Lee, Dongmin. 2006. “Chinese Civil-Military Relations.” Forces and Society 32, n. 3: 437–53. Lee, Ta-Ling, and John F. Copper. 1994. The Bamboo Gulag: Human Rights in the People’s Republic of China 1991–1992. Occasional Papers/Reprint Series on Contemporary Asian Studies. Baltimore: School of Law. University of Maryland, n. 4. Leng, Shao-Chuan. 1977. “The Role of Law in the People’s Republic of China as Reflecting Mao Tse-Tung’s Influence.” The Journal of Criminal Law and Criminology 68, n. 3: 356–73. ——. 1981. “Criminal Justice in Post-Mao China: Some Preliminary Observations.” The China Quarterly, n. 87: 440–69. Levich, Eugene Wiliam. 1993. The Kwangsi Way in Kuomintang China 1931–1939. Armonk: M. E. Sharpe. Li, Boyu (李博宇). 2007. “Mianmu buqingde ‘chengguan’” (面目不清的城管). Renmin Gong’an (人民公安), n. 19: 15–17. Li, Dan (利丹). 2003. “Chengshi guanli xin nanti – baozhang gongmin renquan he weihu shehui zhi’an ruhe pinghe” (城市管理新难题　保障公民人权和维护社会 治安如何评核) Zhongguo Gaige (中国改革), n. 12: 46–47. Li, Fei, and Liu Ningsheng (李 飞 刘宁生). 2009. “Qiangzhi geli jiedu zhixing gongzuode nandian jiqi duice” (强制隔离戒毒执行工作的难点及其对策). Anhui Fazhi Wangluoban (安徽法制网络版). March, Available online at . Last accessed 19 January 2009. Copy on file with the author.

332

reference list

Li, Feng (李锋). 2004. “Gong’an jiguan guanyu shiyong jixu panwen guidingde lijie yu shiyong” (公安机关关于适用继续盘问规定的理解与使用). Gong’an Jiaoyu (公安教育) n. 10: 40–42. Li, Gang (李刚). 2009. “Zhuanxingqi bao’an fuwuyede yanjiu shuping” (转型期保安 服务业的研究述评). Shanxi Jingguan Gaodeng Zhuanke Xuexiao Xuebao (山西警官高等 专科学校学报) 17, n. 1: 56–58. Li, Guangcheng (李光晨). 2000. “Dongtai shehui tiaojianxia ruhe fahui zhibaohui zuoyong” (动态社会条件下如何发挥治保会作用). Guangzhoushi Gong’an Guanli Ganbu Xueyuan Xuebao (广州市公安管理干部学院学报), n. 1:11–16. Li, Haipeng (李海鹏). 2004. “Lin Fujiu luowang: ouran yu biran” (林福久落网: 偶 然与必然). Nanfang Zhoumo (南方周末), 29 April. Li, Hongbin (李鸿斌). 1997. “Xingshi chuanhuan shijian nengfou yu liuzhi shijian xiangjia shiyongzhi tantao” (刑事传唤时间能否与留置时间相加使用之探讨). Gong’an Daxue Xuebao (公安大学学报), n. 11: 33–34. Li, Hongzhi. 2003. “The Third Talk.” In Zhuan Falun, Turning the Law Wheel. Available online at . Last accessed 11 January 2010. Li, Jianhua (李建华). 2004. “Dangqian woguo jiedu gongzuo mianlinde tiaozhan he zhanwang” (当前我国戒毒工作面临的挑战和展望). Zhongguo Yaowu Yilaixing Zazhi (中国药物依赖性杂志), n. 3: 224–26. Li, Jingrui (李静睿). 2008. “Zhongjiwei: yinianlai 4960ming xianchuji zishang ganbu bei chachu” (中纪委：一年来4960名县处级以上干部被查处). Xinjingbao (新京报). 27 December. Li, Ming (黎明). 2003. “Bao’an: gongguo shifei ge jiduo” (保安:功过是非各几多). Juece Tansuo (决策探索), n. 10: 33. Li, Qunzhong (李群忠). 2009. “Sichuansheng Meishan qiangzhi gelijiedusuo xuexi guanche sifabu qiangzhi renyuan guanli banfa” (四川省眉山强治戒毒所学习贯 彻司法部强治人员管理办法). Sichuan Pufawang (四川普法网). 16 March. . Entry deleted. Copy on file with the author. Li, Shu (李舒). 2007a. “Zhongguo bao’an diaocha” (中国保安调查). Beijing Jishi (北京纪事), n. 10: 4–7. ——. 2007b. “Beijing jingfang “shudu jiehe” youxiao jiangguan quanshi bao’an” (北京警方疏堵结合有效监管全市保安). Beijing Jishi (北京纪事), n. 10: 7–8. Li, Victor H. 1970. “The Role of Law in Communist China.” The China Quarterly, n. 44: 66–111. ——. 1977. Law without Lawyers. Boulder: Westview Press. Li, Wenjun, and Jiao Peng (李文君、聂鹏). 2008. “Jindufa: shiye xiade jiedu gongzuo yanjiu” (禁毒法视野下的戒毒工作研究). Jingcha Jishu (警察技术), n. 3: 10–13. Li, Xiancui. 1998. “Crime and Policing in China.” Paper presented at the Australian Institute of Criminology, 7 September, Canberra. Li, Xiaoqiang (李小强). 2003. “Zhi’an chuanhuanzhong zhide tantaode liangge wenti” (治安传唤中值得探讨的两个问题). Jiangxi Gong’an Zhuangke Xuexiao Xuebao (江西公安专科学校学报), n. 6: 45–46. Li, Yayun (李雅云). 2004. “Zhongguo fazhi jianshe li chengpishide dangde wenjian— jinian Zhonggong Zhongyang fabu “Guanyu jianjue baozheng xingfa, xingshi susongfa qieshi shishide zhishi” 25zhounian” (中国法治建设里程碑式的党的 文件——纪念中共中央发布《关于坚决保证刑法、刑事诉讼法切实实施的 指示》25 周年), Faxue (法学) n. 9: 7–11. Li, Yi (理一). 2000. “Wenzhou zhi’an lianfangdui yuandan ‘tanchu jianghu’ ” (温州 治安联防队元旦“淡出江湖”). Sina. 6 December. Available online at . Last accessed 25 January 2010. Li, Yongli (李永利). 2004. “Qin Xinmin fuzhuren shenru haiku, Tangbian liangdi jingxing jindu lifa diaoyan” (秦醒民副主任深入海口、澄迈两地进行禁毒立法 调研). Hainan Renda (海南人大), n. 8: 6.

reference list

333

Li, Yongzhong (李永忠). 2003. “Xiang fazhi shehui guodude quanyizhice—zhengque renshi ‘lianggui’, ‘shuanggui’ ” (向法制社会过渡的权宜之策 正确认识两规, 双 规). Dangzheng Ganbu Luntan (党政干部论坛), n. 9: 13–15. ——. 2004. “Jingzhong changming” (警钟长鸣). Xianfengdui (先锋队), n. 7: 6. Li, Yuan (李媛). 2008. “Shanghai chengshi guanli fazhihuade xianzhuang ji zhanwang” (上海城市管理法治化的现状及展望). Fazhi yu Jingji (法制与经济), n. 5: 13–14. Li, Zhengsheng. 2003. Red-Color News Soldier. A Chinese Photographer’s Odyssey through the Cultural Revolution. London: Phaidon. Li, Zifei (李子非). 2004. “Woguo “zhi’an lianfangdui” jiang bei quxiao youli jiejue zhi’an kunrao” (我国 “治安联防队” 将被取消有力解决治安困扰). Liaowang Dongfang Zhoukan (瞭望东方周刊), 21 September 2004. Li, Zifei, and Li Tao (李子非 李锦). 2004. “Woguo jiang quxiao zhi’an lianfangdui “zapaijun” pohuai gong’an xingxiang” (我国将取消治安联防队 “杂牌军” 破坏公 安形象), Liaowang Dongfang Zhoukan (了望东方周刊), 21 September. Liang Shangxian, (梁尚贤). 2003. “Guomindang yu Guangdong mintuan” (国民党与 广东民团). Jindaishi Yanjiu (近代史研究), n. 6: 1–44. Liao, Gailong (廖盖隆). 2001. Zhongguo Gongchandang lishi da cidian (中国共产党历史 大辞典). Beijing: Zhonggong Zhongyang Dangxiao Chubanshe (北京: 中共中央 党校出版社). Lieberthal, Kenneth J. 1992. “Introduction: The ‘Fragmented Authoritarianism’ Model and Its Limitations.” In Bureaucracy, Politics and Decision Making in Post-Mao China, edited by Kenneth J. Lieberthal and David M. Lampton, pp. 1–30. Berkeley: University of California Press. Lieberthal, Kenneth, and Bruce J. Dickson. 1989. A Research Guide to Central Party and Government Meetings in China 1949–1986. Armonk: M. E. Sharpe. Lifton, Robert Jay. 1961. Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China. New York: W. W. Norton. Lin, Alfred H. Y. 2002. “Building and Funding a Warlord Regime: The Experience of Chen Jitang in Guangdong, 1929–1936.” Modern China 28, n. 2: 177–212. Lin, Charles C., et al. 2006. “China’s Syphilis Epidemic: A Systematic Review of Seroprevalence Studies.”Sexual Transmitted Diseases 33, n. 7: 1–10. Lin, Jie (林洁). 2008. “Nanzi zao lianfangdui jujin baoda reshui tangtou” (男子遭联 防队拘禁暴打热水烫头). Nanfangwang (南方网), 12 December. Available online at . Last accessed 25 January 2010. Lin, Li (林立). 2006. “Goujian hexie shehui guochengzhong shequ renkou zhongdian guanli moshide tantao” (构建和谐社会过程中社区人口重点管理模式的探讨). Shanghai gong’an gaodeng zhuanke xuexiao xuebao (上海公安高等专科学校学报) 16, n. 2: 53–56. Lin, Piao. 1967. Advance along the Road Opened up by the October Socialist Revolution. Beijing: Foreign Language Press. Lin, Xiaoming (林小明). 2008. “Lianfang duiyuan sishe gongtang bigong dasi yifan” (联防队员私设公堂逼供打死疑犯). Luoyang Xinwenwang (洛阳新闻网), 19 August. Available online at . Last accessed 25 January 2010. Lin, Yu (林雨). 2001. “Feifa Guanya 19tian Guangdong 7nongmin gaoying xian gong’anju” (非法关押19天 广东7农民告赢县公安局). Nanfangwang (南方网). Available online at . Last accessed 22 January 2010. Liu, Chao, and He Xiangbin (刘超,何显兵). 2007. “Lun anquan shequ jianshede zuzhi xitong” (论安全社区建设的组织系统). Gong’an Yanjiu (公安研究), n. 9: 53–58. Liu, Dongping (刘东平). 2004. “Jiedu, yi zhengjiu shengmingde mingyi—tanfang Kunmingshi qiangzhi jiedusuo” (戒毒,以拯救生命的名义—探访昆明市强制戒毒 所). Jinri Zhongguo (今日中国), n. 6: 15–17.

334

reference list

Liu, Fuzhi (刘复之). 1989. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院 工作报告), 29 March. Available online at . Last accessed 10 March 2010. Copy on file with the author. ——. 1991. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 3 April. Available online at < http://www.spp.gov.cn/site2006/2006-02-22/00018282.html>. Last accessed 10 March 2010. Copy on file with the author. ——. 1992. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 28 March. Available online at < http://www.spp.gov.cn/site2006/2006-02-22/00018283.html >. Last accessed 10 March 2010. Copy on file with the author. ——. 1993. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 22 March. Available online at < http://www.spp.gov.cn/site2006/2006-02-22/00018284.html >. Last accessed 10 March 2010. Copy on file with the author. Liu, Heng (刘恒). 2006. ‘Shilun {shuanggui’ de xianshi zhengdangxing” (试论双规的 现实正当性). Zhonggong Shanxisheng Dangxiao sheng zhifenxiao xuebao (中共山西省委党 校省直分校学报), n. 5: 33–34. Liu, Hua (刘华). 2009. “Chengguande lishi: kuanquan yu xianquan” (城管的历史:扩 权与限权). Kunming Ligong Daxue Xuebao (昆明理工大学学报) 9, n. 1: 50–56. Liu, Hui, and Wei Xiaoxiao (刘辉 魏潇潇). 2007. “Guanyu shuangguide falixue sikao” (关于双规的法理学的思考). Fazhi yu Shehui (法律与社会), n. 1: 665–66. Liu, Jianzhao (柳剑诏). 2009. “Jianchayuan shidian feifa zhengju paichu guize” (检察 院试点非法证据排除规则). Beijing Qingnianbao (北京青年报), 26 March. Available online at . Last accessed 25 January 2010. Liu, Ruonan (刘若南). 2004. “Shuanggui shi yu fei” (双规是与非). Fenghuang Zhoukan (凤凰周刊), n. 146: 3–5. Liu, Wei (刘薇). 2004. “Gong’an jiguan jinzheng zaipin zhi’anyuan” (公安机关禁正 再聘治安员). Jinghua Shibao (京华时报), 4 September, p. A02. Liu, Yanfeng (刘艳芳). 2005. “Dui jixu panwende falü renshi he yunyong” (对继续 盘问的法律认识和运用). Jiangsu Jingguan Xuexiao Xuebao (江苏警学校学报) 20, n. 1: 170–74. Liu, Yiun, and Ling Caiyang (刘云 伶才扬). 2007. “Shanxisheng qingxuxian Meijin Nengyuan Jituan Gangtie Gongsi dianlan shiqiehou bao’an luanyong “jiafa” 20ming shixisheng canzao duxing beipo zhaoren” (山西省清徐县美锦能源集团 钢铁公司电缆失窃后保安乱用“家法”法”名实习生惨遭毒刑被迫招认). Shenzhen Tequbao (深圳特区报), 12 January. Available online at . Last accessed 22 January 2010. Lo, Carlos. 1995. China’s Legal Awakening: Legal Theory and Criminal Justice in the Deng’s Era. Hong Kong: Hog Kong University Press. Long, Hua,Yu Xintao, and Chen Yanliu (龙华 余信锦 陈炎流). 1986. “Chengshi zujian bao’an fuwu gongside biyaoxing he kexingxing” (城市组建保安服务公司的 必要性和可行性). Kaifang Shidai (开放时代), n. 3: 32–33. Lu, Hong, and Terance D. Miethe. 2003. “Confessions and Criminal Case Disposition in China.” Law and Society Review 37, n. 3: 549–78. Luo, Jianguo (罗建国). 2006. “Dui chengguan zhifazhong cuncai wenti he kunnande sikao yu duice” (对城管执法中存在问题和困难的思考与对策), Chengshi guanli yu keji (城市管理与科技) 8, n. 4: 139–42. Lubman, Stanley. 1969. “Form and Function in the Chinese Criminal Process.” Columbia Law Review 69, n. 4: 535–75. ——. 1999. Bird in a Cage: Legal Reform in China after Mao. Stanford, CA: Stanford University Press. Luo, Changping (罗昌平). 2005a. “Hebei guotou zhushuai Liang Yuncai shuangguishi fei zhengchang siwang” (河北国托主帅梁云才双规时非正常死亡). Xinjingbao (新京报), 9 May. Reproduced on Zhongguo Renli Ziyuan Kaifawang (中国人力资源

reference list

335

开发网). Available online at . Last accessed 21 January 2010. ——. 2005(b). “Hebei guotou yuan dongshizhang Liang Yuncai’an gongsu, shuangguishi bei ou zhisi” (河北国投原董事长梁云才案公诉，双规时被殴致死). Xinjingbao (新京报), 11 November. Reprinted on Zhonghua Falüwang (中华法律网). Available online at . Accessed 22 November 2007. Copy on file with the author. Luo, Qin, and Gao Weidong (罗勤 高卫东). 1997. “Zhongdian renkou guanlide wuda wenti” (中点人口管理的五大问题). Qingshaonian Fanzui Wenti (青少年犯罪 问题), n. 6: 21–22. Luo, Shibin, and Liu Gengmao (罗诗彬 刘庚卯) 2000. “Qiangzhi jiedu yu fuxilü” (强制戒毒与复吸率). Zhongguo Yaowu Yilaixing Zazhi (中国药物依赖性杂志) 9, n. 2: 147–48. Ma, Mozhen (马模贞). 2004. “Jinxi jiedu renzhong daoyuan” (禁吸戒毒 任重道远). In Jiedu kangfude lilun yu shijian (戒毒康复理论与实践). Edited by Guojia Jindu Weiyuanhui Bangongshi, Gong’anbu Jinduju (国家禁毒委员会办公室 公安部禁 毒局), pp. 13–16. Beijing: Zhongguo Minzhu Fazhi Chubanshe (北京: 中国民主 法制出版社). Ma, Yihua, and Chen Jie (马益华 陈 洁). 2009. “Diaocha weiyuanhui cheng wa zhenxiang dabu keneng “duo maomao” mei jielun” (调查委员会称挖真相不大可能 “躲猫猫” 没结论). Yunnanwang (云南网), 23 February. Available online at . Last accessed 25 January 2010. Ma, Yue. 1997. “The Police Law 1995: Organization, Functions, Powers and the Accountability of the Chinese Police.”Policing: An International Journal of Police Strategy and Management 20, n. 1: 113–35. Ma, Zhanwei, and Li Heli (马占伟 李合力). 2006. “Guowai fujing yanjiu yu woguo fujing goujian” (国外辅警研究与我国辅警构建). Hubei Jingguan Xueyuan Xuebao (湖北警官学院学报), n. 5: 60–64. MacCormack, Geoffrey. 2001. “Mythology and the Origin of Law in Early Chinese Thought.” The Journal of Asian Legal History, n. 1: 1–23. Manion, Melanie. 1998. “Issues in Corruption Control in Post-Mao China.” Issues and Studies 34, n. 9: 1–21. ——. 2004. Corruption by Design: Building Clean Government in Mainland China and Hong Kong. Cambridge: Harvard University Press. Mao, Zedong. 1949. “On the People’s Democratic Dictatorship.” In Selected Works of Mao Tsetung. Vol. 4, edited by Committee for Editing and Publishing the Works of Chairman Mao Tsetung, Central Committee of the Communist Party of China, pp. 411–24. Beijing: Foreign Language Press, 1969. ——. 1951. “The Party’s Mass Line Must Be Followed in Suppressing Counter-Revolutionaries.” In Selected Works of Mao Tsetung. Vol. 5, edited by Committee for Editing and Publishing the Works of Chairman Mao Tsetung, Central Committee of the Communist Party of China, pp. 50–52. Beijing: Foreign Language Press, 1977. ——. 1957. “On the Correct Handling of Contradictions among the People.” In Selected Works of Mao Tsetung. Vol. 5, edited by Committee for Editing and Publishing the Works of Chairman Mao Tsetung, Central Committee of the Communist Party of China, pp. 348–421. Beijing: Foreign Language Press, 1977. March, Joan et al. 2006. “Drug and Social Exclusion in Ten European Cities.” European Addiction Research 12, n. 1: 33–41. McCloud, Sean. 2006. “From Exotics to Brainwashers: Portraying New Religions in Mass Media.” Religion Compass 1, no. 1: 214–28. McCord, Edward A., 1990. “Local Military Power and Elite Formation: The Liu Family of Xingyi County, Guizhou.” In Chinese Local Elites and Patterns of Dominance, edited by Joseph W. Esherick and Mary Backus Ranking, pp. 162–89. Berkeley: University of California Press.

336

reference list

Mears, Bill. 2009. “High Court Accepts Guantanamo Uyghur Case”, CNN, 20 October. Available online at . Last accessed 12 January 2010. Meijer, Marinus J. 1981. “Abuse of Power and Coercion.” In State and Law in East Asia. Festschrift Karl Bünger, edited by Dieter Eikemeier and Herbert Franke, pp. 184–203. Wiesbaden: Otto Harrassowitz. Meng, Qinghua (孟庆华). 2008. “Tuotaozui zhutide sifa rending wenti tantao” (脱逃 罪主体的司法认定问题探讨). Henan Sifa Jingguan Zhiye Xueyuan Xuebao (河南司法 警官职业学院学报), n. 2: 25–28. Michael, Franz. 1962. “The Role of Law in Traditional, Nationalist and Communist China.” The China Quarterly, n. 9: 124–48. Milgram, Stanley. 1967. “Behavioral Study of Obedience.” Journal of Abnormal and Social Psychology 67, n. 4: 371–78. Miller, Alice L. 2008. “Institutionalization and the Changing Dynamics of Chinese Leadership Politics.” In China’s Changing Political Landscape. Prospects for Democracy, edited by Cheng Li, pp. 61–79.Washington: The Brookings Institution. Miyazaki, Ichisada. 1980. “The Administration of Justice during the Sung Dynasty.” In Essays on China’s Legal Tradition, edited by Jerome Alan Cohen, R. Randle Edwards, and Fu-mei, pp. 56–75. Princeton: Princeton University Press. Mo, Jihong (莫纪宏). 2008. Renquan baozhangfa yu Zhongguo (人权保障法与中国) The Law on Protection of Human Rights and the People’s Republic of China. Beijing: Falü Chubanshe (北京: 法律出版社). Munro, Robin. 2006. China’s Psychiatric Inquisition. Dissent, Psychiatry and the Law in Post1949 China. London: Wildy, Simmonds, and Hill. Mülhahn, Klaus. 2009. Criminal Justice in China. A History. Harvard: Harvard University Press. Müller, Jan-Werner. 2003. A Dangerous Mind: Carl Schmitt in Postwar European Thought. New Haven, CN: Yale University Press. Mulvenon, James C. 2001. Soldiers of Fortune: The Rise and Fall of the Chinese MilitaryBusiness Complex, 1978–1988. Armonk: M. E. Sharpe. Nanfang, Dushibao (南方都市报). 2003. “Paichusuo suozhang dui xiaoxuesheng xingxun bigong, Gong’anju beipan peichang” (派出所所长对小学生刑讯逼供, 公安 局被判赔偿), 14 November. Reproduced in Sina. Available online at . Last accessed 21 January 2010. ——. 2006. “Shenzhenshi chengguan duiyuan zeng jiedaoban chengguan dangjie baku” (深圳市城管队员遭街道办城管当街扒裤), 1 August. Reproduced in Tengxun. Available online at . Last accessed 21 January 2010. Nanfangwang (南方网). 2005. “Zuigaojian gongbu xingxun bigong deng 3 qi yanzhong qinfan renquan fanzui’an” (最高检公布刑讯逼供等3起严重侵犯人权犯 罪案), 27 July. Available online at . Last accessed 21 January 2010. Nathan, Andrew J. 1993. “Is Chinese Culture Distinctive?” The Journal of Asian Studies 52, n. 4: 923–36. ——. 2003. “Authoritarian Resilience.” Journal of Democracy 14, n. 1: 6–17. O’Brien, Kevin. 2008. Popular Protest in China. Cambridge, MA: Harvard University Press. Otto, Randy K. 1994. “On the Ability of Mental Health Professionals to ‘Predict Dangerousness’: A Commentary on Interpretations of the ‘Dangerousness Literature’.” Law and Psychology Review, n. 18: 43–68. Østergaard, Clemens Stubbe. 1986. “Explaining China’s Recent Political Corruption.” Corruption and Reform 1, n. 1: 209–33. Ouyang, Chenyu (欧阳晨雨). 2006. “ ‘Shuanggui’ gaige zouxiang fazhi qiangyin” (双规”改革奏响法治强音). Fazhi yu Shehui (法治与社会), n. 11: 172–73.

reference list

337

Pan Shijie (潘世杰). 2003. “Dui liuzhizhong cuncai wentide fenxi” (对留置中存在问 题的分析). Senlin Gong’an (森林公安), n. 5: 22–23. Peel, Michael, and Vincent Jacopino. 2009. The Medical Documentation of Torture. Greenwhich Medical Media. Peerenboom, Randall. 2002. China’s Long March toward the Rule of Law. Cambridge, MA: Cambridge University Press. ——. 2004. “Out of the Pan and into the Fire: Well-Intentioned but Misguided Recommendations to Eliminate All Forms of Administrative Detention in China.” Northwestern University Law Review 98, n. 3: 991–1104. ——. 2006. “What Have We Learned about Law and Development? Describing, Predicting and Assessing Legal Reforms in China.” Michigan Journal of International Law 27: 823–71. ——. 2007. China Modernizes: Threat for the West or Model for the Rest? Oxford: Oxford University Press. Peking Gazette. 1817. “A Memorial Denouncing Abuses in the Use of Torture,” 9 August. Reproduced in Jérôme Bourgon, Chinese Torture/Supplice Chinois: Iconographic, Historical and Literary Approaches of an Exotic Representation. Online database available at . Peng, Zhen (彭真). 2002. Peng Zhen lun xin Zhongguode zhengfa gongzuo (彭真论新中国的 政法工作). Beijing: Zhongyang Wenxian Chubanshe (北京: 中央文献出版社). Penny, Benjamin. 2001. “The Past, Present and Future of Falungong,” Lecture held at the National Library of Australia, Canberra, 11 April. Perry, Elizabeth J. 2007. Patrolling the Revolution: Workers, Militias, Citizenship, and the Modern Chinese State. Lanham, Maryland: Rowman and Littlefield. Perry, Elizabeth J., and Mark Selden, eds. 2003. Chinese Society: Change, Conflict and Resistance. London: Routledge. Pi, Chunxie (皮纯协). 2000. Xingzheng faxue (行政法学). Beijing: Qunzhong Chubanshe (北京: 群 出版社). Pinard, Georges-Franck, and Linda Pagani. 2001. Clinical Assessment of Dangerousness: Empirical Contributions. Cambridge, MA: Cambridge University Press. Potter, Pitman, and Leslie Jacobs. 2006. “Selective Adaptation and Health and Human Rights in China”, Health and Human Rights 9, n. 2: 142–66. Prosser, James, et al. 2006. “Neuropsychological Functioning in Opiate-Dependent Subjects Receiving and Following Methadone Maintenance Treatment.” Drug and Alcohol Dependency 84, n. 3: 240–70. Pu’er Renmin Zhengfu (普洱人民政府). 2008. “Jingguxian juxing gongbu gongpan dahui” (景谷县举行公捕公判大会). Jinggu Xinxiwang (景谷信息网), 22 June. Available online at . Last accessed 20 July 2009. Copy on file with the author. Qian, Yiqing (钱挹青). 1997. “Huixi Yixing jieyan yiyuan” (回忆宜兴戒烟医院). In Jindai Zhongguo yandu xiezhen shangjuan (近代中国烟毒写真上卷), edited by Wenshi Jinghua Bianjibu (文史精华编辑部), pp. 392–93. Shijiazhuang: Hebei Renmin Chubanshe (石家庄: 河北人民出版社). Qiao, Xiaoyang (乔晓阳) 1996. “Guanyu ‘Zhonghua Renmin Gongheguo Jieyanfa (cao’an)’de shuoming” (关于中华人民共和国戒严法(草案)的说明). Zhonghua Renmin Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui Gongbao (中华人民共和国全 国人民代表大会常务委员会公报), n. 1: 9–12. Qiu, Chuangjiao (邱创教). 1998. Dupin fanzui chengzhi yu fangfan quanshu (毒品犯罪惩 治与防范全书). Beijing: Zhongguo Fazhi Chubanshe (北京: 中国法制出版社). Qiu, Guangui (岳光辉). 2002. “Zhi’an chuanhuande falü shiyong” (治安传唤的法律 适用). Hebei Faxue (河北法学), n. 1: 83–85. ——. 2004. “Lun zhi’an chuanhuan, xingshi chuanchuan yu jixu panwende qubie” (论治安传唤, 刑事传唤与继续盘问的区别). Hebei Gong’an Jingcha Zhiye Xueyuan Xuebao (河北公安警察职业学院学报) 4, n. 2: 38–41.

338

reference list

Qiu, Le’an (邱乐安). 2004. “Qianyi wailai zhongdian renkou guanlizhong cunzaide wenti ji duice” (浅议外来重点人口管理中存在的问题及对策). Hebei Gong’an Jingcha Zhiye Xueyuan Xuebao (河北公安警察职业学院学报) 4, n. 3, 28–30. Qiu, Shenglan (邱盛兰). 1999. “Chongqing fasheng yiqi chengguan jiancha renyuan ouda jizhe shijian” (重庆发生一起城管监察人员殴打记者事件). Guangzhou Ribao (广州日报), 31 October. Available at . Last accessed 22 January 2010. Quan, Dequan (全德权). 2008. “Jindufa shishi Sheng gong’anting jinduchu jieshi shedu wenti” (禁毒法施行 省公安厅禁毒处解释涉毒问题). Renminwang Hainan Shichuang (人民网海南视窗), 3 June. Available at . Last accessed 25 January 2010. Quangguo Renda Fagongwei (全国人大法工委). 2008. Zhonghua Renmin Gongheguo jindufa shiyi (中华人民共和国禁毒法释义). Beijing: Falü Chubanshe (北京: 法律出 版社). Quangguo Renmin Daibiao Dahui (全国人民代表大会). 2008a. “Guanyu jindu gongzuode fangzhen he gongzuo jizhi—fayan zhaideng: fenzu shenyi jindufa (er)” (关于禁毒工作的方针和工作机制. 发言摘登：分组审议禁毒法(二)). Available online at . Last accessed 1 June 2008. Copy on file with the author. ——. 2008b. “Guanyu yufang, xuanchuan jiaoyu jiedu—fayan zhaideng: fenzu shenyi jindufa cao’an (san)” (关于预防, 宣传教育戒毒. 发言摘登：分组审议禁毒法 (二)). Available online at . Last accessed 6 August 2008. Copy on file with the author. Quinsey, Vernon L. 1995. “The prediction & explanation of criminal violence.” International Journal of Psychiatry and Law, n. 18: 117–27. Rawski, Evelyn S. 2001. The Last Emperors: A Social History of Qing Imperial Institutions. Berkeley: University of California Press. Rejali, Darius. 2007a. Torture and Democracy. Princeton, NJ: Princeton University Press. ——. 2007b. “Torture Makes the Man.” South Central Review 24, n. 1: 151–69. Ren’an, Gao Yucai, and Zhou Xingtong (张仁安 高玉才) 1996. “Jiedu diyisuo—laizi kunmingshi qiangzhi jiedusuode baogao” (中国戒毒第一所——来自昆明市强制 戒毒所的报告). Renmin Gong’an (人民公安), n. 22: 8–11. Renmin Gong’anbao (人民公安报). 2008. “Woguo renxinghua cuoshi wanjiu xiduzhe xidu youfa fanzui jianshao” (我国人性化措施挽救吸毒者吸毒诱发犯罪减少), 24 June. Available online at . Last accessed 22 January 2010. Renmin Ribao (人民日报) 2003a. “Buduan tuijin dangfeng lianzheng jianshe he fanfubai gongzuo fazhihua” (不断推进党风廉政建设和反腐败工作法制化), 17 November, p. 2. ——. 2003b. “Sun Zhigang ming’an 18 ming fanzui renyuan bei yishen panjue” (孙志刚命案18名犯罪人员被一审判决), 6 September. Available online at . Last accessed 1 August 2009. Copy on file with the author. Renminwang (人民网). 2006. “Chuanxing chengshi zhoubao: ‘Nanfang zhoumo’: 《南方周末》 jilu shidai jincheng” ［ ( 创新城市周报］ ：记录时代进程), 30 October. Available online at . Last accessed 16 March 2008. Copy on file with the author. ——. 2007. “Jiangsu Ganyu qian hongdianju fujuzhang sizai xian jianchayuan, hujian you waishang” (江苏赣榆前供电局副局长死在县检察院 尸检有外伤), 7 October. Available at . Last accessed 23 June 2009. Copy on file with the author.

reference list

339

——. 2009. “Wulumuqi fasheng da, za, qiang, shao baoli shijian” (乌鲁木齐发生 打砸抢烧暴力犯罪事件), 6 July. Available online at . Last accessed 7 July 2009. Copy on file with the author. Rigney, Harold W. 1956. “Terrors of Brain-Washing Ordeal. Tortures Imposed on Red Prisoners.” Vital Speeches of the Day 22, no. 16: 504–9. Rogaski, Ruth. 2004. Hygienic Modernity: Meanings of Health and Disease in Treaty-Port China. Berkeley: University of California Press. Rousseau, Jean-Jacques. 1968. The Social Contract. Londong: Penguin Books. Ruan Lingxi. 1996. “Yingsuhua baixue huahong—Hongjun fangmianjun Chuanbei jinyan jishi.” Dangshi conglan, n. 5: 6–18. Ruskola, Teemu. 2002. “Legal Orientalism”, Michigan Law Review 101, n. 1: 179–234. Said, Edward W. 1979. Orientalism. New York: Vintage. Sapio, Flora. 2008a. “Shuanggui and Extralegal Detention in China.” China Information 22, n. 1: 7– 37. ——. 2008b. Review of Legal Reform and Administrative Detention Powers in China, by Sarah Biddulph.” China Information 22, n. 3: 483–85. ——. 2009. “Rent-Seeking, Corruption and Clientelism.” In Rent-Seeking in China, edited by Tak-Wing, pp. 22–42. London: Routledge. Sartori, Giovanni. 1970. “Concept Misformation in Comparative Politics.” The American Political Science Review 64, n. 4 (December): 1033–53. Scarry, Elaine. 1985. The Body in Pain. The Making and Unmaking of the World. Oxford: Oxford University Press, 1985. Scelfo, Julie, and Rod Nordland. 2004. “Beneath the Hoods,” Newsweek, 19 July. Schein, Edgar H., Inge Schneier, and Curtis H. Backer. 1961. Coercive Persuasion: A Socio-Psychological Analysis of the “Brainwashing” of American Civilian Prisoners by the Chinese Communists. New York: W. W. Norton. Scheppele, Kim Lane. 2004. “Law in a Time of Emergency: States of Exception and the Temptations of 9/11.” University of Pennsylvania Journal of Constitutional Law 6: 1001–83. Scheuerman, William E. 1993. Carl Schmitt: The End of Law. Lanham: Rowman and Littlefield. Schmitt, Carl. 2005. Political Theology. Four Chapters on the Concept of Sovereignty. Translated by George Schwab. Chicago: University of Chicago Press. Schmitt, Eric. 2005. “Three in 82nd Airborne Say Beating Iraqi Prisoners Was Routine,” The New York Times, 24 September. Schulz, William F., ed. 2007. The Phenomenon of Torture. Readings and Commentary. Philadelphia: University of Pennsylvania Press. Serin, Ralph C., and Nancy L. Amos. 1995. “The Role of Psychopathy in the Assessment of Dangerousness.” International Journal of Psychiatry and Law, n. 18: 231–38. Seymour, James D., and Richard Anderson. 1999. New Ghosts, Old Ghosts: Prison and Labor Reform Camps in China. Armonk, New York: M. E. Sharpe. Shaanxisheng Tongjiju (陕西省统计局). 2005. Shaanxi tongji nianjian 2005 (陕西统计 年鉴2005). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Shambaugh, David. 2001. Is China Unstable? Armonk, New York: M. E. Sharpe. ——. 2004. Modernizing China’s Military. Progress, Problems, and Prospects. Berkeley: University of California Press. ——. 2008. China’s Communist Party. Atrophy and Adaptation. Berkeley: University of California Press. Shandongsheng Difangzhi Bangongshi (山东省地方志办公室). 1998. “Quansheng shehui zhi’an zonghe zhili jiben qingkuang” (全省社会治安综合治理基本情况). In Shandong nianjian 1990 (山东年鉴1990). Available online at Shandongsheng Shengqing Ziliaoku (山东省资料库), . Last accessed 17 July 2009. Copy on file with the author. Shandongsheng Difangzhi Bianji Weiyuanhui (山东省地方志编辑委员会). 1989. Shandong nianjian 1989 (山东年鉴1989) Jinan: Shandong Renmin Chubanshe (济南: 山东人民出版社). Shanghaishi Gong’anju Gong’anzhi Bianji Weiyuanhui (上海市公安局公安志编辑 委员会). 1997. Shanghai gong’anzhi (上海市公安志). Shanghai: Shanghai Shehui Kexue Chubanshe (上海: 上海社会科学出版社). Shanyouxian Renmin Zhengfu (上犹县城人民政府). 2008. “Shanyouxian chengshi guanliju (bumen) lingdaode zhuyao jianli, fengong” (上犹县城市管理局（部 门）领导的主要简历、分工). Shanyouxian zhengfu xinxi gongkai (上犹县政府信息 公开). Available online at . Copy on file with the author. Shapiro, Judith. 2001. Mao’s War against Nature: Politics and the Environment in Revolutionary China. Cambridge, MA: Cambridge University Press. Shen, Zhaoluan, and Cheng Ping (沈照栾 原平). 1993. “Zhi’an lianfang duiyuan chaoyue zhiquan xingweide chengyin” (治安联防队员超越职权行为的成因) Henan Gong’an Gaodeng Zhuagke Xuexiao Xuebao (河南公安高等专科学校学报), n. 4: 59–61. Shenzhen Bao’anqu (深圳宝安区). 2008. “Shenzhen bao’anquchengguan waibao” xin moshi pojie chengshi guanli nanti” (深圳宝安区城管外包新模式破解城市管 理难题). Lingdao Juece Xinxi (领导决策信息), n. 23: 20–21. Shenzhenshi funü ertong gongzuo weiyuanhui bangongshi (深圳市妇女儿童工作委 员会办公室). 2005. Shenzhen fu’er gonwei xinxi (深圳妇儿工委信息), n. 2 (20 January 2005). Shi, Guangquan (施广权). 2005. “Chong duzhe laixing qiuzheng laozong ‘shouhui’an’ zhenxiang” (从读者来信求证老总受贿案真相), 26 August. Available online at . Last accessed 24 January 2010. Shi, Ruokun (石若坤). 2006. “Chengshi guanli xingzheng bu wenming zhifade yuanyin jiqi gaishan” (城市管理行政不文明执法的原因及其改善). Guangzhou Daxue Xuebao (广州大学学报) 6, n. 5: 33–36. Shieh, Shawn. 2005. “The Rise of Collective Corruption in China: The Xiamen Smuggling Case.” Journal of Contemporary China 14, no. 42: 67–92. Shue, Henry. 1978. “Torture.” Philosophy and Public Affairs 7, n. 2: 124–43. Sichuansheng Liangshan Yizu Zizhizhou (四川省凉山彝族自治州). 2000. Sichuansheng Liangshan Yizu Zizhizhou Zhongji Renmin Fayuan xingzheng panjueshu (2000) liangxing zhongzi di 22 hao (四川省凉山彝族自治州中级人民法院行政判决书 [2000] 凉 刑字第22号). Sichuansheng Leshanshi Shizhongqu Renmin Fayuan (四川省乐山市市中区人民 法院). 2001. Sichuansheng Leshanshi Shizhongqu Renmin Fayuan xingzheng panjueshu (2001) lezhong xingchu zidi 30 hao (四川省乐山市市中区人民法院行政判决书[2001]乐中 刑初字第30号). Sichuansheng Nanchongshi Zhongji Renmin Fayuan (四川省南充市中级人民法院). 1999. Sichuansheng Nanchongzhi Zhongji Renmin Fayuan xingzheng panjueshu [1999] nanzhong faxingzhong di 145 hao (四川省南充市市中级人民法院行政判决书(1999)南中 发行中第145号). Sichuansheng tongjiju (四川省统计局). 2004. Sichuan tongji nianjian 2004 (四川统计年鉴 2004). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计出版社). Sifabu Jianyu Guanliju (司法部监狱管理局). 2003. Jianyu gongzuo shouce disiji 1998.1– 2003.1 (监狱工作手册第四辑 1998.1–2003.1). Beijing: Falü Chubanshe (北京: 北 京法律出版社). ——. 2004. Jianyu jianshe biaozhun. (监狱建设标准). Beijing. Sigley, Gary. 1997. “Governing Chinese Bodies: The Significance of Studies in Governmentality of the Analysis of Birth Control in China.” In Foucault: The Legacy, edited by Clare O’Farrel. Brisbane: Queensland University of Technology Press.

reference list

341

Simon, Rainald. 1996. Der chinesiche Gulag. Lager, Gefängnisse, staatliche Repression und politische Opposition. Reinbek: Rowohlt. Sina. 2009. “Woguo silifa guiding nüedai dongwu zhisizhe fu xingze” (我国拟立法 规定虐待动物致死者负刑责), 15 June. Available online at . Last accessed 21 June 2009. Skogan, Wesley G. 1990. Disorder and Decline: Crime and the Spiral of Decay in American Cities. New York: The Free Press. Slack, Edward R. Jr. 2000. Opium, State and Society. China’s Narco-Economy and the Guomindang, 1924–1937. Honolulu: University of Hawaii Press. Staunton, George Thomas. 1850. Miscellaneous Notices Relating to China, and Our Commercial Intercourse with That Country. London: John Murray. Steadman, Henry J., and Joseph J. Cocozza. 1980. “The Prediction of Dangerousness. Baxtrom: A Case Study.” In The Role of the Forensic Psychologist, edited by Gerald Cooke, pp. 204–15. Springfield, Illinois: Thomas. Strentz, Thomas. 1979. “Law Enforcement Policy and Ego Defenses of the Hostage.” FBI Law Enforcement Bulletin, April, p. 1. Summers, Montague. 1971. The Malleus Maleficarum of Kramer and Sprenger. New York: Dover Publications. Sun, Jinquan (孙金全). 2005. Jijian jiancha ban’an celüe yu yishu (纪检监察办案策略与 艺术). Beijing: Zhongguo Fangzheng Chubanshe (北京: 中国方正出版社). Sun, Leming (孙乐明). 2009. “Hainan zhenghe 7000ming zhi’an lianfangdui chengli bao’an gongsi” (海南整合7000名治安联防队成立保安公司). Hainan Ribao (海南 日报), 9 May. Available online at . Last accessed 23 January 2010. Tang, Dehua (唐德华). 2002. Xingshi susongfaji sifa jieshi shiyong zhinan: shang (刑事诉 讼法及司法解释适用指南: 上). Beijing: Renmin Fayuan Chubanshe, Zhongguo Fangzheng Chubanshe (北京: 人民法院出版社, 中国方正出版社). Tang, Dongping (唐东平). 2003. “Kuoda fanfubaide minzhu yanjie” (扩大反腐败的 民主眼界). Zhongguo dangzheng ganbu luntan (中国党政干部论坛), n. 8: 7–10. Tanner, Harold. 1994. “China’s ‘Gulag’ Reconsidered: Labor Reform in the 1980s and 1990s.” China Information 9, n. 1: 40–71. ——. 1999. Strike hard!: Anti-Crime Campaigns and Chinese Criminal Justice, 1979–1985. Ithaca: Cornell University Press. Tanner, Murray Scot. 2000a. “State Coercion and the Balance of Awe: The 1983–1986 ‘Stern Blows’ Anti-Crime Campaign.” The China Journal, n. 44 ( July): 93–125. ——. 2000b. “Shackling the Coercive State: China’s Ambivalent Struggle against Torture.” Problems of Post-Communism 47, n. 5: 13–30. ——. 2002. “Changing Windows on a Changing China: The Evolving ‘Think Tank’ System and the Case of the Public Security Sector.” The China Quarterly, n. 171 (September): 559–74. Tanner, Murray Scot, and Eric Green. 2007. “Principals and Secret Agents: Central versus Local Control over Policing and Obstacles to ‘Rule of Law’ in China.” The China Quarterly, n. 191: 644–70. Tao, Ji’an (陶济安). 1997. “Jiu shehuide yapian liudu jiqi jiedu gongzuo” (旧社会 的鸦片流毒及其戒毒工作). In Jindai Zhongguo yandu xiezhen shangjuan (近代中国烟 毒写真上卷), edited by Wenshi Jinghua Bianjibu (文史精华编辑部), pp. 490–96. Shijiazhuang: Hebei Renmin Chubanshe (石家庄: 河北人民出版社). Tao, Lung-sheng. 1974. “Politics and Law Enforcement in China: 1949–1970.” The American Journal of Comparative Law 22, n. 4: 713–56 Tao, Ran (陶然). 2004. “Jiedu jixu panwen” (解读继续盘问). Renmin Gong’an (人民 公安), n. 18: 54–56. Tengxun (藤讯). 2007. “Guangxi faguan quanshen shanghen sizai kanshousuo. Jiashu shangwang hanyuan” (广西法官全身伤痕死在看守所 家属上网喊冤), 28 April. Available online at . Last accessed 29 January 2008. Copy on file with the author.

342

reference list

Tétreault, Mary Ann. 2006. “The Sexual Politics of Abu Ghraib: Hegemony, Spectacle and the Global War on Terror.” NWSA Journal 18, n. 3: 32–50. Thelle, Hatla. 2006. “Torture in China.” Torture 16, n. 3: 268–75. Thurston, Anne F. 1984. “Victims of China’s Cultural Revolution: The Invisible Wounds.” Part 1. Pacific Affairs 57, n. 4 (Winter): 599–620. ——. 1985. “Victims of China’s Cultural Revolution: The Invisible Wounds.” Part 2. Pacific Affairs 58, n. 1 (Spring): 5–27. Tian Jinsheng (田金生). 1999. “Dui woxian zhongdian renkou guanli gongzuode diaocha yu sikao” (对我县重点人口管理工作的调查与思考). Beijing Renmin Jingcha Xueyuan Xuebao (北京人民警察学院学报), n. 3: 27–30. Tianjinshi Renmin Zhengfu (天津市人民政府) 2008. “Hexiqu chengshi guanli zonghe zhifaju danwei lingdao xinxi” (河西区城市管理综合执法局单位领导信息). Hexiqu zhengfu xingxi gongkai (河西区政府信息公开). Available online at . Last accessed 10 March 2010. Copy on file with the author. Tindale, Christopher. 1996. “The Logic of Torture: A Critical Examination.” Social Theory and Practice 22 (Fall): 349–74. Tong, James. 1991. Disorder under Heaven: Collective Violence in the Ming Dynasty. Stanford, CA: Stanford University Press. Tong, Yi. 2003. “Kidnapping by Police: Custody and Repatriation.” China Rights Forum, n. 2: 42–43. Tresvaskes, Susan. 2003. “Public Sentencing Eallies in China:The Symbolizing of Punishment and Justice in a Socialist State.” Crime, Law and Social Change, n. 39: 359–82. ——. 2007. Courts and Criminal Justice in Contemporary China. Lanham, Maryland: Lexington Books. Van Eck, Ludo. 1979. Le Livre des Camps. Leuven: Kritak. Vogt, Stine, and Svein Magnussen. 2007. “Long-Term Memory for 400 Pictures on a Common Theme.” Experimental Psychology 54, n. 4: 298–303. Wakeman, Frederic E. 1996. Policing Shanghai, 1927–1937. Berkeley: University of California Press. Walder, Andrew G., and Yang Su. 2003. “The Cultural Revolution in the Countryside: Scope, Timing and Human Impact.” The China Quarterly, n. 173: 4–99. Wan, Chunping (万春平). 2003. “Qiangzhi jiedude yaowu zhiliao yu junshihua guanli” (强制戒毒的药物治疗与军事化管理). Tianjin Yike Daxue Xuebao (天津医科 大学学报) 9, n. 4: 55–56. Wan, Ling (万玲). 1998.“Dui gong’an jiguan shiyong liuzhi panwende jidian sikao” (对公安机关使用留置盘问的几点思考). Zhongguo Xingshifa Zazhi (中国刑事法 杂志), n. 6: 53–54. Wang, Aihe. 2000. Cosmology and Political Culture in Early China. Cambridge, MA: Cambridge University Press. Wang, An (王安). 1989 . “Wojun lishishangde jinbi chufen” (我军历史上的禁闭 处分). Junshi lishi (军事历史), n. 4: 18–20. Wang, Cunfu (王存福). 2004. “Chen Yi dayi shiyu shang zhongbing wei shi” (陈毅: 大义释于伤重病危时). Dang’an Shikong (档案时空), n. 7: 13–15. Wang, Dehua (王德华) 2001. “Liuzhi (panwen) ying chedi xingqi” (留置(盘问)应彻 底刑期), Jiancha Shijian (检察实践), n. 6: 45. Wang, Doudou (王斗斗). 2007. “Gongjianfasi youguan renshi zhen xingxun bigong wanzheng” (公检法司有关人士会诊刑讯逼供顽症), 22 August. Available onlime at . Last accessed 23 January 2010. Wang, Guohua (王国华). 1997. “Qiandongnan yandu ji jiefanghoude jinyan” (黔东 南烟毒及解放后的禁烟). In Jindai Zhongguo yandu xiezhen xiajuan (近代中国烟毒 写真), edited by Wenshi Jinhua Bianjibu, pp. 322–28. Shijiazhuang: Hebei Renmin Chubanshe (石家庄: 河北人民出版社).

reference list

343

Wang, Jian (王健). 2005. “Liulang qitao renyuande shehui jiuzhu yu shehui kongzhi—yi Chengdu weili” (流浪乞讨人员的社会救助与社会控制 以成都为例). Shehui Kexue Yanjiu (社会科学研究) n. 4: 130–34. Wang, Haiyan (汪海燕). 2005. “Jiedu ‘guojia zunzhong he baozhang renquan.’ Xi xianfa xiugai dui xingshi susong zai xiugaide yinxiang” (解读“国家尊重和保障人 权”——析宪法修改对刑事诉讼法再修改的影响). Dangdai Faxue (当代法学), n. 2: 107–17. Wang, Ruishan (王瑞山). 2004. “Woguo bao’anyede falü kunjing yu chulu xuanze” (我国保安业的法律困境与出路选择). Fanzui Yanjiu (犯罪研究), n. 3: 39–46. Wang, Tingyin (王挺银). 1997. “Linhe jiedusuo shimo” (林河戒毒所始末). In Jindai Zhongguo yandu xiezhen shangjuan (近代中国烟毒写真上卷), edited by Wenshi Jinghua Bianjibu (文史精华编辑部), pp. 214–17. Shijiazhuang: Hebei Renmin Chubanshe (石家庄: 河北人民出版社). Wang, Willie. 2008. “Discovering Xingkaihu: Political Inmates in a PRC Labor Camp.” East Asia, n. 25: 267–92. Wang, Yan (王研). 2009. “Duomaomao” an yisheng xuanpan ‘laotou yuba’ ji kanshousuo liangminjing fengbie bei panxing” (“躲猫猫”案一审宣判 一牢头狱霸”及 看守所两民警分别被判刑). Xinhuawang (新华网), 14 August. Available online at . Last accessed 25 January 2010. Wang, Yu (王宇). 2002. “Laojiao jiedu: nuli shishi kuayueshi fazhan” (劳教戒毒：努 力实现跨越式发展). Fazhi Ribao (法制日报), 21 December. Wasserstrom, Jeffrey N., and Elizabeth Perry, eds. 1992. Popular Protest and Political Culture in Modern China: Learning from 1989. Boulder, CO: Westview Press. Wei, Kejia, and Cao Jing (魏克家 曹晶). 1998. “Lun xingxun bigongzui de jige wenti” (论刑讯逼供罪的几个问题). Zhongyang Zhengfa Guanli Ganbu Xueyuanbao (中央政法 管理干部学员报), n. 6: 35–37. Wei, Li. 1995. “The Security Service for Chinese Central Leaders.” The China Quarterly, n. 143 (September): 814–27. Wei, Mingfeng (魏明锋).1993. Zhongguo Gongchandang jilü jianchashi (中国共产党纪律检 查史). Shijiazhuang: Hebei Renmin Chubanshe. Weiming (未名). 2003. “Tianjin: zhengfu goumai gongyixing jiuye gangwei anzhi “4050” renyuan” (天津:政府购买公益性就业岗位安置“4050”人员), Zhongguo Peixun (中国培训), n. 9: 63. ——. 2005. “Zai banli xingshi, xingzheng anjianzhong gai ruhe shiyong jixu panwen” (在办理刑事, 行政案件中该如何适用继续盘问). Renmin Gong’an (人民公安), n. 2: 45. Wenger, Jacqueline E. 2004. “Official versus Underground Protestant Churches in China: Challenges for Reconciliation and Social Influence.” Review of Religious Research 46, n. 2: 169–82. Whyte, Martin King. 1973. “Corrective Labor Camps in China.” Asian Survey 13, n. 3: 253–59. Williams, Philip F., and Yenna Wu. 2004. The Great Wall of Confinement. The Chinese Prison Camp through Contemporary Fiction and Reportage. Berkeley and Los Angeles: University of California Press. ——. 2006. Remolding and Resistance among Writers of the Chinese Prison Camps: Disciplined and Published. New York: Routledge. Williamson, Tom, ed. 2008. The Handbook of Knowledge Based Policing: Current Conceptions and Future Directions. London: John Wiley and Sons. Wilson, Scott. 2009. “Obama Shifts on Abuse Photos,” The Washington Post, 14 May. Worden, Andrea G. 2009. “A Fair Game of Law and Politics in China, and the ‘Sensitive’ Case of Democracy Activist Yang Jianli.” Georgetown Journal of International Law 40, no. 2 (Winter): 447–522.

344

reference list

World Health Organization. 2003. “Severe Acute Respiratory Syndrome (SARS): Laboratory Diagnostic Tests,” 29 April. Available online at . ——. 2004. WHO Guidelines for the Global Surveillance of Severe Acute Respiratory Syndrome (SARS). Updated Recommendations October 2004. Department of Communicable Disease Surveillance and Response. ——. 2009a. “Cholera in Zimbabwe—update 2.” ——. 2009b. Guidelines for the Psychosocially Assisted Pharmacological Treatment of Opioid Dependence. Geneva: WHO Press. Wong, Kam C. 1996. “Police Powers and Control in the People’s Republic of China: The History of Shoushen.” Columbia Journal of Asian Law, n. 10: 367–90. ——. 1997. Sheltering for Examination (shoushen) in the PRC: Law, Policy and Practices. Baltimore: University of Maryland, School of Law. ——. 2001. “The Philosophy of Community Policing in China.” Police Quarterly 4, n. 2: 186–214. ——. 2007. “Studying Policing in China: Some Personal Reflections.”International Journal of the Sociology of Law, n. 35: 111–26. ——. 2009. Chinese Policing: History and Reform. New York: Peter Lang. Wong, Tai C. 2008. “Clinical False-Positive Drug Test Results.” In Handbook of Drug Monitoring Methods, edited by Amitava Dasgupta, pp. 395–406. New York: Humana. Wu De and Zhu Yuanshi ( 德　朱元石). 2004. Wu De koushu: shinian fengju jishi: wozai Beijing gongzuode yixie jingli ( 德口述十年风雨纪事—我在北京工作的一些经历). Beijing: Dangdai Zhongguo Chubanshe (北京: 当代中国出版社). Wu Guanzheng ( 官正). 2006. Wu Guanzhen zai Zhongjiwei liuci quanhuishangde gongzuo baogao ( 官正在中纪委六次全会上的工作报告), 13 February. Available online at . Last accessed 10 March 2010. Copy on file with the author. ——. 2007. “Cong yuantoushang fangzhi fubai gongzuo lingdao, shenru tuijin dangfeng lianzheng jianshe he fanfubai douzheng—zai Zhongguo Gongchandang Zhongjiang Jilü Weiyuanhui diqici quanti huiyi shangde gongzuo baogao” (拓展 从源头上防治腐败工作领域 深入推进党风廉政建设和反腐败斗争——在国 共产党中央纪律检查委员会第七次全体会议上的工作报告). Renmin Ribao, 15 (February): 2. Wu, Harry, and Carolyn Wakeman. 1993. Bitter Winds: A Memoir of My Years in China’s Gulag. New York: John Wiley and Sons. Wu, Hongda Harry. 1992. Laogai: The Chinese Gulag. Boulder: Westview Press. Wu, Zhihong ( 志宏). 2005. “Chengshi guanli xingzheng zhifazhongde wenti yu jianyi” (城市管理行政执法中的问题与建议). Zhongguo Chengshi Jingji (中国城市经济), n. 9: 50–51. Xia, Chongsu (夏宗素) 2001. Laodong jiaoyang zhidu gaige wenti yanjiu (劳动教养制度改 革问题研究). Beijing: Falü Chubanshe (北京: 法律出版社). Xia, Chongsu, and Zhang Jinsong (夏宗素、张劲松). 1997. Laodong jiaoyangxue jichu lilun (劳动教养学基础理论). Beijing: Zhongguo Renmin Gong’an Daxue Chubanshe (北京: 中国人民公安大学出版社). Xia, Yong (夏勇). 1999. Zouxiang quanlide shidai: Zhongguo gongmin quanli fazhan yanjiu (走向权利的时代: 中国公民权利发展研究). Beijing: Zhongguo Zhengfa Daxue Chubanshe (北京: 中国政法大学出版社). Xiangtanshi Chengshi Guanli Xingzheng Zhifaju (湘潭市城市管理行政执法局) 2009. Xiangtanshi chengshi guanli xingzheng zhifaju (gongyong shiye guanliju) zhaopin jianzhang (湘 潭市城市管理行政执法局(公用事业管理局)招聘简章). On file with the author. Xiao, Yang (肖扬). 1996. Zhongguo xingshi zhengce he celüe wenti (中国刑事政策和策率问题). Beijing: Falü Chubanshe (北京: 法律出版社).

reference list

345

Xie, Shenghua (谢生华). 2004. “Jixu panwen liuzhi zhidude yunyong jiqi wanshan” (继续盘问留置制度的运用及其完善). Lanzhou Xuekan (兰州学刊), n. 5:186–87. Xin, Hong (辛红). 2001. “Dazao yige zhenzheng jiankangde huanjing” (打造一个真 正健康的环境). Fazhi ribao (法制日报), 4 August, p. 2. Xing, Jie, Tai Yunqi, and Li Yuan (邢捷 台运启 李元). 2004. Zhi’an xingzheng zhifa xuzhi (治安行政执法须知). Beijing: Qunzhong Chubanshe (北京: 群 出版社). Xingshifa Xinlun Jicui Bianxiezu (刑事法新论集粹编写组). 2005. He Peng jiaoshou bashi huadan jinian wenji (何鹏教授八十华诞纪年文集). Beijing: Falü Chubanshe (北京: 法律出版社). Xinhua. 2004. “Officials Call for Harmonious, Stable Social Environment,”13 July. Available online at . Last accessed 24 January 2010. ——. 2008. “Para-Police Officials Condemn Beating Death of Man in Hubei,” 21 January. On file with the author. Xinhuawang (新华网). 2006. “Hunan Hengyang nanhua yiyuan yuanzhang shuanggui qijian liqi shenwang” (湖南衡阳南华医院院长双规期间离奇身亡), 27 June. Available online at . On file with the author. Xinjiang Weiwuerzu Zizhiqu Tongjiju (新疆维吾尔族自治区统计局). 2003. Xinjiang tongji nianjian 2003 (新疆统计年鉴2003). Beijing: Zhongguo Tongji Chubanshe (北京: 中国统计制出版社). Xinxi, Shibao (信息时报). 2004. “Guangzhou—jiedao lianfang duiyuan fengsuo shichang zhuaren ban zanzhuzheng” (广州一街道联防队员封锁市场抓人办 暂住证), 21 October. Available online at . Last accessed 24 January 2010. Xiong, Yixin, and Xie Huimin. (熊一新,谢惠敏). 1999. “Lun woguo jieyanfade diaozheng fanwei he jueding quanxiang” (论我国戒严法的调整范围和决定权限). Liaoning Gong’an sifa guanli ganbu xueyuan xuebao (辽宁公安司法管理干部学院学报), n. 4: 4–7. Xu, Bishan (徐碧姗). 2007. “Guangxi faguan kanshoushuo baowang yicao xingxun bigong?” (广西法官看守所暴亡 疑遭刑讯逼供). Jinyangwang (金羊网). Available online at . Last accessed 25 January 2010. Xu, Xiaojun (许肃军). 2005. “Bao’an tizhi: ruhe gai?” (保安体制: 如何改?). Zhongguo Bao’an (中国保安), n. 21: 26–27. Xue, Ju (薛驹). 1997. “Guanyu xingzheng jianchafa cao’an (xiugai gao) xiugai yijiande huibao” (关于行政监察法草案(修改稿)修改意见的汇报). Quangguo Renmin Daibiao Dahui Changwu Weiyuanhui Gongbao (全国人民代表大会常务委员会公报), n. 3: 340–41. Xue, Yu (薛钰). 1999. “Guanyu Zhonggong zhongyang teke ruogan wentide tantao” (关于中共中央特科若干问题的探讨). Zhonggong Dangshi Yanjiu (中共党史研究), n. 3: 91–96. Xuyixian (盱眙县). 2009. Xuyi lianzhengwang (盱眙廉政网). Available online at . Yan, Jiaqi, and Gaogao. 1996. Turbulent Decade: A History of the Cultural Revolution. University of Hawaii Press. Yan, Kechu (颜克初). 1997. “Chengshi guanli huhuan zonghe zhifa” (城市管理呼唤 综合执法), Zhongguo Gaige (中国改革), n. 11: 56–57. Yan, Sun. 2004. Corruption and Market in Contemporary China. Ithaca, NY and London: Cornell University Press. Yan,Weigang, and Wang Xiaomu (闫伟刚 王晓木). 2004. “Dui woguo xianxing jiedu moshide pingxi yu weilai gaige fangxiangde sikao” (对我国现行戒毒模式的评析 与未来改革方向的思考) Zhongguo Yaowu Yilaixing Zazhi (中国药物依赖性杂志) 13, n. 4: 312–14.

346

reference list

Yan, Zhao, and Ji Hongzhong (闫超 计宏忠). 2003. “Ducha bumen dui liuzhi cuoshi shishi xianchang duchade nandian sikao” (督察部门对留置措施实施现场督察的 难点思考). Tiedao Jingcha Gaodeng Zhuanke Xuexiao Xuebao (铁道警察高等专科学校 学报) 13, n. 4: 90–92. Yan, Zhijiang (阎志江). 2008. “Laojiaosuo ruhe duijie ‘qiangzhi geli jiedu’” (劳教 所如何对接强制隔离戒毒). Guizhou Ribao (贵州日报), 15 September. Available online at . Last accessed 22 January 2010. Copy on file with the author. ——. 2009. “Guizhousheng laojiao xitong kaizhan qiangzhi geli jiedu gongzuo jishi: xin linian xin moshi” (贵州省劳教系统开展强制隔离戒毒工作纪实:新理念新 模式). Fazhiwang/Fazhi Ribao (法制网 法制日报), 9 September. Available online at . Last accessed 12 July 2009. Copy on file with the author. Yang, Dali. 2004. Remaking the Leviathan: Market Transition and the Politics of Governance in China. Stanford: Stanford University Press. Yang, Dingbo (袁定波). 2009. “Sifabu tongzhi: yaoqiu geji sifa xingzheng jiguan guanche shishi jindufa” (司法部通知：要求各级司法行政机关贯彻实施禁毒法). Zhongguo Pufawang (中国普法网), 25 June. Available online at . Last accessed 4 July 2009. Copy on file with the author. Yang, Kuisong. 2008. “Reconsidering the Campaign to Suppress Counterrevolutionaries.” The China Quarterly, n. 193 (March):102–21. Yang, Wehan, and Tian Yu (杨维汉 田雨). 2004. “Woguo gongyou jindu jingli 1.7 wan ren. 31ge shengqushi jianli gong’an jindu zhuanye duiwu” (我国共有禁独 警力1.7万人. 31个省区市建立公安禁毒专业队伍). Xinhuashe (新华社), 22 June. Available online at . Last accessed 23 January 2010. Yang, Yonghua (杨永华). 2002. “Qianxi gong’an jiguan “liuzhi panwen” de ruogan wenti” (浅析公安机关”留置盘问”的若干问题 ). Lüshi Shijie (律师世界), n. 11: 42–44. Yang, Zontao, and Yin Haitao (杨宗锦 尹海涛) 2004. “Dujia diaocha, Ruanxian jiwei shuji Yang Zhengchao he lianzheng fengbao” (独家调查：汝南县纪委书 记杨正超和廉政风暴). Zhongyuan Xinwenwang, Zhengzhou Wanbao (中央新闻网 郑 州晚报), 15 November. Available online at . Last accessed 3 June 2009. Copy on file with the author. Yao, Bin (姚兵). 2001. “Yi gaodude zhengzhi zerengan he lishi minggan chuanxi qiushi zuohao jianshe jijian jiancha gongzuo” (以高度的政治责任感和历史使命 感创新求实做好建设纪检监察工作). Zhonghua Renmin Gongheguo Jianshebu (中华人 民共和国建设部), 10 January. Available online at . Last accessed 3 March 2005. Copy on file with the author. Ye, Duchu (叶笃初). 2001. Zhongguo gongchandang dangyuan xingwei guifan shouce (中国共 产党党员行为规范手册). Beijing: Zhonggong Zhongyang Dangxiao Chubanshe (北京: 中共中央党校出版社). Ye, Xiangming, and Deng Zehai (叶向明 邓泽海). 2001. “Guanyu liuzhi cuoshide lifa jianyi” (关于留置措施的立法建议). Shenzhen Fazhibao (深圳法制报), 14 July, p. 2. Ye, Xiaochuan (叶晓川). 2008. “Chengguan zhifaquande zhidu kunjing jiqi chulu” (城管执法权的制度困境及其出路). Minzhu yu Fazhi (民主与法制), n. 3: 119–22. Ye, Yongguang (叶永光). 2002. “Zhi’an lianfang cunzaide wenti” (治安联防存在的 问题). Gong’an Yanjiu (公安研究), n. 1: 49–51. Yee, Frank S. H. 1957. “Chinese Communist Police and Courts.” The Journal of Criminal Law, Criminology, and Police Science 48, n. 1: 83–92.

reference list

347

Yi, Jiancheng, and Li Gen (易建成 李根). 2007. “Hunan Chenzhou yuan shiwei shuji liyong ‘shuanggui’ liancai 8000 wan” (湖南郴州原纪委书记利用“双规” 敛财 8000 万元). Yancheng Wanbao (羊城晚报), 14 April. Reprinted on Zhengyiwang (正义网). Available online at . Last accessed 12 June 2009. Copy on file with the author. You, Xin (又心). 1999. “Wumingde fenbei, jinian Zhongyang Shehuibu chengli liushi zhou nian” (无名的丰碑——纪念中央社会部成立六十周年). Guojia Anquan Tongxun (国家安全通讯), n. 5: 2–4. Young, Graham. 1984. “Control and Style: Discipline Inspection Commissions since the Eleventh Congress.” The China Quarterly, n. 97: 24–52. Yu, Guangyuan (于光远). 1998. Gaibian Zhongguo mingyunde 41 tian: Zhongyang gongzuo huiyi, shiyi jie sanzhong quanhui qinliji (改变中国命运的41天:中央工作会议十一届三 中全会亲历记). Beijing: Haitian Chubanshe. ——. 2008. 1978: wo qinglide naci lishi da zhuanzhe (1978:我亲历的那次历史大大转折). Beijing: Zhongyang Bianyi Chubanshe. Yu, Haibin (于海斌). 2002. “Laizi Shanxisheng qiangzhi jiedusuode diaocha baogao” (来自山西省强制戒毒所的调查报告). Shanxi Jingguan Gaodeng Zhuangke Xuexiao Xuebao (山西警官高等专科学校学报) 36, n. 1: 24–28. Yu, Lingyun (余凌云). 2005. Weifa xingwei jiaozhi cuoshi (违法行为矫治措施). Beijing: Zhongguo Renmin Gong’an Daxue Chubanshe (北京: 人民公安大学出版社). Yu, Shubin (于树斌). 1996. “Xin minzhuzhuyi geming shiqi genjudi yushen zhidude jianli yu fazhan (1)” (新民主主义革命时期根据地 预审制度的建立与发展(一)). Gong’an Daxue Xuebao (公安大学学报), n. 1: 67–70. Yu, Wen Ruimin (宇文瑞敏). 2008. “Gaobie laodong jiaoyang jiedu” (告别劳动教养 戒毒). Jiancha Ribao (检察日报), 21 May. Available online at . Last accessed 22 January 2010. Yu, Zhigang (于志刚). 2005. Jijian jiancha anjian zhengju diaocha yu yunyong shiyong jiaocheng (纪检监察案件证据调查与运用使用教程). Beijing: Guojia Xingzheng Xueyuan Chubanshe, Zhongguo Fangzheng Chubanshe (北京: 国家行政学院出版社, 中国 方正出版社). Yuan, Wen (袁文). 2005. “Weihun nüyanjiushende kuise qiuzheng” (未婚女研究生的 苦涩求证). Shijiazhuang Ribao (石家庄日报), 8 May. Available online at . Last accessed 25 January 2010. Yue, Gongban, and Tan Yufu (粤宫办 谭育富). 2002. “Dui Guangdong bao’an fuwuyede diaocha yu sikao” (对广东保安服务业的调查与思考). Gong’an Yanjiu (公安研究), n. 9: 84–87. Yue, Yong (岳勇). 2006. “Bao’an fuwuyede shehui gongneng yu falü diwei” (保安服 务业的社会功能与法律地位). Zhongguo Bao’an (中国保安), n. 1: 29–30. Yunnan Nianjian Bianji Weiyuanhui (云南年鉴编辑委员会). 1988. Yunnan nianjian 1988 (云南年鉴 1988). Kunming: Yunnan Nianjian Zazhishe (昆明: 云南年鉴杂志社). Yunnansheng Kunmingshi Zhongji Renmin Fayuan (云南省昆明市中级人民法院). 2000. Yunnansheng Kunmingshi Zhongji Renmin Fayuan xingzheng peichang panjueshu (2000) kunfa xingzhongzi di 1 hao (云南省昆明市中级人民法院行政赔偿判决书 (2000) 昆 发行中字第一号). Yunnansheng Renmin Zhengfu. (云南省人民政府). 2009. Ximengxian jijian jiancha zhengwu gongkai wangzhan. (西盟县纪检监察政务信息公开网站). Available online at . Last accessed 30 December 2009. Zelin, Madeleine. 1990. “The Rise and Fall of the Fu-Rong Salt-Yard Elite: Merchant Dominance in Late Qing China.” In Chinese Local Elites and Patterns of Dominance, edited by Joseph W. Esherick and Mary Backus Ranking, pp. 82–111. Berkeley: University of California Press.

348

reference list

Zhang, Bowen (张博文). 2000. Weifan dangji cuowuming xiji (违反党纪错误名析解). Beijing: Zhongguo Fangzheng Chubanshe (北京: 中国方正出版社). Zhang, Buwen (张步文). 2005. “Shuanggui shuangzhi: xiangdui helixing yu hefa youxianxing” (双规双指: 相对合理性与合法有限性). Hebei Faxue (河北法学), n. 1: 3–6. Zhang, Chi, and Luo Yonglin (张弛 罗永琳). 2008. “Chengshi guanli zonghe zhifade falü sikao” (城市管理综合执法的法律思考). Tianshui Xingzheng Xueyuan Xuebao (天水行政学院学报), n. 3: 102–4. Zhang, Hui (章晖). 2003. “Qianyi shiyong liuzhi panwende tiaojian ji chengxu” (浅议适用留置盘问的条件及程序). Jiangxi Gong’an Gaodeng Zhuanke Xuexiao Xuebao (江西公安高等专科学校学报), n. 6: 42–44. Zhang, Lianju (张连举). 2003. “Lun yifa xingshi panchaquan” (论依法行使盘查权), Guangxi Gong’an Guanli Ganbu Xueyuan Xuebao (广西公安管理干部学院学报), n. 3: 40–41. Zhang, Min (张敏). 2009. “Li Qiaoming xi kanshousuo nai yutou yuba ouda zhisi” (李荞明系看守所内牢头狱霸殴打致死). Zhongxinwang (中新网), 27 February. Available online at . Last accessed 25 January 2010. Zhang, Ren’an, Gao Yucai, and Zhou Xingtong (张仁安 高玉才). 1996. “Zhongguo jiedu diyisuo—laizi kunmingshi qiangzhi jiedusuode baogao” (中国戒毒第一所— 来自昆明市强制戒毒所的报告). Renmin Gong’an (人民公安), n. 22: 8–11. Zhang, Rongxuan (张荣轩). 1997. “Jiefangqian Suqian yandu he jinyan zhengce” (解放前苏茜烟毒和禁烟政策). In Jindai Zhongguo yandu xiezhen shangjuan (近代中国 烟毒写真上卷), edited by Wenshi Jinghua Bianjibu (文史精华编辑部), pp. 342–45. Shijiazhuang: Hebei Renmin Chubanshe (石家庄: 河北人民出版社). Zhang, Shunfu (张顺富). 2009. “Guanyu jianli chengxiang zhi’an lianfangduide ti’an”, disi hao lianming ti’an (关于建立城乡治安联防队的提案 第4号联名提案). Jilinsheng Renmin Zhengfu (吉林省人民政府). Available online at . Last accessed 15 July 2009. Copy on file with the author. Zhang, Siqing (张思卿). 1994. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民 检察院工作报告), 15 March. Available online at . Last accessed 10 March 2010. Copy on file with the author. ——. 1995. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 13 March. Available online at < http://www.spp.gov.cn/site2006/2006-02-22/00018286.html>. Last accessed 10 March 2010. Copy on file with the author. ——. 1996. Zuigao Renmin Jianchayuan gongzuo baogao (最高人民检察院工作报告), 12 March. Available online at < http://www.spp.gov.cn/site2006/2006-02-22/00018287.html>. Last accessed 10 March 2010. Copy on file with the author. Zhang, Xianhua, Zhuang Dongxiang, and Ye Weiping (张贤华、庄东贤、叶卫平). 2001. Fengbao: chachu Xiamen teda zousi an jishi (风暴查处厦门特大走私案纪实). Beijing: Zuojia Chubanshe (北京: 作家出版社). Zhang, Xinfeng (张新枫). 2008. “Woguode jindu gongzuo he jindu lifa (shijie di’ershier ci)” (我国的禁毒工作和禁毒立法[十届第二十二次]). Speech, before the standing committee of the National People’s Congress, August 20, 2006. Text from Speech. Available online at . Last accessed December 11, 2008. Copy on file with the author. Zhang, Yurong, and Liu Fangquan (张玉荣 刘方权). 2002. “Xingxun bigong fanzui goucheng xinlun” (刑讯逼供犯罪构成新论). Shehui Gonggong Anquan Yanjiu (社会公 共安全研究), n. 3: 59–64. Zhang, Zhijie. (张志杰). 1996. Feifa jujinzui (非法拘禁罪). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). Zhao, Anli (赵新立). 2009. “Lun jixu panwende xuzhihua yuanyin ji shiyong” (论继续 盘问的虚置化原因及适用). Henan Shekui Kexue (河南社会科学)17, n. 1: 127–29.

reference list

349

Zhao, Lequn (赵乐群). 1997. “Xichang jinyan suoji” (西昌禁烟锁记). In Jindai Zhongguo yandu xiezhen xiajuan (近代中国烟毒写真下卷), edited by Wenshi Jinghua Bianjibu (文史精华编辑部), pp. 101-05. Shijiazhuang: Hebei Renmin Chubanshe. Zhao, Yuezhi. 2000. “From Commercialization to Conglomeration: The Transformation of the Chinese Press within the Orbit of the Party-State.” Journal of Communication 20, n. 2: 3–36. Zhejiangsheng Tongjiju (浙江省统计局). 2005. Zhejiang tongji nianjian 2005 (浙江统 计年鉴 2005). Beijing: Zhongguo Tongji Nianjian Chubanshe (北京: 中国统计年 鉴出版社). Zheng, Gongyan (政工言). 2008. “Jianshe zhengguihua fujing duiwu ruogan wenti tantao” (建设正规化辅警队伍若干问题探讨). Gong’an Yanjiu (公安研究), n. 9: 80–84. Zheng, Xiaojiang (郑小将). 2006. “Guanyu chengli ‘chengshi guanli xingzheng zhifaju’de jianyi” (关于成立城市管理行政执法局的建议). Reproduced in Neixian qinmingwang (内乡亲民网). Available online at . Last accessed 19 January 2010. Zheng, Zhongwen (郑仲文). 1997. “Yidang mousi faburong” (以档谋私法不容). Sichuan Dang’an (四川档案), n. 4: 17. Zhengxie Liboxian Weiyuanhui (政协荔波委员会). 2008. “Libo jinjue yanduzhi gaikuang” (荔波禁绝烟毒之概况). Historical record available online at . Last accessed 2 August 2009. Copy on file with the author. Zhong, Lena Y. 2009. Communities, Crime and Social Capital in Contemporary China. Devon, UK: Willan Publishing. Zhong, Lena Y., and Peter N. Grabosky. 2009. “The Pluralization of Policing and the Rise of Private Policing in China.” Crime, Law and Social Change, n. 52: 433–55. Zhonggong Beijingshi Jilü Jiancha Weiyuanhui, Beijingshi Jianchaju (中共北京市纪 律检查委员会　北京市监察局). 2009. Fanfu changlian, jizhuo yangqing (反腐倡廉激 浊扬清). Available online at . Last accessed 30 December 2009. Copy on file with the author. Zhonggong Guangzhoushi jiwei, Guangzhoushi jianchaju (中共广州市纪委，广州市 监察局). 2009. Guangzhou jijian jiancha (广州纪检监察). Available online at . Last accessed 30 December 2009. Zhonggong Guanyangqu jiwei, jianchaju (中共广阳区纪委、监察局). 2003. “Lüxing zhize, zhua guifan, gaohao fuwu zu ban’an” (履行职责抓规范 搞好服务促办案). Zhongjiwei Anjian Guanli Gongzuo Zhuankan (中纪委案件管理工作专刊), n. 9. Available online at . Last accessed 1 July 2009. Copy on file with the author. Zhonggong Nanyuequwei, Nanyuequ zhengfu (中国南岳区委 南岳区政府). 2008. Available online at . Last accessed on 14 November 2008. Copy on file with the author. Zhonggong Sichuansheng Jiwei zhu Jiaotongting jijianzu and Sichuansheng Jianchating zhu Jiaotongting jianchazu (中国四川省纪委驻交通厅纪检组　四川省监察 厅驻交通厅监察组). 2003. Jijian jiancha ban’an changyong chengxu he fangfa (纪检监 察办案常用程序和方法). Beijing: Renmin Jiaotong Chubanshe (北京: 人民交通 出版社). Zhonggong Yuchengshi Xishu Jiguan Jilü Jiancha Gongzuo Weiyuanhui (中共禹城 市系属机关纪律检查工作委员会) 2002. Jijian jiancha gongzuo shiyong tujie. (纪检监 察工作适用图解). Beijing: Zhonggong Dangshi Chubanshe (北京: 中共党史出 版社). Zhonggong Zhongyang Dangxiao Dangjian Jiaojiushi (中共中央党校党建教究室) 1981. Shiyijie sanzhong quanhui yilai zhongyao wenxian xuanbian (十一届三中全会以来

350

reference list

重要文献选编). Beijing: Zhonggong Zhongyang Dangxiao Chubanshe (北京: 中 共中央党校出版社). Zhonggong Zhongyang Dangxiao Dangshi Jiaoyanshi (中共中央党校党史教研室) 1980. Zhonggong dangshi cankao ziliao (中共党史参考资料). Beijing: Zhongguo Dangdai Chubanshe (北京: 中国当代出版社). Zhonggong Zhongyang Jiwei Faguishi and Jianchabu Faguishi (中共中央纪委法规 室 监察部法规室). 1998. Jijian jiancha jiguan yewu fagui zhengce xuanbian 1998nian hedingben (纪检监察机关业务法规政策选编1998年合订本) Beijing: Zhongguo Fangzheng Chubanshe (北京: 中国方正出版社). ——. 2000. Jijian jiancha jiguan yewu fagui zhengce xuanbian 2000nian hedingben (纪检监察 机关业务法规政策选编2000年合订本) Beijing: Zhongguo Fangzheng Chubanshe (北京: 中国方正出版社). Zhonggong Zhongyang Wenxian Yanjiushi (中共中央文献研究室). 1982. Sanzhong quanhui yilai zhongyao wenxian xuanbian (shang) (三中全会以来重要文献选编　上). Beijing: Renmin Chubanshe (北京: 人民出版社). ——. 1992. Jiangguo yilai zhongyao wenxian xuanbian (建国以来重要文献选编). Beijing: Zhongyang Wenxian Chubanshe (北京: 中央文献出版社). Zhonggong Zhongyang Zhengfa Weiyuanhui, Zhonggong Zhongyang Shehui Zhi’an Zonghe Zhili Weiyuanhui (中共中央政法委员会　中共中央社会治安综合治 理委员会). 2008. “Quangguo shouge jiaotong juliusuo zai Chongqing guapai kerong 350 ming weifa siji” (全国过首个交通拘留所在重庆挂可容350 名违法 司机). Zhongguo Ping’anwang (中国平安网), 30 May. . Last accessed 9 August 2008. Copy on file with the author. Zhongguo Baowei Gongzuo Shiwu yu Guanli Quanshu Bianweihui (中国保卫工 作事务与管理全书编委会). 1996. Zhongguo baowei gongzuo shiwu yu guanli quanshu (中国保卫工作事务与管理全书). Beijing: Zhongguo Minzhu Chubanshe (北京: 中国民主出版社). Zhongguo Dazhong Shiyong Nianjian Bianjibu (中国大 实用年鉴编辑部). 2001. Dazhong shiyong nianjian 2001 (中国大 实用年鉴 2001). Shenyang: Liaoning Renmin Chubanshe (沈阳: 辽宁人民出版社). Zhongguo Falü Nianjian Bianjibu (中国法律年鉴编辑部). 1991. Zhongguo falü nianjian 1991 (中国法律年鉴 1991). Beijing: Zhongguo Falü Nianjian Chubanshe (北京: 中国法律年鉴出版社). ——. 1992. Zhongguo falü nianjian 1992 (中国法律年鉴 1992). Beijing: Zhongguo Falü Nianjian Chubanshe (北京: 中国法律年鉴出版社). ——. 1995. Zhongguo falü nianjian 1995 (中国法律年鉴 1995). Beijing: Falü Chubanshe (北京: 中国法律年鉴出版社). ——. 1996. Zhongguo falü nianjian 1996 (中国法律年鉴 1996). Beijing: Zhongguo Falü Nianjian Chubanshe (北京: 中国法律年鉴出版社). ——. 1998. Zhongguo falü nianjian 1998 (中国法律年鉴 1998). Beijing: Zhongguo Falü Nianjian Chubanshe (北京: 中国法律年鉴出版社). Zhongguo Fayuanwang (中国法院网). 2008. “Jiu fayang minzhu xuexi shijian kexue fazhanguan huodong. Wang Shengjun tingqu Xiao Yang deng lao tongzhide yijian he jianyi” (就发扬民主学习实践科学发展观活动王胜俊听取肖扬等老同志的意 见和建议), 16 November. Available online at . Last accessed 19 January 2010. Zhongguo Fazhi Chubanshe (中国法制出版社). 2004a. Dangnei ganbu dangnei jiandu he jilü chufen guiding (党内干部党内监督和纪律处分规定). Beijing: Zhongguo Fazhi Chubanshe (北京: 中国法制出版社). ——. 2004b. Gong’an jiguan sheyong jixu panwen fagui wenjian huibian (公安机关适用继 续盘问法规文件汇编). Beijing: Zhongguo Fazhi Chubanshe (北京: 中国法制出 版社).

reference list

351

Zhongguo Gongchandang dangyuan quanli baozhan tiaoli (中国共产党党员权利保 障条例). 2004. Beijing: Renmin Chubanshe (北京: 人民出版社). Zhongguo Gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli shiyi bianxiezu (中国共产党纪律检查机关案件检查工作条例释义编写组). 2003 Zhongguo gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli shiyi (中国共产党纪律机 关案件检查工作条例释义). Beijing: Zhongguo Fangzheng Chubanshe (北京: 中 国方正出版社). Zhongguo Gongchandang Xinwenwang (中国共产党新闻网). 2008. “Renmin ribao 2008 niandu faxingliang shixian jiao dafudu zenchang” (人民日报2008年度发行 量实现较大幅度增长), 3 January. Available online at . Last accessed 16 March 2008. Copy on file with the author. Zhongguo Jiancha Nianjian Bianjibu (中国检察年鉴编辑部). 1989. Zhongguo jiancha nianjian 1988 (中国检察年鉴 1988). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1990. Zhongguo jiancha nianjian 1989 (中国检察年鉴 1989). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1991. Zhongguo jiancha nianjian 1990 (中国检察年鉴 1990). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1992. Zhongguo jiancha nianjian 1991 (中国检察年鉴 1991). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1993. Zhongguo jiancha nianjian 1992 (中国检察年鉴 1992). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1994. Zhongguo jiancha nianjian 1993 (中国检察年鉴 1993). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1995. Zhongguo jiancha nianjian 1994 (中国检察年鉴 1994). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1996. Zhongguo jiancha nianjian 1995 (中国检察年鉴 1995). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1997. Zhongguo jiancha nianjian 1996 (中国检察年鉴 1996). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1998. Zhongguo jiancha nianjian 1997 (中国检察年鉴 1997). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 1999. Zhongguo jiancha nianjian 1998 (中国检察年鉴 1998). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 2000. Zhongguo jiancha nianjian 1999 (中国检察年鉴 1999). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 2001. Zhongguo jiancha nianjian 2000 (中国检察年鉴 2000). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 2002. Zhongguo jiancha nianjian 2001 (中国检察年鉴 2001). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 2003. Zhongguo jiancha nianjian 2002 (中国检察年鉴 2002). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 2004. Zhongguo jiancha nianjian 2003 (中国检察年鉴 2003). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). ——. 2005. Zhongguo jiancha nianjian 2004 (中国检察年鉴 2004). Beijing: Zhongguo Jiancha Chubanshe (北京: 中国检察出版社). Zhongguo Xinwenshe (中国新闻社). 2009. “Wulumuqi shi zhengfu fabu weihu shehui zhengchang chengxude jinji tonggao” (乌鲁木齐市政府发布维护社会正常秩 序的紧急通告), 6 July. Available online at . Last accessed 7 July 2009. Copy on file with the author.

352

reference list

Zhongguo Xinwenwang (中国新闻网). 2005. “Zhongguo shiliuda yilai fanfubai qude liuxin chengguo, fazhan taishi lianghao” (中国十六大以来反腐取得六新成果 发 展态势良好), 15 December. Available online at . Last accessed 25 January 2010. ——. 2008. Zhongguo tongji nianjian 2008 (中国统计年鉴 2008). Beijing: Zhongguo Tongjiju Chubanshe (北京: 中国统计局出版社). Zhonghua Renmin Gongheguo Guojia Tongjju (中华人民共和国国家统计局). 2006. Zhongguo tongji nianjian 2006 (中国统计年鉴 2006). Beijing: Zhongguo Tongjiju Chubanshe (北京: 中国统计局版社). Zhonghua Renmin Gongheguo Jianchabu (中华人民共和国监察部). 1993. Zhongguo jiancha nianjian 1987–1991 (中国监察年鉴 1987–1991). Beijing: Zhongguo Zhengfa Daxue Chubanshe (北京: 中国政法大学出版社). Zhonghua Renmin Gongheguo Sifabu (中华人民共和国司法部). 2002. Zhonghua Renmin gongheguo sifa xingzheng guizhang huibian (2001) (中华人民共和国司法行政规章汇编 [2001]). Beijing: Falü Chubanshe (北京: 法律出版社). ——. 2005. Zhonghua Renmin Gongheguo sifa xingzheng guizhang huibian (2004) (中华人民 共和国司法行政规章汇编 [2004]). Beijing: Falü Chubanshe (北京: 法律出版社). ——. 2008. “Zhongguo laodong jiaoyang gongzuo jianjie” (中国劳动教养工作简介), Sifabu laodong jiaoyang guanliju (司法部劳动教养管理局). Available online at . Last accessed 8 July 2009. Copy on file with the author. Zhonghua Renmin Gongheguo Xingzheng Jianchafa Wenda Bianxiezu (中华人民共 和国行政监察法问答编写组). 1998. Zhonghua Renmin Gongheguo xingzheng jianchafa wenda (中华人民共和国行政监察法问答). Beijing: Jiancha Chubanshe (北京: 检 察出版社). Zhonghua Renmin Gongheguo Zuigao Renmin Jianchayuan (中华人民共和国最 高人民检察院). 1993. Zhonghua Renmin Gongheguo Zuigao Renmin Jianchayuan Gongbao (中华人民共和国最高人民检察院公报), n. 4. Zhongyang Jiwei Bangongting (中央纪委办公厅). 2003. Lianjie congzheng xingwei guifan (neibu faxing) (廉洁从政行为规范) (内部发行). Beijing: Zhongguo Fangzheng Chubanshe (北京: 中国方正出版社). Zhongjiang Jiwei Faguishi, Jianchabu Faguisi (中央纪委法规室 监察部法规司) 2003. Zhongguo Gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli shiyi (中国共产党 纪律检查机关案件检查工作条例释义). Beijing: Fangzheng Chubanshe (北京: 方 正出版社). Zhongyang Jiwei Jianchabu Faguishi, Xuanjiaoshi (中央纪委监察部法规室，宣教 室) 1996. Dangji zhengji tiaogui shouce (党纪政纪条规手册). Beijing: Fangzheng Chubanshe (北京: 方正出版社). Zhongyang jiwei jianchabu tongbao chaban anjian gongzuo qingkuang”(中央纪委监 察部通报查办案件工作情况). Available online at . Last accessed 7 January 2010. Zhongyang Jiwei Jijian Jiancha Yanjiusuo (中央纪委纪检监察研究所). 2002. Zhongguo Gongchandang fanfu changlian wenxian xuanbian (中国共产党反腐倡廉文献选编). Beijing: Zhongyang Wenxian Chubanshe (北京: 中央文献出版社). Zhou, Jianqi (周建棋).1995. “Guanyu zhi’an lianfang duiwu jianshede jige wenti” (关于治安联防队伍建设的几个问题). Fujian Faxue (福建法学), n. Z1: 25–26. Zhou, Lei, and Li An’na (周磊 李安娜). 2008. “Guanyu woguo fujingde jidian sikao” (关于我国辅警的几点思考). Sichuan Jingcha Xueyuan Xuebao (四川警察学院学报), n. 6: 95–99. Zhou, Shiyu. 2001. “The ‘610 Office—The Primary Mechanism in Jiang Zemin’s State Terrorism Against Falungong’ ”, Speech at the Forum “China’s State-Run Terrorism: The Persecution of Falun Gong”, National Press Club, Washingtong DC, October 10. Zhu, Hengshun (朱恒顺). 2004. “Feichang fazhi tixizhongde jieyanfa—jiantan woguo jieyanfade jixugai” (非常法制体系中的戒严法—兼将谈我国戒严法的修改). Qingdao Keji Daxue Xuebao (青岛科技大学学报) 2: 89–93.

reference list

353

Zhu, Qianwei. 2008. “Reorientation and Prospect of China’s Combat against Corruption.” Crime, Law and Social Change 49, n. 2: 81–95. Zhuang, Yonglian, Song Renjing, and Wang Linlin. (庄永廉, 宋识径, 王丽丽). 2009. “Cao Jianming xian shiyijie quangguo renda changweihui dishiyici huiyi zuo zhuanxian gongzuo baogaoshi biaoshi jiaqiang he gaijin duzhi qinquan jiancha gongzuo, cujin yifa xingzheng he gongzheng sifa” (曹建明向十一届全国人大常委 会第十一次会议作专项工作报告时表示 加强和改进渎职侵权检察工作 促进依 法行政和公正司法). Jiancha Ribao (检察日报), 29 October. Zito, Angela.1997. Of Body and Brush: Grand Sacrifice as Text/Performance in EighteenthCentury China. Chicago: University of Chicago Press. Zito, Angela, and Tani Barlow. 1994. Body, Subject and Power in China. London: The University of Chicago Press. Zou Keyuan. 2001. “The “Re-education through labour” system in China’s Legal Reform”, Criminal Law Forum, n. 12, pp. 459–485. Zou, Shengwei, Tian Yu, and Yang Weihan (邹声文 田雨 杨维汉). 2006. “Woguo zhiding jindufa yufang he chengzhi dupin weifa fanzui xingwei” (我国制定禁毒 法预防和惩治毒品违法犯罪行为), 22 August. Available online at . Last accessed 24 January 2010. Zuigao Renmin Fayuan Yanjiushi (最高人民法院研究室). 2000. Zuixin xingshi falü ji sifa jieshi shouce (最新刑事法律及司法解释手册). Beijing: Falü Chubanshe. Zuigao Renmin Jianchayuan (最高人民检察院). 1993. Zuigao Renmin Jianchayuan gongbao (最高人民检察院公报), n. 4 (April).

INDEX 1908, the Constitutional Principles 41–42 1927 Shanghai Massacre 15 1952 anti-drug campaign 187 1954 constitution 35, 41 n. 28, 60 n. 128 1955 Campaign to Suppress Internal Counter-revolutionaries 74 1959 Lhasa rebellion 45 1961 Single Convention against Narcotic Drugs 199 1982 constitution 42, 60, 145, 147 1996 legalization of enforcement teams 163 6–10 Office 66–68 abduction 19 n. 46, 105 abnormal deaths 105, 225, 239 Abu Ghraib 12, 220, 223 addiction 7, 175–177, 179 n. 14, 182–183, 186, 188, 190–191, 197, 198 n. 108, 202–203, 243, 251, 290 addicts 11 n. 27, 19–21, 26, 175–176, 179 n. 14, 180 n. 18, 181–182, 186–190, 192–193, 197–199, 201 n. 120, 202–203, 206, 244, 248, 302 addicts, registration of 176 administration of public order 150, 151 n. 69, 71, 152 n. 73 administrative detention 5, 9–12, 14, 19 n. 47, 24–25, 57, 59, 78, 113 n. 2, 118, 129, 163 n. 143, 176–178, 180, 183, 190–191, 193 n. 85, 195 n. 93, 199, 241, 243, 248, 252–253, 255–257, 312 administrative detention centers 191, 199 administrative detention on public security charges 11 n. 27, 126, 176 administrative detention, resilience of 9 administrative detention measures 10 n. 22, 118, 178, 255 Administrative Law Enforcement Departments see chengguan administrative police corps see chengguan Administrative supervisory organs 86–87 adultery 37–38, 91

advanced interrogation techniques 71, 111 see also torture Agamben 15 n. 37, 16–18, 20, 242, 246, 254 aid centers 170–171 see also shelter for deportation centers aid stations 170 see also shelter for deportation centers alternative to criminal punishment for drug-related crimes see compulsory drug rehabilitation Amnesty International 10 anomie 17, 33–35, 38, 40–41, 70 Anti-Drug 185, 187–189, 203, 273, 284, 293, 296, 302, 313 Anti-Drug Law 180, 181 n. 20, 182–183, 202–203 anti-opium clinics 188 Anti-Rightist Movement 35 anti-smoking through labor centers 190 arbitrary detention 1–2, 12, 85, 176, 186, 255 Arkin Mahmud 251 arrest 1, 10, 19 n. 46, 40, 43 n. 37, 44 n. 45, 47 n. 63, 58, 64, 70, 91, 93, 108 n. 147, 118, 120–121, 123, 126, 141–143, 156, 166, 201 n. 122, 228, 271 arrest warrant 57–59, 93, 121 n. 42, 123 n. 47, 126, 226 bad elements 36, 39 bare life 18–20, 26–28, 96, 130–131, 208–209, 223, 232–233, 239, 243, 248, 250–253, 258 bare life in an authoritarian setting 18 beggar/s 24, 27, 96, 127 n. 67, 130 n. 83, 151, 167, 169–172, 173 nn. 197–198, 200–201, 174, 186, 187 n. 54, 256, 275, 277, 299, 301, 303–307, 309–310, 312, 314 begging 170–171, 172 n. 195, 173, 243 biopower 16 bios 20, 130, 251, 258 bodily searches 95 n. 101, 120, 280 body of the Emperor 41

356 bribes see corruption bureaucratic capitalists

index 34–36

camp 17, 28, 175, 187, 190–192, 201–203 campaigns against the “Six Evils” 61 Canton 26, 162, 179 n. 14 Carl Schmitt 15 carriers of infectious diseases 55, 133–134, 243 case-clearance 122–123, 233 CCDI, professionalism of 73–77, 81, 85, 88–90, 92–94, 95 n. 103, 96, 99–100, 107–108, 266 CCP 5, 13, 15, 18, 21, 24, 27, 33, 35, 62, 64–66, 68, 71–74, 83–84, 90, 96, 143, 146, 186, 229, 232 n. 83, 245–247, 254, 257–258, 260–261 CCP Central Committee 56 n. 108, 73 CCP Central Political-Legal Committee 68, 155 CCP National Congress 73 CDI 71 n. 1, 78 n. 32, 79–82, 85–95, 96 n. 108, 97–102, 103 n. 130, 104–105, 107–109, 134, 165, 230, 241, 254, 263 CDI, powers of 82 CDI, relationship to the judiciary 99 CCP, retreat from society 247 Censorate 83 censorship 9, 89 n. 76, 210 Central Commission for Discipline Inspection (CCDI) 73 Central Commission for Supervision 75 Cesare Beccaria 184 Cesare Lombroso 184 Chen Pixian 155 chengguan 162–167, 171, 173–174, 208 n. 1, 224, 234, 241–242, 256 clean-ups of beggars 172 clean-ups, the homeless 173 see also urban management administrative law enforcement departments, urban management officials chengguan, and detention 151 chengguan, reform of 173 chengguan, income of 166 chengguan, merger with police 167 Cheris Shun-Ching Chan 62 China Qigong Scientific Research Society 63

China Security Association 157, 161, 289 Chinese Communist Party see CCP Chinese soviets 227 cholera 50 civil affairs organs 5, 68 civil society 14 n. 34, 17, 158, 181 n. 20 civil sphere 13, 257 class enemies 36–38, 227 close contact 51, 285 coercive interrogation techniques see torture Coercive summons 119–121 Cold turkey withdrawal 196 commitment to a psychiatric hospital 184, 200 Commitment to Health-Recovery Centers 202 Common Program of the Chinese People’s Political Consultative Conference 34 Communist base areas 185, 206, 272 community control 182 community policing 27, 111, 126, 141–142, 144, 150, 154, 174, 244 community policing bodies 27, 154, 245, 250 community policing rationale of 111 community policing organizations 8, 14, 18, 126, 142, 145 n. 29, 147–148, 150, 154, 157, 174 community policing organizations links to the regular police 153 community policing organizations, reform of 142, 146, 163 community policing theories 148 Communist conceptions of the police as servants of the people, and Western views of the police as a social service agency 146 community recovery 181–182, 296 community rehabilitation 175, 181–182, 183 n. 31, 296 community surveillance 128 comprehensive management of public order 112, 144, 147, 257, 265, 271 compulsory drug rehabilitation 8, 11 n. 27, 129, 176–181, 199, 205, 245, 276, 289, 291, 293, 299–304, 306–307, 310 compulsory drug rehabilitation camps 26, 175, 196, 197 n. 105, 198, 201, 291, 297, 302, 305, 308, 310–11, 313 Size and Inmate Population 192

index compulsory drug rehabilitation camps, problems 193 compulsory drug rehabilitation camps, reform of 198 compulsory drug rehabilitation, procedure 178 compulsory drug rehabilitation, in Nationalist China 188 compulsory drug rehabilitation, in Taiwan 185 compulsory drug rehabilitation targets of 177 compulsory isolation 53, 183 compulsory job placement 204 compulsory medical treatment 199 compulsory psychiatric care 134 compulsory rehabilitation through labor 176–177 concentration camps 16 confession 91, 93, 103, 105–106, 122, 124–125, 131, 180 n. 18, 208, 224, 231, 233, 234 nn. 87–88, 235 nn. 88, 93, 282 Conglomeration 210 Constituent power 246, 252 constituting power 48 constitution 15, 35, 41–42, 60, 85, 145, 147–148 Constitution of the PRC 96, 267–268 continued questioning 132–135, 292 see stop-and-question continued questioning, procedure 1–2, 12, 85, 135, 176, 186, 255 see also stop-and-question continued questioning targets of 132 continued questioning, time limits 134 contract 42, 152, 158, 166, 197, 257–258, 289 contract policemen, reorganization of 158 contractualism 15, 256 contractualization of police work 122, 233 Convention Against Torture 250 correctional system 11 Corruption 4 n. 3, 7, 20, 71, 78–80, 86, 90 n. 82, 91, 93 n. 93, 96–99, 108 n. 150, 134, 154, 226, 235 n. 93, 247, 251, 254, 262–263 counter-revolutionaries 33, 36, 39, 61 n. 131, 74–75, 83–85, 113, 143–144, 156, 175, 222–223, 248, 270, 274 counter-revolutionary crimes 56, 75

357

crime of graft 79–80 Criminal 1–6, 8, 12–13, 14 n. 34, 18–21, 23, 27, 28, 34–35, 38, 40, 46–48, 52–54, 56–59, 61–62, 65, 68, 69 n. 166, 70–71, 73, 77–81, 85–86, 91, 96–97, 99, 107–108, 112–116, 117 n. 19, 118–128, 130, 132–133, 137, 151, 156, 167, 169, 175, 177, 179, 180 n. 18, 184–186, 190–191, 199–200, 203 n. 134, 204–205, 207, 208 n. 1, 209, 215, 221 n. 38, 223–225, 228, 230–231, 233–234, 235 nn. 88, 91–92, 237, 239, 242–245, 248–249, 251, 253–255, 264, 273, 278–283, 285, 290, 294 criminal detention 124, 178 n. 8, 191, 205 criminal justice system 1–3, 5–6, 10, 13, 18, 21, 23–25, 28–29, 56–57, 59, 70, 115, 175, 179, 180 n. 18, 200, 206, 225, 231, 243, 253–255 criminal justice system relationship to legal exceptionalism 179 Criminal Law 3, 25, 35, 45, 56, 60–61, 78–80, 117 n. 20, 120, 125, 184–185, 204, 208 n. 1, 221 n. 38, 242, 248, 282 corruption, and CDIs 77 Criminal Procedure Law 5, 10, 14 n. 34, 56–58, 70, 85, 96, 109, 115, 121–122, 128, 132, 137, 180 n. 18, 242, 281 criminal reform 191, 285 criminal summons 119–122, 126–127, 133 criminal summons, targets of 120 criminal suspect/s 2, 8, 57, 85, 91, 96, 113–114, 116, 119, 121, 126, 128, 130, 151, 169, 177, 207, 209, 223–224, 235 nn. 88, 91–02, 237, 239, 242, 281–282 Cultural Revolution 36, 84, 143, 145, 148 n. 44, 219, 222, 227 culture of social violence 229 Dalai Lama 46, 64 danwei 99, 161 n. 132 Daoguang 188 deaths during torture 137 defense committees see community policing organizations Dehumanization 131, 208 n. 4, 222–223, 227 Deng Xiaoping 15

358

index

deprivation of personal freedom 118, 243 deprivation of freedom 5, 9–10, 20, 106, 124, 133, 179, 184 deprivation of rights 16, 35, 42 deprivation of rights, on suspects 137 detention 1–3, 5–6, 9–12, 13 n. 34, 14, 17–18, 19 nn. 46–47, 20, 24–25, 43 n. 37, 44 n. 45, 47 n. 63, 52, 57–59, 61, 69–71, 78, 82–86, 88–93, 95, 101–103, 108, 111, 113 n. 2, 116, 118, 121, 124, 126, 129–131, 134, 136–137, 170, 176–178, 180–184, 186, 187 n. 54, 188–191, 193 n. 85, 196–197, 199, 202, 205, 222, 234 n. 87, 235 n. 92, 241, 243–245, 252–253, 255–257, 271, 279, 308, 312 detention facilities 8, 20, 129, 175, 188, 190–191, 196, 199, 230, 256 detention powers 2, 5–6, 20, 24, 26, 49, 82–83, 134, 150, 163 n. 144, 170, 245, 248 dissident diaspora 230 dissidents 29, 200, 219, 230, 250 divide between friend and enemy 247, 249 drug abuse 176, 178, 198, 200, 247 drug addiction 243, 251 drug rehabilitation 8, 11 n. 27, 26, 129, 175–181, 187–188, 191, 195, 197–199, 201, 205, 245, 276, 286, 289, 291, 293, 300, 304, 307, 311 drug rehabilitation battalions 186 drug rehabilitation camps, reform of 61, 177 n. 3, 193 drug rehabilitation camps 175–176, 187–189, 193 n. 86, 302, 308, 310–311, 313 Drug rehabilitation fees 193, 194 n. 93, 299–304, 306, 310 drug rehabilitation through labor 11 n. 27, 175–180, 198, 286 due process rights 33, 69, 243 Edgar Schein 105 education and release 38, 278 Emergency Powers 41–42, 48–49, 54, 65, 242 Empowerment 12, 23, 29, 141–142, 147, 149, 151, 250, 253 empower 14 n. 34 empowered 5, 27, 149, 152, 163, 174, 250

empowerment, relationship to public security 149–150 enemies of the people 36 enemy 15–16, 36–38, 40, 74–75, 83, 85, 107, 112 n. 2, 131–132, 156, 225, 232, 239, 247, 249, 251, 253 enemy classes 40, 247 enforcement squads see chengguan Enrico Ferri 184 ethnic separatists 156, 250 evil cults 59, 61–62, 66 n. 156, 67, 282 see also 6–10 Office exclusion 4, 16, 20, 25, 71, 97 n. 109, 134, 149, 154, 175, 225, 232, 234–235, 247–248, 251 exclusionary rule 107, 234–235 expulsion of migrants 184 extra-legal detention 84, 86, 108 Fallujah 222 Falun Dafa Research Branch Society 63 Falungong 59–60, 62–70, 128, 156, 230, 250, 264, 284 see also 6–10 Office floating population 55 focal population 68, 113–114, 126, 128, 290 database of the focal population 114 force of law 209 forced job placement 176, 202–205 forced labor 186–187, 196 forensic centers 136 forensic pathology system 236 Foucauldian theory 16 Foucault 16 freedom of religion 60 French 1789 Constitution 41 friend/enemy distinction 37, 40, 112 n. 2, 131–132, 156, 226, 239, 247 Fu Hualing 200 General Administration of Press and Publication 64, 284 George Keeton 9 Giorgio Agamben 16 graft see corruption, CDIs Guantanamo 12, 215, 220, 241, 251 Guantanamo pictures 220, 223, 225 Guantanamo Uyghur 251 Guomindang 33, 167, 184, 187–188 Guomindang 1935 Six Years Anti-Drug Plan 183

index H1N1 flu 55, 249 Hannah Arendt 16–17 Harold Rigney 232 Harsh Interrogation Techniques see torture hearing (lingxun) 69, 201 n. 120 hepatitis 20, 197, 200 hide and seek case 129 HIV/AIDS 197, 200 Hua Guofeng 41, 84 human rights 4 n. 3, 10, 13 n. 30, 16, 19 human rights as entitlements granted by the state 252 ideological enemies 113 illegal aliens 17 illegal enemy combatant 253 imperial law 18 incarceration rate 175 infectious diseases 50, 55, 133–134, 169 n. 178, 202, 243, 283 inspection teams see chengguan internal protection units 145 n. 29, 157 International Convention against Torture 208 n. 1, 234 International Covenant on Civil and Political Rights 43 n. 37, 201 International Covenant on Social, Economic, and Cultural Rights 54 international law 18, 19 n. 46, 43, 48, 62 internet 9, 14 n. 34, 28, 89 n. 76, 130–131, 210–215, 219–220, 229 internet, penetration rate 213 interrogation rooms see torture Interrogational torture see torture investigation teams 99, 107 investigative detention 5, 71, 82–83, 86, 88, 90, 93, 244 isolation 49–55, 69, 175, 181, 183 isolation for compulsory drug rehabilitation 11 n. 27, 180–181, 293 James Tong 63, 66 n. 157 JDTs 111, 141, 147–154, 156, 158, 174, 234, 245, 279–281, 296–297 JDTs, as a form of welfare 152 JDTs, members of 152 JDTs, reform of 149, 251 JDTs, relationship to police 153 Jerome Alan Cohen 184, 253

359

Jiang Qing 40 jiedusuo see compulsory drug rehabilitation camps joint defense team see JDTs Judicial review 10, 20, 184, 186, 245 kanshousuo 193, 199 Kumar 10 lack of separation between administrative and political powers 87 landlords 34–36, 39–40, 113, 278 law, class nature of 34 law enforcement brigades see chengguan Law on Emergency Response 54 Law on Road Traffic Safety 47 Lawlessness 3–5, 7, 12, 33, 36, 71, 243, 246, 253–254 Leading Group for Handling the Falungong Problem 66 see also 6–10 Office legal exceptionalism 4, 8–9, 17, 23, 27, 70, 242–244, 246–250, 254 legal exceptions 8, 24, 56, 96 n. 109, 209, 238, 248 legal reform 3–6, 8, 10, 12, 14–15, 23, 27, 33–34, 56, 70, 231–234, 245–250, 253 legislative conflicts 24, 95–96, 109, 132 n. 87, 174, 238 n. 102 Leninist system of dual subordination 74 Lhasa 45–46, 49, 275 Li Guifang 128–129 Li Hongzhi 63–64 Li Qiaoming 13 n. 34, 14 n. 34, 129–130, 231 Li Siyi 111, 128–131, 211 lianfang 226 Lianggui 87–90, 92 n. 86, 263–264, 266–267 see also shuanggui liangzhi 88–89, 92, 245, 263–264, 266–267 see also shuanggui liberal democracies 16, 26 liberal-democratic systems 16–17, 33, 48, 241–242, 246, 250–251, 253 Lin Zexu 188 lingchi 41, 232 lingering death 41 living law 247 local community patrols see community policing organizations local people’s governments 43, 268 luan 7, 17 n. 41

360

index

Mao Zedong 144 Mao’s theory of contradiction/s 36, 112 Mao-Deng transition 145, 244–245, 247, 256–257 marginalized groups 7, 26–28, 141–142, 169, 225, 243 martial law 33, 40–50, 54–55, 65, 269, 275–276, 281 mass trial(s) 36–37, 227 mass-line policing 144–145 mass-line security forces see community policing organizations May Seventh Schools 75 Media and Torture 210 medical observation 49–51 mental clinics 134 mentally ill 27, 127, 133–134, 156, 167 n. 172, 169 n. 178, 173, 184 n. 37, 196 n. 94, 304 merger of political, administrative, and military powers 35 methadone maintenance therapy 182 Michael Dutton 15, 26, 114, 152, 256 migrant(s) 24, 126, 130, 158, 167, 169, 184, 252, 256 military control 35 Ministry of Civil Affairs 63, 68 n. 164, 169 n. 176, 285 Ministry of Health 50–51, 53, 285 Ministry of Justice 36, 61 n. 132, 69 n. 170, 191 n. 80, 196 n. 96, 198 n. 108, 202 n. 123, 203 n. 131, 211, 237 n. 98, 270, 285–286, 295–296 Ministry of Public Security 6, 35 n. 13, 39 n. 24, 57, 58 nn. 119, 123, 61, 63, 68 n. 164, 69, 80 n. 39, 81 n. 43, 86 n. 67, 113, 114 n. 4, 115–118, 119 n. 30, 120 n. 37, 121 n. 41, 124 n. 50, 125, 129, 132, 135 n. 98, 136 n. 103, 144, 146 nn. 33–34, 148, 149 n. 52, 154 n. 82, 155, 156 n. 97, 157–158, 159 nn. 119, 121, 124, 160 nn. 125, 128, 161, 167 n. 174, 177 nn. 5–6, 179, 180 n. 17, 182 n. 27, 191 n. 77, 192 n. 82, 193 nn. 86–87, 199 nn. 114–115, 201 n. 120, 202, 203 n. 131, 204–205, 221 n. 38, 234 n. 87, 236–237, 238 n. 101, 244, 250, 265–266, 276, 283, 286–296 Ministry of Supervision 36, 86 n. 67, 87 n. 69, 270–271, 295 minor offenders 6, 114, 125, 198–201, 207, 244, 248, 255

minor offenses 11 n. 27, 19 n. 47, 111, 113, 117, 119–120, 135, 224, 248, 251 misappropriation 90 n. 82, 91 see also corruption Modes of Bare Life 251, 253 molest petitioners 20, 256 Muslims 66 national addicts’ database 197 national anti-drug infrastructure 203, 296 National Anti-Opium Association 183 National Headquarters for the Prevention and Treatment of SARS 50, 277 National People’s Congress (NPC) 36 n. 14, 39 n. 22, 43, 45 n. 51, 47 n. 63, 55, 87 n. 69, 89 n. 77, 122, 124 n. 55, 147–148, 177 n. 3, 178 n. 8, 202, 270–271, 298 National Plan on Response to Public Health Emergencies 55 neighborhood committees 153, 159, 165, 173 New Religious Movement (NRM) 62 North Korean asylum seekers 252 oral summons 119–120, 125–126 oral summons, procedure 170 see also stop-and-question, relationship to summons ordinary forced job placement 203–204 pain 128 Para-police forces 141–142, 144–145, 147 n. 38, 158 para-police bodies 142–143, 146–147, 174 see also community policing organizations para-police organs 8, 145, 152 party discipline 77 see also CDIs party discipline norms, relationship to criminal legislation 73 party jurisdiction 77 passive bribery 91 see also corruption patrols 115, 126, 142, 150–151, 166, 173–174 Peng Zhen 155, 205 People’s Armed Police 48, 158, 199 People’s Liberation Army 45, 83 n. 54, 106

index People’s Republic of China Law on Prohibiting Drugs 196 n. 94, 199 n. 115, 203 n. 129, 270, 293, 313–314 personal freedom 2, 19, 53, 85–86, 90, 96, 111, 118, 121, 124 n. 53, 170, 243, 306 petitioner(s) 20, 29, 127, 256–257 Pierre Bourdieu 9 PLA 48, 50, 159 placement in preventive detention 184 plague 50 police 1–2, 5–6, 12, 14, 44 n. 42, 47–49, 51, 57–60, 68–69, 81–82, 86, 91, 111–113, 114 nn. 6, 8, 116–138, 141 n. 4, 142, 143 n. 19, 144, 146, 149–150, 152–162, 167, 170, 172 n. 195, 176–180, 181 n. 20, 182 n. 29, 190, 192 n. 83, 193, 199–202, 207, 224, 226, 230, 232–233, 235–236, 238, 250, 254, 257–258, 271, 289, 292 police and public security summons 117 police, relationship to community policing organs 150 police, vagrants and beggars 170 police discretion 180, 201 Police Law 115–116, 122–124, 137–138 police patrols 112, 115, 116 n. 15, 122, 288 police statistics 127 policy of open government information 28 Pope 64 post-traumatic stress disorder (PTSD) 236 power to suspend rights 41 PRC Constitution 10, 43 n. 37, 86 PRC Martial Law 43 nn. 37–38, 46, 49 pre-arrest detention 57–59, 121 n. 42, 126 President of the PRC 43 preventive safety measures 184, 205 principle of analogy 56 prison system 11 prison-camps 191 private rehabilitation clinics 176 private security companies 141, 154–155, 156 n. 97, 157–161, 174, 245, 275, 287–288, 290–291, 294 private security companies, birth of 142, 154

361

private security companies, reform of 159 private security industry, legal basis of 156 private security companies, typology 157 private security market WTO-induced liberalization of the private security market 160 processes of exclusion 16, 175, 247–248, 251 procuratorates 44 n. 45, 93, 97, 235 n. 91, 237 n. 100, 238 n. 102, 295 prostitutes 21, 126, 167 n. 172, 248 protection units see community policing organization Provisional Measures for Control of Counter-Revolutionary Elements 38 psychiatric disorders 151 psychiatric hospital(s) 11 n. 27, 169 n. 178, 179 n. 14, 184, 193, 200–201, 203 Psychological Manipulation 106 public arrest and sentencing rally 228 Public order defense committees 148 see also community policing organizations public order committees 144–145, 148, 176, 274 public order departments 157 Public order joint defense teams see JDTs public security administration 178 public security and criminal suspects 177 Public security detention centers 183 n. 31, 190, 195 n. 93, 308 public security organs 9, 36, 44–45, 47, 57 n. 112, 58 n. 119, 64, 69, 81, 85, 86 n. 67, 90, 95 n. 101, 97, 99, 114–115, 118–119, 121–123, 124 nn. 50–51, 127, 134, 136, 141, 144, 152, 157, 159–160, 162, 178–179, 181–182, 191 n. 78, 194 n. 93, 201, 234, 235 n. 91, 237, 250, 265, 280, 288, 291–293, 295, 303, 312 public security patrols 115 public security summons 117, 119–121, 133, 137 public surveillance 37 n. 17, 38–40, 270, 278, 283 punitive power 13, 75, 150, 179, 239, 248

362 quarantine

index 49, 53, 249–250

Randall Peerenboom 3 n. 1, 4, 12, 14 redefinition of criminal offenses as mistakes see corruption reeducation through labor (RETL) 5–6, 11, 25, 27, 29, 58 n. 120, 59, 61, 68–69, 93 n. 93, 113–114, 124–125, 129, 150 n. 65, 177 n. 8, 178–179, 191, 198 n. 108, 199–201, 203, 243, 271, 274, 276, 285–287, 290, 292–293, 296–297 function of 178–179, 198 labor camps 28, 58 n. 120, 175–176, 178, 179 n. 12, 187, 191, 193, 197–199, 201, 202 n. 123, 203–204 relationship to compulsory drug rehabilitation 199 Regulations on Discipline Penalties 77–80, 261 Regulations on Security Administration Punishments (SAPR) 61, 115 relationship between constituent and constituted power 246 religious extremists 156 Republic of China 42, 184, 185 n. 42, 272, 314 Republican China 41, 176, 193 residents’ committee 128, 145 n. 28, 146, 166, 173, 268, 272 retroactivity 56 review of criminal cases by party committees before adjudication 56 revolution 15, 36, 38, 41, 149, 186, 206, 227, 247 rich peasants 36, 39, 40 n. 26, 113, 278 right to equality 209 rights 1–4, 6–7, 12–14, 16–17, 19–22, 24, 34, 36, 40, 42, 43 n. 37, 54, 60, 62, 69, 78 n. 32, 127 n. 71, 137, 152, 171, 179 n. 14, 209, 221 n. 38, 232, 235, 236 n. 94, 241, 247–248, 252, 255, 257, 283 rights consciousness 53 riots 46 rising crime rate 146, 228 Robert Jay Lifton 105–106 rule by decree 17 rule of law 3–5, 10 n. 22, 11–14, 15 n. 37, 16, 20–22, 87, 242, 245, 248 rule of law models 12 Rules on Administrative Supervision 86

rural residents committees n. 32, 268

145, 146

safety measure(s) 176, 184–186, 202–203, 205, 244 Security Administration Punishments Law (SAPL) 11 n. 27, 78, 117 n. 23, 120 nn. 32, 34, 125, 137 Sarah Biddulph 9, 14, 26, 58 n. 120, 115, 180, 186 n. 52 SARS 49–52, 54, 56, 249, 277 SARS crisis 49, 52, 54 security organs established in work units 147 self-examination 104–105 sentencing rally 228–229 sexually transmitted diseases (STD) 20, 26, 197, 200 She Xianglin 132, 211, 224 shelter for deportation 5, 11 n. 27, 24–25, 130, 131 n. 83, 132, 167, 168 n. 176, 169 n. 176, 170, 230, 243, 255–256, 285, 297–298, 300, 302–305, 307–309, 311 shelter for deportation center 102, 129 shelter for education 11 n. 27, 113, 134, 195 n. 93, 308 shelter for examination 11 n. 27, 57–59, 70, 84 n. 57, 121, 129 n. 82, 150 n. 65, 182, 243, 245, 276, 287–288, 297–298 incorporation in the criminal procedure law 58 shortage of police officers 155 shuanggui 5, 8, 11 n. 27, 19–20, 25, 27, 71, 88–97, 99–104, 106–109, 111, 123, 134, 137, 241, 243–245 shuanggui, approval procedure 91 shuanggui, enforcement of 36, 67, 80, 88, 90, 101 shuanggui, extra-legal nature of 96 shuanggui, rationale of 96 shuanggui’s scope of application 92 shuanggui, time limits 91 duration of shuanggui 93 Six Codes of the Guomindang 33 social contract 42, 258 social dangerousness 113, 184, 202, 205 solitary confinement for investigation 84, 279–280 sovereign power 179 sovereignty 4–5, 15, 18, 21, 41–42, 48, 150, 258 special enterprises 159

index Special investigation groups (专案组 zhuan’an zu) 75 Standing Committee of the National People’s Congress (NPC) 39 n. 22, 43–44, 45 n. 51, 47 n. 63, 58 n. 121, 87 n. 69, 89 n. 77, 122, 147 n. 36, 177 n. 3, 178 n. 8, 248, 270–271 Stanley Lubman 6 State Council 43–44, 46, 50, 54–55, 58 n. 120, 145 n. 26, 147 n. 35, 157 n. 104, 159 n. 123, 160 n. 126, 161 n. 132, 163, 164 nn. 148–150, 165 nn. 155, 161, 170 n. 179, 177 nn. 4, 8, 179, 265–266, 274–277 state farms and factories 167 state of anomie 33, 35, 38, 41, 70 state of emergency 33, 42, 48–49, 54–55 state of exception 16–18, 23, 26, 38, 70, 242, 246, 248, 250, 252, 254 Stockholm Syndrome 106 stop and question 5, 11 n. 27, 27, 47, 51, 111–112, 115–119, 121–129, 132–135, 137–138, 243–245, 290, 292 stop-and-question, problems 122, 124, 126 generic use of stop-and-questions 123 stop-and-question, problems of 118, 123, 126 stop-and-question, procedural remedies 118 Stop-and-question powers 8, 112 stop-and-question, reform of 132 stop-and-question, relationship to summons 119 difference between police summons and stop-and-question 122 distinction between continued questioning and summons 133 stop-and-question, targets of 116 stop-and-question, use of 118, 123–124 street committees 164 stress positions 104, 229 strike hard ( yanda) campaigns 14, 144 struggle meetings 227 suicide 107, 117 n. 19, 137, 227 n. 63, 236 suicide attempts 95, 130 n. 83, 236 summons 86, 88–89, 108, 117, 119–123, 125–128, 133–135, 137–138, 243 summons, time limits 121

363

Sun Zhigang 26, 129–132, 211, 226, 229–230 Supervised labor in the community 40 supervisory organs 86–87 supervisory organs, relationship to CDIs 87 Supreme People’s Court 37–38, 39 nn. 24–25, 40, 53 n. 92, 61 n. 132, 78 n. 31, 80 n. 39, 81 n. 43, 84, 120 n. 37, 234 n. 88, 237 n. 98, 265, 278–281, 283–284, 295 Supreme People’s Procuracy 39 n. 24, 61 n. 132, 236–237, 283, 295 suspected carrier(s) 51–53, 55, 133 Suspects 7–8, 59, 88, 90–94, 96, 101–106, 111, 114–122, 124, 126, 128–129, 133, 135–138, 151, 180, 196, 209, 225, 227, 229, 233, 241 suspension of legal rights 16, 24–25, 33, 70–71, 107, 242 system of “report and self-criticism” 236 Tao Mi 92 Ten Abominations 41 the Camp 17, 28, 187, 200, 202 the people 15, 36–40, 112–113, 144, 146, 226, 228, 231–232, 234 n. 88, 238–239, 246, 254, 258 theories of community policing 174 thick and thin theories of the rule of law 12 thin rule of law 3–4, 12–14, 20, 87, 248 Third Five-Year Reform Program for the People’s Courts 235 Third National Conference on Public Security Work 144 thought reform 232 threshold of criminal responsibility 61, 77, 80, 97 Tian’an men movement 45 Tian’anmen Square 218 Tibet 45, 47–49, 66 Tibetans 27, 66, 230 torture 2, 7–8, 13 n. 34, 14 n. 34, 19 n. 46, 28, 43 n. 37, 71, 103–107, 111, 124, 127, 131–132, 136–138, 149, 153, 180 n. 18, 207–213, 214 n. 23, 215, 218–234, 235 n. 88, 236–239, 250, 279, 281–282, 290, 295, 312 documentation of torture 236 torture and interrogation 102 torture and legal exceptionalism 103

364

index

torture, and modernity 231 torture and rehabilitation of victims 237 torture, investigations of 221 Torture in the Press 211, 213 Torture on the Internet 212 torture, pictures of 28 toture, popularization of 222 torture, prevention of 136, 163, 233 torture, psychology of 208 torture, techniques 104 clean torture techniques 219, 230 dirty torture techniques 232 water torture 104 totalitarianism 17 traitors 36, 107, 144 United Nations Convention against Corruption 108 United States Congress Human Rights Commission 10 universalist conception of human rights 4 n. 3, 16 urban management administrative law enforcement departments 165, 313 urban management officials 5, 141, 161, 170, 244–245 urban resident committees 145 urine test 129, 177, 180, 181 n. 23, 302 Urumqi 46–47, 49, 172 n. 196, 311–312 Uyghurs 27 vagrancy 243, 247, 251 vagrant/s 24, 96, 127, 130 n. 83, 151, 167, 168 n. 176, 169–170,

173, 186, 187 n. 54, 248, 256, 275, 277, 299, 301, 303–307, 309–310, 312, 314 victim of torture 207–209, 222–225, 234 n. 87 violence 2, 18, 36–38, 42, 52, 70, 111, 143, 149, 160, 172 n. 196, 189, 208–209, 225, 227–230, 256 vocabulary of resistance 239 warning 61, 78, 163 n. 143 wave of crime 113 WHO 52, 54, 249 work committees for public order defense 145 workers’ pickets 143, 148 n. 44 World Health Organization 52 World Trade Organization 160, 250 Wu Guanzheng 108 Xinjiang 46, 48, 66, 172 n. 196, 203, 311 yanda 14–15, 57, 79, 144, 227 Yuanhua case 92 Zhang Yaoci 40 Zhonghanhai 65 Zhongnanhai 40, 65 Zhou Enlai 45 zoé 18, 209, 243, 251, 253, 258 see also bare life zones of exception 3, 5, 22–25, 28, 59, 179, 207, 209, 242, 249, 254, 257

Chinese Studies ISSN 1570-1344

1. Berg, D. Carnival in China. A Reading of the Xingshi Yinyuan Zhuan. 2002. ISBN 90 04 12426 8 2. Hockx, M. Questions of Style. Literary Societies and Literary Journals in Modern China, 1911–1937. 2003. ISBN 90 04 12915 4 3. Seiwert, H. Popular Religious Movements and Heterodox Sects in Chinese History. 2003. ISBN 90 04 13146 9 4. Heberer, T. Private Entrepreneurs in China and Vietnam. Social and Political Functioning of Strategic Groups. 2003. ISBN 90 04 12857 3 5. Xiang, B. Transcending Boundaries. Zhejiangcun: the Story of a Migrant Village in Beijing. 2005. ISBN 90 04 14201 0 6. Huang, N. Women, War, Domesticity. Shanghai Literature and Popular Culture of the 1940s. 2005. ISBN 90 04 14242 8 7. Dudbridge, G. Books, Tales and Vernacular Culture. Selected Papers on China. 2005. ISBN 90 04 14770 5 8. Cook, C.A. Death in Ancient China. The Tale of One Man’s Journey. 2006. ISBN-10: 90 04 15312 8, ISBN-13: 978 90 04 15312 7 9. Sleeboom-Faulkner, M. The Chinese Academy of Social Sciences (CASS). Shaping the Reforms, Acadcmia and China (1977–2003). 2007. ISBN-10: 90 04 15323 3, ISBN-13: 978 90 04 15323 3 10. Berg, D. (ed.) Reading China. Fiction, History and the Dynamics of Discourse. Essays in Honour of Professor Glen Dudbridge. 2007. ISBN-10: 90 04 15483 3, ISBN-13: 978 90 04 15483 4 11. Hillenbrand, M. Literature and the Practice of Resistance. Japanese and Taiwanese Fiction, 1960–1990. 2007. ISBN-10: 90 04 15478 7, ISBN-13: 978 90 04 15478 0 12. Hsiao, L. The Eternal Present of the Past. Illustration, Theatre, and Reading in the Wanli Period, 1573–1619. 2007. ISBN 978 90 04 15643 2 13. Gerritsen, A. Ji’an Literati and the Local in Song-Yuan-Ming China. 2007. ISBN 978 90 04 15603 6 14. Starr, C. F. Red-light Novels of the late Qing. 2007. ISBN 978 90 04 15629 6

15. Guo, X. State and Ethnicity in China’s Southwest 2008. 978 90 04 16775 9 16. Qian, N., G. S. Fong, R. J. Smith (eds.) Different Worlds of Discourse. 2008. 978 90 04 16776 6 17. Beller-Hann, I. Community Matters in Xinjiang: 1880–1949. 2008. 978 90 04 16675 2