Recording & Review is a series that discusses cases where the Legislative Affairs Commission of the NPC Standing Committee decides on citizen requests to review the legality and/or constitutionality of various types of normative documents, including local regulations and judicial interpretations. Past installments can be found here.
Five years after the NPC Standing Committee (NPCSC) abolished the reeducation-through-labor [劳动教养] system, another form of extrajudicial administrative detention is now on the chopping block. On Monday, the NPCSC Legislative Affairs Commission [法制工作委员会] recommended the abolition of the “custody and education” (C&E) [收容教育] system—a form of administrative punishment for prostitution. Finally.
The Commission’s recommendation appeared in its second annual report to the NPCSC on “recording and review” [备案审查]. In short, this is a process whereby the Commission reviews non-statute legal documents (such as administrative regulations) for inconsistencies with statutes or the Constitution. It can do so either at the request of citizens or on its own initiative. And as the discussion below will show, that process may have been expanded to cover statutes as well, after the Communist Party called for “advancing constitutional review” at its 19th Congress.
C&E: A Brief Introduction
C&E was born around the same time as its equally abusive cousin: the “custody and repatriation” [收容遣送] system for vagrants that had an early demise in 2003 (precipitated by the Sun Zhigang incident). C&E was first used against rural women who worked as prostitutes in cities in the 1980s, according to a 2015 article[*] (p. 440) by Tsinghua Law Professor He Haibo (an authority on Chinese administrative and constitutional law). Then in 1991, the NPCSC provided a legal basis for C&E in adopting the Decision on Strictly Prohibiting Prostitution and the Visiting of Prostitutes [关于严禁卖淫嫖娼的决定]. Article 4, paragraph 2 of the Decision provides:
With respect to persons who engage in prostitution or visiting of prostitutes, the public security organs [i.e., the police] in conjunction with the relevant departments may, in a centralized manner, force them to receive education in law and morality and to participate in productive labor, in order to rid them of the pernicious habits. The duration is between six months and two years. The specific measures are to be formulated by the State Council.
(The criminal provisions of the Decision have been superseded by the 1997 revision of the Criminal Law, but its provisions on administrative measures—including the above paragraph—remain effective.)
Acting on this authority, the State Council in 1993 promulgated the Measures for the Custody and Education of Prostitutes and Their Clients [卖淫嫖娼人员收容教育办法]. These Measures give the police the sole authority to decide whether to impose C&E (art. 7)—and to extend the duration of C&E if the detainees “refuse to receive education or obey management” (art. 18). Under the Measures, the detainees are subject to mandatory testing and treatment for sexually transmitted diseases, but must generally bear the costs themselves (art. 10). They are also generally responsible for their own living expenses while in detention (art. 14). While judicial review of the police’s C&E decisions is theoretically possible (see art. 20), the detainees for various reasons are unlikely to sue and even less likely to win (He p. 450).
Opponents of C&E most commonly cite articles 8 and 9 of the Legislation Law [立法法] in attacking its legality. Article 8 provides in part that only “laws” [法律] enacted by the NPC or the NPCSC may authorize “compulsory measures and penalties that restrict personal freedom.” And article 9 prohibits the NPCSC from delegating such legislative authority to the State Council. Thus, the opponents contend, the NPCSC’s 1991 Decision violates the Legislation Law because it authorizes the State Council to promulgate rules on C&E, which is no doubt a measure or penalty that restricts personal freedom. Such was the argument advanced by Zhu Zhengfu, a national CPPCC member and a vice president of the All China Lawyers Association, in a proposal that led to the Legislative Affairs Commission’s recommendation for abolition.
We, however, like Professor He, disagree (see pp. 441–44).
First, that argument rests on the implicit but erroneous assumption that the NPCSC’s 1991 Decision does not qualify as a “law” because it is not titled “P.R.C. ××× Law.” But the nature of a legal document is not determined by its name. Just as judicial interpretations may take the form of “interpretations,” “provisions,” “decisions,” or “replies,” laws need not be titled “P.R.C. ××× Law” but could also be called “regulations,” “decisions,” “rules of procedure,” or a variety of other names. In fact, despite its name, the Decision is one of the few NPCSC decisions that were promulgated by order of the President—a hallmark step in the legislative process for laws (see P.R.C. Constitution art. 80; Legislation Law art. 44).
Second, even assuming the Decision is a law, Mr. Zhu also seems to argue that article 9 of the Legislation Law bars the NPCSC from authorizing the State Council to formulate the Measures. But these Measures did not create the C&E system; the NPCSC’s Decision did (in broad strokes, to be sure). The latter (as quoted above) directly sets forth the “main components of the C&E system,” including the purpose and length of C&E, the applicable persons, and the implementing organs (He p. 444). The State Council was asked only to implement this system. This of course differs from the clearly illegal scenario where the NPCSC gave the State Council a general authorization to design a C&E system itself.
(Professor He also argues that C&E was not (implicitly) abolished by the 2005 Public Security Administrative Penalties Law [治安管理处罚法] and that it does not violate the 1996 Administrative Penalties Law [行政处罚法] or the 2011 Administrative Coercion Law [行政强制法]. See pp. 444–46. For space reasons, we omit these discussions here.)
But legality is a low bar. As Professor He cogently argues, C&E “seriously contravenes rule-of-law principles” despite its legality (p. 454; see pp. 446–54). To start, the indeterminate scope of its applicability has given rise to arbitrary enforcement by the police. It also violates due process because detainees are not entitled to hearings, their families and friends are not given prompt notices of their detention, and they may not request temporary suspension of detention while seeking judicial review (which, as mentioned above, is most likely futile). Further, C&E centers employ “mechanical and rough” [刻板粗暴] management of detainees and are the breeding grounds for corruption.
More importantly, Professor He’s research showed that the purported policy justifications for C&E are untenable (see pp. 459–67). First, C&E is ineffective in “educating and saving” detainees (who are disproportionately female) as most went back to prostitution after being released. Second, C&E has limited effect on deterring prostitution in general. Third, C&E is not necessary for testing for or treating sexually transmitted diseases, especially given its minimum length of six months. And lastly, the use of C&E has already been in decline when the police now have a host of other tools (including criminal prosecution) to crack down on prostitution.
NPCSC Legislative Affairs Commission’s Review
The Commission indicated that it initiated research and study of C&E after receiving Mr. Zhu’s proposal for constitutional review, but its recommendation for abolition ultimately did not rest on any particular constitutional provision.
In the report, the Commission first asserted that the procedure in which the NPCSC’s 1991 Decision was adopted complied with the Constitution and so did the Decision’s content. It then contended that the C&E system “had played a positive role in preserving public order, in educating and saving [detainees], and in hindering the spread of bad social moralities [不良社会风气].” It then noted, however, that as China’s society, economy, and legal system continue to develop, “circumstances have changed significantly,” “especially after the abolition of the reeducation-through-labor system in 2013” (though it is unclear why). It lastly acknowledged that many places have reduced—and even ceased—the use of C&E in recent years.
The Commission thus concluded:
Through research, study, and debate, the various parties concerned have formed a consensus on abolishing the custody-and-education system, and the time is ripe for starting the abolition process. To thoroughly implement the spirit of comprehensively governing the country according to law, we recommend that the relevant party submit a relevant bill in due course to abolish the custody-and-education system.
We should note that it was the Commission itself that (at the request of the Council of Chairmen) drafted the 1991 Decision legalizing C&E. It is thus fitting (or perhaps ironic) that it is also the body that recommended its abolition almost 30 years later.
Though the NPCSC is in session till Saturday, it most likely will not consider any bill to abolish C&E this week.
Rather, we believe the authorities need more time to draw up the bill. There are several possible considerations. First, whether the repeal the Decision in its entirety or only the provisions governing C&E. As noted above, the Decision’s provisions on administrative measures are still in effect. These measures, besides C&E, include a fine of up to 5,000 RMB for reoffending prostitutes and their clients (art. 4, para. 3) as well as mandatory testing and treatment for sexually transmitted diseases for those individuals (id. para. 4). Second, whether to have the NPCSC abolish the State Council’s Measures in addition to (the whole or part of) the Decision. The alternative would be letting the State Council repeal the Measures itself. Third, what to do with C&E detainees still in custody. We think they would be released immediately like the reeducation-through-labor detainees back in 2013.
That said, the bill should not take too long to draft given the “consensus” among interested parties. It could thus be submitted to the NPCSC as early as late February 2019, when the legislature will next meet.
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The Commission’s report also includes other interesting statistics and cases. And we intend to discuss them in future posts.
With that, we wish everyone a Merry Christmas.