Lack of due process mars China’s war on drugs

Authors: Chi Yin and Jerome A. Cohen, NYU

On the International Day Against Drug Abuse and Illicit Trafficking, Chinese President Xi Jinping announced that the Communist Party and the Chinese people would stand firm and defeat illicit drug use through a ‘people’s war’. Xi, not shy about hyperbole, stressed that thousands of generations in China would benefit from a zero-tolerance drug policy. Disappointingly, although Xi frequently advocates for fair adjudication of all cases, he failed to mention how — or whether — due process will figure in China’s war on drugs.

A drug dealer escorted by policemen is being sentenced at a public rally on the International Anti-Drug Day in south China's Guangdong province, 26 June 2015. (Photo: AAP).

Two days earlier, on 24 June, the Chinese government released its first public report on the nation’s drug situation. It states that over 14 million Chinese — or approximately one in every 100 — have used illicit drugs. About three million are officially registered as illicit drug users, including highly publicised celebrities, such as Jackie Chan’s son Jaycee, who was caught last August using marijuana with his friend Ko Chen-tung, a Taiwanese actor.

Jaycee Chan served six months in prison for accommodating others to use drugs — his fourth drug-related offence but first criminal punishment. Ko Chen-tung, a first-time drug offender, went through a 14-day administrative punishment in a police detention cell and was then permitted to return to Taiwan.

Non-celebrity drug offenders are often much less fortunate. The police have a third option at their disposition: if they determine that the suspect is a drug addict, they can condemn him to up to three years in an isolated drug rehabilitation camp, without allowing the suspect any assistance of defence counsel or other basic criminal justice protections.

Under the Narcotics Control Law, and the State Council’s Regulations on Drug Rehabilitation, the police must make their initial decision within 24 hours of a suspect testing positive in a urine test. But the criteria for making that determination and the procedures that must precede and follow it remain unclear. The police also decide whether a drug addict should be sent to a rehabilitation camp run by the Ministry of Public Security or one run by the Ministry of Justice. Again, the differences in the ‘rehabilitation’ provided by the differently-administered camps and criteria for making that decision are unclear.

A declared addict is allowed to lodge an administrative appeal against these decisions and also to petition a court for review. But the former goes to higher police officials rather than independent reviewers and the latter to the Party-controlled courts. Appeals and petitions are also not easy for non-lawyers to pursue. They may take months to be dealt with and they do not delay the start of the rehabilitation confinement. Some regulations allow lawyers to visit and assist detainees, but in reality lawyers are seldom available. If they are, access to their clients is often frustrated or limited.

Thus, although available statistics are fragmentary, it appears that relatively few declared addicts seek review of either type, despite the fact that seeking court review occasionally stimulates the police to revise their decisions.

The police also decide whether, within the three-year term, the person’s initial confinement period needs extension and for how long; again, articulated criteria and procedures are fuzzy. And they can decide whether there is need for an additional period of up to three years in community rehabilitation once the person is released. It is not clear whether people subject to community rehabilitation are allowed to travel, have visitors, or participate in social activities. But if they seriously violate relevant restrictions, the whole punishment process can start over.

In addition to the substantive and procedural problems raised by this administrative system for rehabilitating drug users, two other problems stand out.

First, one offence may incur two punishments. After up to 15 days of administrative detention in a police cell, a drug user can be sent to three years of rehabilitation confinement for the same misconduct. This fundamentally violates China’s popularly-recognised administrative penalty principle that a person should not be punished twice for the same illegal act. This principle is now generally accepted as applicable to all types of administrative penalties, including deprivation of personal freedom, although the Ministry of Public Security has unpersuasively claimed that coercive rehabilitation is not a penalty but merely ‘treatment’.

The second problem is more practical than legal. During compulsory rehabilitation, a person may be forced to work up to six hours a day, five days a week. Although all relevant Chinese regulatory documents state that detained workers should be paid for their labour, the standards for payment are not specified, and confined labourers have been underpaid historically. One can imagine the economic inertia that might resist actual reform of a system with 14 million potential captive labourers.

In early 2014, China trumpeted its abolition of re-education through labour (RETL), which was notorious for its arbitrary deprivation of personal freedom and its use against political and religious dissidents. The decision was in response to long-standing domestic and foreign criticisms that RETL violated Chinese constitutional and legislative guarantees as well as international human rights norms.

Yet it is easy to characterise compulsory drug rehabilitation detention as RETL under another name. Roughly 60 per cent of those who were confined under RETL were reportedly drug offenders and many of the current rehabilitation facilities were inherited from the discredited RETL system. Today’s narcotics legislation and regulations effectively perpetuate and codify the spirit and the reality of the supposedly abolished RETL system — and continue to serve as a cover for the illegal detention of political and religious dissidents, just as the system for coercively confining mentally ill people does. The Chinese government’s power to deprive people of freedom without fair procedural protections is a favourite old wine being jealously preserved in new bottles.

In China’s current political climate, prospects for effective legal reforms of the existing system of compulsory rehabilitation cannot be too optimistic. And a greater focus on evidence-based policymaking is needed.

The Ministry of Civil Affairs or the Ministry of Health could replace the Ministry of Public Security as the principal administering authority. Every initial decision to declare someone an addict should be preceded by a hearing in which the administrative decision-maker and the suspect have the benefit of independent legal and medical advice. This should also be available at all subsequent decision-making stages and court reviews. A decision to impose or extend deprivation of freedom should require a court hearing, before the punishment period begins. Local courts should also establish a separate drug offenders division to offer quicker and more competent reviews.

Justice does not come cheap, but it is time for Xi Jinping to give more than lip service to due process of law.

Chi Yin is a research scholar at the US-Asia Law Institute of New York University Law School.

Jerome A. Cohen is co-director of the US-Asia Law Institute, an NYU law professor and adjunct senior fellow for Asia at the Council on Foreign Relations.