China's Fight Against Illicit Drugs Needs a Good Closer

On the International Day Against Drug Abuse and Illicit Trafficking, Chinese language President Xi Jinping announced that the Communist Celebration and the Chinese people would stand firm and defeat unlawful 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 promoters for fair adjudication of all cases, he failed to mention how — or whether — due process will figure in China’s fight against drugs.

Two days earlier, upon 24 June, the Chinese government released its first public report on the nation’s drug situation. It states that over 14 million Chinese — or even 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 utilizing marijuana with his friend Knock out Chen-tung, a Taiwanese actor.

Jaycee Chan served 6 months in prison for accommodating other people to use drugs — his fourth drug-related offence but first criminal punishment. Knock out Chen-tung, a first-time drug offender, went through a 14-day administrative punishment inside a police detention cell and was then permitted to return to Taiwan.

Non-celebrity drug culprits are often much less fortunate. Law enforcement have a third option in their disposition: if they determine the suspect is a drug addict, they are able to condemn him to up to 3 years in an isolated drug treatment camp, without allowing the actual suspect any assistance of defence counsel or other basic criminal justice protections.

Under the Drugs Control Law, and the Condition Council’s Regulations on Drug Rehabilitation, the police must help to make their initial decision within 24 hours of a suspect screening positive in a urine check. 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 is going to a rehabilitation camp run by the Ministry of Public Security or one run by the Secretary of state for Justice. Again, the differences in the ‘rehabilitation’ provided by the in a different way administered camps and requirements for making that decision are not clear.

A declared addict can hotel an administrative appeal towards these decisions and to request a court for evaluation. But the former goes to greater 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 deal with and they do not delay the beginning of the rehabilitation confinement. Some rules allow lawyers to visit and assist detainees, but in reality, lawyers tend to be seldom available. If they are, use of their clients is often frustrated or limited.

Thus, although available statistics are fragmentary, it appears that relatively couple of declared addicts seek overview of either type, despite the fact that looking for court review occasionally energizes the police to revise their decisions.

The police also decide whether, within the three-year term, the person’s initial confinement period requirements extension and for how long; again, articulated criteria and procedures are fluffy. In addition, they can decide regardless of whether there is need for an additional duration of up to three years in community rehabilitation after release. It is not clear whether people susceptible to community rehabilitation may travel, have visitors, or participate in social activities. But if these people seriously violate relevant limitations, the whole punishment process can begin over.

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

First, one offence may have two punishments. After as much as 15 days of administrative detention inside a police cell, a drug consumer can face three years of rehabilitation confinement for the same misconduct. This particular fundamentally violates China’s popularly recognised administrative penalty principle not to twice punish an individual for the same illegal act. All kinds of administrative penalties, including deprival of personal freedom, generally accept this principle, although the Secretary of state for Public Security has unpersuasively stated that coercive rehabilitation is not a penalty but merely ‘treatment’.

The second problem is more practical than legal. During mandatory rehabilitation, a person may work up to six hours a day, five days a week. Even though all relevant Chinese regulatory documents state that detained employees should receive pay for their own labour, there are no specified standards for payment, and limited labourers historically do not receive sufficient pay. One can imagine the economic inertia that might resist actual reform of a system with Fourteen million potential captive labourers.

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

Yet it is easy to characterise compulsory drug rehabilitation detention as RETL under another name. Approximately, 60 percent of those confined below RETL were reportedly drug offenders and the discredited RETL system passed on many of the current rehabilitation facilities. Today’utes narcotics legislation and rules effectively perpetuate and codify the nature 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 psychologically ill people does. The Chinese government’s power to deprive individuals of freedom without fair procedural protections is a favourite old wine preserved in new bottles.

In China’s current political climate, prospects with regard to effective legal reforms of the existing system of mandatory 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 switch the Ministry of Public Security because the principal administering authority. Each and every initial decision to declare someone an addict should have the hearing in which the administrative decision-maker and also the suspect have the benefit of independent legal and medical advice. This will also be available at all following decision-making stages and court evaluations. A decision to impose or extend deprivation of independence should require a court hearing, before the punishment period begins. Nearby courts should also establish a separate drug offenders division to offer quicker and more competent evaluations.

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

Lack of due process mars China’utes war on drugs is republished along with permission from East Asian countries Forum