China’s Fight Against Illicit Drugs Needs a Good Closer

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.

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.

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 go 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 can lodge an administrative appeal against these decisions and 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 deal 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. In addition, they can decide whether there is need for an additional period of up to three years in community rehabilitation after release. It is not clear whether people subject to community rehabilitation may 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 face three years of rehabilitation confinement for the same misconduct. This fundamentally violates China’s popularly recognised administrative penalty principle not to twice punish a person for the same illegal act. All types of administrative penalties, including deprivation of personal freedom, generally accept this principle, 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 work up to six hours a day, five days a week. Although all relevant Chinese regulatory documents state that detained workers should receive pay for their labour, there are no specified standards for payment, and confined labourers historically do not receive enough pay. 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 percent of those confined under RETL were reportedly drug offenders and the discredited RETL system passed on many of the current rehabilitation facilities. 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 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 have 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.

Lack of due process mars China’s war on drugs is republished with permission from East Asia Forum