Although many legal scholars are now saying publicly that Custody and Repatriation (C&R) violates national laws, the police continue to insist that it is indispensable. Nicolas Becquelin describes a system that has grown rapidly and continues to cause systemic abuses of the rights of poor people who travel to China’s cities in search of work.
The perception that the Chinese government is phasing out the household registration (hukou) system that enforces the segregation between rural and urban areas is one that has gained ground over the past few years, both in media reports and among scholars.
Among the evidence cited to support this view are the measures that cities have taken to accommodate migrants, such as the “blue chop hukou” under which city residence can be purchased, the recently issued central government directive instructing all government units to stop charging migrant workers fees for permits and the increased flexibility of the Chinese labor market. The argument is that the government is committed to abolishing this system inherited from the Maoist era, since it is not suited to China’s increasingly market-driven economy.
However, a close examination of the recent development of what constitute the major instrument of enforcement of the hukou regulations, the Custody and Repatriation system (C&R), contradicts such interpretations.
The C&R system, a little-known form of administrative detention first documented in a September 1999 report by HRIC, was initially set up to target vagrants and beggars in the cities. It was extended in the 1980s and 1990s to include all those who lack proper identification, residency or work permits, belonging to what is referred to as “three withouts personnel” (having no fixed place of residence, no means of livelihood and no permits to live in the city in question). In reality, the categories of people that can be detained are much broader, and a major proportion are migrant workers, essentially because they can’t afford to pay for their release, and the C&R facilities rely on such payments to cover their basic costs.
MASSIVE INCREASE IN DETENTIONS
According to the latest official statistics, the number of detainees in Custody and Repatriation centers for the year 2000 exceeded 3.2 million, virtually doubling the total within five years—for 1996 the figure was 1.7 million—and more than tripling in just over a decade, from one million in 1989.
Far from moving away from the discriminatory restrictions imposed by the hukou system, some of the major municipalities across China, such as Shanghai, Guangzhou and Shenzhen, actually appear to be strengthening the institutional instruments that prevent migrants from settling down in the cities they work in, in an apparent attempt to keep poverty out of the cities.
A case in point is the new regulations on Custody and Repatriation adopted by Guangdong in March 2002. These were hailed as a positive sign that the authorities had woken up to the serious abuses taking place in C&R, but the 2002 Regulations fell far short of effectively eliminating those abuses. In the areas where improvements were made, such as the ban on collecting “fees” from detainees, the introduction of stricter time limits and the narrowing of the categories of people that can detained, the absence of mechanisms allowing detainees to challenge their detention makes those changes essentially cosmetic.
ABUSE IN THE NAME OF “WELFARE”
Since C&R is an administrative form of detention, and is technically part of the “welfare” activities of the Civil Affairs departments (along with the notorious orphanages), there are no due process and no legal avenues to contest the legitimacy of the detention, and individuals can essentially be detained at the discretion of public security and civil affairs authorities.
The legal basis of C&R stems from two national statutes enacted respectively in 1982 and 1991 by the State Council. The 1982 Regulations provided for the outline of the system, and were supplemented by “Implementing Regulations” issued by the Ministry of Public Security and the Ministry of Civil Affairs. In 1991, as the government launched a national plan for the Comprehensive Management of Society’s Security, the State Council extended the scope of C&R to people lacking the “three permits”: ID card, temporary residence and work permit.
The system, run by the civil affairs departments and the public security together, is behind the periodic “clean-up” of China’s major cities associated with special occasions such as the preparations for National Day, anti-crime “Strike Hard ” campaigns or international events, during which those judged “undesirables” are rounded up and either detained or sent back to their place of origin on the pretext that they lack the proper hukou registration or residency permit.
Official publications from the civil affairs departments have acknowledged that migrant workers actually represent “the vast majority” of people detained in C&R, but people taken into custody are generally forced to admit that they are “three withouts personnel,” even if this is not really the case. Other categories of people detained include children, the mentally ill persons, trafficking victims and “minor offenders.”
As HRIC’s 1999 report documented, serious abuses are perpetrated in the C&R system, due to the generally abysmal conditions in the facilities, the predatory behavior of the personnel in charge of the centers and the established practice of “ransoming” detainees by requiring their relatives or friends to pay a lump sum to obtain their release.
Of the 3.2 million instances of C&R detention in 2000 (the term “instances of detention” reflects that the same person can be detained more than once during the year: each detention is counted as one instance), minors below the age of 18 officially made up 5 percent of the total (135,000). In reality, the proportion of children is probably higher: in Hubei Province, for instance, the proportion was estimated in 2002 at 10 to 15 percent.
The sharp increase of the number of detainees is accompanied by a rise in the number of C&R centers across China. The total number officially reached 800 units in 2000, with 54 new centers opened in just one year. The real number is certainly higher, as the total does not includes Beijing, where the C&R Centers are run by public security alone.
Guangdong Province, with 50 centers, recorded the highest number of detentions for the year, with a frightful figure of 923,000. Shenzhen alone accounted for 240,000 detentions. But this exponential growth was also seen in major municipalities across China: Shanghai municipality recorded 400,000 instances of detentions in 2000, against 100,000 in 1997. It now has 16 C&R centers, compared with 11 in 1991. In Beijing, several “clean-up” campaigns were conducted in 2000, pushing the figure to 295,000 detentions in only one year, more than double the previous year’s figure.
A ROUTINELY ABUSIVE SYSTEM
The expansion of C&R has not been paralleled by improvements in the conditions of detention or efforts to curb the systemic abuses in the centers. However, compared with the almost total silence on the subject in the mainstream media prior to the publication of HRIC’s report, there has been some coverage of a few cases.
In some areas, for instance, criminals have apparently colluded with C&R staff to “provide” them with young women that they bail out and force into prostitution. In one such case that prompted an outcry in Shenzhen’s media in late 2001, a 19-year-old woman from Hubei was bailed out from a C&R center by a man she had never met, who locked her in his shop, sexually assaulted her and tried to put her into a brothel. She was eventually freed by her relatives. In another similar case, reported in October 2001, a raid by the police in a Beijing hotel freed ten women who had been forced into prostitution by the hotel manager, after having been “bought” from a C&R center in Xuzhou, Jiangsu Province. The youngest was 13 years old. “The procuratorate authorities discovered,” related the newspaper, “that the management of the Xuzhou C&R Center was quite out of hand.”
In a similar kind of abuse, the C&R staff in Xi’an apparently “leased” detainees to work in neighboring quarries. Guo Yongli, 19, was arrested the day he arrived in the Shaanxi capital for not having a residency permit. He and three other migrants were reportedly sold to the boss of a quarry for 1,000 yuan. His case became known when, after a failed attempt to escape, Guo was so badly tortured with a hot iron that the quarry owner released him out of fear he might die.
Being traded out of the C&R centers by unscrupulous staff, however, is not necessarily the worst that can happen to migrants that get arrested. In June 1999, a 26-yearold woman from a village in Hunan Province who was arrested by the railway police for not having proper identification—despite showing other identification papers, such as her marriage certificate—was placed in the psychiatric ward of a small hospital that apparently usually dealt with C&R cases. There, over the course of two nights and one day she was repeatedly raped by five or six men, some of them inmates. The courts—to which the civil affairs authorities disclosed that they had no money to provide supervision in the detention facility—eventually convicted one man for the rape and awarded the woman some damages, but the officials responsible for her detention were never brought to trial.
The same outcome resulted from a long series of lawsuits filed by the parents of a young migrant worker who died mysteriously in detention and whose story exemplifies the multiple failings of the C&R system.
On October 5, 1999, Zhang Sen, a 25-year-old migrant from Guangxi Province, was arrested by the local police station of Baiyun District in Guangzhou for not having a residency permit. He was able to make a call to his father to inform him that he had been arrested and asking him to bring 200 yuan to bail him out. Because of the distance, his father could not arrive before Zhang was transferred to the Guangzhou Municipality C&R Center.
Two days later, Zhang’s father received another call from his son, telling him that he was at the Shahe District C&R Center in Guangdong and asking him to bring 800 yuan in order to set him free. Because he had difficulty raising such a sum so quickly, the father did not arrive at the center before the end of the afternoon, where he was told by the C&R employees, “There is nobody of that name here.”
For the next 12 days, Zhang’s father had no news of his son, until he received a call from a doctor at the Guangzhou Longzhen Kangning Hospital, who told him that a certain Zhang Sen had been brought in by the C&R authorities injured. “His condition is serious, bring the money quickly,” the doctor added. A few hours later, the same doctor called again to inform him that Zhang Sen had died. Upon Zhang’s father’s arrival at the hospital, he was made to pay a 200 yuan “treatment fee” before anything else. When he asked to see the body of his son, the hospital staff told him to come the next day. But on his return the next day accompanied by four relatives, he was told Zhang Sen’s body had already been cremated. The C&R authorities denied any responsibility and said that he had died from “normal illness.” With the help of a lawyer, the parents sued the authorities and were eventually able to gain compensation due to a ruling by the Guangzhou intermediate People’s Court, in August 2001. But no responsibility for the death was attributed to any officials in charge of the C&R center.
Given the conditions of detention in C&R and the extent of ill-treatment at the hands of the staff or cell bosses, it is hardly surprising that detainees often try to escape. In August 2000, five detainees died after a foiled escape attempt at Pingshi Detention Center, in Guangdong Province. While an official report said the men drowned in the river 100 meters from the center, witnesses said they saw the escapees pursued by guards with nightsticks and a policemen with a gun, and that they heard gunshots. “The escapees were part of an organized effort and it was their decision to flee. If they died, it’s their own problem,” a local official was quoted as saying.
CALLS FOR REFORM
Over the past few years, stories such as these have drawn attention from various media, scholars and professionals, who have often advocated the overhaul or outright
elimination of C&R.
One important argument for abolition is that the numerous local C&R regulations violate the 1996 Administrative Punishment Law, which states that administrative punishments which restrict personal freedom may only be authorized by laws passed by the National People’s Congress.
The March 2000 adoption of the new Legislation Law (LL) was designed to remedy the absence of a well-defined hierarchy in the Chinese legal system, in which local regulations often violate national or provincial ones, or conflict with other administrative orders, or rules at the national or local level. The new law added to legal objections to the C&R system, stating in Article 8 that “Coercive measures and punishments to… limit personal freedom can only be authorized by law.”
Legal scholars were quick to point out that the new law made the C&R system illegal. In an article published in the authoritative Legal Daily on August 8, 2000, one author wrote, “Custody and Repatriation has already lost its legal basis,” and C&R regulations “must be repealed as soon as possible.” In September 2000, the question of the C&R system was debated at a Ministry of Civil Affairs symposium on the management of the floating population. One participant, a Beijing University expert on constitutional law, stated explicitly that “the restriction of personal freedom can only be applied by judicial organs [sifa jiguan, generally includes the police]. This is indisputable. In this sense, the current regulations on C&R are illegal.”
But the most radical critique came from a member of the drafting committee of the Legislation Law, Beijing University law professor Zhou Wangsheng. In the December 20, 2000, edition of the People’s Daily, Zhou was quoted as saying, “At the present time, numerous local regulations regarding C&R have absolutely no national legal basis. The situation is quite chaotic. Certain regulations regarding custody and limitations on personal freedom have inappropriately increased. These should be characterized as abuses of power.”
Another law professor, a member of the Beijing Municipal Political Consultative Conference, stressed in the same article the need to resolve the legal status of C&R, stating that the authorities should “increase the judicial elements in the C&R system.”
The central authorities gave signs that they were aware of the problems inherent in the C&R regulations when, in September 2001, the State Council issued a document which stated that “it was necessary to get rid of the erroneous tendency of ‘heavy fees and light management’ (zhong shoufei, qing guanli) in C&R work.” This is an explicit reference to the practice of charging detainees arbitrary fees for their release or their boarding, and to the common practice of using some detainees (usually the roughest) to supervise others due to a shortage of guards, which contributes to endemic violence in the centers. A few weeks later, the Minister of Public Security mentioned the need to address “the expansion of the scope of C&R and other problems which violate the rights of migrant people.”
Thus, when it became known in late 2001 that Guangdong Province—which attracts the largest numbers of migrants in China—was discussing the adoption of new regulations on Custody and Repatriation, there were questions about the legality of the move. One NPC delegate, interviewed by the Southern Weekend on December 13, made clear that it would be plainly illegal: “If the Guangdong Provincial People’s Congress asks the NPC whether or not it may issue such a law, we will definitely say no… this is beyond its jurisdiction.”
However, the process went ahead and the new regulations were ultimately adopted in April 2002. The discussion attracted a good deal of attention from the local media, which had reported some particularly grave cases of abuses in C&R centers in recent years. Accounts of the discussion of the draft law confirmed many of the findings of HRIC’s 1999 report. For instance, an official of the civil affairs departments indicated during his report to the Guangdong Provincial People’s Congress that C&R centers were facing a “very difficult situation” given the surge in “three withouts personnel” and the decrease in vagrants and beggars. People in need of welfare represented less than 15 percent of all C&R detentions, he added.
The Civil Affairs official’s report also indirectly confirmed HRIC’s previous findings that many C&R centers were actually used as nothing more than holding pens by the police, when he complained that a large number of people detained in the centers were “minor offenders, Reform through Labor or Reeducation Through Labor detainees on the run and even criminals,” and that maintaining order was therefore extremely difficult.
Another salient aspect of the system highlighted in the report, its predatory nature, was candidly reflected in a Xinhua news agency dispatch on November 28 stressing that the new Guangdong legislation would put an end to “rent seeking” and “bribe taking” by C&R officials.
THE NEW REGULATIONS
The adoption of the regulations in March 2002 was hailed by some as putting an end to the detention of migrant workers simply for lacking the proper permits. Article 11 states: “Individuals who have their papers in order, a regular residence and regular means of livelihood but are not carrying their papers, upon their explanation of the circumstances and provided that those explanations are verified, should not be detained by the Custody and Repatriation authorities.”
However, the optimism evinced by reporting such as the South China Morning Post’s March 25 news headline, “Ban on detaining migrants who lack permits” does not appear to be warranted by the substance of the new regulations. In particular, the regulations do not provide that migrants who have a stable income and a regular place of residence should not be detained: Article 11 makes clear that it relates only to people who actually possess the required permits, but just happen not to be carrying them at the time.
In reality, many migrants may not possess all the relevant permits: they may work in the informal sector; they may have just arrived or be between jobs; their employer may not have issued them with the documents they would need to obtain a temporary work permit; or, as appears to be the rule in many factories in the Pearl River Delta, the documents may be retained by their employers, in order to prevent them from changing work.
Moreover, it is unlikely this prohibition will prevent the person from being taken into C&R facilities until their situation is clarified, while one of the main features of the system to date has precisely been that detainees have to pay or to be bailed out by relatives even though their detention was illegitimate in the first place.
Although they do not even address some of the most fundamental issues—including the fact that detainees are accorded no right to due process, that the detention decision in still vested in the hands of administrative officials and that there is no prohibition on the detention of minors—the new Guangdong regulations are better in certain respects than the previous regulatory regime.
For instance, C&R authorities are now required to complete the registration procedures within 24 hours “otherwise individuals can not be held in custody.” (Art. 10) Time limits for repatriation are also specified, and cannot exceed 15 days for cases within the province and 30 days for those outside Guangdong. However, it is specified that those delays “do not apply to people whose identity is not clear,” which leaves a loophole, since the regulations do not provide for any challenge to a decision by the C&R authorities that the identity of a person is not “clear.” Such questions about a person’s identity have repeatedly been used under other detention systems to hold people beyond legal time limits.
Another noticeable improvement over the previous 1987 regulations is the apparent ban on fee-collecting by C&R personnel, as Article 7 specifies that “the C&R institutions shall not make the detainees pay the fees [incurred by their detention], directly or indirectly.” It is not apparent how the C&R centers would make up for the shortfall in revenues if this decision were really to be enforced, despite the fact that the new regulations require that “all levels of government ought to ensure that the necessary expenses of the work of C&R are included into the budget of the financial departments at the corresponding level.” Indeed, according to the head of the Guangdong Civil Affairs Department, the operating expenses of C&R centers amounted to 150 million yuan in 2000, whereas the budget earmarked by the department was only 35 million, thus providing for less than 25 percent of the financial resources needed. Given the established practice of extracting payments for the release of detainees, with amounts ranging from a few hundred to a few thousand yuan, it seems to be nothing more than wishful thinking to stipulate that no fees should be collected from detainees. This new measure could even lead C&R centers to extend such practices as “hiring out” detainees to work in order to make up for the shortfall in revenues.
Another point clarified by the new regulations is the respective responsibilities of the civil affairs and the public security departments, with Article 4 stating that custody is mainly under the civil affairs department, and repatriation mainly under the public security departments. Article 5 makes clear that the management of C&R centers is the sole responsibility of civil affairs, but that the public security can dispatch teams of policemen to help maintain order “when circumstances require.”
In addition, the new regulations stipulate that if “medical services” at the C&R center deem it necessary, health departments must provide care for people who are severely ill, suffering from sexually transmitted diseases, or affected by mental illness. The hospital and treatment fees incurred must be reimbursed by the civil affairs.
Despite these improvements, the Guangdong regulations leave intact the main characteristics of the system, and rural hukou holders, whatever their precise situation, can still be “legally” be arbitrarily detained without any due process. If the experience of similar regulatory prescriptions adopted in other areas of China (including Beijing and Shanghai) is any indication, increased guarantees for detainees on paper are likely to remain just that because their implementation ultimately relies upon the C&R officials themselves.
The lack of real commitment to curbing abuses under the C&R regime is reflected by the complete absence of mechanisms allowing detainees to challenge their detention while they are being held. The regulations only stipulate that “in case the detainee considers that he/she has been wrongfully detained,” he can file a suit under the Administrative Litigation Law, which is in practice extremely difficult given that courts have virtually unlimited discretion to reject suits on procedural grounds, and that most C&R detainees are not provided with any document stating the reasons for their detention or any other particulars of their case.
ILLEGAL, BUT INDISPENSABLE?
Overall, in the case of Guangdong as in big cities across China, the incentives for reforms of the C&R regulations seems to have had more to do with ensuring that the C&R system is more “efficient” than with putting an end to the widespread and grave abuses that it generates. This deliberate policy reveals the extent to which the regime is prepared to go to maintain the segregation between rural and urban areas and perpetuate a system that is among the causes of the exponential growth in inequality in China.
In addition, the C&R system and its dramatic expansion over the past few years reflects the limits of the government’s commitment to the rule of law. An official from the Ministry of the Public Security’s comment to Southern Weekend says it all: “Despite the lack of a legal basis, these procedures are indispensable.”
Not Welcome at the Party: Behind the “Clean-Up” of China’s Cities — A Report on Administrative Detention under “Custody and Repatriation”, HRIC Arbitrary Detention Series, No. 2, September 1999, available at www.hrichina.org
NICOLAS BECQUELIN is senior researcher at Human Rights in China, based in the organization’s Hong Kong office.