American Views of China Remain Negative

Less than six months after Chinese president Xi Jinping’s state visit to the United States—a visit intended to improve American perceptions of China—the percentage of Americans who hold an unfavorable view of China rose in 2016, according to the Gallup Organization. For the ninth year in a row, at least half of Americans hold an unfavorable view of China; 52 percent held that view in early February 2016, versus 44 percent who held a favorable view. In 2015 the percentages were 50 and 44, respectively. Gallup conducted its annual survey on American attitudes towards foreign countries earlier this month.

The percentage of Americans who consider China to be America’s greatest enemy remained steady at 12 percent.

Americans who see China’s economic power as a critical or important threat to the United States rose marginally from 84 percent of those polled in 2015 to 86 percent in 2016, while the percentage who see China’s military power to be a critical or important threat was 87 percent—the same percentage recorded the last time the question was asked in 2014.

Since 2011, at least 50 percent of Americans have viewed China as the world’s leading economic power, but this year the percentage dropped to exactly 50 percent, while the percentage holding the view that the US is the leading economic power rose to 37 percent from 31 percent in 2015. Perhaps the most surprising result of the poll is the response of Americans to the question “Who will be the leading economic power in 20 years?” In 2012, the last time the question was posed, 46 percent responded China and 38 percent responded the US. In 2016, 44 percent believe the US will be the leading power in 2026; only 34 percent predict China will then be the leading power.

Growing Number of Women in Prison in China

Women prisoners in China. Photo source: gucheng.com

China may soon surpass the United States in the number of women it puts behind bars. The Asian Pacific Conference of Correctional Administrators finds that by the middle of last year, China had more than 107,000 women in prison, up 3.2 percent from the previous year. By comparison, federal and state facilities in the US housed just over 110,000 women in prison at the beginning of 2015 (according to the US Bureau of Justice Statistics' analysis tool).

The number of women in Chinese prisons has now risen more than 50 percent since 2003. These figures exclude women held in detention centers or other facilities run by China’s public security bureaus (e.g., custody and education, mandatory drug rehabilitation, and legal education). If these facilities were included, the number of women China incarcerates would likely have already exceeded that of the United States.

Women now make up 6.5 percent of China’s general prison population, compared with 7.2 percent of total prisoners in the United States. Hong Kong and Macau—special administrative regions which are not included in China’s statistics—have the largest portions of incarcerated women in the world. As of mid-2014, the World Prison Brief noted that Hong Kong imprisoned the largest proportion of women (19.4 percent) within its total prison population than any other country with a population of at least 60,000. In the past year, however, Hong Kong was surpassed by Macau, whose prison population as of mid-2015 is comprised of 21 percent women.

Sources: Dui Hua, China Statistical Yearbook, APCCA

Promoting the Bangkok Rules

Worldwide, the number of women in prison has increased 50 percent since 2000, compared with 18 percent growth for men, according to the Institute for Criminal Policy Research. As more women enter the criminal justice system, the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules) become increasingly important as a framework for meeting the physical and psychological needs of women in penal systems built for men.

Aiming to improve legal outcomes for women in Chinese-speaking areas of the world, Dui Hua has just released a Chinese translation of an e-course on sections of the Bangkok Rules regarding non-custodial measures. Starting in 2016, Dui Hua began distributing the translation as a training guide for legal officials in China. The translation is based on Penal Reform International’s e-course “Women in Detention: Putting the UN Bangkok Rules into Practice,” already available in English, Arabic, and Russian.

Non-custodial measures help reduce the social and psychological repercussions of legal sanctions by keeping families together and reducing the risk of additional trauma for women who are survivors of gender-based violence.

China Issues Oversight Rules for “Non-residential” Residential Surveillance

The Supreme People's Procuratorate building in Beijing.

Not long after the draft of the amended Criminal Procedure Law (CPL) was released by China’s National People’s Congress (NPC) for public comment in August 2011, the United Nations Working Group on Enforced or Involuntary Disappearances expressed concern that the provisions relating to the coercive measure known as “designated-location residential surveillance” (zhiding jusuo jianshi juzhu) would legalize enforced disappearances. In late 2015, the United Nations Committee against Torture (CAT) went further and called on China to abolish the measure.

The Supreme People’s Procuratorate (SPP) subsequently issued trial rules for determining the necessity of detention and rules to govern oversight of “designated-location residential surveillance” (DLRS), which had leapt back into the headlines in 2015 as part of a police crackdown against Chinese rights lawyers that intensified in July.

A Coercive Measure

Custodial detention or arrest takes place in detention centers, ordinary residential surveillance in one’s residence. DLRS happens someplace else, perhaps in a hotel or guesthouse, where law enforcement agents hold criminal suspects or defendants for up to six months while they investigate alleged crimes or prepare a case for trial.

Authorities justify the lengthy six-month period by stating that residential surveillance is relatively lenient—not depriving people of their liberty, but merely restricting it. Nonetheless, individuals held under DLRS face an environment ripe with potential abuse and rights violations.

When law enforcement uses the practice against people charged with endangering state security (ESS), terrorist activity, or serious corruption, the outcome is hard to distinguish from enforced disappearance or incommunicado detention. In these types of cases, investigators may use the law to deny families the knowledge of where their loved ones are being held and to deny detainees’ access to a lawyer. Within 24 hours of carrying out DLRS, investigators are only required to provide families with notice of detention and of the alleged offense.

What a Difference Two Years Makes

Faced with public opposition to the practice, legislators granted oversight powers to the procuratorate, but it has taken nearly two years for the SPP to define its role. In the meantime, as predicted, DLRS has become a routine part of handling politically sensitive cases. Though its high costs of facilities and manpower are somewhat prohibitive, DLRS is unparalleled in its long duration, ability to isolate detainees, option to delay intervention by legal counsel, and general capacity to exert psychological (and, in some cases, physical) pressure on suspects.

Unfortunately, the new rules will do little to diminish these serious violations of due process. Procurators are concerned with whether DLRS is carried out lawfully, yet the most concerning aspects of the practice are themselves spelled out in the law.

Focus on Decisions, Implementation

The SPP has yet to publish their oversight regulations, but highly controlled media reporting sheds some light on their content. One thing is clear: the intention of the rules is bureaucratic oversight, not judicial oversight. Procurators will likely focus on examining paperwork, making the occasional inspection, and issuing instructions in case anything is out of the ordinary. People held under DLRS may initiate the oversight process by filing complaints independently or through their advocates. What appear to be missing are mechanisms for hearings to allow for the presentation of evidence or for appeals to challenge procuratorial decisions.

Monitoring by the procuratorate will focus on two areas: (1) whether the decision to impose DLRS was lawful and (2) whether DLRS has been lawfully implemented. The former chiefly concerns whether the case involves a person who either (a) lacks a fixed residence in the county or city where the criminal investigation is taking place, or (b) is suspected of ESS, terrorism-related offenses, or serious corruption. In case of (b), the law requires investigators to substantiate a claim that ordinary residential surveillance would impede their investigation and obtain approval for DLRS from their immediately superior law-enforcement unit.

The second area of focus involves ensuring that all paperwork is in order; necessary notices have been delivered; and the appropriate location, duration, and personnel are employed. Procurators would also ensure that detainees’ lawful rights are being protected, interrogations are held in separate locations, and no “physical punishment or abuse” is inflicted.

Adding Inspections

Oversight activities require procurators to make an on-scene inspection within 24 hours of receiving a copy of a decision to carry out DLRS. This inspection presumably enables inspectors to interview detainees and establish whether they have any allegations to make. It should also allow them to ascertain whether the designated location meets the lawful conditions for “ordinary living and rest” and to ensure that surveillance cameras and safety equipment are installed.

The rules also appear to require procurators to visit the location at least once a week for the duration of DLRS. Periodic inspections should offer minimal guarantees against physical torture or ill treatment. They are inadequate, however, in preventing mental suffering and the use of other cruel and degrading treatment.

Also troubling is the requirement that inspections be carried out in ways that do not interfere with investigations. This prioritizes the needs of investigators over the rights of detainees and may give investigators broad discretion to delay access to facilities.

Missing the Mark

This type of oversight, with its emphasis on ensuring adherence to applicable laws and regulations, will no doubt help to limit certain kinds of arbitrary and abusive behaviors. Other arbitrary practices and violations of due process will remain unaffected because they are legally sanctioned. For example, procurators are very unlikely to challenge investigators’ decisions to deny access to legal counsel to individuals charged with ESS or terrorism. The CPL empowers investigators to deny such access if they believe it might interfere with their investigation.

In their attention to the legality of decision and implementation, procurators may also fail to scrutinize the legitimacy of charges made against detainees. Investigators can use flimsy evidence to initiate ESS investigations—thereby justifying the use of DLRS and exclusion of legal counsel—only to modify the charges when requesting approval of formal arrest after expiry of the six-month time limit.

Ultimately, however well intentioned it might be, this kind of bureaucratic review cannot address the risks of DLRS. The measure grants law-enforcement investigators too much power over individuals, and the procuratorate lacks both power and incentive to challenge DLRS decisions, especially in the kinds of politically sensitive cases where abuse is most likely.

The best solution would be for China to abolish DLRS, or at the very least, to restore detainees’ rights to full access to legal counsel and to communicate with the outside world. Anything less, and China is sanctioning enforced disappearances.