Twofish's Blog

August 18, 2009

On the legality of black jails

Filed under: china — twofish @ 6:50 am

Comment I made on this story

http://www.blackandwhitecat.org/2009/08/15/rape-and-beatings-in-a-beijing-black-jail-hotel/

I’ve often heard the statement that the black jails system by which petitioners are detained before being released is illegal.  It is true that it *should* be illegal, but just because something *should* be illegal, doesn’t mean that *is* illegal.  There is in fact a very solid legal justification for black jails under the Chinese criminal procedure law.

———–
Article 63. Any citizen may immediately seize and deliver to the public security organ, the people’s procuratorate or the people’s court for handling:

1. any person who is committing a crime or is discovered immediately after having committed a crime; or

2. any person who is on the wanted list; or

3. any person who has escaped from the prison; or

4. any person who is being pursued for arrest.

———–

What this means is that if someone is reported as wanted by the police in jurisdiction A, then it is legal for any citizen to detain them in another jurisdiction until they can be transferred home.  All they have to do is to get the PSB at the home town to state that someone is wanted for questioning, and Article 63 kicks in.

This law has a huge loophole and is obviously being abused and needs to be changed. Among other things Article 63 allows people to do an end run against all of the time limits in the criminal procedure law.

But it is the law… (Don’t shoot the messenger) Just because something should be illegal doesn’t mean that it is….

The situation with Sun Zhigang is different. Under Article 8 of the Legislation Law, you can only detain someone as a result of a law that is passed by the NPC. Custody and repatriation was passed as a result of a State Council regulation, which made that regulation legally challengable. This isn’t the case with black jails.

Also the politics is very different. There is very, very little sympathy among urban Chinese for migrants and petitioners from rural areas. In Sun Zhigang’s case, he was seen as an urban intellectual (i.e. one of us) which caused outrage. Rural migrant petitioners are usually seen as “one of them” and so get a lot less sympathy.  Let me ask an inconvenient question.  How may people do you think died in custody before Sun Zhigang,  Sun was different because from the point of view of the intelligentesia, he was not one of them.  Sun Zhigang was by no means the first person to die under C&R regulations, but he was the first “urban intellectual” and so the sense was, “if it can happen to him, it can happen to us.”

Unfortunately (and again don’t shoot the messenger), that’s very unlikely to happen in a “black jail.” If you are an urban dweller, all you have to do is to call the local PSB, and you will be released. The system is set up so that only “one of them” is likely to get caught in the system.

Now as far as arguments that my legal analysis is incorrect.  I’d be interested in hearing them, but you have to remember legal arguments only matter if you can get a Chinese judge to agree with them, and if you come up with nice logical argument, you need to explain why a Chinese judge would look at your argument and given the political pressure I mentioned look at my argument, and accept your argument.

The other problem is that we can true to change things legislatively but that has some limits.  If you talk to some urban dweller in China, they likely are going to have some prejudices against rural petitioners. They may nod their heads in agreement while you tell them how its a bad thing, but deep down, I think that they’d rather petitioners just go home.  So when it comes time to pass a change to Article 63, people are going to come up with a thousand excuses to keep things they way they are.

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