Custody and repatriation
Custody and repatriation (Chinese: 收容遣送; Pinyin: shōuróng qiǎnsòng) (C&R) was an administrative procedure, established in 1982 and ended in 2003, by which the police in the People's Republic of China (usually cities) could detain people if they did not have a residence permit (hukou) or temporary living permit (zanzhuzheng), and return them to the place where they could legally live or work (usually rural areas). At times the requirement included possession of a valid national identity card.
In China there were reported to be some 800 detention camps in 2000 (not including Beijing), and by then several million people had been through them. As well as migrant workers, the Chinese camps usually contained vagrants, beggars, petitioners, and criminals, and the police (Public Security Bureau) earned income by this traffic and sometimes workers' unpaid labor. Often the detentions were unfairly long.
The ostensible reason for the C&R regulation in 1982 in China was to ameliorate the situation of people in the cities who were beggars or homeless. Originally it applied to "three withouts persons," those with "no fixed place of residence, no means of livelihood and no permits to live in the city in question" but later it was applied in 1991 to others without just the residence or work permits. It built on a 1961 Party directive implementing the hukou system of residence (traditional family registers found in several Asian countries), work permits (issued by police on behalf of work units or employers) to prevent uncontrolled population movements, as passports and visas do internationally, and identification cards, (Jumin Shenfenzheng (居民身份证). In turn, this regulation extended older rules that were used to enforce extrajudicial movements of Nationalist troops away from liberated cities. But as the economic development of cities in the east later required increased domestic migrant workers, the regulations were not adequately adapted or were unfairly enforced, by the Public Security Bureau (police, supposed to be in charge of deportation) instead of the Ministry of Civil Affairs (supposed to be in charge of detention). These abuses became apparent in years before 2003 and there were internal and external warnings and discussion, with some improvements but little effect overall. There were some unpublicized deaths similar to what later occurred.
The legal procedure of C&R for migrant workers was ended by the central government in 2003 after a related death received massive attention in newspapers and on the Internet in China. This was the case of Sun Zhigang (Chinese: 孫志剛).
On March 20, 2003, 27-year-old Sun Zhigang died in the medical clinic of a detention center (Chinese:拘留所) in an area of south China that depends on migrant labor (Chinese:農民工). Sun was a Wuhan university graduate and fashion designer who had gone to Guangzhou to work. Three weeks later, as he walked to an internet bar, police asked for his temporary living permit (Chinese:暫住証) and his identity card. He had not applied for the permit and he had forgotten the ID card (which contains the place of registration but does not give the right to live or work in some area). His residence permit (hukou) was with his family in Hubei. He called his friends to bring his ID card. Three days later, a friend called his family to tell them of the death.
An official autopsy at Zhongshan University, authorized by Sun's family, later showed a savage beating of his body 72 hours before the death, although there were no signs of external damage. The detention center's medical clinic had reported the cause of death was a heart attack or a stroke. Sun's father stated that he was sorry that because Sun was a university graduate he probably argued or resisted the police over what he considered a human rights issue.
Sun's family reported the information to investigative reporters at Southern Metropolitan Daily in Guangdong, on 25 April, during the SARS epidemic—the official reaction or lack of it to SARS had already created much controversy on the Internet, so Internet activity soon skyrocketed, hundreds of thousands of messages, with help from Sun's friends and outraged sympathizers. Some believed that the government censored postings, while most people wanted the government to take some action, but attention was focused only on the Sun case, not the general issue of C&R.
Among these reactions, two groups of senior Chinese legal scholars wrote to the National People's Congress, questioning the constitutionality of the custody and repatriation regulation. One particular problem with the regulations was said to be that they had been adopted as regulations by the State Council of the People's Republic of China (State Council) and not as a law by the full Congress. As a result, it was argued, the C&R law for migrant workers was unconstitutional, on the grounds that it violated citizens' rights articles of the Legislation Law of the People's Republic of China. As in many other countries, Chinese law does not provide for constitutional judicial review, and — as in systems without a constitution, such as the UK — the legislature or administration instead of judges must change laws deemed unconstitutional. There has been some movement by legal reformers to use courts (xianfa sifahua) and bureaucracy to experiment with constitutionalism.
A similar argument was that the custody and repatriation 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 [full] Congress." Both criticisms echoed statements published in earlier years by lawyers and legal scholars.
In addition to the legal arguments, some reports by those with contact with the detention centers (including an official report) indicated that not only were the conditions worse than prisons or reeducation camps (including beatings and prolonged detentions without trial), but also sometimes the police used the system to kidnap and extort more than expenses from the families of the accused. These reports echoed earlier ignored warnings.
The tragic death of Sun triggered a public outcry in China, especially after the reporting by Southern Metropolis Daily. Three law students, Xu Zhiyong, Teng Biao and Yu Jiang, published an open letter calling for abolishing the system of custody and repatriation. Five prominent legal scholars, including He Weifang, also openly called for its end.
On 20 June 2003, Premier Wen Jiabao announced that the custody and repatriation regulations had been abolished (effective August 1) and the detention centers would be replaced by simply service stations to care for poor beggars or homeless persons under the new Measures for Assisting Vagrants and Beggars with No Means of Support in Cities. No discussion ensued about any basis for the decision in the constitutional arguments. The continuing centers for vagrants were not allowed to collect fees from families nor require work. The legal system of hukou and residency and work permits for migrant workers did not change, but enforcement has not been as strict in most cases, and migrant labor and travel has continued unimpeded. Although there is no C&R, there is still some difficulty since workers from rural areas use city services without paying for it like registered urban residents, or are denied services such as schools. In addition, some migrant construction workers have been reported to have been unable to collect wages, insurance, or medical care from employers.
During the Internet discussion in China after Sun's death there were many viewpoints as to problems and solutions, but the fervor died down after the central government's compromise solution, which may have avoided the underlying issues. The government's action met approval by citizens as well as netizens. Some believe the activity demonstrated the power of unrestrained Internet use by individual citizens against government power, but in the end, as in the SARS crisis, it appealed to and reaffirmed government power.
Southern Metropolis Daily chief editor Cheng Yizhong and three editors were charged with corruption in connection with the Sun case reporting, and other offenses. Allegedly Cheng misused funds from a (local) state-owned enterprise. Human rights defense lawyers asserted that the actions were local official revenge for the journalists' expression of press freedom. Whatever the case, their defense lawyers quickly secured his release from prison, as well as that of another, and reduced sentences for the others. Human rights defense lawyers considered the Sun and Cheng cases together as a victory for the budding human rights legal struggle.
A few months later, two men found directly responsible for murdering Sun were sentenced to death (one suspended), 10 accessories were sent to prison for terms between six months and life, six civil servants were sentenced to prison terms of two to three years for malpractice, and later a head nurse was sentenced to two years in prison. Some criticized the decisions because the police investigated, but they concluded no police were indicted. Sun's father, Sun Liusong, received a $53,000 settlement from the government and stated "now Zhigang can sleep well in the nether world."
Some of the government's corrective measures were well received by the public. In particular, from this "success", many legal scholars and lawyers became to believe that it is a viable path to gradually solve China's political system under China's current legal framework. One major consequence is the establishment of the Open Constitution Initiative by Xu Zhiyong, Teng Biao etc. The Sun Zhigang incident is widely regarded as the start of China's Rights Defending Movement.
- Nicolas Becquelin, "Enforcing the rural-urban divide: Use of Custody and Repatriation detention triples in 10 years", China Rights Forum, 2002, no. 2.
- "84 Days and Nights in Guangzhou", China.org.cn, 8 July 2003.
- Human Rights Watch - Censorship - China - Sun Zhigang
- Human Rights Watch - Sun Zhigang
- Thomas E Kellogg and Keith Hand, "China crawls slowly towards judicial reform", Asia Times Online, 25 January 2008
- Tong Yi, Kidnapping by Police: Custody & Repatriation", China Rights Forum, 2003, no. 2.
- "China: Beijing’s Migrant Construction Workers Abused", Human Rights Watch, 12 March 2008
- Sophie Beach, "Rise of Rights?", Dangerous Assignments, 2005.
- "Sun Zhigang's brutal killers sentenced", China Daily, 10 June 2003.
- Head nurse in Sun Zhigang case gets 2 years
- Tong Yi, "Kidnapping by Police: The Sun Zhigang Case Exposes 'Custody and Repatriation', Testimony before the Congressional-Executive Commission on China Roundtable, 2 June 2003
- Susan Jakes, "Hostages of the State", TIME, 16 June 2003
- Roland Soong, "Zhong Nanshan Meets Sun Zhigang", EastSouthWestNorth, 27 June 2006
- The Law Library of Congress, "Detention and Repatriation System Abolished", World Law Bulletin, July 2003.
- "Campaigns Around the World: National Organizing: China", An Introduction to Activism on the Internet