Detention and the Problem of Deprivation of Liberty in China Today

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3 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World Detention and the Problem of Deprivation of Liberty in China Today One of the defining aspects of state power is the right to deprive people of their liberty. Most countries agree this power must be used within a legal framework and proportionately independent of external sociocultural and political circumstances. Chinese legislation covers various ways in which the state can deprive people of their liberty, be it in the context of criminal trials or as administrative punishment. Other extralegal forms of detention have also evolved in the context of stability maintenance and crack downs on crime. Notwithstanding the importance of these issues and intense coverage in the international media, to date there has been insufficient in-depth and cogent academic analysis and debate of the question of the deprivation of liberty in contemporary China. This workshop entitled Detention and the Problem of Deprivation of Liberty in China Today will bring together scholars from Chinese and international academia to address the topic. This two-day workshop will explore the conceptual underpinnings of deprivation of liberty in the People s Republic by looking primarily at laws related to and institutions involved with detention. 1

4 Schedule Wednesday, 13 November Tea Room, Coombs Building 5:45-6:00pm 6:00-7:15pm 7:15pm Welcome and Opening Remarks Presentation by Simon Bronitt Director of the ARC Centre of Excellence in Policing and Security, Griffith University Dinner (speakers and commentators only) Day One Thursday, 14 November Law Link Lecture Theatre, Law Building 8:45-9:00am 9:00-9:15am 9:15-11:00am Registration Welcome Remarks Session One: Prisons and Detention of Juveniles Reforms of Chinese Prisons Speaker: Wang Ping (China University of Politics and Law) Study of Criminal Detention and Correction of Minors in China Speaker: Di Xiaohua (Nanking University) Commentator: Joshua Rosenzweig 11:00-11:20am Morning Tea 2 Detention and the Problem of Deprivation of Liberty in China Today

5 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World 11:20-1:00pm Session Two: Re-education Through Labour Weapons of the Weak Public Opinion and the Tang Hui Case Speaker: Wang Lin (Hainan University) An Option for Reforming China s Re-education Through Labour System: Establishing the Social Defence Treatment System Speaker: Zhang Shaoyan (Chinese Academy of Social Sciences) Commentator: Sarah Biddulph 1:00-2:30pm 2:30-4:00pm Lunch Session Three: Theoretical Perspectives Deprivation of Liberty in Western Discourse Speaker: Flora Sapio (The Chinese University of Hong Kong) Chinese Approaches to Deprivation of Liberty Speakers: Elisa Nesossi (CIW, ANU) and Susan Trevaskes (Griffith University; CIW, ANU) Commentator: Melissa Bull 4:15-6:15pm 6:30pm Canberra Sightseeing Dinner (speakers and commentators only) La Bicicletta 1/15 Edinburgh Avenue, Acton ACT 2601 (Within the Diamant Hotel) Tel:

6 Day Two Friday, 15 November Law Link Lecture Theatre, Law Building 9:00-10:30am Session One: Pre-trial Detention (juliusuo) and Residential Surveillance China s Criminal Detention as a Compulsory Measure in Exigencies: A Comparative Analysis Speaker: Yi Yanyou (Tsinghua University) Residential Surveillance: Evolution of a Janus-faced Measure Speaker: Joshua Rosenzweig (The Chinese University of Hong Kong) Commentator: Nicola Macbean 10:30-10:50am 10:50-12:20pm Morning Tea Session Two: Pre-Trial Detention (kanshousuo) Recent Reforms Towards Rule of Law in China s Pre-trial Detention Centers Speaker: Cheng Lei (Renmin University) The Kanshousuo Resolving a Crisis of Legitimacy Speaker: Nicola Macbean (The Rights Practice) Commentator: Elisa Nesossi 12:20-1:40pm Lunch 4 Detention and the Problem of Deprivation of Liberty in China Today

7 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World 1:40-3:10pm Session Three: Drug Rehabilitation and Detention of the Mentally Ill Deprivation of Liberty in Mental Health Institutions Speaker: Guo Zhiyuan (China University of Politics and Law) Adopting International Practice? The Interaction between Custodial and Non-custodial Drug Rehabilitation in China Speaker: Sarah Biddulph (The University of Melbourne) Commentator: Flora Sapio 3:10-3:25pm Concluding Remarks Free afternoon 6:30pm Dinner (speakers and commentators only) Red Chilli 75 Alinga Street, Canberra City ACT 2601 Tel:

8 SARAH BIDDULPH Speakers Biographical Details Sarah Biddulph is Associate Professor and Reader at The University of Melbourne Law School, specialising in the research and teaching Chinese law. Her academic career builds on extensive experience of Chinese related legal practice obtained whilst working as a lawyer in both Australia and China. Professor Biddulph research focuses on the Chinese legal system with an emphasis on legal policy, law making and enforcement as they affect the administration of justice in China. Her particular areas of research are contemporary Chinese administrative law, criminal procedure, labour, comparative law and the law regulating social and economic rights. She is the author of the book Legal Reform and Administrative Detention Powers in China, published by Cambridge University Press in SIMON BRONITT Simon Bronitt is Director of the ARC Centre of Excellence in Policing and Security (CEPS) at Griffith University in Brisbane. Prior to this appointment as CEPS Director in 2009, he was Professor of Law in the ANU College of Law in Canberra and Associate Director of the Australian Centre for Military Law and Justice, ANU. Between he served as the Director of the National Europe Centre an EU funded Centre in the Research School of Humanities at ANU. Drawing on comparative and interdisciplinary perspectives, he has published widely on criminal justice topics ranging across terrorism law and human rights, covert policing, family violence, and mental health policing. His principal publications include two leading textbooks, Principles of Criminal Law (3rd ed, Thomson Reuters 2010) and Law in Context (4th ed, Federation Press, 2012). 6 Detention and the Problem of Deprivation of Liberty in China Today

9 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World MELISSA BULL Melissa Bull is Associate Director of the ARC Centre of Excellence in Policing and Security (CEPS) at Griffith University in Brisbane. She began her career in 1990, working as a research officer at the Australian Institute of Criminology in Canberra. Since 1996, she has taught in a variety of institutions including the University of New England, the University of Queensland, Queensland University of Technology and more recently, at Griffith University. She takes an interdisciplinary approach to research, focused on contemporary systems of regulation. She has published in the fields of illicit drug control, punishment, crime prevention, community policing, policing diversity, mandatory immigration detention and the regulation of young drivers. She has a strong interest in social and political theory, and in particular, the relationship between theory, policy and practice in the governance of crime. CHENG LEI Cheng Lei is Associate Professor of Law School of Renmin University of China (RUC) and Deputy Director of the Centre for Criminal Procedure and Reform at RUC. He has published widely on comparative criminal justice system and criminal procedure reforms and he has been involved in a number of international research projects and exchanges on criminal justice. Cheng Lei is also Deputy Secretary-general of the China s Criminal Litigation Law Research Association and worked part-time as guest expert at China s Legislation body, NPC on revision on China s Criminal Procedure Law from September 2011 to March DI XIAOHUA Di Xiaohua is Professor of Law at Nanjing University, School of Law and the Director of the Research Centre for Crime Prevention at Nanjing University. He has published extensively on issues related to criminal justice and has undertaken a significant number of provincial 7

10 and ministerial related research projects. His research interests include: criminal justice, criminology, criminal psychology, restorative justice and juvenile justice. He has been awarded a number of teaching awards by Nanjing University and the Jiangsu provincial department for education. GUO ZHIYUAN Guo Zhiyuan is an Associate Professor at the China University of Political Science and Law (CUPL) in Beijing, where she specializes in criminal procedure, evidence, international human rights law and law and society studies. She is also a pioneer in empirical research in China. She is Deputy Director of the Center for Criminal Law and Justice, CUPL and a Non-resident Senior Research Fellow at US-Asia Law Institute, New York University School of Law. Guo was appointed as Guanghua Visiting Scholar at NYU School of Law from and as Sohmen Visiting Scholar at Faculty of Law, Hong Kong University in She has published several books in Chinese and also published extensively on academic journals in both Chinese and English languages. NICOLA MACBEAN Nicola Macbean is the Director of the The Rights Practice, a charity working to advance the respect and protection of human rights in practice. Nicola founded The Rights Practice in 2002 and is the former Director of the Great Britain-China Centre. She was educated at the University of Cambridge, the Chinese University of Hong Kong, Fudan University and London University. She has an LLM in Human Rights and degrees in social anthropology and economics of education. Nicola is former chair of her local panel of Independent Custody Visitors and is a Trustee of BOND, the UK membership body for NGOs working in international development. 8 Detention and the Problem of Deprivation of Liberty in China Today

11 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World ELISA NESOSSI Elisa Nesossi is a Post-doctoral Fellow at the Australian Centre on China in the World (CIW). She graduated from the Department of Oriental Languages and Civilizations in Venice (Italy) and obtained her postgraduate qualifications from the School of Oriental and African Studies (SOAS), University of London. Her research interests include Chinese law and institutions, comparative criminal justice and human rights law. She has experience working for NGOs developing projects on criminal justice and human rights within China. She is the author of the 2012 book China s Pre-Trial Justice. Criminal Justice, human rights and legal reforms in contemporary China. JOSHUA ROSENZWEIG Joshua Rosenzweig (B.A., Swarthmore College; M.A., University of California, Berkeley) is a PhD candidate in Chinese Studies at the Chinese University of Hong Kong, where his current research looks at the interactions between criminal justice reform and public opinion in contemporary China. From 2002 to 2011, he was a researcher for the human rights NGO The Dui Hua Foundation, where he developed the foundation s comprehensive database of information about Chinese political and religious prisoners and authored more than a dozen volumes in its series of occasional publications. FLORA SAPIO Flora Sapio is a Research Assistant Professor and the Associate Director of the Centre for Rights and Justice at the Faculty of Law, The Chinese University of Hong Kong. Her main research interests include Chinese criminal justice and administrative detention. Her book Sovereign Power and the Law in China was published in 2010 by Brill. She has recently been a Visiting Researcher at the Centre for Rights and Justice at the Chinese University of Hong Kong, Research Fellow at 9

12 the Centre for Advanced Studies on Contemporary China (Turin, Italy), Visiting Scholar at the New York University School of Law, and an Assistant Professor at the Julius-Maximilians Universität, Würzburg, Germany. She is among the founding members of the European China Law Studies Association. SUE TREVASKES Sue Trevaskes is an Australian Research Council QEII Research Fellow in the Griffith Asia Institute at Griffith University. She is also currently an Associate Investigator in the ARC Centre of Excellence in Policing and Security (CEPS) and an Adjunct Director of the Centre for China in the World (CIW) at ANU. Her main research interests are in the areas of criminal justice, punishment and courts in China. Her recent books include Courts and Criminal Justice in China (2007), Policing Serious Crime in China (2010) and The Death Penalty in Contemporary China (2012). These studies examine the impact of severe and swift punishment on China s criminal justice system and prospects for reform. She has also published a number of papers on anti-crime campaigns, private security, public security, drug crime, public shaming events, and death penalty reform. As part of her Australian Research Council fellowship, she is currently examining serious drug crime and the death penalty in China. WANG LIN Wang Lin is professor at Hainan University, School of Law. He has a long experience working with Hainan people s procuratorate. He has an extensive academic publication record on issues related to criminal procedure law and criminal justice reforms. He is also a regular contributor to the Southern Weekend (Nanfang Zhoumo) and other Chinese media. His research interests include: judicial systems, criminal procedure law, constitutional and administrative law. 10 Detention and the Problem of Deprivation of Liberty in China Today

13 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World WANG PING Wang Ping is Professor of Law at China University of Politics and Law in Beijing where he is also Vice Director of the Criminal Justice College and Director of the Research Centre on Restorative Justice. He also serves as Vice President of China Prison Society. Between September 2000 and August 2001, he has been visiting scholar at the International Centre for Criminal Law Reforms and Criminal Policy in Canada. His research interests include: criminal law, criminal justice politics and restorative justice. He published extensively on specialized journals and more than thirty monographs on criminal justice, prisons reforms and community correction. YI YANYOU Yi Yanyou is a Professor and the Director of the Evidence Law Research Center at Tsinghua University, School of Law. He has published widely on comparative evidence law and criminal procedure law. His research interests include: criminal procedure law, evidence law and comparative judicial systems. ZHANG SHAOYAN Zhang Shaoyan is professor of law at the Chinese Academy of Social Sciences, Institute of Law. He is a criminologist and one of China s leading experts on prisons and prison reform. He has been a collaborator on domestic and international research projects on reform of re-education through labour, prison reform and the death penalty. He has published numerous articles and monographs on the theory of punishment, prisons and criminal justice reforms. 11

14 Abstracts Day One Session one: Prisons and Detention of Juveniles Reform of Chinese Prisons Wang Ping Nowadays, reform has become the dominant political discourse in China. All government agencies, public institutions and even enterprises must carry out reform; reform must never stop and always keep pace with the times. Hence in today s China, reform is carried out in a thorough, in-depth and continuous manner. So is the reform of the prison and correction system, which has been going on ever since This paper intends to present the three big measures in the reform of China s prison and correction system in the 21st century and the related author s opinions. The three measures discussed in this paper are: adjusting the layout of prisons, reforming the prison system and piloting community correction. Study of Criminal Detention and Correction of Minors in China Di Xiaohua All governments around the world face a common but complex challenge addressing juvenile delinquency, bringing juvenile delinquents back to a healthy path of development, and maintaining social order and safety. China has a long tradition of showing sympathy to the young. Even back in the old days, rulers across history tended to treat young offenders with light punishment. Since the first juvenile court in China was established in 1984, the Chinese system of juvenile justice has undergone significant developments. However, we can argue that our juvenile justice system is a small-adult system, whose essential goal is to penalize, given that it is attached to the adult criminal justice system and, as such, it applies the same laws and regulations. Pre-trial detention and correction of alleged juvenile offenders often results in the deprivation or restriction of their personal liberty. 12 Detention and the Problem of Deprivation of Liberty in China Today

15 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World Notwithstanding the various experiments and reforms that have been carried out in this area of the criminal justices system, today the smalladult system remains fundamentally different from a proper juvenile justice system. That s why the reform in China s juvenile justice system still faces a momentous task: coordinating the inherent demands for revenge and material gains in the system and gradually establishing a future-focused system with Chinese characteristics. In doing so, it aims to educate and save juvenile delinquents, to adapt to the needs of juvenile protection and the historic trends of juvenile justice, and to get rid of the Chinese juvenile justice s plague - never being able to grow up. Session Two: Re-education Through Labour Weapons of the Weak Public Opinion and the Tang Hui Case Wang Lin The Tang Hui case offers a useful perspective on the justice system at the grassroots level since it is a typical case in which public opinion, power and judicial justice interact. In this case, sit-ins, suicides, lies, exaggerations, traffic obstructions, appeal to the media, posting on the internet and other forms of unorthodox ways of claiming one s rights are all used as instruments to promote judicial proceedings. These actions are called weapons of the weak and these methods of rights-claiming are expressed through the idea of abandoning legality to search for legality ; that is to abandon lawful methods to seek [other] lawful rights and interests. The idea that the letter of the law is not as powerful as petitioning and petitioning is not as powerful as [complaining on the] Internet has become an established fact in the mind of many people. This is because when regular avenues of justice such as reporting incidents to authorities, making complaints and appealing decisions, are not recognized externally as having a judicial function, then it is very difficult to promote formal judicial remedies. In this era of we the media [grassroots media] the dissolution of judicial power has become a worldwide phenomenon. But in China, this issue is even more complex. China is still in a process of developing judicial authority 13

16 based on rule of law principles. Nevertheless the right to disseminate information about the judicial system, - originally the total monopoly of officials - is now shared with the media. The traditional ways of establishing judicial authority through mysterious processes and handling unlawful actions to seek for lawful rights through asymmetrical information are no longer appropriate. What the Tang Hui case reveals about China s establishment of the rule of law and judicial reform is this: how a case is initially processed will determine public sentiment. Because it was the initial handling of the case that had caused the crisis, the crisis could only eventually be resolved through fair processing. Crisis management tactics will not direct the public opinion. What drives public opinion is first and foremost whether or not the case is handled fairly. So, on the one hand China needs judicial fairness to drive public faith in the judicial system, and on the other hand, we need transparency of information to satisfy s the people s desire and right to know. An Option for Reforming China s Re-education through Labour System: Establishing the Social Defence Treatment System Zhang Shaoyan The reform of the re-education through labour system and the related issues are extremely complex and sophisticated, covering a wide scope and multiple layers. This article will provide some preliminary ideas about the reform and how to build China s social defence treatment system. Establishing a social defence treatment system in China is a brand new systemic project involving all aspects theories, legislation and judiciary. On the one hand, China has the initial practical experience and theoretical foundation, as well as the facilities and huamn resources for the realization of such crucial project. On the other hand, the system is a structural innovation in social management. Therefore, many problems still need urgent solutions. The priority is to upgrade our concept and select the right direction. I hope that this article will contribute to generate more ideas. 14 Detention and the Problem of Deprivation of Liberty in China Today

17 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World Session Three: Theoretical Perspectives Deprivation of Liberty in Western Discourse Flora Sapio This paper examines Western academic discourse on deprivation of liberty in China. The broader theme of deprivation of freedom first rose to attention in the immediate aftermath of the Opium War, when it was used to justify extraterritorial jurisdiction by the Western powers. Revived in the 1950s, it became a popular yet under-researched topic in Chinese law. Today, the field of Western studies on deprivation of liberty in China are for the most part separated from mainstream criminology and penology. They address a limited set of themes, and do not necessarily contribute to a reform debate that remains largely domestic. These trends are due to the enduring epistemic impact of a narrative born during the Cold War, and to factors specific to the PRC. After explaining how both international and domestic influences have shaped the field, the paper offers some suggestions on how part of this intellectual legacy could be shed. Chinese Approaches to Deprivation of Liberty Elisa Nesossi and Susan Trevaskes This paper examines Chinese scholarly approaches to the topic of deprivation of liberty, considering, in particular, developments that have occurred since the onset of the period of reforms in the 1980s. It assesses how the concepts of detention and imprisonment have been analysed and conceptualised in the last three decades by Chinese academic literature. In order to do that, the paper investigates changes and continuities in the scope, methodology and topics addressed by the literature since 15

18 the early 1980s. Particular emphasis is placed on the changes that have been occurring since the early 1990s with the introduction of the 1994 Prison Law and the emergence of prison studies (jianyu xue), and the related debates on concepts like reform (gaizao), the study of offenders (re-)education (gaizao/jianyu jiaoyu xue) and psychology (xinli xue). In addition, the paper considers the way in which foreign prison systems and foreign concepts human rights, for example have entered the Chinese academic discourse and how have been approached. Overall, this paper offers the first Western scholarly analysis of the Chinese literature on deprivation of liberty in the last three decades. It reveals not only the nuances inherent into the Chinese prison literature but also how different political discourses politics intended as Marxist- Leninist ideology, institutional politics and diplomatic politics interact and shape its contours. Day Two Session One: Pre-trial Detention (juliusuo) and Residential Surveillance China s Criminal Detention as a Compulsory Measure in Exigencies: A Comparative Analysis Yi Yanyou This article offers a comparative analysis of China s criminal detention. It examines the nature of China s criminal detention and compares China s related procedural safeguards with the ones in western countries. In particular, the article considers procedures for approving criminal detention and the role played by investigative authorities, claiming that the emergency nature of such form of detention justifies the lack of judicial involvement in the procedure. However, it is also argued that the prolonged time period up to 30 days for the criminal detention, as prescribed by the Criminal Procedure Law, defies the intent of the Constitution which designs it as provisional measure under exigent circumstances. 16 Detention and the Problem of Deprivation of Liberty in China Today

19 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World The article also discusses exclusionary rules as remedies for violating rules for criminal detention. Indeed, China s Criminal Procedure Law also provides exclusionary rules for illegally obtained evidence, but whether such exclusionary rules are applicable to criminal detention is fairly problematic and depends on the correct understanding of the provision of the Criminal Procedure Law. Residential Surveillance: Evolution of a Janus-faced Measure Joshua Rosenzweig In the course of the effort to both enhance the appeal and standardise the application and enforcement of residential surveillance (jianshi juzhu), the coercive measure has become dissociated from its earliest intentions as an alternative to custodial detention. Numerous factors ranging from the broader patterns of socio-economic change in China to the context in which crime-fighting activity is carried out and evaluated have conditioned the way that residential surveillance has been implemented in practice, and over the years it has developed problematic tendencies that have led many to advocate its abolition. Despite an upsurge of public concern, the 2012 Criminal Procedure Law failed to address fundamental problems associated with the practice of residential surveillance in a designated location and opted to retain residential surveillance in a dual and contradictory form that emphasises its role as an alternative to custodial detention while simultaneously legalising many of the measure s problematic aspects. Failure to properly acknowledge the contradictions inherent in residential surveillance is likely to ensure both that it remains both difficult to apply in its ordinary form and that the enforcement of its exceptional form continues to endanger the core individual rights of criminal suspects subjected to it. 17

20 Session Two: Pre-trial Detention (kanshousuo) Recent Reforms Towards Rule of Law in China s Pre-trial Detention Centres Cheng Lei In China, pre-trial detention centers (kanshousuo) are the only place that detain all pre-sentence detainees and sentenced criminals whose remaining sentence is three months or less. Although the Chinese government has never published the total number of kanshousuo and pre-trial detainees, academics have reasonable estimated that there are about 2,700 kanshousuo across China and around one million pre-trial detainees. During most of the past 60-some years since founding of People s Republic, the public and researchers did not paid great attention to kanshousuo partly because of their highly secret status and the citizens low awareness of rule of law. The year 2009 represented a turning point in discussion, as the Duomaomao Accident and various other cases of unnatural death in several kanshousuo around the country came to public attention. The increased criticism of torture, bad conditions and poor detainees rights led the central authorities to introduce various reforms. Four years later, notwithstanding the important changes, a number of major challenges remain. Crucially, among others, the kanshousuo is still regulated by the internal regulations issued by the Ministry of Public Security in 1990 rather than a proper law. This paper discusses the recent reforms on kanshousuo and explain how kanshousuo differ from pre-trial detention centers or prisons in Western countries. It also provides a brief history of kanshousuo and a detailed account of the recent reforms. The author will conclude by analyzing future reforms and improvements needed to make these places of detention compatible with rule of law standards. 18 Detention and the Problem of Deprivation of Liberty in China Today

21 ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World The Kanshousuo Resolving a Crisis of Legitimacy Nicola Macbean The 2009 death of Li Qiaoming, following head injuries in a Yunnan kanshousuo, came to symbolise the crisis of legitimacy facing China s kanshousuo. What is now known as the hide and seek case appalled the public and became a catalyst for reformers. This paper considers factors which contributed to the crisis, the recommendations of reformers and the contours of the policy response. Examining proposals to monitor the conditions of detention, justify the need for arrest and allow prompt access to lawyers, the paper argues that the policy response from the government can best be understood in terms of restoring legitimacy to the institution of the kanshousuo and finding a new status quo that has public support. While there are reformers within the establishment as well as outside it who share a vision of a modernised institution compliant with international human rights standards, conservative forces do not accept the need for far reaching changes. The focus of the policy response on the prevention of unnatural deaths in custody has quieted public anxieties and resulted in a stronger role for the procuratorate. The lack of public anxiety about the extensive use of pre-trial detention meant that there was no need to make further concessions to reformers. With growing rights awareness and resentment against the police the next crisis may be harder to manage as more voices question the legitimacy of police powers to detain. Session Three: Drug Rehabilitation and Detention of the Mentally Ill Deprivation of Liberty in Mental Health Institutions Guo Zhiyuan In China, there are two situations in which a person with mental illness may be deprived of his/her liberty and treated in mental health facilities. The first involves a violent act where the mentally ill person can be committed to a psychiatric hospital for compulsory treatment. The second involves dangerousness to the safety of others or oneself 19

22 where the patient with mental illness can be hospitalized and medicated against his/her will. This article examines the legislation and practice of compulsory treatment and involuntary hospitalization. In Part I, the author uses the historical development as backdrop and give a brief introduction to the process of relevant legal reforms. In part II, the author focuses on the gain and loss of new legislation on compulsory treatment and also touch upon some practical obstacles confronted in implementing the new law. In Part III, the author analyses the pros and cons of legislation on involuntary hospitalization and make some legislative proposals for further improvement. In Part VI, the author draws conclusions from comparing compulsory treatment and involuntary hospitalization. Adopting International Practice? The Interaction between Custodial and Non-custodial Drug Rehabilitation in China Sarah Biddulph After a trial period, the 2008 Drug Prohibition Law legislated to introduce non-custodial treatment and rehabilitation orders on drug dependent people. The law also consolidated two separate forms of administrative detention whose purpose was the compulsory treatment of drug dependent people into a single detention power, coercive quarantine for drug rehabilitation. The law claims to institute a more humane regime of treatment for drug dependent people. This paper examines the interaction between custodial and non-custodial treatment orders in light of these claims. It explores the circumstances when a non-custodial order may be imposed instead of a custodial treatment order and the relationship between these different types of treatment order in both law and practice. This paper argues that despite attempts to bring Chinese law and practice closer to treatment norms advocated by UNODC and the WHO, custodial treatment orders continue to provide the pivot around which drug rehabilitation orders continue to circle. 20 Detention and the Problem of Deprivation of Liberty in China Today

23 Map ANU COLLEGE OF ASIA & THE PACIFIC Australian Centre on China in the World A: November, Law Link Theatre, Law Building B: 13 November, Tea Room, Coombs Building C: Rydges Lakeside Canberra 21

24 Australian Centre on China in the World ANU College of Asia & the Pacific HC Coombs Building #9 The Australian National University Canberra ACT 0200 Australia T F W ciw.anu.edu.au E ciw@anu.edu.au The Australian Centre on China in the World is an initiative of the Commonwealth Government of Australia and The Australian National University