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Explainer on Xinjiang Regulations

Comparative Charts

Following a brief analysis are some simple charts showing the recent changes to two regulations in Xinjiang:

  1. Xinjiang Uighur Autonomous Region Regulation on De-extremification [De-extremification Regs]
  2. Xinjiang Implementing Measures for the P.R.C. Counter-Terrorism Law (2018) [Implementation Measures]

 The  charts show what is new in green (individual words for modifications, borders for entire new clauses) and what has been removed in crossed-out red text.

Brief Analysis:

  • In China, only national level laws can authorize the deprivation of physical liberty. [Legislation Law Article 8(5), and 9]
    • The notorious administrative punishment known as Re-education through Labor was considered extra-legal because it did not have a Law as its basis before it was abolished.
    • The Drug Control Law (禁毒法), authorizing years of extra-judicial administrative detention clearly states the procedures and periods for extrajudicial detention it authorizes. (see E.G. articles 38-50)
    • The passage of the Supervision Law provisions on Retention in Custody,  provides clear basis for that form of detention. (eg articles 43 et seq)
    • Note that a type of administrative punishment for prostitution known as “收容教育” is based only on ‘Measures’ [and a NPCSC decision] without a clear national Law basis, and is contentious for this reason.
  • The two recently revised documents both cite the Counter-terrorism Law [CTL] as the sole Law on which they are based. [article 1 of each]
  • The CTL clearly authorizes both criminal and administrative detention.
    • Criminal detention would be handled under the criminal law.
    • the CTL authorizes between 10-15 days administrative detention, along with a 10,000 fine, for minor illegal conduct that doesn’t rise to the level of a ‘crime. [ Articles 80, 81].
  • The CTL also allows for ‘aid and education’ (帮教) for the most minor of offenders:  [“persons incited, coerced or enticed into participating in terrorist or extremist activities or persons who participated in terrorist or extremist activities but where the circumstances were minor and do not constitute a crime”. (article 29)]
    • In other contexts, ‘aid and education’  is sometimes given to persons in custody, but is NOT usually a type of detention unto itself.
  • The CTL does not mention Education and Transformation
  • The two Xinjiang regulations have been modified to say:
    • ‘education centers’ may be established by county level governments under various names including occupation skills education and training centers or education and transformation establishments.
    • Centers provide language, cultural, ideological, vocational, legal, and psychological education.
    • Aid and assistance may be carried out either inside or outside education centers.
  • The two Xinjiang regs do not specify a period of time for this detention, and avoid even calling it detention or custody, despite identifying goals such as ‘return to society’ that acknowledge it as a form of detention.
    • Instead, they consider aid and assistance a ‘waiver of criminal punishment’ for minor offenders who ‘sincerely repent’ and ‘voluntarily accept aid and education’ (Implementation Measures 39).
    • The idea that these camps are voluntarily is not credible, and it is unlikely that China will rest solely on this justification.

Nothing in the Counter-terrorism Law or the amended Xinjiang Regulations themselves allows for prolonged detention.  This will require further legislation. That said, it is not likely these regulations were put forward without consent from central authorities, and further legal basis may be forthcoming.

A more detailed discussion from before these new regulations were released is available HERE

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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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