I. Introduction

Under the Constitution and Criminal Procedure Law of the People’s Republic of China, the governmental organizations which have the power of approving an “arrest” are the People’s Procuratorate and the People’s Courts, and only the People’s Courts have the power to convict a citizen of a criminal charge. Even though western governments do not consider a prosecution division of a government as a judicial organ, the People’s Procuratorate has been upheld as one as a Chinese legal tradition for more than thirty years. Therefore, we may divide different types of detentions into three categories: (1) those decided or approved by the People’s Procuratorate and the People’s Court – judicial detentions; (2) detentions other than those made by a People’s Procuratorate or a People’s Court – non-judicial detentions, which includes criminal detentions (xingshi juliu) under the Criminal Procedure Law, administrative detentions (xingzheng juliu) under the Security Administration and Punishment Law (SAPL); (3) and other detentions based on initial decisions and approvals by administrative officials other than prosecutors or judges.

Although all non-judicial detentions are decided by administrative organs, they function in different ways. From a functionary point of view, they may be grouped into at least three types. The first group consists of detentions which can be used as tools of criminal investigation and crime control, which includes stop for further questioning provided by the People’s Police Law, criminal detention provided by the Criminal Procedure Law (CPL), and the already abolished shelter for examination. The second group involves work-study schools, which uses compulsory measures to detain and rehabilitate minors. The third group is constituted by rehabilitation through labor, shelter and education, coercive drug rehabilitation, the already abolished shelter and repatriation, and administrative detention under SAPL. These measures are grouped together because they are of similar nature and are not justified clearly.

All three groups of non-judicial detentions are more or less related to constitutionalism. For example, the constitution provides for arrests in criminal procedure, but does not provide for criminal detention. So what is the nature of a criminal detention? Under the constitution, how long should a criminal detention last? As to the work study school, does it violate young people’s right to a fair opportunity for education? All these issues are of great significance, and it is not easy to resolve so many problems in one essay. Therefore, this essay deals with only one of the three groups of detentions. This essay focuses on the third group of non-judicial detentions because the third group is deemed as the most problematic category.

This essay explores the way non-judicial detentions attain legitimacy, revealing the reasons that justify non-judicial detentions, and discussing desirable reforms for these detentions.

Part I gives a brief introduction of Chinese non-judicial detentions which are still in use, including their origins, targets, time limits and process. Part II explores how Chinese Government justifies non-judicial detentions from official documents and relative discourses, and demonstrates how Chinese Communist Party (CCP) and Chinese Government view these measures, how the CCP deals with the relationship between these measures and the Constitution, and how the CCP tried to get legality and legitimacy for non-judicial detentions from their interpretation of these measures. Part III demonstrates what “personal freedom” means in a liberal constitutionalism and shows the problems with the justifications provided by Chinese official documents, and explores why these interpretations provided by Chinese Government may not stand in a modern society. Part IV further clarifies the significance of the ideology behind non-judicial detentions, and exemplifies the dangers if the rule of law is non-existent, together with an analysis of the promulgation of the SAPL. Part V points out that the Chinese Government may alter its position on this issue, and should seek to introduce judicial review for non-judicial detention and to establish a comprehensive rule of law and constitutionalist system. The conclusion provides an overall summary of the issues identified in this article.