Follow-up to post on contempt for law by lawmakers

I recently blogged about a notice of "residential surveillance at a designated place" (RSDP) that I stated was blatantly illegal because it wasn't for investigation of one of three statutorily designated crimes. I didn't discuss one exception to the restriction--RSDP may also be imposed where the suspect has no fixed residence (无固定住处的)--because I figured (and still believe) that the suspect in this case was not homeless, and since I was tired it didn't seem worth undertaking an extended discussion only to conclude that the exception didn't apply.

I still believe it doesn't apply, but my friend and colleague Joshua Rosenzweig has kindly permitted me to reproduce an email he sent me (part of which quotes from a forthcoming paper of his (earlier version here)) that shows that the issue isn't quite as undeniable and blatant an illegality--at least from the standpoint of the police--as I had originally supposed.

Both the MPS and SPP [have issued] regulations [that] define ‘fixed residence’ as a ‘legal’ (合法) residence (住处 or 居所) in the city or county where the case is being handled. There is, however, no clear standard for what constitutes ‘legality’ of a residence in the context of criminal procedure, leaving the matter open to a degree of interpretation. According to the definition of ‘domicile’ under civil law, legal residence might be defined as the place of household registration. Many Chinese reside in locations different from their places of household registration, however. Chinese civil law provisions also contain the concept of ‘habitual residence,’ which requires a period of continuous residence of one year or more. But there is also the problem of determining whether a rental unit can be considered a ‘fixed’ residence or how to handle individuals who reside in shared rentals or dormitories.61

This probably has something to do with why the case is being handled by police in Tianjin. Since the lawyers are all from Beijing, they don't have 'legal' residences and thus become eligible for this form of detention.

In other words, this is how the police could respond if accused of violating the Article 73, whereas if the language about "no fixed residence" weren't there, they would really have no defense at all, even a spurious one.

Josh of course is not defending any of this; he's just making the point that there is this linguistic escape hatch. It's a pretty spurious defense, though. If there were a neutral arbiter deciding these issues, I would argue back that given the intention of the new Article 73 (to reduce long-standing police abuse of RSDP by strictly limiting its application), it couldn’t possibly be correct that it could still be used on anyone not living in the place specified in their domicile registration, since that’s probably hundreds of millions of people, and neither could it be right that all you need to do to get around it is to send in police from somewhere other than the suspect’s place of usual residence. And of course mere departmental regulations can’t override a statute, anyway.

But this just underscores the real problem: there is no neutral arbiter, and the police are the judge in their own case. Before the revision to the Criminal Procedure Law, the police were already violating the law on residential surveillance by cooking up RSDP, which had no statutory basis. The law allowed residential surveillance, and there is no basis for thinking that the lawmakers really meant to include surveillance not at the suspect's residence. But there was no institution in China willing and able to call them on this and rein them in. Then in 2012 the legislature decided to try again by allowing it, but only in limited circumstances. As before, the police can issue their own interpretive regulations and engage in practices that clearly violate the spirit of the law and the intention of Article 73, but there is no neutral third party capable of making that call. All the legislation in the world is not going to change police practices; what's needed is institutional change. This is not a breathtakingly original insight; I mention is just to put this particular phenomenon in context.