Friday, July 9, 2010

Professors Yu Jianrong and Jiang Ming’an Spar Over Future of Re-education Through Labor

In separate opinion pieces published in the Beijing News this spring (translation below), well-known legal scholars Jiang Ming’an and Yu Jianrong trade talking points on the failings and functions of China’s system of re-education through labor (RTL; abbreviated in Chinese as laojiao).

Although Jiang, a professor at Peking University Law School, authors the first piece, he is responding to Yu Jianrong’s vocal public calls for abolition of RTL. Jiang begins his April 17 opinion by acknowledging RTL’s failures. He points to two high-profile cases of death in RTL detention: the 2008 “death by cold shower,” in which an RTL prisoner reportedly suffered a brain aneurysm after being forced to shower in extremely cold conditions, and the recent “death of a skeleton” case in which an RTL prisoner allegedly suffered from a serious infection but did not receive treatment and was forced to do hard labor; the 180 cm-tall inmate reportedly weighed 35 kilos at the time of his death (a catalogue of similarly shocking deaths in detention was recently translated by Dui Hua here).

Jiang goes on to argue that despite these failings, the RTL system should not be abolished, because it plays a vital role in managing social problems that cannot be suitably addressed by either the criminal justice system or other administrative sanctions. He divides the RTL system into its form (a “bottle”) and substance (“medicine”), and states that real reform requires changing the substance of RTL (“new medicine”) rather than simply making-over the name (a “new bottle”). Jiang enumerates four substantial reforms: 1) reduce the scope of RTL to exclude groups such as the mentally ill who should be dealt with elsewhere; 2) reform the RTL adjudication process; 3) emphasize rehabilitation instead of labor; and 4) institute a robust appeals process.

Yu Jianrong, chairman of the Social Issues Research Center of the Rural Development Institute at the Chinese Academy of Social Sciences, rebuts Jiang in his own opinion piece published in the Beijing News on May 8. Yu is best known for his work on rural labor issues and social stability. He sees the rising tide of mass incidents in China as a product of China’s failure to implement rule of law, which has diverted popular dissent and its control into broken institutions such as the petitioning system and RTL.

Yu dismisses Jiang’s claim that China criminal and civil law must be buttressed by RTL to maintain social stability. More importantly, Yu argues that RTL is fundamentally incompatible with a civil society governed by law and that no amount of reform can address this structural deficiency, and asserts that RTL should simply be abolished. Some argue for an incremental approach, but, Yu writes, “The result of excessive pragmatism is maintaining short-term administrative convenience and social ‘stability’ but damaging fundamental values such as ‘rule of law’ and ‘justice.’”


Re-education Through Labor: Abolition or Reform and Reconstruction?
Jiang Ming’an
Beijing News, April 17, 2010

     Recently, the media has reported on a number of unnatural deaths that have occurred in reeducation-through-labor [RTL] facilities, such as the suspicious “death by cold shower” at the Kaifeng RTL facility in Henan and the detainee “death of a skeleton” at an RTL facility in Tangshan, Hebei.

RTL System Should Not Be Completely Abolished
     Prof. Yu Jianrong advocates abolishing the RTL system as soon as possible; otherwise, it could produce serious political consequences in the future. But I do not agree: the RTL system should not be completely abolished, but rather reformed and reconstructed.
     The reason that the current RTL system cannot be completely abolished is that the system manages social problems, and it’s unlikely that [these problems] will naturally disappear because the RTL system is abolished. In real society, there will always be some people whose behavior severely undermines social order and threatens social safety and peace (for example, pickpocketing, fraud, rumor-mongering, harassment of women, etc.), but are of a nature that does not yet constitute a crime, meaning that the Criminal Law cannot be applied. Moreover, public order administrative punishments are not enough to correct the conduct and uphold normal production and the standard of living for members of society at large.
     For these reasons, we need to design a system between criminal punishment and public order administrative punishment. This type of system [should be] of a nature that is punitive as well as educational and [provides] treatment (teaching and nurturing). Yu Jianrong thinks that after the RTL system is abolished the social problems that are managed by the RTL system can be handled through criminal punishments (public surveillance and penal servitude) and the public order administrative punishment system. However, the social problems managed through the RTL system are of different nature from those handled through criminal punishments or public order administrative punishment. Different social problems require different tools and means of bringing them under control; seeing things in black and white terms is to oversimplify complex social problems.

The “Medicine” Is More Important Than the “Bottle”
     If the current RTL system requires reform and restructuring, then what type of reform and restructuring?
     There are four approaches that may be chosen: First, new medicine in a new bottle; second, new medicine in an old bottle; third, old medicine in a new bottle; fourth, old medicine in an old bottle, but change the pharmacist.
     This so-called “bottle” refers to the name of the system—for example, [whether to] continue calling the system “reeducation through labor” or call it “unlawful conduct corrections,” or “illegal conduct re-educational corrections”—and adjusting the system’s legislative form—that is, administrative regulations or law. This so-called “medicine” refers to content of the system set out by the corresponding legislation, primarily these four things: first, the target of RTL/corrections; second, the procedure for adjudicating RTL/corrections; third, the method of RTL/corrections; fourth, the avenues of relief available to targets of RTL/corrections.
     So, “new medicine in a new bottle” is both changing the current system’s name and reforming its content. “New medicine in an old bottle” is not changing the current system’s name—still calling it “re-education through labor”—but reforming its content. “Old medicine in a new bottle” is just changing the current system’s name—for example, to “unlawful conduct correctional system”—without changing its content. And “old medicine in an old bottle, but changing the pharmacist” is not changing the system’s name or content, but changing [its legal basis to] a law promulgated by the National People’s Congress.
     Comparing the bottle and the medicine, the medicine is more important. Comparing the name and content of RTL, the content is more important. The main reason for reforming and reconstructing RTL is not that the name is not good or that the National People’s Congress did not set the legal basis establishing this system; rather, it is that this system violates standard legal procedure. So, changing the “medicine” is the most important, most key task in reforming and reconstructing RTL.

How Should the “Medicine” Be Changed?

     First, reduce the scope of the target of RTL/corrections. RTL/corrections should be limited to people who violate public order despite repeated efforts at education, but who cannot be criminally punished. So, from among the current targets of RTL and corrections, [we] ought to remove first-time offenders, those who have “long resisted labor, undermined labor discipline, willfully caused trouble, disturbed [public] order or obstructed public business,” prostitutes and their patrons, and mentally ill people who threaten public safety. These individuals should be managed through other systems, and the law should not entrust RTL/corrections with the function of managing these types of social problems. One type of system cannot be used to resolve dissimilar problems.
     Second, reconstruct the process for adjudicating RTL/corrections. Although RTL/ corrections have an educational character, they also have a punitive character. As such, in deciding to carry out these actions on a particular person, proper legal procedures should be followed, [including] a statement of the matter, hearing of the defense, separation of [legal] functions (investigation, prosecution, and adjudication), and public, impartial proceedings. A more independent adjudication mechanism should be established and a system of hearings implemented. In principle, hearings should be open and allow for the targeted individual to challenge [the findings of] the investigating and prosecuting bodies and the prosecution. If the adjudicating body finds the defense argument raised by the targeted individual during the hearing to be reasonable, it ought to be accepted.
     Third, reform the method of RTL/corrections. RTL/corrections requires labor, but requires education even more. Through all types of education, the targeted person should be rehabilitated, causing a change in thinking and action. The decision about the location of corrections, whether through community corrections or a specialized RTL facility, should be based on the nature of the targeted person’s unlawful behavior and the degree of danger to society. The period of RTL/corrections may be implemented in correspondence to the nature of the unlawful behavior of the targeted person and the degree of threat to society.
     Fourth, improve the avenues of relief available to the targets of RTL/corrections. The law ought to provide for relief for the targets of RTL/corrections at two stages: First is at the adjudication stage: if the target does not accept the adjudication, he or she may petition for review or file an appeal. The second stage is during the implementation of RTL/corrections. If the target is not satisfied with the approaches, methods, or punishments imposed by the RTL/corrections institution, he or she should also be able to petition for review or file an appeal.


Why I Support Abolishing the Re-education-Through-Labor System
By Yu Jianrong
Beijing News, May 8, 2010

     Recently, Beijing University Law School Prof. Jiang Ming’an published an essay on the issue of re-education through labor [RTL], “Re-education Through Labor: Abolition or Reform and Reconstruction?” [His essay] suggests that the RTL system should be reformed and reconstructed, rather than completely abolished. The reasoning is that the social problems that RTL handles objectively exist, and eliminating RTL would leave society with a management vacuum. The reform should be “new medicine in an old bottle.” Changing the meaning of the content [of RTL] is more important than changing the name, because the problem with RTL is that it [lacks a basis in] laws promulgated by the National People’s Congress and that it violates standard legal procedures, not that the name [RTL] is not good. “New medicine” includes reducing the scope of the targets of RTL/corrections, reconstructing the process of adjudicating RTL/corrections, reforming the method of RTL/corrections, and improving the avenues of relief available to targets of RTL/ corrections.  
     As for the first problem that Prof. Jiang is concerned with, that is how to handle social problems previously managed through RTL, I feel we can make use of criminal punishments and administrative penalties to resolve them. China’s system of criminal punishments already includes light punishments such as public surveillance and penal servitude. And the “Public Order Punishment Law” punishes minor unlawful behavior, and can be reasonably used or revised appropriately such that it is not necessary to retain the RTL system. Are variations in the nature of social problems really that large? Are such complicated distinctions as criminal violations, RTL, and administrative sanctions required? The United States doesn’t have the notions of “criminal” and “unlawful” that we do, and yet it does not have these systemic problems with social administration.
     I do not oppose establishing a supplementary educational correctional system, assuming it does not use the limitation of people’s personal liberties as its purpose or method, but instead helps people break unlawful criminal habits and readapt to normal life through legal education, psychological guidance, job placement, and concern for individual lives carried out by civil administration departments, social workers, or community [organizations]. Of course, filling gaps left from the abolition of RTL is a problem that involves many specialized disciplines such as social administration, criminal punishment, or social work, and may require borrowing from the experience of other countries, so there is space and a need for experts from many fields to discuss [the issue] further.
     This, however, is not a reason to reform the RTL system instead of abolishing it, or “putting new medicine in an old bottle.” I still maintain that from the vantage point of creating a system for a modern nation, we ought to abolish the RTL system as soon as possible. My reasons are as follows: 
     First, it is not the case that names completely lack meaning. Retaining the old name “re-education through labor” does not have a positive effect, but instead has a negative influence. Confucius said: “If the name is not correct, language is not in accordance with the truth of things” and “What is necessary is to rectify names.” In the decades since the RTL system was implemented—because it has extralegally deprived people of their liberty, because in various historical periods it has been used to strike at various singled-out groups, because in recent years officials in some places have repeatedly used it to harm members of the public, because of the “death by cold shower” and “death of a skeleton” at RTL facilities—it can be said that it is a name that lives in infamy. The words “re-education through labor” already have a specific connotation beyond their literal meaning. As long as it has been decided to change to new “medicine,” what need can there be for an old “bottle”?
     Moreover, not only does Prof. Jiang’s “new medicine” not resolve the problem of the original legitimacy [of RTL]—it also does not change the substance of the RTL system. First, its punitive nature is not changed. Second, the RTL facility remains a form of concentrated corrections, which deprives people of their personal liberty. Third, it does not explicitly modify the body that has jurisdiction over RTL, leaving it under administrative authority (specifically, being implemented by the public security bureau) rather than judicial authority. Despite specifically applying many types of restrictions and improving procedures and [avenues] of relief, if these three points are not changed, the “essence” of the RTL system will continue as before, and the problems for which the RTL system is now denounced cannot be resolved. More realistically, in the present environment, there still exists a danger of the RTL system being abused or exploited.
     Furthermore, the RTL system has already seen its day. RTL was born in the 1950s. From its establishment until before the “cultural revolution,” RTL was “a tool of political struggle,” a way to prevent a floating population [from forming], and a means of molding the “new socialist man.” After [China’s] reform and opening in 1978, it transformed into a “method of social management.” But its fundamental nature has not changed. It is still a method of social control outside of judicial procedure, used unilaterally by administrative powers, and highly efficient at depriving citizens of their personal liberty. In the formative years of [the People’s Republic of China], the re-education-through-labor system was useful for bringing society under control, but now it is already out of date and must “advance with the times.”
     Finally, legitimacy is the foundation of a country’s existence and development, and a “proper” legal system and the approval of the public are both fundamentals of a country’s legitimacy. If the RTL system—this type of system of deprivation of personal liberty outside the judicial process—cannot be abolished, it shows that citizens’ liberties and rights are not being completely respected. The existence of the RTL system already gives rise to widespread dissatisfaction among the public. This cannot continue.
     Based on this recognition, I advocate abolishing the re-education-through-labor system in a single step and both firmly oppose “new medicine in an old bottle” and disagree with “old medicine in a new bottle.” When the unsuitable realities of the old system are transformed, “baby steps” or “tinkering” often become a force of habit in which choices can be avoided—because it is “safer” to “cross the river by feeling the stones,” whereas abolition in a single step seems risky.
     The result of excessive pragmatism is maintaining short-term administrative convenience and social “stability” but damaging fundamental values such as “rule of law” and “justice.” Of course, I’m not saying that abolishing RTL will be without “labor pains,” but nothing in the world is perfect. The crux is in choosing the bottom line, holding fast to convictions that should be upheld, and bearing costs that must be borne while not missing the most opportune moment for transformation because we underestimated society’s flexibility and ability to endure.