Tuesday, October 23, 2012

RTL: Government Preps Reform, Activist Prompts Abolition

China’s reeducation through labor (RTL) system appears to be back on the agenda of the nation’s legal reformers. Following a series of high-profile reversals of controversial RTL decisions, a government spokesman recently told reporters that an overhaul of the administrative detention regime was being pursued on the basis of widespread consensus about the need for reform.
A re-education through labor center in Guizhou Province. Photo: Southcn.com
The problems associated with RTL are numerous and widely reported. Power over examination and review of RTL has become concentrated in the hands of police, who have relied upon its relatively lax procedural requirements and vague definition of targeted offenses to pursue the overarching goal of preserving social order. The flexibility of the measure comes at a serious cost to protecting human rights. Critics argue that RTL evades constitutional prohibitions on unlawful detention, and a strong argument has been made regarding the measure’s illegality under the Legislation Law. The incompatibility of RTL with China’s commitments to provisions in international human rights law that guarantee fair trial and prohibit arbitrary detention pose yet another incentive for reform or abolition of RTL.

In a recent opinion published in Hebei Youth Daily, columnist Sheng Xiang cites many of these problems in calling not just for the reform, but for the abolition of RTL. Sheng’s claim that there are no opportunities to seek legal relief in RTL cases is not entirely accurate (see our new translation of RTL regulations), as has been seen in the recent reversals of RTL decisions mentioned above. But it is true that, compared to the formal judicial process (which at least theoretically allows for opportunities to challenge some decisions and air a full defense during a trial hearing), there are very few chances for the targets of RTL proceedings to challenge decisions made against them.

Sheng also cites Chinese public opinion as being strongly supportive of abolition, but it is somewhat unclear what “abolition” would entail in this case and whether reforms that introduce procedural protections, shorter punishments, and further reduction of the scope of targeted behaviors—all things that reformers have proposed—would change RTL radically enough to satisfy the public’s demands.

Can We Consider Abolishing RTL
Sheng Xiang
Hebei Youth Daily, October 10, 2012

The white paper entitled Judicial Reform in China was recently released. In answering reporters’ questions, the head of the Office of the Central Leading Group for Judicial Reform, Jiang Wei, said that the RTL system has played an important role in maintaining China’s social order. Of course, there are problems with some of the regulations and procedures and research on a reform plan is currently underway.

There have always been two “many’s” as far as RTL was concerned. The first is many fantastic and astonishing stories, with many examples of individuals sent to RTL for “baffling reasons.” The second is many public calls for abolition, with unending calls for abolition of the RTL system emanating from all corners of society each year during the lianghui [National People’s Congress and Chinese People’s Political Consultative Congress] and on National Legal System Day. For the relevant departments to now be able to face the problem of RTL squarely and acknowledge that “research on a reform plan is currently underway” is truly remarkable.

However, would it be possible to comply with public opinion and abolish RTL? Everyone knows that RTL is essentially a kind of institutionalized deprivation or restriction of personal freedom and that, although it is not a criminal punishment, it surpasses criminal punishment—even criminals can be sentenced to suspended sentences, but people “whose actions do not warrant criminal punishment” frequently serve 1–3 years in RTL. This is obviously extremely unfair. Also, since RTL is a form of public order punishment, the public security authority can make the necessary decisions on their own. Therefore, it in fact has become a kind of “lawful private punishment” that lies outside of the system of rule of law, and if people don’t agree with being sent to RTL, they have no opportunities to seek legal relief.

The reason why experts and academics have been calling for abolition of RTL is because it has no legal basis. At most, the Provisional Measures on Reeducation Through Labor are administrative regulations, and even though they have been “provisional” up until today, they have long violated the clear provision in the Constitution that “no citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ” and the provision of the Legislation Law that “only national law may be enacted in respect of matters relating to the deprivation of the political rights of a citizen, or compulsory measures and penalties involving restriction of personal freedom.”

As far as “playing an important role in maintaining China’s social order,” perhaps we cannot totally overlook the special role [RTL] plays during particular periods. But rule of law has made it this far in China, and a society with rule of law simply should not tolerate the existence of “extralegal imprisonment” like RTL.

On the one hand, we increasingly emphasize humanitarian rule of law ideas like “non-indictment for minor offenses,” but on the other hand we frequently restrict the personal liberty of people for more than a year over offenses that simply don’t warrant criminal punishment. This is clearly unjust. It is precisely because of this that under the RTL system we see many similarly unjust tragedies occur but rarely any true capacity to “maintain social order.”