Tuesday, December 11, 2012

RTL: Reporters Shed Some Light on Reform Projects

RTL detainees receive bedding donated by prison staff to get through the winter in Xi'an, November 22, 2006. Photo credit: CFP

As suggested in a number of earlier posts, there is a growing consensus about the need to reform or abolish China’s system of “reeducation through labor” (RTL). There are clear signs of high-level commitment to undertake some type of reform to this kind of administrative detention, most recently including an editorial in the Communist Party’s flagship newspaper, People’s Daily.

After a brief lull in coverage in the run-up to the 18th Party Congress, the Chinese press has given renewed attention to cases in which RTL has been used in questionable ways. Significant coverage was devoted recently to the cases of Ren Jianyu, one of several individuals from Chongqing who have challenged the RTL decisions made against them for things they posted online, and Zhao Meifu, a 54-year-old woman sent to RTL in Gansu after a visit last month to Beijing, where her son is a university student.

Although no timetable for dealing with RTL has been made public, officials announced a few months ago the launch of a pilot project in four cities—Jinan, Lanzhou, Nanjing, and Zhengzhou—to study possible reform measures. (Qingdao, not Jinan, was included in the four-city pilot announced late last year.) Anyone hoping to guess at the future shape of RTL reform based on the content of this pilot project will be disappointed, as little to no detail has been revealed so far.

Reporters from the Xiaoxiang Morning News in Changsha recently tried to get more information about the reform agenda in general and the pilot studies in particular. Their findings, albeit sparse, indicate that police authority in reviewing and approving RTL cases is being dismantled to some extent in cities where the 2011 pilots were launched. For example, Qingdao has introduced multi-department RTL management committees (which were included in the original design of the RTL system in the 1950s) to replace the public security committees that have become commonplace. In all four cities, however, newly established committees are still housed in public security offices and headed by public security chiefs. In contrast, in an independent local project in Heilongjiang, “RTL relief procedures have been freed from the confines of the public security [system].”

Despite these cosmetic changes, however, there remains a deafening silence about the incompatibility between national law and the regulations upon which RTL is based.

RTL Reform

Legal Reform “Being Studied,” Pilot Details Still Not Released
Zhou Xifeng, Xiaoxiang Morning News
November 22, 2012

Earlier, four cities in Gansu, Shandong, Jiangsu, and Henan began carrying out pilot projects for the correctional system that is to replace the RTL system, but details of the pilots have yet to be announced.

At the same time, Chongqing, Heilongjiang, and other areas also began to carry out pilot projects and adjustments of their own, but even these “corrections” are based on provisions in relevant [existing] laws.

Xiaoxiang Morning News Reporter Zhou Xifeng, Intern Xia Pei reporting from Beijing

Reform of the RTL System, Slow Legislative Process

Criticism of RTL has been ongoing for many years, with periodic calls for RTL’s abolition or reform.

Back in February 2005, the 10th National People’s Congress (NPC) announced that the (Draft) Law on Correction for Illegal Acts (hereafter, Draft Correction Law) had been placed on that year’s legislative plan, but the legislative process has been moving slowly and this law intended to replace the RTL system has yet to be introduced.

The Draft Correction Law was drafted by the NPC Legislative Affairs Committee, which planned to submit it for a reading in April of [2005].

Compared to the RTL system, the nature, decision process, and implementation methods that were under discussion for the correction system all represented a large-scale adjustment to the RTL system.

For example, in order to address the problems of unilateral control by public security organs over the power to review and approve RTL [decisions] and the lack of effective oversight and checks, the Draft Correction Law gives individuals sanctioned with RTL an added right to defend themselves and includes a provision for persons sanctioned with RTL by public security organs to defend themselves if they do not accept the decision, and make an appeal to the courts to decide whether the RTL decision is valid. At the same time, the accused may also retain a defense lawyer and apply for a hearing.

It is easy to see that in this way the Draft Correction Law judicializes the RTL decision process and gives power over RTL decisions to the courts in hopes that this will effectively prevent the improper phenomenon of arbitrary expansion of the scope of RTL application.

Wang Gongyi participated in the discussions surrounding legislation of the Corrections Law as the then-director of the Ministry of Justice’s Judicial Research Institute. According to him, compared to the RTL system, [punishment] discussed for illegal behavior would be more reasonable and in accord with the law: “Once it is reformed, no corrections center will have iron bars on the windows or doors and humane management will be instituted.”

However, after several initial meetings, some experts who participated in the drafting began to sense opposition. The final result was a shelving of the draft, and the Draft Correction Law never got its scheduled reading in April 2005.

Similar things happened again in 2010. In March of that year, Deputy Chairman of the Legislative Affairs Committee of NPC Standing Committee, Li Fei, stated that drafting work on the Draft Correction Law had been underway for several years and that the legislation had been placed on that year’s legislative work plan: “The pace of progress will quicken, and [the legislation] has also been placed on China’s legal reform agenda.” However, that year, the draft once again failed to realize its planned hearing.

Details of Four-City Pilot Unknown to Outsiders

As the law has yet to be promulgated, the pilot projects proceed first. In November 2011, the Supreme People’s Court and nine other ministry-level bodies jointly issued a Pilot Scheme for Committees of Education and Correction for Illegal Acts, selecting Lanzhou, Gansu; Qingdao, Shandong; Nanjing, Jiangsu; and Zhengzhou, Henan, as the four cities to carry out RTL reform pilot projects.

According to the scheme, the pilot cities would establish leadership small groups [to oversee] work on the pilot scheme for committees of education and correction for illegal acts. These groups would be composed of responsible persons from institutions including the courts, procuratorates, public security, government legislative affairs offices, education bureaus, civil affairs bureaus, and justice bureaus.

However, specifics about the pilot scheme have never been announced, making it difficult for outsiders to know the details. Wang Gongyi says that because the current pilot project focuses on the review and approval phase, the Ministry of Justice has not been involved.

According to information revealed from each of the pilot cities, the offices established under the pilot leadership small groups have [not departed with current practice and have] been set up within the city public security bureaus, with a deputy public security bureau chief serving concurrently as office director.

According to information provided by the relevant departments in Qingdao, the specific work of the pilot project on RTL review and approval shifts the decision power over RTL to the Committee of Correction for Illegal Acts, which is composed of members of different professions from several agencies who discuss each case individually before making a decision.

Nanjing has also been asked to set up a Committee of Correction for Illegal Acts, which is responsible for the specific pilot work.

In Zhengzhou, however, the focus is on the power over review and approval of RTL. This is one reason why Zhengzhou has been dragging its feet about publicizing the details of its RTL reform work.

Local Zhengzhou media report that, on the question of making the RTL management committee independent from the public security authority, there are two views: one would give [authority] to a judicial body, like the courts, while the other would give [authority] to a comprehensive coordinating body, such as the comprehensive social management committees.

But neither the courts nor the comprehensive committee wants to take on this hot potato. The procedure for review and approval of RTL cases is no simpler than that for criminal cases, and the responsibility to be assumed is great.

“Cities piloting RTL reforms should issue concrete plans as soon as possible. Taking the initiative to seek suggestions and opinions from all corners of society before officially putting forward a reform proposal would give full publicity to reform of the RTL system and be a process of seeking common ground despite differences of opinion. This would go a long way toward reducing opposition to the reform proposal during the implementation period and allowing [the proposal] to do its job.” Many individuals in the legal community feel this way.

NPC delegate and lawyer Chi Susheng believes that if public security organs or local governments continue to dominate [the process], this type of pilot project would have no real significance. [She believes] that true reform should judicialize RTL and give decision authority to the courts.

Locally Initiated Reforms Have “Pioneering” Value

Chi Susheng is currently representing many cases in which people sanctioned with RTL for petitioning have applied for reconsideration or filed lawsuits. In the course of handling these cases, she has discovered minor variations in local avenues for relief. “In Heilongjiang, when we applied for reconsideration in the past the case files were all at the public security bureau and the case never left the public security [system]. Now when you apply for reconsideration you have to go before the administrative reconsideration committee of provincial-government-level departments and the case files are no longer controlled by public security but, instead, managed by the government legal affairs office.”

Chi Susheng believes that this means that RTL relief procedures have been freed from the confines of the public security [system], and that, on some level, this also serves a kind of check on the power of public security. However, according to this reporter’s understanding, this type of change is limited to self-initiated pilot projects launched in a few locations. Chi Susheng believes that [such a change] will not alter the current situation in which local government takes the leading role in RTL.

In May of this year, the Chongqing People’s Congress Standing Committee made a series of changes to local regulations. In the Chongqing Municipality Prostitution Prohibition Ordinance, it eliminated provisions allowing prostitutes and their clients to be sent to RTL. This means that Chongqing will no longer use RTL [to punish] prostitutes or those who hire them.

It is worth noting that the basis for this revision was the Legislation Law, which took effect on July 1, 2000, and the Administrative Enforcement Law, which took effect on January 1, 2012. Both of these laws state that any compulsory measures that restrict citizens’ personal freedom must be provided for through legal statute. Article 8 of the Legislation Law states that only [national] law may be enacted in respect of deprivation of the political rights of a citizen or compulsory measures and penalties involving restriction of personal freedom. Articles 9 and 10 of the Administrative Enforcement Law state that only [national] law may be enacted in respect to administrative compulsory measures involving restriction of citizens’ personal freedom.

Some experts believe that the decision by the Chongqing People’s Congress Standing Committee is a normal, legally-grounded act of revising the law. But the problem is that the Administrative Enforcement Law took effect on January 1; why was the legal conflict only corrected in May? Moreover, the Administrative Enforcement Law was passed at the 21st meeting of the 11th NPC Standing Committee on June 30, 2011. There was a six-month transition period between the [law’s] announcement and the date it took effect. This period provided all locales and all government agencies an opportunity to review the new law and, upon discovering legal conflicts, to immediately to enact [new measures] or revise or revoke [existing measures] so that once the Administrative Enforcement Law formally took effect it could be fully applied.

Legal experts believe that the Chongqing People’s Congress Standing Committee acted too slowly in “correcting” local regulations on the basis of the Administrative Enforcement Law. Even so, Chongqing’s effort to resolve the conflicts between the Administrative Enforcement Law and local regulations is still valuable for being a “pioneering” effort. Serving as the direct legal basis of the RTL system, the State Council Decision on the Issue of Reeducation through Labor, State Council Supplementary Regulations on Reeducation through Labor, and the Trial Measures on Reeducation through Labor re-issued by the State Council are also in conflict with the Administrative Enforcement Law, but so far none of these administrative regulations has been “corrected.”

Demand for RTL Reform Increases Daily from All Segments of Society

China’s RTL system originated in the 1950s. In its original design, RTL management committees made up of responsible persons from civil affairs, public security, and labor bureaus [had responsibility for] leading and managing RTL work and reviewing and approving [decisions] to send people to RTL.

But in 2002 the Ministry of Public Security introduced Regulations on the Handling of RTL Cases by Public Security Organs, [according to which] public security organs set up RTL review and approval committees to review and approve RTL cases and to carry out the functions of the RTL management committee. The daily work of these review and approval committees has also [since] been taken up by the legal affairs units of the public security authority at the same administrative level.

“Something that originally was supposed to be done together by civil affairs, public security, and labor [bureaus] is now being done by public security alone,” says Peking University Law School Professor Jiang Ming’an. This situation where “the player is also the referee” has long been the subject of public criticism.

“Although they are convenient for public security organs to use, in actual practice the procedures aren’t clear, which leads to all sorts of problems,” says one legal scholar. The mutation of the RTL system has not only turned it into a stability-maintenance tool for controlling petitioners but also become a hotbed for avoiding the risks involved in handling cases and blending interests.

In recent years, some local governments have announced [a policy] towards petitioners of “warning first, detaining second, and RTL third.” Some places have regulations that state that petitioning in key or sensitive locations in Beijing may be directly considered disrupting public order [which is punishable by RTL under current regulations].

These measures have spurred a backlash of public opinion. NPC delegate and lawyer Chi Susheng believes that it is precisely this kind of mutation of RTL’s function that has caused demands for RTL reform to increase daily from all segments of society.

In its original design, RTL was a measure for compulsory education and reform, as well as a means to arrange employment. The targets of RTL were not criminals and could not be managed as criminals, but were to be “managed as would a doctor treating a patient, a teacher treating a student, or a parent treating a child.”

Beijing lawyer Wang Fu, who spent 13 years as an RTL guard, says that the origin of the RTL system is the superstitious belief that “labor can reform a person.” Those sent to RTL facilities must take on a heavy labor load, and the original purpose of RTL has been distorted.

In the discourse of China’s judicial bodies, the targets of RTL and reform through labor were known collectively as the “two laborers.” Liu Renwen, director of the Criminal Law Research Center at China Academy of Social Science’s Institute of Law, says that the initial design of RTL made it essentially different in nature from reform through labor and the methods of implementation were also substantially different. But, in reality, “in terms of the serious degree to which they deprive people of their personal freedom, there’s currently no difference between RTL and reform through labor. RTL has become a ‘second reform through labor,’ and if a person is sent to RTL ordinary people think he’s been sent to prison.”