Tuesday, July 9, 2013

Limits of Public Outrage: RTL and Custody and Education

Women assemble ball point pens at the Zhejiang Nantong Custody and Education Center, March 10, 2011.
Photo credit: Zhou Quan

The system of reeducation through labor (RTL) has persisted since the 1950s despite its increasingly evident inconsistencies with domestic legislation, constitutional rights guarantees, and international human rights law. Yet over the past year, consensus on the need to reform RTL has swiftly coalesced. This is due in large part to widespread expressions of sympathy and outrage by the Chinese public over several cases involving individuals sent to RTL for criticizing government policies or alleging wrongdoing by government agents.

But what are the limits to public sentiment as a driver of reform? Is public intolerance of RTL limited to sympathetic individuals like Tang Hui or Ren Jianyu, or does it expand to encompass the hundreds of thousands of people who, without due judicial process, lose their liberty for months and years in RTL and other institutions for things like drug use, petty theft, and sex work?

Guangzhou’s Southern Metropolis Daily raises this question in a recent editorial (translated below) that shines a light on measures like “custody and education” (shourong jiaoyu 收容教育), which targets sex workers and their patrons, and “custody and rehabilitation” (shouyang jiaoyang 收容教养), which targets juvenile delinquents. The editorial argues that these measures suffer from the same concentration of police discretion and lack of due process rights that have been identified for RTL, but suggests that the purpose of these measures—to target individuals who engage in socially undesirable and even illegal activity—has kept them from garnering widespread public support for reform.

Public sympathy can exert an important force in promoting legal reform, but where deprivation of freedom is concerned, all individuals—no matter how sympathetic—should be entitled to the same basic procedural rights. Constitutional review of RTL could establish generalized principles about the exercise of administrative power with respect to personal freedom, and conceivably invalidate other practices. But if structural changes are made only to RTL while other measures like custody and education are left intact, any claims about major strides toward rule-of-law development will have to be qualified.

In the Name of Rule of Law, Sort out “Quasi-RTL Measures” as One Package

Southern Metropolis Daily
June 29, 2013

According to reports, police sent 28-year-old Cui X to two years of custody and education for engaging in prostitution in a hair salon in Chancheng District, Foshan, Guangdong Province. Recently, after receiving the decision, Cui’s family felt that the punishment by police was too heavy and applied to the Legal Affairs Bureau of the Chancheng District [People’s Government] for administrative reconsideration. The police maintain that their decision was made in accordance with law and that “custody and education has always been used.”

Compared to the illustrious reputation of reeducation through labor (RTL), custody and education remains relatively unknown to the public; other similar [measures] include custody and rehabilitation. The targets for both custody and education and custody and rehabilitation are relatively unitary. The former, which originates from the State Council’s 1993 Measures for the Custody and Education of Prostitutes and Clients of Prostitutes, is an “administrative compulsory measure” targeting prostitutes and their clients. Its aim is for these groups of people to be “centralized for legal and moral education, organized to participate in productive labor, and screened and treated for sexually transmitted diseases.” Terms of custody and education range from six months to two years. Similarly, custody and rehabilitation is a means of administrative punishment of between one and three years for “juveniles under the age of 16 who cannot be given criminal punishment.”

In reality, the main substance of these three types of punishments is the deprivation of citizens’ freedom of person. Even though custody and education is defined as an “administrative compulsory measure,” from the length of its term one can see that this measure does not have the immediacy and temporary nature of administrative compulsory measures (such as sequestration, impounding, or freezing [an account]) and displays more characteristics of an administrative punishment. For these three punishments, including custody and education, the most evident characteristic is the prison-like custody and management through which citizens are deprived of their personal freedom. The next [most obvious characteristic] is the procedure whereby decisions are made, insofar as each measure actually leaves primary responsibility to the public security organs and does not involve any procedures for check and balance by the procuratorate or courts. It is also difficult for the procuratorates or courts to exercise any systematic oversight. In fact, the ease with which citizens’ freedom can be restricted for several years without sentencing by a court puts [these measures] within the realm of discretion by administrative power and makes them a systematic violation of the spirit of the rule of law.

Article 7 of the Measures for the Custody and Education of Prostitutes and Clients of Prostitutes states that, aside from the punishments provided for in Article 66 of the Public Security Administration Penalty Law, persons who engage in prostitution or who consort with prostitutes but who do not [meet the criteria for] RTL may be sent for custody and education by the public security organ. Here, custody and education is treated as a transitional measure between public security administration punishments and RTL. But to take the same illegal behavior that under the Public Security Administration Penalty Law has been punished with less than five days or between 10 and 15 days of detention along with corresponding fines and then, under other regulations, issue a punishment of custody and education or even RTL is a clear violation of the administrative punishment principle prohibiting “double jeopardy.” Furthermore, custody and education can punish a citizen by depriving his or her freedom for as long as two years.

The same legal principles and statutes raised during discussion of reform of the RTL system must also be used now to examine the legality of custody and education and custody and rehabilitation. Article 37 of the current Constitution gives citizens a sacred right whereby “freedom of the person … is inviolable” and [states that] citizens shall not be deprived of this freedom except pursuant to statute and legal process. Moreover, Article 8 of the Legislation Law states that “mandatory measures and penalties involving deprivation of citizens of their political rights or restriction of the freedom of their person” are absolute reservations explicitly requiring [that they] “shall only be governed by law.” Article 10 of the Administrative Penalty Law grants the power to enact nearly any form of punishment through administrative rules and regulations but includes a reservation regarding “restricting freedom of the person.” Citizens’ freedom of person, which the Constitution declares to be the most fundamental right to be protected, inevitably receives the highest level of legal recognition and its desecration must not be tolerated.

Seen in this light, even though they have a certain historical rationality, in a situation where the ruling party has many times professed its commitment to the gradual improvement of law and rule of law principles, it is truly impossible to continue implementing various quasi-RTL measures including custody and education; [these measures] must be comprehensively reviewed and reformed according to rule of law. The issue of RTL reform arose because of a number of cases involving citizens being punished for expression, but the issue is not only [connected to] the specific nature of those cases but also in the way that [RTL] seriously violates the spirit of the rule of law. Although the persons targeted by custody and education and custody and rehabilitation may not have the most reputable images and their acts may require punishment, the manner and procedure in which they are punished must conform to the principles of rule of law.

The situation is already changing and reform of RTL is imminent. As this system evolves, the measures of custody and education and custody and rehabilitation appear increasingly incompatible with the spirit of the rule of law. There is no reason to focus discussion only on questions of reforming RTL, while ignoring the existence of other similar measures and allowing them to continue to be used. All provisions that violate and run counter to the rule of law should undergo a comprehensive review with an eye towards rule of law and be dealt with together as a single package. In order to build a rule-of-law country, we must face this problem head-on.