Tuesday, March 25, 2014

RTL End Pushes Kids into Prison, Procurator Calls for Reform

Inside Shaanxi Province Juvenile Reformatory, December 2010. Photo credit: Liang Meng, Sunshine Daily

Last year’s decision to eliminate the decades-old measure of reeducation through labor (RTL) required a number of institutional adjustments. It has also left open a number of questions about other forms of detention and how to deal with the kinds of individuals previously held in RTL.

The disappearance of RTL has left one particular group in a kind of institutional limbo: juvenile delinquents who have been sent for “custody and rehabilitation” (shourong jiaoyang) by the government. Like RTL, custody and rehabilitation is a practice that has been around since the 1950s. Aimed at dealing with juveniles who cannot be held criminally responsible for offenses under the law, custody and rehabilitation has also been the subject of scrutiny because of its relatively vague standards and non-judicial decision process. Since 1996, youths sent for custody and rehabilitation were held in RTL facilities, but the closure of those sites has left local authorities to improvise solutions.

As a recent opinion piece in the Procuratorate Daily notes, some of these youths have been transferred to prison facilities. In the piece (translated below), an official at the Supreme People’s Procuratorate warns that housing juvenile delinquents in prisons is a violation of Chinese law, a violation of their human rights, and potentially counterproductive from the perspective of turning teens away from crime. Instead, it is argued, China should make use of other facilities—such as the correctional work-study schools that proponents argue have helped lower China’s juvenile recidivism rate—to take in youths sent for custody and rehabilitation.

Inappropriate to Move Youth to Prison from Custody & Rehabilitation

Chen Mengqi, Prison Procuracy Division, Supreme People’s Procuratorate
Procuratorate Daily, March 19, 2014

On December 28, 2013, the National People’s Congress Standing Committee passed a “Resolution on the Repeal of Regulations Related to Reeducation through Labor,” formally abolishing the RTL system. After the closure of RTL facilities, those persons who had been under RTL were released without having to serve the remainder of their terms. It has been a more difficult question, however, as to how to deal with the juveniles who had been sent to the RTL centers for custody and rehabilitation. Recently, some locations have been sending these youths to serve their custody and rehabilitation terms in juvenile reformatories (guanjiaosuo) or women’s prisons. I believe that this is inappropriate, as it is a violation of the relevant laws and regulations and infringes upon the lawful rights and interests of the juveniles who have been sent for custody and rehabilitation.

Sending youth to prisons for custody and rehabilitation is incompatible with the concept of respect and protection of human rights. According to Article 17 of the Criminal Law, juveniles under the age of 16 may not be subject to criminal penalties. Their parents or guardians should be instructed to discipline them or, when necessary, the government may subject them to custody and rehabilitation.

The subject of where juveniles should be held for custody and rehabilitation has gone through a process of historical development. In general, there has been a trend towards rule of law, mitigated punishment, and humane treatment, demonstrating the general policy toward juvenile [offenders] of education, reform, and rescue. China’s custody and rehabilitation system was created in the 1950s and was formally established with passage of the Criminal Law in 1979. In 1982, under the provisions of the Ministry of Public Security’s Notice on the Scope of Custody in Youth Reformatories, youth offenders serving criminal sentences and youths sent for custody and rehabilitation were both held for custody and rehabilitation in juvenile reformatories. After the Prison Law was promulgated in 1994, the Ministry of Justice issued a Notice on Transfer of Youths Sent for Government Custody and Rehabilitation to RTL Facilities for Custody and Rehabilitation in 1996 in order to implement the Prison Law correctly, and youths sent for custody and rehabilitation were transferred to RTL facilities. In 2013, the RTL system was eliminated, and some locations have transferred youths sent for custody and rehabilitation to prisons, violating the principle of respect and protection of human rights.

Transferring youths subject to custody and rehabilitation to prisons violates the Prison Law. According to Articles 2 and 16 of the Prison Law, prisons are state organs for the enforcement of criminal penalties and offenders who have been sentenced to fixed-term imprisonment, life imprisonment, or death sentences with two-year reprieve are to serve those penalties in prisons. Offenders to be imprisoned must have the “three documents and one form”: namely, copies of the procuratorate’s indictment, court verdict, and enforcement notice, along with the case-closure registration form. Otherwise, they may not be imprisoned. However, under the Criminal Law youths who have been sent for custody and rehabilitation are not subject to criminal penalty and do not bear criminal responsibility. They have a completely different status relative to criminal offenders. Transferring youths subject to custody and rehabilitation to prisons is a clear violation of the Prison Law and infringes on the lawful rights and interests of juveniles.

Sending youths subject to custody and rehabilitation to prisons does not benefit the education and protection of juveniles. All of the youths sent for custody and rehabilitation are juveniles under the age of 16. Some are even under the age of 14. These juveniles are undergoing physical growth, learning, and forming moral character. According to the provisions of the Juvenile Protection Law and the Law for Prevention of Juvenile Crime, the state shall protect the physical and mental health of juveniles, educate juveniles, and promote the moral, intellectual, and physical development of juveniles in order to protect their lawful rights and interests. Prisons are a place for the state to lock up and reform offenders serving criminal sentences. These offenders are vicious and pose a major threat to society. Locking up juveniles bearing no criminal responsibility in the same facility with offenders serving criminal penalties and having the same unit carry out management and education is not only unhelpful for the education, reform, and rescue of youths subject to custody and rehabilitation; it also has the potential to infect them with even worse vices or learn more criminal techniques.

To resolve the problem of where to house youths sent for custody and rehabilitation after the abolition of RTL, I have the following recommendations. First, we should retain the youth correctional centers (jiaoyang guanlisuo). Currently, each province, autonomous region, and direct-administered municipality typically has a youth correctional center in which youths sent for custody and rehabilitation can be held. We can also borrow from the foreign system of youth correctional schools and reform our youth correctional centers so that they are dedicated to the education and correction of youths sent for custody and rehabilitation. Second, we should make more use of work-study schools (gongdu xuexiao). Work-study schools are schools for the education and rescue of middle-school students who have violated the law or committed minor criminal offenses. These schools provide specialized half-work, half-study education for juveniles between the ages of 12 and 17. Currently, there are 67 work-study schools in China. If we send youths sent for custody and rehabilitation to work-study schools in accordance with the nature of work-study schools and the special characteristics of juveniles, it would be beneficial to the education and protection of juveniles.

Monday, March 3, 2014

To End Arbitrary Detention, Bring Officials to Justice

Entrance to the reprimand center at the Luoyang City Police Station in Henan's provincial capital. Photo credit: dzjjw.gov.cn

The formal elimination of reeducation through labor (RTL) in the final days of 2013 was greeted with widespread approval among Chinese citizens. Following a series of high-profile cases involving controversial detentions of petitioners and critics of local officials, the public had grown skeptical of this decades-old system of administrative detention and intolerant of the stability-first mentality of the officials who made use of it.

Given that little has been said so far about what, if any, measures might be put forward to replace RTL, there is an understandable concern among many that local authorities will come up with their own solutions and proliferate practices that are even more problematic—when it comes to due legal process and protection of individual rights—than RTL.

This vigilance about preventing the emergence of new forms of arbitrary detention was behind the outrage that erupted recently after the Beijing News reported on a system of “reprimand centers” that had been set up in Henan Province to deal with petitioners perceived to be disruptive and troublesome. Individuals were reportedly held in these facilities for days or even months at the behest of local officials without any legal process. The practice began in 2008, when provincial authorities instructed the use of “education and reprimand” to deal with people who went to Beijing to petition.

Henan government officials responded swiftly to the exposure of the reprimand centers, ordering that they be shut down. But many are concerned that the matter will end there, without further investigation or assignment of responsibility for those involved in this system of extrajudicial detention. To this end, a group of 31 rights lawyers from around China recently submitted a request for “open government information” regarding the reprimand centers, though there has so far been no response.

In an opinion piece published in the Shenzhen Daily Sunshine, reporter and columnist Liu Xiandong explains that local authorities are liable to continue violating the rights of citizens unless there are more serious consequences for doing so. Reminding readers that abuse of power is another form of corruption, he writes that “rights and dignity are even more precious than taxpayer money or public funds”—suggesting that the high-profile anti-corruption campaign now underway should not ignore the more routine, non-economic abuses of power.

How Could Eliminating Reprimand Centers for Abnormal Petitioning Be Enough?

Liu Xiandong, Daily Sunshine
18 February 2014

Faced with public condemnation over the establishment of reprimand centers for abnormal petitioning throughout Henan, the Henan Politico-Legal Committee and Office of Letters and Visits replied that the use of reprimand centers was not in accord with laws and regulations and sent out an overnight notice announcing the immediate launch of a province-wide inspection and elimination campaign to abolish all reprimand centers for abnormal petitioning. Given that reprimand centers were set up, there must have been violations of the law or even crimes committed. Accountability and punishment ought to be placed on the agenda. Last Saturday, a Daily Sunshine editorial called on officials in Hunan to hold executive agencies accountable for unlawful acts in this affair, but the relevant departments have so far said nothing.

First, let’s discuss how the unauthorized establishment of “reprimand centers for abnormal petitioning” is unlawful. Even though the petitioning system is, in the view of Yu Jianrong and other scholars, a mechanism for rights remedy that acts as a supplement where rule of law is insufficient, in reality the existence of this system gives a shred of hope to people who have already lost hope in the ability of ordinary legal channels to uphold their rights as citizens. In particular, crossing administrative jurisdictions to petition has the potential to strike fear in the hearts of domineering local power-holders. For this reason, some insist on declaring the practice of reporting on problems to higher officials on the outside to be “abnormal petitioning” and try to use brute force to prevent it. Everyone knows the methods used in the past, such as setting up the interception mechanisms known as “black jails” or sending petitioners to psychiatric hospitals. The biggest “innovation” of “reprimand centers for abnormal petitioning” is their attempt to legalize and regularize the dedicated black jails and psychiatric hospitals for petitioners that were denounced in the past.

There is no denying that some petitioners fabricate facts, slander, and disrupt public order in the course of their petitioning. Existing laws and regulations may be used to respond to these sorts of acts. It’s only that when ordinary legal channels are used to regulate petitioners, it is possible that some things that the authorities would rather keep secret might get revealed once the matter goes before a court. This is something that some local governments cannot stand. So, they are compelled to employ methods that “do not accord with law and regulations”—in other words, to use illegal measures to deal with petitioners.

The internal operations of the reprimand centers for abnormal petitioning have not yet been revealed, so we aren’t clear about whether it involved intolerable mistreatment or humiliation. But locking up citizens without due process and depriving them of their fundamental liberty in order to reprimand them is already a gross abuse of power and a violation of rights. When expanding power gets out of control, it inevitably becomes a malignant force that not only violates the lawful rights of citizens but also seriously damages the foundations of a rule of law society.

If the matter of setting up reprimand centers for abnormal petitioning were resolved merely by abolishing them, it would mean leaving open the question of whether unlawful acts by those with power can be effectively reckoned with. If there is nearly zero cost for violating the law, can the public expect that they won’t do something even worse next time? Can they be expected to lead everyone in the construction of a rule of law society? Can one have the extravagant hope that their rule will be fair and just?

These days there is a consensus among officials and the public about the need to fight corruption, but our understanding of corruption cannot be limited to economic acts like embezzlement or accepting bribes. We also need to pay attention to corrupt exercise of power. Power is not the same as money, but when power exceeds the boundaries set by law, it becomes a kind of rights violation and a form of corruption. What is ultimately damaged is the rights and dignity of the public. These rights and dignity are even more precious than taxpayer money or public funds and must be protected from violation and plunder.

It is based on these reasons that construction of a rule of law society must attach importance to restricting public power and must remedy and punish each unlawful act by the authorities.