Balkinization: Re-education through labor: a quick way to bypass China's courts

Re-education through labor: a quick way to bypass China's courts

Lauren Hilgers

Last week, a peasant turned activist, Liu Jie, was sentenced to 18 months of re-education through labor after distributing a petition in favor of democratic reform. Too little to send her to court and too much to go unpunished, the petition landed Liu Jie in an area of China’s criminal procedure that lies mostly outside of the courts’ jurisdiction.

Laodong jiaoyang, or re-education through labor (RTL), allows the police to arrest and detain someone who has not been formally convicted of a crime. As the strength of China’s judiciary grows, RTL and other so-called "administrative punishments" are falling under heavy attack from reformers and members of the judiciary itself. Their continuing existence, however, is a reminder of how far the system has to go, particularly when it comes to criminal law.

The system of bypassing the courts was first introduced in 1957 in the Regulations on Penalties for Public Security as a way to easily punish dissidents and to integrate the disenfranchised into the workforce—allowing police to sentence petty criminals themselves. It was maintained for a few years and then mostly abandoned during the Cultural Revolution. In 1979, however, RTL was resurrected in a push to diminish petty crime and has been going strong ever since. 310 re-education-through-labor facilities are reportedly operating in the country today, and the system is said to have processed around three million people since its creation.

Under provisional measures published in 1982 concerning re-education through labor, an offender may be sent to one of China’s re-education-through-labor facilities for one to three years, with a possible one-year extension. RTL commissions, established at provincial and municipal levels and dominated by public security officers, are given the task of sentencing in such cases. Organs within public security bureaus are also authorized to approve sentencing on behalf of the RTL committees.

Seven different circumstances warrant the punishment, including instances in which a person is considered a ‘counterrevolutionary’ and has committed a minor crime, when a person disrupts the operation of his or her work unit or refuses to work, when a person incites others to commit crimes and in situations where a person has acted unlawfully but unlawfully enough to warrant criminal punishment. In a New York Times story from 2001, one resident of the RTL facility laments stealing one belt instead of 10. If he had stolen ten, he might have ended up in court.

In theory, people do have the right to apply for judicial review of their case in accordance with the Law of Administrative Litigation. In some rare cases, RTL sentences have been successfully overturned in court. In 2006, a Christian activist in Henan Province challenged and overturned a sentence of one-year re-education through labor. In an earlier case involving a Shanxi factory worker named Ren Jianguo, the courts overturned the sentence on the grounds that it was not strongly rooted in the RTL regulations.

China’s Ministry of Public Security is the strongest advocate of the RTL system and it’s the ministry that has the most to lose by its restructuring. Administrative punishments, which are not limited to re-education through labor, increase the tools at the Ministry of Public Security’s disposal, allowing them to target specific offenders and punish them quickly with little fanfare. The ministry argues that the leeway this has given police has helped reduce crime and maintain social stability, and that the system helps reform those who are on the verge of committing serious crimes.

Re-education through labor is the most well-known and by far the most severe of the administrative measures—more severe, even, than its equivalent court-imposed punishment, reform through labor.

Other administrative measures include detention under the Security Administration Punishment Regulations (SAPR), focusing on small infractions of administrative, civil or economic law, and procedures for the detention and rehabilitation of prostitutes and drug addicts. Another measure enabling the detention and repatriation of migrants was abolished in 2003 after the death of a detainee caused public outcry.

Draft legislation proposing reform to the system has been floating around since 2005 and resurfaced this past May with a China Daily article trumpeting the system’s demise. The article admits, however, to disagreements inside the National People’s Congress and the draft law has since disappeared from media reports. Even if was to be adopted, the proposed changes were modest, changing the name of the facilities from “re-education facilities” to “correctional centers” and shortening incarceration periods. In the current climate, even these changes will be hard to make.

Posted 9:04 PM by Lauren Hilgers [link]