| Global Times | 2012-9-9 20:05:04
By Yang Jinghao
The re-education through labor system, which empowers authorities to lock people away for up to three years without judicial procedure, has returned to the fore. A major outcry for its abolishment has sprung up and the entire system now finds itself in trouble.
While more and more "victims" of the system, all confined for varying periods of time, are standing up to sue their local re-education through labor committees, some legal experts have also joined the fray.
Wang Cheng, a Hangzhou-based lawyer, is calling on people from all different walks of life to sign a petition to eradicate the system, which will be sent to the nation's top legislature once 10,000 signatures are collected.
The campaign had more than 7,100 supporters as of Sunday, including legal experts, lawyers, entrepreneurs, migrant workers and even some civil servants, Wang told the Global Times.
"This indicates that the issue has drawn wide attention from the public, and I am optimistic for a potential change," he said.
Started back in the 1950s, the punishing approach of this policy has been under attack for years, due to its expanding scope and "unlawful" proceedings. The controversy reached a boiling point after Tang Hui, 39, the mother of an underage rape victim from Yongzhou, Hunan Province, was sent to a re-education through labor camp in early August for "seriously disturbing social order through repeated petitions."
Tang's daughter was raped in 2006 when she was only 11 and was later forced into prostitution.Tang protested to the local government for alleged injustice in the handling of the case. After an uproar, Tang was released on August 10.
Sign of change
As the fight to get rid of this system down continues, hopes are dawning after news broke of a reform in Jiangsu, Shandong, Gansu and Henan provinces.
The pilot project will see the current controversial system substituted with another. Roughly translated, this new program means "offense rectification through education." It is to be rolled out in Nanjing, Ji'nan, Lanzhou and Zhengzhou, the capitals of the aforementioned four provinces.
Precise details about the new initiative have yet to be unveiled by authorities. The Shandong Provincial Public Security Department told the Global Times that without authorization from the ministry, no "confidential" information could be disclosed.
The seeds for such reform were not recently planted. A new system has been brewing for years. In February 2005, the 10th National People's Congress (NPC) Standing Committee announced that an offense rectification law was listed on the legislative plan of the year.
However, no more progress was seen until March 2010 when the legislature again declared the same plan, before delaying it once more.
"Actually, the government has realized the importance and urgency of the situation and is trying to work out a solution," said Chen Zhonglin, dean of the Law School at Chongqing University.
As a deputy to the 10th and 11th NPCs, Chen has persistently raised proposals about this matter since 2003.
"But due to the widespread application of the system and its long history, some difficulties are unavoidable, such as deciding which department should take charge of it," Chen told the Global Times.
Currently, the public security department holds the power to approve arrests and determine the length of sentences, while the justice department manages the camps themselves.
Wang Gongyi, director of research at the Ministry of Justice, told Caijing magazine that the legislation work was set aside as the public security department objected to transferring its power to the courts, a move which was at the core of the mooted reform.
Hu Xingdou, a professor at the Beijing Institute of Technology with a long interest in the reform of the system, told the Global Times that vested interest holders had blocked reform. They see the system as an effective means of maintaining social stability, and as a source of considerable profit through the labor of detainees.
Together with another 68 scholars, Hu submitted two proposals to the NPC Standing Committee and the State Council in late 2007, listing nine major drawbacks of the system and calling for its immediate abolishment.
When it was initially established in 1957 following the release of a State Council circular, the system mainly targeted counterrevolutionaries and anti-socialists, as well as repeat offenders of minor offenses including theft, fraud and vandalism.
Its reach was later gradually expanded to those involved in prostitution, drug users and petitioners.
There are currently about 60,000 detainees under such camps nationwide, not including around 20,000 drug addicts, Wang Gongyi revealed.
"In essence, the system is merely a method of social control independent of the judicial process, which has been unilaterally used to deprive the citizens of their personal freedom and their rights," said Yu Jianrong, a researcher with the Chinese Academy of Social Sciences.
Peng Hong, from Chongqing, was put into a local camp in October 14, 2009 when his wife was six months pregnant, after he forwarded a picture implicitly showing local officials serving as "umbrellas" for criminal gangs on an Internet forum.
In an interview with the Global Times, Peng stated that he had copied the picture from other online forums and was not the creator of the picture. However, this excuse was rejected by the police and he was not released until November 2011. Peng said that he is now attempting to sue the local re-education through labor committee.
In another case, 25 petitioners from Changsha were arrested after attempting to hold a protest in Tiananmen Square in 2011, including kneeling in front of a Chinese flag and holding up banners. They resorted to this after their houses were forcibly demolished.
Twenty-one of them were arrested and sent to a re-education camp while four others went to prison, reported Caixin.
Just like Peng, some of them are also fighting against the local committee, in a struggle they hope will speed up the process of judicial oversight and improvement.
Illegal and non-transparent
As a means to sentence offenders who are not liable for criminal punishment, criticism toward the system has long focused on its lack of a legal basis and procedure.
The Constitution stipulates that no citizen can be arrested, without approval from procuratorates or courts.
"Confinement under this system doesn't need to go through legal procedures or a trial, which is both illegal and irrational," Ma Huaide, vice president of China University of Political Science and Law, told the Global Times.
Ma added that these practices had also violated the Legislation Law enacted in 2000, which requires that all punishments restricting personal freedoms can only be approved by law.
Currently, the legal basis for the system mainly rests on regulations issued in 1957 and 1979 by the State Council. Ma said these are not proper laws, and that the rule enacted in 1982 was just a regulation constituted by the Ministry of Public Security.
"Maintaining social stability in a way that has no legal basis will only backfire," said Hu, calling the system "the biggest obstacle for China's legal construction."
"If such a system breaches the Constitution and if the laws cannot be rectified, that only implies that the government doesn't trust the power of the law," said Yu.
Since the police wield authority without effective supervision being in place, abuses of power could be unavoidable. For example, according to regulations, people suffering from mental problems, serious illnesses or who cannot do physical labor should not be sent into such camps, but Peng said he had met inmates with mental problems who suffered the worst forms of corporal punishment.
Yu shared a letter allegedly written by a police officer working at a re-education through labor camp on his Weibo on August 12. In it, the officer states that the system is used by authorities to suppress the "rebels."
The anonymous police officer also revealed that his camp reluctantly received an elderly petitioner in a weak physical state in July after pressure from the local government.
Hu Xingdou also questioned where the economic profits from the detainees' labor were going. Peng said each detainee is only paid 8 yuan per month for their work.
Reform or abolishment
While a consensus is growing that improvements have to be made to the system, the debate rages on as whether this should be a radical change to bring about complete abolishment, or whether the system should remain in place with major reforms.
Yu advocates abolishment, saying that apart from the many unjust cases the system has caused, its use has also been largely impaired by current administrative and criminal penalties, both of which include punishments for minor offenders.
He pointed out that conservative reforms would only secure temporary economic interests and social stability.
Some legal experts hold that certain offenses, such as people involved in prostitution or repeatedly violating social order, can be dealt with the offense rectification program, in accordance with due process, with terms ranging from three to six months.
"Abolishment is absolutely easy, but without a legal conception and institutional restrictions, another 're-education through labor' in disguise will arise," said Ma. "An axe can be a murder weapon, but we don't have to destroy all axes. The key is to teach and control those wielding the axes."
Chen stressed that whether the system is totally discarded or not, the alleged pilot program has signaled a measure progress. He echoed Ma as saying that strictly restricting its scope and ensuring a strict adherence to legal process are essential to ensuring that any form of punishment does not illegally deprive people of basic freedoms.
Peng said he hopes the system will be abolished as soon as possible, and says that at least significant reforms should be seen given current tensions.
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