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Dissolving <em>Laojiao</em>

April 1, 2009

Fu Hualing

A leading scholar on the Chinese criminal justice system discusses the implications of the abolition of Reeducation-Through-Labor for its traditional targets, with surprising observations of what it would mean for political and religious offenders.

Introduction

Reform-minded lawmakers, judges, law professors and lawyers have been calling for the abolition of laojiao over the past two decades. Laojiao (劳教), Chinese for Reeducation-Through-Labor (RTL), is a system of administrative detention that enables the police to sentence people who have committed minor offenses to prison-like facilities without trial.

Even among people who support laojiao, there is a consensus that laojiao is unconstitutional and unlawful in China’s domestic law and contravenes international human rights standards: it imposes lengthy incarceration for up to three years for relatively minor offenses; the punishment lacks clear and consistent legislative authorization; laojiao is mostly authorized by administrative, ministerial and local regulations and measures; the decision is determined solely by the police without the scrutiny of an independent tribunal; and the post facto procuratorial and judicial review is ineffective and of little meaning in providing legal remedies.

Laojiao (劳教), Chinese for Reeducation-Through-Labor (RTL), is a system of administrative detention that enables the police to sentence people who have committed minor offenses to prison-like facilities without trial.

Laojiao reform has been on and off the legislative agenda a number of times. It was put on the reform agenda, for the first time, in the middle of the 1990s, when there was a more relaxed legal and political environment: China had successfully hosted a World Women’s Conference in 1995, ending its international isolation after the crackdown on the 1989 democratic movement; the sovereignty of Hong Kong returned to China peacefully in 1997; there was a peaceful transition of political power from Deng Xiaoping to Jiang Zemin in the same year; and most importantly, China signed both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) in 1997 and 1998, respectively, signaling clearly its commitment to international human rights law. Within this context, China embarked on a series of criminal justice reforms, including creating a semi-independent legal profession; replacing counterrevolutionary offenses with offenses endangering state security; and, in general, limiting police power and enlarging the scope of rights of criminal suspects. In the meantime, China put laojiao reform firmly on its legislative agenda, with several proposals by scholars and the Ministry of Justice (MoJ) released for discussion and comments.

A series of incidents occurred toward the end of the 1990s that interrupted the law reform process, however, including NATO’s bombing of a Chinese embassy in Belgrade; the challenge of the China Democracy Party (the first political party in mainland China set up to compete for political power through elections); and the rise of Falun Gong. The perceived threat of Falun Gong in particular was probably the most important factor in derailing laojiao reform in the 1990s. Instead of limiting or abolishing laojiao, the Communist Party of China maximized its use in incarcerating Falun Gong practitioners, making it an indispensable instrument for political control.

After the Falun Gong threat faded in mainland China, laojiao reform was again brought onto the legislative agenda. China’s accession to the WTO in 2001 and the international and domestic pressures to ratify the ICCPR provided further stimulus for laojiao reform. For example, it has become routine for deputies of the National People’s Congress (NPC) to table motions to call upon the government to end the laojiao system. Laojiao reform was re-listed in NPC’s legislative plan in 2005, but the plan was again delayed due to strong opposition of the Ministry of Public Security (MPS), despite a strong show of support by the Legislative Affairs Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, and the MoJ. By 2008, the reformers gathered additional momentum and were able to put laojiao reform back on the active legislative track.

Traditional Functions of Laojiao

Laojiao has applied to four types of cases, with different levels of legality and legitimacy.

Laojiao was created as an instrument of political control in the 1950s to punish “minor counterrevolutionaries” and “rightists,” and to discipline the labor force. The percentage of political offenders in laojiao declined steadily after peaking in the Anti-Rightist Movement during the late 1950s. But laojiao continues to be used, extensively, for political control and persecution. It has been most extensively used against Falun Gong practitioners since the official crackdown in 1999. Once the central government re-activated laojiao for political expedience, local governments immediately followed the Falun Gong example by using laojiao against house church leaders and believers in “cults.” Soon, the use of laojiao was extended to petitioners, labor leaders, terrorists in Xinjiang, separatists in Tibet, and political dissidents in general. Although the number of political and religious offenders in the laojiao system is likely to be small, the political use of laojiao is symbolically significant and has been attracting intensive international attention. This trend will continue unless the central authorities firmly put a stop to the abuse of the laojiao system.

The second type of application involves habitual offenders who committed minor property and public order offenses. The crime rate in China surged in the late 1970s and early 1980s because of social and economic reform. As a response, laojiao, which is an administrative punishment, was used as a supplement to criminal law control, giving the police a free hand in handling the minor offences. The explosive growth of local and national legislation authorizing laojiao since the 1980s has steadily increased the number of offenses eligible for laojiao. At present, laojiao is used for most, if not all, such offenses.

The third type of application involves using laojiao as part of a pre-trial investigation of a case in which the statutory time limit for detention has run out. In this circumstance, a laojiao offense is a holding charge because the offender is expected to be charged with a more serious criminal offense later, once sufficient evidence is gathered. More frequently, laojiao is used as an alternative punishment for people who are suspected of having committed a serious offense that the police are unable to prove. It is important to note that laojiao applies to cases that have been dismissed by the procuracy and court on the grounds of lack of sufficient evidence.

Indeed, in many laojiao institutions there are now more guards than inmates; and laojiao institutions in many places are being merged, restructured or abolished.

The fourth type of application relates to drug abuse. While laojiao played a significant role in handling minor offenses throughout the 1980s, its function in this regard started to decline since the 1990s. By the late 1980s, drug abuse became a serious problem. In response, the Standing Committee of the NPC enacted a Decision on Narcotics Control in 1990 (1990 Decision) that provided a two-step procedure for compulsory drug rehabilitation for all drug abusers: drug abusers apprehended by the police for the first time should be sent to the police-run treatment centers for a short period of time (normally not more than three months), while repeat abusers, defined as those who “re-take drugs” after being treated by the police, would be sent to laojiao for a period between six months and three years. Consequently, the priority of laojiao shifted from punishing minor offenders to rehabilitating drug addicts. By the late 1990s, the majority of the laojiao population consisted of drug addicts who had otherwise committed no offenses. Neither the police-run treatment center nor facilities in laojiao offered meaningful drug rehabilitation programs, if any programs at all.

According to the Deputy Head of the Laojiao Bureau of the MoJ, between 1991 and 2006 the percentage of drug abusers in the overall laojiao population increased by 54 percent. This indicates that other categories of inmates in laojiao institutions decreased substantially during the same period, given the relative stability of the overall laojiao population.1

Law on Narcotics Control

The first move to reform laojiao is the enactment of the Narcotics Control Law (NCL) in 2007.With a stroke of the pen, the legislature “abolished” laojiao as applied to drug addicts under the NCL. In its place, a new institution called the Compulsory Quarantine Drug Treatment Center (CQDTC) was created to carry out drug rehabilitation of repeat drug abusers.

The NCL authorizes the police at the county level or above to make a decision to commit a drug abuser for treatment under certain statutory conditions, subject to an agency reconsideration and/or judicial review. Procedurally, there is little new in the NCL and the police remain the sole authority in making decisions to send drug abusers, first-time or repeated, for treatment, which is the same process used in administrative detention.

There is a consensus that a united administration in drug treatment, in comparison with the previously fragmented two-stage system as prescribed in the 1990 Decision, is more cost-effective. But the law is silent on which Ministry, the MPS or the MoJ, is to run the CQDTCs.

Facing the uncertainty, the MPS and the MoJ both claimed legitimacy and asserted jurisdiction2—the increasing government investment in drug treatment is apparently a strong incentive.3 Local justice bureaus (BoJs) and public security bureaus (PSBs) tried their best to maneuver their positions: the police expanded their existing treatment facilities and showcased their achievement in drug rehabilitation work, with the explicit support of the MPS Anti-Drug Bureau;4 the MoJ’s Laojiao Bureau, on the other hand, went as far as ordering its subordinates in provinces and cities to add a new designation of “compulsory quarantine drug treatment center” to the laojiao institutions.5

Three operation models have been developed to administer the CQDTCs. The first one was the so-called “Anhui model” (developed in Anhui Province) where the police entrusted the BoJ to administer the CQDTCs. A second model was developed in Guizhou, under which the police planned the take-over of the CQDTCs. The third, and also the most popular, model is to maintain the status quo, i.e., the police “treat” drug addicts for three months before sending them to the BoJ’s laojiao centers.

The government has yet to announce a final decision on this jurisdictional matter. But evidence indicates that the police may give up their compulsory drug treatment centers and are prepared to hand them over to the MoJ.

Minor Offenses Rehabilitation Law

With drug addicts now being handled in CQDTCs, there is no doubt that the laojiao population has been substantially reduced in size. Indeed, in many laojiao institutions there are now more guards than inmates; and laojiao institutions in many places are being merged, restructured or abolished. This trend is likely to continue when further reform takes place.

The NPC is now actively considering a bill on the rehabilitation of minor offenders to replace whatever is left of laojiao.6 If approved, the new system would introduce changes to laojiao in both substantive and procedural aspects.

Substantively, the laojiao system would be softened and become more lenient, on paper at least, to embrace a rehabilitative ideology. The term will be shortened from three years to one and a half years, and the function will be education-oriented, targeting young and minor offenders. As such, the new system has no room for political and religious offenders. To reflect the rehabilitative ideology, the laojiao camps will be semi-open, allowing supervised release during weekends and other occasions. The government promises full funding for the camps, and education and training will replace the hard labor.

Procedurally, the decision-making process will be subject to more external, likely judicial, control. There have been different proposals to restructure the laojiao decision-making process. The preferred position of the police is the continuation of their monopoly over laojiao decision-making, while allowing some sort of hearing or judicial review.7 Thus, a hearing, with legal representation, may be held upon request by a suspect before a decision is made.

The consensus in China is to bring the laojiao decision-making under judicial control and make the court the final decision maker.8 Reformers are confident that the police will have to give in and judicial take-over is just a matter of time. But given the reluctance of the police to give in totally, there may be a compromise between police monopoly and judicial control, according to which the police may need to apply for an order in court, ex parte, before a person can be committed to laojiao.

The Future of Laojiao

What does the future hold for laojiao? Let’s look again at the four original functions of laojiao—namely: 1) to handle drug abusers; 2) to punish minor offenses such as property and public order offenses; 3) to hold suspects of more serious criminal offenses during pre-trial investigation; and 4) to exercise political control over petitioners and religious activists.

The reformed drug treatment system has replaced laojiao and has inherited virtually every feature of drug treatment in the old laojiao system. The new regime is characterized more by continuity than change, despite losing its former name. It is the same (ill-trained and poorly paid) officers who are to organize the same group of people to do simple and menial labor in the same institutions.

Given the vague definition of the subversion offense and its wide application, those offenders may well end up receiving harsher treatment after the abolition of laojiao.

The proposed Minor Offenses Rehabilitation Law will target mainly property and public offenses. The law, if enacted, is likely to bring important substantive and procedural change to the treatment of minor offenders in China. If the reform can be implemented faithfully, the new system could be more than fine-tuning. But the subsequent process of softening the existing laojiao regime and implementing a rehabilitative, restorative, and therapeutic system would be long and arduous.

With the abolition of laojiao, use of laojiao by the police as a holding charge would be less likely. The police need to learn to work within the legal framework, which already provides them with ample discretion in criminal investigation. The police have to live with the reality that no one should be punished without sufficient evidence, just as they have to learn and accept that they cannot torture suspects to obtain confessions.

The fate of political, religious, or other sensitive cases is less predictable. The political cases that are facing laojiao cannot simply be legislated away. The target population, religious offenders and petitioners in particular, will continue to exist and the challenges they pose for the government are likely to intensify. Without laojiao, they may be tolerated as they should have been, given the minor nature of their cases. But another possibility is to absorb them into the harsher end of the criminal process. Given the vague definition of the subversion offense and its wide application, those offenders may well end up receiving harsher treatment after the abolition of laojiao.

Notes

1. Lü Juan [吕娟], “Jiedu, women zai xingdong” [戒毒,我们在行动], Law & Life [法律与生活] 18 (2007). But Lü Juan reported a greater increase: that in 1991 there were 6,216 drug addicts in all the laojiao institutions in China, which accounted for 4 percent of the total laojiao population; in 2006, the number of drug addicts in laojiao institutions increased to 130,000, representing 58 percent of the total laojiao population in China in that year. Fu Hualing, “Reeducation through Labor in Historical Perspective,” The China Quarterly 184 (2005), 811. ^

2. It was reported that in 2006 the numbers of pilot CQDTCs established by the MPS and the MoJ were 15 and 8, respectively. China National Narcotics Control Commission [中国国家禁毒委员会], Yearly Report on Drug Control in China 2008 [2008年中国禁毒报告] (Beijing, 2008), http://www.mps.gov.cn/n16/n80209/n80481/n804535/1260622.html [hereafter “Drug Control Report 2008”]. See also Sifa Laojiao [司法劳教], “Boyi zhong de ‘jueli’” [博弈中的“角力”], Tianya Shequ—Jingcha Tiandi [天涯社区―警察天地], January 16, 2009, http://www.tianya.cn/techforum/content/158/549140.shtml [hereafter “Sifa Laojiao”]. ^

3. The expenditure on the establishment of the CQDTCs was paid out of the central government’s budget, and all the expenditures of the CQDTC inmates were generally counted as part of the budget of the relevant local governments. Drug Control Report 2008. ^

4. Sifa Laojiao. ^

5. See, e.g., “Woshi basuo qiangzhi geli jiedusuo jinqi zhengshi guapai” [我市八所强制隔离戒毒所今起正式挂牌], Guangzhou Sifa Wang [广州司法网], June 26, 2008, http://www.gzsfj.gov.cn/zwgk/ljgl/gzdt/t20080626_5463.htm. See also Sifa Laojiao. ^

6. Luo Ke and Wu Ting [罗科及吴婷], “Gong-jian-fa zhiquan da tiaozheng” [公检法职权大调整], Phoenix Weekly [凤凰周刊], February 25, 2009, http://news.ifeng.com/opinion/meiti/ph/200902/0225_1901_1032894.shtml. ^

7. “Yao bu yao feizhi lao-jiao, falü xuezhe kanfa buyi” [要不要废止劳教,法律学者看法不一], Procuratorial Daily [检察日报], December 26, 2007, http://www.chinapeace.org.cn/palt/2007-12/26/content_36587.htm. ^

8. See, e.g., Li Kejie [李克杰], “Laodong jiaoyang sifahua zhide qidai” [劳动教养司法化值得期待], Bureau of Reeducation-through-Labor Administration [司法部劳动教养管理局], http://www.moj.gov.cn/ldjyglj/2008-12/10/content_998889.htm; Wang Jiansheng [王建胜], “Sifa gaige xin dongxiang (san): lun laodong jiaoyang sifahua” [司法改革新动向(三):论劳动教养司法化], Chinalawinfo [北大法律网], http://article.chinalawinfo.com/Article_Detail.asp?ArticleID=45733; Gao Yifei [高一飞], “Zhongyang xin sifa gaige fang’an lingren zhenfen” [中央新司法改革方案令人振奋], China Elections & Governance [中国选举与治理], December 14, 2008, http://www.chinaelections.org/NewsInfo.asp?NewsID=140947. ^