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Arbitrary & disproportionate punishment

January 21, 2001

Reeducation Through Labor

 

Human rights advocates inside and outside China have long advocated the abolition of administrative detention under Reeducation through Labor (RTL). Recently, RTL was a topic of discussion at a UN-sponsored workshop on the punishment of minor crimes held in Beijing on February 26-27, 2001. Opening this workshop, High Commissioner for Human Rights Mary Robinson called in unequivocal terms for RTL’s abolition. Here Human Rights in China describes how this form of punishment is currently used and the domestic debate over its reform, as well as presenting recommendations for change.

 

 

 


 

 

Reeducation through Labor (RTL) has been in existence for about 45 years. It was first employed during the Chinese Communist Party’s 1955 campaign against counter-revolutionaries. According to an official report, more than 3.5 million people have been subjected to punishment under RTL since that time. Some legal scholars dispute this figure, asserting that the population affected is actually much larger.

In the last decade, use of RTL has increased. While official sources put the number sent to serve RTL terms at approximately 100,000 annually in the period from 1983-1991, by the late 1990s, an annual total of around 200,000 people were being held in RTL. In 1995, the Chinese government ceased publishing annual figures for the number sent to serve RTL terms, but the previous numbers show an increase of more than 50 percent between 1993 and 1995. Although national figures were not published, some local statistics provide a point of comparison which shows that the numbers continued to rise after this. In the 1980s, a peak in numbers sent to RTL was seen around the time of the “Strike Hard” anti-crime campaign. Available evidence suggests that in the late 1990s, the combination of a continuing, intensified Strike Hard campaign and a nationwide “Anti-Yellow” campaign against vices such as pornography, prostitution, drug use and gambling, resulted in record numbers of people being sent to RTL. The upward trend was recently confirmed when Chinese officials revealed that the current number held in RTL has reached 260,000, with 60 percent detained for offenses involving “disturbing public order,” and 40 percent for drug-related offenses.

Two groups of people have been increasingly targeted for punishment in RTL in the last couple of decades: drug users and those engaged in prostitution or patronizing prostitutes. Generally, recidivists are the people most often sent to RTL. However, in some provinces, first-time “offenders” may also be sentenced, especially during campaign periods when set targets may have to be met. It is estimated that in some provinces, those using drugs account for one-third of the total RTL population. In addition, substantial numbers of political and religious dissidents are sent to RTL camps. HRIC has documented over 30 cases of political dissidents imprisoned in this way in the last three years. According to the Falungong group, some 5,000 members have been sentenced to RTL since the ban on the organization was issued in 1999.

According to reports from political detainees and others, conditions in RTL camps are generally abusive, with overcrowded, unsanitary living conditions; inadequate food; endemic violence; and excessive working hours being among the major concerns. Nationwide, there are now close to 300 RTL centers, according to official statistics. RTL detainees are mostly treated just like prisoners in the criminal justice system; although now, unlike in the past, they are generally segregated from inmates convicted of criminal offenses.

 

 

 

 

CURRENT REGULATORY FRAMEWORK

 

Until 1957, RTL was not authorized by any formal national decision. On August 1, 1957, the State Council submitted a Decision on RTL to the National People’s Congress (NPC) Standing Committee for approval. The NPC Standing Committee passed this decision, authorizing the State Council to administer the use of RTL, which in practice meant that implementation was under the Ministry of Public Security. From 1957 to 1979, RTL was employed in a very flexible way, both in terms of the scope of application, as well as the length of sentence. Many people held under RTL were detained for indefinite periods, which in some cases resulted in incarceration of more than 20 years.

On November 29, 1979, the State Council issued a second Decision on RTL, with the approval of the NPC Standing Committee. In this decision, terms for RTL were fixed for the first time at between one and three years, with a possible extension of one year. On January 21, 1982, the Ministry of Public Security issued its first set of comprehensive regulations on RTL, which was approved by the State Council. The Regulations stipulated the procedure for deciding on RTL sentences, detailed the categories of people punishable under RTL and allocated responsibilities for the administration of RTL facilities. Following the enactment of these regulations, in May 1983 the management of RTL facilities was handed over to the Ministry of Justice, while the Ministry of Public Security retained the authority to decide who should be punished under the RTL regulations.

The 1979 State Council Decision called for the establishment of RTL management committees to decide RTL sentences. However, in reality, the public security departments generally make such decisions alone. According to some scholars, the RTL management committees actually meet only rarely to decide on sentences, although if an individual challenges an RTL decision in court, members of the committee must appear to defend the decisions. Since the mid-1980s, the Ministry of Public Security and the Ministry of Justice have issued a number of documents governing matters such as management of RTL facilities and the conditions under which sentences may be reduced or extended. However, these did not change in any appreciable way the legal framework created by the above-mentioned decisions.

 

 

 

 

ABUSES ASSOCIATED WITH RTL

 

As an administrative punishment, RTL has been criticized by international human rights groups as well as legal scholars inside China, particularly for the following reasons.

 

 

 

 

  • No judicial process involved: According to internationally-recognized human rights norms, decisions on the limitation or deprivation of an individual’s liberty must be made by an impartial judicial body. Detainees should have the right to defend themselves with the assistance of legal counsel at any hearings of such a judicial body on their cases. RTL is administered solely by the ministries of Public Security and Justice, without the involvement of the courts. Thus, detainees are effectively deprived of the right to due process of law. Therefore, the U.N. Working Group on Arbitrary Detention found that according to its criteria, RTL should be deemed “inherently arbitrary.”
     
  • Vague and arbitrary scope: The earliest targets of RTL were counterrevolutionaries who had committed only minor offenses. However, the 1957 Decision shifted the measure’s focus to provide for the detention of “lazy people” who were to be “reformed” in order to become self-sufficient. The 1979 Decision did not spell out who should be detained under RTL. Article 10 of the Ministry of Public Security’s 1982 regulations laid out the six categories of people punishable under RTL:
     
    • Those counterrevolutionaries or elements who oppose the CCP or Socialism, where their offenses are minor, but do not merit criminal punishment;
    • Those who commit minor offenses relating to group crimes of murder, robbery, rape and arson, but whose acts do not merit criminal punishment;
    • Those who commit minor offenses such as hooliganism,
      prostitution, theft, or fraud, but whose acts do not merit criminal punishment;
    • Those who gather to fight, disturb social order, or instigate turmoil, but whose acts do not merit criminal punishment;
    • Those who have a job but repeatedly refuse to work, and disrupt labor discipline, complain endlessly, as well as disrupt production order, work order, school and research institute order and the people’s normal life, but whose acts do not merit criminal punishment;
    • Those who instigate others to commit crimes, but whose acts do not merit criminal punishment.

    Evidently, the scope of people who can be held under RTL is extremely unclear and thus the measure can easily be manipulated by the authorities. Some scholars have called RTL a punishment that can be applied to virtually anyone who commits minor infringements of the law. The above list also clearly indicates that RTL may be used to punish those who merely engage in the peaceful exercise of their fundamental rights and freedoms. Indeed, RTL has been routinely used against dissidents over the past four decades.
     

  • Severity of punishment: Punishment under RTL is heavier than that for many crimes in the Criminal Code. According to official statistics, a significant number of criminal sentences imposed involve terms of below two years of fixed term imprisonment. People under RTL are sentenced to an average two-year penalty. Thus, punishment under RTL is disproportionate considering the relatively minor nature of the “offenses” committed by people subjected to it.
     
  • Local regulations on RTL: Since RTL is a convenient, extrajudicial measure, many local governments have incorporated it into local legislation, resulting in the expansion of RTL in local application. For example, a Shanxi Province regulation makes gambling punishable under RTL, while one from Shanghai allows for the punishment in RTL of people who have extra-marital affairs.
     
  • Abusive conditions in RTL facilities: As mentioned above, extensive documentation by human rights organizations from accounts by former detainees demonstrates that torture and ill-treatment in RTL facilities are endemic and often extreme. RTL centers are notorious for their poor sanitation and are often overcrowded. Detainees are also frequently denied visits from family members and access to proper medical care. Physical abuse at the hands of both guards and cell bosses selected by officials to “maintain order” is common. As with other forms of administrative detention, inmates held in RTL may have particular difficulty in making complaints and gaining redress, compensation and rehabilitation when they are victims of torture or ill-treatment.

 

 

DOMESTIC DEBATES OVER RTL

 

For the last two decades, Chinese legal scholars have been engaged in heated debate over the reform and/or abolition of RTL. China’s signing of the International Covenant on Civil and Political Rights (ICCPR) in 1998 heightened such debates, as most scholars agree that RTL is not in conformity with the treaty’s provisions. Currently, there are three main proposals for the future of RTL:

 

 

 

  • Retaining RTL while enacting minor reforms regarding monitoring of its use: Proponents who advocate the retention of RTL consider it to be an important tool for the authorities in cracking down on crime and maintaining social stability. However, they argue that some minor reforms are needed in order to limit official arbitrariness in its application. People holding this opinion are mostly officials in the ministries of Public Security and Justice.
     
  • Retaining RTL while carrying out extensive reform of the system: Recognizing the major shortcomings of RTL, proponents of this view have proposed comprehensive reforms of this measure. The principal reforms they advocate include: passing separate legislation on RTL; authorizing courts to review RTL (although proposals have failed to make clear the nature of the court review envisaged); and shortening terms of RTL to two years or less. Some people supporting such proposals note the strong resistance from the public security and justice departments to abolition of RTL, and have tried to find a compromise that also addresses some of the concerns of its critics.
     
  • Abolishing RTL altogether and incorporating the penalty into the Criminal Code: Some scholars have insisted that RTL accords neither with Chinese law nor international human rights law, and therefore should be abolished. According to such reasoning, offenses defined under RTL regulations which are significant enough to constitute crimes should be addressed under the Criminal Code. Such arguments have gained increasing support from legal scholars in recent years.

 

 

CONFLICTS WITH CHINESE LAW

 

As a number of scholars in China have pointed out, one major reason to “reform” RTL is that it is in clear conflict with at least two recently enacted Chinese laws. For instance, the Administrative Punishment Law (APL, 1996) requires that any coercive measure involving limitation or deprivation of an individual’s personal liberty be authorized by legislation passed by the National People’s Congress (NPC) or its Standing Committee (Article 9). RTL is currently only authorized by a NPC resolution approving measures proposed by the State Council. Thus RTL is strictly speaking in violation of the APL. The Legislation Law (LL, 2000) contains a similar clause which clearly eliminates the possibility of any state organ other than the NPC or its Standing Committee legislating to authorize coercive measures limiting or depriving people of their liberty (Article 8). These two laws require that, to be lawful, RTL must be authorized by “a law,” which according to China’s 1982 Constitution, means legislation passed either by the NPC or its Standing Committee (Articles 62 and 67).

 

 

 

LIKELY RESPONSE TO THIS LEGAL LIMBO

 

If the Chinese government is serious about implementing the APL and the LL and wishes to retain RTL, the measure must be enacted into law. According to legal scholars as well as Chinese officials, the most likely scenario is the creation of separate legislation that would then be approved by the NPC Standing Committee. The new legislation is likely to retain most of the current RTL regulations with more transparency on monitoring of RTL’s application. Local governments would no longer be able to legislate on RTL, unless such authority is specifically granted by a new law.

The Ministry of Public Security has already announced that a law on RTL is under consideration. In the EU-China human rights dialogue at the end of September 2000, RTL was reportedly among the few subjects where the Chinese side was willing to go into some detail, and the passage of a related law was discussed. Further discussions on RTL also occured at a workshop on the punishment of minor crimes which was held in Beijing on February 26-27, 2001. This workshop was the first of several activities in a program of technical cooperation established by a Memorandum of Understanding between the Office of the High Commissioner for Human Rights and the Chinese Ministry of Foreign Affairs in November 2000.

Most recently, the Ministry of Justice indicated that legislation governing RTL would be passed “soon.” According to a statement by Wang Yunsheng, the director of the Ministry’s RTL Bureau, the NPC is presently drafting such a law, in consultation with “relevant departments.” He stated that changes were being considered in the following areas: “the people covered by the system, the approval procedure, the implementation process and the length of the terms.” Wang clearly ruled out abolition of the measure, stating that: For such a populous nation as China, the RTL system, which aims at stopping those on the verge of committing serious crimes, is an effective one for reducing crime... The new law will function as a better guide for the RTL system and contribute to the stability of the rule of law.

 

 

 

 

PRINCIPLED POSITION NEEDED

 

Past experience demonstrates that the conclusions and comments made by international experts, bodies and institutions can have a serious impact on the decisions of the Chinese government. In many cases, China’s legal scholars have successfully persuaded leaders to implement reforms by citing international pressure, including that from UN mechanisms, and international standards as reasons for changing China’s laws and policies. For example, international exchanges just prior to the finalization of draft legislation did have some positive impact in the revisions of the Criminal Procedure Law and the Lawyers’ Law. International pressure also undoubtedly played a significant role in the abolition of administrative detention under Custody and Investigation (shourong shencha, also known as Shelter and Investigation).

Human Rights in China (HRIC) believes that the ongoing debate over RTL has reached a very critical point. Unfortunately the more powerful elements in the bureaucracy appear committed to a cosmetic change which enacts the procedure into law and allows for a formalistic type of judicial review. This would do nothing to address the human rights concerns about RTL.

HRIC has, therefore, been actively lobbying governments and international organizations, including the human rights mechanisms of the United Nations, to stand with the Chinese legal scholars favoring the abolition of RTL and strongly criticize the effort to legitimate this form of arbitrary detention by enacting it into law. We have argued that the recommendation of the UN Committee Against Torture in May 2000 that China abolish all forms of administrative detention should be adopted as the international community’s position on RTL. As Mary Robinson herself said on one of her visits to China in relation to this issue, “Bad law can be a tyranny.”

 

 

 

 

 
HRIC’s Recommendations to the Chinese Government on this issue are as follows:

 

 

 

 

 

 

 

  • Abolish rtl
    Human Rights in China has long argued that RTL should be abolished outright. We do not believe that this is a system that can be “fixed” or “reformed” by adding a formalistic judicial review. For the reasons listed above, RTL is clearly in conflict with international human rights law and has resulted in widespread violations of fundamental rights, and therefore it must be eliminated at the earliest possible date.
     
  • Any minor offenses must be described in law
    To ensure that the law and its enforcement have the proper measure of predictability, proportionality and fairness, any criminal offense should be specifically framed in law. This also gives people proper notice of what constitutes a crime. If certain minor offenses that merit imprisonment are not included in the current Criminal Law, then the answer is to revise the law to include them. Consideration should be given to alternatives to imprisonment, such as fines, community service and training.
     
  • Persons accused of minor crimes have the right to due process
    Before being sentenced to any term in custody, an individual must be charged with a particular offense described in written law, and the authorities must prove that the accused committed the crime in question at a trial which accords the person full rights to due process of law, such as allowing for examination of evidence and presentation of a defense. Persons convicted of an offense should also have the right to appeal to an independent court for review.
     
  • Exercising rights must not be criminalized
    In enacting further criminal-justice related legislation, including any revisions to the Criminal Law regarding minor crimes, no acts solely involving peaceful exercise of fundamental rights and freedoms should be subject to criminal penalties.