Report. Improving Human Rights in China: Should Re-Education Through Labor Be Abolished?

Transcription

1 Report Improving Human Rights in China: Should Re-Education Through Labor Be Abolished? VERON MEI-YING HUNG The re-education through labor ("RETL") system is a prevalent administrative sanction and a mechanism for punishing "minor crimes" in China. The Chinese government is considering addressing some of its shortcomings. This Report argues that the government should consider all options, especially the abolition of RETL because RETL is a major anomaly in a legal system that is supposed to be ruled by law. The RETL system presents four major problems: it has been abused; it is more severe than some criminal punishments; its legality is questionable; and its implementation is not effectively supervised. I. MINOR CRIMES A. Criminality B. Punishment II. RE-EDUCATION THROUGH LABOR A. Legal Background Associate, Carnegie Endowment for International Peace. An earlier version of this paper entitled Protection of Human Rights in the Context of Punishment of Minor Crimes in China was presented as a testimony at the Roundtable Discussion on Challenges for Criminal Justice in China, organized by the U.S. Congressional Executive Commission on China, July 26, See I am very grateful to Tom Carothers, Senior Associate, Carnegie Endowment for International Peace, Professor Stanley Lubman, Lecturer in Law, School of Law, University of California (Berkeley), and Professor Hualing Fu, Associate Professor, Faculty of Law, University of Hong Kong, for their comments.

2 304 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 B. Legal and Human Rights Problems Extensive Use Severe Punishment Inconsistency with Administrative Punishment Law Lack of Effective Supervision..317 a. Fear b. Limited Access to Lawyers c. Interference III. THE FUTURE OF RETL AND CONCLUDING REMARKS An important, but poorly understood, problem in Chinese human rights is the system of re-education through labor ( RETL ) (laodong jiaoyang or laojiao), a prevalent administrative sanction and a mechanism for punishing minor crimes. Recently, there has been more debate about RETL in China. This Report generally seeks to increase the international community s understanding of the RETL system so that concerned parties may contribute more of their thoughts about the future of the system. In particular, this report argues that efforts to address RETL s shortcomings should fully consider all of the options, especially its abolition. Since its establishment in the 1950 s, RETL has sent about 3.5 million people to labor camps. 1 At present, approximately 300,000 people are being re-educated in nearly 300 camps nationwide. 2 A third of these inmates are drug addicts, prostitutes, or brothel visitors, while another third are perpetrators of minor crimes such as larceny, fraud, or assault. The remainder consists of other types of inmates, 3 1. See Beijing to Introduce Re-Education-Through-Labour Law This Year, ZHONGGUO TONGXUN SHE NEWS AGENCY, BBC SUMMARY OF WORLD BROADCASTS, Feb. 19, 2001, available at LEXIS, News Library, News Group File; China Government Re-Education System on Legal Basis, CHINA DAILY, Nov. 2, See John Leicester, China Gives Reporters Glimpse of Labor Camp Dubbed Living Hell by Critics, ASSOCIATED PRESS, May 23, 2001, available at LEXIS, News Library, News Group File; Minister Says 1.7 Million Held In Prisons, Labour Camps, XINHUA NEWS AGENCY, BBC SUMMARY OF WORLD BROADCASTS, May 22, 2000, available at LEXIS, News Library, News Group File. According to one recent report, China s Ministry of Justice said that the current RETL inmate population was about 260,000. See A Jail by Another Name, THE ECONOMIST (U.S. Edition), Dec. 21, 2002, available at LEXIS, News Library, News Group File. 3. See Chen Xingliang, Zhongguo Laodong Jiaoyang Zhidu Yanjiu: Yi Xingshi Fazhi Wei Shijiao [Research on China s Re-Education Through Labor System: From the Perspective of Rule of Criminal Law], 13 ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL] 689, 694 (2001). According to a recent report, of the 900 odd inmates in a female RETL camp in Beijing, approximately 40% are drug addicts, approximately 10% are prostitutes, and 28% are Falun Gong followers. See A Jail by Another Name, supra note 2.

3 2003] IMPROVING HUMAN RIGHTS IN CHINA 305 including more than a thousand followers of Falun Gong, 4 a spiritual movement that has been banned as a cult by the Chinese government since Human rights groups estimate that ten, or even twenty, thousand Falun Gong followers have been re-educated in these camps. 5 Torture 6 and other maltreatment, such as barring of family visits and censoring of inmates personal correspondence, 7 are alleged to be common practice in these camps. RETL was one of the issues that the Office of the United Nations High Commissioner for Human Rights ( UNHCHR ) targeted when it signed the Memorandum of Understanding on the Development and Implementation of Human Rights Technical Cooperation Programs 8 with China in November This collaboration represents a significant step by the Chinese government towards domestic application of international human rights standards following its signing of the International Covenant on Economic, Social, and Cultural Rights in and of the International 4. China has not disclosed the exact number of Falun Gong followers held in RETL camps; however, it confirmed in Jan. 2001, that at least 470 followers were held at the Masanjia Education-Through-Labour Education Institution in the Liaoning province and the official media reported in August 2001 that [this] camp has also succeeded in re-educating more than 90% of the 1,000 female Falun Gong members housed there. See China Rejects Report of Hunger Strike by Jailed Falungong Members, AGENCE FRANCE PRESSE, Aug. 30, 2001, available at LEXIS, News Library, News Group File; Forty-Seven Former Female Falun Gong Followers Released After Reform, XINHUA NEWS AGENCY, BBC SUMMARY OF WORLD BROADCASTS, Jan. 27, 2001, available at LEXIS, News Library, News Group File. 5. The Hong Kong-based Information Center for Human Rights and Democracy estimated that about ten thousand Falun Gong followers had been sent to these camps since the Falun Gong movement was banned in July See Nearly 500 Falungong Were Held at Just One Labour Camp: China, AGENCE FRANCE PRESSE, Jan. 18, 2001, available at LEXIS, News Library, News Group File. In a report submitted to the United Nations General Assembly, Abdelfattah Amor, the United Nations Special Rapporteur on Human Rights, alleged that the number was more than twenty thousand. See Thalif Deen, Rights: U.N. Asks 16 States to Probe Religious Intolerance, INTER PRESS SERVICE, Oct. 23, 2002, available at LEXIS, News Library, News Group File. 6. See Amnesty International: China Torture in China under the Spotlight at the UN, M2 PRESSWIRE, May 5, 2000, available at Released Chinese Dissident Speaks of Horrors of Labor Camp Life, AGENCE FRANCE PRESSE, Feb. 15, 2002, available at LEXIS, News Library, News Group File. 7. See Fong Tak-Ho, Dissident Threatens Legal Action, HONG KONG STANDARD, July 10, 1997, available at LEXIS, News Library, News Group File. See also Human Rights Watch, Re-Education through Labor in China, at 98/laojiao.htm. 8. Memorandum of Understanding between the United Nations Office of the High Commissioner for Human Rights and the Ministry of Foreign Affairs of the People s Republic of China on the Mutual Agreement to Cooperate in the Development and Implementation of Technical Cooperation Programs, signed on Nov. 29, 2000, by the High Commissioner and the Chinese Vice Foreign Minister. 9. China ratified the International Covenant on Economic, Social, and Cultural Rights in Feb International Covenant on Economic, Social and Cultural Rights, G.A. Res.

4 306 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 Covenant on Civil and Political Rights in In February 2001, the UNHCHR and the Chinese government jointly organized a seminar on the punishment of minor crimes, at which international experts, myself among them, discussed the RETL system with Chinese officials and scholars. Since then, there have been more debates about the future of this mechanism, including a recent roundtable discussion organized by the U.S. Congressional Executive Commission on China. 11 The Chinese government is also considering whether to enact a law to remedy some of the system s shortcomings. The government s recognition of the problem offers an important opportunity for improving human rights in China. This report will first examine minor crimes under Chinese law and how they are punished. It will then focus on RETL by discussing the legal background of RETL and the legal and human rights problems it presents. Lastly, this report will discuss the current debate in China about the future of RETL and my reasons for recommending its abolition. Where appropriate, I will draw on empirical research that I have conducted since This research includes observation of eight administrative trials, and interviews with over 140 judges, law professors, lawyers, administrative officials, and litigants in Guangdong province, Chongqing, Wuhan, and Beijing A (XXI), 21 U.N. GAOR, Supp. No. 16, at 49, U.N. Doc. A/6316 (1966). See China Puts Forth Proposal on Promotion, Protection of Human Rights, XINHUA NEWS AGENCY, Nov. 14, 2001, available at LEXIS, News Library, News Group File. 10. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966). 11. Roundtable Discussion on Challenges for Criminal Justice in China, organized by the U.S. Congressional Executive Commission on China, July 26, This research will be presented in greater detail in a forthcoming book. The research addresses emergent judicial practices as reflected in administrative litigation in China, especially in Guangdong and Chongqing. Guangdong, a neighbor of Hong Kong, is the most southerly province in China and the epitome of China s current reform era. Chongqing, China s largest municipality directly under the Central Government, is an important political and economic center in southwest China. Despite Chongqing s leading role in southwest China, its development lags far behind Guangdong. Research indicates that this difference contributes to further differences in the resultant judicial practices in the two locations. In Guangdong, I carried out field research in Guangzhou and Guangdong s three Special Economic Zones Shenzhen, Shantou, and Zhuhai. In addition to the provincial high court, I visited the intermediate court and one basic court of these four cities. In Chongqing, I visited Chongqing High Level People s Court, First and Third Intermediate Level People s Courts and Basic Level People s Court of the Yuzhong, Beibei, Jiangjin, and Fuling districts. All of the judges whom I interviewed in Guangdong and Chongqing presided at the administrative divisions of these courts. I also interviewed some attorneys, litigants, professors, and administrative officials in these places.

5 2003] IMPROVING HUMAN RIGHTS IN CHINA 307 I. MINOR CRIMES A. Criminality In Chinese criminal law, both the criminality of, and punishment for, a particular act depend on whether the circumstances of the act are serious or minor. 13 The Criminal Law, however, defines neither minor crimes nor serious crimes clearly, even though the distinction between them pervades the legislation. Article 13 of the Criminal Law defines crimes as all acts that: [E]ndanger the sovereignty, territorial integrity and security of the state; split the state, subvert the political power of the people s democratic dictatorship and overthrow the socialist system; undermine the social and economic orders; encroach upon property owned by the state or collectively owned by the laboring masses; infringe upon citizens privately owned property; infringe upon citizens rights of the person, democratic rights, and other rights; and other acts that endanger society and should, according to law, be criminally punished. 14 The provision, however, states that these acts are not deemed Additionally, I attended a judicial training program in Wuhan, where I interviewed judges from the Anhui, Hubei, and Jiangsu provinces and from Chongqing. In Beijing, I also interviewed leading Chinese scholars and judges of the Supreme People s Court and Beijing High Level People s Court. In total, I interviewed sixty-three judges, thirty-one professors, twelve attorneys, twenty-three officials, and twelve others, including litigants and directors of legal aid centers. The interviews took place in Guangdong (Dec. 28, 1998 Jan. 19, 1999), Wuhan (June 9 29, 1999), Beijing (Aug. 2 19, 1999), and Chongqing (Dec Jan 14, 2000). I interviewed some professors multiple times during Aug. 1999, and from Sept to June I chose the interviewees randomly, but all have either had personal experience in administrative litigation or worked in related areas. Most of them granted the interviews only upon the promise of anonymity. All of the eight administrative trials I observed took place in courts that I visited in Guangdong and Chongqing. In order to minimize the likelihood that the courts might seek to specially arrange trials for my benefit, I gave them as little notice of my visits as possible. The notice ranged from half an hour to a week, depending on the circumstances. 13. See Zhongguo Renmin Gongheguo Xingfa [Criminal Law of the People s Republic of China] (1979) (latest revision 2002) [hereinafter Criminal Law]. 14. Id. art. 13.

6 308 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 crimes if the circumstances are clearly minor and the harm is not great. 15 Even if an act is deemed a crime, Article 37 provides that: Where the circumstances of a person s crime are minor and do not require criminal punishment, the person may be exempted from criminal sanctions, but he may, according to the different circumstances of each case, be reprimanded or ordered to make a statement of repentance or formal apology or make compensation for losses, or be subjected to administrative sanctions by the competent department. 16 The word circumstances is not defined in the law, but scholars have generally agreed that it has a very broad meaning. It includes all the aspects of a specified act that are thought relevant but are not expressly provided for in the written law governing that act. 17 In particular, it can refer to the subjective blameworthiness of a particular actor or the external social and political effects of a crime. 18 One scholar points out that the circumstances need common knowledge to be understood, but acknowledges that it does not usually work well. 19 Therefore, it is necessary for the Supreme People s Court and the Supreme People s Procuratorate 20 to issue judicial interpretations and provide clarification. 21 The Supreme People s Court is authorized to interpret any problems of the concrete application of laws or regulations in the course of litigation, whereas the Supreme People s Procuratorate has the power to 15. Id. 16. Id. art Note, Concepts of Law in the Chinese Anti-Crime Campaign, 98 HARV. L. REV. 1890, 1901 n.52 (1985). 18. Id. 19. Shizhou Wang, The Judicial Explanation in Chinese Criminal Law, 43 AM. J. COMP. L. 569, 575 (1995). 20. The Supreme People s Procuratorate is China s highest procuratorial organ and directs the work of the people s procuratorates at lower levels. People s procuratorates are state organs for legal supervision and are responsible for prosecuting criminal cases. See ZHONGHUA RENMIN GONGHEGUO XIANFA [Constitution of the People s Republic of China] arts (1982) (latest revision 1999) [hereinafter XIANFA]; Zhonghua Renmin Gongheguo Jianchaguan Fa [The Procurators Law of the People s Republic of China] (1995). For a comparative, historic, and current description of the prosecution system, see generally HE JIA HONG & JOHN R. WALTZ, CRIMINAL PROSECUTION IN THE PEOPLE S REPUBLIC OF CHINA AND THE UNITED STATES OF AMERICA: A COMPARATIVE STUDY (1995). 21. Wang, supra note 19, at 575.

7 2003] IMPROVING HUMAN RIGHTS IN CHINA 309 interpret only questions involving the specific application of laws and decrees in the procuratorial work of the procuratorates. 22 Numerous judicial interpretations have been issued to provide guidance as to whether the circumstances of particular crimes are minor. Two examples are illustrative one involving criminal syndicates and the other theft. Regarding criminal syndicates, Article 294 of the Criminal Law states, inter alia, that: Whoever organizes, leads, or actively participates in an organization with characteristics of a criminal syndicate, which carries out lawless and criminal activities in an organized manner through violence, threat, or other means, with the aim of playing the tyrant in a locality, committing all evil things, bullying and harming the masses, and seriously undermining economic and social orders shall be sentenced to fixedterm imprisonment of not less than three years nor more than ten years. Other participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, surveillance, or deprivation of political rights. 23 The Supreme People s Court s Interpretation on Several Questions Concerning the Concrete Application of Laws in Adjudicating Criminal Syndicate Cases clarifies that participation in a criminal syndicate is not deemed a crime if the circumstances are minor, such as where the participant does not carry out any criminal activity or was deceived or coerced into joining the syndicate. 24 As for the second example, Article 264 of the Criminal Law provides, inter alia, that [t]hose who steal relatively large amounts of public or private money and property... shall be sentenced to fixedterm imprisonment of not more than three years, criminal detention, or surveillance, and may in addition or exclusively be subject to fines. The Supreme People s Court s Interpretation on Several Questions Concerning the Concrete Application of Laws in Adjudicating Theft Cases defines relatively large amounts as 22. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Jiaqiang Falu Jieshi Gongzuo De Jueding [Resolution of the National People s Congress Standing Committee on Strengthening Legal Interpretation Work] 2 (1981). 23. Criminal Law, supra note 13, art Zuigao Renmin Fayuan Guanyu Shenli Heishehui Xingzhi Zuzhi Fanzui De Anjian Juti Yingyong Falu Ruogan Wenti De Jieshi [Supreme People s Court s Interpretation on Several Questions Concerning the Concrete Application of Laws in Adjudicating Criminal Syndicate Cases], art. 3(2) (2000).

8 310 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 amounts within the range of yuan (USD 60 to 250) and above. 25 The Higher Level People s Court of each province, autonomous region, or municipality directly under the Central Government adopts, after considering the economic development and social order of its locality, an appropriate figure within this range as the standard to be applied for its locality. 26 Stealing such an amount of money or property, however, is not deemed a crime if the circumstances are minor. 27 The Interpretation does not provide an exhaustive list of minor circumstances but refers to the following situations as examples: the person who committed the act has reached the age of sixteen, but not eighteen; the stolen property or money have been completely returned; the person surrendered himself or herself to the police; or the person was coerced into stealing and shared none or a relatively small amount of the stolen property. 28 Although judicial interpretations help to clarify the Criminal Law and are thus hailed as an indispensable source for understanding Chinese law, 29 the broad and indeterminate language found in the interpretations, as illustrated in the above two examples, results in a wide scope of discretion in application. 30 Each of the cited interpretations effectively defines minor as minor and the resulting tautology fails to provide genuine clarification and guidance to the courts and to administrative agencies. 25. Zuigao Renmin Fayuan Guanyu Shenli Daoqie Anjian Juti Yingyong Falu Ruogan Wenti De Jieshi [Supreme People s Court s Interpretation on Several Questions Concerning the Concrete Application of Laws in Adjudicating Theft Cases], art. 3 (1997). 26. Id. 27. Id. art. 6(2). 28. Id. 29. See Wang, supra note 19, at 569. Wang writes that judicial interpretations play an important role in the Chinese criminal justice system because they have six functions: (1) indicating how to correctly understand the meaning of the law ; (2) explaining the issues of the law ; (3) indicating the concrete standard of sentencing within the statutory punishments ; (4) clarifying the guilty line and line for giving a heavier punishment when the law requires serious circumstances or especially serious circumstances ; (5) clarifying the limitation of time for a particular law ; and (6) explaining how to implement laws. Id. at For a detailed discussion of Chinese legislative drafting, see PETER HOWARD CORNE, FOREIGN INVESTMENT IN CHINA: THE ADMINISTRATIVE LEGAL SYSTEM (1997); Peter Howard Corne, Creation and Application of Law in the PRC, 50 Am. J. Comp. L. 369 (2002); Perry Keller, Legislation in the People s Republic of China, 23 U. BRIT. COLUM. L. REV. 653 (1989); Claudia Ross & Lester Ross, Language and Law: Sources of Systemic Vagueness and Ambiguous Authority in Chinese Statutory Language, in THE LIMITS OF THE RULE OF LAW 221 (Karen G. Turner et. al eds. 2000).

9 2003] IMPROVING HUMAN RIGHTS IN CHINA 311 B. Punishment When the circumstances of one s act are so minor that the act is not deemed a crime, or when the circumstances of an individual s crime are so minor that the crime does not merit criminal punishment, the person may still be subject to administrative sanctions. The most prevalent administrative sanctions are RETL, which is discussed in Part II, and those sanctions prescribed by the Security Administration Punishment Regulations ( SAPR ). 31 Article 2 of the SAPR provides that [w]hoever disturbs social order, endangers public safety, infringes upon a citizen s rights of the person or encroaches upon public or private property shall be punished in accordance with the SAPR if such an act is not serious enough for criminal punishment and if a security administration punishment should be imposed. 32 Penalties under the regulations include: a warning; a maximum fine of 5000 yuan (USD 625); and an administrative detention of not more than fifteen days. 33 The public security organs have the exclusive responsibility for the imposition of these penalties. 34 II. RE-EDUCATION THROUGH LABOR A. Legal Background RETL is imposed on people whose acts are not serious enough to warrant criminal punishment, but which are, nonetheless, too serious to be dealt with under the SAPR. RETL is governed mainly by three legislative documents. According to the 1957 Decision of the State Council Regarding the Question of Re-Education Through Labor ( 1957 Decision ), 35 the first legislative document governing the RETL, the purposes of the establishment of RETL are: (1) to 31. Zhongguo Renmin Gongheguo Zhian Guanli Chufa Tiaoli [Security Administration Punishment Regulations] (1986) (latest revision 1994) [hereinafter SAPR]. 32. Articles of the SAPR specify the circumstances under which the SAPR is violated and the corresponding punishments. 33. SAPR, supra note 31, art Id. art Guowuyuan Guanyu Laodong Jiaoyang Wenti De Jueding [Decision of the State Council Regarding the Question of Re-Education Through Labor] (1957) [hereinafter 1957 Decision].

10 312 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 reform into self-supporting new persons those persons who are able to work but insist on leading an idle life, violate law and discipline, or do not engage in honest pursuits ; 36 and (2) to further maintain public order, thus facilitating socialist construction. 37 The sanctions are to be imposed on the following four categories of individuals: [T]hose who do not engage in honest pursuits, involve themselves in hooliganism, commit larceny, fraud or other acts for which they are not criminally liable, or violate public security rules and refuse to mend their ways despite repeated admonition; counterrevolutionaries and anti-socialist reactionaries who commit minor crimes and are not criminally liable and who have been given sanctions of expulsion by government organs, organizations, enterprises or schools, and as a result have difficulty in making a living; employees of government organs, organizations, enterprises and schools who are able-bodied, but have refused to work for a long period, violated discipline or jeopardized public order, and have been given sanctions of expulsion, and as a result have difficulty in making a living; 40 or... those who refuse to accept the work assigned to them or the arrangement made for their employment or who decline to take part in manual labor and production despite persuasion, keep behaving disruptively on purpose, obstruct public officials from performing their duties and refuse to mend their ways despite 36. Id. pmbl. 37. Id. 38. Id. 1(1). 39. Id. 1(2). When the Criminal Law was revised in 1997, the term counterrevolutionary was replaced with the phrase, crimes against state security. The term, counterrevolutionary, found in the 1957 Decision has not been amended accordingly. 40. Id. 1(3).

11 2003] IMPROVING HUMAN RIGHTS IN CHINA 313 repeated admonition. 41 Various bodies may apply for the imposition of RETL on anyone who falls into one of the above four categories. These bodies include civil affairs and public security departments or the government organ, organization, enterprise, school or other units to which the person belongs; or his or her parents or guardians. 42 The applications must be approved by the people s committees of provinces, autonomous regions, and municipalities directly under the Central Government or by organs authorized by these people s committees. 43 The 1957 Decision stipulates that agencies in charge of RETL will be established at the level of provinces, autonomous regions, [and] municipalities directly under the Central Government, or established with the approval of the people s committees of provinces, autonomous regions, and municipalities directly under the Central Government. 44 The decision also states that the work of these agencies will be jointly directed and managed by the departments of civil affairs and public security. 45 In 1979, the State Council issued a second legislative document governing RETL, the Supplementary Decision of The State Council For Re-Education Through Labor ( 1979 Decision ), in order to provide more information on the specifics of RETL. 46 Under the 1957 Decision, an individual may have been subject to RETL for an indefinite time period, but the 1979 Decision ostensibly tries to refine the system by confining the period to one to three years, with a oneyear extension whenever it is necessary. 47 The 1979 Decision clarifies that RETL Administrative Committees are to be established by the people s governments of the provinces, autonomous regions, and municipalities directly under the Central Government, and of large and medium-sized cities. 48 These committees shall be composed of persons who are in charge of civil affairs, public security and labor departments and such persons are to be responsible for directing and managing the work of RETL. 49 Further, 41. Id. 1(4). 42. Id Id Id Id. 46. Guowuyuan Guanyu Laodong Jiaoyang De Buchong Jueding [Supplementary Decision of the State Council for Re-Education Through Labor] (1979). 47. Id Id Id.

12 314 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 the 1979 Decision states that RETL may be imposed only on those people in large and medium-sized cities who need to be re-educated through labor. 50 In other words, RETL is inapplicable to the rural populace. The RETL Administrative Committees of provinces, autonomous regions, and municipalities directly under the Central Government, and of large and medium-sized cities, are responsible for the examination and approval of those who require such reeducation. 51 In 1982, with the approval of the State Council, the Ministry of Public Security passed the Trial Methods for the Implementation of Re-Education Through Labor ( 1982 Trial Methods ), the third legislative document governing RETL. 52 Under this document, RETL may be imposed, not only on the four categories of persons listed under the 1957 Decision, but also on anyone who joined others to commit a crime such as murder, robbery, rape, and arson, or who abetted others to commit a crime where the circumstances surrounding such crimes are not serious enough for criminal punishments. 53 Moreover, the 1982 Trial Methods also makes RETL applicable to the rural populace if an individual commits crimes in cities, along railways, and in large-scale factories and mines. 54 B. Legal and Human Rights Problems 1. Extensive Use The differing scopes provided for RETL in the 1957 Decision, the 1979 Decision, and the 1982 Trial Methods have drawn criticism from Chinese legal scholars regarding the conflicts. 55 There is also concern that the public security organs have turned RETL into a 50. Id Id. 52. Guowuyuan Guanyu Zhuanfa Gonganbu Zhiding De Laodong Jiaoyang Shixing Banfa De Tongzhi [Notice of the State Council on Re-Issuing the Ministry of Public Security s Trial Methods for the Implementation of Re-Education Through Labor] (1982). 53. Id. arts. 10(2), 10(6). 54. Id. art See Chen Ruihua, Laodong Jiaoyang De Lishi Kaocha Yu Fansi [Historical Examination and Reflections on Re-Education Through Labor], 13 ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL] 657 (2001); Chen, supra note 3, at ; Shen Fujun, Guanyu Feichu Laodong Jiaoyang Zhidu De Sikao [Some Thoughts about the Abolition of Re-Education Through Labor System], 7 FAXUE [JURISPRUDENCE] 18, 18 (1999).

13 2003] IMPROVING HUMAN RIGHTS IN CHINA 315 crime control mechanism, 56 which differs from the legislative intent stipulated in the 1957 Decision. Numerous reports regarding the extensive use of the system have led to widespread human rights concerns. RETL is imposed by RETL Administrative Committees that are dominated by public security organs. 57 In order to take actions against suspected offenders, these organs have reportedly abused the system by using it as a means to avoid the procedural requirements or supervisory mechanisms presented under the Criminal Procedure Law. 58 In particular, it has been reported that public security organs have imposed RETL on offenders against whom they lack sufficient evidence to support a criminal charge, even though the circumstances of the crime committed are not minor Severe Punishment Although couched in terms of leniency, the 1979 Decision and the 1982 Trial Methods allow a person to be detained in a labor camp for up to four years. This punishment is far more severe than some criminal punishments, which include five types of principal punishments (zhuxing) 60 and three types of supplementary punishments (fujia xing). 61 The five types of principal punishments are: 56. Fu Hualing, Criminal Procedure Law, in INTRODUCTION TO CHINESE LAW 129, 134 (Wang Chenguang & Zhang Xianchu eds., 1997). See also Chen, supra note 3, at See Chen, supra note 55, at 668; Chen Xingliang, Laodong Jiaoyang: Genju Guoji Renquan Gongyue Zhi Fenxi [Re-Education Through Labor: Analysis Based on International Bill of Human Rights], 10 FAXUE [JURISPRUDENCE] 49, (2001). See also Ma Kechang, [Strengthen the Reform Force, Revise and Perfect the Criminal Law], 5 FAXUE PINGLUN [LAW REVIEW] 1, 7 8 (1996), cited in JIANFU CHEN, CHINESE LAW: TOWARDS AN UNDERSTANDING OF CHINESE LAW, ITS NATURE, AND DEVELOPMENT 193 n.169 (1999); Tao Jigang, [Some Thoughts on Laws Relating to Re-Education Through Labor], 3 ZHONGGUO RENMIN JINGCHA DAXUE XUEBAO [JOURNAL OF THE CHINA UNIVERSITY OF PEOPLE S POLICE] 12, 12 (1995), cited in JIANFU CHEN, CHINESE LAW: TOWARDS AN UNDERSTANDING OF CHINESE LAW, ITS NATURE, AND DEVELOPMENT 193 n.169 (1999). 58. Zhongguo Renmin Gongheguo Xingshi Susong Fa [Criminal Procedure Law of the People s Republic of China] (1979) (latest revision 1996) [hereinafter Criminal Procedure Law]. See LAWYERS COMMITTEE FOR HUMAN RIGHTS, CRIMINAL JUSTICE WITH CHINESE CHARACTERISTICS: CHINA S CRIMINAL PROCESS AND VIOLATIONS OF HUMAN RIGHTS (1993); Amnesty International, Open Letter to the President of the People s Republic of China, M2 PRESSWIRE, Sept. 28, 1999, available at LEXIS, News Library, News Group File. 59. See Chen, supra note 57, at 52; Fu, supra note 56, at Criminal Law, supra note 13, art Id. art. 34.

14 316 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 (1) Surveillance (guanzhi) (three months to two years); 62 (2) criminal detention (juyi) (one month to six months); 63 (3) fixed-term imprisonment (six months to fifteen years, and up to twenty years when the death penalty is commuted to fixed-term imprisonment or in cases of combined punishment for more than one crime); 64 (4) life imprisonment; 65 and (5) the death penalty. 66 Supplementary punishments, regardless of the opposite meaning conveyed by their name, may be imposed independently. 67 These include: (1) Fines (the amount imposed depends on the circumstances of the crime); 68 (2) deprivation of political rights; 69 and (3) confiscation of property. 70 Critics argue that because RETL is more severe than criminal punishments such as fines, surveillance, and criminal detention, application of the sanction violates the rationale behind RETL that the system should be applied to cases with a level of severity that does not merit criminal punishment Id. art Id. art Id. arts. 45, 50, Id. art Id. arts Id. art Id. art Deprivation of political rights refers to the deprivation of the following rights: (1) the right to elect and the right to be elected; (2) the right to the freedom of speech, of the press, of assembly, of association, of procession, and of demonstration; (3) the right to hold a position in state organs; and (4) the right to hold a leading position in a state-owned company, enterprise, or institution or people s organization. Id. art Id. arts. 59, See Chen, supra note 55, at 669; Chen Zexian, Zhongguo De Laodong Jiaoyang Zhidu Yu Zuifan De Jiaoyu Gaizao [Re-Education Through Labor System and Educational Reform of Prisoners in China], in RENQUAN YU SIFA [HUMAN RIGHTS AND ADMINISTRATION

15 2003] IMPROVING HUMAN RIGHTS IN CHINA Inconsistency with Administrative Punishment Law The RETL system has also been challenged as inconsistent with the Administrative Punishment Law. 72 This statute specifically requires that all administrative punishments that restrict personal freedom be prescribed by laws. 73 Administrative regulations and rules may only prescribe punishments that do not restrict personal freedom, such as warnings, fines, confiscation of illegally-gained income and property, and provisional suspension or revocation of permits or licenses. 74 According to the hierarchy of Chinese legislative authorities, only the National People s Congress and its Standing Committee can promulgate laws. 75 RETL, which is a type of administrative punishment that restricts personal freedom, 76 is not prescribed by a law, but by decisions made by the State Council or by the Ministry of Public Security. Therefore, the legality of this system is questionable. 77 Supporters of RETL may argue that approval by the Standing Committee of the National People s Congress of the 1957 and 1979 Decisions has effectively transformed them into laws. 78 This view, however, is debatable and, even if correct, the same argument may not be applied to the 1982 Trial Methods because the Standing Committee of the National People s Congress has never approved that document. Among the three documents, it is the 1982 Trial Methods that has the most extensive and most controversial coverage. 4. Lack of Effective Supervision As an administrative, rather than a criminal, sanction, RETL is OF JUSTICE] 30, (Liu Hainian et al., eds., 1999); Chen, supra note 3, at Zhongguo Renmin Gongheguo Xingzheng Chufa Fa [Administrative Punishment Law of the People s Republic of China] (1996). 73. Id. art Id. arts. 8, 10, XIANFA, supra note 20, arts. 62(3), 67(2); Zhonghua Renmin Gongheguo Lifa Fa [The Law-making Law of the People s Republic of China] art. 7 (2000). 76. This point was once in dispute. See Chen, supra note 55, at 669; Chen, supra note 57; Jiang Jinfang, Laodong Jiaoyang Zhidu De Fazhi Licheng Ji Xianshi Wenti [Legal Developments of Re-Education Through Labor System and Practical Problems], 13 ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL] 674, 682 (2001). 77. See Chen, supra note 71, at 34 35; CHEN, supra note 57, at 193; Shen, supra note 55, at See supra notes 35, 46. Chen Xingliang argues that they are not laws, but quasilaws (zhun falu), at most. See Chen, supra note 3, at 689, 692.

16 318 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 not subject to any of the limited human rights safeguards contained in the Criminal Law and the Criminal Procedure Law. The Criminal Law was promulgated in 1979 and has been amended five times between 1997 and The 1997 amendment was particularly remarkable in that it abolished the provision on analogy 80 and adopted certain fundamental principles of justice, such as equality before the law 81 and proportionality (zuixing xiang shiying yuanze). 82 However, it did not adopt the principle of double jeopardy with regard to crimes committed outside of China. 83 The revision of the Criminal Procedure Law in 1996 brought the legislation closer to international human rights standards by the adoption of the presumption of innocence, the expansion of the right to counsel, and an increased role of the courts in eliminating the prior practice of pre-trial determinations of guilt. Despite these improvements, the revised Criminal Procedure Law still contains a variety of deficiencies. 84 For example, it permits extended periods of pre-arrest detention. The public security organs may detain for a period of thirty days those strongly suspected of wandering around committing crimes, of committing multiple crimes, or of forming gangs to commit crimes. 85 Furthermore, public security organs, regularly required to inform detainees families of the reasons for the detention and of the place of custody within twenty-four hours after detention, need not do so if such a requirement may hinder the 79. See Criminal Law, supra note 13. It was revised on Mar. 14, 1997; Dec. 25, 1999; Aug. 31, 2002; Dec. 29, 2001; and Dec. 28, Article 79 of the 1979 Criminal Law provided that [a] person who commits crimes not explicitly defined in the Specific Provisions of this Law may be convicted and sentenced, after obtaining the approval of the Supreme People s Court, according to the most similar article in this Law. Subsequent to the 1997 amendment, the Criminal Law provides that a perpetrator of [a]ny act deemed by explicit stipulations of law as a crime shall be convicted and given punishment by law and any act that no explicit stipulations of law deem a crime shall not be convicted or given punishment. Criminal Law, supra note 13, art Anyone committing crimes shall be treated equally in applying the law. No one shall have any privileges outside the law. Id. art The punishment shall be proportional to the criminal acts committed by the offenders and the criminal responsibilities that the offenders shall bear. Id. art For a detailed discussion of the amendment to the Criminal Law, see CHEN, supra note 57, at ; WRONGS AND RIGHTS: A HUMAN RIGHTS ANALYSIS OF CHINA S REVISED CRIMINAL LAW (George Black ed., 1998). 84. For a detailed discussion of the amendment to the Criminal Procedure Law, see CHEN, supra note 57, at ; JONATHAN HECHT, OPENING TO REFORM?: AN ANALYSIS OF CHINA S REVISED CRIMINAL PROCEDURE LAW (1996); Fu, supra note 56; Daphne Huang, The Right to a Fair Trial in China, 7 PAC. RIM. L. & POL Y 171 (1998). 85. Criminal Procedure Law, supra note 58, arts. 61(7), 69(2).

17 2003] IMPROVING HUMAN RIGHTS IN CHINA 319 investigation or there is no way of notifying them. 86 As these limited human rights protections are beyond the reach of those punished by RETL, aggrieved parties may resort only to protections granted under the Administrative Litigation Law. 87 This statute stipulates that anyone who believes that his or her legitimate rights and interests have been infringed upon by administrative acts such as administrative sanctions may bring a lawsuit. 88 Should a court find the challenged administrative act illegal, it may revoke (chexiao) the act. 89 Based on documentary sources and empirical research, this author has noted some improvements in administrative litigation, such as a growing respect for procedural requirements. 90 However, the existing problems, as discussed below, appear to have limited the courts role in reviewing the legality of administrative sanctions such as RETL. 91 a. Fear According to those interviewed, 92 aggrieved parties often dare not sue administrative organs, especially public security organs, which have wielded extensive power over the populace for decades in China. They fear reprisals resulting from direct confrontation with these organs. Nevertheless, official statistics show that during the years between 1991 and 2000, a significant proportion (ranging from fifteen to thirty percent) of administrative cases accepted by firstinstance courts were public security (gongan) cases, which include social order (zhian) cases, RETL (laojiao) cases, and others (qita). 93 (See Table One, infra). If this fear exists, why do public 86. Id. art Zhongguo Renmin Gongheguo Xingzheng Susong Fa [Administrative Litigation Law of the People s Republic of China] (1989). 88. Id. arts Id. art See supra note See also Chen, supra note 55, at 671; Chen, supra note 3, at See supra note In China, administrative cases are classified into about thirty categories including: public security (gongan); industry and commerce (gongshang); land use (tudi); forestry (linye); city construction (chengjian); customs (haiguan); environmental protection (huanbao); patent (zhuanli); and tax (shuiwu) cases. Public security cases are further categorized as: social order (zhian); re-education through labor (laojiao); or others (qita). Interviews with two judges from Guangdong High Level People s Court in Guangdong (Jan. 13, 1999).

18 320 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 security cases account for so many of the administrative cases? Table One. Number of First-Instance Administrative Cases Accepted in China, Administrative Public Security Percentage Cases Cases (%) ,667 [ ] 96 [ ] , , , ,596 11, ,966 15, ,557 14, ,350 14, ,569 14, ,760 13, Interviewees explained that the relatively high percentage of public security administrative cases simply reflected the public security organs possession of enormous power to influence a wide range of citizens daily activities. Regardless of their fear, some aggrieved parties finally resorted to administrative litigation because they considered their grievances too grave to endure. A survey conducted in 1992 corroborates this explanation. Fifty-one out of ninety plaintiffs interviewed stated that they had filed suits under the Administrative Litigation Law because they believed that this was their last resort. 97 Some other evidence shows aggrieved parties fear and the police misconduct. In 1993, an abstract painter reportedly sued Beijing s Haidian District Police after three officers beat him for arguing with a bus conductor. The painter won his case. However, the police arrested him two weeks later and charged him with a trumped-up bicycle theft. He was then sent, without trial, to two 94. ZHONGGUO FALU NIANJIAN [CHINA LAW YEARBOOK] This column lists the percentage of the total number of administrative cases for which public security cases account. 96. No data could be found to indicate the number of public security cases accepted in However, it was reported in CHINA LAW YEARBOOK 1992 that 7,720 social order (zhian) cases were accepted, accounting for % of all first-instance administrative cases accepted in FAZHI DE LIXIANG YU XIANSHI [THE IDEAL AND REALITY OF THE RULE OF LAW] 322 (Gong Xiangrui et al. eds., 1993).

19 2003] IMPROVING HUMAN RIGHTS IN CHINA 321 years in a labor camp. When interviewed in 1997, the painter recalled, My vision was too optimistic. From now on, I ll express myself through my art. 98 Similarly, in December 1996, then- President of the Supreme People s Court, Ren Jianxin, considered police misconduct to be a grave problem and criticized lawenforcement officials [who] have taken advantage of legal loopholes, intentionally misinterpreted the law, distorted evidence and broken the law they enforce. 99 b. Limited Access to Lawyers A lawyer s retainer varies according to the individual lawyer s experience and competence. On average, the fee can amount to at least yuan (USD 250 to 375) for a case tried by a basic level court and 5000 yuan (USD 625) for one tried by an intermediate level court. 100 The average monthly income of an ordinary worker, however, is below 1000 yuan (USD 125). 101 Free legal service is available, but its effectiveness in administrative litigation is doubtful. 102 Legal aid rules generally require eligible applicants monthly income to be less than a fixed amount ranging from yuan (USD 25 to 50). 103 Few people, beside those living below the poverty line or those who are unemployed, are able to meet this requirement. 104 In addition, priority of legal aid is given to criminal defendants facing the death penalty, as well as to the blind, deaf, dumb, aged, and minors claiming compensation in personal injury cases. 105 Administrative 98. Interview by George Wehrfritz with Michael Laris, Rulers Are the Law, NEWSWEEK (Atlantic Ed.), Sept. 29, 1997, at 47, available at LEXIS, News Library, News Group File. 99. Id Interviews in Guangdong (Dec. 28, 1998 Jan. 19, 1999) and Chongqing (Dec. 13, 1999 Jan. 14, 2000) Id For a discussion of legal aid practices in China, see generally David Lee, Legal Reform in China: A Role for Nongovernmental Organizations, 25 YALE J. INT L L. 363 (2000); Benjamin L. Liebman, Legal Aid and Public Interest Law in China, 34 TEX. INT L L.J. 211 (1999). According to China s Ministry of Justice, there are more than 2,300 legal aid institutions in the country, and over 300,000 people received legal aid in See Chinese Colleges Offer Legal Aid Services, XINHUA GENERAL NEWS SERVICE, Nov. 28, 2002, available at LEXIS, News Library, News Group File The Guangzhou Legal Aid Center adopted 340 to 380 yuan as the standard. Interview with Director, Guangzhou Legal Aid Center (Jan. 12, 1999) Id.; Interview with Directors, Chongqing Legal Aid Center (Dec. 29, 2000) See Backgrounder: Qualifications for Chinese Citizens to Receive Legal Aid,

20 322 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:303 cases do not seem to have attracted legal aid providers attention. From its opening in 1995 to January 1999, the Guangzhou Legal Aid Center has handled only two administrative cases. 106 In contrast, in 1998, 700 criminal and economic cases were handled. 107 Legal aid centers in Chongqing, China s largest municipality directly under the Central Government, 108 handled approximately 2400 criminal cases and 3500 civil cases in Only about ten cases were administrative cases. 109 Even if aggrieved parties can afford to retain legal counsel, they may encounter difficulties because lawyers are not enthusiastic about handling administrative cases. 110 The amounts in dispute in administrative cases are low and, thus, lawyers are unable to charge high fees. Moreover, most lawyers are reluctant to oppose the government, which has the power to decide whether to renew a lawyer s license. 111 c. Interference The majority of those interviewed 112 identified interference by administrative organs and by the Chinese Communist Party as the greatest difficulty encountered in administrative litigation. Such interference may occur during the entire course of an administrative case, but it is especially common before the case is accepted. At subsequent stages, judges may be pressured to uphold the administrative act, and aggrieved parties may be pressured to withdraw the case. XINHUA GENERAL NEWS SERVICE, June 16, 2000, available at LEXIS, News Library, News Group File Interview with Director, Guangzhou Legal Aid Center (Jan. 12, 1999) Id See supra note Interview with Directors, Chongqing Legal Aid Center (Dec. 29, 1999) Lawyers in China are also reluctant to accept criminal cases. See Jerome Cohen, The Plight of Criminal Defense Lawyers, Testimony Presented at the Roundtable Discussion on Challenges for Criminal Justice in China, organized by the U.S. Congressional Executive Commission on China (July 26, 2002), at cohen.php; John Pomfret, Defense Lawyers in China Find State is Judge and Jury, THE WASHINGTON POST, Dec. 31, 2002, available at LEXIS, News Library, News Groups File. Pomfret reported that on average, each lawyer in Beijing handled 2.64 criminal cases in 1999 and less than one in Interviews in Guangdong (Dec. 28, 1998 Jan. 19, 1999) and Chongqing (Dec. 13, 1999 Jan. 14, 2000) See supra note 12.