On Jan 7, 2013 word came out from the national conference on procuratorial, judicial and public security affairs that relevant authorities will apply for permission from the National People’s Congress Standing Committee (NPCSC) to stop using the re-education through labor (RTL) system. Although a Xinhua news dispatch later that day replaced the phrase “stop using” with “further advance the RTL system reform,” it did not deny that the central government has decided to go with the historical trend and popular wish for the gradual discard of the RTL system.
The RTL system refers to the penal system, which, according to existing law and regulation, seeks to educate its subjects morally through forced labor and without individual freedom for violations of the law or minor crimes that are not serious enough for criminal prosecution. To understand the RTL system one needs to know the following facts:
1. RTL is a compulsory administrative measure forced upon a citizen by an administrative department. In other words, it is a form of administrative punishment. According to the existing RTL system, the public security department must obtain approval from the RTL Management Committee under the provincial, autonomous regional or municipal administration to put someone under the RTL system, which is run by the judicial executive departments under the organs of related local administrations.
2. RTL is a form of punishment decided through an administrative process. It is not an average restriction of individual freedom but complete deprivation of individual freedom. It usually lasts one to three years but can be extended by one year if the RTL management body finds it to be necessary, meaning the longest RTL is four years. Severe restriction or complete deprivation of individual freedom is a basic characteristic of any penal process. In this sense, RTL is practically the same as imprisonment in criminal punishment, with the difference found mainly in the decision-making process.
3. The fundamental flaw of the RTL system is that it allows an institution under the administrative department to unilaterally deprive citizens of their individual freedom for up to four years through an administrative process without the participation of the court. Although one can file an administrative appeal with the court to overturn their RTL decision by the management committee, the appeal normally cannot change the effectiveness and execution of the RTL decision. And, in reality, courts seldom granted appellants their wish to overturn the RTL decision in the 20-odd years since administrative appeals were first allowed.
China’s RTL system was copied from the Soviet Union back in the 1950s to serve the need for government stability and public security. It came into formal existence during the Clampdown on Counter-revolutionaries Drive from 1951-53, when millions of suspects were arrested and 2.2 million were sentenced to death, life or limited-term imprisonment, living under supervision or labeled as a counter-revolutionary and put under public surveillance, with more than 300,000 others locked up in jail or police custody because their “crime” was not serious enough to warrant a prison sentence, or could not be verified soon enough for relevant authorities to set them free. As the number of such suspects grew in the following years, there had to be a way to dispose of them. Thus, the RTL system was born, as fate would have it.
In terms of law, China’s RTL system came into being in 1957, when the NPCSC approved the Decision on the Issue of Education through Labor, which was announced by the State Council two days later. The constitutional basis of that decision was derived from Article 100 of the Constitution of the People’s Republic of China promulgated in 1954, which stipulated that a citizen must abide by the Constitution and the law, must follow workplace discipline and public order, and must respect common ethics of society. The purpose of making that decision was to “transform law-defying loafers” into new persons who earn their own living, and to better maintain public order for the benefit of socialist construction.
Twenty-two years later, the State Council published the Supplementary Decision on the Issue of Education through Labor, which categorized subjects of the RTL system as such: loafers; those who committed public indecency or minor crime such as petty theft and scamming; recidivist law breakers; counter-revolutionaries guilty of only minor crimes that do not require criminal punishment; anti-socialist reactionaries and those who cannot support themselves after being discharged by their former employers or schools for bad behavior; those on the payroll of government offices, institutions or enterprises and capable of working but refuse to work or have violated discipline; those who have upset public order; those fired for bad behavior and could not support themselves without a job; those who turned down job assignments or career redirection or refuse to follow advices on earning a living but repeatedly make troubles to disrupt official business and refuse to mend their way despite repeated admonishment.
RTL is not applicable to mental patients, retarded, blind, deaf and/or mute individuals, those suffering chronic disease, pregnant or new mothers who have been nursing for less than a year and those who have lost the ability to work.
There is no substantial difference between RTL and criminal punishment in practice, although in theory the former is administrative penalty while the latter is criminal punishment. The foremost similarity between RTL and criminal punishment is the limitation of individual freedom. And, the limitation or deprivation of individual freedom is the ultimate characteristic of a criminal. Therefore, putting citizens under RTL is in fact a criminal punishment, but with a different excuse. The fact is that longer RTL is heavier on the subject in terms of punitive impact than a shorter criminal incarceration.
Under unusual historical circumstances in the 1960s-’70s this author lived with many ex-convicts and people who had served terms in RTL facilities. In my observation, there was little real difference between these two groups of former subjects of the country’s main penal systems as far as their political and legal statuses are concerned. They were all treated the same way as “landlords, rich peasants, counter-revolutionaries, bad elements and right-wingers”, also known as “subjects of proletariat dictatorship.” Many people spent decades with ex-cons working on RTL farms after completing their sentences.
Since the reform and opening drive began, the nation has had several opportunities to crack down on the RTL system for violating the Constitution and abolish it for good, but regrettably it has missed them all.
In fact, the 1982 Constitution of the PRC established the supreme status of the Constitution in specific terms, and confirmed that Chinese citizens enjoy fundamental rights, including individual freedom; freedom of speech and publication; and the right to criticize any state institution and the officials who run it. As such, the National People’s Congress (NPC) should have taken the opportunity to approve the 1982 Constitution and examine the constitutionality of “The Decision on Issues Concerning Education through Labor” effected in 1957 and related statutory documents. Thanks to a general lack of awareness in constitutional exercise back then, the highest body of state power did not put the constitutionality of the RTL system under scrutiny.
Only in 1999, the 13th Amendment of the 1982 Constitution added the provision of “governing the country according to law and building a socialist country under rule of law”; and the 2004 Amendment of the same Constitution added the provision “the state respects and protects human rights.” Theoretically speaking, the NPC should have seized the opportunities to approve these two amendments and call out the unconstitutional nature of the “Decision on Issues Concerning Education through Labor,” and nullify it along with all other related statutory documents. Regrettably, the NPC again passed on the opportunity to abolish the statutory support of the RTL, probably due to the same lack of awareness in constitutional exercise.
It is an undeniable fact that the RTL system violates the existing law. According to the Legislation Law of the People’s Republic of China and the Law of the People’s Republic of China on Administrative Penalty, only the NPC and its Standing Committee have the power to authorize the deprivation of individual freedoms of Chinese citizens. Therefore, all the extrajudicial literature that has institutionalized the RTL system should be deemed void for violating the Legislation Law and Administrative Penalty Law. Even the “Decision” itself, assuming it is a law, should be rendered ineffective according to the statutory principle that “the new is naturally better than the old.”
Today, respecting and protecting human rights with the rule of law has become a worldwide trend; while Chinese citizens’ desire for better protection of their fundamental rights, such as freedom of speech, publication, assembly and association, is stronger than ever, thanks to much easier access to the outside world. And, to fulfill the pledges in the Constitution, to practice rule of law, respect and protect human rights, ensure individual freedoms of the citizens we must abandon the RTL system. This reform should not be put on hold any longer.
General-Secretary Xi Jinping’s speech marking the 30th anniversary of the current Constitution clearly emphasized the complete and effective implementation of the Constitution. Protecting the basic rights of Chinese citizens is a fundamental part of this constitutional exercise. It is difficult to accomplish but extremely important. Individual freedom is the first and foremost of basic civil rights or of human rights. Naturally, the complete and effective implementation of the Constitution must start with an exact realization of individual freedom. That means it is high time the RTL system was put to rest for good.
Tong Zhiwei is a professor of constitutional studies at the East China University of Political Science and Law.
