Thursday, July 25, 2013

On Developments in the Legality and Application of Laojiao (The system of administrative detentions, re-education through labor, or “劳动教养”) in China

Along with Keren Wang, I have been considering the constitutional implications of China's laojiao system (the system of administrative detentions, re-education through labor, or “劳动教养”), implemented in the 1950s.   Backer, Larry Catá and Wang, Keren, State and Party in the Scientific Development of a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and Shuanggui (June 1, 2013). Conference: Rule of Law with Chinese Characteristics, Vol. 2013, p. 101, 2013. 

(Tang Hui, from Zhao Yinang, In China, Court Ruling Re-Ignites Debate Over Labor Camps, China Daily July 18, 2013).

The issue of laojiao has drawn much public attention with the release of inmates from laojiao facilities who now seek compensation in the Chinese courts for wrongful detention.  Though originally rejected (See, e.g., Zhao Yinang, "Ex-laojiao inmate will continue her quest for justice," China Daily, April 13, 2013), the claim of Tang Hui, "a former laojiao inmate and mother of a rape victim, won a lawsuit at Hunan Provincial High People's Court, which ruled that local laojiao authorities in Yongzhou city pay her 1,641.15 yuan ($267.20) in compensation for their "inappropriate" decision to put her in a labor camp. She was awarded another 1,000 yuan to compensate her for "mental injury". (Zhao Yinang, In China, Court Ruling Re-Ignites Debate Over Labor Camps, China Daily July 18, 2013, reposted to  New America Media, July 20, 2013). 

My research assistant and Penn State SJD candidate Shan Gao has written a  short essay on current developments that might be of interest to those following the evolution of public opinion and public policy on laojiao in China. It follows.

Tang hui Trilogy: From a mom’s struggle for her daughter’s justice to a nationwide prosecution of Laojiao system
 Shan Gao

In Franz Kafka famous story “Before the Law,” there was an imaginary gate keeper told a country man who want to enter into the law that “I am powerful. And I am only the lowliest gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I cannot endure even one glimpse of the third.” In the Kafka story, the country man never had a chance to pass the gate keeper and enter into the law. The case of Tang hui, as many stories about a mom’s fight for her child’s justice in many cultures, is emotional and dramatic in many ways. Tang never waits the justice to come as the country man in Kafka’s story, she took actions and past the door, she endured the ruthless aspect of a developing country’s justice system and ultimately entered into the law “A justice verdict” that she is pursuing for.

Laojiao is one of the gate keepers in China"before the law," it powerful and controversial. the collateral damages of Laojiao created to Chinese justice system resulted new leader's re-consideration on this system. However, without profound understanding of the unlimited administrative discretionary power, there were other gate existed between the Chinese and Justice and Law.

The case of Tang hui is a general name referring series cases involved in Tang hui’s personal fights and petitions for her daughter’s rape and prostitution case. These cases were Tang hui’s eleven year old daughter, Lele (Not a real name), been raped and forced engage prostitution at her hometown Young zhou; Tang hui’s petition for severe punishments on criminals who responded for her daughter’s tragedy, Incidents of Tang hui’s re-education through labor and Tang hui’s administrative litigation against local police bureau who made decision of sentencing her 18 months re-education through labor. Tang hui’s trilogy had raised public outcry when local authorities’ Laojiao decision entered into public eyes. The public were outraged by the fact that rather than initiate investigation over corrupted local police bureau, the authorities made bold decision of sending Tang hui to Laojiao. Although the decision of Laojiao soon annulled, Tang filed the administrative litigation against local authority for wrongful Laojiao sentencing. Tang won the administrative litigation and awarded symbolic compensation of 429 USD. Tang and her daughter planned to visit US for post-rape medical treatment with the support of private donors[1].

In this summary followings are:

· The first episode of Tang’s case: minor been raped and forced for prostitution
· The second episode: Unfinished journey of petition and imprisonment for Laojiao
· The third episode: administrative litigation against local Laojiao and Public outcry for Laojiao
· NY Times Chinese online news Commentators

The first episode: minor been raped and forced for prostitution

Tang’s daughter, Lele (Not real name) was raped by Zhou on the night of Oct 1st of 2006. On Oct 3rd, Zhou kidnapped Lele and forced Lele to prostitute at local (Brothel is illegal in China). Although Tang immediately filed the case of missing to local police station, the criminal investigation leader Yang junxiang (a position maybe between sergeant and lieutenant) recorded the case without any further investigation. Tang learnt from unanimous sources that her daughter “prostituting” at a brothel. With personal investigation for days, Tang confirmed that her daughter was at the brothel. At Tang’s questioning, Yang left without any action for rescuing.

(pix: Tang shows journalists her 2006 missing daughter on a post)[2]

Tang’s daughter rescued by police officer and suffered from Post-traumatic stress disorder and incurable STDs could end her reproduction capacity. Later Tang requiring Yang file the case for her daughter but refused on the ground “too trivia for investigation.” The local police station did not file the case until Tang threatens to jump out from their window. There was no any further investigation on the case except one of the owners of the brothel was arrested. The most shocking news for Tang was the fact that the brothel was still busy after the investigation and one of the police officer helped the suspect to communicate with outside world.

After Tang wrote her complaints to higher level police bureaucracy, Hunan provincial Public security Department, the investigation was initiated by Yong zhou Police Department under the order of Provincial Police Department.[3] The criminal investigation leader Yang, and police officer who illegally provided outside communication for suspect were both under internal criticism without any criminal investigation by local authorities.

In 2008 June 6, the intermediate people's court ruled two involved criminals death sentence (for the crime of organizing prostitution, forced prostitution and rape) the other two for life sentence,[4] the other two criminals were sentenced for 15 and 16 years. Defendants, prosecutor and Tang appeared the case. In Aug 8, the Higher People’s court rescinded the intermediate court’s decision and asked it for a retrial.[5] The case was under second re-trail in 2009 and not entering into final judgment by “Higher court” until Feb 2012. Two criminals would subject to death sentence and one subject to death sentence with two year suspension. [6] The others were subjected to life sentence and fixed term sentence.

Although Tang won the case, she was angered by the attitude of local police and justice departments, most of all she was not satisfied by the ruling. As later news report indicated, the reason why Tang’s case had been trailed for such a long time was because there were deep corruptions that slowed the process of justice system. Although no further official investigations on this acquisition, journalists succeed to gain the information that two owners of the brothel had special ties with local police and justice system. For example, one owner’s best friend works at local police department, the other owner’s two relatives, one works at local police department’s party organization and the other works at Young zhou municipal procuratorate. [7] According to Tang’s interview, the first prosecutor even told her directly that “I don’t think your daughter is forced for prostitution and she not even looks like a minor.” Such words shocked Tang and Tang did not get an un-biased prosecutor after kneeing down in front of procuratorate building for 18 hours at the time when Hunan was under unprecedented server snow storm.

There were further reports indicated that the local municipal police department fabricated materials to make criminal Qing xing exempted from death sentence. [8] Although in all three trails, the court did not found Qing xing qualified for providing meritorious service of saving the life a criminal from suicide, the municipal police department still kept the public notice of the existence of such evidence on their website.[9] The criminal that Qing claimed saved the life in an interview said there was no existence of such suicide. [10] There was another seemly unrelated incidents had been reported recently and shocked the public. In June 2010, there was a court shooting result three dead judges at Lingling district courthouse. The man who killed the judges with stolen guns later found out was a very close family friend of Tang. The pubic suspected such shooting may related to Tang’s case. [11]

 (Pix: the gate of court house, ironically, the banner hang on the gate of the crime scene said “carefully study and implement State Compensation Law.” State Compensation Law created for compensating victims like Tang from the injustice infringement by the government)

The reason why he randomly shoot judges of courthouse remained unclear by the time of 2010, but today the public surprisingly discovered that the man committed shooting was a close family friend of Tang and very much found of Tang’s daughter.

(pix: an online news service provider’s internal notice indicating higher level authority requiring the news of Young zhou court shooting been removed from front page[12])

The second episode: Unfinished journey of petition and imprisonment for Laojiao

The Hunan High Court’s judgment was not the end of Tang’s journey for her daughter’s justice. On the countrary, based on the totality of the case and difficulties Tang had been through, Tang started her petition to investigate the corruption of local police and justice system and more server punishments for criminals involved in this case, including death penalty for Qing xing and criminal investigation for hundreds men engaged prostitution with her daughter.

Tang had been to numerous places for her petition. Like many other Chinese who were in the process of Shangfang, Tang went to local people’s court, Party Committee, Standing Committee of People’s Congress and Beijing until she was send to Labor camp for re-education through labor. On Aug 3rd 2012, Young zhou municipal police department made the decision of sending Tang Laojiao for a year and half. Tang’s lawyer filed administrative reconsideration application for Tang’s Laojiao decision. The news of Tang’s Laojiao soon caused nationwide media attention. The public shocked and outraged by the ruthless of local government. [13] In china, Laojiao or re-education through labor is an administrative law punishment, which means the police department could limit personal freedom as easy as making a traffic ticket without court or procuratorate’s permission. Under the pressure of nationwide attention and media prosecution, the local bureau of re-education through labor administration annulled their decision for Tang’s Laojiao. [14]

(pix: Tang released from Laojiao and cried)[15]

The third episode: administrative litigation against local Laojiao and Public outcry for Laojiao

After the release from Laojiao, Tang hui claimed to the Hunan governor Zhouqiang, Zhou is currently the Supreme Court chief Justice, that she trust Secretary Zhou, Hunan government and Law for a fair treatment of her case. [16] On 2013 Tang failed administrative litigation against Young zhou Laojiao institution for wrongfully and illegal decision of her Laojiao. At meanwhile, she also reported to Hunan provincial Law and Political Committee of CPC seeking investigation on two police officers raped her daughter. On July 2nd 2013, Hunan High court entered into judgment that local police chief who meted out Ms. Tang’s original 18-month sentence offered her an apology. By the day of court judgment, there was no further information on the Law and Political Committee of CPC’s investigation. [17]

Public’s outcry for Laojiao: An illegal creation that against Constitution and Law

Many experts argued that both historical and current Laojiao system is a violation of Constitution and Law[18]. The article 37 of Constitution provided that:

Freedom of the person of citizens of the People's Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ.

Laojiao was first been created in 1955 as a political campaign to limit bourgeoisie and any dissenter of the socialism rather than a law passed by legislature.[19] The current Laojiao was based on State Council’s serious regulations passed during 1982. Although the organic law or Legislation Law was passed in 2000, the Laojiao system still violated Constitution’s rule of limiting the power of restricting people’s freedom. Laojiao system detained people for as long as could be four years without permission of court or procuratorate. The legal basis of Laojiao is State Council’s regulations, which is not sufficient under Constitution and Legislation Law. Under article 8 of Legislation Law,

[m]andatory measures and penalties involving deprivation of citizens of their political rights or restriction of the freedom of their person… shall only be governed by law

The article 8 of Legislature Law of PRC established a principal that only a law passed by the NPC can be used to criminalize activity. In Chinese legal terminology “Law” specifically referring legislation passed by NPC, State Council never had such authority to pass any “Rules” that deprive the freedom of citizen. Currently, Lao jiao only considered as a form of administrative punishment, which only based on State Council’s regulation without support from a law that passed by NPC.

NY Times Chinese online news Commentators

As New York Times Chinese online news commentator Wang qiang suggested, Lao jiao reminds people the absurd word created by Kafka’s Der Process, you could arrested and prosecuted by a remote and inaccessible authority.[20] Your charges are secreted and your punishment is determined. The system of Laojiao mirrored the realities of China’s justice system, the guardian who guards the door “before the law” is more frighten than the peasants.[21] Wang qiang unmistakably pointed out the paradox of Laojiao, the system and its administrators are frighten by the protestors, dissenters and petitioners’ questioning the justice and legitimacy of their actions. In fact, Laojiao is the gate keeper of Chinese “Before the Law” and it conveniently silences all the questions of injustice and legitimacy. Nicholas Bequelin, a senior researcher of Human Rights Watch in Asia Division commented Laojiao was a duplication of Gulag and it conveniently exploited by Political factions during the 50s to purge political dissents. Today Laojiao functioned as an extralegal tool openly against any protestors and dissents. Not only does it against Chinese Constitution but also does it violate China’s obligations as a party to the International Covenant on Civil and Political Rights in 1998.

Under public growing anger and questioning, the authorities felt much less comfortable of this powerful but controversial door, especial this door guard Chinese Justice System and government from outside doubts. The Young zhou district court shooting case already warmed us the collateral damages of such door to Chinese justice system. China’s new leadership Xi and his fellows seemed realized the problem of their inheritance and would probably put reconsideration on Laojiao. At least for the public, there are open discussions on the Laojiao as well as possible reform or abolition.[22] But does this indicating the end of Laojiao, many commentators would disagree on the possibility of such wish. Nicholas Bequelin believed that “an estimated 350 labor camps with about 160,000 inmates — will be closed anytime soon. Presumably the camps will continue to hold inmates sentenced for crimes like drug abuse, prostitution and minor offenses.” Wang qiang further cited other social activist’s that “Reform would not change anything substantially. It must be ended. ” As Wang pointed out many human rights lawyers realized that the key of our issue is not Laojiao or even how to replace Laojiao. The key of our issue is how to substantially realize the restrictions on the discretionary power of police departments and how to protect citizen’s liberty under the Rule of Law. Just as attorney Pu said “Laojiao is not the first and only system unrespects Chinese personal liberty.” Judge Guo xuehong’s personal experience of Laojiao could be a good example for attorney Pu’s statement. He was sentenced to Laojiao merely because he protested his wrongly discharge from position when he not ruling a case in favor of a company with local government background. As he explained “Laojiao became the tool of local corrupted official for personal gain.” Indeed, the unlimited power comes with unlimited price. In the case of Tang, the price is not only bearing by Tang but also bearing by the legitimacy of Chinese justice and state government. “Our lives are not our own. We are bound to others, past and present, and by each crime and every kindness, we birth our future.[23]




[3] Under China criminal procedural law, Tang could file her complaints of Yang to local procuratorate or higher level police department, the municipal level police department in this case. Investigation of rape normally could make by district police station. In case of cover up, like this one, higher level police department may involve for a case normally investigated by lower level police department.

[4] Unlike US, Life sentence divided by life sentence and life sentence without parole, most of the life sentence in China has the possibility of transform into fixed term imprisonment depends on criminal’s performance during his/ her terms)

[5] Cri Law art. 225 sec 3 [China] “if the facts in the original judgment were unclear or the evidence insufficient, the People's Court may revise the judgment after ascertaining the facts, or it may rescind the original judgment and remand the case to the People's Court which originally tried it for retrial.”

[6] Death sentence with two year suspension is an alternative to death sentence, which means if the criminal well behaved in the prison, the criminal could have a life sentence after two years observing instead of death sentence. See Article 50 Anyone who is sentenced to death with a suspension of execution commits no intentional crime during the period of suspension, his punishment shall be commuted to life imprisonment upon the expiration of the two-year period; if he has truly performed major meritorious service, his punishment shall be commuted to fixed-term imprisonment of not less than 15 years but not more than 20 years upon the expiration of the two-year period; if it is verified that he has committed an intentional crime, the death penalty shall be executed upon verification and approval of the Supreme People's Court.


[8] Article 50 Anyone who is sentenced to death with a suspension of execution commits no intentional crime during the period of suspension, his punishment shall be commuted to life imprisonment upon the expiration of the two-year period; if he has truly performed major meritorious service, his punishment shall be commuted to fixed-term imprisonment of not less than 15 years but not more than 20 years upon the expiration of the two-year period; if it is verified that he has committed an intentional crime, the death penalty shall be executed upon verification and approval of the Supreme People's Court.






[14] 唐慧的劳动教养决定经复议被依法撤销





[19] Also see Laojiao: “Law” Beyond Law


[21] 劳教制度的“法外之法” Laojiao: the “Law” Beyond Law

[22] Re-education Revisited, NICHOLAS BEQUELIN January 31, 2013.

[23] David Mitchell, Cloud Atlas.


Paul Van Fleet said...

Great article. Way to go, Shan!

Anonymous said...

top-flight post and i like to signal your posts