My research assistant WANG Keren has prepared an excellent paper on the abolition of the laojiao system from the perspective of Chinese constitutional principles. It is well worth reading.
Laojiao System, Constitution, and the Mass Line of the CPCKeren WangFebruary 10, 2013The Chinese authority signaled the possible abolition of its controversial or laojiao system (often referred to as the "Chinese labor camp" system in the West) during the National Conference on Procuratorial, Judicial and Public Security Affairs that took place in Beijing earlier this year. According to several major Chinese news sources, Meng Jianzhu, Secretary of the Central Political and Legal Commission announced during the National Conference that “the re-education through labor system will be terminated by the end of this year upon approval from National People’s Congress Standing Committee (NPCSC)”Meng’s comment signals a critical development. It comes at a time when the laojiao system is receiving increasing public scrutiny following several well-publicized scandals relating to the use of extra-judicial detention by local governments against “contumacious” individuals. Although the Xinhua news agency later replaced “terminate” with “further reform the laojiao system” in its official report of the National Conference, subsequent development nonetheless supports the speculation that China’s central government is committed to phase out its half-century old labor camp system. On February 5th, Yunnan provincial government announced that Yunnan Province would no longer approve cases in which people are sent to re-education labor camps on grounds of threatening national security, petitioning by causing unrest, and smearing the image of officials. The Secretary of Yunan’s Politics and Law Committee told reporters that the laojiao approval process has been suspended for all cases within the province. It is important to see whether other provinces will follow Yunan’s lead in abolishing the use of laojiao.The term “laojiao” is an abbreviation of “laodong jiaoyang (劳动教养)”, which literally translates as “reeducation through labor”. Laojiao targets those individuals who have committed “minor offences” that do not amount to criminal liability. It is an compulsory administrative penal system which seeks to “reform and correct” those individuals through forced labor and detention. Laojiao received its present name from the 1957 ordinance titled “Resolution on Approving the Decision of the State Council on the Issue of the Reeducation through Labor (关于劳动教养问题的决定)”. The 1957 resolution is the principle document providing the legal basis for the laojiao system, it stipulates:In accordance with Article 100 of the Constitution of the People's Republic of China, for the purpose of reforming those idling, law-breaking, discipline-breaching, duty-neglecting but work-capable individuals into self-reliant people of new work ethic; also for the purpose of further maintaining public order and promote socialist construction, the following decisions have been made concerning the issue of reeducation through labor:I. Education through labor should be accommodated for the following types of people:1 ) Those who are derelict in duty and run irrelevant business, or commit acts hooliganism, theft, fraud, violation of public security management that are incorrigible but cannot be held criminally liable;2 ) Those counter-revolutionists and anti-socialism reactionaries who have committed minor offences that cannot be held criminally liable, and have been expelled from institutions such as government organs, organizations, enterprises and schools which resulted the loss of their livelihood;3 ) Those work-capable individuals received expulsion from institutions such as government organs, organizations, enterprises and schools either due to long-term idling, breach of discipline, or impair public order, which resulted the loss of their livelihood;4 ) Those who disobey work allocation and employment placement, or those incorrigible, contumacious individuals who refuse to engage in labor productivity, and continuously engage in activities that obstruct official business. Paragraph V of the 1957 regulation further provides that laojiao authorities are established by the provincial level governments, and the entire laojiao process is handled by the local civil affairs and public security departments. The NPC Standing Committee approved “Supplementary Provisions by the State Council on Reeducation through Labor” in 1979, which allowed detaining individuals in laojiao labor camps for up to four years. The Supplementary Provisions also established Reeducation through Labor Management Committee (劳动教养管理委员会) as the sole organ responsible for reviewing and approving laojiao cases. Subsequently, the public security departments further expanded the scope of the laojiao system to include drug addicts, prostitutes, and compulsive gamblers.From the 1957 Resolution we can see that the laojiao system was supposedly adopted “in accordance with Article 100 of the Constitution of the People's Republic of China”. The Constitution of the People’s Republic of China was first enacted in 1954. Subsequently, the Chinese constitution experienced three major revisions, in 1975, 1978, and 1982. Article 100 of the 1954 Constitution stipulates that:“Citizens of the People’s Republic of China must abide by the Constitution and the law, uphold discipline at work, keep public order and respect social ethics.”Article 100 became Article 53 in the current 1984 version of the Constitution, and the language of the article remained mostly unchanged.  Article 53 deals with the duties of the citizens, it does not explicitly provide means for the state to exercise judicial authority. By citing this Article, the 1957 Regulation implies that the administrative apparatus may forcefully deprive a citizen’ personal freedom for the purpose of enforce work discipline or promote social ethics, even when the given individual is without any criminal liability or has committed minor offense that does not amount to incarceration under the criminal code. Such disciplinary system is markedly problematic as both 1954 and 1982 versions of the Chinese Constitution offer protection from arrest and detention without judicial process for Chinese citizens. Article 89 of the 1954 Constitution provides that: “Freedom of the person of citizens of the People’s Republic of China is inviolable. No citizen may be arrested except by decision of a people’s court or with the sanction of a people’s procuratorate.” Article 37 from the 1982 Constitution also confirmed the due process requirement:“Article 37. The freedom of 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. Unlawful deprivation or restriction of citizens' freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited.”Against the explicitly written language from Article 37 is the fact that the entire reeducation through labor process is without judicial review and completely bypasses all judicial organs of the state (people’s court and people’s procuratorate). Furthermore, Article 5 of the 1982 Constitution imposes strict duty for state organs to adhere to constitutional principles:No law or administrative or local rules and regulations shall contravene the constitution. All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law.In comparison with its Western counterparts, the Chinese constitutional development is only in its nascent stage—it is still rudimentary and suffers from many shortcomings. It can be said that the most critical deficiency for Chinese constitutional system is the unbridgeable gap between “form” and “reality”. The laojiao system clearly reflects such deficiency—that a conspicuously unconstitutional penal system has managed to persist for more than half-a-century. The successfulness of the Chinese constitutional construction directly affects the legitimacy of the Chinese government under CPC leadership. Constitutionalism, at its core, is form of ideology. Constitution only functions through the internalization of normalization of its principles into the public memory. The discipline and internalization of constitutional ideal is achieved through a prolonged process of consolidation that involves both institutional design and strict compliance of constitutional principles. It follows that the rule of law is in fact rule of norms, and it is impossible to promote constitutional norms without consistent adherence to both written and unwritten constitution.To be sure, the problem associated with the laojiao system is not unique to China. The United States, too, has been criticized for violating the due-process requirement—most notably for the Japanese-American interment during WWII and the more recent Guantanamo Bay controversy. Similar to the Japanese internment camp and the Guantanamo Bay prison, China’s labor camp system was also created in response to unique exigencies arose during unusual periods. The fact that the 1957 Resolution targets “counter-revolutionists and anti-socialism reactionaries” implies that the laojiao system emerged as a political device to consolidate the power of the incipient Chinese government during the tumultuous early years of the People’s Republic. As a revolutionary party, the CPC-led government in its early years adopted harsher measures against its political opponents. Those harsher measures have been institutionalized into two unique disciplinary systems—laojiao and shuanggui (CPC’s internal party discipline system). While both laojiao and shuanggui bypass formal judicial process, Shuanggui is a narrowly-applicable CPC internal discipline system that only targets Communist Party cadres. Laojiao, on the other hand, functions as a pervasive administrative penal system that targets the general public. As the CPC moves from a revolutionary party into a ruling party that represents the will of the masses, a system that was designed in the Revolutionary Period to promote stability is increasingly becoming a major source of instability. Being an extra-judicial form of discipline directly against the masses, the laojiao system not only violates constitutional principles, it is also contrary to the CPC's Mass Line.The “Mass Line” is a founding principle for the Communist Party of China, it expresses the need for the party to stay connected with the general public by both adequately serving and representing the interest of the masses. The CPC maintains its proper role by leading, advising and pointing the way forward and by ensuring that the state organs would adhere to the constitution principles, which reflects the Party line for a goverment that best serve the people. In this respect it is useful to remember Deng Xiaoping’s remarks made in 1957:“Our Party is the ruling party and enjoys high prestige. A good many of our cadres hold leading posts. In China who is in a vulnerable position to make big mistakes? None other than the Chinese Communist Party. When it makes such mistakes, the effects are most widespread, so the Party should be particularly careful. The Party's leadership position is stipulated in the Constitution. If the Party wants to exercise good leadership, it should constantly overcome subjectivism, bureaucratism and sectarianism, accept supervision and expand democracy within the Party and the state. If we do not accept supervision or work to expand democracy within the Party and the state, we shall surely cut ourselves off from the masses and make big mistakes. If we handle affairs behind closed doors, rest content with our long years of experience and refuse to listen with an open mind to opinions from the masses and non-Party people, we are most likely to become uninformed and consider problems in a one-sided way, thus inevitably making mistakes. (Deng Xiaoping, “The Communist Party Must Accept Supervision” April 8, 1957, Vol. 1 Selected Works of Deng Xiaoping) The adherence to the Mass Line was also confirmed by the current CPC leadership, where Xi Jinping recently wrote that:“To fully utilize the Party’s advantage in connecting with the masses, the most important is the need to adhere to our party’s basic principles, thoroughly implement party’s general policies for the masses, so that all the works of the Party may reflect the will and interest of the people. We shall maintain and develop the progressiveness and pureness of the party through our work ethic and style”It follows that through the principle of adherence to the mass line, the CPC is obligated to form a government for the people, which has been accomplished through the promulgation of a written constitution. The Chinese constitution therefore reflects the official Parry Line. Being an extra-judicial form of administrative discipline directly against the masses, the laojiao system not only violates constitutional principles, it is also contrary to the CPC's Mass Line. The continuing presence of the reeducation through labor system poses a major roadblock to the development of a CPC-led harmonious socialist society under the guidance of rule-of-law. What we may be seeing is that a system that was designed in the Revolutionary Period to promote stability is increasingly becoming a major source of instability as China continues to develop under CCP leadership. The CPC's scientific development principle itself suggests that when an administrative discipline system becomes a relic from the past, it is perhaps time for it to go.
 “全国政法工作会议:今年停止使用劳教制度 (National Conference on Procuratorial, Judicial and Public Security Affairs: Terminating Laojiao System This Year)”, China.com, Jan. 7th, 2012. Retrieved: Feb. 8th, 2013. http://news.china.com/domestic/945/20130107/17618589.html Lilian Lin, “Mother’s Labor-Camp Sentence Sparks Fury”, The Wall Street Journal, August 6, 2012. Accessed Feb. 8th, 2013: http://blogs.wsj.com/chinarealtime/2012/08/06/mother%E2%80%99s-labor-camp-sentence-sparks-fury/“The plight of a mother sentenced to a labor camp for demanding tougher punishment for those who allegedly raped and forced her daughter into prostitution has rallied China’s online community — and even prompted an official rebuke from the Communist Party’s main mouthpiece.Tang Hui was sent to one and a half years of labor education last Thursday. According to a statement from local police in the city of Yongzhou, Ms.Tang had been urging officials to give the seven suspects in her daughter’s case the death penalty. Two of them were sentenced to death, four to life imprisonment and one to 15 years in prison this June.” Jiang Shigong, “Abandoning RTL a Critical Step Toward Complete Rule of Law”, Feb. 5, 2013: http://blog.sina.com.cn/s/blog_6d8baa340101drap.html Ibid., “Although a Xinhua news dispatch later that day replaced “stop using” with “further advance the RTL system reform” it did not deny that the recently the central government has decided to go with the historical trend and popular wish for the gradual discard of the RTL system.” “云南暂停三种行为劳教审批 丑化领导人形象不再劳教 (Yunnan Suspends Three Types of Laojiao Approval, Including Smearing the Image of Political Leaders)”, Xinhua News, February 7, 2013: http://news.xinhuanet.com/legal/2013-02/07/c_124332693.htm See Jiang Shigong, “Abandoning RTL a Critical Step Toward Complete Rule of Law Abandoning RTL a Critical Step Toward Complete Rule of Law”: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 violation of the law or minor crime that is not serious enough to apply criminal prosecution on. To understand the RTL system one needs to know the following facts:1. RTL by nature 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 adminstration to put someone under the RTL system, which is run by the judicial executive departments under the organs of related local adminstration.2. RTL in fact 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 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 difference found mainly in form or 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 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. “Introduction to China's Reeducation Through Labor System (中国劳动教养制度简介)”, Bureau of Reeducation-through-labor Administration, accessed Feb. 9th, 2013: http://www.legalinfo.gov.cn/moj/ldjyglj/2003-05/28/content_19622.htm “Resolution on Approving the Decision of the State Council on the Issue of the Reeducation through Labor国务院关于劳动教养问题的决定”, approved August 1, 1957, the 78th meeting of the Standing Committee of the National People's Congress; announced August 3, 1957, the State Council. Trans. Keren Wang: http://www.legalinfo.gov.cn/moj/ldjyglj/content/2011-07/07/content_2785231.htm?node=258 Ibid. Supplementary Provisions by the State Council on Reeducation through Labor (国务院关于劳动教养的补充规定), November 29, 1979, the 12th meeting of the Standing Committee of the National People's Congress approved the promulgation of the State Council on November 29, 1979, available at: http://www.legalinfo.gov.cn/moj/ldjyglj/content/2011-07/07/content_2785232.htm?node=258 Wang Yijun, “What are the Difficulties for Laijiao Reforms (劳教制度改革难在哪)”, China Youth Daily 2012-09-06 at p.11: http://zqb.cyol.com/html/2012-09/06/nw.D110000zgqnb_20120906_2-11.htm Constitution of the People’s Republic of China, Adopted on September 20, 1954 by the First National People’s Congress of the People’s Republic of China, at its first session, Article 100, Foreign Language Press, 1954: http://www.hkpolitics.net/database/chicon/1954/1954ae.pdfSee Constitution of the People’s Republic of China, Adopted on December 4, 1982: http://english.people.com.cn/constitution/constitution.htmlArticle 53. Citizens of the People's Republic of China must abide by the constitution and the law, keep state secrets, protect public property and observe labour discipline and public order and respect social ethics. Constitution of the People’s Republic of China, Adopted on September 20, 1954, Article 89: http://www.hkpolitics.net/database/chicon/1954/1954ae.pdf See Constitution of the People’s Republic of China, Adopted on December 4, 1982, Article 37: http://english.people.com.cn/constitution/constitution.html Larry Catá Backer, Abolishing Laojiao 劳动教养 in China; is Shuanggui Next?, Law at the End of the Day, (January 07, 2013) available at http://lcbackerblog.blogspot.com/2013/01/abolishing-laojiao-in-china-is.html.“Because Laojiao can be understood as the civilian equivalent of the Shuanggui (Part discipline) system, it is possible that these moves may portend at least some revisions ot the current form or operation of the Shuanggui system, and perhaps, even its abolition. What it will be replaced with is unclear. On the other hand, even though the techniques are similar, Shuanggui serves very different purposes and is targeted to a group of people with substantial political obligations as members of the Party in Power. Laojiao, on the other hand, targets the masses, and in that sense duplicates and to some extent subverts the administrative order created through the governmental system created through the Chinese Constitution. It is unnecessary. Shuanggui deals with political, rather than administrative, breaches that touch on the disciplinary functions of the Party. It is in this sense beyond the competence of the administrative authorities represented by the government apparatus. This may produce some refinement in the Shuanggui system but not necessarily its elimination.” See Resolution on Certain Historical Issues Facing the Party since the Founding of the State (关于建国以来党的若干历史问题的决议), The Eleventh Central Committee of the Communist Party of China (June 27, 1981, the sixth plenary session unanimously adopted), sec. 30, paragraph 2. Available at: http://cpc.people.com.cn/GB/64162/64168/64563/65374/4526448.html Larry Catá Backer, Thoughts on Emerging Trends in Chinese Constitutional Thought on the Eve of the 18th Party Congress, Law at the End of the Day, (November 06, 2012) available at http://lcbackerblog.blogspot.com/2012/11/thoughts-on-emerging-trends-in-chinese.html