The Chinese Law Prof Blog has posted a translation of a commentary by Chinese Academy of Social Sciences Professor Li Dun that appeared in the April 7 Southern Metropolis Daily about proposed reforms to the “re-education through labor” system:
The legislation changing “re-education through labor” into “education and correction for illegal acts” was not passed in the 10th National People’s Congress, as some had hoped. The 11th Congress just held its third session, and again a draft proposal was put forward. Public debate has been unceasing. There is a saying that the difficulty with this law is in reconciling two interests: that of “protecting the lawful rights and interests of those subject to re-education through labor,” and “to let the RETL system play its role in protecting social order and stability.” They may be labeled as “parties to re-education” or in other places are labeled as those stripped of their liberty “in order to protect the rights of the great majority” or those who have their rights “controlled” or “cut down” (克减). But are protecting people’s rights and preserving social stability really in conflict?
How do we decide the nature of some people’s behavior or some social phenomena? What kind of response should law and policy give to this behavior and phenomena? What ideas support and sustain our system and its reform, and what should those ideas be? In the transformation of China today, we need to seriously consider these questions.
Whether the old system of RETL, which exists today, should continue into the future, is not only a question of whether its legal basis is sufficient. It would be easy to make a new law of the State Council’s regulations in 1957 and 1982, and the Ministry of Public Security’s trial measures on RETL. It could be passed as is by the Standing Committee of the NPC. And it is not only a question of whether this type of decision on “administrative punishment that restricts personal liberty” (Administrative Penalty Law) must come from a court decision. Because history demonstrates that court judgments alone are not a guarantee of justice and freedom from error. And it is definitely not only because it is applied in an arbitrary and chaotic fashion, or that it may be used by party and government officials to strike against those reporting on corruption, or petitioners, or those involved in mass incidents. Because for many years different laws and policies have been in conflict with one another, and law enforcement officials have used their own differing standards in applying the rules. This could be resolved by careful efforts to standardize decision making. But arbitrariness in applying the law and in the use of official power, and judgments that pervert the law, is not something that a new legal basis will be able to resolve.