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Calls for Reform,
Voices for Retention
There is no shortage of reasons why RTL has been targeted for reform,
particularly as the terms of administration and sentencing have grown
increasingly broad and vague, with elastic regulations enacted in 1979
expanding the categories of actions punishable through the system. RTL
violates the guaranteed rights of access to a lawyer and an open hearing
contained in China’s Criminal Procedure Law. Furthermore, the
Legislation Law adopted in 2000 clarifies that “coercive measures and
penalties involving deprivations of citizens’ political rights or
restriction of their personal liberty” shall “only be governed by
law”—not merely the use of regulations. A practical argument aimed
directly at police conduct is that RTL exacerbates police abuses that so
often go unchecked, and that it contributes to the very social
instability it is intended to prevent.
The basis for much of the international opposition to RTL is that it
runs counter to prohibitions on arbitrary detention and forced labor
laid out in the
International Covenant on Civil and Political Rights (ICCPR),
which China signed in 1998 but has not ratified. This February, many
countries and represented bodies called for the abolition or reform of RTL at
China’s Universal Periodic Review (UPR) of its human rights
record before the UN Human Rights Council. China responded that its
State Council has decided to formulate a law on “correctional
services”—the term the government uses in comparing RTL to systems in
other countries—and that reform of RTL is “envisaged” as part of this
new law.
But this has not led to a flood of optimism, since so many suggested
reforms have failed to address RTL’s violation of basic rights or have
simply gone unfulfilled, like reducing the duration of terms, removing
gates and bars, and changing the name of facilities (to “correctional
centers”)—all of which were announced in 2007, when the Chinese
government said it would abolish the present system. Among purely
administrative suggestions, some Chinese NGOs and ministries, including
the Ministry of Health and the Ministry of Civil Affairs, have proposed
running aspects of RTL. More substantive proposals call for court
hearings and representation by a lawyer, but such ideas have not been
put in place.
Supporters of RTL say it gives police flexibility to punish minor
offenders in a way that forgoes the bureaucracy of overburdened criminal
courts. It has also been argued that Chinese police, often under-staffed
and ill-equipped to deal with increasing crime, would lose an effective
tool for maintaining social order if RTL were heavily reduced or
abolished. And some pragmatists, while not openly condoning the system,
point out that RTL sentences can be preferable to prison terms, since
individuals may serve longer in prison than in RTL for similar offenses.
Visible Signs of “Reform”?
While NPC discussions on RTL have not yielded official results, the use
of RTL appears to be declining. At China’s UPR, a Chinese MOJ
representative stated that, at the end of 2008, approximately 190,000
individuals were being held in 320 RTL facilities. Though these
statistics differ from those on the MOJ website, the RTL detainee total
is down sharply from a reported 310,000 individuals held ten years ago.
Much of the decrease is due to some drug-related offenders being sent to
rehabilitation facilities. There may also be an effort to scale back RTL
prior to enactment of laws that would alter or abolish the practice. In
addition, it is conceivable that more individuals charged with offenses
that “disturb the social order” who would have once been sentenced to
RTL, like Falun Gong practitioners, are having their cases heard in
criminal courts.
China’s National Human Rights Action Plan for 2009–2010, released in
April, may initiate changes to RTL. On paper, the plan looks to
“strengthen work to improve democracy and the rule of law” and better
protect civil and political rights—ideal steps for reform or abolition
of RTL. But even in China, much less abroad, such goals are seen as
easily uttered by the government but far harder to actually achieve.
RTL’s Legacy As Systemic Flaw
It is tempting to think the diminished use of RTL represents a step
toward abolishing the system—to be replaced by misdemeanor courts and
alternative punishments like community service—and even ending arbitrary
detention altogether. This view is probably too optimistic, as there are
a wide array of facilities in China where people are placed without
trial: “drug rehabilitation centers,” “psychiatric detention
facilities,” “custody and education” centers for pimps and prostitutes,
“work-study camps” for juvenile offenders, and “legal education centers”
for “seriously poisoned” Falun Gong practitioners, and even “old
people’s homes” for clergy of the underground Catholic Church. In
addition, migrant workers and petitioners can be confined in “black
jails” before being sent back to their hometowns.
China simply cannot develop into a rule-of-law society if it keeps
operating RTL. Whatever RTL’s eventual fate, its imprint on Chinese
society has been profound, with millions having been sentenced to RTL in
violation of their rights. From its inception, RTL has cast a dark
shadow over China—but probably none darker than it does today, when more
citizens are demanding the institutions and systems that deal with
criminal allegations do so with greater legitimacy and transparency than
ever before. ■
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