China's unjust labour camps must go
John Gong believes that those who challenge China's unjust and absurd punishment of labour re-education are vital in the larger push for change, even if they don't at first succeed
Imagine you are a young man standing handcuffed in the Old Bailey, London's courtroom, in 1791, facing a capital crime for which you have been framed. Enter William Garrow, a young defence lawyer, uttering these words: "Innocent until proven guilty!" - which saved you from the gallows, and also saved justice from the gallows.
The principle of the presumption of innocence, although often attributed to Garrow, can actually be traced back to earlier times. A sixth-century Roman law provided "Proof lies on him who asserts, not on him who denies" as a rule of evidence. Today, this is a basic principle when it comes to criminal matters in all jurisdictions around the world. For example, Article 12 of China's Criminal Procedure Law states: "No one is found guilty unless and until determined by a people's court."
Yet when it comes to a type of punishment known as re-education through labour, which is akin to a jail sentence after a court conviction, the people's court is nowhere in sight.
The practice stems from a 1957 State Council decree regarding job training for those, such as drug addicts or prostitutes, caught committing minor crimes. The purpose was to re-educate these people, giving them new skills so they could re-enter society with the means to support themselves. That is how the name, re-education through labour, came about.
Notwithstanding the legitimacy and legality of maintaining the practice for more than 50 years, with respect to compliance with the constitution in today's environment the rule was never meant to function as an alternative to criminal law. Yet it has been abused by authorities to such an extent that it now makes a mockery of the criminal law system.
In short, there is no court to hold deliberation, not even a kangaroo court. No jury. No judge. No reasonable doubt. No legal representation by an attorney. The accused has essentially no rights at all. The prosecutor is the judge and jury. Whatever he says is deemed to be the truth and a person has to accept whatever accusations he makes, and take whatever sentence he prescribes.
That is what has happened to four unfortunate individuals recently, and their experiences in the re-education-through-labour system have stoked nationwide attention. Ren Jianyu , a college graduate in Chongqing who worked as a village-level administrator, was taken away from his residence after reposting on the internet several articles by other writers criticising the Maoist revival campaign. The content of the posts may be politically questionable, but they are certainly well within the legal realms of speech allowed in public. Yet Ren was rushed through the re-education-through-labor system without due process.
After serving a sentence of more than a year, he sued the authorities in Chongqing. The first round of proceedings dodged this important issue, citing instead a legal technicality, and a verdict was handed down that sided with the government. Ren is now appealing.
Zhao Meifu's case is more bizarre. She is in dispute with her local government in Lanzhou , Gansu province, and has made several trips to the State Bureau for Letters and Calls in Beijing, a central government organisation that handles citizen complaints and appeals. But after she visited her son, who is at college in Beijing, she was taken back to her hometown by police and ordered to do a year of labour re-education because the local government believed her trip had been another attempt to visit the bureau.
Then there is the case of two villagers in Chengde , Hebei province, who were given a year of labour re-education after they got into a drunken scuffle.
This legacy of the revolutionary era has outlived its time; it has become an embarrassment, if not a liability, to China's legal system. Without checks and balances, it is only natural that the system will expand outside its boundaries. Defenders of the system would argue that China has its own unique characteristics and, without labour re-education, public security officials' hands would be tied. They would argue this is really not a sentence or an administrative punishment.
But surely procedural justice and legality must come before efficiency at any time. Fundamentally, we are talking about depriving people of their freedom and setting the terms of their incarceration - something that can only be decided by the people's court, according to the relevant laws. Public security departments and even the State Council are not endowed with such rights.
Any incumbent and entrenched system is always difficult to dismantle, given the vested interests within it. Individual citizens currently challenging the labour re-education system may appear to be engaged in a futile battle. But it is precisely these seemingly hopeless efforts that will eventually muster wider public support and so will eventually come to the attention of the top leadership. These people may still lose their cases. They may still lose the battle. But the nation as a whole will win the war.
John Gong is associate professor at the Beijing-based University of International Business and Economics. firstname.lastname@example.org