'Social order,' said William Ellery Channing, 'is better preserved by liberty, than by restraint.' Although the rights of the individual are legally recognised in mainland China, real progress towards a human rights regime which satisfies international norms is being hampered by the continuing use by the police of administrative detention against particular people.
The Chinese constitution, reflecting international human rights guarantees, prohibits the 'unlawful deprivation or restriction of citizens' freedom of person by detention or other means' (article 37). The recently amended Criminal Procedure Law also adopts the concept of 'respect and protect human rights' as a general principle of law. Moreover, when President Hu Jintao addressed party leaders last month, he stressed the need to uphold justice and the rule by law, and urged that the people's rights and freedoms be safeguarded.
However, when Song Ningsheng and Zeng Jiuzi were ordered last month by the authorities in Jiangxi to be detained in a labour camp for 14 months, their legal rights were of little help. The pair, who have unsuccessfully petitioned mainland officials to investigate the deaths of their spouses, were being punished for having participated in the July 1 protest march in Hong Kong. Instead of being tried by the courts for their alleged illegality, they were dealt with by the police under the system of administrative detention, which is operated by the public security organs and is not subject to judicial control.
Having regard to the length of the detention and the circumstances, Song and Zeng appear to have been ordered to undergo re-education through labour (laodong jiaoyang, or laojiao for short), which is the most stringent form of administrative detention. In 2004, Alex Ho Wai-to, a local politician and Legislative Council electoral candidate, suffered a similar fate when he was sentenced to six months of laojiao for having allegedly consorted with a prostitute while on a business trip to Guangdong, something which he denied.
Re-education through labour involves extrajudicial detention, and suspects can be incarcerated for substantial periods without reference to prosecutors, judges or lawyers. The police determine the length of the detention, which usually ranges from one to three years, although this may be extended to four years if the suspect is adjudged not to have been sufficiently re-educated when the term is up, or has not admitted guilt, or has violated camp discipline.
Moreover, the maximum terms available often exceed those prescribed for comparable criminal offences. For example, misdemeanours attract imprisonment of only between one and six months. In cases that are problematic, laojiao provides the police with a convenient means of dealing with an individual, which they do not have to justify.
