In 1955, the Chinese Communist Party (CCP) instigated by Chairman Mao Zedong were trying to uncover counter-revolutionists, not only within the Party but within local communities. This was called the Rightist Movement, after a year long campaign about 100,000 “bad elements” were uncovered. It was impossible for this amount of people to be put through the legal system as it would take too long and their crimes were so small they would be unable to be trialed and so the system of laojiao was brought into effect. According to the 1955 CCP Directive:
The counterrevolutionaries and other bad elements who are uncovered during this campaign, except those who were sentenced to death and those who retain their posts because of the minor nature of their offence, complete confession or meritorious performance, will be handled in one of two ways. One method is reform through labour after their conviction (laogai). The other method is re-education through labour which should be applied to those who cannot be convicted and sentenced, who are not politically reliable and thus cannot retain their posts, and who would increase the burden of unemployment if released to society…They should be gathered together to work for the state and be paid by the state.
It is important also, to make the distinction between the laogai and laojiao system, as was mentioned in the 1955 Directive. Laogai is a penal institute, and although there is forced labour here also, laogai allows for judicial hearings and for the legal court hearings of the person in question. Whereas laojiao is an administrative function of the government and doesn’t allow for court hearings of the individual and is instead primarily controlled extra-judicially (usually through the police). Their principal targets and victims over the next several decades were the wide range of “class enemies” that the new government identified as: former capitalists, rural landlords, religious leaders that were working outside of government control, adherents to Soviet-style socialism, and even, during the Cultural Revolution, countless “new-born bourgeois elements” (a label that was pinned on many members of the Chinese intelligent thinkers, whom Mao despised).
The laojiao system continued like this for some time through the targeting of political offenders. By 1969, however, the system had fallen into decline with only about 5000 inmates reported within the re-education camps. In the early 80’s the Party began a revamp of the system and this resulted in an upward trend of people being sent to the camps. Reasons for detainment moved slightly away from political reasonings and more towards people that were seen as not fitting in with the correct social order such as drug users or prostitutes. In the late 1990’s the number held in RTL had ‘reached 260,000, with 60 percent detained for offenses involving “disturbing public order,” and 40 percent for drug-related offenses’According to reports from detainees since their release, conditions in the laojiao camps were generally abusive, with overcrowded, unsanitary living conditions; inadequate food; endemic violence; and excessive working hours. The camps are really factories, used to produce consumer goods without having to pay a salary. This may seem reasonable for those actually convicted of a crime. This is not the case in the laojiao system as the detainees are held without trial or judicial hearings. The camps often go under two names, a prison name and a public name. For example The Shanghai Municipal Prison is also called Shanghai Printing and Stationery Factory. In the camps, prisoners were sometimes forced to work for up to sixteen hours a day. Sam Lu, a former detainee was held in a laojiao for 2 months in the year 2000, made a statement after being released saying “I was forced to work on exports such as toys and shopping bags without pay, sometimes we were forced to work until 2AM”
In a report from Human Rights Watch in 1998 (while laojiao was still legal), they said of the camps that conditions were harsh and the workload heavy. Inmates work ranged from working in mines and brick factories to heavy agricultural work. The work is monitored by the People’s Armed Police, just as it would in a prison.
Fu Hualing discusses the three presumptions underlying Chinese thinkings about penal labour; that it, firstly transforms detainees, it remodels the detainees and makes them more valuable to society upon release. Secondly, it forms a part of national economy, by educating and transforming individuals. And third, the penal economy makes significant contribution to the state economy. However no statistics are available for the profitability of Chinese penal labour institutions.
A System continued: Black Jails and drug treatment centres
On August 14, 2012, ten lawyers including prominent rights defense lawyer Li Fangping sent a proposal to the Ministry of Justice and Ministry of Public Security demanding reform of the RTL system. The lawyers made the following proposals; that all cases go through administrative hearings, making RTL decisions open to the public, as well as the review procedure; having those that made the decisions on RTL public so that they can be held accountable, allowing lawyers to meet with their clients serving RTL or being ordered to serve RTL without conditions and monitoring; and that no individual over 60 shall serve RTL.
A change for the system began in 2013 with the publicised case of Tang Hui, a mother who was ordered to serve 18 months of laojiao for petitioning against the lack of justice for her daughter. Her daughter was kidnapped and raped at age 11, this started the wave of change needed to outlaw the RTL system. Tang was unhappy with how the police dealt with the situation and went to Beijing to protest. When it was apparent to the government that she would not give up, local authorities arrested her: “When they arrested me they did not say anything. It was only on the second day, when they showed me a piece of paper that I understood they were sending me to a labour camp. I was driven three to four hours to the Bai Ma Long camp. My husband had to chase the car on a motorbike to collect a purse of money for my daughter’s school fees from me. At the camp were mostly drug addicts, petty thieves and other protesters. I told my husband to find me a lawyer and not to tell my daughter what had happened” she was told her crime was “seriously disturbing the social order and exerting a negative impact on society.” As Mrs Tang’s case was already in the public domain there were huge waves of public outcry about her detainment and she was released in a week. On 15th November 2013 due to both international pressure and inner state activists within China, the government announced it would be shutting down the infamous Re-education through Labour camps. However, Amnesty International reports that this seems to have fuelled the use of administrative detention rather than tame it. “Abolishing the RTL system is a step in the right direction. However, it now appears that it may only be a cosmetic change just to avert the public outcry over the abusive RTL system where torture was rife. It’s clear that the underlying policies of punishing people for their political activities or religious beliefs haven’t changed. The abuses and torture are continuing, just in a different way” said Corinna-Barbara Francis, Amnesty International’s China Researcher.
In the Concluding Observations of the Covenant for Economic Social and Cultural Rights 2014, with concern to China they stated as such;
While noting with satisfaction the Decision of the Standing Committee of the National People’s Congress on Repealing Legislation on Re-education through Labour, as was recommended in its previous concluding observations,the Committee remains concerned about the lack of effective implementation of this decision, particularly at the municipal and provincial levels (arts. 6 and 7).
The Committee urges the State party to take all necessary measures to ensure the effective implementation of the decision of the National People’s Congress on the abolishment of the Re-education through Labour system throughout the State party, as well as to ensure that no alternative or parallel system of forced labour is put in place, particularly at the local level.
A report by Human Rights Watch in 2010 said that one of the other administrative punishments outside of the RTL system is that of the drug rehabilitation centres used to ‘treat’ drug addicts in mainland China. However, as the report showed, these centres often denied access to treatment, the patients were often there on a compulsory status, had to partake in unpaid labour and were often subject to ill treatment at the hands of the officers . The report claims that the expansion of the drug rehabilitation centres following an Anti Drug Law that was passed in 2008 gives further authority to local forces to incarcerate people suspected of drug use for up to two years, compared to 6 months in the RTL system. Treating drug users as criminals rather than basing their need for treatment as a health issue is very damaging.
Authorities regularly require that drug addicts kept in the Coercive Drug Rehabilitation Centres undertake a certain amount of productive labor every day, in addition to receiving ‘moral education’. “Authorities schedule and organize the work in a semi-military fashion in order to quickly rebuild offenders’ sense of discipline and help them shed their immoral habits.” Although the government tries to portray Drug Rehabilitation Centres use of forced labor to foster a love for work within the inmates and overcome bad habits such as laziness, no evidence exists between the compulsory work and any actual correctional effects. Instead, coerced productive labor communicates to administrative offenders merely that their violations are punishable, rather than seeing drug addiction as a health issue that people need to try and overcome. This lack of treatment for drug addicts is also impeaching on many people’s right to health. The ineffectiveness of Drug Rehabilitation programmes can be seen in the high recidivism rates of drug addicts upon entry back into society. One study showed rates of 60 to 95% recidivism within one year amongst ‘detoxified’ patients.
Chinese society widely perceives drug addiction as a criminal misdemeanor rather than a disease. Thus, the public views drug abuse as an unethical behavior that contradicts social values and morality. As a result, rehabilitated drug addicts generally face great hostility from the community, and even from their own families, when they return to conventional life 238
However, there are some positives. If we look at some of the community based programmes for drug addicts (bangjiao) that are relatively new in China, the results for recidivism are much better. The approach taken by the community based programmes are a ‘soft educational’ approach. The community and the offender’s family and friends work together to try and prevent them becoming alienated in the community and therefore more likely to fall back into drug use. They also try and arrange employment for the offender amongst release from detention. The community based approach has seen positive results since its initiation in 2003. In 2008, the recidivism rate of offenders who took part in community corrections in Shanghai was 0.73%. It is very clear that administrative detention in dealing with drug offenders is not having the desired effect. In trying to ‘reeducate’ offenders and remodel them through hard labour, the administrative system is in fact having the opposite effect and alienating people in a way that they feel drugs are the only escape. Community Correction is currently not being applied to its full advantage. It is only used after release from administrative detention, or with certain inmates who were permitted to serve their sentences outside of prison. If China broadened the scope of community correction and it started to override the use of administrative centres, I think they would see drastic improvements in not only recidivism but in drug use in general.
‘During a March 2010 United Nations examination of China’s human rights record a Chinese government official insisted that, “There are no black jails in the country.” On March 13, 2012, a foreign ministry official gave that same answer to Beijing-based ITV correspondent Angus Walker, who like Al Jazeera had also stumbled upon a black jail facility that week.’
https://www.hrw.org/news/2012/03/15/beijings-black-jails
Statistics are impossible to obtain, due to the lack of transparency in the legal system and the difficulty in differentiating between politically motivated and non-political public order charges. But activists and petitioners also say they are experiencing more criminal detentions than before since the abolition of re-education through labour.http://www.scmp.com/news/china/article/1492192/china-using-criminal-detention-place-re-education-through-labour
https://www.hrw.org/report/2010/01/07/where-darkness-knows-no-limits/incarceration-ill-treatment-and-forced-labor-drug
The most glaring example of this practice is use of so-called “residential surveillance” by the Chinese government. Under this system, an individual can be detained by police without charge while the government conducts an investigation. While in theory an individual should usually be subject to “residential surveillance” in their home, broad exceptions allow authorities to hold a suspect elsewhere for up to six months. 7 This legal regime was used to justify the detention of 2010 Nobel Peace Prize Laureate and Chinese democracy activist Dr. Liu Xiaobo for six months prior to his formal arrest—much of it completely incommunicado at an unknown location. As noted by the Working Group in Opinion No. 15/2011: Mr. Liu Xiaobo was not informed, at the time of arrest, of the reasons for his arrest or promptly informed of any charges against him. He was not brought promptly before a judge. He was held incommunicado for an extended period and not granted access to legal counsel. The pre-trial detention of Mr. Liu Xiaobo constitutes a clear violation of Article 9 [of the Universal Declaration of Human Rights].
UN working group arbitrary detention 2013
http://www.ohchr.org/Documents/Issues/Detention/DraftBasicPrinciples/FreedomNow.pdf
Authorities may detain drug addicts for up to two years if they refuse treatment or fail to detoxify. The compulsory treatment also may require the detained drug addict to work, since productive labor is considered contributory to detoxification. 225
likely that the government will abandon them. Hence, given that the Chinese government continues to rely upon administrative detention as an aide to carry out the administration of criminal justice, it is likely to continue using administrative detentions as auxiliary criminal sanctions, serving the functions of punishment, retribution and deterrence. More worrisome, the irregularity and unpredictability in the legal practice in contemporary China indicate that authorities are, in effect, unwilhng or unable to clarify the distinction between a criminal justice system and an administrative law regime. 229
-Vincent E. Gil & Allen F. Anderson, State-Sanctioned Aggression and the Control of Prostitution in the People’s Republic of China: A Review, 3 AGGRESSION & VIOLENT BEHAV. 129, 137 (1998)
Can China be held accountable?
The International Labour Organisation defines forced labour in the Labour Convention of 1930 as: “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.
In article 2 part c of the convention, it indicates that it would be considered lawful to enumerate work or service from a person as a ‘consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority’.
China’s use of forced labour therefore is against the definitions laid out in the convention on the basis that the person did not offer themselves voluntarily, and also they were not convicted in a court of law, they were convicted administratively. However, China is one of only 9 states including Afghanistan and The Republic of Korea who has not signed or ratified The Labour Convention, therefore they cannot be held accountable to these aspects of the ILO convention.
When considering China and the ICCPR (International Convention for Civil and Political Rights). As of the 5th of October of 1998 China has signed onto but has not ratified the Convention. Still, by signatory they have to “refrain from acts which would defeat the object and the purpose” of said treaty unless the state has made it clear it has no intentions of being party to the treaty. In saying this China is bound at the very least not to work or act against the will of the treaty which states in Article 9 that:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
People taken into RTL are taken in to do labour against their will. But this work is not grounded on any form of judicial decision, therefore under the Covenant, it appears to be forced labour Article 8 (3) and denies personal liberty: article 9 ICCPR
The UN Working Group on Arbitrary Detention (UNWGAD), the UN body charged with investigating cases of arbitrary detention, formed three separate categories to help define when detention can be called arbitrary. First, when there is no legal justification for the deprivation of liberty. Second, the deprivation of liberty in response to the legitimate exercise of certain freedoms enshrined in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Third, the failure to observe international norms related to a fair trial, resulting in “such gravity as to give the deprivation of liberty an arbitrary character.” In accordance with the UDHR and ICCPR, defendants are entitled to the following procedural protections: (1) the presumption of innocence, (2) a public hearing before an independent and impartial tribunal, (3) legal counsel of his or her choosing, (4) free legal counsel if indigent, (5) adequate time and resources to prepare a defense and communicate with legal counsel, and (6) to examine and obtain evidence from adverse witnesses.
In other words, public systems exercise their administrative power to detain without any procedural capabilities. “This system blocks offenders’ access to other legal institutions and lawyers, while also denying them a proper legal procedure to challenge and restrain the police’s administrative detention power”.
It is very clear then that if we consider these wordings and conventions on forced labour and compulsory labour that China is violating international law by not allowing for due process. Chinese police regularly impose prolonged sentences, thereby compromising protections enshrined in the Chinese Constitution itself and laws outlined in The Administrative Punishments Law. The Constitution, for instance, prohibits arrest without prior authorization from a court or the People’s Procuratorate. Furthermore, the Administrative Punishment Law, introduced in 1979 requires that procedures for administrative punishment are “just, open, and based on facts, and that the punishment is proportionate to the degree of social harm inflicted” Therefore, China is not only going against many of the treaties of the UN but also infringing on their own constitution.
One of the new resolutions from the Human Rights Council is that of the Universal Periodic Review, which was adopted in 2006. It is a system of peer review from other states, which rather than naming and shaming states for violations of human rights, allows discussion and implementation of serious change. This could be a useful system in holding China accountable for their use of extra-judicial forms of punishment. China has long withstanding been a member of the UN, since its inception in fact. They are a permanent member of the Security Council and have been appointed member of the Human Rights Council on numerous occasions. At the time of their first dialogue with the UPR procedure in 2009, they had ratified 6 of the 9 core treaties. An important aspect of the UPR system is that every member of the UN is reviewed, not only ratified treaty states. Canada, Nigeria and India were the member states reviewing China.
Many of the proposals put forward by states enjoyed the support of China. These included ‘publishing the 2009-2010 national human rights action plan, human rights training for judges, lawyers, prison staff, and further ensuring the cultural rights of minorities. Around forty-nine other recommendations did not enjoy the support of China. Unacceptable recommendations related to issues such as abolition of the death penalty, establishing a national human rights institution and freedom of expression and information.’ As China has not ratified the ICCPR, and therefore does not have to submit periodic reports to the Human Rights Committee, the Universal Periodic Review is a good standpoint for China to answer questions to the standards by which they should still adhere to these rights. Considering China has such a large stake in the UN system as a whole, the UPR is a good way of communicating and putting pressure on the country to not only remove the laojiao system but remove the ongoing forms of extra-judicial punishment.