China is taking a fresh look at abolishing the long-disputed
re-education-through-labor system, or laojiao, by proposing a new
law which is more lenient and protective of the legal rights of
minor offenders.
According to the annual legislative plan released on Tuesday by
the Standing Committee of the National People's Congress (NPC), the
top legislature, the proposed law on correction of illegal acts is
among the 20 draft laws or amendments to be discussed this
year.
Listed in NPC's annual legislative plan since 2005, the draft
law was put aside for two years because of disagreements, and the
standing committee said there are still "lots of disagreements"
this year.
Law experts have described the law as "a concrete step to
protect human rights as endowed by the Constitution".
Laojiao, an administrative measure adopted in 1957, empowers the
police to sentence a person guilty of such minor offenses as petty
theft and prostitution, to a maximum of four years'
incarceration.
Under the practice, a judicial review by a court can only take
place after punishment is imposed.
Ying Songnian, a law expert and NPC deputy, said that flaws with
laojiao lie in its implementation procedure because there is no
strict legal boundary in deciding the length of detention.
Wang Gongyi, vice-director of the Institute of Justice Research
affiliated to the Ministry of Justice, said that the current
laojiao practice contradicts several items in the Constitution, the
Criminal Procedure Law, and the International Covenant on Civil and
Political Rights a United Nations human rights treaty China signed
in 1998.
They all require that decisions to detain someone go through
judicial system first.
According to Wang, a drafter of the law, the debate still
centers on whether it takes an administrative procedure or a
judicial one to detain minor offenders.
The Ministry of Public Security proposes to maintain the current
practice, with a judicial review coming after the administrative
enforcement.
But the Supreme People's Court favors the judicial procedure,
which requires all detentions to be imposed only after a court's
decision.
Some experts, including Wang, take the middle road. They propose
to grant a defense right to all minor offenders before
incarceration. Those who demand a review should not be incarcerated
before a court's decision.
Despite the arguments, Wang said the new law is more
correction-oriented and lenient.
According to it, the current "re-education centers" will be
renamed as "correctional centers", with all bars and gates removed
and made more school-like.
The incarceration period will also be shortened to less than 18
months, depending on the offense.
Figures from the justice ministry show that about 400,000 people
have served their terms in 310 laojiao institutions.
Wang emphasized that the practice has contributed to the
country's penal system for decades as it eases the burden imposed
on the prison system.
(China Daily March 1, 2007)