現在有許多失蹤的異議人士與法輪功信徒，受到不公平的非人道拘押，可以確定的少部份名單為：Abulikemu
Kader, Che Hongnian, Fan Ziliang, Li Guotao, Peng Cheng, Peng Ming,
Wei Quanbao, Yao Zhenxiang, Zhang Lin, Zhou Wei, Zhou Yongjun...，希望得到外界的馳救。參考英文版：
The
Human Rights Situation in China
and REEDUCATION THROUGH LABOR
REEDUCATION
THROUGH LABOR (RTL):
A SUMMARY OF REGULATORY ISSUES AND CONCERNS
Background
Reeducation through Labor
(RTL) has been in existence for about 45 years. It was first employed
during the Chinese Communist Party's 1955 campaign against counter-revolutionaries.
According to an official report, more than 3.5 million people have
been subjected to punishment under RTL since that time. [1] Some legal
scholars dispute this figure, asserting that the population affected
is actually much larger.
In
the last decade, use of RTL has increased. While official sources
put the number sent to serve RTL terms at approximately 100,000 annually
in the period from 1983-1991, [2] from then on the numbers have continued
to grow. By the late 1990s, an annual total of around 200,000 people
were being held in RTL. [3]
In
1995, the Chinese government ceased publishing annual figures for
the number sent to serve RTL terms, but the previous numbers show
a clear upward trend, with an increase of more than 50 percent between
1993 and 1995.[4]
Although
national figures were not published, some local statistics provide
a point of comparison which shows that the numbers continued to rise
after this.[5]
In
the 1980s, a peak in numbers sent to RTL was seen around the time
of the"Strike Hard"anti-crime campaign, and the available
evidence suggests that in the late 1990s, the combination of a continuing,
intensified Strike Hard campaign and a nationwide"Anti-Yellow"campaign[6]
has meant record numbers of people being sent to serve labor camp
terms under RTL. This upward trend was recently confirmed when Chinese
officials revealed that the current number held in RTL has reached
260,000, with 60 percent detained for offenses involving"disturbing
public order,"and 40 percent for drug-related offenses.[7]
Two groups of people have
been increasingly targeted for punishment in RTL in the last couple
of decades: one is those using drugs and the other is those engaging
in prostitution or patronizing prostitutes. [8] Generally it is people
detained repeatedly for using drugs or engaging in prostitution who
are sent to RTL, but in some provinces, first time "offenders"
may also be sentenced, especially during campaign periods when set
targets may have to be met. It is estimated that in some provinces,
those using drugs account for one third of total RTL population. In
addition, substantial numbers of political and religious dissidents
are sent into RTL camps. HRIC has documented over 30 cases of political
dissidents being imprisoned in this way in the last three years. According
to the Falungong group, some 5,000 members have been sentenced to
RTL since the ban on the organization was issued in 1999.
According
to reports from political detainees and others, conditions in RTL
camps are generally abusive, with overcrowded, unsanitary living conditions;
inadequate food; endemic violence; and excessive working hours being
among the major concerns. Nationwide, there are now close to 300 RTL
centers, according to official statistics.[9] RTL detainees are mostly
treated just like prisoners in the criminal justice system, although
now, unlike in the past, they are generally segregated from inmates
convicted of criminal offenses.[10]
Current
Regulatory Framework for RTL
Up until 1957, RTL was
not authorized by any formal national decision. Then on August 1,
1957, the State Council submitted a Decision on RTL to the National
People's Congress (NPC) Standing Committee for approval. The NPC Standing
Committee passed this decision, authorizing the State Council to administer
the use of RTL, which in practice meant that implementation was under
the Ministry of Public Security. [11]
From 1957 to 1979, RTL
was employed in a very flexible way, both in terms of the scope of
application, as well as the length of sentence. Many people held under
RTL were detained for indefinite periods, which in some cases resulted
in incarceration of more than 20 years.
On November 29, 1979,
the State Council issued a second Decision on RTL, with the approval
of the NPC Standing Committee. [12] In this decision, for the first
time terms for RTL were fixed at between one and three years, with
a possible extension of one year.
On January 21, 1982, the
Ministry of Public Security issued its first set of comprehensive
regulations on RTL, which were approved by the State Council. [13]
The Regulations stipulated the procedure for deciding on RTL sentences,
detailed the categories of people punishable under RTL and allocated
responsibilities for the administration of RTL facilities.
Following the enactment
of these regulations, in May 1983 the management of RTL facilities
was handed over to the Ministry of Justice, while the Ministry of
Public Security retained the authority to decide who should be punished
under the RTL regulations.
Although
the 1979 State Council Decision called for the establishment of RTL
management committees which were to be authorized to decide on RTL
sentences, in reality the public security department generally makes
such decisions alone. According to some scholars, the RTL management
committees actually meet only rarely to decide on sentences, although
if an individual challenges an RTL decision in court, members of the
committee have to appear to defend the decisions.
In addition, since the
mid-1980s the Ministry of Public Security and the Ministry of Justice
have issued a number of different documents governing such matters
as management of RTL facilities and the conditions under which sentences
may be reduced or extended. However, these did not change in any appreciable
way the legal framework created by the above-mentioned documents.
Abuses
Associated with RTL
As an administrative punishment,
RTL has been criticized by international human rights groups as well
as legal scholars inside China, particularly for the following reasons.
1.
No judicial process involved
According
to internationally-recognized human rights norms, decisions on the
limitation or deprivation of an individual's liberty must be made
by an impartial judicial body. Detainees should have the right to
defend themselves with the assistance of legal counsel at any hearings
of such a judicial body on their cases.
But
RTL has been administered solely by the ministries of Public Security
and Justice, without the involvement of the courts. Thus detainees
are effectively deprived of the right to due process of law. Therefore,
the U.N. Working Group on Arbitrary Detention found that according
to its criteria, RTL should be deemed "inherently arbitrary."
2.
Vague and arbitrary scope
While
initially the targets of RTL were counterrevolutionaries who had committed
only minor offenses, the 1957 Decision shifted the measure's focus,
providing for the detention of "lazy people" who were to
be "reformed" in order to become self-sufficient. The 1979
Decision did not spell out who should be detained under RTL. Article
10 of the 1982 Practices issued by the Ministry of Public Security
laid out the six categories of people punishable under RTL:
(1)
Those counterrevolutionaries or elements who oppose the CCP or Socialism,
where their offenses are minor, but do not merit criminal punishment;
(2)
Those who commit minor offenses relating to group crimes of murder,
robbery, rape and arson, but whose acts do not merit criminal punishment;
(3)
Those who commit minor offenses such as hooliganism, prostitution,
theft, or fraud but whose acts do not merit criminal punishment;
(4)
Those who gather to fight, disturb social order, or instigate turmoil
but whose acts do not merit criminal punishment;
(5)
Those who have a job but repeatedly refuse to work, and disrupt labor
discipline, complain endlessly, as well as disrupt production order,
work order, school and research institute order and the people's normal
life, but whose acts do not merit criminal punishment;
(6)
Those who instigate others to commit crimes, but whose acts do not
merit criminal punishment.
Evidently, the scope of
people who can be held under RTL is extremely unclear and thus the
measure can easily be manipulated by the authorities. Some scholars
have called RTL a punishment that can be applied to virtually anyone
who commits minor law breaking acts. The above list also clearly indicates
that RTL may be used to punish those who merely engage in peaceful
exercise of their fundamental rights and freedoms, and in fact, RTL
has been routinely used against dissidents over the past four decades.
3.
Severity of Punishment
Punishment under RTL is
heavier than that provided for many crimes in the Criminal Code. According
to official statistics, a significant number of criminal sentences
imposed involve terms of below two years of fixed term imprisonment,
while people under RTL are sentenced to an average of two years. Thus
punishment under RTL is disproportionate considering the relatively
minor nature of the "offenses" committed by people subjected
to it.
4.
Local Regulations on RTL
Since RTL is a convenient,
extrajudicial measure, many local governments have incorporated it
into local legislation, causing the expansion of RTL in local application.
For example, a Shanxi Province regulation makes gambling punishable
under RTL, while one from Shanghai allows for the punishment in RTL
of people who have extra-marital affairs.
5.
Abusive conditions in RTL facilities
As mentioned above, extensive
documentation by human rights organizations from accounts by former
detainees demonstrates that torture and ill-treatment in RTL facilities
is endemic and often extreme. RTL centers are notorious for their
poor sanitation and are often overcrowded, and detainees are also
frequently denied visits from family members and access to proper
medical care. Physical abuse at the hands of both guards and cell
bosses selected by officials to "maintain order" is common.
As for all forms of administrative detention, inmates held in RTL
may have particular difficulty in making complaints and gaining redress,
compensation and rehabilitation when they are victims of torture or
ill-treatment.[14]
Domestic
Debates Over RTL
For the last two decades,
Chinese legal scholars have been engaged in heated debate over the
reform of RTL, while some have even advocated its abolition. China's
signing of the ICCPR in 1998 heightened such debates, as most scholars
agree that RTL is not in conformity with the treaty's provisions.
Currently, there are three main proposals for the future of RTL:
1. Retaining
RTL while enacting minor reforms regarding monitoring of its use
Proponents of this approach
consider RTL to be an important tool for the authorities, and thus
advocate its retention for the long term, since it has played a major
role in cracking down on crime and maintaining social stability. However,
they argue that some minor reforms are needed in order to limit official
arbitrariness in the application of RTL. People holding this opinion
are mostly officials in the ministries of Public Security and Justice.
2. Retaining
RTL while carrying out extensive reform of the system
Recognizing the major
shortcomings of RTL, proponents of this view have proposed comprehensive
reforms of this measure. The principal reforms they advocate include:
Passing separate legislation
on RTL
Authorizing courts to
review RTL (proposals have failed to make clear the nature of the
court review they envisage)
Shortening terms of RTL
to two years or less
Some people supporting
such proposals have taken note of the strong resistance from the public
security and justice departments to abolition of RTL, and have tried
to find a half-way solution that addresses some of the concerns of
its critics.
3.
Abolishing RTL altogether and incorporating the penalty into the Criminal
Code
Some scholars have insisted that RTL is not in accord with Chinese
law or international human rights norms, and therefore should be abolished.
According to this line of thinking, offenses defined under RTL regulations
which are significant enough to constitute crimes should be addressed
under the Criminal Code. Such arguments have increasingly gained support
from legal scholars in recent years.
RTL's
current conflicts with the law
Another major impetus
for the "reform" of RTL emerges from the fact that it is
in clear conflict with at least two recently-enacted laws, as a number
of scholars in China have pointed out. The first is the Administrative
Punishment Law (APL, 1996), which requires that any coercive measures
involving limitation or deprivation of an individual's personal liberty
be authorized by legislation passed by the National People's Congress
(NPC) or its Standing Committee (Article 9). RTL is currently only
authorized by a resolution by the NPC approving measures proposed
by the State Council, not by national legislation passed by the NPC
nor its Standing Committee. Strictly speaking, this is a violation
of the APL.
The Legislation Law (LL,
2000), passed recently by the NPC, also contains a similar clause
which clearly eliminates the possibility of any state organ other
than the NPC or its Standing Committee legislating to authorize coercive
measures limiting or depriving people of their liberty (Article 8(5)).
Thus these two laws require
that, to be lawful, any measure like RTL be authorized by a law, a
term specifically referring to legislation passed either by the NPC
or its Standing Committee (1982 Constitution, Articles 62(3) and 67(2)).
Likely
response to this legal limbo
Whichever proposal the
authorities eventually accept, if the Chinese government is serious
about implementing the APL and the LL and wishes to retain RTL, the
measure must be enacted into law. According to legal scholars as well
as Chinese officials, the most likely scenario is the creation of
separate legislation that would then be approved by the NPC Standing
Committee.[15] The new legislation is likely to retain most of the
current RTL regulations with more transparency on monitoring of RTL's
application. Local governments would no longer be able to legislate
on RTL, unless such authority is specifically granted by a new law.
The
Ministry of Public Security has already announced that a law on RTL
is under consideration. It is interesting to note that a few recent
news articles have mentioned proposals to legislate on another form
of administrative detention that is in a similar state of legal limbo
under the APL and the LL, Custody and Repatriation. In the EU-China
human rights dialogue at the end of September, RTL was reportedly
among the few subjects where the Chinese side was willing to go into
some detail, and the passage of a related law was discussed. And a
workshop on the punishment of minor crimes in Beijing on February
26-27 will be the first activity in the program of technical cooperation
agreed in a November Memorandum of Understanding between the Office
of the High Commissioner for Human Rights and the Chinese Ministry
of Foreign Affairs.
Most recently, the Ministry
of Justice indicated that legislation governing RTL would be passed
"soon." According to a statement by Wang Yunsheng, the director
of the Ministry's RTL Bureau, the NPC is presenting drafting such
a law, in consultation with the "relevant departments."
He stated that changes were being considered in the following areas:
"the people covered by the system, the approval procedure, the
implementation process and the length of the terms." Wang clearly
ruled out abolition of the measure, stating that:
For such a populous nation
as China, the RTL system, which aims at stopping those on the verge
of committing serious crimes, is an effective one for reducing crime...
The new law will function as a better guide for the RTL system and
contribute to the stability of the rule of law. [16]
International
community must take principled position
Past experience demonstrates
that the conclusions and comments made by international experts, bodies
and institutions can have a serious impact on the decisions of the
government. In many cases, we have seen that China's legal scholars
have successfully persuaded leaders to implement reforms by citing
international pressure, including that from UN mechanisms, and international
standards as reasons for changing China's laws and policies. For example,
international exchanges just prior to the finalization of the draft
legislation did have some positive impacts in the case of the revision
of the Criminal Procedure Law and the Lawyers' Law. There is no question
that international pressure played a significant role in the abolition
of administrative detention under Custody and Investigation (shourong
shencha, also known as Shelter and Investigation).
Based upon the above analysis,
we conclude that the on-going debate has reached a very critical point.
Unfortunately the more powerful elements in the bureaucracy appear
to be committed to a cosmetic change which enacts the procedure into
law and allows for a formalistic type of judicial review. This would
do nothing to address the human rights concerns about RTL.
Human
Rights in China has therefore been actively lobbying governments and
international organizations, including the human rights mechanisms
of the United Nations, to stand with the Chinese legal scholars favoring
the abolition of RTL and strongly criticize the effort to legitimate
this form of arbitrary detention by enacting it into law. We have
argued that the recommendation of the UN Committee Against Torture
in May 2000 that China abolish all forms of administrative detention
should be adopted as the international community's position on RTL.
As Mary Robinson herself said on one of her visits to China in relation
to this issue, "Bad law can be a tyranny."
Our
recommendations
1.
Abolish RTL
Human Rights in China
has long argued that RTL should be abolished outright. We do not believe
that this is a system that can be "fixed" or "reformed"
by adding a formalistic judicial review. For the reasons listed above,
RTL is clearly in conflict with international human rights law and
has resulted in widespread violations of fundamental rights, and therefore
it must be eliminated at the earliest possible date.
2. Any
minor offenses must be described in law
So that the law and its
enforcement has the proper measure of predictability, proportionality
and fairness, any criminal offenses should be specifically framed
in law, so that people are aware of what constitutes a crime. If certain
minor offenses that merit imprisonment are not included in the current
Criminal Law, then the answer is to revise it to include them. Consideration
should be given to alternatives to imprisonment, such as fines, community
service and training.
3. Persons
accused of minor crimes have the right to due process
Before being sentenced
to any term in custody, an individual must be charged with a particular
offense described in written law, and the authorities must prove that
the accused committed the crime in question at a trial which accords
the person full rights to due process of law, such as allowing for
examination of evidence and presentation of a defense. Persons convicted
of an offense should also have the right to appeal to an independent
court for review.
4. Exercising
rights must not be criminalized
In enacting further criminal-justice
related legislation, including any revisions to the Criminal Law regarding
minor crimes, no acts solely involving peaceful exercise of fundamental
rights and freedoms should be subject to criminal penalties.
Appendix
Sample
list of dissidents detained under RTL in the last two years
Abulikemu
Kader: Resident
of Xinjiang Autonomous Region. On November 26, 1999, he was sentenced
to two years in RTL for "supporting splittists financially."
He is now serving the term.
Che
Hongnian:
a veteran labor activist who had been sentenced to two years' imprisonment
for "counterrevolutionary crimes" under the then Criminal
Code in 1989. He was sentenced into three years' RTL in March 1999
for "instigating the overthrow of state power." He is now
serving the term.
Fan
Ziliang:
a retired worker. He distributed articles on democracy to his friends.
He was arrested on January 15, 2001, and sentenced to a two year RTL
term in February without trial. He is currently serving his term.
Li Guotao: a resident of Shanghai, he
was detained for participating in the student movement in 1989. He
was deeply involved in the activities of organizing the China Democratic
Party (CDP). On July 4, 2000, Li was sentenced to a three year RTL
term for "disturbing social order," for activities protesting
the government's crackdown on other dissidents.
Peng
Cheng:
a resident of Shandong. He was involved in the campaign calling for
the government to alter its verdict on the June Fourth Student Movement.
He was sentenced to a three year RTL term for "instigating the
overthrow of state power" and "disturbing social order"in
1999. He is now serving his term.
Peng
Ming:
resident of Beijing and a founder of China Development Union (non-governmental
organization) advocating peaceful political reform. He was sentenced
to one and half years of RTL for allegedly "patronizing prostitutes"
on February 26, 1999. He served out the sentence and was released
on August 9, 2000.
Wei
Quanbao:
a veteran dissident who started his political career in 1979 and later
went into exile in the United States. He was sentenced to a three
year RTL term after being caught sneaking into China in 1998. He is
now serving the term.
Yao
Zhenxiang:
a human rights activist and a victim of repeated RTL punishment. In
April 2000, on his way to participate in a dissident gathering in
Xi'an, he was arrested and later sentenced to two years' RTL ostensibly
for "patronizing prostitutes."
Zhang
Lin:
a student leader in the 1989 democracy movement who has engaged in
various political activities in China. He went to the United States
in 1997 and was arrested in November 1998 while attempting to enter
China without going through border controls. He was sentenced to a
three year term of RTL and is currently serving the term.
Zhou
Wei:
a retired cadre from Shenyang City in Liaoning Province. He led local
demonstrations protesting against official corruption and uncovered
some economic crimes. He was arrested in Ma, 1999 and sentenced to
two years' RTL and is currently serving the term.
Zhou
Yongjun:
a student leader in the June Fourth Democracy Movement in 1989 who
fled to the United States in 1993. He was sentenced to three years
of RTL in 1998 for allegedly "illegally crossing the border"
after he sneaked into southern China. He is now serving this term.
[1] Shao Zongwei, "Reeducation law revamp due soon," China
Daily, February 5, 2001, citing statement by Wang Yunsheng, director
of the Ministry of Justice's RTL Bureau.
[2] An August 13, 1992,
report in the PSB newspaper, People's Public Security (Renmin Gong'an),
put the number of persons sent to RTL during this period at a total
of 825,414, thus approximately 100,000 per year.
[3] China Law Yearbook
(1987-1997), China Law Yearbook Press, 1998.
[4] The following are
the figures from the China Law Yearbook (1987-1997) for total number
of people held in RTL from 1989-1995: 1989, 165,071; 1990, 165,070;
1991, 144,584; 1992, 132,209; 1993, 132,209; 1994, 178,377; and 1995,
206,888.
[5] The following are
the numbers of people newly sentenced to RTL in 1997 in particular
provinces. All figures are from the China Law Yearbook 1998. Guizhou
Province: 4,178; Qinghai Province: 543; Sichuan Province: 7,013; Hunan
Province: 13,328; Shandong Province: 2,197; Shanxi Province: 3,155;
and Hebei Province: 5,601; making a total of 36,015. Since the total
population of these seven provinces accounts for around one third
of the national population, this would indicate a national annual
total of people sentenced to RTL of around 100,000 persons.
[6] Against "vices"
including pornography, prostitution, drug use and gambling.
[7] Comment by a Chinese
official at EU-China experts seminar held in Paris in December 2000.
[8] In Guizhou, the number
of people newly sentenced to RTL in 1997 was 4,178, of which 2,927
were sentenced for using drugs, which represented more than half the
total number. China Law Yearbook 1998
[9] Shao Zongwei, "Reeducation
law revamp due soon," China Daily, February 5, 2001.
[10] For more detail,
see Human Rights in China, Detained at Official Pleasure: Arbitrary
Detention in the People's Republic of China, June 1993; and Amnesty
International, China-Punishment Without Crime: Arbitrary Detention,
September 1991.
[11] NPC Standing Committee:
Resolution on Approving the Decision of the State Council on the Issue
of the Reeducation through Labor (quanguo renmin daibiao dahui changwu
weiyuanhui pizhun guowuyuan guanyu laodong jiaoyang wenti de jueding
de jueyi), August 1, 1957.
[12] NPC Standing Committee:
Resolution on Approving the Supplementary Decision of the State Council
on the Issue of Re-education through Labor (quanguo renmin daibiao
dahui changwu weiyuanhui pizhun guowuyuan guanyu laodong jiaoyang
de buchong guiding), November 29, 1979.
[13] The Notice of the
State Council on Circulating the Trial Practices of the Ministry of
Public Security on Re-education through Labor (guowuyuan guanyu zhuanfa
gonganbu zhiding de laodong jiaoyang shixing banfa de tongzhi), January
21, 1982.
[14] The Administrative
Litigation Law of the PRC, promulgated in 1989, does entitle people
to a limited right to challenge RTL decisions. However, a person held
under RTL would have great difficulty in proving to a court's satisfaction
that s/he was wrongly sentenced to such a term, since the regulations
governing this measure give the public security departments very broad
discretion. Very few cases are known to have been reversed following
challenges under the Administrative Litigation Law and, to our knowledge,
not a single appeal by a dissident against an RTL sentence has been
successful. Of course there is the additional problem that inmates
in RTL have very limited opportunities to make contact with the outside
world, and thus may have enormous difficulty in getting any legal
advice or representation for such an appeal.
[15] As the Chinese delegation
indicated in the CAT session a week ago, drafting of legislation on
RTL was initiated in 1998 and continued to be considered since then.
[16] Shao Zongwei, "Reeducation
law revamp due soon," China Daily, February 5, 2001.
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