On Nov 15, 2013, the Third Plenum of the 18th Communist Party of China Central Committee issued its resolutions to implement a long list of comprehensive reforms. Among the reforms is the abolition of the controversial "re-education through labor" policy, abbreviated as laojiao in Chinese. The move has been hailed, both at home and abroad, as a milestone in the development of China's legal sector.
Formally established by a central government administrative regulation in 1957, laojiao is a special measure of administrative - rather than criminal - detention. Its purported aim is to punish those who commit offenses not serious enough to demand criminal punishment.
Laojiao has undergone significant changes over the years. The earlier lists of targets included politically unreliable individuals. Later, the spectrum of laojiao was expanded to tackle a number of social evils, such as drug addiction, prostitution and gambling. Most recently, so-called illegal petitioning was added to its list of offenses.
Laojiao is denial of liberty without trial. Sometimes the punishment is even harsher than that handed down by a court, because an offender could be detained in a laojiao center for up to three years with the possibility of a one-year extension. Officially, the decision on laojiao is supposed to be made by a committee comprising officials from government agencies for civil affairs, police and labor. In practice, however, police officials are the sole decision-makers.
Legal experts and human rights activists have long criticized the laojiao system on the grounds that it violates domestic as well as international laws.
Laojiao contravenes the Chinese Constitution, which requires the detention of a person to be approved by a court or a prosecuting authority. It is also a violation of China's Legislation Law and Administrative Penalty Law, both of which state that any restriction of personal freedom must be authorized by a national parliamentary law, not by an administrative regulation.
Moreover, laojiao is not compatible with international human rights standards, especially the right to liberty in Article 9 and the right to a fair trial in Article 14 of the International Covenant on Civil and Political Rights, which China has signed and is reportedly ready to ratify.
The high-profile cases of Tang Hui, a former laojiao inmate and mother of a rape victim, and Ren Jianyu, a former Chongqing village official confined for "spreading negative comments on Chongqing" show that the legal power exercised by police over laojiao is prone to be abused. Many commentators believe that laojiao has actually turned into a convenient tool for local authorities that use it in the name of maintaining social stability to retaliate against critics and troublemakers.
Tang Hui, the "petitioner mother", was detained at a laojiao center for repeatedly petitioning the authorities to take tougher action against those who she said had raped her 11-year-old daughter and forced her into prostitution. Ren Jianyu, a former village official, was ordered to undergo laojiao for criticizing the then Chongqing government.
In January 2013, Meng Jianzhu, head of the CPC Central Committee's Politics and Law Commission, announced that the laojiao system would cease to be applied by the end of the year. In March, Premier Li Keqiang said the same thing.
The CPC's decision to abolish the laojiao system has to be translated into law by the national legislature by the end of this year. That doesn't mean that later offenders will not be targeted. Instead, efforts will be made to improve the laws on the punishment and rehabilitation of offenders and to optimize the community correctional programs, as the plenum's resolution declared.
Despite the laojiao system having serious defects, various attempts to implement a legal reform have failed in the past, primarily because of a dispute between police authorities and judicial organs over having the final say in the decision-making process. Although the abolition of laojiao has been announced, the dispute over decision-making will not be resolved. Yet police are going to lose a substantial part of their legal power no matter what laws follow.
The abolition of laojiao, without doubt, represents an important advance toward the rule of law. Now China has to make sure that the laojiao reform doesn't end up with another legal instrument that leaves room for human rights violations. For this reason, it is necessary to grant the judiciary enough independence so as to impose meaningful checks on police power. Ultimately, the success of the laojiao reform depends on other fundamental legal reforms, especially those that involve the functioning of courts and prosecutorial organs.
The author is head of the China section at Germany's Max Planck Institute for Foreign and International Criminal Law.