Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Tuesday, December 11, 2007

He Weifang and others submit proposal to abolish re-education through labor to National People's Congress

On Dec. 4th (Law Day in China), Beijing University Faculty of Law professor He Weifang, along with 68 other signatories (not all legal academics), sent a formal proposal to the National People‘s Congress requesting that it review the system of re-education through labor (RETL) for constitutionality (more precisely, unconstitutionality). The proposal (a text of which I have not seen) apparently also makes objections on the grounds that RETL is inconsistent with the Law on Administrative Punishments and the Law on Legislation. The arguments will be familiar to most readers of this blog; essentially, that restrictions on personal liberty must be sanctioned by law (i.e., something passed by the National People's Congress or its Standing Committee), which RETL is (in the view of the signatories) not.

One argument against this position has always been that RETL was, in fact, sanctioned by a 1957 resolution of Standing Committee of the National People's Congress and by another one in 1979. Thus, if the purpose of the requirement of a basis in "law" for detention is to ensure that the NPC or the NPCSC approves and that lower-level organs not get out of control, it seems a bit unconvincing to argue that because the document was called a "resolution" it should be treated differently from a law. Now perhaps it makes sense to distinguish if the procedures for passing resolutions are different from those for passing laws. But that the highest legislative body in the country approves of RETL can't really be doubted; it's not something the police just made up in 1957 and that nobody at the NPC level hasn't noticed for 50 years. The news account of the proposal's arguments doesn't mention this angle at all; I don't know whether the arguments addressed it or simply ignored it.

Here are some sources:

http://lawprofessors.typepad.com/china_law_prof_blog/2007/12/he-weifang-and.html

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