Only Protecting Rights Can Protect Stability

By Southern Metropolitan Daily Li Dun
Apr 9, 2010 – 8:25:05 AM

The legislation changing “re-education through labor” into “education and correction for illegal acts” was not passed in the 10th National People’s Congress, as some had hoped. The 11th Congress just held its third session, and again a draft proposal was put forward. Public debate has been unceasing. There is a saying that the difficulty with this law is in reconciling two interests: that of “protecting the lawful rights and interests of those subject to re-education through labor,” and “to let the RETL system play its role in protecting social order and stability.” They may be labeled as “parties to re-education” or in other places are labeled as those stripped of their liberty “in order to protect the rights of the great majority” or those who have their rights “controlled” or “cut down” (克减). But are protecting people’s rights and preserving social stability really in conflict?

How do we decide the nature of some people’s behavior or some social phenomena? What kind of response should law and policy give to this behavior and phenomena? What ideas support and sustain our system and its reform, and what should those ideas be? In the transformation of China today, we need to seriously consider these questions.

Whether the old system of RETL, which exists today, should continue into the future, is not only a question of whether its legal basis is sufficient. It would be easy to make a new law of the State Council’s regulations in 1957 and 1982, and the Ministry of Public Security’s trial measures on RETL. It could be passed as is by the Standing Committee of the NPC. And it is not only a question of whether this type of decision on “administrative punishment that restricts personal liberty” (Administrative Penalty Law) must come from a court decision. Because history demonstrates that court judgments alone are not a guarantee of justice and freedom from error. And it is definitely not only because it is applied in an arbitrary and chaotic fashion, or that it may be used by party and government officials to strike against those reporting on corruption, or petitioners, or those involved in mass incidents. Because for many years different laws and policies have been in conflict !
with one another, and law enforcement officials have used their own differing standards in applying the rules. This could be resolved by careful efforts to standardize decision making. But arbitrariness in applying the law and in the use of official power, and judgements that pervert the law, is not something that a new legal basis will be able to resolve.

The essential distinction in the formulation of law and policy lies in either “putting people first,” in accepting, respecting, and protecting people’s rights, or in what we once experienced as “putting the state first” — namely, in putting the abstract interests of the whole first (or we could say “the interests of the great majority”), a uniform system of organization, mobilization, conflict, management, and control. We have experienced class struggle in the planned economic system, and a long period of “focusing labor on building the economy.” So we should know the great significance of “putting people first” and “harmony,” and of adding protection of human rights to the constitution. Can we genuinely complete a historic transformation and truly “make ‘putting people first’ the core” in the formulation of our national laws and policies? We need to understand that in rule of law countries legislation cannot strip people of their basic rights. We need to understand th!
at a modern, democratic, rule of law country is made up of citizens, one by one. That state interests are citizens interests, and citizens have pluralistic interests. And that an important function of policymaking is to coordinate and balance competing interest so that society can be harmonious.

The original system of re-education through labor is an inevitable product and organic component of the planned economic system. At that time, those in RETL were considered class enemies, or handled as “contradictions among the people.” The reason these people were “controlled” was that, in that period of history, there was no basic acceptance of “individual liberty.” The government and private as separate and opposed spheres did not exist. When the mentality is that the overarching interest trumps all, any individual’s liberty can be stripped or controlled. That way of thinking and behaving is the legacy of the planned economic system, and is with us today — and will influence the formulation and implementation of our policies and laws for a long while to come.

In important Party documents, it once stated that for historical reasons, our society lacks and needs to build four mechanisms: for safeguarding rights, for raising appeals, for coordinating interests, and for arbitrating conflicts. Only with these four mechanisms will rights be accepted, respected, and protected. Only then will appeals receive systematic channels for protection. Only then will the competing interests of those in power and of society be coordinated and arbitrated under the framework of the rule of law. This would perhaps make our conflicts melt away, and would be a good start toward making society fundamentally harmonious and stable.

In a country with the rule of law, the essential of policymaking is to first accept, respect, and protect rights. In punishing people and in “restricting” or “cutting off” people’s rights, there are preconditions that must be satisfied and cannot be replaced. [Number one is omitted; perhaps edited out.] Number two is that there must be a neutral judiciary that uses predetermined rules of procedure to reach judgment. The judiciary must have the function of remedying violations of rights. In addition, there must be some specific technical arrangements for standards, rules, and procedures — it should be that way for the Education and Correction of Illegal Acts Law, and for the formulation of every other law.

Countries with the rule of law want good law. Evil laws go against the principles of the rule of law, because every citizen is on guard against them.

(The writer, Li Dun, is a professor of the Chinese Academy of Social Sciences, and the leader of the expert network of the Tsinghua University Research Center for Contemporary China. This essay was originally published in “Liaowang.”)

Chinese source at: http://nf.nfdaily.cn/nfdsb/content/2010-04/07/content_10806231.htm