Falun Gong Re-Education through Labor: Traditional Rehabilitation for the Misdirected to Protect Societal Stability within China's Evolving Criminal Justice System
By Robert Bejesky
I. INTRODUCTION ------------------------------148
II. GOVERNMENT RESPONSE TO FALUN GONG -------- 151
A. BACKGROUND OF FALUN GONG ---------------------151
B. GOVERNMENT REACTION TO FALUN GONG ------------154
C. FALUN GONG'S CLAIMS ----------------------------157
III. TRADITION AND CULTURE IN CHINA & METHODS
OF BEHAVIORAL MODIFICATION --------------158
A. CHINESE TRADITION & CULTURE --------------------158
B. GLOBAL HUMAN RIGHTS AND FALUN GONG -----------160
C. DEFINING A JUSTIFIED REACTION TO FALUN GONG ------ 162
1. Introduction ----------------------------162
2. China's Government Structure & Institutions ------- 163
3. The Opinion of Chinese Citizens Regarding Falun Gong----------167
D. BEHAVIORAL CHANGE FOR SOCIETAL TRANSGRESSIONS:
FORMAL CRIMINAL JUSTICE SYSTEM VS. INFORMAL RETL----170
1. Theory of Instilling Acceptable Behavior vs. Punishment -------170
2. Reform of the Formal Criminal Justice System ------ 172
3. Informal Behavioral Modification Mechanisms and RETL ----- 176
IV. BALANCING STATE INTERESTS WITH HUMAN
RIGHTS PROTECTIONS FOR FALUN GONG -------180
A. MODERNIZATION, CULTURAL RELATIVISM, AND
RECONSIDERING THE SUBSTANTIVE UNDERLYING OFFENSE
IMPOSED ON FALUN GONG MEMBERS -----------------180
1. Introduction ---------------------------- 180
2. Global Human Rights Restricted --------------180
3. The Role of Government Institutions -----------182
B. HUMAN RIGHTS AND RETL --------------------184
V. CONCLUSION --------------------------------186
Re-education through labor (RETL) is a form of administrative detention employed in China that is conducted outside of the formal criminal justice system and is designed to rehabilitate the behavior of societal "agitators." It has been utilized more in recent years than in the past because flexibility in the formal criminal justice system has been diminishing with the modernization process. While Chinese officials have maintained that RETL is a necessary and effective device for sustaining societal harmony, mounting pressure prompted Beijing leaders in February 2003 to endorse new prohibitions on RETL administrators to improve the image of these centers.
For the past four years, Falun Gong members have been the target of aggressive Chinese government crackdown and caught the attention of human rights group worldwide. The group was banned after being marked an "evil cult" on July 22, 1999. Some say the banning and crackdown occurred because of the fear that such a collective and solidified group could pose to the Chinese Communist Party (CCP) governance, while others maintain such measures were necessary to protect societal stability and public orderfrom the harms that could emerge through diffusion of the group's message and actions. The Chinese government has taken Falun Gong's mobilization and expansion efforts very seriously. Human rights groups have been critical of China's use of RETL and its treatment of Falun Gong members. In fact, Falun Gong filed a lawsuit in U.S. federal court that was supported in an amicus curiae brief by more than three dozen members of Congress, against former Chinese leader Jiang Zemin for acts of genocide on Falun Gong members. While this lawsuit was dismissed by the U.S. District Court in September 2003 pursuant to the doctrine of sovereign immunity, the dismissal likely did not spell the end of the controversy.
This article describes, from a cultural and historical perspective, why the vast majority of detained Falun Gong members, perhaps 99% of the approximately twenty thousand who have been confined, have been commonly subject to RETL rather than to the criminal justice process. The supposition herein is that Falun Gong has been caught between China's gradually closing door of flexibility in the law, brought about by a government desire to improve the formal criminal justice system; and the gradually opening door of improved individual rights protections vis-d-vis collectivist interests. Consequently, applying RETL to Falun Gong practitioners maintains the traditional cultural approaches of behavioral modification for individuals/groups that fall too far outside the parameter of what the government deems is acceptable societal conduct. Finding justice in this situation becomes more enigmatic because it is unfolding within a dramatically changing and volatile society still under the administration of the CCP and under the microscope of the global community. Falun Gong has arguably posed the most significant challenge to the criminal justice reform process and to CCP power in the past decade.
This article examines the positions of both Falun Gong and the Chinese government and endeavors to achieve resolution within the framework of human rights law and respect for state sovereignty. Section II considers the Chinese government's response to Falun Gong's emergence, while section III addresses global human rights standards and how tradition and culture have influenced the Chinese government's criminal justice modernization process and its response to Falun Gong members who have apparently violated Chinese law. Section IV appraises the risk that a consolidated collective group could have on the current state of legal and economic modernization in China and balances the threat of instability against human rights protections for Falun Gong members.
II. GOVERNMENT RESPONSE TO FALUN GONG
A. Background of Falun Gong
Falun Gong has been described as a slow motion martial arts- like meditative practice that emphasizes living a moral and honest life in order to cultivate a healthy mind-body connection. It promotes "a modern variant of ancient Chinese practices of exercise, deep breathing, and meditation, collectively known as qigong, that enthusiasts claim promotes physical, mental, and spiritual well-being by enhancing the flow of vital energy through a person's body. Falun Gong has associated itself with Buddhist and Taoist traditions, and it could be classified as a spiritual movement, religious order or a philosophy.Human Rights Watch states that Falun Gong does promote apocryphal and salvationist teachingsThe popularity of Falun Gong has resulted in peak membership of 80 million in China and 30 million elsewhere in the world.
The founder of Falun Gong, Mr. Li Hongzhi, published the primary treatise on Falun Gong, Falun Gong (Law Wheel Qigong) in 1993. While Mr. Li Hongzhi's teachings are the foundation of Falun Gong, other derivative sects have emerged, but he states that he is the only one who is spreading a true teaching and one cannot mix thoughts from other practices. He enforces this with a fairly strict regimen of rules mandating exclusive and steadfast devotion to his Dafa. While all freedom of religion and conscience must be protected at international law, Mr. Li Hongzhi does make some claims to recruits and disciples that many may find surreal to which the Chinese government has reacted, such as those which promise that disciples can develop supernatural abilities over the spiritual maturation process if they devoutly practice Falun Gong and adhere to its tenets.