Thursday, February 28, 2013

Court Avoids Free Speech Issue, RTL Case Lost on Technicality

Ren Jianyu (center), with his father (left) and Pu Zhiqiang, outside the Chongqing courthouse following the November verdict. Photo credit: China Youth Daily

If, as indications suggest, China is to undertake major reform of its reeducation through labor (RTL) system sometime this year, one factor that will have helped to catalyze this development is the opposition to RTL that has been building over the past year. Behind the negative publicity has been a series of cases involving individuals sent to RTL for critical or embarrassing online speech or seeking redress for the wrongdoing of local officials.

One of the most well-known of these cases involves Ren Jianyu, a 25-year-old from Chongqing whose plans to pursue a civil-service career were dashed when police detained him for using social media. His Internet activity included reposting a satirical image showing Wen Jiabao saying “Down with the Communist Party” after the Wenzhou train crash and items calling for political reform and an end to one-party rule. Initially charged with “inciting subversion,” Ren was sent to Chongqing’s Fuling RTL Center in September 2011 to serve a two-year term.

After former Chongqing party secretary Bo Xilai and his powerful police chief Wang Lijun were removed from office in early 2012, amid allegations of “severe disciplinary violations” including graft, people sent to RTL during their reign began to bring administrative lawsuits. Many did so with the help of prominent rights lawyer and free speech advocate Pu Zhiqiang. Pu’s very public advocacy has not only helped to bring attention to RTL abuses in Chongqing and elsewhere but to successfully overturn a number of RTL decisions.

With Pu as legal counsel, Ren Jianyu filed an administrative lawsuit against Chongqing’s RTL Management Committee in August 2012, and a trial was held in October of that year. The following month, the committee unexpectedly revoked its decision against Ren and set him free. A day later, the Chongqing No. 3 Intermediate People’s Court rejected Ren’s suit (in a verdict translated below) on the grounds that it was filed after a three-month statutory deadline.

The Chongqing No. 3 Intermediate People’s Court has overturned a number of RTL decisions in the past year. In those rulings, as in Ren’s, the court makes a point to note the need for public authority to exercise tolerance and to avoid the use of severe punishment against those who express criticism. In Ren’s case, however, the court sided with the defendant on strictly procedural grounds that hinge upon the question of whether Ren had sufficient ability to file a lawsuit while serving a custodial sentence.

The imposition of deadlines for filing administrative lawsuits is intended to prevent plaintiffs from arbitrarily delaying the exercise of their rights. But the Supreme People’s Court has recognized in a judicial interpretation that incarceration places impediments on an individual’s ability to exercise his or her litigation rights; therefore, it has determined that time spent under “restricted personal liberty” should not be counted in determining the deadline to file an administrative lawsuit.

Other plaintiffs—such as, Fang Hong, whose case was tried in the same court and heard by two of the same judges as Ren’s—have successfully overturned RTL decisions through suits filed after their release from custody and beyond the statutory deadline. Yet the judicial panel in Ren’s trial agreed with the defendant that, because Ren had met with his father and girlfriend on several occasions—the verdict includes a laundry list of dates—and requested that they file suit on his behalf, his incarceration did not impede his ability to exercise his litigation rights.

In hewing to this technical ruling, the court leaves a number of important issues unaddressed. For instance, how freely can a person sent to RTL exercise his or her rights when police and even fellow inmates reiterate the futility of appeal—especially under the reign of Wang Lijun? Ren was allowed only one 20-minute meeting with his father during the three months following the RTL decision against him, and during that meeting, the two were separated by glass and forced to speak by telephone. Ren did not have access to a lawyer, and Ren’s father, a construction worker with very little education, was not in an ideal position to serve as his son’s proxy. And, even if Ren overcame the pressure not to appeal earlier, what protections would there have been against the difficulties routinely faced by those trying to get lawsuits past the courts’ powerful “gatekeepers” who decide which suits to accept?

Since his release, Ren Jianyu has given countless interviews, had his photo featured on the cover of magazines, and appeared on national television. In many ways, his has become the face of opposition to RTL in China. Ren has vowed to continue appealing in court until the decision against him is overturned. Even though he was released ahead of schedule and the Chongqing RTL Management Committee revoked its earlier decision against him, Ren continues to seek justice through the courts because what he wants from the authorities is not simply their concession of wrongdoing but, more importantly, their affirmation of his rights and acknowledgement that they violated the law.

Chongqing Municipality No. 3 Intermediate People’s Court Administrative Decision: click to expand

Chongqing Municipality No. 3 Intermediate People’s Court
Administrative Decision

(2012) CQ 3d Int. Admin First No. 14

Plaintiff Ren Jianyu, male, born April 15, 1987, citizen identification number [Omitted—Ed.], Han ethnicity, previously assigned as a university [educated] “village official” in the Pengshui County Yushan Town People’s Government of Chongqing Municipality, resides in [Omitted—Ed.], Jiangjin District, Chongqing Municipality.

Legal counsel is Pu Zhiqiang, lawyer with Beijing Huayi Law Firm, and Xu Liping, lawyer with Zhejiang Wulian Law Firm.

Defendant is the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government, located at 555 Huanglong Road, Yubei District, Chongqing Municipality.

Legal representative is Wang Aizu, [committee] director.

Legal counsel is Yan Gangtao, civil servant employed by the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government, and Jin Xueling, civil servant employed by the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government.

Plaintiff Ren Jianyu did not accept the RTL decision made against him by the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government (hereafter, “Chongqing RTL Committee”) and filed an administrative lawsuit with this court on August 15, 2012. After accepting the suit on August 21, 2012, this court formed a collegiate bench in accordance with the law and held an open hearing on October 10, 2012, to try the case. Plaintiff Ren Jianyu and his counsel, Pu Zhiqiang and Xu Liping, and defendant Chongqing RTL Committee and its counsel, Yao Gangtao and Jin Xueling, all appeared in court to participate in the proceedings. The trial in this case has now concluded.

Plaintiff Ren Jianyu claimed that the Chongqing RTL Committee’s CQ RTL Rev. (2011) No. 3954 RTL Decision issued on September 23, 2011, lacked a factual and legal basis and requested that the people’s court rule to revoke or nullify that RTL decision.

Defendant Chongqing RTL Committee contended that the CQ RTL Rev. (2011) No. 3954 RTL Decision RTL decision was lawful. After Ren Jianyu received the RTL decision, while in the RTL facility where his rights to correspondence, communication, and visitation were amply protected, he did not file his administrative lawsuit during the statutory time period and his suit [thus] exceeds the statutory filing deadline. It requested that the people’s court rule to dismiss Ren Jianyu’s suit.

In the course of the trial it was ascertained that: On September 23, 2011, the Chongqing RTL Committee issued CQ RTL Rev. (2011) No. 3954 RTL Decision, finding that Ren Jianyu, between April and August 2011, had used the computer in the Family Planning Office of the Pengshui County Yushan Town People’s Government many times to go on Qzone and Tencent microblog and, through following [i.e., to “follow” on social media like Facebook or Twitter—Ed.], browsing, copying, pasting, re-posting, posting, and other means published commentary about international and domestic affairs and negative speech and information [regarding] reform of the political system [totaling] more than 100 items that promoted Western political models and attacked our party and government. The facts of his incitement of subversion of state power are clear and the evidence is reliable and sufficient. The Chongqing RTL Committee, in accordance with relevant provisions including those in the State Council Decision on the Issue of RTL, Article 3 of the State Council Supplementary Regulations on RTL, and Article 10(1) of Trial Measures for RTL, which were [all] approved by the Standing Committee of the National People’s Congress, decided to send Ren Jianyu to two years of RTL. That RTL decision clearly states: “If this decision is not accepted, an administrative lawsuit may be filed with the Chongqing No. 1, 2, 3, 4, or 5 Intermediate People’s Courts within three months of receiving this decision or application for administrative reconsideration made with the Chongqing Municipality People’s Government.” On September 24 of that year, the Chongqing RTL Committee delivered that RTL decision to Ren Jianyu. On September 26 of that year, Ren Jianyu was sent to the Chongqing Fuling RTL and Drug Rehabilitation Center to serve his RTL.

While serving his RTL, Ren Jianyu met with his father, Ren Shiliu, and his girlfriend on October 6, 2011, and April 24, June 26, and August 21, 2012; he spoke with his grandmother and his girlfriend by telephone on November 11, November 26, and December 11, 2011, and January 10, January 21, February 19, March 18, April 14, July 14, August 6, August 11, August 13, and August 18, 2012; and he corresponded by letter with his friends, classmates, and girlfriend on December 4 and December 30, 2011, and January 10, January 12, January 30, February 4, February 17, March 4, March 6, March 12, and March 23, 2012. During his meetings with his father and girlfriend, Ren Jianyu asked them to file an administrative lawsuit or request administrative reconsideration on his behalf. On August 21, 2012, Ren Shiliu filed an administrative lawsuit with this court in the name of Ren Jianyu.

Ren Jianyu’s main argument in court for why his suit did not exceed the statutory filing deadline was that according to the provisions of Article 43 of the Supreme People’s Court’s Interpretation Regarding Several Issues Related to Implementation of the Administrative Litigation Law of the PRC, in administrative lawsuits filed by persons whose personal liberty has been restricted, the time in which their personal liberty was restricted shall not be counted toward the lawsuit [deadline] period.

With respect to the aforementioned facts, there is evidence on file such as the statements made in court by the plaintiff and defendant; the CQ RTL Rev. (2011) No. 3954 RTL Decision; delivery receipts; a Memorandum of Explanation issued by the Chongqing Municipality Fuling RTL and Drug Rehabilitation Center; the Visitor Registration Log for Persons in RTL, Registration Log for Family Telephone Calls, and Transcripts of Telephone Conversations by Persons in RTL [provided by] the Chongqing Municipality Fuling RTL and Drug Rehabilitation Center; transcripts of conversations with police officers from the Chongqing Municipality Public Security Bureau and procurators from the Chongqing Municipality People’s Procuratorate No. 3 Branch assigned to the procuratorate office within the Chongqing Municipality Fuling RTL and Drug Rehabilitation Center; and the transcript of the Pengshui County Public Security Bureau’s police questioning of Ren Jianyu.

While the case was being tried, the Chongqing RTL Committee revoked CQ RTL Rev. (2011) No. 3954 RTL Decision on November 19, 2012, on the grounds that the case had been handled inappropriately, and the compulsory measures restricting Ren Jianyu’s personal liberty were lifted. The Chongqing RTL Committee’s voluntary actions to correct its errors ought to be acknowledged. Any exercise of public power must be done in accordance with the law and done cautiously, especially when it involves serious punishments that restrict personal liberty. The principle of proportionality between ends and means ought to be respected, and public power ought to act with rationality and tolerance, even when faced with radical and inappropriate speech by citizens. Any administrative act that violates the law substantively or procedurally ought to be corrected.

This court finds that: A citizen’s right to file administrative lawsuits with the people’s court ought to be protected, but that right must be exercised in accordance with the law. According to Article 39 of the Administrative Litigation Law of the PRC: “Where citizens, legal persons, or other organizations directly file suit with a people's court, they shall do so within three months from the day when they became aware that a specific administrative act has been taken, except as otherwise provided for by law.” Article 43 of the Supreme People’s Court’s Interpretation Regarding Several Issues Related to Implementation of the Administrative Litigation Law of the PRC states: “Where restriction of personal liberty makes it impossible to file suit, the time of restricted personal liberty is not counted toward the deadline for filing suit.” In light of the legal facts ascertained in this case, although Ren Jianyu’s personal liberty was restricted during the period of RTL, his rights to visitation, correspondence, and telephone were protected, and during this period Ren instructed his father and girlfriend to file an administrative lawsuit or apply for administrative reconsideration on his behalf. This ought to confirm that Ren Jianyu was able to file suit during the time that his personal liberty was restricted; [therefore] his argument that the period of his restricted personal liberty should not be counted toward the deadline for filing suit cannot be substantiated. Plaintiff Ren Jianyu signed to acknowledge his receipt of Chongqing RTL Committee’s CQ RTL Rev. (2011) No. 3954 RTL Decision on September 24, 2011, and filed suit with this court on August 15, 2012, after the statutory filing deadline. Therefore, in accordance with Article 44.1(6) of the Supreme People’s Court’s Interpretation Regarding Several Issues Related to Implementation of the Administrative Litigation Law of the PRC, [this court] rules as follows:

Plaintiff Ren Jianyu’s suit is rejected.

The litigation fee of 50 yuan paid by plaintiff Ren Jianyu is to be refunded. If this decision is not accepted, an appeal may be filed with the Chongqing High People’s Court by submitting an appellate brief with this court within 10 days of the delivery of this decision, along with copies for each member of the opposite party.

Presiding Judge: Yang Yu
Judicial Officer: Shao Ruiyi
Deputy Judicial Officer: Tan Xiaoqi

[Seal: Chongqing No. 3 Intermediate People’s Court]
November 20, 2012

[Seal: There are no differences between this copy and the original]

Court Clerk: Zheng Qin

Chinese Source(原文):
《重庆市第三中级人民法院 - 行政判决书》
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( 2012 ) 渝三中法行初字第00014号








原告任建宇不服被告重庆市人民政府劳动教养管理委员会(以下简称重庆市劳教委)作出的劳动教养决定,于2012年8月15日向本院提起行政诉讼。本院于2012年8月21日受理后,依法组成合议庭,于2012年10 月10 日公开开庭审理了本案,原告任建宇及其委托代理人浦志强、徐利平,被告重庆市劳教委的委托代理人姚岗涛、金学凌出庭参加了诉讼。本案现已审理终结。



经审理查明:2011年9月23日,重庆市劳教委作出渝劳教审(2011)字第3954号劳动教养决定书,认定任建宇于2011年4月至8月期间,先后多次在彭水县郁山镇人民政府计生办公室内用计算机上网,在其QQ空间、腾讯微博上以关注、浏览、复制、粘贴、转帖、发贴等方式发表国际国内时事评论和政治体制改革方面的负面言论和信息100 多条,鼓吹西方政权模式,攻击我党、政府,其煽动颠覆国家政权的事实清楚,证据确实充分。重庆市劳教委根据全国人民代表大会常务委员会批准的《国务院关于劳动教养问题的决定》、《国务院关于劳动教养的补充规定》第三条和《劳动教养试行办法》第十条第(一)项及有关规定,决定对任建宇劳动教养二年。该劳动教养决定书中载明:“如不服本决定,可在接到本决定书之日起三个月内直接向重庆市第一、二、三、四、五中级人民法院提起行政诉讼或在接到本决定书之日起六十日内向重庆市人民政府申请行政复议。”同年9月24日,重庆市劳教委将该劳动教养决定书送达任建宇。同年9月26日,任建宇被送到重庆市涪陵劳动教养戒毒所执行劳动教养。




在诉讼中,重庆市劳教委于2012年11月19日以处理不当为由撤销了渝劳教审(2011) 字第3954号《劳动教养决定书》,任建宇已解除限制人身自由的强制措施。对重庆市劳教委自行纠错行为,应予认可。任何公权力的行使都须依法、审慎,尤其是采取限制人身自由的严厉处分措施时,应遵循目的与手段相适应的原则,即使面对公民的过激不当言论,公权机关也应给予合理宽容。凡实体、程序存在违法的行政行为都应予以纠正。




审判长   杨 煜
审判员   邵瑞一
代理审判员   谭晓琪



书记员   郑 琴