Thursday, April 18, 2013

Tang Hui Case: Why the Focus Should Be on Judicial Independence

Tang Hui weeps outside the courtroom after her lawsuit was rejected. Photo credit:

Last Friday, the Yongzhou Intermediate People’s Court in Hunan Province rejected a much-anticipated administrative lawsuit brought by “Petitioning Mother” Tang Hui against the local reeducation through labor (RTL) management committee. Tang is seeking a written apology and about 2,500 yuan (approximately US $400) in compensation and damages for the controversial RTL decision issued against her in August 2012. The decision sentenced her to one and a half years of RTL in response to the tenacious petitioning she lodged to bring perpetrators and police to justice in her daughter’s case of sexual abuse and exploitation.

Influenced by strong public sympathy for a mother whose 11-year-old child was repeatedly raped and forced into prostitution, the provincial RTL Committee annulled the local committee’s decision shortly after Tang applied for administrative reconsideration. The annulment was issued on the grounds that, under the circumstances, admonition and education would be “more appropriate.”

At issue during this month’s trial was whether the Hunan Province RTL Committee’s revocation of the RTL decision against Tang means that the original decision should be considered “unlawful,” and therefore eligible for compensation. Tang’s lawyers argued that the annulment clearly implied that the decision was unlawful. Although the Yongzhou RTL Committee acknowledged in court that the RTL decision had been “clearly inappropriate,” it countered that the decision to release Tang had been made out of “humanitarian concern” (namely, in light of her need to care for her traumatized daughter), without questioning the legality of the underlying RTL decision.

If the Yongzhou RTL Committee’s action against Tang Hui was “clearly inappropriate,” then it could be argued that the RTL decision represented an abuse of official power, which would be grounds for compensation under Chinese law. But instead of undertaking its own examination of the legality of the original RTL decision—an authority it has under the revised State Compensation Law—the court ultimately accepted the argument that the decision had been “inappropriate,” but not “unlawful.” The result is a seemingly paradoxical conclusion in which both the RTL decision against Tang and the subsequent revocation of that decision were found to be proper and lawful.

Images of an inconsolable mother circulated widely on the Internet after the intermediate court’s decision, followed by numerous expressions of public sympathy and outrage at the perceived unwillingness of local authorities to admit their mistakes. The inability of the judicial system to achieve a just outcome in Tang’s case threatens to lead to further erosion of trust in the judicial system, a dangerous loss of legitimacy, and a potential source of instability.

But whereas the majority of commentators see Tang’s case as a consequence of the flawed RTL system, Hainan University Law School Professor Wang Lin, a frequent commentator on legal matters, places blame on the strained relationship between China’s judiciary and the system of “letters and visits” (or xinfang, a system that gives Chinese citizens an extra-judicial channel through which to make complaints and petition for redress of grievances). Lack of faith in the judicial system’s ability to produce justice leads people like Tang Hui to petition, but seeing them as threats to social stability, authorities take measures against petitioners and thereby exacerbate a broader sense of injustice.

This vicious cycle exists independently of specific countermeasures, meaning that reform or abolition of RTL is unlikely to break the cycle. Writing in Monday’s Oriental Morning News, Wang opines that the solution lies in the promotion of an independent judiciary, one that would restore citizens’ faith and confidence in the legal system and make alternative channels like petitioning less necessary.

Use Tang Hui Case to Rebuild Relationship of Judiciary, Petitions
Wang Lin, Oriental Morning News
April 15, 2013 

On March 25, the first-instance decision was issued in the suit brought by Lanzhou’s “Petitioning Mother” Zhao Meifu[*] against the Lanzhou RTL Committee. The court rejected Zhao’s litigation demands on the grounds that the deadline for litigation had already passed. On April 12, a first-instance decision was issued in the suit brought by Yongzhou, Hunan’s “Petitioning Mother” Tang Hui against the Yongzhou RTL committee. The court found that plaintiff Tang Hui’s demands could not be accepted because they lacked a factual and legal basis.

It is no coincidence that both of these “petitioning mothers” lost their respective lawsuits against RTL committees. Public opinion expects the tears of these “petitioning mothers” to be the final blow prevailing over the RTL system. Judging from the statements made by the relevant central authorities, this is no extravagant hope. Major changes are in the works for RTL; it’s just a matter of time.

With the Tang Hui and Zhao Meifu cases as points of departure, attention to the reform or even abolition of the RTL system is a natural public reaction. But hidden in the background of these two cases is not simply a debate over the legality of the RTL system, but [a need to] rethink the relationship between petitioning and the judicial system. Why were the “petitioning mothers” sent to RTL? Because of their “petitioning.” Why did they “trust the petitioning system rather than the judicial system”? Because they believed that they had already exhausted all channels for a judicial remedy and felt that they were unable to defend their rights effectively. So, they tied their hopes to the petitioner’s path.

For example, in the Tang Hui case, this mother was an ordinary citizen who became a “victim’s relative” because of a sudden calamity from heaven. In October 2006, her 11-year-old daughter was repeatedly raped and then forced into prostitution. Ordinarily, in a society with rule of law, the police ought to launch an investigation soon after receiving a report [of a crime]. But, ironically, in this major case, it was the victim’s mother who went undercover to collect evidence and then asked two relatives to pose as brothel customers in order to save her daughter. Afterwards, only after Tang Hui threatened to kill herself were the police motivated to file the case for investigation. Then after that, at many key stages in the judicial process, action was only “compelled” through some stirringly desperate rights-defense measures pursued outside the legal system. Whenever there are problems with the rule of law, petitioning naturally replaces rule-of-law channels.

And as we can observe from media descriptions [of the case], it wasn’t actually the “petitioning” that led to the case being handled in accordance with the law; rather it was the “impact” that impelled the relevant accommodations. That “impact” Tang Hui made by petitioning was also the cause of her being sent to RTL.

Let’s look at how the “case of the Yongzhou girl forced into prostitution” evolved into the “case of Tang Hui v. Yongzhou RTL Committee”: On August 2 of last year, the Yongzhou RTL Committee decided to send Tang Hui to one and a half years of RTL for disturbing social order. Tang Hui did not accept the RTL decision and applied for administrative reconsideration by the Hunan Province RTL Committee on August 7. Three days later, amid the focus of public opinion, the Hunan Province RTL Committee annulled the RTL decision.

After being released from RTL, Tang Hui then applied for state compensation. On January 5 of this year, the Yongzhou RTL Committee rejected her request and issued a decision not to pay state compensation. On January 22, Tang Hui sued the [committee] in the Yongzhou Intermediate [People’s] Court. After losing in the court of first instance, media flocked to report that Tang Hui would appeal the case to the Hunan High People’s Court.

Assuming that rejection is still the ultimate outcome of this case, will Tang Hui accept the decision and drop her lawsuit? If Tang Hui does not accept the final verdict, at that point the only channel for judicial remedy would be the even more uncertain path of appealing to reopen the case. This could perhaps send Tang Hui once more on the old path of petitioning.

If the judicial system is unable to end disputes, then the path of abnormal petitioning becomes viable again, and in the worst case scenario, RTL measures that exist out of a need to maintain stability would inevitably befall Tang Hui yet again. In order to prevent petitioners from falling into this vicious cycle, it is imperative to reconsider the petitioning system. Even if the RTL system is brought to an end within the year, if profound reforms aren’t made to the petitioning system, then replacement measures will inevitably be put in [RTL’s] place. This is practically a vicious cycle.

Thus it is just as important to use Tang Hui’s case as an opportunity to reconsider the relationship between the judiciary and petitioning as it is to reconsider the RTL system. If it is rare that a person sent to RTL is successful in a suit against an RTL committee, it’s definitely not solely because of “malicious litigation”; in reality, much of the time it’s because of the “mutual cooperation” of relevant departments.

If rights defenders are deprived of their personal liberty because they use “inappropriate” measures to “force state organs to perform their duties in accordance with the law,” I fear this will only force rights defenders onto the path of no return. As a victim, Tang Hui did not set out to choose petitioning. She once believed in the local police and judicial bodies and exhausted her energies urging the local functional departments to perform their duties in accordance with the law. Her “petitioning” was because the actions at the “lower levels” made her lose that belief.

Resolving this difficult situation rests on rebuilding the relationship between the judiciary and petitioning and making it ordinary for parties’ lawful rights and interests to be protected within legal channels. It is essential to let judicial independence pave the way for judicial fairness. Only by protecting citizens’ lawful rights and interests can we ensure the stability of localities and rights; this is an undisputable truth.

(The author is an assistant professor at Hainan University Law School.)

* Zhao Meifu has reportedly been involved in petitioning activities for 20 years. In November 2012, she went to Beijing to visit her son, a postgraduate student studying in the capital, and was intercepted by police under suspicion for petitioning. Lanzhou, Gansu, police escorted Zhao back home where, without being granted access to her family, she was sentenced to one year of RTL. The case received media attention after Zhao’s son posted it on Weibo (a Chinese version of Twitter), and 18 days after being sent to RTL, Zhao was released citing medical reasons.

Thursday, April 11, 2013

Magazine Exposé Reinvigorates Calls to End RTL

The story as it appears in the April edition of Lens

The recurrent exposure of individuals sent on dubious charges to reeducation through labor (RTL) is one important impetus to growing consensus about the need to reform or abolish RTL in China. Details of cases involving online criticism or petitioning have galvanized opinion against the nearly 60-year-old system of administrative detention, which central authorities indicate will undergo reform later this year.

The past few days have added urgency to an overhaul of the RTL system. In its April issue (published on April 6), Lens magazine included a 14-page exposé of exploitation, abuse, and torture at the Masanjia women’s RTL facility in Liaoning Province. Based on interviews with more than 20 women formerly incarcerated there—most of whom were sent to Masanjia over the past decade as punishment for petitioning—the article documents dehumanizing treatment in an institution where power can be exercised with near complete impunity.

Domestic Media Wildfire

The article is remarkable for its detailed descriptions of conditions at Masanjia and its corroboration of detainee accounts by labor-camp staff. Coming from Lens, a mainland publication owned by the publishers of popular financial magazine Caijing, the report arguably lends concern over RTL abuse more weight and traction inside China than reports by Western media or NGOs. Human rights organizations have reported the appalling conditions in RTL facilities before, and many of the accounts of torture at Masanjia echo allegations that have been raised for many years by practitioners of Falun Gong, banned by the Chinese government in 1999. In late 2012, Masanjia was named in mainstream Western media after an Oregon woman opened a box of Halloween decorations to find a letter apparently enclosed by a detainee at that women’s RTL facility. The letter described workers laboring for long hours with little rest and nearly negligible pay in order to avoid torture or abuse.

Once online, the Lens story created an immediate sensation. A slightly shortened version of the article was the most-read item on four major Chinese news sites. According to analysis (subsequently deleted from the Internet) by the “Public Opinion Monitoring Office” of People’s Daily Online, by noon on April 8, at least 420,000 had participated in online discussion of the report. The story could be found on more than 200 news sites and web forums, and it was discussed in 16,000 microblog posts, up from just over 200 the day before. Discussion has been overwhelmingly negative and has strengthened calls for the abolition of RTL and better oversight of the criminal justice system. Based on the data, analysts predicted that the public would become increasingly incensed and warned relevant authorities to “pay close attention to the potential for further developments.”

Official responses to the allegations have so far been mixed. On the one hand, authorities in Liaoning announced that they would form a special investigative team, including members of the media and the local people’s congress, to look into the charges. (This resembles the response of Yunnan officials who were faced with public pressure over a series of suspicious deaths in police detention centers in 2009.) On the other hand, officials from the Central Publicity Department of the Chinese Communist Party reportedly issued instructions on April 9 prohibiting media outlets from “reposting, reporting, or commenting” on the Masanjia story. In response, many websites have pulled the article, although, at present, most of the Lens report remains openly available online.

Extreme Corporal Punishment

The most shocking details from the Lens article are of inhuman and degrading punishment. Formerly incarcerated women describe being sent to solitary confinement in tiny cells with as little as two square meters of floor space. Inadequate air circulation left women—many of whom already suffered from physical ailments—gasping for breath and nosing the ground for drafts that might waft under the door. These damp, fetid spaces lacked adequate heating in winter, and the women often had no choice but to relieve themselves on the floor. One woman describes being handcuffed to a cell door and forced to remain standing day and night for two weeks. Although Ministry of Justice regulations limit the use of solitary confinement cells to a maximum of 10 days, women recount being held for months at a time.

The article also reports beatings, reckless use of electric batons, bodily suspension, and use of the notorious “tiger bench.” Women were hung, their outstretched arms handcuffed to the upper frames of bunk beds, so that the tips of their toes just barely touched the ground. Others were hung in awkward positions with their bodies stretched and contorted. One woman described being suspended for 28 hours. Asked about the use of such torture at Masanjia, one of the article’s inside informants explained that it was similar to the way a parent uses corporal punishment to force a child to submit: “This is related to a guard’s individual personality. Some see themselves as those who are in control, whose every action is correct. They do not have an understanding of those sent to RTL.”

Many of the petitioners interviewed used hunger strikes as a form of protest, but the response from authorities was nothing short of brutal. Hunger strikers were routinely placed on “death beds,” their bodies strapped down tightly while their mouths were wrenched open and feeding tubes forced down their throats. Confined this way for days, many of the women came away with permanent scars and broken and loosened teeth. In extreme cases, women subjected to these various treatments have developed serious mental illness and been forced to undergo radical treatments, including electroshock.

Seeking Redress on Shaky Ground

Whether describing inhuman treatment, exploitative working conditions, or the quality of food and sanitation, a recurring theme in the article is that the conditions at Masanjia fail to meet norms set forth in Chinese laws and regulations. This fact seems obvious even to those running the carceral institution, but despite such recognition, incarcerated women appear to have little recourse to protection.

An anonymous source quoted throughout the article repeatedly blames the system of “stability maintenance” for putting undue pressure on the RTL apparatus—in particular, for institutionalizing people who do not meet the criteria for confinement. “In the past, the people sent here were really bad types,” the informant explained. “Now, it’s vulnerable groups like petitioners or university students involved in pyramid schemes. I feel pity for them.” Because petitioners, in particular, tend not to acknowledge that they have violated any laws, “they don’t acknowledge guilt and they don’t work—this puts us in a difficult position.”

Procurators assigned to monitor conditions at the RTL facility are flooded with complaints, and they seem to investigate many. But gathering evidence can be difficult. The worst abuses often occur beyond the reaches of closed-circuit cameras, and potentially implicating footage is often erased. When investigators do find evidence of wrongdoing, it tends to be classified as a “disciplinary violation” for internal handling, rather than criminal prosecution. Given RTL’s shaky legal foundation, the basis for procuratorial oversight is unclear, and procurators at Masanjia seem reluctant to “take on the entire facility.” Since 2004, there has only been one criminal prosecution at Masanjia, when a guard was sentenced to 12 years in prison for assaulting an incarcerated woman, leaving her in a coma.

Some women have succeeded in getting their RTL decisions overturned through administrative litigation, but results are not guaranteed, even with clear evidence of violation. After one woman successfully had her RTL decision annulled, the Chaoyang RTL committee appealed, arguing: “Though there were flaws in the procedure [we] used . . . there was nothing inappropriate about the decision to send [her] to RTL. [The decision] was made in the interest of preserving overall stability and accords with the local law-enforcement realities of Chaoyang. Sending [her] to RTL benefits the preservation of social order and stability.”

The appeals court ultimately upheld the lower court’s decision to annul the RTL decision, a welcome rejection of the “stability above all else” mentality that has dominated China’s criminal justice system for too long. That type of mentality still has deep roots in China’s law enforcement institutions, but exposure of the many social costs associated with the overriding priority given to stability is leading the public to demand change. As Chinese authorities prepare to bring an end to RTL, and replace it with something new, these demands must be taken into account.

Monday, April 8, 2013

Non-Custodial Sentences Rise for Juveniles, Migrants Benefit Less

Supreme People's Court. Photo credit: Wikipedia

In March, the Research Office of the Supreme People’s Court published juvenile justice statistics for 2008‒2012, reflecting positive reforms in juvenile justice. During the period, China adjudicated 365,750 juveniles, down 4.5 percent from the previous five years. Meanwhile, the portion of juveniles receiving non-custodial punishments increased, reaching 42 percent in 2012 from 35 percent in 2008.

China added a juvenile section to its Criminal Procedure Law (CPL) last year including diversionary measures and codifying the principle of education first, punishment second. In 2011, the country amended its Criminal Law to recommend suspended sentences for youth who commit minor offenses.

Non-custodial punishments are crucial to help juveniles avoid re-offending, ensure their healthy development, and facilitate their positive interaction with the community. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) call for the least possible use of institutionalization, or custodial punishment, explaining that:

Little or no difference has been found in terms of the success of institutionalization as compared to non-institutionalization. … Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for adults because of their early stage of development.

The president of Guangzhou Intermediate People’s Court, Liu Nianfu, agrees that there is significant harm in institutionalizing juveniles who should receive non-custodial punishments. He sees the danger as a consequence of removing juveniles from society and putting them in close confinement with others who have come into conflict with the law.

In China, the most common form of non-custodial punishment is suspended sentence or reprieve. Suspensions or reprieves postpone the sentence for a specified period during which the defendant is required to submit to certain conditions—such as regularly reporting to a monitoring organization and obtaining approval for travel—in order to have the sentence withdrawn at the end of that period. Other types of non-custodial punishments include public surveillance and fines.

Migrants Benefit Less 

Although juvenile justice is meant to be impartial, migrant youth have been barred from equal access to non-custodial punishments in China. Shanghai and Guangdong have lower than average rates of juvenile non-custodial punishments, and courts in both regions have attributed this to higher proportions of migrants among juvenile defendants. For example, of juveniles tried in Shanghai in 2010, suspended sentences were given to 15 percent of non-locals, i.e., people without a Shanghai hukou (household registration), compared with 63 percent of locals. [1] 

There are many reasons why migrants are more likely to be incarcerated. The Criminal Law lists “expressing remorse” as one of the criteria for receiving a suspended sentence. While not theoretically discriminatory, courts commonly consider whether defendants return stolen property and provide financial compensation as an aspect of remorse thereby privileging wealthier defendants.[2] In 2011, the Juvenile Court Guiding Office of the Shanghai Municipality High People’s Court reported that migrant youth are less capable of returning stolen property or providing compensation since the property in question is often immediately expended and the youth themselves have fewer economic means.

Hukou, or household registration status, is important in determining non-custodial sentencing. Photo credit: Xinhua News

Some organizations in charge of monitoring individuals serving suspended sentences—police or grassroots organizations under the previous CPL and community corrections organizations under the revised law, effective January 1, 2013—limit their scope to people with local hukous, making migrants ineligible for suspended sentences, unless they are sent back to their hometowns. The prospect of relocation raises several issues including moving costs, the disruption of routine and social networks (especially if the juvenile has been living away from home for a significant period of time), and whether the juvenile will have suitable adult supervision. Moreover, according to Liu Nianfu, a solid understanding of the circumstances of a case is crucial to carrying out a tailored plan for rehabilitation. However, having a juvenile serve his or her sentence in a place other than where he or she committed the offense leads to an information disconnect where the implementers are less equipped to respond to the specific needs of the juvenile.

Another reason why migrant youth are not given suspended sentences is to account for what can become lengthy stays in detention. Migrant youth can be detained for months while their case is pending trial because they are more likely to lack the guarantor or funds necessary to post bail. According to the Shanghai high court, these prolonged detentions lead courts to issue custodial sentences whose lengths correspond to the amount of time juvenile defendants spent in detention to avoid the appearance of “excessive” punishment—even in cases where non-custodial punishments would have been applicable. The court goes on to note that this problem could be addressed by allowing community corrections organizations, defendants’ employers, or public welfare organizations to act as guarantors and by conducting speedier trials.

Making Progress

With growing awareness of the issue, Shanghai and Guangdong are working to boost access to non-custodial punishments for migrant youth. In Shanghai, the percentage of migrant juveniles receiving these punishments increased to 15 percent in 2010 from 9 percent in 2008. In Guangdong, non-custodial punishments for all juveniles (not disaggregated by hukou status) rose to 50.2 percent in 2011 from 10.9 percent in 2008. 

Last year, a member of the Shanghai No.2 Intermediate People’s Court published an article calling for equal sentencing for migrant youth.[3] The article uses the case of 17-year-old surnamed Shan to demonstrate how engagement from the defendant’s family, the judiciary, and the community can reduce institutionalization.

Shan’s parents had been working in Shanghai for seven years. He worked at a car factory and was convicted in a robbery case involving two victims, a few hundred yuan, and several mobile phones. Originally sentenced to 1.5 years’ imprisonment and a fine of 1,000 yuan, Shan successfully appealed the verdict and was given a suspended sentence due to several factors. The court strengthened cooperation between the district procuratorate and local community corrections organization to conduct a social investigation report. Members of the juvenile court visited Shan’s home and workplace to determine that he had a stable residence. Shan participated in reconciliation during which he showed remorse and offered financial compensation to the victims. Since Shan’s parents were in Shanghai and had applied for a temporary residence permit, he was eligible to participate in a local “help and education” (bangjiao, which is similar to probation) program, during which the court periodically evaluated his progress. Shan’s employer also agreed to continue his employment and undertake more rigorous supervision. This case demonstrates that increased collaboration can lead to the successful application of non-custodial sentencing, but given Shan’s ability to provide compensation and his relatively stable residency and work status, it is not necessarily applicable to most migrant juveniles.

Guangdong has addressed the issue by bolstering its policy framework with regulations for implementing non-custodial punishments in juvenile cases. Issued by the Guangdong High People’s Court, the regulations state that community corrections organizations can provide help and education to juvenile suspects and defendants who are not Guangdong residents but who regularly reside, study or work, or have family members in Guangdong.

Rather than referring generally to those with non-local hukous, which can include people from different cities or counties of Guangdong, the rules refer to non-Guangdong residents. That means that while a juvenile in Guangzhou, Guangdong’s provincial capital, with a Sichuan hukou need not be sent back to Sichuan to carry out a suspended sentence, a juvenile who has moved to Guangzhou from elsewhere in the province just might. In order to facilitate these types of movements, the Guangzhou Intermediate People’s Court has devised a new system of post-sentencing corrections plans. The system requires juvenile judges who issue suspended sentences to write corrections plans that are tailored to the circumstances of each defendant and submit them to community corrections organizations that carry out the help-and-education stage. In situations where migrant juveniles are sent back to their place of registered residence, these plans help community corrections organizations understand the juvenile’s needs, but relocating juveniles is not without problems. Removing a young person whose identity is still being formed from a familiar school, job, or group of friends presents a major transition that can either facilitate or complicate the reform process.

Despite ongoing problems caused by economic inequality and hukou status, the amount of collaboration involved in increasing access to non-custodial punishments among migrant youth in the immigration centers of Shanghai and Guangdong is significant. In order to realize the principle of education first as emphasized by the revised CPL, more broad-based attention must be paid to migrant juveniles to ensure that they benefit from forward-thinking juvenile justice reforms.

1. 朱妙, 陈慧, 张世欣 [Zhu Miao, Chen Hui, Zhang Shixin], “非上海未成年人缓刑使用状况及对策” [Feishanghai weichengnianren huanxing shiyong zhuangkuang ji duice], 中国少年司法 [Zhongguo Shaonina Sifa], 2011(1):76.

2. Ibid. p 78.

3. 李振武 [Li Zhenwu], “对符合条件的非本地户籍未成年被告人应平等适用缓刑” [Dui fuhe tiaojian de feibendi huji weichengnian beigaoren ying pingdeng sheyong huanxing], 预防青少年犯罪研究 [Juvenile Delinquency Prevention Research], 2012(7).