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.