Female Petitioner Tragedy of Illustrates Rule of Law Dilemma

By He Weifang
Dec 26, 2009 – 12:43:10 PM

(This article was originally published in the December 21, 2009 edition of Caijing Magazine.)

The trial verdict in the rape case involving female petitioner Li Ruirui has attracted extensive attention. According to the decision of the Fengtai District People’s Court in Beijing, a 26 year old man, Xu Jian, employed as a security guard and clerk for the Beijing office representing Henan’s Tongbai County government, was sentenced to eight years imprisonment for rape. He was also ordered to pay the victim Li Ruirui damages in the amount of RMB 2300.90. The victim’s reaction suggests that she will likely demand that prosecutors protest the court decision. So this case may very well be appealed. Here, I will not comment on the trial itself; rather, I will simply discuss a few legal issues related to the case.

The first question regards the responsibility of the Tongbai County’s representative office in Beijing. The reason this case happened was in large part because the representative office illegally violated the victim’s personal liberty. The duties of a local representative office are probably extensive, but my understanding is that they are limited to receiving visitors and managing public relations. Even if they take on additional responsibilities, surely that can’t extend to running a part-time prison or detention center — and even less to to restricting citizens’ liberties. Article 37 of our Constitution is very clear: “No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens’ freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibite!
d.”

The corresponding Article 238 of the Criminal Law provides that: “Whoever unlawfully detains another person or unlawfully deprives the personal freedom of another person by any other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. If he resorts to battery or humiliation, he shall be given a heavier punishment. Whoever commits the crime mentioned in the preceding paragraph and causes serious injury to the victim shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if he causes death to the victim, he shall be sentenced to fixed-term imprisonment of not less than 10 years. . . Where a functionary of a State organ commits any of the crimes mentioned in the preceding three paragraphs by taking advantage of his functions and powers, he shall be given a heavier punishment in accordance with the provisions in the preceding !
three paragraphs correspondingly.”

Clearly, [Li Ruirui] is a Chinese citizen, and has the right to her personal liberty. She clearly has a right to come to her nation’s capital, whether for tourism or to file a complaint. But coming from Anhui, she was handed over by the local representative office of her home place to an office representing Henan’s Tongbai County, a place that has nothing to do with her. She was locked up and, while detained, Xu Jian raped her. At a minimum, the illegal detention was a precondition of the rape. Suppose two men grab a woman. One of them locks her into a room and the other rapes her. Who would deny that the man who locked her up is also guilty of a crime — not just the crime of illegally depriving someone of her personal liberty, but also as an accomplice to rape, assuming the first man had the intention to assist the rapist.

Fuyang’s (Li Ruirui’s hometown in Anhui) office in Beijing — what dereliction of duty! Tongbai County’s office — what savagery!

Even when incarcerating criminals or criminal suspects in detention, there is a distinction between male and female; for women there are women’s prisons. But these local representative offices illegally confine male and female petitioners in the same room. Even worse, they let Xu Jian, a “male guard” sleep in the same bed with a “woman petitioner” (though in upper and lower bunks). That exceeds even the lowest standard of civilized behavior; it is treating a person like an animal. Can you imagine, a weak women put into that situation, tigers and wolves circling, cut off and isolated, like the image from “Journey to the West” of “a fish serving as a cat’s pillow”? It’s unbelievable. Of course Xu Jian should be punished for the rape. But we should also look into the criminal responsibility of officials from the two representative offices and of other policy makers.

The most unbelievably strange part [of this story] is that the prosecutors seem completely indifferent to the fact that, in broad daylight, in the capital of the country, citizens’ liberty interests are brazenly violated. They speak not a word about the possible accomplice liability for Tongbai County’s representative office. This is really “killing a fly and leaving the tiger untouched.” As protectors of the dignity of the nation’s laws, the least we can say is that the prosecutors have neglected their work; we might even say they have committed a crime themselves.

Of course, the prosecutors have a reason for their own transgressions. In recent years, governments at all levels have shown extraordinary anxiousness about petitioning — particularly petitioning in Beijing. There are some obvious examples: Hebei Province has a “city moat project” to stop petitioners from going to Beijing (focusing on watching the roads leading to Beijing and stabilizing petitioners at the local level); the Henan Provincial High Court has made a “zero petitioning” demand (requiring that all courts in the province do their utmost to prevent even a single petition arising out of a court decision from reaching Beijing).

Local representative offices in Beijing have thus added a new duty — to forcibly return to their hometowns any petitioners entering Beijing. Before petitioners can be sent home, they need to be temporarily locked up. As a result, the local representatves forcibly hold the petitioners in places like low-level motels or temporary buildings. These are the “gray jails” where they keep petitioners locked up and violate their personal liberties. Because these actions originate in the government, even if prosecutors wanted to act, they would be powerless. Indeed, prosecutors and courts want to get involved in this system themselves.

Thus, our laws are forgotten. Not only are the Constitution and the Criminal Law ignored, but so are the beautifully written Regulations on Letters and Visits. Those regulations, approved by Premier Wen Jiabao on January 10, 2005, include the well-worded Articles 3 and 40. Allow me to cite them here in full:

Article 3. The People’s Governments at all levels and the relevant departments of the People’s Governments at or above the county level shall effectively handle letters and visits by conscientiously dealing with letters, receiving visitors, heeding people’s comments, suggestions and complaints and accepting their supervision, so that the people’s interests are best served. The people’s governments at all levels and the relevant departments of the people’s governments at or above the county level shall keep free-flowing channels for letter-writers and visitors and provide convenience for the letter-writers or visitors who give information, make comments or suggestions, or lodge complaints by such means as prescribed in these Regulations. No organization or individual may retaliate against letter-writers or visitors.

Article 40. Where one of the following circumstances leads to the presentation of a letter-or-visit matter, which causes serious consequences, the individual directly in charge and the other individuals directly responsible therefore shall be given an administrative sanction according to the provisions of the relevant laws or administrative regulations; if the act constitutes a crime, they shall be investigated for criminal liability according to law:

(1) The lawful rights and interests of a letter-writer or visitor are infringed upon due to overstepping or abuse of power;

(2) An administrative organ infringes upon the lawful rights and interests of a letter-writer or visitor by doing nothing about what it shall do;

(3) The lawful rights and interests of a letter-writer or visitor is infringed upon due to incorrect application of laws or regulations or violation of statutory procedures; or

(4) The execution of the decision in support of the request of a letter-writer or visitor made by the administrative organ which has the power to handle the matter presented is refused.

There is a brutal contrast between the warmth of these words and the cold reality in Beijing. Why is it like this? Consider it from their point of view. From the perspective of traditional notions of order, when citizens come to the capital to petition, particularly when they come in groups, the government loses prestige. The petitioners’ presence suggests impropriety in the government’s work, or perhaps even a huge government error. The upper levels don’t like the capital in disorder; the lower levels take advantage of this to suppress the petitioners, lest information about abuses at the local level reach the public. As a result, we now have some tens of thousands of staff permanently in the capital just to intercept petitioners. In light of this situation, what happened to Li Ruirui is just a matter of course, an inevitability.

This method is extremely costly. Actually, the fact that petitioners come to Beijing suggests that they still have faith in the central government. In some countries with developed economies and legal systems, it is not unusual to see dissatisfied citizens peacefully protesting in their cities or even in their capitals. For those who have traveled to the West, the routine nature of demonstrations leaves a deep impression. No one thinks that because there are protests in the streets that those governments are fragile. The reverse is true. Repressing those who lodge complaints or peacefully demonstrate is itself enough to harm the basis of the government’s legitimacy.

That such a large scale violation of our citizens’ personal liberty could happen in our capital city exposes a flaw in our protection of human rights. This gives our citizenry a confused message: clearly all of the central government organs have set up offices for accepting petitions; clearly the Constitution gives citizens the right to criticize and make recommendations to state organs and officials. At the same time, the Constitution and the Criminal Law both provide that citizens’ personal liberty is sacrosanct. But the reality is that the road for petitioners to Beijing is more and more blocked, with ring upon ring of obstacles, and these obstacles just happen to come from certain government organs. Facing such a scene, one cannot but ask: does the promise of the rule of law and administration according to law still count for anything?

The author is a professor at the Peking University Law School

Link to original article：http://magazine.caijing.com.cn/templates/inc/chargecontent2.jsp?id=110341645&time=2009-12-21&cl=106 [subscription required]

Link to text in Chinese:
http://www.chinaelections.org/NewsInfo.asp?NewsID=164456