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Expert Commentary

The Freedom of Waiting for Trial—Analysis of a Hami Case in Xinjiang

Posted Nov 06 2008

—by Pan Shengshan

 —Initial Release by ChinaAid—

As one of the most fundamental freedoms of humanity, the freedom of religious belief has been declared by various democracies of the world as the basic rights to be protected.  China is not an exception as it is clearly stipulated in the Constitution of our country that citizens have the right of freedom of religious belief.  However, due to bondage to the old ideologies of some people, lack of perfection in the Constitutional provisions, legal omissions and defiance of the law in practice by some agencies, the right of religious freedom of the religious believers in China, especially that of Christians, are restricted in their right of religious freedom and they even suffer various types of obstruction and persecution.  Take the Christian house church as an example, normal gatherings, sermons and donations are often disrupted without apparent reasons and even the printing of the Bible, the most rudimentary and the most important basis for the Christian belief and the most fundamental teachings of the Christian belief, is labeled as “illegal.”  Though this phenomenon varies in severity with different regions, it exists everywhere.  How can we change this situation?  Besides pinning hopes on legislatures to amend the relevant provisions in the Constitution, enacting laws to safeguard the religious freedom of citizens and calling on the progressive forces to pay attention to issue of religious freedom and other passive methods, another important way is that citizens should defend their rights as provided by the law to promote improvement in religious freedom and win basic rights of the citizens.

The recent religious case in Hami, Xinjiang is a case in point.  On the one hand, the case shows the relevant authorities are not able to conduct their administration in accordance with the law and the fact that the court is not able to provide a just trial under the pressure.  On the other hand, it also shows citizens are becoming more and more aware of their rights, making the pursuit of the right of religious freedom and other civil rights increasingly the irresistible trend of history.  The political promise of returning the power to the people will gradually become a reality through the right-defense of the citizens.
 
1.  Review on the Case: “Illegal” Gathering?

On December 4, 2007, when Brother Wei Hongxing and more than 20 other Christians from Lanzhou, Henan and other places gathered at his residence in Daquanwan village, Daquanwan township of Hami, Xinjiang to conduct a theological training session, armed police led by Hami Municipal Committee for Ethnic Religious Affairs and other people entered the residence of Brother Wei on the grounds that an illegal gathering was being held there.  They ordered the gathering to stop.  Without showing their search warrants, they seized the cash, cell phones from the brothers and sisters and pried open the bedrooms of Brother Wei and his neighbors. They hauled away all the materials and books used in the gathering and Brother Wei’s daily private belongings. (The belongings included a color TV, DVD, refrigerator, washer, comforters, cash, etc.  They even hauled away the decorative boards to be used for interior decoration.  So far, they have not returned these objects.)

On January 4, 2008, Hami Municipal Committee for Ethnic Religious Affairs, in accordance with Article 43 of “Regulations on Religious Affairs,” imposed an administrative penalty of confiscating all the objects used in illegal gatherings plus a fine of 80,000 yuan, which is twice as much as the alleged illegal gains.  The reasons they gave are that Wei Hongxing founded an illegal Christian gathering site inside his residence from August 2006 to December 2007, held three illegal religious activities and received donations from illegal organizations without authorization, which is a violation of Clause 2, Article 20 of “Regulations on Religious Affairs” that states “No non-religious bodies or sites not for religious activities may organize or hold any religious activities, nor accept any religious donations.”

During this time, Brother Wei has on many occasions contacted them, but Hami Municipal Committee for Ethnic Religious Affairs not only did not allow Brother Wei to argue his case, but also threatened Brother Wei on many occasions that they would break his will and drive him out of Xinjiang.  Brother Wei could not accept the decision of the administrative penalty imposed by Hami Municipal Committee for Ethnic Religious Affairs and submitted an application for administrative reconsideration at Hami Municipal People’s Government of Xinjiang, which made a reconsideration decision of upholding the original administrative penalty. On April 2, Brother Wei submitted an application for administrative litigation at Hami Municipal People’s Court, requesting it to repeal according to law the decision of administrative penalty imposed on him by the defendant on January 4 and to return all the seized objects to the plaintiff.  Hami Municipal People’s Court decided to try the case in court on the morning of July 29.  Later, on the grounds that the agent hired by Hami Municipal Committee for Ethnic Religious Affairs would have to be engaged in another criminal case, Hami People’s Court changed the time of the court to the afternoon of the 29th of the month.  On that afternoon, Brother Wei, Sister Wu and other people participated in the litigation.  They conducted their defense in two aspects by stating that the administrative penalty is not based on facts or the law and it violates the judicial procedures.  They demanded that Hami Municipal Committee for Ethnic Religious Affairs repeal the decision of administrative penalty.

At this time, the case is still in trial.  However, the case is basically like what has been described above and the two parties do not have serious disputes on that.  The key is how to determine the conduct of the client and how to apply the relevant law.  This is the focus of the two parties’ disputes.  Let’s focus on this issue in our following analysis.
 
2.  Legal Analysis:  Application of Law and Procedure of Law Enforcement

Judging from the perspective of legal basis, it is stipulated in Article 36 of the Chinese Constitution and Article 3 of the White Paper of “Status of Freedom of Religious Belief in China” promulgated on October 16, 1997 by Information Office of the State Council that states: “All the normal religious activities held by believers in their own private homes according to religious customs, such as Sunday services, prayers, Bible lectures, sermons, Mass and baptism, etc. shall be handled by the religious organizations and their believers themselves.  These activities are protected by the law and nobody may interfere with … the religious activities held in their own private homes and mainly attended by their relatives such as praying and Bible reading (habitually referred to by Christians in China as ‘house meetings,’) are not required to register.”

We can see from the above provision that every citizen in our country has the freedom to believe in a religion or not believe in a religion and that as long as the external conduct of the citizen does not violate the prohibitive provisions in the law, the law enforcement agencies must not restrict the freedom of the citizen who holds the above-mentioned belief or interfere with his or her freedom of belief.  In addition, the religious citizen and religious groups may establish their own sites for religious worship without having to get an approval from government agencies.  Therefore, the gathering of Wei Hongxing and other people at his residence and their religious activity conducted according to religious customs are normal religious activities and did not need the approval by the government.  Therefore, the conduct of Wei Hongxing and other Christians is in compliance with the basic principles of the religious policies of our country and theirs is the religious activity protected by the Constitution of our country.  It is wrong for the Committee for Ethnic Religious Affairs to conclude that the religious activity held by Wei Hongxing and other people is an “illegal gathering” and their conclusion is also a violation of the basic principles of the state’s religious policies.  Moreover, the church may accept the donation from the believers according to religious canons and the church property managed by the church according to the religious canons must not be interfered with by law enforcement and the conduct is the internal affairs and should not be interfered with.  Furthermore, it has not violated the general rules in the civil codes on gifts by the citizens.  The conclusion by the Committee of Ethnic Religious Affairs that Wei Hongxing and other people “accepted donations from outside illegal organizations without approval” is also wrong.  The religious activity by Wei Hongxing and other people is legal and is protected by the law.  The decision of penalty made by the Committee for Ethnic Religious Affairs is not supported by a legal basis.

Let’s look at the issue from the procedure of the law enforcement. It is stated in Article 37 of the “Law of the People’s Republic of China on Administrative Penalty” that “when administrative organs conduct investigations or inspections, there shall be not less than two law-enforcement officers, who shall show their identification papers to the party or other persons concerned.”  It is stated in Article 31 of the “Law of the People’s Republic of China on Administrative Penalty” that “Before deciding to impose administrative penalties, administrative organs shall notify the parties of the facts, grounds and basis according to which the administrative penalties are to be decided on and shall notify the parties of the rights that they enjoy in accordance with law.”  It is also stipulated in Article 32 of the “Law of the People’s Republic of China on Administrative Penalty” that “the parties shall have the right to state their cases and to defend themselves. Administrative organs shall fully heed the opinions of the parties and shall reexamine the facts, grounds and evidence put forward by the parties; if the facts, grounds and evidence put forward by the parties are established as true, the administrative organs shall accept them.  Administrative organs shall not impose heavier penalties on the parties just because the parties have tried to defend themselves.”

The Committee for Ethnic Religious Affairs and the armed police are supposed to present their certificate of law enforcement before they try to enforce the law and they are supposed to respect the citizens’ right to state their cases and to defend themselves. However, on December 4, 2007, they took away the Christians gathered there and conducted interrogations on them without presenting law enforcement certificates or summons.  They also imposed an administrative penalty without listening to the Christians’ arguments.  Their conduct is clearly a violation of the procedure as set forth by the law.

From the above analysis, we know that the decision of the administrative penalty imposed by the Committee for Ethnic Religious Affairs on Wei Hongxing and other people is not supported by facts or legal basis and their procedure of law enforcement also violated the legal provisions.  During the court trial on July 29, the court did not let the witness provided by Brother Wei to appear in court and it interrupted the arguments of Brother Wei and Sister Wu.  It showed clear signs that it sided with Hami Municipal Committee for Ethnic Religious Affairs.  However, under the special guidance of the Holy Spirit, Sister Wu and Brother Wei, who is usually fearful and timid, bravely argued their cases with facts, legal provisions and the violation of procedures committed by Hami Municipal Committee for Ethnic Religious Affairs.

3.  The Flaws in the Law Demonstrated by the Hami Religious Case.
 
Agencies in charge of religious administration manage religious affairs in accordance with “Regulations on Religious Affairs” implemented in 2005 by the State Council.  However, due to differences in understanding the “Regulations,” unregistered religious groups in China are bogged down in a dilemma, making the status of freedom of religious belief that is not optimistic in the first place worsen further.  According to Article 5 of the “Regulations,” not all “religious affairs” or religious activities are within the jurisdiction of administrative agencies in charge of religious affairs (local and ethnic bureaus of religious affairs).  It only stipulates that it manages religious affairs that involve state interests and public interests.  According to Article 12 of “Administrative Permit Law,” administrative permits are established for the religious activities of the citizens that involve state interests and public interests.” However, as there is no official interpretation in the Regulations on what “state interests and public interests” are, there are errors in the interpretation by agencies in charge of religious affairs on the Regulations.  Their logical reasoning is: any activity that involve religious belief (For example, activities where Bibles, hymnals, faith books and other materials are involved, or activities such as worshipping, prayer, Bible study, donation, etc.) is a religious activity and a religious activity must be approved by the government beforehand; any activity that is not approved beforehand by the government is an illegal activity.  Therefore, all religious activities must be approved by the government.  All religious worshipping activities without government approval are illegal and should be abolished.  By doing things this way, they have practically revised Article 36 of the Constitution to read: “Citizens of the People’s Republic of China, upon approval by the government, have freedom of religious belief.”

(3) They have exceeded and abused the limits of authority given to them by the Regulations and they place all religious activities under their administration.   This is a serious violation of the Constitution and turn the statement that “Chinese citizens have freedom of religious belief” into an out-and-out lie that is made in the State Council’s annual white paper on the status of human rights in China, repeated in every press conference held by the State Council and spokesman of the Ministry of Foreign Affairs and claimed repeatedly by director of the State Administration for Religious Affairs and leaders of the state on many occasions.

Article 43 of the Regulations endows the power to the agencies in charge of religious administration to repeal, abolish and order to stop illegal religious activities and confiscate illegally obtained income and impose fines and other administrative penalties.  Agencies in charge of religious administration often define normal religious activities held in house churches as “illegal” based on the three clauses in the Regulations and impose administrative penalties, i.e. they conclude that the group religious worshipping and praising activities by the plaintiff and other religious citizens as “illegal religious activities” according to Articles 12 and 20 of the Regulations and impose administrative penalties according to Article 43 of the Regulations.
It is stated in Article 8 of the Regulations that religious citizens have the freedom of participating in religious activities within the sites for religious activities according to religious doctrines, canons and customs and that they also have the freedom of living a religious life in their homes. Therefore, the sites where religious citizens conduct religious activities include registered ones and unregistered one.  They also include fixed sites and temporary sites.  The latter includes at least private sites where group religious activities are held.  It is stated in Article 12 of the Regulations that group religious activities of religious citizens shall, in general, be held at registered sites for religious activities (i.e., Buddhist monasteries, Taoist temples, mosques, churches and other fixed premises for religious activities), organized by the sites for religious activities or religious bodies, and presided over by religious personnel or other persons who are qualified under the prescriptions of the religion concerned, and the process of such activities shall be in compliance with religious doctrines and canons.

This also means the group religious activities of citizens can be held at registered sites for religious activities and they can also be held at unregistered sites for religious activities and temporary sites for religious activities.  That is to say, Regulations does not require that all group religious activities of religious citizens must be held at registered sites and must be approved by the government beforehand.
 
Therefore, unregistered sites for religious activities such as private residences or other non-public sites are also sites for religious activities.  They are not what the Regulations claims as “sites not for religious activities.”  Religious activities such as worshipping, donation, etc. held by religious citizens at their private residences and other non-public sites according to religious doctrines are also not “illegal gatherings.”  Only by doing so can we correctly understand and apply Article 20 of the Regulations that states “No non-religious bodies or sites not for religious activities may organize or hold any religious activities, nor accept any religious donations.”
 
Freedom of religious belief is the basic right endowed to the citizens by the Constitution.  Any requirements that set up administrative permits beforehand are a serious violation of the Constitutional rights of the citizens.  The freedom of religious belief of the religious citizens include religious gatherings at ordinary public sites and they should be treated just like gatherings of other nature.  Normal restrictions on them should only be in the areas of public security, safety, fire code and other areas of administrative nature and they should not be placed under special restriction just because of its religious nature.  Otherwise, it is a violation of the provision in Article 36 of the Constitution on the freedom of religious belief.
 
Besides, in religious policies and guiding principles, there exists a widespread bigotry in the government, such as the so-called “theory that religion is dying.”  By this, they think religious beliefs result from economic and cultural backwardness and are only a temporary historical phenomenon and that it will eventually perish by itself.   (1) Another misunderstanding is the politically and ideologically charged “theory of religious threats.”  The freedom of religious belief includes the freedom of Christian belief that covers the freedom of conscience, freedom of speech, freedom of assembly, freedom of organization and other types of freedom.  The freedom of religious freedom can promote democratization and liberalization in China.  The government is concerned that the ideology and the liberal ideas brought by religious beliefs may pose a threat to the legitimacy of its rule or that religious groups could be infiltrated by the so-called overseas political forces who may subvert the political power it has established.  Though Article 36 of the Chinese Constitution provides Chinese citizens with freedom of religious belief, the law enforcement agencies of the government, guided by such an ideology mentioned above, have come up with specific laws and administrative regulations that run against the Constitution.   They violate the freedom of religious belief, deprive citizens of their rights of religious belief, especially the State Council’s “Regulations on Religious Affairs” implemented in 2005.  In the actual law enforcement, the law enforcement officers have committed many acts of depriving people of their freedom of religious belief, prohibiting them from enjoying the freedom and even persecuting them for their beliefs, especially in the crackdown on the Christian house churches that are not able to register.

4. Citizens Defending Their Rights:  Trekking in Difficult and Dangerous Territories.
 
Law enforcement officers of state agencies often commit illegal acts of dispersing congregations of Christian house church, imposing fines on them, confiscating properties, detaining and placing people on re-education-through-labor programs, confiscating religious materials, etc. After being victimized by the illegal acts of the law enforcement officers of the state organs, Christians should not resign oneself and do not try to fight for justice.  They should defend their own rights and protect their own legitimate rights.  Article 41 of the Constitution endows every citizen the right to sue and inform against the law enforcement officers of state agencies on their illegal and criminal acts.  We can use the laws passed by the government and repeatedly implement the legal procedures and fight our battles with the law enforcement officers of the government on the platform of the law.  (1) If citizens do not defend their own legitimate rights, more citizens will face in the future the abuses of the law enforcement agencies.  Christians all over China should be prepared beforehand.  Once their rights are violated, they should directly submit their complaint at a court or procuratorate, apply for an administrative litigation, demand that a decision be repealed and the law enforcement officers of the state agencies should be held accountable for their conduct.

However, as the justice system in China is not independent, as long as a case involves the vital interests of the local government and the relevant authorities, the latter would often establish a special panel of people to “coordinate” various relationships and the attorneys and the court are both in the list of “coordination.” (2)  Under pressure from various sides, many attorneys are unwilling to take cases of administrative litigation, which has resulted in low legal assistance rate in cases in which ordinary civilians sue the officials.  On the other hand, the courts, with interference from local governments, can place few cases on file.  As a result, the cases cannot enter the judicial process and the plaintiff can only shuffle between several administrative organs (including agencies in charge of petitions).  Even if they have succeeded in entering the judicial process, the courts often side with the defendant in trials of the case and they urge the plaintiff to drop their lawsuit, change defendants without proper approval and constantly engage in other types of illegitimate conduct.  We can see here that the ordinary citizens’ rate of winning over the government’s abuse through the law is not high.  It is reported that there are annually over 100,000 cases in China of ordinary citizens suing the officials and the rate of success is less than 30%.

Though the prospect of defending their rights through the law by ordinary citizens is not optimistic, a large number of facts on right defense is increasing the awareness of the citizens in defending their rights and it inspires citizens to take up the weapon of law to defend their rights.  Secondly, it is also giving the government officials a warning that if more and more citizens take up arms in the form of law and battle the government and its law enforcement officers in legal procedures, they will certainly promote the legal progress in China and improve the status of freedom of religious belief.
 
As of now, agencies in charge of religious administrative still believe that “all religious activities must be approved beforehand,” a wrong idea that contradicts the Constitution and it is with this wrong idea that they are interpreting and applying the Regulations.  In the process of enforcing the law, they show total disrespect for the basic legitimate procedure.  Their lack of professionalism in enforcing the law, their abilities and their level of awareness of rule of law all demonstrate that there is still a long way to go before China can respect and protect its citizens’ freedom of religious belief.

Finally, in this last paragraph of my article, we sincerely hope that Hami People’s Court of Xinjiang can, out of the spirit of rule of law and conscience of legal professionals and out of judicial responsibility to supervise the government in its administration in accordance with the law, come up with a ruling that can stand the test of history and repeal the administrative conduct of Hami Municipal Committee for Ethnic Religious Affairs who went beyond its authorized power and violated the legal procedure and who lack sufficient legal basis.  We hope the People’s Court will do its duty in protecting citizens’ right of religious freedom endowed by the Constitution.
 
(1) Guo Feixiong and Li Baiguang on speech, religion, freedom and rule of law
http://www.voanews.com/chinese/archive/2006-05/w2006-05-17-voa55.cfm

(2)  Ye Haying:  There are annually over 100,000 cases of ordinary citizens suing the officials and the rate of success is less than 30%.
http://www.6-4.net/news/gb/pubvp/2008/10/200810282227.shtml

(3) A house church in Chengdu formally sues its Bureau of Religion at the court for religious persecution.
http://chinaaid.org/chinese_site/press_release_detail.php?id=6438

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