Administrative Reconsideration Application

China Aid Association
Applicant:
Name: Zan Aizong, male. ID No.: 341222197109042395. Title: Director, China Ocean News at Zhejiang Newsmen Center. Home Address: 2-2-501, Shengmingyuan, Xinyuan Community, East of Hangzhou. Phone: 13082850180 and 88007257
Attorney: Li Baiguang. ID No.: 110108196810011959. Home Address: Room 12B07, No. 4 Building, Changyuantiandi Community, No. 18 of Suzhou Street, Haidian District, Beijing. Phone: 13910802896
The respondent of the application (the party against whom the application is made):
Name: Public Information and Internet Security Supervision Division of the PSB of Hangzhou City
Address: 35, Huaguang Road, Hangzhou City
To: The Public Security Bureau of Hangzhou City (to whom the application is submitted)
The application requests:
1        Determine the decision of public security administrative punishment (HGXAJ2006, No. 28) imposed by the respondent of the application on the applicant illegal in accordance with the applicable law.
2        Order the respondent of the application to indemnify the applicant in accordance with the Law of the People’s Republic of China on State Compensation
The facts and the reasons for the requests:
July 29, 2006, XiaoShan District governmental entities, including National Land and Resources Bureau, Public Security Bureau, and Construction Committee forcibly demolished the nearly completed Christian church in Dangshan Township, XiaoShan District, Hangzhou City, based on the prevention of “illegal construction.” The conflict and dispute arising from the demolition caused bodily injury to some Christians. The Public Security Bureau Division at XiaoShan District detained some Christians.
August 1, 2006, the applicant, as a newsman, upon knowing the rough details of the demolition of the church, wrote Appeal to Zhejiang Provincial Government to Investigate the Forced Demolition, June 29, by XiaoShan District Government and Disclose the Truth, and then published this article via the Internet. This article criticized the XiaoShan District Government for making the statement that no one was wounded in the confrontation and asked the government to investigate this event, explain the legal ground for the demolition, and disclose the whole process of this law-enforcement. He also called for the press to be given independent access to this event. 
Facing challenges and criticism from home and abroad, the XiaoShan District Government did not respond. The applicant thinks that the refusal of XiaoShan District Government to explain the legal grounds for the demolition and disclose the whole law-enforcement process constitutes administrative inactivity, where their legal duty is not fulfilled. August 4, 2006, the applicant published Websites Closed, Prohibition of Religion and Repression of Freedom of Speech Are More than Insanity: A Strong Protest of the Use of Violence against Christians via the Internet. This article denounced the XiaoShan District Government for refusing to disclose the true process of law-enforcement, called for the government to be responsible, urged the government to secure human rights and protect religious freedom, investigate the demolition and disclose the truth.
The article Appeal to Zhejiang Provincial Government to Investigate the Forced Demolition, June 29, by the XiaoShan District Government and Disclose the Truth included such sentences as “I urge the Zhejiang Provincial Government to undertake an independent investigation of the forced demolition by XiaoShan District Government, give the injured immediate and effective treatment, and allow the press to publicize this event. A government shall be trustworthy by acting righteously; shall be effective by rule of law; shall be restricted of its exercise of power by transparency and publicity, instead of resorting to arbitrary violence and administering power politics.”
The article Websites Closed, Prohibition of Religion and Repression of Freedom of Speech Are More than Insanity: A Strong Protest of the Use of Violence against Christians expressed the applicant’s criticism for this demolition by the XiaoShan District Government. “July 29, the XiaoShan District Government forcibly demolished a self-funded Christian church. Some Christians were injured and many detained. This church was constructed on the spot where an old church was built in the 1920’s. The appearance of “civilized law-enforcement, scientific law-enforcement, and democratic law-enforcement” is undermined by arbitrarily enforcing the law with violence under the guise of preventing illegal construction, as well as concealing the fact some Christians were injured€¦the Communist Party of the civilized society of the 21st century, as a ruling party, wearing the western style suit, shall forsake the mindset and practice of the time of revolution, when the party members wore shabby clothes and walked barefoot. Is the promotion of civilized law-enforcement more difficult than the promotion of “eight honors and eight shames”? (Honored is the man who loves his motherland; shamed is the man who jeopardizes her. Honored is the man who serves for the people; shamed is the man who errs from them. Honored is the man who advocates science; shamed is the man who is ignorant. Honored is the man who is laborious and diligent; shamed is the man who loves ease and hates work. Honored is the man who seeks unity and mutual help with each other; shamed is the man who harms others to benefit oneself. Honored is the man who is honest and faithful; shamed is the man who forsakes justice to seek benefit. Honored is the man who abides by the law; shamed is the man who disobeys the law. Honored is the man who leads a simple and strenuous life; shamed is the man who is extravagant and dissipated.)
August 4, 2006, law enforcement officers, Guo Zhengyang, Xiao Fudong and Shen Zhenhua from the Public Information and Internet Security Supervision Division of the PSB of Hangzhou went to examine the office of the applicant and impounded the applicant’s computer and summoned the applicant for the first time. On August 11, 2006, Xiao Fudong and Shen Zhenhua went to examine the applicant’s home, and summoned the applicant for the second time. Then they gave the Decision of Public Security Administrative Punishment (HGXAJ2006, No. 28), imposing the punishment on the applicant. The respondent of the application based the decision on: “the content of the two articles Appeal to Zhejiang Provincial Government to Investigate the Forced Demolition, June 29, by XiaoShan District Government and Disclose the Truth and Websites Closed, Prohibition of Religion and Repression of Freedom of Speech are More than Insanity: A Strong Protest of the Use of Violence against the Christians written by the applicant were overwhelmingly inconsistent with the facts. ____ Aizong, who published these articles on the Blogs of SINA and ZHRNET websites, and transmitted them via the email, were spreading the rumors, deliberately disrupting the public order…______ Aizong shall be detained for seven days.”
The applicant contends that the administrative punishment imposed by the respondent of the application lacks legal ground and a violation of legal proceedings
I.        Violation of the legal proceedings
1)                  Article 94 of Law of Public Security Administration and Punishment stipulates “the public security entity shall inform the person, who violated the law, of the facts, reasons, and applicable laws that the public security administration punishment decision is based upon and the rights that the person is entitled to, before making the decision of public security administrative punishment.
The person who violated the law has the right to defend him/herself. The public security entity must hear the opinion of the party and shall review the facts, reasons, and testimony presented by the party. In the event that the facts, reasons, and testimony provided by the party become valid, the public security entity shall accept these facts, reasons, and testimony.
In truth, the respondent of the application, following a simple summons of the applicant on August 11, did not inform the applicant of the right of self-defense and presentation, nor did they hear the opinions of the applicant regarding the public security punishment, before they hastened to give a decision of public security punishment against the applicant. Thus the public security punishment imposed by the respondent of the application violated Article 94 of Law of Public Security Administration and Punishment.
2)                  Article 107 of Law of Public Security Administration and Punishment stipulates “in the event that the person subjected to punishment appeals the punishment decision and calls for administrative reconsideration and administrative litigation, he/she may request the public security entity to delay the enforcement of the administrative detention. If the public security entity considers that the delay of the enforcement of the administrative detention will lead to no social hazard, the decision of administrative detention shall be delayed, subject to the condition that the person subjected to punishment or his/her relatives can provide guarantor(s), who fulfill(s) the requirement of Article 108 of this law, or pay the guaranty money of 200 RMB per day.”
In fact, after the respondent of the application proclaimed the punishment decision in the afternoon of August 11, the applicant appealed the punishment decision, and asked the respondent of the application to delay enforcement of the administrative detention by applying for the administrative reconsideration and litigation, however, the respondent of the application rejected the request of the applicant before reviewing the request. But the objectives of the applicant are in full conformity with Article 107 of the Law of Public Security Administration and Punishment.
II.      The administrative punishment imposed by the respondent of the application lacks factual support
Qiu Youlai is the director of XiaoShan District Unified Front Work Department in charge of religious affairs. Qiu said, “No one was injured and there was no conflict.” The applicant incited Qiu Youlai in his two articles and contended that Qiu’s remarks are antithetical to the facts, because two of the Christians who were arrested had their ribs fractured, where Wang Xingpu had three broken ribs, and Yang Youguang had two fractured ribs; many other Christians suffered serious injuries. The applicant in his articles called the XiaoShan District Government to recognize its wrongdoing and illegal actions, release the illegally detained Christians as soon as possible, coordinate with the hospital to cure the injured Christians, compensate the loss of the Christians, protect the construction process of the church in its original spot, punish the persons responsible for the event, and protect religious freedom in hope of advancing the light of civilization to shine on the XiaoShan District. However, the respondent of the application disregarded the facts by asserting that the applicant “spread rumors and deliberately disrupted public order” in the Decision of Public Security Administrative Punishment.
III.    The administrative punishment decision lacks legal support
1)                  Article 41 of the Constitution of PRC stipulates, “Citizens of the People’s Republic of China have the right to criticize and make suggestions regarding any state organ or official. Citizens have the right to complain, bring charges against, or expose relevant state organs or officials for violation of the law or dereliction of duty. The state organ concerned must deal with complaints, charges, or exposures made by citizens in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures or retaliate against the citizens making them.”
The applicant, who wrote and published the two articles via the Internet, is exercising his legitimate constitutional right to criticize, make suggestions, accuse or prosecute state organs or officials. The state organ or the official shall not retaliate against the citizens for their criticisms, suggestions, accusation or prosecutions; instead, they shall bear their burden of proof prescribed in the Constitution (investigate and clarify the facts), and respond to the citizens who made accusations or criticisms with facts and testimony to vindicate their innocence. But the respondent gave no heed to the legal duty prescribed in the Constitution by punishing the applicant who exercised the legal right granted by the constitution by charging the applicant with “spreading rumors and disrupting public order.” Therefore this punishment is invalid and illegal, for it violates Article 41 of the Constitution of PRC.
2)                  Article 35 of the Constitution of PRC stipulates, “Citizens of the People’s Republic of China enjoy freedom of speech, the press, assembly, association, procession, and demonstration.” The applicant contends that he is exercising the right of freedom of speech protected by the Constitution by writing and publishing these two articles via the Internet. The punishment, based on the assertion that the applicant “spread rumors and disrupted public order” is invalid and illegal because the law that the punishment is based upon is a violation of the Constitution of PRC.
As a newsman, the applicant, shoulders a higher responsibility than the common person: the responsibility of watchdog, besides enjoying the right of freedom of speech proclaimed in the Constitution. The applicant has the right to report the facts heard or seen objectively and make criticisms and suggestions, in order to bring them to the attention of the public. Even though the facts reported and the opinions expressed by the articles slightly differ with the objective facts, this slight difference is acceptable, because no one’s reports and opinions are 100% objective and true. Regarding the challenges and criticism made by the newsman, the state organs or officials shall bear the burden of proof, giving facts and evidence to prove their innocence. This is their legal duty.
Therefore, the applicant considers that the punishment against him for performing his legal responsibility of a newsman, based on the obscure reason of “spreading rumors” is a violation of the law. The identification of the reports written by the applicant as rumors is a false identification. The applicant thinks that the determination of rumors online should be based on four elements: first, the vast inconformity of the reports or speeches with the facts; secondly, the subjective intention of the persons spreading the rumors via the Internet; thirdly, the use of media to spread rumors and bad results; fourth, the serious consequences of the rumors on public opinion and social stability. The failure of the government to disclose the truth concerning the demolition, and its refusal to provide the facts and the bad consequences of disrupting public order to support its assertion of “spreading rumors and disrupting public order” demonstrate the fact that the public security entity abuses it’s power and infringes upon citizens’ constitutional right.
The applicant, who made appeal, criticisms, and suggestions regarding the demolition on July 29, is exercising the inviolable constitutional right. Article 27 of the Constitution of the PRC stipulates, “All state organs and officials must rely on the support of the people, keep in close touch with them, heed their opinions and suggestions, accept their supervision and do their best to serve them.” The applicant has worked as a newsman since 1995 in the state-level press in Beijing, he has extensive experience as a journalist and adheres to the occupational standing and abides by the occupational principles; he is familiar with the laws, he does not break the laws. The appeal and comments regarding the specific administrative action of the government and a public contingency, made by the applicant, a citizen of PRC and a well-trained newsman, falls into the category of freedom of speech and supervision by public opinion. The public security entity, which accuses the applicant of “disrupting public order,” deceives it’s self and infringes upon the constitutional right of the applicant.
Article 33 of the Constitution of the PRC: “The state respects and protects human rights.” The public security entity, who inhibits the citizens from expressing opinions via the Internet and learning independent thinking, is infringing upon human rights. Freedom of speech is of great importance to modern civilization and is the prerequisite and basis of maintaining the mental health of a nation. History has testified to the fact that the lack of extensive freedom of speech has contributed to the perpetuation of a barbaric people, has led to the tyranny and corruption of a government, and has caused the nation to be forsaken by the civilized society.
August 9, 2006, the applicant talked to Wu Pengfei, the Director of the PSB of Hangzhou City over the phone, and submitted and publicized An Open Letter of Urgent Appeal to Wu Pengfei, the Director of the PSB of Hangzhou City regarding the Demolition July 29. The applicant continued the appeal for the demolition event in this open letter, and contended that the respondent of the application had infringed upon the constitutional rights and freedoms of the applicant. The applicant thinks that the government has the duty to respond to the public challenge and accusation of spreading rumors against Qiu Youlai. The applicant urged the PSB of Hangzhou City to investigate the charge of spreading rumors against Qiu Youlai.
In summary, the administrative punishment imposed by the respondent of the application is an invalid and illegal administrative punishment, for it breaches the legal proceedings, violates Articles 35 and 41 of the Constitution of the PRC with the supremacy of legal power, as well as Articles 94 and 107 of Law of Public Security Administration and Punishment.
Subject to Articles 2 and 12 of the Law on Administrative Reconsideration of PRC, the applicant appeals to the PSB of Hangzhou City, a higher authority over the respondent of the application, to determine that the administrative punishment decision against the applicant on August 11 is illegal and order the respondent of the application to compensate the applicant according to laws. 
Enclosures:
1.        One copy of this application
2.        Decision of Public Security Administrative Punishment (HGXAJ2006, No. 28) issued by the Public Information and Internet Security Supervision Division of Public Security Bureau of Hangzhou City.