Application for Administrative Reconsideration

China Aid Association
Applicants:
1.   Name: Li Ming, male, of Han ethnic group, born September 23, 1954. ID No.: 512930195409234593. Home address: the Third Team of Wangbao Village, Baoma Township, Langzhong City, Sichun Province. Phone: 0817-5183176
2.  Name: Jin Jirong, male, of Han ethnic group, born June 26, 1940. ID No.: 360602400626101. Home address: No.29, Wangyemiao Street, Langzhong City, Sichun Province. Phone: 0817-5182515
3.   Name: Wang Yuan, male, of Han ethnic group, born May 16, 1968. ID No.: 512930196805164595. Home address: the Tenth Team of Bade Village, Baoma Township, Langzhong City, Sichun Province. Phone: 13990714417
4.  Name: Li Mingbo, male, of Han ethnic group, born October 15, 1969. ID No.: 512930196910153492. Home address: the Second Team of Taipingqiao Village, Hexi Township, Langzhong City, Sichuan Province. Phone: 13228260253
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: Administration Committee of Re-education through Labor of the People’s Government of Nanchong City
Address: Jinquan Back Street, Nanchong City, Sichuan Province
Phone: 0817-2800154

To: Administration Committee of Re-education through Labor of People’s Government of Sichuan Province (to whom the application is submitted)
The application requests are as follows:
Annul the decision of re-education through labor against the applicants imposed by the respondent of the application on July 25, 2006;
Order the respondent of the application to compensate the applicants in accordance with the provisions of the Law of the People’s Republic of China on State Compensation

Facts and Reasons for Requests:
Sunday, June 27, 2006, the Christians including Li Ming, Jin Jirong, Wang Yuan and Li Mingbo, participated in the normal Christian worship service at the home of a Christian couple, Huang Shifu and Wang Shixiu (home address: the First Team, the Fourth Village, Baoma Township, Langzhong City). The Christians Zhu Guizhen and Shi Shihe also participated in this Sunday Christian worship.

On the way home, following the worship, several plain-clothed Langzhong City PSB policemen arrested without warrant Zhu Guizhen and Shi Shihe and forced them into a police van. The PSB launched an illegal interrogation of their religious beliefs, beliefs that are protected by Article 36 of the Constitution of PRC, and unlawfully intervened into their legitimate religious activities.
Christian Wang Suhua, while on the way to visit her aunt in the Fifth Village of Baoma Town, June 27, 2006, was arrested without warrant by plain-clothed Langzhong City PSB policemen. These policemen repeatedly insulted and threatened Wang Suhua and took her to the Public Security Room of Baoma Town for an illegal interrogation of her religious beliefs, beliefs that are protected by Article 36 of the Constitution of PRC, and unlawfully intervened into her legitimate religious activities.
June 27, 2006, after the illegal arrest of Wang Suhua, Zhu Guizhen and Shi Shihe by the PSB of Langzhou City, Christians Li Ming, Jin Jirong, Wang Yuan and Li Mingbo went to the Public Security Room of Baoma Town for details of the arrest, where Li Ming, Jin Jirong and Wang Yuan received a brutal beating from the policemen. Sun Zhifen, Ke Yufang and Li Chengxi, upon hearing that the ankle of 66-year-old Mr. Jin Jirong, was severely injured, inquired of his condition. The policemen denounced Sun Zhifen for making trouble, and detained him. They did not give a presentation of or provide a legal basis for Sun Zhifen’s case, nor did they give him a chance to defend himself, before they imposed a public security punishment of five days detention on the charge of “Participating in an assembly and riot before the Government of Baoma Township, and interfering with law enforcement.”
June 27, 2006, the PSB of Langzhong City unlawfully detained Li Ming, Li Mingbo, Jin Jirong and Wang Yuan, subject to no legal proceedings; they were imprisoned in the Detention Center of Langzhong City PSB.
July 25, 2006, the respondent of the application gave an administrative punishment decision that those four applicants shall receive two years re-education through labor. The decision is based on false reports provided by the PSB of Langzhong City.
The applicants contend that the aforementioned decision given by the respondent of the application according to the false and fabricated facts provided by the PSB of Langzhong City is lacking legal basis and a violation of legal proceeding. The applicants request to annul this decision, for the following reasons:
I.        Breach of Legal Proceeding
1)                  The policemen from the PSB of Langzhong City did not show arrest warrants
Article 37 of Law of the People’s Republic of China on Administrative Punishments stipulates that “in the event of an investigation or examination by the administrative entity, law-enforcement shall be comprised of no less than two persons, and must present arrest warrants or summons to the party under arrest.” However, June 26, 2006, the PSB of Langzhong City carried out an illegal interrogation of the applicants and detained them in the detention center with neither arrest warrants nor summons.

2)                  The Regulations on Proceedings of PSB Dealing with Penal Cases prescribe in Article 108 that after the detention of a suspect, the PSB shall send the Detention Notification within 24 hours to the family of the suspect or his/her work place. The PSB of Langzhong City failed to notify the families of the applicants of the detention within the prescribed period in accordance with the applicable law. The applicants’ family members repeatedly went to the PSB of Langzhong City to inquire whether the applicants had been detained by the PSB of Langzhong City, but received no answer. July 6, 2006, ten days following the detention, the applicants’ families went to the Standing Committee of Langzhong City and Procuratorate of Langzhong City to accuse the PSB of Langzhong City of their wrongdoings. Two policemen from the PSB of Langzhong City hurried to the Langzhong City Prosecutor to hear the appeal of the applicants’ families. It was not until this time, that the policemen admitted to the applicants’ families that the four applicants had been detained by the PSB of Langzhong City. However, the PSB of Langzhong City refused to administer any legal proceeding to the families of the applicants. The actions of the PSB of Langzhong City constitute illegal deprivation of personal freedoms protected by Article 37 of the Constitution of PRC. The PSB of Langzhong City did not issue the Decision of Re-education through Labor to the applicants’ families until 30 days after the illegal detention.
3)        The PSB of Langzhong City did not give Defense and Presentation Notification to the applicants in accordance with applicable law.
Article 94 of Law of the People’s Republic of China on Public Security Administration and Punishments stipulates “The Public Security Administration shall inform the person who violated the law of the facts, reasons and applicable laws that their punishment is based upon and their rights according to law, before making the decision of Public Security Administration Punishment.
The person who violated the law has the right to defend him/herself. The public security entity must hear the opinions of the party and 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 PSB of Langzhong City illegally detained and brutally beat the applicants June 27, 2006. After this, they did not inform the applicants of their right of self-defense and presentation, nor did they hear the opinions of the applicants regarding the administrative punishment, before they gave an administrative punishment decision against the applicants, and then reported to Administration Committee of Re-education through Labor of the People’s Government of Nanchong City for approval. Thus the administrative punishment decision given by the PSB of Langzhong City violated Article 94 of the Law of Public Security Administration and Punishment.
Article 31 of the Law of the People’s Republic of China on Administrative Punishments stipulates that “The administrative entity shall inform the party of the facts, reasons and applicable laws that the administrative punishment decision is based upon and the party’s legal rights, before making the decision of administrative punishment. Article 32 of this same law prescribes, “The party shall have the right of presentation and self-defense. Administrative entity shall hear the opinion of the party and shall review the facts, reasons, and testimony presented by the party. In the event the facts, reasons, and testimony provided by the party become valid, the administrative entity shall accept these facts, reasons, and testimony. Administrative entity shall not increase the party’s punishment based on the party’s defense.” However, July 25, 2006 the respondent of the application imposed the administrative punishment on the applicants without hearing their defense; in addition, this Administrative Punishment Notification was not received by the applicants until 30 days after applicants’ detention in the Detention House of Langzhong City, i.e. on July 25, 2006. This action violated Articles 32, 34 and 40 of the Law of the People’s Republic of China on Administrative Punishments. Subject to Article 41 of the Law of the People’s Republic of China on Administrative Punishments, this administrative punishment imposed by the respondent of the application is illegal and invalid.
II.      The PSB of Langzhong City is suspected of attempted but unsuccessful extortion and revenge.
After the illegal detention for 15 days, the PSB of Langzhong City required the family of each applicant to pay RMB 3000, for their release. The families of these four applicants rejected the illegal requirement of the PSB of Langzhong City. The unsuccessful extortion of the PSB of Langzhong City led them to impose the administrative punishment on the applicants.

III.    The decision of re-education through labor given by the respondent of the application lacks legal ground.
The respondent of the application reviewed and accepted the fabricated facts that the “applicants joined a cult, participated in an illegal assembly, and spread false teachings.” The applicants consider the factual action that the respondent of the application, as the public power entity, put the legal identification antithetical to the principle of religious freedom under protection of Article 36 of the Constitution of PRC into the official legal document, an invalid administrative action, for it violates the applicable law and infringes the religious freedom of a citizen. The detailed reasons are listed as follows:

1)                  Article 36 of the Constitution of PRC stipulates, “Citizens of the PRC are entitled to religious freedom. Any state organs, social organization, and individual shall not compel any citizen to believe or not believe in a religion, nor shall they discriminate against citizens who believe or do not believe in, any religion.” The religious freedom proclaimed in the Constitution of PRC indicates that every citizen has the right to believe or not believe in any religion or god, and even the right to believe in the devil or worship any idol. On the condition that the exterior action of a citizen is in conformity with the prohibitive regulation of a law, (the validity of the prohibitive regulation stipulated by a law lies in its conformity with the principle and guideline of the Constitution), the law-enforcement authority must not restrict or interfere the religious freedom of a citizen based on any excuse; the restriction or interference of the religious freedom of a citizen is in violation of the law. In the event that a citizen commits a crime, the external action of this citizen, rather than the religion practiced by this citizen shall be judged and punished.
The principles and guidelines of religious freedom expressed in Article 36 of the Constitution of PRC also indicates that no state organs, social organization or individual has the power to legally assess the belief of a citizen, nor shall they base restrictions or interfere with the religious freedom of a citizen on this legal assessment. Thus, the assessment of the “applicants joined a cult, participated in an illegal assembly, and spread false teachings” in the decision of re-education through labor is illegal and invalid by violating the provision of the Constitution of PRC.
Therefore, the two years of re-education through labor imposed by the respondent of the application based on the reason that “applicants joined a cult, participated in the illegal assembly, and spread false teachings” is invalid, and shall be annulled, for it goes against the Constitution of PRC.
2)                  The applicants deem that the lack of legal ground for the decision of re-education through labor can also be based on: the gathering of the applicants on June 27, 2006 is a normal and legitimate Christian religious activity, not an “illegal assembly.” November 16, 1997, the Information Office of State Council published a book entitled, The Current State of Religious Freedom in China, that stipulates in Article 3 “all normal religious activities, such as worship, prayer, teaching of the scriptures, sermons, mass and baptism performed at a believer’s home according to their religious traditions are subject to self-regulation by religious organizations and believers, protected by applicable laws and subject to no intervention by any person€¦religious activities including prayer and Bible reading performed at a believer’s home mainly comprised of believers, their relatives and friends in accordance with Christian traditions (referred to as “family assemblies” by Chinese Christians), are not subject to registration.” Therefore, the two years of re-education through labor imposed by the respondent of the application on July 25, 2006 based on the charges that the “applicants joined a cult, participated in an illegal assembly, and spread false teachings” is a violation of the law.
3)                  The respondent of the application asserts in the Decision of Re-education through Labor that the two years of re-education through labor imposed upon the four applicants is based on the regulations of The Decision to Crackdown on Cult Organizations and Prevention and Punishment of Cult Activity Issued by the Standing Committee of National Congress and the Decision about Re-education through Labor Issued by the State Council.
The applicants deem, The Decision to Crackdown on Cult Organizations and Prevention and Punishment of Cult Activity Issued by the Standing Committee of National People’s Congress, based on which the re-education through labor is imposed by the respondent of the application, goes against Article 36 of the Constitution of PRC. Thus the National People’s Congress shall abolish the decision of the Standing Committee of National People’s Congress, based on Article 5 and Clause 11 of Article 62 of the Constitution of PRC.
The applicants consider that the Decision of Re-education through Labor, imposed by the respondent of the application, based on the Decision of Re-education through Labor Issued by the State Council is an administrative punishment which goes against the Constitution and applicable Law of PRC.
Article 5 of the Constitution of PRC stipulates, “The People’s Republic of China implements rule by law to construct a socialist country under the rule of law. No laws, administrative or local rules, and regulations may contravene the Constitution.” Article 78 of Law on Legislation of PRC stipulates, “The Constitution has the supremacy of legal power; no laws, administrative or local rules and regulations, autonomy regulation and specific regulation may contravene the Constitution.” The Article 37 of the Constitution of PRC prescribes “Personal freedoms of citizens of the People’s Republic of China are inviolable. No citizen may be arrested except with the approval or by decision of a people’s prosecutor or by decision of a people’s court, and arrests must be made by a public security entity.” However, the re-education through labor is subject to no normal judicial proceeding and determined by the Committee of Re-education through Labor. In fact, the applicants become the victims of the manipulation of the public security entity or the Communist Party leaders and governmental leaders. The maximum term of re-education through labor can reach 4 years.
Article 8 of the Law on Legislation of PRC stipulates “The compulsory measures and punishment regarding the deprivation of political rights of citizens, and the restriction of personal freedoms can only be prescribed by enacting law.” Article 9 of the Law of the People’s Republic of China on Administrative Punishments stipulates “The administrative punishment regarding restriction of personal freedoms can only be prescribed by law.” Article 10 stipulates “Administrative regulation may formulate the administrative punishment except for the restriction of personal freedoms.” The regulation of re-education through labor, residing in the category of administrative regulation, however, has the power to violate the Constitution with the supremacy of legal power by restricting and depriving personal freedoms of citizens. The punishments prescribed in the Law of the People’s Republic of China on Administrative Punishments exclude the punishment of re-education through labor; the highest administrative penalty is administrative detention, subjected to the maximum term of 15 days. The re-education through labor, in spite of its attribute of administrative punishment, however, may reach one to three years, even up to 4 years.
In October, 1998, the Chinese government signed The International Covenant on Civil and Political Right, Article 9; Clause 1 stipulates “Everyone has the right to personal freedom and security. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his freedom except on such grounds and in accordance with such procedure as are established by law.” Clause 3 of Article 8 stipulates “No one shall be required to perform forced or compulsory labor.” Thus, the decision of continuing deprivation of personal freedoms and compulsory labor shall be subject to legitimate judicial proceedings and shall only be determined by the court, so as to avoid the conflict with The International Covenant on Civil and Political Right.
No one shall be restricted and deprived of his personal freedoms except on such grounds and in accordance with such procedure as are established by law, which is in line with the principle of the Constitution of PRC, Law on Legislation of PRC, Law of the People’s Republic of China on Administrative Punishments and the international Covenant. Based on the fact that the administrative regulation concerning the re-education through labor is violation of the Constitution, the illegal and invalid decision of re-education through labor imposed by the respondent of the application shall be annulled. 
The punishment of the applicants and illegal interference and deprivation of their religious freedom is based on the regulations that violate Articles 36 and 37 of the Constitution of PRC. Thus, the administrative action of the respondent of the application is illegal.
In summary, the decision of re-education through labor imposed by the respondent of the application on the applicants was not subject to legal proceeding; it violates Articles 36 and 37 of the Constitution of PRC with the supremacy of legal power, as well as the Articles 8 and 78 of the Law on Legislation of PRC. It is an illegal administrative decision. Subject to Articles 2 and 12 of Law on Administrative Reconsideration of PRC, the applicants appeal to the Administration Committee of Re-education through Labor of People’s Government of Sichuan Province, a higher authority over the respondent of the application to annul the decision of re-education through labor imposed by the respondent of the application on July 25, 2006 and order the respondent of the application to indemnify the applicants in accordance with Law of the People’s Republic of China on State Compensation.
Enclosures:
(1)     One copy of this application
(2)     One copy of the decision of re-education through labor issued by the Administration Committee of Re-education through Labor of People’s Government of Nanchong City (LJ2006, No. 106)
(3)     One copy of the decision of re-education through labor issued by the Administration Committee of Re-education through Labor of People’s Government of Nanchong City (LJ2006, No. 107)
(4)     One copy of the decision of re-education through labor issued by the Administration Committee of Re-education through Labor of People’s Government of Nanchong City (LJ2006, No. 108)
(5)     One copy of the decision of re-education through labor issued by the Administration Committee of Re-education through Labor of People’s Government of Nanchong City (LJ2006, No. 109).


China Aid Contacts
Rachel Ritchie, English Media Director
Cell: (432) 553-1080 | Office: 1+ (888) 889-7757 | Other: (432) 689-6985
Email: [email protected] 
Website: www.chinaaid.org

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Application for Administrative Reconsideration

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