China Aid Association
Legal Statement of Dr. Li Baiguang for Pastor Tian Yinghua Administrative Lawsuit Against PSB
photo: pastor Tian Yinghua
Plaintiff： Tian Yinghua， female， born June 1952， Address： #25 Bukou Town， Wendeng City，Shandong Province ID Number： 370632520607454 Tel： （0631）8774528
Agent： Li Baiguang ID Number：110108196810011959 Tel：13910802896
Defendant：Shandong Wendeng Public Security Bureau
Legal representative: Wang Daoshan
Request:
1. To find the administrative punishment of Tian Yinghua, by the Shandong Wendeng Public Security Bureau (PSB), June 11, 2006, to be illegal;
2. To revoke Tian Yinghua’s administrative punishment by the Shandong Wendeng PSB, June 11, 2006, and pay Tian Yinghua 1 RMB as remuneration.
Facts:
Jun 11, 2006, Tian Yinghua was attending a regular Sunday worship service in the home of a fellow Christian. Fifty policemen with the Shandong Wendeng PSB were sent to arrest the Christians. Without legal summons, the policemen shouted over a loud speaker, “Stand still! Policemen! Everyone in the wagon!” After illegally photographing the 31 Christians, including Tian Yinghua, they were taken to the police station for interrogation. The policemen also searched the house without a search warrant.
Tian Yinghua maintains that the administrative activity of the Shandong Wendeng PSB did not follow proper legal procedure, and lacks any legal basis according to the following:
I. Illegal Procedure:
1. No warrants were issued:
Article 37 of the Chinese “Law on Administrative Punishment” states: “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.” But no summons or any other legal documents were shown when the policemen took Tian Yinghua to the police station for interrogation.
2. Tian Yinghua was not given a “self-defense notice” or “statement notice.”
Article 31 of the “Law on Administrative Punishment” states: “Before deciding to impose administrative penalties, administrative organs shall notify the parties of the facts, grounds, and basis upon which the administrative penalties are to be decided and shall notify the parties of their rights in accordance with law.”
Article 32 states: “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 re-examine the facts, grounds, and evidence put forth by the parties; if the facts, grounds, and evidence put forth by the parties are established, the administrative organs shall accept them.”
But the Shandong Wendeng PSB actually decided the administrative penalty before listening to Tian Yinghua’s statements. What’s more, the “Administrative Punishment Notice” was delivered to Tian Yinghua 3 days after she was put in the detention center, which is an obvious violation of Articles 32, 34, & 40 of the “Law on Administrative Punishment.” According to the “Law on Administrative Punishment” Article 41, this administrative activity is illegal and void.
II. No Legal Basis for the Shandong Wendeng PSB’s administrative activity
1. The White Paper on the Situation of Religious Belief Freedom in China issued by the Information Office of the State Council on October 16, 1997 Part 3 states: “All proper religious activities according to religious customs at their homes, such as scripture reading, worshiping, preaching, baptism, etc, are to be conducted by the religious organizations or believers themselves, they are protected, no one should intervene€¦ Christian activities attended primarily by family members and friends according to Christian customs, such as praying and Bible-reading, referred to by Chinese Christians as “house gatherings,” are not required to register.”
As a Christian, the Sunday service held June 11, 2006, is absolutely not considered an “illegal gathering” or “illegal evangelizing.” The administrative detention of Tian Yinghua on charges of “illegally gathering” and “illegally evangelizing” by the Shandong Wendeng PSB has no merit.
2. Chinese Constitution Article 36 states, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization, or individual may compel citizens to believe in, or not to believe in, any religion. Nor may they discriminate against citizens who believe in, or do not believe in any religion.”
Concerning the issue of religious activities’ sites, the freedom of religious belief proclaimed by Chinese Constitution means the site may be set up without the approval from the government, because religious belief is the emotional and spiritual activities of a citizen, rather than outward activities, which can be regulated by the clerical law. Making public record of the religious activity sites by the authorities for the purpose of Tax-exemption can not be used as the “issues license,” or it may constitute an offense to the constitution.
3. The principle of freedom of religious belief in the constitution also means that religious associations can freely build the premises for religious activities, such as a church. The church can accept financial donations from believers according to the religious customs.
4. Article 5 of the Chinese Constitution states, “The state upholds the uniformity and dignity of the socialist legal system. No laws or administrative or local rules and regulations may contravene the Constitution.”
Article 78 of the Chinese “Law on Legislation” states, “The Constitution is the highest legal authority; no law, administrative regulation, local regulation, autonomous regulation, special rule or administrative or local rule may contravene the constitution.”
The local rule cited by the Shandong Wendeng PSB to decide the administrative penalty for Tian Yinghua obviously contravened the principle of Article 36 in the Constitution, thus the punishment is illegal.
Based on Articles 2 and 12 of the “Law of Administrative Review,” Tian Yinghua applied for Administrative Review to the Shandong Wendeng PSB’s higher authority, Wendeng People’s Government, requesting the affirmation of the illegality of the Shandong Wendeng PSB’s punishment decision, and revocation of the punishment decision. September 28, 2006, Wendeng People’s Government upheld the Shandong Wendeng PSB’s punishment decision in its “Administrative Review Decision” (document number: Wen Fu Jue Zi (2006) 8)
Tian Yinghua refuses to comply with the administrative decision above, and wishes bring this lawsuit to court according to Article 11- Item 1, and Article 25 – Item 2, of the Chinese “Administrative Procedure Law.”
Wendeng People’s Court
Wang Qiu
October 12, 2006
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