"Statement of Indictment for Administrative Litigation" Filed by Wang Dao

China Aid Association
(Guangzhou – January 03, 2009) STATEMENT OF INDICTMENT FOR ADMINISTRATIVE LITIGATION
To: Haizhu District People’s Court
December 18, 2008
Plaintiff: Wang Dao.  Male.  Han Nationality.  ID No.: 460025197709294515
Address: Room 203, No. 11, North Yiyuan Road, Haizhu District, Guangzhou.
Tel: 15918569944
Defendant: Haizhu District Bureau for Ethnic Religious Affairs of City of Guangzhou
Legal representative: Huang Guoqiang
Tel: 84420714
Address: 1, Baogang Blvd. Haizhu District. 510220
Litigant Requests
1.  We request that the court rule that the “Decision Statement of Administrative Penalty of Hai Min Zong Fa Zi (2008) No. 1” be repealed.
2.  We request that the court rule that the defendant pay the litigation fee for this case.
Facts and reasons
1. Basic facts:
On the morning of December 14, 2008, the plaintiff Wang Dao and many of his relatives and friends gathered in a legally rented house, which is our house located at Room 203, No. 11, North Yiyuan Road, Haizhu District, Guangzhou City. They were having a house gathering in which they read the Bible and prayed. Sometime after 10 o’clock, the defendant arrived with a large force of about 50 government employees and police officers in nearly 10 vehicles. Without the consent of the plaintiff, they rudely broke into the private residence that the plaintiff legally rented. The reason they gave for their actions was “suspicion of holding religious activities at a site not designed for religious activities.” They brought more than 10 camcorders and cameras and videotaped and photographed the location and people by force. They also forcibly registered the identifications of the believers and took measures to restrict the personal freedom of the believers—The believers were not allowed to stand up, move around or leave, and officials stopped the believers who tried to take photos or make audio recordings and imposed other restrictions. They conducted more than two hours of interrogations on more than10 believers in separate isolated places and searched every room in the plaintiff’s house without a legal search warrant. They forcibly confiscated nearly 200 books that they found in the rooms, including Bibles legally published by Amity Press of Nanjing and copies of “1050 Hymns.” Only when Wang Dao the plaintiff talked with officials about the matter did they agree to return the Bibles.
During the whole process of investigation, the defendant rudely interrupted our normal house gathering and took compulsory measures against the persons and properties of the citizens, such as registering their IDs, photographing, videotaping, detaining, searching all the rooms and examining personal computers and seizing properties. They did not provide any legal papers to us. Intimidating us by the sheer force of their number, they were vicious in their manners and they even scared some senior citizens and children into crying. This seriously hurt the religious feelings of the Christians and undermined the image of the government in the hearts of the citizens. The actions of the officials run counter to the spirit of a harmonious society. Especially, this conduct is a serious violation of the human rights and the law, and infringes upon the fundamental law of our country—Article 36 of the Constitution that endows the citizens of the People’s Republic of China the right to freedom of religious belief.
On the afternoon of that day, the defendant issued the “Decision Statement of Administrative Penalty coded Hai Min Zong Fa Zi (2008) No. 1” in which they ordered the plaintiff to stop activities.
2. Ours reasons are as follows:
(1) The defendant goes beyond its limits of power and function in its December 14 administrative investigation and administrative penalty.
(2) The legal basis provided in the decision statement of the defendant is not tenable.
The arguments for the above are as follows:
First, the defendant went beyond its limits of power and function in its December 14 administrative investigation and administrative penalty. According to the “Regulations on Religious Affairs,” not all “religious affairs” or religious activities fall within the jurisdiction of agencies in charge of religious affairs because Article 5 of the “Regulations on Religious Affairs” clearly states that the Regulations endow the agencies in charge of religious affairs (local bureaus for ethnic and religious affairs) the following power and functions: “Article 5: The religious affairs department of the people’s government at or above the county level shall, in accordance with the law, exercise administration of religious affairs that involve state or public interests.”
According to Article 5, “religious affairs” can be divided into two categories. One is those that involve state or public interests and those that do not involve state or public interests. This is consistent with Article 36 of the Constitution, i.e. the clause that provides freedom of religious belief. Citizens enjoy the freedom of religious belief as defined by the Constitution. Therefore, activities of citizens to practice and express their religious belief (religious affairs) are by themselves not reasons for the government to exercise administration or restrictions (such as they must be approved by the government). Otherwise, the government would infringe upon the citizens’ rights to freedom of religious belief. Moreover, the White Paper of the “Status of Freedom of Religious Belief in China” states that “the Chinese government believes that religious belief is the private matter of citizens.”
In the meantime, according to the “Legislation Law of the People’s Republic of China,” for matters that involve citizens’ political rights and basic civil systems, law should be enacted therein. Currently in our country, there are no laws enacted by the National People’s Congress on religious freedom. It is stated in Article 56 of the “Legislation Law” that “the administrative regulations may be formulated to govern the following matters:”
(1)  Matters for which the formulation of administrative regulations are required in order to implement the provisions of law; and
(2)  Matters within the administrative functions and powers of the State Council as provided in Article 89 of the Constitution.
In Article 89 of the Constitution, 18 matters are listed under the administration of the State Council, but “religious affairs” are not there. Therefore, the “Regulations” should not rely directly upon the Constitution in incorporating all the individual and group religious activities of the citizens into the scope as permitted by the administrative regulations. In fact, it is also stipulated by the Regulations.  The legislation by the State Council really does not blindly put restrictions on all religious activities or religious affairs. Instead, it only states that administration should be exercised of “the religious affairs that involve interests of the state and public interests.” In other words, the reason the power of government should get involved is “the interests of the state and the public interests.” This means that if any affairs (including religious activities) really involve interests of the state and public interests, such as gathering at public sites which would affect public order, the government then will have the right to intervene in proper procedures and manners. However, without Constitutional and legal basis, the government should not exercise restrictions and administration on the citizens’ individual or group religious activities just because these activities involve “religion.”
This is also consistent with regulations in Article 12 of “Administrative Permission Law” that discuss matters concerning establishment of administrative permissions:
(1) matters relating to the specific activities that directly involve state and public security, macro-economic control, protection of the ecological environment and those that have a direct bearing on human health and the safety of people’s lives and property, which are subject to approval in accordance with the statutory requirements;
(4) matters relating to the important equipment, facilities, products and objects that have a direct bearing on public security, human health and the safety of people’s lives and property, which need to be verified by means of inspection, test, quarantine, etc. and in accordance with technical standards and specifications;
The plaintiff believes that the Regulations show the progress of the government in the legislation on religious matters. Though the Regulations do not provide a definition on “interests of the state and the public interests,” the Regulations in Article 12 of the “Administrative Permission Law” state that when establishing administrative permissions for the religious activities of citizens that involve “the interests of the state and the public interests,” this involvement should have a “direct bearing.”
In the meantime, there are three reasons in this case that are worth attention:
1. The house gathering of the plaintiff and his relatives and friends and their other activities occurred in the legally rented private residence. The administrative decision of the defendant is not based on facts that can indicate that this particular religious activity occurred at a public site could affect public interests.
2. The attendants of this house gathering of religious citizens at a privately rented site were all relatives and friends and the gathering is a private activity inside our family. In its administrative decision, the defendant does not have facts as its basis to prove that this private activity affected an undefined public.
3. According to the principle of burden of proof in administrative reconsiderations and litigation, the defendant has the obligation to prove that the conduct of the plaintiff, for which he is penalized, falls into the category of “a religious activity that involves interests of the state and the public interests.” However, in making the administrative decision, the defendant failed to provide any reasons, facts or arguments to indicate the activity of the plaintiff involves or may involve the “interests of the state and public interests.” In other words, the administrative conduct of the defendant is founded on this following simple and dangerous inference:
1. Major premise: all religious activities must be approved by the government.
2. Minor premise: the activity held on December 14 by the plaintiff and other believers is a religious activity and it was not approved by the government.
3. Conclusion: the religious worshipping activity of the plaintiff and other citizens is illegal and should be ordered to be stopped.
If this inference is deemed tenable, then it is tantamount to directly tampering with Article 36 of the Constitution and changing it to:
“Citizens of the People’s Republic of China, upon approval by the government, have freedom of religious belief.”
This is obviously a serious violation of the Constitutional rights of the citizens and is also a serious misinterpretation of the Regulations. The administrative conduct of the defendant is based on this misinterpretation of the Regulations. Therefore, it goes beyond and abuses the administrative power endowed by the Regulations. The defendant fails to note that the reason why the State Council limits the powers and functions of agencies in charge of religious affairs to “religious affairs that involve interests of the state and public interests” is to avoid the basic requirement in administration in accordance with law that administrative regulations have no right to exercise direct restrictions on the citizens’ Constitutional rights and that administrative regulations have no right to establish general administrative permissions on the citizens’ conduct of exercising their Constitutional rights.  The defendant also failed to recognize the efforts by the Regulations of the State Council in promoting the system of rule of law in the administration of religious affairs. However, we are sorry to see that the defendant still handles affairs that involve citizens’ freedom of religious belief with the mentality of the 1950s.
Second: the legal basis listed in the administrative penalty statement of the defendant is not tenable.
The legal basis provided by the defendant in the decision statement of the administrative penalty involves three clauses of the Regulations:
1. Based on Article 20 of the Regulations, they concluded that the house gathering held by the defendant and other religious citizens is a religious activity organized at a site not approved for religious activities.
2. Article 43 of the Regulations was used as a basis for the defendant to impose the administrative penalty.
However, the defendant’s application of Article 20 of the Regulations is wrong.
The logical inference of the defendant is:
1. Any activity where religious belief is involved is a religious activity (For example, if there is presence of Bibles, hymn books, choir dresses, belief lessons and other objects or if there is behavior such as worshipping, prayer, Bible reading and donation, etc.)
2. Sites for religious activities must be registered and approved by the government before religious activities can be held there;
3. All sites for religious activities that are not approved by the government are sites not for religious activities and no religious activities are allowed to be held there.
The logic used by the defendant is the self-contradicting logic of a gangster, as the Chinese saying goes. If this inference of the defendant meets the provisions set forth in the Regulations, then please allow me to be blunt in telling you that the solemn promises of “the Chinese citizens enjoy freedom of religious belief” repeatedly proclaimed in the White Paper “Status of Freedom of Religious Belief in China” by the State Council, by the annual white papers on the status of human rights in China, by the press secretaries of the State Council and of the Ministry of Foreign Affairs at many press conferences and by director of the State Administration for Religious Affairs and leaders of the state on many occasions, are out-and-out lies.
Fortunately, the plaintiff thinks the Regulations of 2004 is not as interpreted by the defendant. It is stated in Article 12 of the Regulations:
“Article 12. Collective 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.”
First, this means the group religious activities of citizens:
1. can be held at registered sites for religious activities.
2. can also be held at un-registered and temporary sites for religious activities.
Second. This is in line with the provisions set forth in Article 5 of the Regulations on the scope of powers and functions of agencies in charge of religious administration. In other words: 1. Only religious activities held at registered sites for religious activities that involve “interests of the state and public interests” fall under the jurisdiction of agencies in charge of religious administration.
2. If religious activities held outside registered sites of religious activities do not involve the “interests of the state and public interests,” they do not fall into the jurisdiction of agencies in charge of religious administration. Third, this also conforms to the instructions claimed in the white paper titled “Status of Freedom of Religious Belief in China” promulgated in 1997 by the State Council that “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.” That is to say, the Regulations do not require that all group religious activities of citizen believers must be held at registered sites or must be approved by the government in advance.
Therefore, sites for religious activities include those registered and also those not registered. They also include fixed sites and temporary sites. The latter also includes private sites for religious activities. In fact, Article 5 of the Regulations does not incorporate all religious activities into its jurisdiction. Article 12 of the Regulations does not set requirements on administrative permissions for all religious activities. Only in this way can we correctly interpret and apply Article 20 of the Regulations which states “No non-religious bodies or sites not for religious activities may organize or hold any religious activities, nor accept any religious donations.”
Obviously, “unregistered sites of religious activities” such as house gatherings or other private gatherings at non-public sites are also sites for religious activities, not “sites not for religious activities” as claimed by the Regulations. If we interpret Article 20 of the Regulations based on Article 5 and Article 12 of the same Regulations, then only religious activities held at public sites which are unregistered, which are not approved for religious activities and which involve interests of the state and public interests must be approved by the government in advance.
Otherwise, if we interpret Article 20 as that all religious activities must be held at approved sites, it would come into a direct conflict with the restrictive provisions on the powers and functions of the agencies in charge of religious affairs in Article 5 of the Regulations. It would also come into a direct collision with the provisions set in Article 12 of the Regulations on regulating sites for religious activities. It would again also come into a direct conflict with the position repeatedly proclaimed in the White Paper titled “Status of Freedom of Religious Freedom” of the State Council and the position repeatedly claimed by the Chinese government to the international community that Chinese citizens enjoy freedom of religious belief.
The plaintiff thinks that setting up prior requirements for administrative permission on the freedom of religious belief endowed to the citizens by the Constitution is wrong and is a serious violation of the citizens’ Constitutional rights. The plaintiff also thinks citizens’ freedom of religious belief also includes gatherings that contain religious contents and that are held in ordinary public places. Like gatherings of other types, these gatherings should only be subject to normal restrictions of an administrative nature such as public security and safety, but they should not be subject to special restrictions just because they contain “religious” content. Otherwise, this would be a violation of the principle of “non-discrimination” set forth in the clause for freedom of religious belief in Article 36 of the Constitution, i.e. religious citizens should not be treated differently in legal matters just because they believe in a religion or not believe in a religion.
In other words, if several dozen citizens hold a reading party on Marxism and Leninism or a study group on the important ideology in Three Represents or a reunion of schoolmates or birthday parties in a privately rented residence of one’s own, they would not need an approval by the government in advance. Otherwise, the government would violate the provisions set in Article 36 of the Constitution.
The plaintiff thinks that although there is still some distance between the Regulations and the complete respect and protection of citizens’ freedom of religious belief, Articles 5 and 12 of the 2004 Regulations do demonstrate basic respect for citizens’ freedom of religious belief in the process toward rule of law in the administration of religious affairs. The Regulations do not violate the provisions in “Legislation Law,” “Law of Administrative Permissions,” etc. Yet, the Regulations have not established a review and approval system that discriminates against all religious activities and religious citizens. Instead, they use “involve interests of the state and public interests” as a limit to mark the scope of administration on religious affairs. In addition to this, the Regulations also divide group religious activities of the citizens into those held at “registered sites of religious activities” and those held at “unregistered sites of religious activities.” They do not require that all religious activities be held at sites registered and approved by the government.
Unfortunately, however, the defendant still interprets and applies the Regulations based on the erroneous idea that a prior approval must be obtained for all religious activities, which runs counter to the provisions in the Regulations, the spirit of legislation and the rule of law. In the process of law enforcement, they showed total disrespect for the basic normal procedure in raiding a normal religious activity. The defendant directly violated Article 3 of the Regulations which states “the state, in accordance with the law, protects normal religious activities, and safeguards the lawful rights and interests of religious bodies, sites for religious activities and religious citizens.”
It shows that Guangzhou, one of the first large cities to embrace opening-up, still lags behind in its professionalism in law enforcement, capabilities and prevalence of idea of rule of law in the religious field.
We hereby submit this administrative litigation mainly for the purpose of urging the defendant to exercise administration in accordance with law and to show respect to religious citizens in their enforcement of the law. We also hope the court can, out of the concern for rule of law, safeguard the basic rights of freedom of religious belief endowed by the Constitution to the citizens and repeal the administrative conduct in which the defendant went beyond its powers and functions, violated the legal procedures and lacked legal basis. In this way, we hope the court can rebuild the image of a good open-minded government which Guangzhou Municipal Government has been building in all these past years so as to do its duty in creating a harmonious social environment.

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