China Aid Association
Administrative Statement of Complaint
(HENAN – December 3, 2008)
Plaintiff: Zhang Mingxuan. Male, born on November 16, 1951. Identification No.: 412929195111160713. Address: Song Villa, Mozhangqiao Village, Hao Community, Sheqi County, Henan Province.
Ministry of Civil Affairs of the People’s Republic of China. 147 Beiheyan St. Dongcheng District, Beijing 100721
Cause of action: Here is the litigation on the case of the illegal abolishment by the Ministry of Civil Affairs.
1. Request that the abolishment of the Chinese House Church Alliance and the confiscation of the plaintiff’s properties executed on November 28, 2008 be repealed in accordance with law.
2. Request that the defendant be ordered to apologize to the Chinese House Church Alliance and return to it all the confiscated objects.
Facts and Reasons
At 7 o’clock on the morning of November 28, 2008, as 16 Christians were praying at the residence of the plaintiff, more than 20 state workers from the Ministry of Civil Affairs, Henan Provincial Department of Public Security, Department of Civil Affairs and Bureau of Religion came to the residence of the plaintiff. Without presenting any law enforcement identifications, they took away all the Christians at the site by force for interrogation. Four plainclothes officers from the Domestic Defense Protection Squad from Henan Provincial Department of Public Security and City of Nanyang took the plaintiff and his wife by force to Military Administration Building of Nanyang Municipal Union for interrogation. During this time, they forcibly searched the rooms of the plaintiff, confiscated more than 600 Bibles, one notebook computer, one VCD player and five cell phones and other objects all belonging to the plaintiff and other Christians. Even as of this time of writing, they still have not given the plaintiff any paperwork for that. After that, the Ministry of Civil Affairs made a decision to abolish the Chinese House Church Alliance pursuant to Article 35 of “Regulation on Registration and Administration of Social Organizations” on the grounds that the Chinese House Church Alliance is not registered.
The plaintiff thinks the conduct of the defendant does not have any legal basis and is a serious violation of the freedom of religious belief and the freedom of association of the plaintiff, other Christians and the Chinese House Church Alliance. The reasons for these claims are as follows:
1. The conduct of the plaintiff and other Christians is legal. The defendant’s abolishment of the Chinese House Church Alliance and confiscation of the property of the Chinese House Church Alliance do not have a legal basis.
According to Article 36 of the Constitution of China, 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.
The freedom of religious belief as stated in Article 36 of the Chinese Constitution includes the following principles and gist:
1. It means every citizen has the right to freely believe in a religion or refuse to believe in a religion. As long as the external behavior does not violate any prohibitive provisions of the law, law enforcement agencies cannot restrict or interfere with the freedom of belief of the above-mentioned citizen with any excuses.
2. It means that religious organizations can freely build their own sites for religious services in accordance with legal procedures, such as a church and other facilities. It also means the establishment of a site for religious gathering does not need the approval from any government agencies because a religious belief is purely the spiritual and emotional activity of a citizen and the law can only regulate the external behavior of a person and should not peep into a person’s internal spiritual and emotional activity. At most, the gathering sites for religious believers can be placed on file at a public power agency, but there is absolutely no need for it to obtain “permission or approval.” (Even if there is a registration at a public power agency, it is for the purpose of tax exemption and not for other purposes). Otherwise, the conduct of the public power agency would be an illegal conduct of interference with or discrimination against the freedom of religious belief that is protected by the Constitution.
3. Freedom of religious belief also means the church can accept donations from believers in accordance with religious rules and the church manages its property according to religious rules without any interference from law enforcement agencies.
4. On the question of preaching religious belief, the freedom of religious belief means missionaries both from the local areas or from outside areas and missionaries either from China or from overseas have the right to freely preach their religious belief at any religious site without having to obtain the approval from government agencies. The Chinese law enforcement agencies must not interfere with or ban their activities. Otherwise, the conduct of the public power agency would be an illegal conduct of interfering with or discriminating against the freedom of religious belief protected by the Constitution.
The defendant thinks in their decision statement of abolishment that the House Church Alliance founded by the plaintiff€¦, therefore it is an illegal conduct of engaging in activities in the name of a social organization without proper authorization. However, the plaintiff thinks that as for the issue of legitimacy of the entity of the Chinese House Church Alliance, the Chinese House Church Alliance is legal and constitutional at two levels and should not be regarded as an illegal organization. First of all, it is in conformity with the Bible and the law of God. It is also in conformity with the natural law in the heart of man. Second, it is also in conformity with Article 35 of the Chinese Constitution that states: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”
According to the current provisions in the “Regulation on Registration and Administration of Social Organizations,” the establishment of an ordinary social organization follows the system of being affiliated to another department and double managements. In this way, citizens’ freedom and rights of association are greatly limited. For people who intend to establish a religious organization, they have to cross the triple thresholds of a religious agency, a civil affairs agency and the current government religious association. That is to say, unless the government initiates the establishment, it is absolutely impossible for ordinary citizens to form a church or form a religious federation. This is where the “Regulation on Religious Affairs” and the “Regulation on Registration and Administration of Social Organizations” reign. The two regulations work in collusion with each other and smother all possibilities of establishing religious organizations. Under these circumstances, the only way left for Christians and Christian church is join the government-sanctioned Christian organizations, that is, the Three Self Patriotic Movement (TSPM) and China Christian Council. This is clearly a violation of the basic principles of self establishment, self rule, voluntary participating and fair competition. It is also a violation of the religious policy of separation of the church and the state.
The essence of the “Regulation on Registration and Administration of Social Organizations” is to limit the basic human rights of citizens with administrative regulations, which is a violation of the principle of the constitution studies that basic rights of the citizens cannot be restricted unless it is dictated by the Constitution or the law. We think that at a time when the relevant clauses in the administrative regulations are illegal and unconstitutional and there is a lack of reviews on unconstitutional regulations or other rescue channels, citizens should not be made to bear the social cost caused by the faults and inadequacies in the rule of law. Therefore, one cannot conclude that unregistered social organizations are illegal. Instead, one should make up for these inadequacies by registering for the plaintiff retroactively, or revise the law or provide reviews to see if the regulations are unconstitutional or through other methods.
We can see that on November 28, 2008, the conduct of the plaintiff, other Christians and the Chinese House Church Alliance is protected by the clauses on freedom of religious belief of our country and it is a legal religious conduct. The abolishment and confiscation made by the defendant on the Chinese House Church Alliance do not have legal basis.
2. The conduct of the plaintiff and other Christians is legal and the abolishment and confiscation made by the Chinese House Church Alliance do not have facts as their basis.
First of all, Article 35 of the Constitution states: Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
In addition, Article 12 of the “Regulations on Religious Affairs” states that 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.
We can see from the above that this regulation is absolutely not a compulsory regulation but just an ordinary regulation. Furthermore, Article 3 of the White Paper of “Status of Freedom of Religious Belief in China” promulgated on October 16, 1997 by the Information Office of the State Council of China stipulates: “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.”
The Chinese House Church Alliance is made up of Christian house churches in various places and is a Christian self-rule organization established spontaneously upon approval, authorization and voluntary participation by various members. Its procedure of operation is open to its members and to the society, and its confession of faith is recognized by the house churches that have joined the alliance. In its three-year development, it has gradually perfected its regulations on the internal administration. It has always abided by the principles of “serving the church, committed to the society, concerned for the public interests and conducting its activities in accordance with law.” In these three years, it has always engaged in work that safeguards the rights of house churches, helps the growth of house churches and involves people in charity causes.
We can see from the above that the plaintiff and other Christians of the Chinese House Church Alliance did not do anything that violated the law.
3. The defendant violated the relevant legal procedure.
(1) The defendant did not present any law enforcement documentations. It is stipulated 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 no less than two law-enforcing officers, who shall show their identification papers to the party or other persons concerned.” However, on November 28, 2008, the defendant took away the plaintiff and other Christians for interrogation without showing their law enforcement documents or summons.
(2) The defendant did not show a search warrant.
On November 28, 2008, the defendant searched the homes of the plaintiff and other believers without showing their law enforcement documents or search warrant or detention order. They also confiscated the property of the plaintiff and other believers, which is a serious violation of the law.
(3) The defendant did not give the plaintiff the right to argue or state his case. Article 31 of the “Law of the People’s Republic of China on Administrative Penalty” states: “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.” Article 32 of the “Law of the People’s Republic of China on Administrative Penalty” 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 reexamine the facts, grounds and evidence put forward by the parties; if the facts, grounds and evidence put forward by the parties are established, 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.”
Obviously, the defendant violated the provisions in the “Law of the People’s Republic of China on Administrative Penalty” in summoning, interrogating, notifying the plaintiff and imposing the penalty decision on the plaintiff. Pursuant to Article 41 of the “Law of the People’s Republic of China on Administrative Penalty,” the specific administrative conduct of the defendant on the plaintiff is illegal and invalid.
In summary, the plaintiff believes the basic human rights of the citizens cannot be restricted unless it is dictated so by the Constitution or the law. Even if one intends to restrict other people’s freedom of religion in the name of law, it is as perilous as walking on thin ice, and they should think twice before they jump! The various gatherings by the house churches and Christians are a basic form of expression of their Christian belief and should not be improperly restricted or deprived.
On November 28, 2008, the religious activity held by the plaintiff and other Christians was a normal religious activity, and it does not need the registration by the state agencies. The conduct of the plaintiff and other Christians did not violate any Chinese laws and is a totally legal conduct. The decision of abolishment made by the defendant on the plaintiff is neither based on facts or on legal basis. The defendant’s conduct is a serious violation of the law in procedures.
Pursuant to Articles 2 and 17 of the Administrative Procedure Law of the Peoples Republic of China, the plaintiff hereby submits his litigation at this court, requesting that the conduct of abolishment towards the Chinese Christian House Church Alliance made on November 28, 2008 and the confiscation against the plaintiff be repealed in accordance with law. I hereby also request that the defendant return all the confiscated objects of the plaintiff and apologize to the Chinese Church Alliance.
The Second Intermediate People Court of Beijing
1. A photocopy of this Administrative Statement of Complaint
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