Statement from Legal Representative For the Administrative Plaintiff- Wei Hongxing

China Aid Association
Statement from Legal Representative For the Administrative Plaintiff- Wei Hongxing
July 29, 2008
Dear respectable chief judge and judges,
How are you? Pursuant to Article 29 of the Law of the People’s Republic of China on Administrative Penalty, I served as plaintiff Wei Hongxing’s legal representative in his lawsuit after receiving his authorization. I hereby give the following opinion as a law agent by stating the facts in the context of law and I hereby request that this court give serious consideration in adopting it.
I. The religious activity engaged in by the plaintiff and other Christians is a legal and normal religious activity. The administrative penalty imposed by the defendant on the plaintiff is not supported by a legal basis.
(1)  The conduct of the plaintiff and other Christians is the religious activity guaranteed by the Constitution of our country. It is stipulated in Article 36 of the Chinese Constitution that citizens of the People’s Republic of China enjoy the 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 state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.
The freedom of religious belief as stipulated in Article 36 of the Chinese Constitution includes the following principles and summation:
1.  It means that every citizen enjoys the right to believe in a religion freely or to refuse to believe in a religion. As long as the external behavior of the particular citizen does not violate the prohibitive provisions set forth in the law, law enforcement agencies must not restrict or interfere with the freedom of belief on the above-mentioned citizen on any excuses.
2.  It means religious organizations can freely construct their own sites for religious worship such as a church in accordance with legal procedures. It means the establishment of the religious gathering sites does not need approvals from government agencies as a religious belief is purely a spiritual activity of a citizen. The law can only regulate a person’s external behavior and it must not peep into a person’s inner spiritual and emotional activities. At most, the gathering sites of religious believers can be filed at a public power agency, but it does not need get “permits or approvals.” (Even if they register at a public power agency, it is for the purpose of tax exemption and not for any other purposes). Otherwise, the conduct of the public power agency is illegal and is an interference with or discrimination against the freedom of religious belief protected under the Constitution.
3.  Freedom of religious belief also means the church may accept donation donated by believers in accordance with religious regulations and the church manages the properties of the church without interference from law enforcement agencies;
4.  As for preaching of one’s religious belief, freedom of religious belief means missionaries, be they from local areas or from outside the area, and be they from China or overseas, can freely preach their messages at any religious sites without approvals from government agencies and the Chinese law enforcement agencies must not interfere with them or prohibit them from doing so.  Otherwise, the conduct of the public power agency is a violation of the law as an interference with or discrimination against the freedom of religious belief protected by the Constitution.
(2)  In the meantime, the conduct of the plaintiff and other Christians was in line with the basic principle of the religious policies of our country. Article 3 of the White Paper of the “Status of Freedom of Religious Belief in China” promulgated on October 16, 1997 by Information Office of the State Council of China stipulates that: “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.” From this stipulation we know that on December 4, 2007, the plaintiff did not need to apply at all for the activity he held at his own house which was mainly attended by the relatives. This was a normal activity and did not need approval.  The defendant’s conclusion that the plaintiff’s religious activity is an “illegal gathering” is wrong and is a violation of the basic principle of the state’s religious policies.
As citizens of the People’s Republic of China, we certainly must abide by the highest law of our country—the Constitution and all the laws that conform with the Constitution. However, I as a legal agent want to emphasize the following: its law and regulations must not contravene the norms, basic principles and the gist of the Constitution. Otherwise, a citizen has the right not to abide by the law that contravenes the Constitution.
We know from the above regulations that on December 4, 2007, the religious activity of the plaintiff and other Christians is legal and is protected by the law and is not an “illegal gathering” as the defendant concluded. In the meantime, the penalty decision made by the defendant on the plaintiff is not supported by a legal basis.
2.  The decision of administrative penalty made by the defendant on the plaintiff is not based on facts. It is stipulated in Clause 2, Article 43 of the “Regulations of Religious Affairs” that “where a non-religious body or a site not for religious activities organizes or holds religious activities or accepts religious donations, the department in charge of religious affairs shall order it to discontinue such activities and shall confiscate the illegal gains, if any; if the circumstances are serious, a fine of not less than one time but not more than three times the illegal gains may be imposed concurrently.”
However, the plaintiff in fact did not receive any religious donations and did not have any illegal gains. Moreover, among all the pieces of evidence provided by the defendant, there is none that is about the plaintiff receiving any religious donations or the so-called evidence of “illegal gains.” Furthermore, we know from Point 1 that “house gathering” is a special situation in the general regulations and is permitted and protected by the law. From this, we can see here that the fine of 80,000 Yuan imposed by the defendant pursuant to Clause 2, Article 43 of the “Regulations of Religious Affairs” is not based on facts.
3.  The defendant violated the relevant legal procedures.
(1) The defendant did not produce any law enforcement identification papers. It is stipulated in Article 37 of the Law of the People’s Republic of China on Administrative Penalty that states: “When administrative organs conduct investigations or inspections, there shall be not less than two law-enforcing officers, who shall show their identification papers to the party or other persons concerned.” However, on December 4, 2007, the defendant took the plaintiff away for interrogation without producing any law enforcement papers or summons.
(2) The defendant did not show a search warrant or detention order to the plaintiff.
On December 4, 2007, the defendant, without producing a law enforcement papers, search warrant or a detention order, searched the houses of the plaintiff and other believers and they even searched the body of some believers. In addition, they seized and confiscated the properties of the plaintiff and other believers. However, according to the law, while sealing and seizing properties, the administrative organ should notify the party and other interested parties to be present at the scene and produce the sealing and seizure orders issued and signed by the head of the administrative organ.
The law enforcement officers should count the objects and documents sealed or seized right on the site with witnesses and the party involved in the case.  As for the sealed and seized properties, the administrative organs must present a list clearly stating the name, specification, feature, quality and quantity of the seized objects, the location where the objects and documents were found and the time of seizure. The list should be signed and stamped by the party concerned or the interested parties and the people who assisted in the sealing and seizure.  Moreover, according to the stipulations in the law, during a search, the public security organ must show a search warrant to the people being searched and the result of the search should be recorded in writing, which should be signed or stamped by the investigators, people being searched or his or her family members, neighbors or other witnesses. We can see from here that the conduct of the defendant was a serious violation of the procedure set forth by the law.
(3) It is stipulated in Article 31 of the Law of the People’s Republic of China on Administrative Penalty that: “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 and notifying the plaintiff and in making the decision of the penalty. In accordance with provisions set forth in Article 41 of the Law of the People’s Republic of China on Administrative Penalty, the specific administrative conduct imposed by the defendant on the plaintiff is a violation of the law and is therefore invalid.
To sum up, this agent thinks the administrative conduct imposed by the defendant on the plaintiff is not supported by a legal basis and its procedures violated the law. It should be invalid and should be repealed. I hereby request that this court support the request in the plaintiff’s lawsuit and confirm according to law that the administrative conduct of the defendant is illegal and repeal the decision of administrative penalty imposed by the defendant on the plaintiff on January 4, 2008 and return all the seized objects to the plaintiff.
Sincerely,
To: Hami People’s Court of Xinjiang
Wu Chenglian
Legal Agent