Support PRC Citizens’ Action Challenging Constitutionality of Internet CensorshipComments Off on Support PRC Citizens’ Action Challenging Constitutionality of Internet Censorship
Released on Nov. 13, 2005
(For Chinese, please visit: Article_Show.asp?ArticleID=487)
Support PRC Citizens’ Action Challenging Constitutionality of Internet Censorship
On November 9, 2005, on the eve of the Information Society World Summit (Geneva, November 10-12 and Tunis, November 16-18, http://www.itu.int/wsis/), a public campaign was kicked off (https://18.104.22.168/web/index.asp) by concerned Chinese citizens to demand the State Council to review the constitutionality and legality of the newly promulgated Internet censorship law, the Regulation on the Administration of Internet News Information Services (hereafter referred to as the Regulation).
The Civil Rights Defense Net [gongmin weiquan wang], which initiated this campaign, says in a public statement (https://22.214.171.124/web/news_view.asp?newsid=200) that, “The Regulation bypasses the PRC Constitution and relevant laws in order to strengthen censorship and monopoly over speech and expression on the Internet. It purports to legitimize such an administrative act. This act infringes upon citizens’ right to free speech and expression.” The Civil Right Defense Net is gathering signatures from PRC citizens. Campaign organizers intend to activate an existing Constitutional and legal procedure, which allows Chinese citizens to seek administrative and judicial review by the State Council of regulations.
After December 3, when the signature collection period ends, the petition, “Recommendations for Reviewing the Rules on the Administration of Internet News Information Services” (See below, in English and Chinese), will be submitted to the PRC State Council. This petition lays out the reasons and legal analyses demonstrating the unconstitutionality and illegality of the Regulation. The Information Office of the State Council, joined by the PRC Ministry of Information Industry, has promulgated the Regulation on September 25, 2005. By November 13, 104 citizens have signed the petition.
CRD has helped coordinate this campaign. CRD believes it is critical for protecting the rights to freedom of information, press, and expression on the Internet that this non-confrontational, procedurally legal, action, initiated by Chinese citizens, should at least win a decision by the State Council and the Standing Committee of NPC to conduct the requested review. If a credible, procedurally sound review process fails to provide a reasonable defense against complaints about the Regulation’s unconstitutionality, the Regulation must be repealed.
The success of this public campaign requires a strong show of support from the international community – from international bodies such as the UN, which has organized the Information Society World Summit, from international human rights NGOs, scholars, legal experts, and anyone concerned about freedom of expression, press, and information, curtailed in China due to the government’s increasingly draconic and sophisticated Internet censorship.
Recommendations for Reviewing the Regulation on the Administration of Internet News Information Services
(Open for Suggestion and Signature)
[A translation of the key points]
State Council of the People’s Republic of China:
According to paragraph 3, Article 88 of the PRC Legislation Law, the State Council has the power to amend or to repeal inappropriate regulations enacted by bureaus or local governments. Article 41 of the PRC Constitution states that any citizen of the People’s Republic has the right to criticize or make recommendations to any state body or officials.
As citizens of the People’s Republic of China, we believe that the Regulation on the Administration of Internet News Information Services is in conflict with the Constitution and relevant laws. We therefore present the following recommendations to the State Council, requesting a review the Regulation.
Particular issue recommended for review: The questions whether the Regulation falls under the“exceeding the limits of power” stipulation in Paragraph 1, Article 87 of the Legislation Law and the “lower level law violateing higher level law” stipulation in Paragraph 2.
Facts and reasons: First, according to Articles 2, 33, 35, 41 of the Constitution: All the power in the People’s Republic of China belongs to the people; according to laws and regulations, through all kinds of ways and means, the people manage national affairs, including economic, cultural, and social affairs; the state respects and protects human rights; citizens have freedom of speech, and citizens have the right to criticize or make recommendations to any state organs or officials. According to Article 54 of the Criminal Code, deprivation of political rights includes the right to free speech. Therefore, the right to free speech belongs to citizens’ political rights.
Based on these constitutional and legal provisions, Chinese citizens are merely exercising their constitutionally bestowed (political) rights, which must be respected and guaranteed, when they report or comment on political, economic, military, diplomatic or other public affairs, as well as fast-breaking social events. For the same reason, it is one form of exercise of their constitutionally bestowed rights when Chinese citizens do exactly the same things in the public space on the Internet. Such exercises of constitutional rights should be respected and guaranteed and must not be illegally restricted and impeded.
However, Article 2 of the Regulation stipulates, “Internet News Information Services operating within the borders of the People’s Republic of China shall abide by these Rules. As used in these Rules, News Information refers to current events news information, and includes reporting and commentary relating to politics, economics, military affairs, foreign affairs, and social and public affairs, as well as reporting and commentary relating to fast-breaking social events.” Article 5 categorizes three types of Internet news information service work units, which cover both media and non-media work units. It requires that the establishment of any of these work units must be subjected to “examination and approval by the State Council Information Office” and must be subjected to “registration with the State Council Information Office or the People’s Government information offices in provinces, autonomous regions, and municipalities directly under the central government.” Articles 6, 7, 8, 10, 11, and 12 prescribe administrative restrictions on qualification of Internet news information service providers. Article 16 requires that “reprint News Information or that transmit to the public current event news report information, shall reprint and transmit News Information issued by Central News Work Units and News Work Units directly under the provinces, autonomous regions, or municipalities directly under the central government” and “non-news work units” “may not post News Information they have gathered and edited themselves.”
When these articles in the Regulation are being implemented, free and public Internet space is turned into government monopolized space for issuing administrative orders, through coerced organizing of online information/news services into officially approved work units, through administrative review and approval procedures, and through turning information distribution into an official affair. This makes it impossible for Chinese citizens to express independent (political) opinion on the Internet. This would effectively deprive Chinese citizens’ political rights through administrative means of control.
According to Articles 8 and 9 of the Law on Legislation, deprivation of citizens’ political rights can only be ruled according to existing laws. The State Council has no power to promulgate administrative rules to deprive citizens’ political rights. Accordingly, a department under the State Council also has no power to make such rules.
Article 19 of the Regulation specifies eleven categories of content-specific prohibits on news information services on the Internet, including information with content “jeopardizing the security of the nation, divulging state secrets, subverting of the national regime or jeopardizing the integrity of the nation’s unity,” “harming the honor or the interests of the nation,” “disrupting national policies on religion, propagating evil cults and feudal superstitions,” “disrupting social stability,” or “inciting illegal assemblies, associations, marches, demonstrations, or gatherings that disturb social order.” Any Internet information that contains any of the specified content, according to Article 20, would be immediately blocked. Article 27 prescribes the punishments of news information services for violating these rules.
According to Articles 8 and 9 of the Law on Legislation, only existing laws can be used to determining the criminality of acts and the punishment. The State Council has no authorized power to prescribe rules and punishments. According to Articles 123 and 126 of the Constitution, the People’s Court is the only state judicial organ, which should have independent judiciary power according to the rule of law. No administrative body, social group, or individual is allowed to interfere with the judicial process. According to Articles 3 and 12 of the Criminal Procedure Law, without a legal trial and sentence handed down from the People’s Court, no one can be declared guilty.
Therefore, those who promulgated the Regulation are unauthorized to formulate provisions related to crimes and punishments, nor are they authorized to determine that a specific act is criminal. Even more, they do not have the power to mete out administrative punishments according to their own corresponding determination. The relevant provisions of the Regulation makes it clear that the relevant departments in the State Council are using administrative means to replace and interfere with the judicial process.
In summary, we believe that the Regulation promulgated by relevant departments in the State Council is in conflict with the Constitution and national laws and it trespasses the limits of power. Therefore, the Regulation is unsuitable and should be repealed…
As citizens of the People’s Republic of China, in accordance with Article 41 of the Constitution, we recommend to the State Council to review the Regulation on the Administration of Internet News Information Services.
Undersigned citizens of the People’s Republic of China:
Li Jian and 103 others
(For daily updated list, visit https://126.96.36.199/web/news_view.asp?newsid=198)
Links to relevant Chinese laws and the Constitution:
Regulation on the Administration of Internet News Information Services: http://www.seedwiki.com/wiki/china_digital_space/.cfm?wpid=207566
The Legislation Law of the PRC: http://www.novexcn.com/legislat_law_00.html
PRC Constitution: http://english.people.com.cn/constitution/constitution.html