Groups Petition Government to Review Constitutionality of Internet News Rules

Several groups have petitioned the Legislative Review and Filing Office (LRFO) of the National People's Congress Standing Committee (NPCSC) to consider the constitutionality and legality of a rule that the Chinese government used to shut down their Web sites, according to a copy of the petition posted on the Signature Net Web site on March 28 (in Chinese. A translation is available here). The petition campaign closed on April 28, and was organized by "Constitutional Review Application Delegations" from the following Web sites:

• "Aegean Sea" ["Aiqinhai"], which the Zhejiang Provincial Press and Publication Administration shut down on March 9;
• "Chinese Workers Net" [Zhongguo Gongren Wang], "Worker, Farmer, Soldier BBS" [Gong, Nong, Bing BBS], and "Communist Party Peoples Net" [Gongchandang Ren Wang], Web sites that had advocated on behalf of workers' interests, and which were shut down during a government crackdown on freedom of expression before the annual March plenary sessions of the National People's Congress and the Chinese People's Political Consultative Conference; and
• "Democracy and Freedom" (Perspectives) ["Minzhu Yu Ziyou"], which was shut down for the 47th time since the government first shut it down in November 2005.

According to the petition, officials shut down the Aegean Sea Web site claiming that it violated Article 8 of Provisions on the Administration of Internet News Information Services (Provisions) promulgated by the State Council Information Office (SCIO) and the Ministry of Information Industry in September 2005, because it had not received SCIO authorization before being established. "Democracy and Freedom" (Perspectives) was similarly deemed to be in violation of Article 5 of these Provisions and was closed and had its Internet Content Provider registration revoked. "China Workers Net," "Worker, Farmer, Soldier BBS," and "Communist Party People Net" and others were deemed to have violated Article 8 of the Provisions for not having fulfilled the 10 million yuan registered capital requirement and for not having a government license to report news.

The petition asserts that Article 5 and Article 8 of the Provisions violate the Administrative Licensing Law (ALL) and the Constitution because:

• Article 35 of the Chinese Constitution grants citizens the freedoms of speech and of the press. Citizens reporting and commenting on fast-breaking social events, and political, economic, military, and foreign affairs are exercising these constitutional rights, and should not be subject to any unlawful prior restraint.
• The requirements of Articles 5 and 8 of the Provisions are forms of administrative licensing, and as such are illegal because they violate the ALL. The ALL provides that government agencies may not establish examination and approval requirements except pursuant to law or regulation. The SCIO's authority to license news Web sites does not derive from any law or regulation, but rather derives from the State Council's July 2004 Decision Establishing Administration Examination and Approval Matters That Must Remain Subject to Administrative Licensing (Decision).

Under Article 14 of the ALL, the State Council may establish administrative licensing requirements using decisions, but must either submit a proposal to the NPCSC to formulate a law on the matter, or formulate an administrative regulation itself "in a timely manner." The petition argues that, assuming the SCIO retains the right to examine and approve licenses for Internet news publishing under the Decision, after almost two years the government has yet to enact any law or administrative regulation in the area, and the Provisions cannot replace administrative regulations as an administrative regulation itself.

The petition is necessary because the Constitution vests the power to interpret and enforce the Constitution in the NPCSC, and under the Administrative Reconsideration Law, Administrative Procedure Law, and Legislation Law, Chinese courts lack the power either to apply constitutional provisions in the absence of concrete implementing legislation or to strike down national laws or State Council regulations that are inconsistent with the Constitution. Chinese government agencies may submit formal requests directly to the NPCSC's Legislative Affairs Commission for review of the constitutionality and legality of State Council regulations. Ordinary citizens, however, may only suggest "proposals" for constitutional and legal review, and these proposals must be sent to the LRFO, which is a screening office under the NPCSC's Legislative Affairs Commission.

China's constitutional review system is neither accountable nor transparent with respect to citizen proposals. The NPCSC has never declared a law or regulation unconstitutional, according to an April 17 article (in Chinese) posted on the China Law Society's Democracy and Law Times Web site. The NPCSC amended the Working Procedures for the Filing and Review of Administrative Rules, Local Rules, Autonomous Region and Special Purpose Regulations, and Special Economic Zone Rules (Legislation Procedures) in December 2005, to make notification of review completion voluntary. Moreover, the government is not required to inform citizens whether or not it will act on a citizen's proposal. The Democracy and Law Times summed the situation up this way:

As a system, constitutional review comprises proposal, acceptance, review, determination, and resolution. If it lacks any one of these, then the constitutional review system is not complete. Although the meaning of citizens having been granted the right to submit proposals for constitutional review is very important, if all they have is the right of proposal, and they do not have the right of acceptance, review, determination, and resolution, then the right of proposal exists in name only. This also explains the reason why so few citizens propose constitutional review.

Apparently anticipating that the petition will get no response, the petitioners state that, if the government does not respond to the petition within the legally required time period (the petition did not specify to what time limit it was referring) by the time the number of signatories reaches 10,000, the delegations will make an application to a "model constitutional court" composed of members of the Chinese legal academic community, civil law scholars, and other experts.

The aforementioned problems notwithstanding, others in China have begun using this constitutional review mechanism to combat government abuses of power. For example, in April 2006 a Sichuan University law professor petitioned the NPCSC to review the constitutionality of a 2003 Supreme People's Court judicial interpretation that discriminates between urban and rural residents on the basis of their household registration (hukou) status.

Delegation members include: Chen Yongmiao, a Beijing-based activist who had advocated on behalf of Cai Zhuohua (a Beijing house church leader imprisoned for printing and giving away Bibles and other Christian literature); Sun Yueli, legal advisor for the Aegean Sea Web site; Liu Di (also known as the "Stainless Steel Mouse"), whom Chinese authorities held in detention for a year without charges after she posted a series of essays on the Internet discussing political reform and criticizing the Party; and Li Jian, who in November 2005 issued a public "opinion" calling on the State Council and NPCSC to review the constitutionality and legality of the Provisions. Unlike the Aegean Sea petition, Li's "opinion" based its complaint on Article 8 of the Legislation Law, which provides that any deprivation of a citizen's political rights must be based on a national law, and the State Council and its subordinate agencies therefore lack the authority to adopt a rule to this effect.