Chinese Professor Sues Customs Officials for Confiscating Books at Border

November 25, 2009

Chinese officials do not allow persons entering mainland China to bring in books considered by officials to "attack the Communist Party" or "harm China's politics," among other things. Thus, persons who obtain books in Hong Kong, Taiwan, or any other place, run the risk of having them confiscated at the Chinese border. One Chinese citizen, the noted professor Feng Chongyi, sued a customs office in Guangdong province for confiscating several books he purchased in Hong Kong, including books on political topics such as democracy in China and former Party general secretary Hu Yaobang. A court began hearing the case in mid-October 2009. Feng argued that in applying a policy of confiscating books at the border on the basis of vague categories and a list of banned books that is not publicly available, Chinese officials violated Article 4 of the PRC Administrative Punishment Law, which requires administrative penalties to adhere to "principles of fairness and openness," and failed more generally to adhere to fundamental principles of the rule of law.

Feng Chongyi, a noted Chinese professor, has filed a lawsuit against a Chinese customs office located in Guangdong province near Hong Kong after officials there confiscated 11 of his books, according to an October 22, 2009, Southern Weekend (SW) article (in Chinese, English translation provided by Danwei). According to the SW article, as Feng was entering China through Guangzhou city in Guangdong on June 5, 2009, officials at the Tianhe Station Customs Office confiscated the books during an inspection. The officials claimed the books had been banned. The books, described as "scholarly works purchased in Hong Kong" in the SW article, included a collection of essays discussing the roots of the Chinese Communist Party's power and the prospects for democracy in China (according to a description of the book on the Hong Kong Book City Web site), and two books relating to former Party general secretary Hu Yaobang. Hu's death in 1989 was followed by the student demonstrations in Tiananmen Square. The Guangzhou Intermediate People's Court reportedly began consideration of Feng's lawsuit on October 14.

Feng argued to the court that, because Chinese customs officials' actions were based on rules that were not published, they violated rule of law principles, according to the SW article. Feng cited Article 4 of the PRC Administrative Punishment Law, which requires administrative penalties to adhere to "principles of fairness and openness." Feng said the customs office failed to publish either a list of banned books or concrete standards for determining which books may be prohibited from entering China. The SW, citing its own sources, explained that customs officers at major inspection rooms have an internal list of banned printed materials, which they keep secret from both the general public and even customs officers in other departments. The Tianhe Station Customs Office argued that the books fell within the list of prohibited items under the Measures for Overseeing the Import and Export of Printed Materials and Audio-Visual Materials Through Customs and the List of Prohibited Items for Import and Export. Feng noted that while the List of Prohibited Items for Import and Export includes a prohibition on materials "harmful to China's politics, economy, culture, or morals," the public would not know how to abide by the law without a more specific list of banned books. The SW article said Feng's experience of having books confiscated at the border was a common one for persons going through Chinese customs.

Besides Feng, other Chinese persons have sought to challenge the actions of Chinese customs offices in the past, with limited success. According to the SW article, seven years ago customs officials at the Beijing Capital Airport confiscated the book, How the Red Sun Rose: The Origin and Development of the Yan'an Rectification Movement, from a Beijing lawyer returning from Hong Kong. In what was considered the first lawsuit challenging customs' confiscation of printed materials in China, the lawyer Zhu Yuantao won on appeal before the Beijing High Court. Among its findings, the court found that China's central customs agency, the General Administration of Customs, had not acted in accordance with the PRC Customs Law and other relevant laws and regulations, because the agency based its decisions on a list of banned items developed internally as opposed to a published list that had been confirmed by the State Council. Two months later, however, the court changed its decision and affirmed the actions of the customs office, according to the SW article. (For an English account of the lawsuit and Zhu's attempt to obtain the confiscated book, see an October 23, 2003, Shanghai Star article via China Daily). In a case from 2008, according to the SW article, customs officials in Fuzhou city, Fujian province, seized copies of a book being sent to Fujian author Chen Xiwo from Taiwan. The book was the traditional-character edition of a book Chen had written and which already had been published in China. The ten stories featured in the book also had been published in well-known literary magazines in China. Chen lost both the original suit and the appeal, and both courts held closed proceedings because the case allegedly "involved state secrets."

The Chinese government's measures that prohibit entry of books and reading materials the content of which officials deem unacceptable fail to comply with international human rights standards. Both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which China has signed but not yet ratified, provide for a right to freedom of expression, including the right to "seek, receive and impart information and ideas...regardless of frontiers." Both the UDHR and ICCPR allow governments to impose restrictions on this right, but only if the restriction is "provided by law" (Article 19 of the ICCPR) or "determined by law" (Article 29 of the UDHR). As illustrated in the Feng case, the overly vague categories of prohibited content suggest that the Chinese government's restrictions in practice are not determined by law, and are not clearly provided by law. Article 4 of the Measures for Overseeing the Import and Export of Printed Materials and Audio-Visual Materials Through Customs, for example, provides a list of 12 categories of prohibited content, including content that "harms the honor or the interests of the nation," "attacks the Chinese Communist Party or slanders the government of the People's Republic of China," or "propagates evil cults or superstition," or "other content prohibited by laws, administrative regulations or provisions of the State." In addition, under both the UDHR and ICCPR, a government may restrict freedom of expression only to the extent "necessary" for (Article 19 of the ICCPR) or "solely for the purpose of" (Article 29 of the UDHR) protecting specific public or private interests, including national security, public order, or an individual's reputation. Chinese officials, however, use the law to restrict citizens' access to reading materials that contain political content that is merely unacceptable to the Communist Party or Chinese government, and that does not pose a threat to one of the specific public or private interests set forth in the UDHR and ICCPR.

For more information on the Chinese government's regulation of domestic publications, see Section II―Freedom of Expression―Government Regulation of the News Media and Publishing, in the CECC 2009 Annual Report.