Petition On Behalf of the Aegean Sea Web Site et. al. to Repeal Provisions on the Administration of Internet News Information Services (CECC Full Translation)

September 22, 2006

The following is a translation prepared by the Congressional-Executive Commission on China of the Aiqinhai Petition to Repeal the Internet News Information Regulations. The Chinese text was retrieved from the Signature Net Web site on May 2, 2006. Additional background and analysis of this petition is available here.


National People's Congress Legislative Review and Filing Office: On March 9, 2006 the famous mainland China letters and ideas Web site "Aegean Sea" (www.77sea.com) ["Aiqinhai"] was shut down by the Zhejiang Provincial Press and Publication Administration using measures that were sudden and without warning. "China Worker Net" ["Zhongguo gongren wang"], "Worker, Farmer, Soldier BBS" ["Gong, nong, bing BBS"], and "Communist Party People" ["Gongchandang ren"], Web sites that have complained on behalf of workers' interests, were also shut down during the period of the two meetings [referring to the the annual plenary sessions of the National People's Congress and the Chinese People's Political Consultative Conference, which concluded on March 13]. Prior to this, "Democracy and Freedom" (Perspectives) ["Minzhu yu ziyou"] was shut down for the 47th time. The support that officials relied upon in closing these Web sites was the Provisions on the Administration of Internet News Information Services promulgated by the State Council Information Office and the Ministry of Information Industry on September 25, 2005, and the Aegean Sea Web site was deemed to be in violation of Article 5 of these Provisions, and was shut down because it had not received authorization from the State Council Information Office prior to being established. "Democracy and Freedom" (Perspectives) was similarly deemed to be in violation of Article 5 of these Provisions and closed and had its Ministry of Information Industry 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 Provisions' 10 million yuan registered capital requirements and for not possessing news qualifications. We believed that the Provisions on the Administration of Internet News Information Services requirement in Article 5 that grants licensing authoritative to the State Council Information Office to examine and approve Internet Information Service Work Units and the requirement of Article 8 stipulating an application qualification for enterprise legal persons of 10 million yuan in registered capital are in violation of relevant provisions of the Administrative Licensing Law and the Constitution, and we therefore put forth this constitutional review proposal. The reasons are as follows: 1. Article 35 of China's Constitution stipulates that citizens of the People's Republic of China have freedom of speech, the press, assembly, association, procession, and demonstration. On this basis, citizens engaging in reporting and commentary on political, economic, military, foreign, and other public affairs, as well as reporting and commentary relating to fast-breaking social events, also happens to be an exercise of (political) rights endowed by the Constitution, and should receive the respect and protection it deserves. For the same reason, citizens using the public spaces of the Internet to disseminate reporting and commentary on political, economic, military, foreign, and other public affairs, as well as reporting and commentary relating to fast-breaking social events, is also a form of exercise of rights endowed by the Constitution, and should receive respect and protection, and should not be subject to any unlawful prior restraint or obstruction. According to a fundamental principles of constitutional jurisprudence, because it is implemented through the Constitution and in reliance upon constitutional documents and basic public laws, a determination of whether the Provisions on the Administration of Internet News Information Services is unconstitutional may be based upon constitutional documents and basic public laws, such as the Administrative Licensing Law. To be in violation of the Administrative Licensing Law is to be in violation of the Constitution, and may be subjected to constitutional review. Our method also has precedent in the Supreme People's Court's direct use of the Constitution in its Official Response regarding the Qi Yuling case. In its Official Response in the "Written Reply on Whether Those Violating the Constitutionally Protected Basic Right of Citizens to Receive Education Through Infringment of the Right to One's Name Should Bear Civil Responsibility," it said: "In infringing upon the right to name, Chen Xiaoqi and others infringed upon Qi Yuling's fundamental right to education as provided for in, and enjoyed as a result of, the Constitution, and caused a concrete injury as a result, and should therefore be subject to civil liability." In the Qi Yuling case, Chen Xiaoqi and others violated the Constitution because they violated the Education Law. Your honorable agency may learn from the Supreme People's Court's example. 2. Article 5 and Article 8 of the Provisions on the Administration of Internet News Information Services violates the Administrative Licensing law. Examination and Approval are forms of administrative licensing. Article 14 of the Administrative Licensing Law stipulates that, as to the matters listed in Article 12 of the Law, administrative licenses may be established by means of law. Where there is no governing law, administrative licenses may be established by means of administrative regulations. Article 17 stipulates that, except for Articles 14 and 15 of the Law, no administrative license shall be set forth in any other regulatory document, which is to say that licensing and examination and approval may not be established except pursuant to law or regulation. The Provisions on Administration of Internet News Information Services promulgated by the State Council Information Office and the Ministry of Information Industry on September 25, 2005, are administrative rules, and are subject to the control of the Administrative Licensing Law, and may not establish examination and approval. 3. The Provisions on Administration of Internet News Information Services may not rely upon the Decision of the State Council Establishing Administration Examination and Approval Matters That Must Remain Subject to Administrative Licensing as a defense. Although the Decision of the State Council Establishing Administration Examination and Approval Matters That Must Remain Subject to Administrative Licensing retains the power of the State Council Information Office to examine and approve licenses for Internet news publishing, according to Clause 2 of Article 14 of the Administrative Licensing Law, when necessary, the State Council may adopt the form of releasing decisions to establish administrative licenses. After implementation, except for the matters under temporary administrative licenses, the State Council shall timely propose to the National People's Congress and its Standing Committee to formulate laws, or formulate administrative regulations itself. This is to say that, although the Decision of the State Council Establishing Administration Examination and Approval Matters That Must Remain Subject to Administrative Licensing retains the power to license, it must supplement it with laws or administrative regulations. This is an important condition of retaining administrative licensing power, and cannot be disregarded. Taking Article 2 of the Administrative Licensing Law as a whole, even if the State Council Information Office retains the right to examine and approve licenses for Internet news publishing under the Decision of the State Council Establishing Administration Examination and Approval Matters That Must Remain Subject to Administrative Licensing, if there has been no supplemental law or administrative regulation, the Provisions on the Administration of Internet News Information Services may not replace administrative regulations as an administrative regulation itself. So even if the Decision of the State Council Establishing Administration Examination and Approval Matters That Must Remain Subject to Administrative Licensing retains the right of the State Council Information Office to examine and approve licenses for Internet news publishing, the Provisions on the Administration of Internet News Information Services nevertheless violate the Administrative Licensing Law. We request: 1. That constitutional review be carried out with respect to the Provisions on the Administration of Internet News Information Services, and that these rules be rescinded. 2. Responsible agencies be ordered to restore all Web sites shut down because of the Provisions on the Administration of Internet News Information Services, and that they provide full and timely effective compensation. We declare: When the number of signatories to this application reaches 10,000, if your honorable agency has not completed its examination and made a public announcement by the deadline established by law, we will make an application to a model constitutional court composed of members of the Chinese legal academic community, civil law scholars, and authoritative persons. Aegean Sea Incident Constitutional Review Application Delegation: Chen Yongmiao, Chen Qitang (Tianli), Sun Yueli, Li Jian "Democracy and Freedom" (Perspectives) Constitutional Review Application Delegation: Wu Wei (Ye Du), Liu Di "Worker, Farmer, Soldier BBS" Constitutional Review Application Delegation "Democracy and Freedom" (Perspectives) Constitutional Review Application Delegation Deep Green Web Constitutional Review Application Delegation Donkey Web Constitutional Review Application Delegation Shangrila Community Constitutional Review Application Delegation Deep Green Community Application Delegation E-Apple Forum Application Delegation Ocean Chinese People Forum Application Delegation March 28, 2006