Posted by Joel Martinsen on Wednesday, October 28, 2009 at 6:27 PM
You've taken a trip to Hong Kong and are returning with a stack of reading material that you can't normally find on the mainland. To your dismay, the customs agent seizes your books, but won't tell you why. What do you do? Sue!
Most of the books that Feng Chongyi had confiscated by the Tianhe Terminal Customs Office were written by mainland authors and did not violate national laws or regulations. But the heart of his complaint is more general: there is no publicly-available index of banned books, and no clear public standard of what constitutes illicit printed material. Feng argues that this violates Chinese law.
Feng's lawsuit mirrors an earlier attempt by the Fujian-based author Chen Xiwo to retrieve twelve copies of the Taiwan edition of his novella collection Book of Offenses from Fuzhou customs officials. Southern Weekly summarizes his case, in which the appeals court found that his book "disseminated pornography" and deserved to be confiscated.
The article also digs up an interesting older case in which Zhu Yuantao, a Beijing-based lawyer who won a fleeting victory over the Beijing Airport Customs Office.
In 2002, Zhu returned from a trip to Hong Kong with a copy of Gao Hua's account of the Yan'an Rectification Campaign, which customs agents seized as a banned book. He sued, lost, and then won on appeal in the Beijing Municipal People's High Court, which said that in the absence of a clear, public standard for banned publications, the confiscation of his book lacked a legal basis.
However, two months later the court revised its decision to uphold the seizure, and subsequent lawsuits over confiscated books have never been successful. Perhaps authorities are nervous that making the customs blacklist public would set an unfortunate precedent for information control in other areas — domestic media and publishing, for example, where unwritten rules abound.
It's an illuminating article, and its first line is particularly interesting in what it reveals about Southern Weekly's intended readership.
When Customs Confiscates Books, Where is the Evidence?by Yang Zheng / SW
Many people have had the following experience: they bring back certain books from overseas, but when they pass through Chinese customs, the books get confiscated as illegal printed material. Most people simply accept this, but noted academic Feng Chongyi has chosen to go to court.
Feng, who carries a Chinese passport, is currently an associate professor and deputy director of the China Research Center at the University of Technology, Syndey, as well as an adjunct professor at Nankai University.
A secret list of banned books
On the morning of June 5, customs officials confiscated some of Feng Chongyi's books during an inspection at the Tianhe Terminal customs as he was crossing from Hong Kong into Guangzhou. The confiscated titles were scholarly books he had purchased in Hong Kong and included Deconstruction and Construction,* Lin Mu Remembers,* and Hu Yaobang and China's Political Reformation.* The customs inspection record classified the confiscated books as suspected illicit printed material.
Feng explained to customs agents that these were legal publications from legitimate Hong Kong publishers, and that most had been authored or edited by mainland scholars of contemporary Chinese history who, for one reason or another, had to publish in Hong Kong or Taiwan. Additionally, they were vital to his own research.
Two hours later, communication failed. Feng pressed the customs agent: who had deemed them "illicit printed material"? Which books belonged to that category? Was it legal for customs to censor books? Where could the public find out details about the "ban"?
The customs agent explained that books belonging to the "banned category" were determined by the "relevant departments" and known inside customs. Southern Weekly learned from sources within customs that major inspection rooms at the border have a copy of a list of banned printed materials; when a suspicious book is discovered, agents can enter the title into a computer to locate a match. But the ban list is kept secret even from customs agents in other departments, not to mention the general public.
A month and a half later, Feng returned to the Tianhe Terminal and managed to retrieve four books, but seven others remained confiscated.
Yuan Fusheng, editor of the culture section of Changsha's Xiaoxiang Morning Post Weekly, had a similar experience. At the end of July, he was invited to the Hong Kong Book Fair, where he picked up four books, including Refusing to Forget* and Forty-Eight Techniques of Edo.* They were confiscated when he passed through customs in Guangzhou. Yuan explained to the customs agents that Refusing to Forget had previously been published on the mainland in 1999 by Shantou University Press in a print run so small it was now difficult to obtain, so it was a legal publication. Yet customs confiscated it anyway.
Can secret internal rules be a basis for enforcing the law?
After communication proved unsuccessful, Feng Chongyi sued the Tianhe Terminal Customs Office in Guangzhou Intermediate Court to force it to reverse its seizure decision and to apologize.
The case opened on October 14 with several major points of contention: Did customs have any legal basis for confiscating books? What specific standard did customs use for determining banned books? Was this a public standard?
Feng argued that customs had exceeded the bounds of its authority in censoring books based on content. The power granted to customs by the government as mentioned in Article 2 of the Customs Law does not include the power to censor the contents of published material. Feng also noted that customs had not publicized a specific standard or list of banned books to let the public know what printed materials are prohibited.
The Tianhe Terminal Customs Office argued that the seven books it confiscated contained material that was clearly prohibited by law or administrative regulations, and therefore fell under the prohibited publications laid out in the Measures for the Supervision of the Import of Printed and Audio-Visual Materials Through PRC Customs and the List of Articles Prohibited From Import and Export by Customs of the PRC. The confiscation was legitimate.
However, Feng said that the confiscation receipt he received from customs did not inform him of the prohibitions his books had violated. He believed that the receipt drawn up by the Tianhe Terminal Customs Office lacked a factual basis for the ban on imports, and its actions violated the basic principle of "evidence-based actions." Therefore, according to Administrative Procedure Law, the specific administrative action should be canceled [Article 54].
Feng also said that the Administrative Punishment Law stipulates that "administrative punishments follow the principle of fairness and openness."[Article 4] Although the List of Articles Prohibited From Import and Export does provide a definition of printed material banned from entering China — materials that are "harmful to China's politics, economy, culture and morality" — there ought to be a publicly-available list of banned items, or else the public has no way to adhere to the law. At present, customs confiscates "banned books" according to a secret, internal rule, a practice that violates basic legal principles in a rule of law country, for "what the law does not prohibit is not a crime." China's current legal framework does not support this kind of overreach of authority.
Award-winning domestic work deemed a "pornographic book" by customs
What befell Fujian author Chen Xiwo was even stranger. In December 2007, a publishing house in Taiwan issued a traditional-character edition of Chen's Book of Offenses and sent him twelve copies.
Fuzhou Customs seized the books, calling the traditional edition a pornographic book.
Chen Xiwo asked customs, "What factual and legal evidence do you have for deeming Book of Offenses a pornographic book?" Fuzhou Cutoms replied, "Customs supervision of the inspection of printed materials is specialized and confidential, and specific evidence cannot be disclosed. Customs has always acted this way."
Prior to its publication in Taiwan, Book of Offenses had actually been published by the People's Literature Publishing House. Of particular note is the fact that all of the the ten stories in the traditional character edition had been openly published in well-known literary magazines on the mainland: People's Literature, Harvest, Flower City, and Tianya. Seven of them had been nominated for awards, including the Chinese Literature Media Award and the Hundred Flowers Literature Award of Fujian Province.
At the beginning of 2008, Chen took Fuzhou Customs to court.
To his disappointment, he lost both the original suit and his appeal, and his collection Book of Offenses was determined to have "disseminated pornography." Moreover, both the Fuzhou Intermediate Court and the Fujian High Court did not make public their verdict because of "state secrets."
In an interview with Southern Weekly, Chen Xiwo said that although he lost his suit, he will continue to appeal. In August, he sent a letter to the National People's Congress in the hope that his experience will be instructive in revising the State Secrets Law.
Beijing High Court once said that customs had no basis to ban books
The outcome of Feng Chongyi's lawsuit is hard to predict, and Chen Xiwo has already lost his case. However, Zhu Yuantao, a lawyer who was once in the same situation, won a similar case.
Seven years ago, Zhu, a lawyer in Beijing, returned from Hong Kong with How the Red Sun Rose: The Rectification Movement in Yan'an,* which was confiscated at Beijing Airport customs. He sued in Beijing Second Intermediate Court, and the case was called the first lawsuit over customs confiscation of printed material.
Zhu was unsuccessful in the first trial, so he appealed to Beijing's High Court, which stated in its decision that the Capital Airport Customs Office had acted in the absence of proper evidence and had violated the fundamental principle of "evidence-based actions." It found in favor of Zhu and ordered the office to rescind its seizure decision.
In addition to handing Zhu an unexpected victory, the Beijing High Court ascertained one other critical fact: in its handling of import and export of printed material, the General Administration of Customs had never acted according to Customs Law and other laws and regulations to publicize a list of prohibited printed materials; instead, it had relied solely on a list hosted on its internal network.
Zhu said that with the final court decision in hand, he ought to have been able to retrieve his copy of How the Red Sun Rose from the Capital Airport Customs Office. However, two months later the Beijing High Court revised its decision to support the confiscation of the book.
Now, seven years later, the list of banned printed materials has yet to be made public.
Professor Wei Yongzheng of the Communication University of China, a scholar of media law, noted that in light of customs' vague and imprecise rules, people have reason to demand a specific standard from the government, or even a list of prohibited articles.
He said that customs clearly does not follow stringent procedures in its inspection of books. Although proper paperwork showing review by professional staff and approval by the leadership may exist, and although reports may even be made to the General Administration of Customs, determining the legal status of the contents of published material, an intangible product, involves many specialized issues that are beyond the capacity of ordinary customs agents.
He also said that practical restrictions on publications with harmful content, and prohibitions on illegal abuse of press freedoms, are shared by every country in the world, and the Chinese government is a signatory to the International Covenant on Civil and Political Rights. Yet these restrictions must adhere to legal principles. The public power to implement those restrictions is endowed by the law, so restriction standards and the particular items involved must be clearly defined in the law, and must also be made public. And where the law does not prohibit it, citizens have the freedom to act. Chinese law clearly stipulates that all laws and statutes must be made public, and internal documents that have not been publicized cannot be used as a basis for sanctions.
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