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Commentary: Triumph for intellectual freedom
( 2003-11-13 11:12) (China Daily)

On September 8, the Beijing Higher People's Court ruled that customs officials at Beijing Capital International Airport had improperly seized a book entitled "How the Red Sun Rose - The History of Yan'an Movement."

The court decided that Zhu Yuantao, a Beijing lawyer who bought the book in Hong Kong, was not guilty of smuggling banned books.

Initially the case did not receive wide media coverage. Only Democracy and Law, published by the China Law Society, followed the case from the beginning. But on October 15, the online edition of People's Daily reprinted a signed commentary entitled "An Applaudable Decision," which was originally published in China Economic Times. According to the commentary, it was the first case in which an ordinary citizen had won over a law enforcement organization (the customs department) in a case based on ideological grounds.

The case dated back to last August 4, when Zhu landed at Beijing Capital International Airport and was questioned for having allegedly smuggled the book. The customs officials said there were some lines in the book, which criticized late Chairman Mao Zedong. His book was confiscated and he was charged with smuggling a banned book.

According to Democracy and Law, the customs official who confiscated the book had no educational background in history or literature.

Zhu Yuantao took the customs department to court, arguing it had no qualifications or authority to evaluate the content of an academic book. He lost the suit, but appealed to the Beijing Higher People's Court, arguing the book was authored by Gao Hua, a history professor of Nanjing University, and that the book can be read freely in Nanjing University and Beijing University.

What's more, Zhu argued, the book was solely based on facts and materials published inside China. On August 7 this year, the court announced customs officials had never consulted the Customs Law or the State Council to publish a list of banned books. The only yardstick customs used was a temporary list posted on its internal website. In other words, the internal list was never made known to the public, and the list had not been approved by law or the central government.

The court then overturned Zhu's conviction and ordered customs to return the book to him.

Wei Yongzheng, an established professor of journalism at Shanghai Academy of Social Sciences, says one of the key problems in the case is that customs' internal list of banned books conflicts with a higher regulation - the Regulation on Publication Management. The objective description of Mao Zedong's mistakes does not violate the Regulation, although it may have violated the customs' self-made provisions.

"It is debatable whether a government department such as the customs can grant itself powers not granted in law or higher regulations," Wei said during the Rule of Law and Media Regulation Seminar in Beijing on October 25-26.

On who is qualified for reviewing the content of a book, Wei said: "If you are not an expert, you will not be able to understand an academic book such as the Red Sun, which involves political science, Marxist theory, jurisprudence and Communist Party history."

He warned that procedural justice cannot be guaranteed if administrative officials, not trained experts, are allowed to decide which book is legal and which is not.

Wang Zhenmin, vice-dean of the Law School of Tsinghua University, said he is not sure about the role of judicial review in cases involving publications or news media. Judicial review of unconstitutional acts of the government has yet to be developed. However, Wei said the Red Sun decision is a signal that rule of law has prevailed in China's media regulation.

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