3 obscene text messages and you’re thrown in jail? Fuyang PS bureau makes a big mess!

Yesterday Fuyang public security bureau (Anhui province) issued the “Detailed standards on implementing public security administration punishment”, (阜阳市公安局实施治安管理处罚细化标准, Fuyangshi gong’anju shishi chi’an chuanli chufa xihua biaozhun).
This lengthy document purports to clarify some provisions of the Public Security Administration Punishment Law 治安管理处罚法, and other public security legislation as well and to fill in some of its loopholes.

A case in point is article 42 paragraph 5 of the PS Administration Punishment Law, under which

Those who send several obscene, insulting, threatening communications, or any other communication that disturb the ordinary life of another (…) can be punished with no more than 5 days detention (拘留) and a fine of no more than 500 yuan. If the circumstances are serious, they can be punished with more than 5 and less than 10 days detention and a fine of no more than 500 yuan

第四十二条 有下列行为之一的,处五日以下拘留或者五百元以下罚款;情节较重的,处五日以上十日以下拘留,可以并处五百元以下罚款:

(….)

  (五)多次发送淫秽、侮辱、恐吓或者其他信息,干扰他人正常生活的;

(…)

Legislators of Fuyang PSB though of interpreting this provision as follows:

Those who produce, transport, reproduce, sell, rent obscene publications, pictures, films, audiovisual products and other obscene objects or use computer networks, telephones and other means of communication to spread obscene communications are punished wih more than 10 days and less than 15 days detention, and a fine of no more than 3.000 yuan. If the circumstances are minor, they are punished with no more than 5 days detention and a fine of less than 500 yuan. (…)

Yesterday Xinhua reported that this provision applied to all those who send three obscene messages. To which Fuyang PSB replied that the words “three obscene messages” do not appear in the Detailed Standards. Hence the controversy that had just begun on bulletin boards and discussion groups had no reason to be. Fuyang PSB was right, but just on this point.

Because this piece of legislation is problematic in several ways. Just to mention a few of them:

  • In Fuyang, minor crimes are punished more heavily than in the rest of China. Because while the PS Administration Punishment Law punishes the sending of obscene messages with no more than 5 days detention and a fine of less than 500 yuan, in Fuyang the same behavior is punished more heavily: with 10-15 days detention and a fine of less than 3.000 yuan.
  • As this commentator notices, according to the Law on Legislation local public security bureaus have no authority to amend a national law. And this is what the Fuyang PSB has actually done.
  • Law-makers in Fuyang have failed to specify what an obscene message is.
  • Provisions as to the minimum number of obscene materials that must be spread have been made (10 books or magazines/50 pictures/2 movies/5 DVDs). But law-makers have not specified how many messages one has to send in order to be punished. It’s true that the words “three obscene messages” never appear in this piece of legislation. On this Fuyang PS bureau is right. But, since no specifications as to the number of messages have been made, in theory even the sending of JUST ONE MESSAGE could be punished.

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