Central Government Deliberates on New Law to Restrain Administrative Actions

February 8, 2006

The National People's Congress (NPC) will deliberate on a new "Administrative Coercion Law" in 2006 that will restrain the "administrative compulsory power" of government agencies, according to a Xinhua article on December 27, 2005, and a China Newsweek article posted by Xinhua on January 17 (both in Chinese). Administrative compulsory power allows administrative agencies to take compulsory measures (ranging from confiscations of property to restraints on personal liberty) against Chinese citizens. China Newsweek's article notes that the purpose of the new law is to "standardize and restrict the government's administrative power."

Xin Chunying, a drafter of the new law and vice director of the NPC committee on rule of law work, explained that the lack of consistency in regulation has led to abuses in the use of compulsory measures. The new law will standardize provisions under 48 laws and 72 regulations, which currently govern over 200 different compulsory measures. Law professor Xue Gangling also noted that the core function of the new law will be to impose procedures on officials that will restrict their exercise of government power. For example, the current draft requires officials to present written authorization by a county or higher level government agency when they enter a citizen's residence and confiscate his personal belongings. Officials who restrict a citizen's personal liberty must provide immediate notification to his family or work unit of the location where he is being held and the agency implementing the detention. This requirement echoes similar provisions under Articles 64 and 71 of the Criminal Procedure Law, which require immediate notification to a citizen's family or work unit once a detainee is brought into criminal custody. China Newsweek reports that procedures under the remaining provisions of the new law have been drafted in keeping with four broad principles, including: (1) implementation of compulsory measures in accordance with legal standards; (2) limitation of their use in a way that will minimize harm to Chinese citizens; (3) refrain from use where compulsory measures are not needed; and (4) compromise with the party involved where there has been no harm to the public interest or to a third party.

A Beijing News report, posted by the Beijing Review on January 12, emphasized that submission of the new law to the NPC "is believed to be a major event in the history of China's legal system." The report notes that the problem of expanding administrative power is particularly serious in China, and that frequent abuses have resulted from a lack of checks on government power. Both Xinhua and China Newsweek highlighted forced evictions, including through government shutdown of electricity and water, as one measure that officials employ to compel citizens to comply with government demands. According to China Newsweek, forced evictions and other abuses of power are the focal point of citizen grievances that have been launched through the Chinese petitioning system. Human Rights Watch released a report on December 8, 2005, which contains first-hand accounts of official abuses (including beatings and torture) against Chinese petitioners and notes that petitioners rarely succeed in obtaining redress. In 2005, forced evictions and related abuses of power ultimately fueled mass protests in Xi'an, Shaanxi province, Taishi village, Guangdong province, and Dongzhoukeng village, Guangdong province. In these and other cases, mass protests erupted only after citizen attempts to negotiate with, or petition to, administrative agencies met with no success.

An editorial posted by Southern Weekend on January 5 notes, "The Administrative Coercion Law seeks balance between maintaining social order and protecting citizens' rights," and argues that "it places the protection of citizens' most fundamental right to existence in a priority position." A January 12 Beijing News article notes that the new law has generated positive reactions among legal experts and the public, but that some government officials have already shown resistance by complaining that the law will make their job of law enforcement more difficult. The Ministry of Public Security confirmed on January 19 that public order disturbances continue to rise, reflecting a general increase in social unrest in China. Central government and Party leaders have displayed a high level of concern over this problem, issuing an opinion in December 2005 that urges stronger control over society and aims to curb the rise in the number of protests and demonstrations. For more information on Growing Social Unrest and the Chinese Leadership's Counterproductive Response, see the Introduction to the CECC's 2005 Annual Report.