Editorial Challenging Dalian Anti-Begging Regulation Raises Broader Questions About China's Legal System

Local regulations must conform to the Constitution and national law, concludes a commentary in the Hong Kong edition of the China Daily. The commentary takes aim at a new Dalian city regulation that prohibits begging in many parts of the city, citing objections on both policy and legal grounds. First, it argues that "people cannot help but ask whether it is discriminating to limit the personal freedom of a group just because of their unique way of living, despite the fact that they don't harm anyone." The commentary also challenges the legal legitimacy of the regulation, noting that under Chinese law (the PRC Legislation Law) "only the National People’s Congress and its standing committee can make laws depriving or limiting citizens’ rights or personal freedoms." A subsequent commentary on a similar regulation in Shaoxing, Zhejiang province goes further, concluding that "This is a dangerous pattern that has to be broken . . . because, as we have said, in the first place, such restrictions are against our Constitution. Since the Constitution promises all citizens freedom to act, no legislation, national or local, should set limits to this."

The commentaries touch on several broader issues facing China’s legal system. In 2003, China abolished a form of administrative detention called "custody and repatriation" that police often used to detain and forcibly return beggars and migrants to their place of registered residence. Since then, many Chinese cities have witnessed an explosion of beggars, a trend that has sparked debates about how to balance the rights of beggars against those of city residents. The commentaries could be interpreted as an official statement that local governments should give weight to individual rights when they draft law and order regulations. They would also seem to have broader implications. If it is improper to "limit the personal freedom of a group [beggars] just because of their unique way of living, despite the fact that they don't harm anyone" a similar standard arguably should apply to unregistered religious practitioners or peaceful demonstrators. Some might also draw parallels to the recent Hong Kong Court of Appeal decision holding courts must give fundamental rights significant weight in assessing the reasonableness of police implementation of public obstruction laws.

The commentaries also raise issues about the efficiency of constitutional and legislative review in China. The commentary on Dalian notes that "there has not been an effective examination of such local regulations" and that "the only way to challenge such a local regulation is to have citizens or institutions apply to the NPC Standing Committee (NPCSC)." While it merely suggests that a citizen should raise the issue with the NPCSC and does not call for a different review mechanism, in the context of an ongoing discussion over the need for more robust constitutional review mechanisms in China, the commentary could lead some to question why provincial courts could not review such legislative conflicts more efficiently.

A recent article on a Ministry of Justice Web site indicated that Beijing would not establish anti-begging zones.