MPS Revises Internal Procedures To Conform With Public Security Administration Law

November 3, 2006

The Ministry of Public Security (MPS) has issued new Provisions on the Procedures for Handling Administrative Cases (2006 Provisions) to conform with and further clarify provisions under the Public Security Administration Punishment Law (PSAPL), according to a September 12 Q&A (in Chinese) posted on the MPS Web site. The 2006 Provisions went into effect on August 24, 2006, and replace earlier Provisions that were issued in 2003. The 2006 Provisions establish more detailed procedural rules for handling "administrative cases," which include cases punishable either through administrative sanctions such as warnings or fines, or through administrative detention measures such as forced drug detoxification, custody and education, or reeducation through labor (RTL).

The Ministry of Public Security (MPS) has issued new Provisions on the Procedures for Handling Administrative Cases (2006 Provisions) to conform with and further clarify provisions under the Public Security Administration Punishment Law (PSAPL), according to a September 12 Q&A (in Chinese) posted on the MPS Web site. The 2006 Provisions went into effect on August 24, 2006, and replace earlier Provisions that were issued in 2003. The 2006 Provisions establish more detailed procedural rules for handling "administrative cases," which include cases punishable either through administrative sanctions such as warnings or fines, or through administrative detention measures such as forced drug detoxification, custody and education, or reeducation through labor (RTL).

A September 4 MPS report (in Chinese) stated that law enforcement's strict adherence to the 2006 Provisions will help guard against the abuse of power and safeguard the rights of citizens and other legal entities. According to the Q&A, the 2006 Provisions now echo provisions under the PSAPL that require notification of family members when an individual has been summoned for questioning by public security officials, and impose stricter time limits on the period for questioning. When the National People's Congress Standing Committee (NPCSC) passed the PSAPL in 2005, domestic news media reported that NPCSC members had placed great emphasis on balancing the maintenance of public security and the protection of human rights. The Q&A notes that, in addition to improving the quality of law enforcement, the 2006 Provisions were also passed to establish stricter procedural rules that would require law enforcement agencies to abide by the law when carrying out their functions.

Both the PSAPL and the 2006 Provisions, however, leave the power to adjudicate cases and administer punishment in the hands of public security agencies, despite adding procedural safeguards that increase the transparency of law enforcement actions and place a potential check on abuses of power. Public security agencies continue to investigate, adjudicate, and review complaints regarding administrative cases. In cases involving administrative detention, this system contravenes international human rights standards designed to protect individuals from arbitrary detention. Under Article 9(4) of the International Covenant on Civil and Political Rights, "[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

Administrative detention measures continue to be controversial in China because public security agencies can impose them without effective judicial review or the minimum procedural protections that the Criminal Procedure Law provides to criminal defendants. After its September 2004 visit to China, the UN Working Group on Arbitrary Detention (UNWGAD) issued a report (available on the UNWGAD's Country Visits Web page) that noted: "The fact that the legal system of China classifies [punishment such as reeducation through labor] as an administrative deprivation of liberty as opposed to judicial deprivation of liberty governed by criminal law, does not affect China's obligation to ensure judicial control over this form of deprivation of liberty."

The 2006 Provisions on the Procedures for Handling Administrative Cases replace the 2003 Provisions and make the following changes to public security case-handling procedures:

  • Interrogation. Articles 43-44 of the 2006 Provisions expand Articles 45-46 of the 2003 Provisions by requiring that (a) a public security agency at the county level or higher must approve interrogation of an individual at a location other than his home or workplace, (b) police officers must identify themselves before exercising their authority to bring an individual in for interrogation, and (c) police officers must make a written record of the interrogation and include information about the process and length of time. Article 45 of the 2006 Provisions did not exist under the 2003 Provisions, and imposes a new requirement that public security agencies must notify an individual's family when they bring him in for questioning. Article 47 of the 2006 Provisions reduces the previous 12-hour limit on the interrogation period to 8 hours.
  • Inspection of the Premises. Under Article 61 of the 2006 Provisions, police officers must present an inspection warrant from a public security agency at the county level or higher, in order to conduct ordinary searches of an individual's home. Article 67 of the 2003 Provisions does not include such a requirement, and says only that police officers must identify themselves when conducting a search of the premises.
  • Expert Evidence. Under Article 72 of the 2006 Provisions, both suspects and victims have the right to contest expert evaluations submitted in a case and may, within three days of notification of the expert's opinion, apply for reevaluation. Article 72 states, "Whether or not a party to the case applies for reevaluation does not impact the normal handling of the case." Under Article 73, public security agencies are required to fund reevaluation by an expert where (a) the original expert opinion is insufficiently supported, (b) the original expert has intentionally issued a false evaluation, or (c) the original expert should have recused himself due to a conflict of interest, but does not. These procedural safeguards are not included in the 2003 Provisions.
  • Aggravating Circumstances. Under Article 137(5) of the 2006 Provisions, a public security agency will increase the penalty where wrongdoing has occurred within six months of the completion of a criminal sentence or reeducation through labor (RTL) term, or during the suspension of a criminal sentence. Under Article 129(5) of the 2003 Provisions, penalties could be increased only when an individual had been punished twice or more for the same type of action during a one-year period.
  • Time Limits on the Handling of Public Security Administration Cases. Under Article 141 of the 2006 Provisions, in cases involving public security offenses, a public security agency must complete its investigation within 30 days of taking on the case. This period may be extended by an additional 30 days in major, complex cases, but only upon approval by a public security agency at the next higher level. These time limits are not included in the 2003 Provisions.
  • Public Security Decisions. Article 147 of the 2006 Provisions revises the list of options available to public security agencies to (a) include RTL as a potential punishment, where appropriate, and (b) allow for simultaneous handling of a case through both administrative and criminal channels, without requiring that the administrative case be withdrawn if the actions also constitute a crime. Under Article 150 of the 2006 Provisions, a public security agency must notify an individual's family when it decides to punish him with administrative detention. These guidelines are not included in the 2003 Provisions.

For additional information about the PSAPL, see earlier CECC analyses on the passage of the law and its impact in at least one municipality. See also information on "Arbitrary Detention in the Formal Criminal Process" and "Administrative Detention," in Section V(b) of the CECC's 2006 Annual Report.