NPC Standing Committee Passes Public Security Administration Punishment Law

May 22, 2006

The National People's Congress Standing Committee (NPCSC) passed a new Public Security Administration Punishment Law on August 28, according to an article on the People's Daily Web site. "Public order" offenses are a category of violations that includes traffic offenses, public disturbances, prostitution, drug use, and other "minor crimes" that the Chinese government punishes with administrative penalties, including fines and administrative detention, rather than criminal sentences. Such administrative punishments are controversial because police issue them without effective judicial review or even the minimal procedural protections that the Criminal Procedure Law provides to criminal defendants. According to Xinhua, police handled over 5 million public order cases involving more than 10 million people in 2004.

The National People's Congress Standing Committee (NPCSC) passed a new Public Security Administration Punishment Law on August 28, according to an article on the People's Daily Web site. "Public order" offenses are a category of violations that includes traffic offenses, public disturbances, prostitution, drug use, and other "minor crimes" that the Chinese government punishes with administrative penalties, including fines and administrative detention, rather than criminal sentences. Such administrative punishments are controversial because police issue them without effective judicial review or even the minimal procedural protections that the Criminal Procedure Law provides to criminal defendants. According to Xinhua, police handled over 5 million public order cases involving more than 10 million people in 2004.

The NPCSC has been deliberating the legislation since October 2004, and it will take effect on March 1, 2006. The new law replaces the 1987 Regulations on Public Security Administration Punishment, and resolves a legal problem with those regulations: under Article 8(5) of the Legislation Law, punishments that involve deprivation of personal freedoms must be established by national law, not a "regulation."

Chinese news media stressed that, in deliberating the new law, NPCSC members placed great emphasis on balancing the maintenance of public order and the protection of human rights (for examples of such articles, click on the following: 1, 2, 3). The law says that the "implementation of public order administration punishments must be fair, just, respect and safeguard human rights, and protect the human dignity of citizens," establishes a limit of 20 days detention for multiple public order offenses (as opposed to the 30 days that the Public Security Ministry reportedly requested), and prohibits torture and the collection of evidence through illegal means. But the final version of the law also maintains the Public Security Bureaus as the agencies with the power to adjudicate cases and administer punishments. The law also sets a maximum interrogation period of 24 hours (rather than the 12 hours proposed in an earlier draft), and does not give the accused the right to a hearing in detention cases or the right to legal representation. Moreover, the law creates new categories of offenses including "inciting or plotting illegal assemblies, marches, or demonstrations."

According to the Legal Daily, NPCSC delegates argued for a maximum administrative detention period under the new law that is shorter than the minimum imprisonment period under the Criminal Law. Their reasoning was that public order offenses are not considered "crimes" that warrant trial and sentencing under the Criminal Law and the shortest period of imprisonment under China's Criminal Law is 30 days. Such arguments would seem to have implications for another controversial form of administrative detention--re-education through labor (RETL). RETL offenses are similar to public order offenses in that they are considered something less than a "crime" that warrants prosecution and punishment under the Criminal Law. The maximum period of detention under RETL, however, is three years, with the possibility of a one year extension.