Law professors attempt to push back expansion of police powers in key law revision
With controversial "hurt feelings" clause now dropped, administrative law experts are raising concerns about proportionality, procedural safeguards, human rights, and potential penalty abuse.
China's legal system distinguishes between criminal offenses, defined in the Criminal Law, and minor offenses, governed by the Public Security Administration Punishment Law (PAPS). PAPS penalties include warnings, fines, administrative detention of up to 20 days, and license revocation, for illegal conduct that does not amount to crimes in China.
China is in the process of substantially revising its Public Security Administration Punishment Law (PAPS). In 2023, the Standing Committee of the National People’s Congress (NPC), China’s top legislature, released the first draft of the revision for public comment, igniting an outcry among academics and the general public. The proposed changes include controversial provisions that could penalize individuals for wearing clothing or symbols in public that are deemed to "harm the spirit of the Chinese nation" or "hurt the feelings of the Chinese nation."
In one of the most controversial parts of planned revision in the first draft, individuals guilty of these offenses could face detention for 5 to 10 days and fines ranging from 1,000 to 3,000 RMB. In more severe cases, the detention period could be extended to 10 to 15 days, with fines reaching up to 5,000 RMB.
Critics of the first draft argue that the proposals, including the "hurt feelings" clause and the relaxation of the approval threshold for collecting biometric information, are overly ambiguous and harsh.
Following widespread criticism, Huang Haihua, spokesperson for the Legal Affairs Commission of the Standing Committee of the NPC, acknowledged on June 21, 2024, that terms such as "harm the spirit of the Chinese nation" and "hurt the feelings of the Chinese nation" are difficult to define and enforce. "After extensive consultation and consideration, more targeted and specific modifications are being proposed," he said, without disclosing details at the time but indicating the existence of a second draft of revisions.
Between June 25 and 28, 2024, the Standing Committee of the NPC held the second reading of the PAPS revisions. However, by June 27, the second draft of the revisions had still not been publicly released, prompting a group of scholars to give an interview with Jiemian News on June 27 and raise their concerns on the issue.
Beyond the ambiguous "hurt feelings" clause, they addressed several other issues in the draft amendment, including inadequate procedural safeguards, the absence of hearings for administrative detention, stringent criteria for the suspension of administrative detention, excessive penalties for minor offenses, and the potential for penalty abuse.
The second draft was published on June 28. The "hurt feelings" clause has been rephrased to: "Wearing or bearing clothing or symbols that promote or glorify wars or acts of invasion in public places, or forcing others to do so, causing a negative social impact." While the first draft delegated the right to collect biometric data and inspect venues to "the responsible party for the public security organ's case-handling department," the second draft now stipulates, "Where victims' information or samples are obtained or collected, their consent shall be obtained."
However, other concerns, such as the article allowing a single police officer to conduct mediation, questioning, seizures, or identifications, remain unchanged. A full-text comparison of the two draft amendments can be found on China Law Translate, created and maintained by Jeremy Daum at the Paul Tsai China Center, Yale Law School.
While the focus has now shifted to the second draft, the expert group interview published in Jiemian News on June 27 is still meaningful, where some of the top administrative law professors pushed back against what they perceive as an overreach of the law on minor offenses.
They are:
Shen Kui, Professor at Peking University Law School
Zhu Mang, Professor at Kaiyuan Law School at Shanghai Jiao Tong University
Song Hualin, Dean and Professor at Nankai University Law School
Zhao Hong, Professor at Peking University Law School
Du Yifang, Deputy Dean and Professor at Fudan University Law School
Bi Honghai, Associate Professor at Beihang University Law School
Below is their group interview with Jiemian News.
【专访】治安管理处罚法修订草案二审:重罚主义倾向仍值得警惕
Exclusive: The Second Reading of the Draft Amendments to the Law on Penalties for Administration of Public Security—Continued Caution Against Felonization
Jiemian News Reporter | Zhao Meng
Jiemian News Editor | Liu Haichuan
From June 25 to 28, 2024, the 10th meeting of the Standing Committee of the 14th National People's Congress (NPC) was held, and the draft amendment to the People's Republic of China's Law on Penalties for Administration of Public Security (PAPS) was submitted for a second reading. This is the first major revision in 17 years since its implementation. Previously, after the first reading, the revised draft was made public for comments. Article 34, which stipulates penalties for wearing or displaying clothing or symbols that "harm the spirit of the Chinese nation" or "hurt the feelings of the Chinese nation," attracted significant public attention and prompted numerous legal scholars to suggest changes.
As of September 18, 2023, nearly 100,000 people had submitted over 110,000 comments and suggestions for amendments. Since the draft passed by the second reading has not been released, it is unclear how many public opinions have been adopted by the legislative body. However, according to a spokesperson from the Legislative Affairs Commission of the NPC Standing Committee, Article 34, the most controversial proposal, will be replaced with more targeted and specific expressions.
Professor Shen Kui from Peking University Law School, who has been closely following the amendments to PAPS, told Jiemian News that the modification of Article 34 reflects the legislative body's active response to public concerns and is significant in terms of the democratic legislative process. However, he also emphasized that due to the prominence of the controversy surrounding Article 34, other contentious provisions in the draft might be overlooked.
Given that the draft amendment submitted for the second reading by the NPC Standing Committee has not been fully disclosed, Shen Kui and several administrative law experts recently discussed their concerns in an exclusive interview with Jiemian News. They referenced information disclosed by multiple media outlets and provided further amendment suggestions for legislators to consider during the second reading. They hope that this major revision of this "minor Criminal Law" will leave no regrets.
Modifications Worthy of Approval
Jiemian News: PAPS has entered the second reading process. What are your thoughts on the differences between the second draft and the first draft?
Expert Panel:
Since the second draft has not been made public, we can only deduce the changes from the introductions by the spokesperson of the Legislative Affairs Commission of the NPC Standing Committee and media reports. In fact, along with PAPS, public comments were also sought for the Company Law (On the third reading for the draft amendment) and the Value-Added Tax Law (Second reading of the draft). It is evident that the NPC has established a routine of seeking multiple rounds of public comments for significant and important legislation.
Based on the principles of legislative democracy and "whole-process democracy," major legislation that garners widespread public attention and receives numerous comments during the first round of public consultation, such as PAPS, should also have its second draft released for public comments after the second reading. This approach would better reflect democracy under centralized guidance. We hope the second reading draft will be made public for comments after the second reading.
From the limited information disclosed, the highly controversial [revision of] Article 34, which stipulates administrative penalties, including detention, for wearing or displaying clothing or symbols in public that "harm the spirit of the Chinese nation" or "hurt the feelings of the Chinese nation," is expected to be revised again. This highlights the legislative body's proactive response to public concerns and holds great significance for China's democratic legislative process. Administrative bodies of the Chinese government should learn from and emulate the practice of clarifying the adoption of important opinions through media and other forms of communication when formulating administrative regulations, administrative rules, and major normative documents.
Jiemian News: The second draft explicitly states that citizens have the right to take defensive measures against unlawful infringement. How do you evaluate these amendments?
Expert Panel:
It is essential to include the right of citizens to take legitimate defensive measures against unlawful infringement in the new PAPS. The Civil Code of the PRC clearly states that legitimate defense does not incur civil liability, and the Criminal Law specifies that legitimate defense does not incur criminal responsibility, while also outlining civil or criminal liability for excessive defense.
In terms of public security administration, citizens' legitimate defense against unlawful infringement should also be exempt from public security penalties. This helps distinguish right from wrong and maintains social justice. Currently, the PAPS lacks such provisions, leading public security authorities to sometimes fail to distinguish between the unlawful infringer and the legitimate defender, categorizing it as mutual assault instead. This practice is often dubbed by the Chinese people as "muddying the waters" or "beating both sides equally." It can easily lead to dissatisfaction among legitimate defenders, undermine social order, and fail to cultivate a sense of justice in society.
Comprehensive Reform of the Detention System is Needed
Jiemian News: We also noticed that when the revised draft after the first reading was released, some scholars pointed out that there had been no substantial progress in the protection of rights concerning administrative detention. Has there been any improvement in this aspect during the second reading?
Expert Panel:
We have consistently advocated for mandating a hearing be held before deciding on administrative detention. From a legal interpretation standpoint, since the 2021 amendment of the Administrative Punishments Law, it can be argued that a hearing procedure should apply to administrative detention cases. However, because the Administrative Punishments Law does not explicitly mandate this, disputes in interpretation and application during enforcement are inevitable. Therefore, it is essential to address this issue with the amendment of PAPS.
Article 63: Where administrative organs plan to make the following administrative punishment decisions, they shall notify the parties of their right to request a hearing, and where the parties do request a hearing, the administrative organs shall organize the hearing:
(1) fines of larger amounts;
(2) Confiscation of larger values of unlawful gains, or confiscation of high-value illegal assets;
(3) Reduction of qualification levels or cancellation of permits;
(4) Orders that operations be stopped, ordering closures, or restricting practice;
(5) Other heavier administrative punishments;
(6) Other situations as provided for by laws, regulations, or rules.
The parties are not to bear the costs of hearings organized by the administrative organs.
—Administrative Punishments Law of the PRC
On June 21, the spokesperson for the Legislative Affairs Commission of the NPC Standing Committee emphasized the need to expand the scope of hearings for public security penalties. Currently, PAPS lists four types of penalties: warnings, fines, administrative detention, and revocation of licenses issued by public security organs. The revised PAPS draft suggests that all these penalties, except for administrative detention, should be subject to hearings. This implies that administrative detention may likely be included in the scope of hearings in the second reading. However, a report by China News on June 25 did not mention anything about “hearings.” We advocate for the inclusion of administrative detention in the scope of hearings, as a restriction on personal freedom is the most severe administrative penalty. This inclusion would provide more opportunities for the involved parties to safeguard their rights in advance.
Additionally, the criteria for suspending administrative detention should be relaxed. Although PAPS allows the concerned party to apply for suspension, the conditions are stringent. The party must simultaneously meet the following conditions: 1) apply to the public security organ, 2) apply for reconsideration or file a lawsuit, 3) have the public security organ believe, after review of the application, that no social danger will result, and 4) provide a guarantor or pay a security deposit.
Since the public security organ has significant discretion in determining whether suspension will not pose a social danger, the provisions on suspension of administrative detention are almost "dormant" in practice. Often, the public security organ sends the party concerned to the detention center immediately after making the detention decision. Even if the party can later have the court declare the detention decision illegal, their rights have already been compromised.
Article 126 of the revised draft adds humane conditions such as "participating in a test for academic advancement, the birth of a child, or the death or illness of a relative" as permissible reasons for applying for suspension. However, significant discretion is still given to the public security organ regarding whether a suspension can be granted. This means that substantive improvement in protecting rights during administrative detention has not been achieved.
Thirdly, the criteria for imposing administrative detention should align with those for criminal penalties. Although administrative detention is a measure for public security administration, its nature is comparable to criminal penalties. Consequently, the requirements for imposing administrative detention should align with those for criminal penalties. Procedural safeguards must be equivalent to those in criminal proceedings, and legal counsel should be available to assist the detained party as early as possible. When incorporating administrative detention penalties in the revised draft, standards similar to those in the Criminal Law for the infringement of legal interest should be provided. This would establish a substantial judgment criterion for administrative violations necessitating detention, thereby preventing direct detention penalties for acts such as unauthorized examination of others' deliveries (Article 56), noise pollution in public life (Article 86), and entertainment venues failing to register information as required (Article 67).
Continued Caution Against Felonization
Jiemian News: Has the previous academic concern regarding a tendency towards felonization changed based on the currently available information about the amendments?
Expert Panel:
Since we cannot see the other amendments in the second draft, we are still concerned about the obvious tendency to intensify penalties and relax procedural requirements in the revised draft. Legislators need to consider whether heavy penalties can effectively achieve governance objectives and avoid falling into the pitfalls of "felonization" or "replacing governance with punishments."
Jiemian News: What are the signs of the tendency to relax procedural requirements in law enforcement?
Expert Panel:
For example, Articles 94(2), 100, 101, and 103 of the revised draft all significantly lower the approval requirements. Previously, mandatory summons, a search of persons and venues, and even the collection of biometric information such as portraits and fingerprints required documents issued by public security organs of the people's governments at or above the county level. This requirement has been downgraded to approval by "the responsible party for the public security organs' case-handling department."
Summoning, searches of persons and venues, and property seizures all involve significant personal and property rights. Therefore, these decision-making powers should not be easily delegated to the responsible party in the public security organs' case-handling department. This practice is also inconsistent with the general requirements of the Administrative Compulsion Law of the People's Republic of China.
Additionally, Article 106 of the revised draft stipulates that "Public security organs conducting mediation or conducting questioning, seizure, and identifications at law-enforcement case sites, may have a single officer do so." Article 120 states that "Where public security administration punishments are given on-site, a single people's police officer may make the decision."
After the amendment of the Administrative Punishments Law in 2021, two-person law enforcement has become a principle. The provisions in the revised draft do not comply with the principle that "there must not be fewer than two persons in enforcing the law, except as otherwise provided by law. (Article 42)" Given the high stakes in public security administration penalties, one-person law enforcement makes it difficult to ensure the efficiency of law enforcement with mutual supervision and assistance.
Jiemian News: We have also noticed that Article 100 of the revised draft, which allows public security organs to conduct personal searches on individuals who violate public security management regulations and even collect their biometric information, has caused considerable controversy. It appears that some adjustments will be made in the second draft. What are your views on this?
Expert Panel:
Article 100 of the revised draft has become a hot topic of discussion. According to the spokesperson for the Legislative Affairs Commission on June 21, this article is unlikely to be completely deleted but will be "further improved in accordance with the requirements of respecting and protecting human rights and standardizing and safeguarding law enforcement in terms of procedural regulations. This includes improving procedures for synchronous audio and video recording throughout the process and standardizing the procedures for extracting and collecting relevant information and samples."
However, in a report by China News on June 25, the article was revised to state that "three types of activities, including questioning and verifying individuals who violate public security management regulations, on-site searches of venues, and making decisions on public security penalties by a single police officer, should be fully audio and video recorded throughout the process, with legal responsibilities specified for editing, deleting, destroying, or losing the recording materials." Overall, it remains unclear how this article will ultimately be amended.
At present, this article violates both the provisions of the Personal Information Protection Law of the People's Republic of China and the constitutional principle of proportionality. Biometric information is sensitive personal information and can only be processed by personal information processors for specific purposes and with sufficient necessity, all under strict protection measures. The procedural safeguards stipulated in this article, which only require the approval of the responsible party for the public security organs' case-handling department, clearly do not meet the requirements for strict and maximum protection.
This article corresponds to Article 132 of the Criminal Procedure Law, but its interference with the personal rights of individuals who violate public security regulations is more severe than the measures targeted at criminal suspects under Article 132 of the Criminal Procedure Law, which is evidently disproportionate.
Article 132: Physical inspections may be performed to determine victims' or suspects' characteristics, physiological state or the circumstances of injury; fingerprints, blood and urine samples may be taken.
If suspects refuse the inspection, investigators may compel it when they feel it is necessary.
Physical inspections of women shall be performed by female personnel or doctors.
—Criminal Procedure Law of the PRC
Furthermore, without distinguishing the type and necessity of cases, broadly authorizing public security organs to collect biometric information from individuals involved can breed various illegal acts such as information leakage and abuse.
We would like to suggest that since the matters discussed in this article pertain to the basic rights of citizens, relevant authorities must exercise utmost caution in its formulation.
Firstly, procedural requirements should be reinforced. Approval should come not only from the responsible party for the public security organs' case-handling department but also, when necessary, through a court-issued warrant.
Secondly, regarding the scope of application, it is essential to differentiate between serious and general violations of public security regulations, and the approval procedures should differ accordingly.
Thirdly, there should be a clear distinction between the offender and the victim. Consent from the victim must be obtained before conducting a personal search or collecting biometric information.
Lastly, if the amendment of this article faces too many issues, more detailed legislation outside PAPS, such as administrative regulations, should be provided. In such cases, the amendment should include important principle-based provisions and authorize the State Council to formulate specific measures through administrative regulations.
Jiemian News: Some previously highly concerning provisions, such as Article 59 of the revised draft, which states that "insulting or verbally abusing" police officers constitutes an obstruction of police duties, appear to have remained unchanged.
Expert Panel:
Obstructing police officers from performing their duties according to the law should be treated as an aggravating circumstance, which is also reflected in the Criminal Law. However, as an "aggravating circumstance," this implies that "obstructing a police officer's performance of duties," like other acts of obstructing official duties, should involve active interference that results in the inability to perform official duties smoothly to warrant penalties. The revised draft's inclusion of "insulting or verbally abusing" as obstructive behavior potentially broadens the scope of penalties.
The possible outcome of this provision is that individuals may face administrative detention simply for expressing strong dissatisfaction or verbal criticism on the spot, even if they do not actively obstruct or impede the performance of official duties. Additionally, classifying insulting and verbally abusing public officials as punishable acts or even detainable offenses not only potentially differentiates police officers from other public officials but also infringes upon the constitutional right of citizens to criticize, suggest, report, and accuse state organs and their staff of illegal acts and misconduct. In practice, if a police officer's personal feelings are the point of departure, intense criticism or even harmless banter could be perceived as "insulting and verbally abusing."
Issues Urgently Needing Amendments
Jiemian News: What are your expectations for the future implementation of the revised PAPS?
Expert Panel:
The revised draft fails to address many issues that urgently need amendment in practice. Firstly, it lacks provisions for inchoate offenses. The Criminal Law of the People's Republic of China includes regulations on attempted, consummated, aborted crimes, and criminal preparations. However, PAPS does not include provisions for inchoate offenses. As a result, preparatory behaviors such as planning to engage in prostitution or merely negotiating prices are penalized as illegal acts.
Behaviors violating PAPS are inherently less severe than those warranting criminal penalties, and the social harm of preparatory, aborted, or attempted acts is correspondingly lower and should not be penalized. Penalizing inchoate offenses and consummated offenses equally violates the principle of proportionality stated in Article 6 of the revised draft.
The revised draft lacks provisions on whether penalties for administration of public security are based on intent or negligence, resulting in all negligent violations being subject to penalties. Given the inherently similar nature of criminal penalties and those for public security administration, it is essential to stipulate that penalties for administration of public security should be based on intent. Criminal negligence should bear criminal responsibility only as explicitly provided by law to prevent abuse from an overly broad scope of punishments.
Finally, general provisions on the sealing and elimination of violation records should be added. The revised draft includes a provision sealing the criminal records of minors, stating that "records of violations of public security administration by persons' who were not yet 18 years-old at the time of the violation shall be sealed, and must not be provided to any units or individuals." This is evidently valuable for protecting the rights of minors.
However, this provision is limited in scope, and merely sealing the records is insufficient for providing adequate protection of personal dignity. Since public security administration deals with a wide range of behaviors related to politics, economics, and social management, individuals can be stigmatized for life due to a single public security violation, regardless of its nature or severity. Without appropriate systems for sealing and eliminating violation records, many individuals face lifelong employment discrimination and social bias, which can even affect their family members. In the digital age, the impact of unsealed and uneliminated violation records is even greater. Therefore, the legislation should include principles for when violation records should be sealed and eliminated, and authorize the Ministry of Public Security to make more detailed provisions, thereby reflecting full respect and protection for personal dignity.
Jiemian News: This revision has garnered significant attention. What are your evaluations and expectations regarding this legislative process?
Expert Panel:
PAPS significantly impacts the daily lives of ordinary people and involves the coordination and integration of multiple laws. We have provided our understanding and suggestions on the revised draft published after the first review from an administrative law perspective, which may not be comprehensive or entirely accurate. Experts in constitutional law, criminal law, civil law, and procedural law have also shared their opinions and suggestions. Additionally, experts from outside the legal field have raised questions, and individuals have expressed concerns. Therefore, we eagerly anticipate that the second and third drafts will also solicit public comments on more detailed revisions. This will further encourage continuous participation from experts, scholars, and the general public in significant legislative processes, thereby practicing whole-process people's democracy.
Again, a full-text comparison of the two draft amendments can be found on China Law Translate, created and maintained by Jeremy Daum at the Paul Tsai China Center, Yale Law School.