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Green Solutions in China
Special> United Nations Climate Change Conference> Green Solutions in China
UPDATED: November 21, 2007 NO.48 NOV.29, 2007
Check on Power
Chinese legislators remain deadlocked over a bill aimed at protecting the public from abuses of administrative force

Most people are concerned that the government's coercive powers could further expand as a result of the law. In recent years there have been numerous cases of local governments using violence against citizens in the name of implementing the law.

Coercive measures

The draft law lists some administrative mandatory measures that can be used, including restrictions on personal freedom, sealing up or sequestrating property, freezing bank accounts and entering private residences by force, among other coercive measures.

According to legal practices in other countries, legislation on administrative coercive measures aims to fulfill two goals. Firstly, it is needed to confine the coercive powers of administrative organs so that the personal freedom and the property of citizens do not fall victim to random intrusion by the government. Secondly, it grants administrative organs certain coercive powers so that administrative efficiency can be raised and the administrative organs can play a better role in safeguarding public interests and order.

The emphasis in China's draft law is placed on preventing the abuse of power. For example, it is written in the principle of the law that without authorization under law no government body or organization can take coercive measures. The draft says that mandatory sanctions should not be used if non-mandatory measures, like persuasion, can achieve the desired goals. The use of coercive administrative measures should cause minimal damage to the interests of the party concerned.

Some lawmakers insisted on putting limitations on items that can be confiscated. Thus the second draft added provisions that the seizure of items not related to illegal acts is forbidden. The draft also says people should be compensated for any damage caused by an abuse of administrative power and punishment should be imposed on the direct supervisors and people responsible for the abuse.

To reduce often violent conflicts during land requisition cases between government staff and residents that refuse relocation arrangements, the second draft has added provisions that forbid government bodies from cutting water, power, heating and natural gas supplies as a means to force people to fulfill their administrative duty.

Controversial issues

Of all the mandatory measures, the most controversial are restricting personal freedom and intruding into private residences. The first draft of the law outlined strict rules regarding these measures including ratification from the head of the relevant government body, presentation of identification cards and informing the people concerned of the reasons for the action as well as how to apply for compensation in the event of an abuse of power.

During the second reading of the draft, some lawmakers said that stricter procedures should be adopted to curb the use of these coercive measures. In light of this, the second draft stated that limits to personal freedom should be abolished once their goal has been achieved.

The second draft also included stricter procedures for intrusion into private residences, stating that a warrant must be issued by a government body of county level or above. However, many people still think it is not strict enough. He Zhongtai, a representative to the NPC who participated in the second reading of the law, said, "As a harsh coercive measure, entering private residences must get permission of the court."

Another lawmaker, Li Dekuai, questioned why the draft law fails to detail procedures for imposing restrictions on personal freedom and intrusion into private residences.

"If the judicial organ needs to get into private residences to search for evidence, I cannot understand why the administrative organ needs to enter private residences. The current draft law fails to explain that," Li said. He believes as the harshest coercive measures, restricting personal freedom and intruding into private residences, should be regulated by independent clauses under law. Otherwise, the law seems incomplete, Li said.

Furthermore, divergences remain over what kind of laws and regulations can include coercive measures. According to Professor Yang the first draft only covered the powers of the NPC, while the second draft was expanded to include the State Council's regulations and regional regulations made by local people's congresses.

"This change was made after the legislature listened to the suggestions of legal experts and I am one of them," said Yang.

He explained that in a transitional society like China, various social conflicts occur. Under such circumstances, high levels of administrative efficiency are very important. To achieve this, he believes, administrative organs should be granted the power to promulgate coercive measures.

"The important thing we should do next is to improve the procedures, standards and monitoring systems for implementing coercive procedures," said Yang. He added that the second draft still fails to fulfill its role in this regard.

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