Academics Criticise Proposed Public Security Administrative Punishments Law Revisions
As noted previously on this blog, in early Septmber 2023, the Standing Committee of the National People’s Congress solicited public comment on proposed revisions to the Public Security Administrative Punishments Law through September 30, 2023. One of the most drastic proposals was the addition of a new Article 34:
Anyone who commits any of the following acts shall be detained for not less than five days but not more than ten days, or fined not less than 1,000 yuan but not more than 3,000 yuan; if the circumstances are relatively serious, they shall be detained for not less than ten days but not more than fifteen days, and may also be fined not more than 5,000 yuan:
(1) Engaging in activities in public venues that damage the environment and atmosphere of commemorating heroes and martyrs;
(2) Wearing or adorning, or forcing others to wear or adorn, clothing or symbols in public venues that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation;
(3) Producing, spreading, advocating, or disseminating articles or remarks that are detrimental to the spirit of the Chinese nation or hurt the feelings of the Chinese nation;
(4) Blaspheming or repudiating the deeds and spirit of heroes and martyrs, advocating or beautifying aggressive wars and acts of aggression, disturbing the peace, and disrupting public order;
(5) Insulting, defaming, or otherwise infringing on the names, likenesses, reputation and honor of heroes and martyrs, harming the public interest of society;
(6) Occupying, destroying, or defacing memorial facilities for heroes and martyrs.
On September 6, several PRC academics published statements criticizing Article 34.
Tong Zhiwei (童之伟), Professor of Constitutional Law, East China University of Political Science and Law
It is recommended that paragraphs 2-3 of Article 34 of the "Public Security Management Punishment Law" (revised draft) not be reviewed for the time being. Who determines what is the "spirit of the Chinese nation" and what procedures are followed? Who determines what are the "feelings of the Chinese nation" and what procedures are followed to recognize and determine it? These are huge problems that are almost impossible to implement in accordance with the principles of the rule of law. If the National People's Congress Standing Committee adopts this article according to the current draft, the practical consequence of its enforcement and adjudication will inevitably be the arrest and conviction of people in accordance with the will of senior officers, which will lead to untold troubles. The law is something that regulates human behavior, and scientific legislation requires legislators to always avoid making regulations on matters of "spirit" and "feelings."
Lao Dongyan (劳东燕), Professor of Criminal Law, Tsinghua University
A few days ago, I saw the content stipulated in Article 34 of the "Public Security Management Punishments Law (Revised Draft)". To be honest, I couldn't believe it. Today I went to the National People's Congress website to check the content of the draft, and I found out that it was indeed true. The draft is currently in the stage of soliciting opinions, and comments can be submitted on the "Draft Law Soliciting Opinions" column of the People's Congress website (www.npc.gov.cn/flcaw/).
Regarding the provisions of Items 2-3 of Article 34, I hold an objection and suggest that they be deleted. The main reasons are:
First, "harming the spirit of the Chinese nation and hurting the feelings of the Chinese nation" is a concept with extremely vague connotations. Different people will have completely different understandings and grasps. If it is used as a legal penalty standard, the problem will be the penalty standard will inevitably be too vague, which can easily lead to arbitrary expansion of the scope of administrative penalties.
Second, due to the ambiguity of punishment standards, it will inevitably lead to selective enforcement of administrative power, which is prone to abuse of power, thus creating a new space for the breeding of corruption, and may intensify conflicts between the police and the public, bringing new risks to social stability.
Third, state power will directly interfere in area of daily clothing of individual citizens, which raises the obvious suspicion that there will be excessive intervention. National spirit and national feelings are matters at the cultural and spiritual level. The State can advocate them, but they should not be promoted through legal coercion.
Fourth, such legislative provisions may stimulate the wanton spread of populism or extreme nationalism, further deteriorate the public opinion environment in the public sphere, and unduly suppress the freedom of individuals to dress and speak in their daily lives. At the same time, it may also intensify antagonism with some countries, leading to diplomatic passivity.
Zhao Hong (赵宏), Professor at China University of Political Science and Law
An expansion of the scope of punishable offenses also means an expansion of the authority of the public security agencies. The law must establish corresponding restraint mechanisms for this expansion of authority, otherwise the crackdown on and suppression of emerging illegal activities is likely to breed unconstrained and uncontrolled powers.
The modern rule of law has never advocated a doctrine of creating felonies in the pursuit order and unity through heavy punishment. On the contrary, it is always vigilant against the expansion of state power. Expanding the scope of punishable offenses under the Public Security Administration Punishments Law, the most punitive departmental law in the administrative field, must be approached with caution. It is necessary to clearly delineate the areas that require the intervention of the State's power to punish, and to avoid blurring the boundaries between law and morality.
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The newly added Article 34 inevitably brings to mind the precedent of a girl in Suzhou last year who accused of disturbing the peace by wearing a kimono. In that case, the individual was reprimanded by the police for wearing a kimono and taking photos in a Japanese-style street in Suzhou. After the individual expressed doubts, the police took her to the police station for investigation on suspicion of disturbing the peace. In the end, the party involved was not punished, but after the case was exposed it still had a relatively adverse social impact. Many Internet users commented that if taking pictures in a kimono can be understood as something damaging to the national spirit that should be punished by the police, then eating Japanese food, watching anime, or even learning the Japanese language will most likely be considered to offend national sentiments. If public officials can expand the interpretation and application of laws at will based on their personal preferences and ideas and creeds, then we are not far away from the situation where "if the authorities want to punish someone, they can always find grounds to frame them."
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