Administrative Enforcement’s Uncertain Future

A judicial arena in China called administrative enforcement lets a basic government administrative agency function as a law writer, enforcer and judge.

Provincial health bureaus, city police forces and other agencies are allowed to target certain groups – and their properties – whose activities conflict with administrative goals.

A proposed law designed to more tightly control administrative enforcement practices has been on the central government’s legislative agenda for several years, and subjected to intense debate. But it remains in limbo.

Indeed, the draft proposal may never get past the pre-legislative agenda stage.

“As long as it is a law curbing public power, its introduction will be difficult,” a source serving on the National People’s Congress Law Committee told Caixin. “The controversy is nothing more than a question of how to balance administrative power and civil rights.”

But without a law that sets limits, administrative enforcement practices will continue to be managed through a system lacking unified procedural norms. Government agencies will continue to apply a wide variety of laws, regulations, rules and edicts as a basis for administrative enforcement tactics.

According a Zhejiang University research group, some 263 types of administrative enforcement activities were in play across the country between 1949 and 1999. Administrative agencies with enforcement powers were a dime a dozen.

Today, administrative bodies such as public security bureaus still exercise special power. For example, security and health officials can order people diagnosed with mental disorders to undergo treatment. Governments in communities including Beijing and Tianjin have ordered people deemed mentally ill to undergo treatment.

The document giving Beijing public security authorities power to force mental health treatment is called the Beijing Municipality Implementation Measures for Compulsory Treatment of Patients with Mental Disorders. It’s issued by six departments including the Beijing Public Security Bureau, health bureau and civil affairs bureau.

Strictly speaking, this is not a government rule. But it certainly ranks at the highest level of enforcement measures because it can restrict a person’s freedom.

Who Enforces?

Much of the controversy surrounding the proposed law centers on the jurisdiction of the State Council and local People’s Congress Standing Committees, which have authority to set legal enforcement standards.

The most recent version of the measure – the fourth draft – would limit the power of the State Council and standing committees of each regional People’s Congress. Each of these bodies could establish administrative enforcement measures.

But the draft would also open a loophole by giving each of the groups the ability to establish administrative regulations. It says  administrative regulations and local regulations must not establish their own administrative enforcement measures in areas not covered by existing laws, but does say that in special legal cases, administrative regulations could be used to adjust specific management measures, in addition to those restricting personal freedoms and freezing bank accounts.

Jiang Ming’an, a professor at Peking University, says this proposed exception to administration enforcement controls would be inappropriate. Administrative enforcement measures have a serious impact on balancing administration power and the people’s rights, he says, and few management measures require guaranteeing administrative enforcement measures.

Any adjustments to enforcement management, Jiang argues, should be legally authorized individually.

Zhang Chunsheng, president of the China Law Society Council, told Caixin better procedures are needed to normalize administrative enforcement powers and restrict enforcement power. This could be accomplished under the Administrative Enforcement Law, he says, because it spells out procedures.

The draft stipulates that administrative enforcement measures would be implemented within the limits of administrative agency functions and could not be entrusted to an unqualified third party. It also says administrative enforcement measures should be implemented only by qualified administrative law enforcement personnel.

Practical Management

One administrative enforcement measure now in place that lacks a legal basis is cheng guan, an administrative police force in charge of maintaining public order in cities by, for example, controlling street vendors. In practice, cheng guan officers most commonly restrict personal freedom and the property rights of their enforcement targets: They seize street vendors’ goods and equipment, even destroying their bicycles.

Such harsh enforcement steps have no legal basis and are often allowed without the restraint offered by administrative procedures. Meanwhile, targets of their enforcement steps often have no channel for recourse or appeal.

Another proposed law, the Administrative Coercion Law, could bring some order to cheng guan regulations, giving these officers the right to administer punishment as well as giving them certain rights to carry out administrative enforcement measures.

Chinese law says an administrative body can enforce a decision or ask a court to enforce it when one party fails to apply for reconsideration of administrative discipline or administrative litigation by the legal deadline. Jiang cites two problems with this system. First, administrative agencies enforcing their own administrative decisions without going through a third party departs from the basic principles of due process.

Second, Jiang said, when an administrative agency applies to a court for enforcement action, the court handles both adjudication and executive functions. Not separating these functions also violates due process principles, seriously undermining a court’s image and judicial authority.

In the legal community, Supreme Court Administrative Court President Judge Zhao Daguang told Caixin, the mainstream viewpoint is that administrative agencies should apply to a court and enforce rules after a court review whenever enforcement is required. A court should oversee the enforcement process.

Ma Huaide, a professor at China University of Political Science, said courts should serve as referees and review an action’s legality in terms of functional position and the effectiveness of executing enforcement action. Administrative agencies, meanwhile, should specifically implement the action.

But in these areas, the State Council disagrees with the legal community’s viewpoint. And that position by the cabinet of the Chinese central government has raised a huge question mark over the future of the proposed Administrative Enforcement Law.