Friday, February 24, 2012

Part XVIII—Zhiwei Tong (童之伟) Series: Government’s restriction on fundamental rights of citizens must have legal basis

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.

      (Pix (c) Larry Catá Backer 2012)

Part XVIII—Zhiwei Tong (童之伟) Series: Government’s restriction on fundamental rights of citizens must have legal basis
Publication Date: Dec/02/2010

Government’s restriction on fundamental rights of citizens must have legal basis, otherwise such restriction would be illegal.

The “ban of motorcycles,” “ban of electrical scooters,” “restriction on motorcycles “and "restriction on electrical scooters” by local governments can severely violate the fundamental rights of citizens. As a matter of fact, since the 1980s, actions by some local governments to implement the “ban of motorcycles" or “ban of electrical scooters“ often set off waves of protests, the wave of protests on November 15 in Chenzhou City, Hunan province, perhaps, is the most recent one, the parties should learn from this incident. 
(Pix (c) Larry Catá Backer 2012)

1) Why is part of Chenzhou public against the “ban of motorcycles?”

According to media report, on November 15, the implementation of “restriction on motorcycles and regulated used of electrical scooters” by the government of Chenzhou city lead to mass incidents, thousands of ordinary residents appealed in front of the government building and ‘took walk’ on the streets. A notice issued by the Public Security Bureau of Chenzhou city said, these people used the chance of government intention to remediate the traffic order in downtown area “ to assemble in crowds to disturb social order, incite and plan unlawful assemblies and demonstrations, assault state and party organs, obstruct official affairs with violence, clog traffic, and damage or destroy public or private property intentionally, seriously affecting the social stability and normal working and living order of the city."

According to my investigation, the main reason for the occurrence of the incident set off by the “ban of motorcycle and regulated use of electrical scooters” are the following:

November 2, 2010, the General Office of Chenzhou City, on behalf of the Chenzhou Municipal People's Government, issued “the Notice on the Restriction of Motorcycle Traffic in Parts of the City "(referred to as “Notice” ). The strong discontent of part of Chenzhou public was mainly due to the following four aspects or issues of the “Notice”:

1) Since the date of publication of this notice, all two-wheeled and three-wheeled motorcycles with license plate code: “Xiang LG,” “Xiang LQ” and “Xiang LE,” non-local motorcycles and as well as electrical scooters and electrical bicycles prohibited by national regulations are banned from almost all roads of the entire urban area , the area under restriction will be expanded.

2) All motorcycles, electrical scooters and electrical bicycles are banned from commercial transportation activities. This regulation might have cut the way to make living for many urban residents and people form the suburbs, and no plan to absorb the unemployed people was provided by the local authority.

3) When the “Notice” was implemented, for the owners, the banned motorcycles and vehicles became nothing but scrap metal, but the government had no compensation initiatives, only harsh punishments were provided by the “Notice.”

4) The “Notice” went into effect on the day of publication, no transitory time was provided.

2) The unreasonable and illegal nature of Chenzhou’s motorcycle- banning notice

In this clash between the government and public caused by the motorcycle-banning “Notice” in Changzhou city, of course few ordinary citizen temporarily lost their reason and committed some illegal actions creating damages to public facilities and social order, but on the other hand, the real causes of the incident were Chenzhou local authorities’ disrespect or even arbitrary infringement of citizens' fundamental rights and the unreasonable and illegal nature of the motorcycle-banning “Notice”, they should bear the primary responsibility of the consequence of the incident.

1) The "Notice" was issued by the General Office of Chenzhou City which is not equal to the Chenzhou Municipal People's Government, the former is not the appropriate administrative body. From this point of view, the "Notice" is not an official document which is legally flawless. To say the least, even if the “Notice" was published by the Chenzhou Municipal People's Government, it would still not be a law in China's legal system, thus violating it can only be considered a violation of a regulation, not a violation of law, and thus the public sector should not characterized the disobeying behavior as a violation of law. Local governments have to administrate in accordance with law, they have to learn more knowledge about it, or local officials will be seen as “the envoy of the Emperor” or lawlessness persons in the perception of the public as a result of their documents.

2) There was an additional part not yet officially published but associated with the “Notice,” this part consistes of the current enforcement details of the ‘Notice’. These details are suspected to have had restricted citizens' personal rights illegally. “Chenzhou Daily” reported: “to implement the ‘Notice’: the city government decided ‘people driving without license or drunk driving will be held under administrative detention, all unlicensed vehicles or vehicles without a plate, vehicles with fake plate or license shall be detained, those who hinder state personnel from performing their duties will be held under administrative detention.’” Please note: this regulation that uses detention to punish is actually applied to the violators of the motorcycle-banning “Notice” issued by Chenzhou Municipal Government! The type of driving that would cause people to be held in administrative detention, in this regulation, is not the driving of car but the driving of motorcycles and electrical scooters! According to the provision of the “Legislation Law”, the restriction of personal freedom can only be regulated in the form of legislation by the NPC and its Standing Committee; no other organs have the right to develop such coercive rules. It is evident that the Chenzhou Municipal Government has executed the power that not even the State Council has.

3) In the implementation process of the “Notice” citizens’ legitimate property rights were violated. According to the Constitution and laws, all owners of motorcycles, electric scooters or electrical bicycles have independent right to use their vehicles, but the "Notices" has in practice banned the normal use of these vehicles under a so called “restriction.” In addition, “Chenzhou Daily” reported, “Chenzhou has also implemented a fine of 5000 Yuan for commercial transportation activities that violate the law,” and the so-called "law" here actually refers to the "Notice" as well. Formulation and implementation of these provisions by Chenzhou Municipal Government were well beyond the statutory power of an ordinary municipal government and they do not meet the Security Administration Punishment Law and the relevant provisions of national legal norms.

4) There are not provisions in the Chenzhou "Notice" to compensate for citizens’ property loss as a consequence of motorcycle ban; this behavior violates the legitimate expectation principle provided in the Administrative License Law. Article 8 of the administrative License Law provides: " The administrative license obtained by a citizen, a legal person or any of other organizations in accordance with the law shall be protected by law. The administrative organs shall not change an effective administrative license without permission Where any of the laws, regulations and rules that the administrative license is based on is amended or abolished, or the objective circumstances that the administrative license rests on change greatly, in order to meet the demand of public interests, the administrative organ may modify or withdraw the effective administrative license. The damages caused to the properties of citizens, legal person or other institutions accordingly shall be compensated for by the administrative organ in accordance with the law.” Regardless of the license plate of a vehicle, whether it has an urban or non-urban license, or vehicles permitted to be used without a license, all owners of these vehicles will suffer significant loss of property because of the motorcycle-banning “Notice”. The Municipal Government of Chenzhou should provide compensations according to Article 8 of the Administrative License Law, but there were no such compensations.

5) Citizens have the right to use their own vehicles to make a living, and this right should not be subject to extrajudicial restrictions. Local authorities through the Chenzhou Daily stated: "Our country does not have a single policy and regulations to support the use of motorcycle in commercial transportation, that is, the motorcycle transportation for commercial purpose itself is not legitimate". This incorrect statement is a violation of the rule of law and theory of jurisprudence. A basic principle of the socialist rule of law: citizens have the right to do anything not prohibited by law; government's actions must have a legal basis. People do not see the legal basis in the ban issued by the Chenzhou Municipal Governmental on motorcycles, electric scooters and related commercial transportation. Of course, Chenzhou may have modeled after other cities in doing so, but they should know that similar practices in other cities may not be legal as well. Having taken into account the sources of law and other aspects, even Shanghai, an international metropolis, has not banned motorcycles or scooters in its urban areas.

6) "Notice" covers a wide range of issues, it should be discussed and decided by the People's Congress of Chenzhou or its Standing Committee, but the local People's Congress and its Standing Committee have been left on the side. Our Constitution provides that local People's Congresses at all levels are responsible for their respective administrative areas to ensure compliance with and enforcement of the Constitution, laws and administrative regulations; local People's Congress Standing Committees are responsible for discussing and making decisions on all aspects of major issues in their respective area. The Chenzhou motorcycle-banning “Notice” affects the fate of 30,000 motorcycles and other vehicles, involving the disposal of citizens’ private property worth hundreds of millions and involving also restrictions of fundamental civil rights, why did the city government not submit the plan to the Municipal People's Congress or its Standing Committee for discussion and decision? These officials should know that only the Municipal People’s Congress or its Standing Committee can represent the “wishes of the overwhelming majority of the residents.”

7) Chenzhou‘s "Notice" went into effect on the very day of the publication, without the necessary transition period and there was not either effective way to solve related problems. Chenzhou officials said the local authority had been ideating the plan to “restrict motorcycles and regulate electrical scooters” for many years, but this cannot be a legitimate support, because the ideation of a plan is not the making of the decision of a plan, a plan covering such large range of issues, should have enough transitory time between the decision and implementation. I noticed that, city officials mentioned unemployed job training and subsistence allowances, but after all, training does not mean employment, subsistence allowances do not guarantee enough to feed their families, without mentioning a dignified life for the unemployed ones. The immediate implementation of The "Notice" on the day of its publication was obviously a little bit of a rush.
3) Conclusion

In today’s China, the over expansion and over-strengthening of the public authority has become a prevalent social disease. The extraordinary expansion of public authority is reducing more and more the space for the survival and application of citizens' fundamental rights. The main form of civil rights suppression by local government at this stage is to impose restrictions arbitrarily. Arbitrary restrictions of fundamental civil rights by local governments have become an important factor that undermines China's social stability and harmony, it is now time to take concrete actions to promote greater respect for the protection of fundamental civil rights and curb the abuse of public authorities.

1 comment:

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Sandro Heckler