China is seeking to create a legal basis for police to collect biological information in cases involving minor offences, which would vastly expand a controversial practice currently used only in investigations related to terrorism, drugs and other serious crimes.
The proposed amendment to the Public Security Administration Punishments Law has raised concerns about potential abuse of power by police.
China’s Public Security Administration Punishments Law governs the handling of minor offences that do not constitute crimes.
It covers offences such as spreading rumours, disturbing the public order at train stations and airports and writing letters that threaten the personal safety of another person. Under the law, police can hand out penalties, including administrative detention, and the offences are not handled through the court system.
The draft amendment has been submitted to China’s top legislature and is open for public comment until the end of this month.
The proposed Article 100 adds a clause that allows police to collect biological information and samples – including photos, fingerprints, blood and urine – from “violators of public security administration” for the purpose of determining their “certain characteristics” or “physiological condition”.
It also states that police may compel the collection of this data if they consider the measures necessary, even if the person refuses to give consent, upon gaining approval from the “responsible party” within the public security apparatus.
Yang Xuelin, a veteran criminal lawyer based in Beijing, noted that the provision “significantly expands the power” of the police.
Earlier this year, the Ministry of Public Security rolled out its three-year plan to send more officers to carry out “grass-roots policing” across China, deploying them to police stations, residential communities and rural villages. Observers say the move is intended to strengthen surveillance and control amid protests at the local level.
Yang added that the vague language used in the draft amendment, which does not define “the responsible party” who can grant approval, leaves room for discretion to bypass procedural requirements and “prioritise effectiveness over fairness”.
Suzanne Scoggins, assistant professor of political science at Clark University in Massachusetts, said it was important to view the proposed changes as part of a decades-long push to codify police practices that were already in place.
“That said, changes to the law don’t necessarily change practices on the ground. In areas where police had the capacity and training to collect biological samples, they were likely already engaged in the practice,” said Scoggins, who researches China’s policing system.
“The proposed change will simply provide an official layer of legal protection.”
“In areas where police lack either the capacity or training to collect biological samples, the changes to the law are less likely to make a difference for practices on the ground. This means we should pay closest attention to first-hand reports or other data on changes to practices.”
Article 100 is not the only provision in the proposed amendment that has raised the eyebrows of legal experts and the public.
Another proposed change allowing the detention of people who wear clothing deemed “harmful to the spirit or feelings of the Chinese nation” triggered a backlash and prompted concerns that it could increase tensions between police and the public.
Legal experts noted that police in China have been given expanded power in recent years, and the latest draft amendments generally relax constraints and procedural requirements for law enforcement.
Shen Kui, a law professor specialising in constitutional and administrative law at Peking University, cautioned that such measures had serious implications for personal rights, dignity and privacy and should be subject to strict procedures.
Shen wrote in an article published on WeChat on September 9 that a special application should be required to collect biological information or samples, and a court could grant approval if it determined that the measures were necessary.
He wrote that it was inappropriate to give public security organs “the sole authority to decide whether or not to take such measures in a uniform manner”.
The country’s Criminal Procedure Law, which regulates criminal investigations and the rights of suspects, only allows the collection of biological samples from suspects and victims in cases dealing with offences that are considered crimes.
Meanwhile, the country’s regulations on the handling of administrative cases by public security agencies state that biological information may be collected from criminal suspects in accordance with specific laws and regulations, such as the country’s road traffic safety law, anti-drug law and anti-terrorism law.
The anti-terrorism law stipulates that a public security agency investigating suspected terrorist activity may collect biological information and samples, including the suspect’s photos, fingerprints, blood and urine.
Article 100 is similar to another draft amendment to the country’s Police Law, which was released in late 2016 for feedback but has yet to be passed. The proposed change to the Police Law also only applies to criminal suspects.
Lao Dongyan, a professor of criminal law at Tsinghua University, wrote on social media platform Weibo that the proposed Article 100 “goes beyond what is necessary for administrative enforcement and unduly restricts the legitimate rights and interests of citizens”.
“While it is understandable that such a measure is targeted at criminals, it is clearly excessive and pervades the thinking of ‘presumption of guilt’ when it is targeted at ordinary citizens,” she wrote.