State of emergency law to set basic rights
By Meng Yan (China Daily)
Updated: 2004-04-05 07:46

New state of emergency legislation should carefully balance government power and individual rights, legal experts say.

The word "emergency" usually refers to an unforeseen combination of circumstances or the resulting state that calls for immediate action to maintain public order and ensure the safety of people's lives and property.

However, extraordinary measures usually involve varying restrictions on citizens' rights and freedoms.

The fourth amendment to the country's 1982 Constitution, passed last month, replaces the term "martial law" with "states of emergency," paving the way for new legislation on this issue.

The Constitution says the Standing Committee of the National People's Congress (NPC), the country's top legislative body, has the power to declare a state of emergency throughout the country or in particular provinces, autonomous regions, or municipalities directly under the auspice of the central government.

After that decision is made, the President of the People's Republic of China is entitled to proclaim the state of emergency, according to the Constitution.

The Constitution also stipulates that the State Council has the power to proclaim a state of emergency in parts of provinces, autonomous regions and municipalities directly under the administration of the central government in accordance with the provisions of law.

"Legislation on the state of emergency is vital because survival and security are the primary need and top interests for a country, society and individuals," said Yu An, a professor of administrative law with the School of Public Policy and Management of Tsinghua University.

Yang Haikun, a law professor from Suzhou University, said the legislation would serve as the last resort to safeguard national interests and protect human rights under emergencies.

Liu Hainian, a professor of law with the Chinese Academy of Social Sciences, said development should be taken into consideration when writing such a law.

He said hearings should be held before the country proclaims a state of emergency to avoid unnecessary losses and inappropriate restrictions on individuals' rights.

The Legislative Affairs Office under the State Council has delegated the task of drafting the bill to a group of professors in Tsinghua University. Yu is one of the leading scholars in this group.

Yu and his colleagues have come up with a draft of the law and started to solicit public opinion before handing it in to the Legislative Affairs Office of the State Council for further review this month.

Yu said the proposal will set an upper limit for State power and basic citizens' rights at the same time, forcing the government to take rational and restricted measures during emergencies.

A seminar on how to improve the draft proposal was held over the weekend in Tsinghua University.

If approved by the State Council, the draft bill will go to the Standing Committee of the 10th NPC for a preliminary review in December, according to the committee's legislative agenda this year.

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