The State Council's “debrising” clause was formally challenged: a proposal to file a review to push border control to the National People's Congress

An administrative statute of the State Council, which will be formally implemented in more than a month, is facing legal challenges from the citizen level.

State Council Decree No. 841 " Regulations of the State Council on the administration of entry and exit " will be in force as of 15 September

1. The new regulations establish what is called the “Standard for Protection against Security Risks for Chinese Citizens” and article 2 provides that Chinese citizens “shall be discouraged from travelling, if necessary, to areas of highest risk or to countries and regions where there are serious threats to their physical safety”.

A filing review proposal was made public on 8 August, which brought the word “discourage” back to the question of the boundaries of power from the administrative language. The proposed CJA, in accordance with article 110, paragraph 2, of the Legislative Act, requested the Standing Committee of the National People ' s Congress on the Rule of Law to conduct a constitutional review of the legality of this provision and to challenge the fact that the State Council had introduced new cases of non-refoulement through administrative regulations, citing such laws as the Administrative Mandatory Law of the Immigration and Entry Act.

The dispute first falls on the legal consequences of “construction” and “obstruction”. If the executive only provides security information and citizens decide to leave the country after being fully aware of the risks, does the State have to release them? If so-called “dissuasion” includes border interception, refusal to obtain documents or other actual obstruction, its effect is no longer to recommend, but to impose a restriction on freedom of exit.

The political signals that are worthy of attention in the new rules are not only here. The regulations further institutionalized the risk verification, the denial of exit, the filing of cases of entry and exit intermediaries and the violation of the foreign nationality of public officials and members of the armed forces, as well as the eligibility for permanent residence abroad. More crucially, the new regulations, while requiring in principle that information on facts, reasons, grounds and avenues of redress be given to persons who have been legally excluded from the country, may not be communicated in cases involving national security, criminal investigation, etc.

This means that the executive has the power to decide on the restriction of the exit, on the one hand, and the power to “do not inform the person concerned why” in a particular case, on the other. Such a system is particularly vigilant in terms of long-standing border control practices.

Over the past years, Chinese human rights lawyers, dissidents, religious figures, business personnel and their families have repeatedly disclosed at airports or ports that they were suddenly aware that they could not leave the country. It is often difficult for the parties to immediately know the authority, the time limit and the factual basis for the decision. National security, as a concept of high openness, makes it extremely difficult for administrative decisions to be subject to truly effective external scrutiny.

The significance of this filing review therefore goes beyond a travel security requirement. It has brought the core of the long-standing contradiction in China ' s export administration directly before the Standing Committee of the National People ' s Congress: in specific cases where citizens are already legally barred from leaving the country, could the State Council continue to expand its de facto right to limit, using administrative regulations and vague risk judgements?

The Standing Committee of the National People ' s Congress has established a system of filing and review, which is intended to deal with conflicts between regulations and rules and the law of precedence. Now, a citizen has knocked on the door in accordance with the procedure established by the system.

What's next is to be tested if the door is really open.

The question is ultimately very simple for Chinese citizens: whether a person who has not been sentenced by court and who has not even been informed of the reasons for the restriction can be left within the country because of an internal judgement of the executive.

This determines whether the departure is a civil right protected by law or whether the CCP administrative system can be tightened at any time.