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The Power of Restraint

Senior legal scholar argues that keeping power within a cage of regulations is crucial to strengthen regulatory systems and forestall graft

By Xu Tian Updated Apr.1

Ma Huaide

Ma Huaide has to squeeze time out of his administrative work for his research since he became president of the China University of Political Science and Law (CUPSL), one of the country’s top law schools, in May 2019.  

Ma’s office is in an old three-story building in downtown Beijing. His research is often interrupted by calls and visitors knocking on his door to complain about their difficulties.  

Over the past 30 years, Ma has not only devoted himself to researching administrative law, but he also participated in the drafting and revision of more than 100 laws and regulations. He has served as a legal adviser for many government agencies, advocating for restricting power within a cage of regulations.  

Love for the Law 
In the autumn of 1984, Ma enrolled in the Law School of Peking University after leaving his hometown of Xining, the provincial capital of western China’s Qinghai Province. He remembers one of his teachers saying that China was preparing to roll out a public servant system that would play a significant role in government administration.  

In the early 1980s, just after China had started its process of opening-up, reforms in many sectors were in full swing. Many of Ma’s fellow students sought to study corporate or criminal law, but he decided to focus on administrative law. He became China’s first PhD student focused on administrative procedure law.  

Back then, the first textbook on administrative law had just been published. Academia was still debating the concept and content of the subject. In 1986, the Standing Committee of the National People’s Congress, China’s top legislature, established a legislative group for administrative law made up of 14 leading scholars. Professor Luo Haocai from Peking University and Professor Ying Songnian from CUPSL were core members, and later became Ma’s supervisors.  

Their main task was to formulate a basic framework for what would become China’s first administrative law, so legislators would be able to reference it. Ying was Ma’s postgrad supervisor at the time, and Ma became secretary for the group.  

In April 1989, the second plenary of the Seventh National People’s Congress passed China’s Administrative Procedure Law. The administrative legal system was improved after it passed the National Compensation Law in 1994, Administrative Penalties Law in 1996, Administrative Review Law in 1999 and Administrative Permission Law in 2003.  

The implementation of the Administrative Procedure Law made it possible for the public and the government to stand as equals in court as litigants. The public would eventually be able to challenge certain actions of the government.  

Ma participated in drafting the administrative laws. He eventually committed himself to legislation for the National Compensation Law and wrote his dissertation on the subject.  

He argued for psychological damages for plaintiffs, especially in cases of wrongful conviction. Ma told the reporter that because of financial shortfalls and difficulties in assessing psychological damages, as well as the complexity of criminal charges, there was no provision in the 1994 National Compensation Law. After continuous appeals from Ma and other legal scholars, it was added to the first amendment of the law in 2000.  

In 2004, the Administrative Procedure Law was revised for the first time. Ma argued for a comprehensive overhaul of the law because it was difficult for the public to file or win a lawsuit against the government. Even if they did win, it was hard to ensure the law would be enforced according to the terms of the court judgment. Ma believes there are still articles in the law that urgently need revision, and that more bold steps should be taken. In his opinion, academic research is an important factor in impacting juridical practices.  

“Whenever there is a revision to any of the administrative laws, we see that government agencies are reluctant to have their power checked or restricted,” he told NewsChina in a recent interview. 

Outspoken Advisor 
After graduating from Peking University in 1988, Ma completed his master’s and PhD at CUPSL before becoming a teacher at the university. His high-quality research led him to a full professorship at 33. He became a frequent advisor at central government policy meetings, where he was outspoken, but not aggressive.  

“It’s unnecessary to pander to government agencies, but we should avoid an onslaught of criticism because it will just make matters worse,” he said. “The fundamental task is to solve the problem.”  

In recent years, building a government based on the rule of law has been the priority for Ma’s research. His team of researchers devised a system of assessment standards for political achievement, publishing a report on the performance of 53 localities that had legislative authorities in 2014.  

The highest possible score was 300, and the average mark the local governments scored was 188.87. Nearly half were below average. Ma’s team has continued to conduct academic assessments of governments based on the rule of law. More than 100 cities were added to the assessment system and 80 percent passed.  

Ma’s team has conducted more than 100 government-sponsored policy research projects and proposed many systems that have been adopted nationwide, such as for publicizing administrative law enforcement and documenting the entire law enforcement process.  

The central government recently proposed building China into a country based on the rule of law by 2035. “By that time, the public will be expected to respect, study, abide by and apply the law. Government power will be exercised within the cage of regulations. Social equality and justice will be fully implemented,” Ma said.  

Shortly after Ma became head of CUPSL, a student took the university to court over a scholarship dispute, and Ma was summonsed to appear. In an amendment to the Administrative Procedure Law, leaders of an institution being sued must appear in court to defend themselves. 

It is becoming more common for students to sue universities. Ma represented the plaintiff in the first case in China. In the 1990s, Tian Yong, a sophomore at the University of Science and Technology Beijing, sat an exam with notes that his teacher discovered. The university expelled the student, but Tian was neither notified directly nor did he receive any document to quit school. He continued his studies as usual and defended his thesis before graduation. The university refused to award him his diploma.  

Tian’s teacher approached Ma, already a well-known scholar in administrative law, for help. Ma represented Tian in court and won the case against the university.  

After becoming head of CUPSL, Ma had to deal with lawsuits from students, but many were trivial. Ma realized there should be an appropriate scope for litigation to avoid wasting judicial resources.  

Ma established a compliance platform for the university’s intranet where all teachers and students can talk about their problems. In October 2020, there were 28 complaints on the platform. Ma ordered that all complaints should be addressed and dealt with immediately. If there is no immediate resolution, a detailed explanation must be given.  

A teacher at CUPSL told our reporter that law students at the university tend to take everything seriously and that university regulations have to be improved constantly. “Shortcomings may result in disputes and even lawsuits,” he said.  

Ma told NewsChina that alongside the rapid development of social media, news can go viral, and the campaign to reduce administrative control has largely dented the authority of universities and teachers.  

This campaign aims to put more control over administering universities in the hands of professional educators, rather than skewing toward the Party chief or the university president. At top Chinese universities such as Peking University, the president has the administrative rank of a vice minister, so the reform aims to prioritize education over politics.  

While Ma tries to teach students the significance of protecting their legitimate rights through challenging the authority of universities, he believes that students should have a sense of loyalty for their schools. To date, CUPSL has won all the cases students have brought against the school.  

Nowadays, Ma is aware that some of the institutional designs he has proposed are perhaps too idealistic and even a bit bold. “Some problems are not as simple as they appear when you think about them from different perspectives,” he said.