NPC Observer Monthly: May 2023
NPCSC's 2023 work plans. Last NPC's legislative timetables and a three-month-old military law development. Plus: "recording and review" on the 20th anniversary of the Sun Zhigang Incident.
Welcome to the first installment of NPC Observer Monthly, a monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC). Thank you for being one of our very first subscribers!
Each issue will start with “News of the Month,” a recap of major NPC-related events from the previous month, with links to any coverage we have published on our main site, NPC Observer. If, during that month, we have also written posts that aren’t tied to current events, I’ll then provide a round-up in “Non-News of the Month.” Finally, I may end an issue, as I did today’s, with some not-necessarily-polished musings on a NPC-related topic that is in some way connected to the past month.
This newsletter is very much a work in progress. If you have feedback on how we can improve this new service, or if there’s anything you’d like us to discuss in future issues, please don’t hesitate to reach out. And if you enjoyed this issue, I hope you’ll consider sharing it. —Changhao
News of the Month
On May 1, the revised Wild Animals Protection Law [野生动物保护法] (adopted on Dec. 30, 2022) took effect. This bill was put on the NPCSC’s legislative agenda soon after the initial COVID-19 outbreak as part of a coordinated effort to strengthen China’s public health legislation.
On May 25, the NPCSC concluded a month-long public consultation on a second draft of the Barrier-Free Environments Development Law [无障碍环境建设法]. This bill will likely pass in the next several months, and we’ll have more coverage then.
Oversight work: The NPCSC’s “oversight work” [监督工作] consists of both policy oversight (to monitor the general direction of administrative and judicial policymaking) and compliance oversight (to ensure implementation of binding legal obligations). The full NPCSC conducts oversight primarily by hearing and examining reports—what an annual oversight plan is mostly concerned with. It lists all the reports the NPCSC will hear throughout the year as well as the information each report must include. We plan to publish an explainer sorting the NPCSC’s various oversight reports in June.
Delegates work: The NPCSC’s “delegates work” [代表工作] refers to a range of activities aimed at facilitating—and, to a lesser extent, supervising—NPC delegates’ discharge of their duties. To quote from a prior post, “delegates work” has the following core components:
helping the delegates prepare for the annual NPC session (e.g., organizing discussion sessions on any legislation slated for review) and providing services during the session (e.g., collecting the delegates’ opinions on the NPCSC’s work report in various means);
keeping the delegates in direct and frequent contact with members of the NPCSC (including its leadership), NPC special committees, and the NPCSC’s subordinate bodies so that they can provide input on the relevant issues or tasks;
engaging the delegates in the NPCSC’s and special committees’ work, including various stages of lawmaking, law enforcement inspections, as well as economic and fiscal oversight;
helping the delegates stay in touch with their constituencies, such as by organizing research projects and group inspection tours and by building local outreach and liaison offices;
properly handling the delegates’ bills and suggestions so that, for instance, the relevant governmental bodies carefully consider their proposals and address the issues raised, and provide them with status updates;
helping improve the delegates’ capacity to engage in representative activities by offering various forms of on-the-job training; and
providing a variety of other administrative and logistical support, such as publicizing the delegates’ activities.
[It] schedules 35 projects for review in 2023: 17 that have been carried over from the 13th NPC and 18 that would be reviewed for the first time. The main themes of this year’s legislation include government institutional reforms, economic reforms, social welfare, environment and resources, education and ideology, foreign relations, as well as national and domestic security.
Sometime in May (and not March 28 as the NPC website says), the NPCSC Legislative Affairs Commission—an important institution we have profiled here—made public the working rules for its “grassroots legislative outreach offices” [基层立法联系点]—or, more literally, “basic-level legislative points of contract.” The primary function of those offices is to channel the views and concerns of local communities on legislative matters to the national legislature. Given the offices’ role in facilitating the people’s direct participation in national governance, it was no coincidence that Xi Jinping first described China’s governance system as “whole-process democracy” at an outreach office in Shanghai in 2019. We’ll take a closer look at those rules in the coming weeks.
Non-News of the Month
In May, we also published two pieces unrelated to any current event of the month.
Legislative timetables. In the first piece, we analyzed the legislative timetables of all 110 bills passed by the last (13th) NPC with the goal of answering the question “how long does it take the (last) NPC to pass a bill?”—as well as subsidiary questions like “when is [insert bill of your choice] up for its next reading?” and “how many reviews will the bill go through?”
We of course recommend that you read our full analysis, but here are the key takeaways from:
Assume a bill will not undergo more than three reviews unless it has thousands of articles.
Assume a new law or revision will undergo three reviews.
But if a new law has fewer than 30 articles, it will likely pass after just two.
Absent “emergency situations,” a new law or revision not styled as a “decision” will be reviewed at least twice.
Assume packaged amendments will be reviewed only once.
For any other amendment, assume it will be reviewed three times by default, but twice if it has fewer than 20 articles, and only once if it appears to have fewer than 10 articles.
For a thrice-reviewed bill, expect legislative review to take 6–14 months.
Expect the second review to occur 4–8 months after the first one, but not sooner.
Expect the third and final review to occur no later than 4 months after the second one.
For a twice-reviewed bill, expect legislative review to take 2–8 months.
“Wartime” court-martial rules. In the second piece, we wrote about a three-month-old development in China’s military law and criminal procedure: a February NPCSC decision authorizing the Central Military Commission (CMC) to change “wartime” court-martial rules. Relying in part on newly released legislative records, we discussed the timing of the authorization, the definition of “wartime,” the extent of military jurisdiction over civilians, and likely changes to military criminal procedure in wartime.
Sun Zhigang Incident at 20
This past month marked the 20th anniversary of a key event in the “Sun Zhigang Incident” [孙志刚事件]—“a milestone in the development of rights defense in China.” Accounts and analyses of the Incident abound. For a recent example, see Prof. Chloé Froissart’s chapter in the 2021 open-access book, Proletarian China: A Century of Chinese Labour.
Here’s a brief summary for those unfamiliar with the tragic events twenty years ago: In early 2003, the 27-year-old Sun Zhigang, a Hubei native, arrived in Guangzhou to start a new job. One night in mid-March, he was stopped by police while out taking a stroll. Unable to produce a temporary residence permit (because he hadn’t had time to apply for one), he was detained and eventually transferred to a “custody and repatriation” (C&R) [收容遣送] center as he was (wrongly) deemed an illegal migrant, under regulations promulgated by the State Council. Three days later, on March 20, he died in a medical clinic affiliated with the C&R center, allegedly due to a heart attack. But an autopsy demanded by his father later revealed that Sun had suffered severe beatings while in custody. On April 25, the Southern Metropolis published an in-depth report on Sun’s detention and death, sparking a national outcry against official cover-up and abuses within the C&R system.
On May 14, 2003, three Chinese legal scholars—Teng Biao, Xu Zhiyong, and Yu Jiang—petitioned the NPCSC to review the legality and constitutionality of the State Council’s C&R regulations. They had hoped to activate the “recording and review” (R&R) [备案审查] process under the landmark 2000 Legislation Law [立法法] and to create a precedent for NPCSC review.
In short, R&R is a process whereby various state organs, including the State Council and local legislatures, record their legislation with the NPCSC, which may then review it for conflicts with the Constitution and national law or policy. In practice, such review is carried out by the NPCSC Legislative Affairs Commission (LAC). (For further reading, here’s a longer though still high-level introduction to the process, here’s a more technical one, and this page collects all my writings on R&R as well as key primary materials.)
Much to the scholars’ dismay, the NPCSC didn’t publicly address their request beyond acknowledging its receipt. A month later, the State Council repealed its C&R regulations seemingly on its own initiative, though the move was speculated to be the result of behind-the-scenes consultations between the two institutions. Thus, for a time, the R&R process was justifiably criticized for being opaque and ineffective.
Twenty years later, how’s the process working now? In fall 2021, I reviewed the R&R reforms that had been implemented under Xi Jinping in a piece for the Made in China Journal. My main observations can be summarized as follows:
The Communist Party has provided consistent policy support for strengthening R&R since 2013, likely because it helps central authorities monitor local compliance with national law and policy and identify legislative conflicts that generate public anger.
With the Party’s backing, the LAC has made the review and rectification process more rigorous and become more assertive in deciding hard cases.
The LAC has also grown increasingly willing to engage with the constitutional issues that arise in R&R, with a major breakthrough in 2020, when the LAC explicitly identified several petitions as raising constitutional issues and addressed them head-on.
Since 2017, the R&R process has become a lot more transparent, with annual public reports on key statistics and outcomes of selected cases (among other information), the release of a key governing legal authority, and feedback to individual citizens who have requested review.
There has been a sea change in public use of the process: the volume of citizen requests skyrocketed after the launch of an online platform for submitting requests in 2019, and both legal professionals and lay people now use the process to advocate for legal changes.
Almost two years later, those points for the most part still stand today, at least when the status quo ante in 2003 is used as the baseline for comparison. Here are some updates:
The Party’s support for R&R reforms shows no sign of waning. R&R continues to appear in the highest-profile political documents. The 20th Party Congress report, for instance, vows to further “improve and strengthen” the process. Soon thereafter, in his article commemorating the 40th anniversary of the PRC Constitution last December, Xi Jinping again called for “increasing the capacity and quality of constitutional review and R&R.”
Central authorities keep making use of R&R to police local legislation. In the past two years, the LAC initiated additional “targeted reviews” and legislation “clean-up” campaigns to ensure that local legislation complies with the latest national law and policy, such as the Population and Family Planning Law [人口与计划生育法] as amended in 2021. (The NPC recently codified those two measures in the Legislation Law.) In a new, so far one-off, practice, a State Council department in 2021 successfully petitioned the LAC to invalidate legislation enacted by certain local people’s congresses, over which the department has no formal oversight authority, by relying on the LAC’s decision in a different case raising identical issues.
The LAC remains a strong decisionmaker and enforcer. According to its last two annual reports, it continues to conduct follow-up review to make sure that problematic legislation is being promptly amended or repealed. The reports also indicate that the LAC remains willing and able to decide “controversial issues” in relevant cases, despite “different understandings and practices” among stakeholders. Finally, the recent Legislation Law amendments—drafted by the LAC itself—eliminated the semantic distinction between an NPC special committee’s “review” [审查] of petitions and the LAC’s “study” [研究] of the same. The Law now uses the more authoritative-sounding term, “review,” to describe the LAC’s actions as well.
The Constitution, though still present in the LAC’s decisions, has retreated somewhat to the background. The high-water mark of the LAC’s engagement with constitutional issues was still in 2020. Since then, even though the agency continues to mention the Constitution in pertinent decisions, it has stopped identifying the specific constitutional provisions at issue and appears to deliberately obscure the precise legal bases for those decisions by referring generally to “the Constitution and laws.”
Further improvement to the transparency of R&R has been negligible. The LAC continues to report on its R&R work annually, and the reporting requirement was codified in 2021. But the reports still say little about how the LAC has reached its decisions, despite a near-universal call from Chinese scholars to provide the public with more reasoning. To be fair to the LAC, earlier this year it posted a detailed discussion of one case from its 2022 report (concerning local restrictions on homeowners’ rights), so maybe more will come. I was also told by one academic contact that the LAC was preparing another compilation of R&R cases for publication this year; it previously released such a volume in 2020.
Citizens from diverse backgrounds continue to make frequent use of the process. They filed 4,829 petitions in 2022, compared to 5,065 in 2021 and 3,229 in 2020. The LAC in its 2022 annual report noted that private petitioners came from diverse “regions, occupations, and communities” and that their petitions touched on diverse issue areas, with some advocating for their own rights, others concerned with the development of the rule of law, and still others highlighting the “pressing and difficult” problems in people’s lives.
I’ll end this update on R&R in the same way I conclude my 2020 article:
The ongoing reforms of the R&R system are complex, and here I outline only some broad trends. Functionally, the reforms have focused on developing R&R’s key role in policing rogue local legislation and in ensuring the uniformity of China’s legislative system. But one must not overlook the crucial—even if incidental—progressive changes to Chinese law that legal professionals and lay citizens have been able to achieve through a more robust R&R process. That said, R&R remains incomplete and flawed. The disclosure of the LAC’s decisions and underlying reasoning, for instance, remains inadequate. The much hyped—and most anticipated—part of R&R, constitutional review, is yet to get off the ground; authorities are still studying such basic issues as the standards for deciding constitutional claims. And . . . ultimately, all decision-making in the R&R process must succumb to politics. Further developments of the R&R system would require the right combination of political will, institutional capacity, and doctrinal advancements. But from what I am reading in official discourse and my interactions with Chinese scholars, the authorities appear determined to turn R&R into an effective mechanism for reining in rogue legislation. Hopefully, we need not wait [too long] for the next breakthrough.
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Thanks for reading, and oh, Happy Pride Month 2023! 🏳️🌈 🏳️⚧️