NPC Observer Monthly: October 2023
New Patriotic Education Law. Public interest litigation against ocean polluters. 6 bills for public comment. Plus: quick look at proposed changes to China's charity and infectious disease laws.
Welcome back to NPC Observer Monthly, a monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC).
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, depending on the month and my schedule, I may end an issue with musings on an NPC-related topic that is in some way connected to the past month.
If you enjoyed this issue, I hope you’ll consider sharing it. —Changhao
News of the Month
Last month’s main event was the 14th NPCSC’s sixth session, which was convened by the Council of Chairpersons on October 13 and took place on October 20–24.
On the session’s closing day, the NPCSC took several actions of note. First, it removed Li Shangfu [李尚福] from all his state positions: defense minister, state councilor, and member of the PRC Central Military Commission. It also stripped Qin Gang [秦刚] of his remaining title as state councilor.
Second, the NPCSC adopted a decision authorizing the State Council to allow local governments to issue bonds within 60% of their annual new bond quotas before the NPC approves their annual debt ceilings for the years 2024–2028. The NPCSC also approved an adjustment to the 2023 central government budget, authorizing the issuance of 1 trillion yuan of special treasury bonds for post-disaster reconstruction and related projects.
The foregoing developments have already been extensively covered elsewhere, so I won’t go into any more detail here.
Finally, the NPCSC also approved two pieces of legislation: a new Patriotic Education Law [爱国主义教育法] (translated here) and an overhaul of the Marine Environmental Protection Law [海洋环境保护法]. Both will take effect on January 1, 2024.
Patriotic Education Law: By its own terms, the Law requires patriotic education to “uphold the leadership of the Communist Party of China,” adhere to the guidance of core Communist Party ideologies, and “persist in unifying love for the nation, the Party, and socialism” (arts. 3–4). In other words, the Law’s goal is to “legislate love and devotion to the [Party] and the top leadership.”
The Law lists the following nine areas as the “main contents” of patriotic education (art. 6):
(1) Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Theory of Three Represents, the Scientific Outlook on Development, and Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era;
(2) history of the Communist Party, new China, reform and opening up, the development of socialism, and the development of the Chinese people;
(3) the system of socialism with Chinese characteristics, the Communist Party’s great achievements, historical experience, and vivid practice in leading the people to unite in struggle;
(4) China’s fine tradition culture, revolutionary culture, and advanced socialist culture;
(5) national symbols and signs such as the national flag, anthem, and emblem;
(6) the majestic landscape as well as historical and cultural heritage of the motherland;
(7) the Constitution and laws, and knowledge and conception of areas such as national and ethnic unity, national security and defense;
(8) the deeds of heroes and martyrs and advanced model figures, as well as the national spirit and the spirit of the times they embody;
(9) other content that is rich in patriotic spirit.
Chapter II sets forth the obligations of a variety of entities to carry out patriotic education, including not only government agencies, but also government-adjacent mass organizations (e.g., trade unions, Communist Youth League, women’s federations), schools, parents, and neighborhood committees, among others. This Chapter also explicitly includes several demographic groups within the scope of patriotic education, including the religious community, compatriots from Hong Kong, Macao, and Taiwan, and overseas Chinese, along with the focus of patriotic education for each group.
Chapter III goes on to list the occasions or forums for implementing patriotic education, including “patriotic education bases” [爱国主义教育基地] (i.e., museums, memorials, historical sites, etc., designated as such), important anniversaries and holidays (e.g., the Martyrs’ Day), and major public events (where the national flag must be raised and the national anthem sung). It also directs media outlets and online service providers to produce and disseminate contents that demonstrate the spirit of patriotism.
The Law closes by prohibiting the follow conduct deemed to go against the spirit of patriotism (art. 37):
(1) insulting the national flag, national anthem, or national emblem, or having other conduct that harms the dignity of the national flag, national anthem, or national emblem;
(2) distorting, smearing, desecrating, or negating the deeds and spirit of heroes and martyrs;
(3) advocating, glorifying, or denying wars of aggression, acts of invasion, and massacres;
(4) occupying, destroying, or defiling patriotic education facilities;
(5) other conduct prohibited by laws and administrative regulations.
But as is typical of a “policy statement”-type statute, the Law doesn’t impose any penalties itself, and instead references other relevant legal authority, such as the three laws on the national flag, anthem, and emblem, respectively.
My personal view is that, while the Law has value in memorializing the relevant institutions and practices relating to patriotic education, substantively, there is probably little new in it. The more interesting question is why the NPCSC felt obligated to enact such a law in the first place (hint: to implement Xi Jinping’s instructions and a key policy document on the subject), and what it says about the legislature’s role vis-à-vis the Party under Xi’s leadership.
Revised Marine Environmental Protection Law: Last week’s revision marks the first major update of the Law in almost 25 years. Unfortunately, I don’t have the expertise to discuss the substantial regulatory changes introduced by the revision. (But if you do, please know that NPC Observer is always looking for guest writers to help fill the gaps in our coverage!) Instead, I will focus on one provision concerning the right to sue polluters for damaging marine environment.
First, some background. China’s Environment Protection Law [环境保护法] as revised in 2014 first expressly authorized qualified civil society organizations to sue those who “pollute the environment or cause ecological damage, thereby harming the public interest” (art. 58). Yet environmental groups have been unsuccessful in taking ocean polluters to court. The reason was that, since 1999, the Marine Environmental Protection Law (MEPL) has authorized only the relevant government agencies to bring damages suits against polluters to vindicate the public interest—a provision that courts have read to impliedly deny civil society organizations the same right.
This issue then came up during the MEPL revision process. And various lawmakers at least twice proposed granting citizen groups the right to bring public interest lawsuits for marine environmental damages, not to mention the environmental groups’ own advocacy. Yet such a provision wasn’t added in the end. What was added, however, was a clause granting1 the procuratorates authority to initiate public interest litigation against ocean polluters when the relevant government agencies decline to act. This reflects a recent trend of gradually expanding the procuratorates’ jurisdiction to initiate public interest litigation, while simultaneously freezing the equivalent right of citizen groups, limiting it to its original scope a decade ago: consumer protection and environmental protection (minus marine environmental protection).
On October 25, the NPCSC released six of the other seven bills it had reviewed at last month’s session for public comment through November 23, 2023. It has withheld the seventh bill, a draft Tariff Law [关税法], from the public.
draft Law on Ensuring Food Security [粮食安全保障法];
draft amendment to the Charity Law [慈善法];
draft revision to the State Council Organic Law [国务院组织法];
draft revision to the Law on Guarding State Secrets [保守国家秘密法];
draft revision to the Law on the Prevention and Control of Infectious Diseases [传染病防治法]; and
draft revision to the Cultural Relics Protection Law [文物保护法].
In the rest of this newsletter, I’ll briefly discuss three of those bills: the draft Charity Law amendment, as well as draft revisions to the Law on the Prevention and Control of Infectious Diseases (“Infectious Diseases Law”) and to the State Council Organic Law.
Draft Charity Law amendment: This bill, when initially submitted in December 2022, was styled as a comprehensive revision [修订] to the Charity Law, which had been enacted only six years earlier. After that first reading, many lawmakers, localities, and the public alike opposed revamping an NPC-enacted law so soon after its passage, so the legislature opted to modify the Law by amendments [修正] instead. As our comparison chart shows, the new draft (translated here) removed essentially all proposed technical changes and mere refinements of the existing law, as well as most proposed new regulatory requirements for charitable trusts. The key amendments that remain are as follows:
Regulation of charitable organizations: To promote growth of the nonprofit sector, the draft would allow all existing nonprofit organizations to register as charitable organizations (art. 10 as would be amended). Currently, newly established nonprofits must either register as charitable organizations since their inception or forever lose that opportunity. At the same time, the draft would impose additional regulations on charitable organizations, for instance, by requiring them to disclose any “cooperation with non-mainland organizations or individuals” in their annual filings with the government (art. 13).
Regulation of charitable trusts: The draft would add new conflict-of-interest rules for charitable trusts, barring the grantor (the one creating a trust) and the trustee from designating interested parties as beneficiaries of the trust (art. 46). It would also grant civil affairs departments authority to investigate the trustees of charitable trusts (art. 104) and to establish and publicize a system of credit records for the trustees (art. 106); and would authorize the State Council’s civil affairs, finance, taxation, and financial regulatory departments to prescribe standards for the annual expenditures and management fees of charitable trusts, backed by penalties (arts. 61, 118).
General regulation of public fundraising: As a supportive measure, the draft would shorten the period that newly registered charitable organizations must wait before they may apply for public fundraising credentials—from two years to one (art. 22). It would also authorize the Ministry of Civil Affairs (MCA) to designate online public fundraising platforms that charitable organizations must use to carry out public fundraising (they may simultaneously do so on their own online platforms) (art. 27). To strengthen regulation, the draft would, among others, penalize failure to file public fundraising plans with civil affairs departments in advance (art. 119) and require charitable organizations to disclose “detailed” (in addition to “comprehensive”) information on a public fundraising after it has concluded (art. 79).
Emergency public fundraising: Drawing lessons from charity-funded emergency assistance during Covid-19, the draft would add an entire chapter on “emergency charity.” In particular, those conducting public fundraising in response to major emergencies would be required to “promptly” allocate or use donated funds and equipment, and disclose at least once every five days the acceptance of donated resources (art. 72). In addition, the filing of the plan for such a public fundraising may be postponed to as late as 10 days after the event starts (art. 73).
Crowdfunding: Under current law, crowdfunding (i.e., an individual’s request for aid from the general public) isn’t considered “charitable fundraising” and thus unregulated. The draft attempts to somewhat fill the gaps, providing that, where individuals seek aid from the public “due to family economic hardship brought on by illness or other causes,” those who request aid and who publish the requests are responsible for the veracity of the information in such requests (art. 124). Online crowdfunding platforms are also responsible for verifying the truthfulness of the information. And the draft authorizes the MCA and other relevant State Council department to issue more detailed rules regulating crowdfunding activities.
Draft Infectious Diseases Law revision: The Covid-19 pandemic exposed many weaknesses2 in China’s system for responding to public health emergencies and also saw the debut of some novel epidemic-control measures. So the first overhaul of China’s core statute for disease prevention and control in almost two decades would naturally seek to address some of those weaknesses and codify the tools that have proven effective in practice. Below I highlight a few proposed changes that I found noteworthy.
Interagency coordination: Effective epidemic response requires coordination among siloed government institutions. One major example in China’s Covid-19 response was the establishment of an interagency Joint Control and Prevention Mechanism under the State Council that included officials from 32 institutions, as well as the setup of its local counterparts. The draft would codify this practice, requiring governments at or above the county level to establish “joint prevention and control mechanisms for emerging infectious diseases and sudden outbreaks” (art. 7). The draft would also strengthen information-sharing requirements for government institutions at different administrative levels as well as at the same level (arts. 54–55).
Disease outbreak reporting: Following the SARS epidemic, China put in place a Direct Reporting System for infectious disease outbreaks in 2004. Yet key actors in the Wuhan public health system initially failed to promptly report cases of a new virus to central public health authorities, thereby delaying efforts to contain its spread. The draft includes several provisions aimed at improving the Direct Reporting System. First, it would elevate the System to a statutory scheme (art. 39). Second, the draft would codify—and expand on—existing direct reporting rules (art. 46). For instance, it specifies that confirmed and suspected cases of Class A (the most serious) infectious diseases3 as well as any reports of “sudden outbreaks of infectious disease of unknown cause” and “new infectious diseases” must be reported using the System within 2 hours. Finally, the draft would shield those who follow the law in reporting disease outbreaks from legal liability, even if it turns out that their reports were a false alarm (art. 50). And the draft adds a provision barring any person or entity from “interfering with the reporting of infectious disease outbreaks,” with attendant legal liabilities (arts. 50, 98–99, 101–02).
Empowering local governments: The draft would devolve various authorities over disease prevention and control to local governments as low as the county-level. For instance, it would authorize lower-level governments to issue early warnings about possible outbreaks and to activate emergency response, when under current law, that power belongs to national and provincial authorities alone (art. 43). The draft would also allow—and require—lower-level governments to publish data on infectious diseases within their respective jurisdictions, when, again, only national and provincial authorities may currently do so (art. 56). In addition, the draft would permit local governments to take emergency measures to respond to outbreaks before notifying higher-level authorities of the measures taken—instead of obtaining the latter’s approval in advance, as required by current law (art. 61). And in the case of a sudden outbreak of unknown origin or a novel disease, where neither the pathogen nor its infectivity or virulence is clear, local governments may preemptively employ the measures ordinarily authorized only for Class A diseases—a decision that, under current law, is one for the State Council to make (art. 63).
New epidemic-control measures. The draft would codify various epidemic-control measures that were used to contain Covid-19, including the use of technologies such as “big data, artificial intelligence, cloud computing, and blockchain for efforts such as information collection, case identification, contact contracting, and risk warning, according to the principles of necessity and minimization” (art. 61). Health codes (or “personal electronic risk warning codes” [个人电子风险提示码] in the draft’s language) are explicitly authorized by the draft, though it also forbids using them “for purposes other than epidemic control and prevention” (art. 11)—a tacit acknowledgement of and response to official abuses of health codes during the zero-Covid era.
Penalties for noncompliance with control measures. One may find it hard to believe, but Chinese law (as written) currently doesn’t penalize most violations by private entities of governmental orders to control epidemics (unless, for instance, noncompliance has resulted in the spread of a Class A disease). That’s why the police had to twist a statutory provision that should’ve applied only during constitutional “states of emergency” to enforce the zero-Covid policy (China didn’t declare a “state of emergency“ over Covid-19). To close the loophole, the draft would authorize administrative punishments (including warnings and fines) for individuals and entities that disobey or evade the preventive and control measures taken by the government or quasi-governmental centers for disease control and prevention (art. 110).
Draft State Council Organic Law revision: This bill (translated here) is, in my view, the least important one among the batch currently open for public comment. But it is heading to the 2024 NPC session, so I thought I’d flag it here as well.
As an organic statute, the Law is supposed to prescribe the State Council’s organization, functions, and procedures, but with only 11 articles, it currently barely does the job, and the 18-article-long draft doesn’t fare any better, either. Compared to the current law, the draft clarifies somewhat the roles of vice-premiers and state councilors (art. 5), the functions of the State Council’s executive meetings and plenary meetings (art. 8), as well as the authority of the State Council’s subordinate bodies (art. 14). Other changes simply repeat or restate relevant provisions of existing law or principles of administration found in many policy documents.
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That’s all for this month’s issue. Thanks for reading!
Or more accurately, the provision merely memorialized the procuratorates’ authority to bring such suits, as a 2022 judicial interpretation jointly issued by the Supreme People’s Court and the Supreme People’s Procuratorate had already, somewhat controversially, purported to allow the procuratorates to do so.
On this subject, I found Professors Jacques DeLisle and Shen Kui’s 2020 article, China’s Response to COVID-19, in the Administrative Law Review exceptionally informative.
Statutory Class A infectious diseases currently include only plague and cholera. In addition, SARS, pulmonary anthrax, and highly pathogenic avian influenza are treated as Class A diseases for prevention and control purposes.