NPC Standing Committee vs. State Councilors: Tentative Thoughts on the Constitutionality of Article 31 of China’s 2021 NPC Organic Law
Bottom-line conclusion: Article 31, which authorizes the NPCSC to remove state councilors between NPC sessions, is probably a constitutional grant of authority by the NPC
Welcome to a special issue of NPC Observer Monthly, a (mostly) monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC).
The NPCSC is in session through Friday, September 1, so the next regular issue of this newsletter won’t drop until I’ve had time to digest and write about the outcomes of the session. In the meantime, I thought I’d send out the planned monthly musings first to fill the content void.
If you enjoyed this special issue, I hope you’ll consider sharing it. —Changhao
At an emergency session on July 25, China’s top legislature, the Standing Committee of the National People’s Congress (NPCSC), decided to remove Qin Gang [秦刚] as the minister of foreign affairs. Qin, however, stayed on as a state councilor [国务委员]—a senior State Council position ranked just below vice-premiers. The ensuing online discussion focused not only on the reasons for Qin’s departure as foreign minister, but also the constitutionality of an obscure provision of an obscure Chinese law (or at least they used to be). And it is the latter debate I turn to in this post.
Before I start, a note on terminology. Both “removal” [免职] and “dismissal” [撤职] result in a State Council official’s leaving their office, though unlike dismissal, removal is not inherently disciplinary. While the NPCSC (at the premier’s request) can remove an official for wrongdoing,1 most often it does so for benign reasons, such as when the official has reached retirement age, has been tapped for another post, or has requested to resign2 for, say, health reasons.
(1) The debate began as the question whether the NPCSC could have lawfully removed Qin as state councilor if it were so requested. As others and I pointed out on
The discussion soon turned into a constitutional debate when others pointed out that the PRC Constitution itself did not grant the NPCSC that authority—an observation that no one disputes. Under Article 67(9) of the Constitution, the NPCSC’s appointment and removal power extends only to the State Council’s cabinet ministers3 and secretary-general. By negative implication, the argument goes, the Constitution thereby withheld from the NPCSC the same authority over more senior State Council officials, including state councilors.
(2) While I find that to be a plausible reading of Article 67(9) in isolation, this provision is not the end of the story. A later clause of the same article, Article 67(22), also allows the NPCSC to exercise “other functions and powers granted by the [NPC].” (All four constitutions in PRC history include this language.)
Although the drafters of NPC Organic Law article 31 did not explicitly invoke Article 67(22), they acknowledged the NPCSC’s inability to appoint or remove state councilors between NPC sessions under then-existing law and characterized article 31 as an “supplemental provision” [补充性规定] intended to fill the gap.4 So article 31, in my view, qualifies as a grant of authority by the NPC under Article 67(22).5 And the heart of the inquiry thus becomes whether there is a limit on the NPC’s delegation of power to the NPCSC under Article 67(22); and, if so, whether NPC Organic Law article 31 is within that limit.
(3) The first question is easier, and I think the answer must be yes. For instance, it cannot possibly be constitutional for the NPC to delegate all its powers to NPCSC through Article 67(22). Otherwise, the distinction between the NPC’s constitutional status as the “highest organ of state power” [最高权力机关] and the NPCSC’s status only as its “permanent body” [常设机关] would be meaningless. So there must be some limit on the NPC’s grant of authority under that provision.
But could it ever be permissible for the NPC to grant the NPCSC an authority that the Constitution has impliedly withheld from the latter? Intuitively, many have answered “no,” because (they say) the NPC cannot be allowed to override the Constitution. But this argument creates a problem once one takes a closer look at the NPC’s and NPCSC’s respective constitutional powers. Except for the several powers the two bodies share (e.g., supervise the Constitution’s implementation), the NPC’s powers are all arguably exclusive, i.e., impliedly withheld from the NPCSC. Yet the NPC cannot delegate any power it doesn’t already possess,6 so if that view holds, Article 67(22) would be practically deprived of any effect. Thus, my view is Article 67(22) necessarily must apply to NPC’s exclusive authority in some circumstances.
The NPC’s historical grants of authority to the NPCSC show that it has understood Article 67(22) this way as well. In 1987, for instance, it authorized the NPCSC to ratify the Sino-Portuguese Joint Declaration on Macao after it was signed, even though (as the authorization explicitly recognized) it has the exclusive constitutional authority to establish special administrative regions and to provide for their systems. In addition, the NPC once delegated to the NPCSC general lawmaking authority when (under the 1954 Constitution) the latter otherwise had none, and on several occasions authorized the NPCSC to pass specific legislation7 when the latter otherwise could not.
The closest historical analog to NPC Organic Law article 31 involved the central government’s “final accounts” [决算]—an accounting of its annual revenue and expenditures after a fiscal year has ended. Under the 1982 Constitution, the NPC alone may approve “the state’s budget” [国家的预算]—a term that was understood to encompass the central government’s budget as well as final accounts. But the State Council was not always able to complete the accounting by the time the NPC met in a given year, so for ten consecutive years (1986–1995) the NPC authorized the NPCSC to approve the prior year’s final accounts.8 Then in 1994, it wrote the NPCSC’s power to approve final accounts into the Budget Law, obviating the need to issue ad hoc authorizations going forward. Similarly, NPC Organic Law article 31 operates as a general, permanent grant of authority to the NPCSC through statute.
(4) I hope I have so far established that the NPC’s ability to grant additional powers to the NPCSC under Article 67(22) is not limitless, though the powers granted could, in the abstract, implicate the NPC’s exclusive authority. Now, the harder question is how to evaluate whether a particular grant of authority is within that limit. And here come the most tentative thoughts in this post.
If the central concern is to maintain the NPC’s status as the only highest organ of state power (and it could be something else), then perhaps the question should be whether a power granted—both viewed in isolation and in light of all other powers already granted to the NPCSC under Article 67(22)—derogates from the core authority that must be exercised by the highest organ of state power, and is therefore unconstitutional. (I recognize this is a vague and not necessarily workable standard that needs much workshopping.) And the question of constitutionality likely depends on the specific task the power is being used to accomplish. So, for instance, while the general grant of authority to the NPCSC to initiate pilot reforms by suspending conflicting statutory provisions is likely okay, invoking this authority to establish a whole new branch of government on a trial basis is likely not. (Yes, I am referring to the NPCSC’s establishment of supervision commissions in 2016–2017.)
Back to NPC Organic Law article 31. My instinct is that it probably passes constitutional muster given the following considerations. First, the NPC’s power to appoint state councilors is limited by the premier’s authority to nominate. As the person constitutionally charged with overall responsibility for the State Council’s work, the premier, it seems to me, should be allowed to name a replacement if a state councilor becomes unavailable (whether due to death, disability, retirement, or job change) or unfit for that position (e.g., due to wrongdoing) between NPC sessions. In addition, the NPCSC (like the NPC) has the constitutional authority to oversee the State Council’s operation. If a state councilor could not or should not serve any longer, shouldn’t the NPCSC be entitled to remove them and appoint a replacement, so that the State Council’s work is not disrupted?
That said, I don’t believe it is constitutional for the NPCSC to accede to the removal request of a premier who, say, has personal beefs with a state councilor, and I don’t believe the NPC intended that article 31 be used this way. So I’d restrict the reasons for removing a state councilor under article 31 to unavailability, voluntary requests to resign, and misconduct—i.e., circumstances that would objectively impair their performance of duties. In practice, of course, the premier has no final say over the choices for senior State Council personnel. State councilors are considered “national leaders,” and their nominees are all extensively vetted, are expected to serve the full five-year term, and require the full Central Committee’s endorsement, so article 31 is unlikely to be invoked for frivolous reasons in practice.
(5) During the online discussion, some cited the NPCSC’s dismissal of former state councilor and secretary-general of the State Council, Yang Jiang [杨晶], in February 2018 as support for its constitutional authority to remove state councilors. (Yang was sacked for corruption.) Even if Yang’s dismissal is a relevant precedent, it is a weak one for it was constitutionally dubious, as I argued when the news first broke. That’s because the Constitution similarly does not authorize the NPCSC to dismiss state councilors when the NPC is not in session, and before March 2021, there was no NPC-enacted statute that granted it such authority, either.
(6) And yes, the 2021 NPC Organic Law also supplied the NPCSC with the missing dismissal authority. Article 32 allows it to dismiss “some but not all” (or one or two; only a few) [个别] State Council officials at the premier’s or Council of Chairpersons’ request, when the NPC is not in session. In light of the considerations I outlined above, I think article 32 is probably constitutional as well.
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To the two people who’ve made it all the way here, thank you so much for reading! I must say whether the NPCSC may constitutionally remove or dismiss a state councilor between NPC sessions is probably one of the least important questions in Chinese law today. (Yet I wrote over 2,000 words on it, so I guess the joke’s on me. 😮💨) Comments and criticisms are still welcome!
I’d like to thank Darius Longarino for a thought-provoking conversation over cocktails on the subject of this post.
A State Council official may also tender their resignation to the NPCSC directly, without going through the premier. But a request submitted this way, if accepted by the NPCSC, would still require the NPC’s confirmation the next time it meets, so the indirect route is preferred. See NPC Rules of Procedure art. 43.
I use “cabinet ministers” to refer to the heads of the various departments constituting the State Council.
The same Chinese commentator argued that the NPC may not grant authority to the NPCSC in a “generalized” [概括性] manner because, since the 1982 Constitution’s adoption, the NPC has only delegated power to accomplish specific tasks that the NPC itself could not while in session. For instance, the commentator cited the NPC’s 2020 decision authorizing the NPCSC to enact national security legislation for Hong Kong. I disagree with this view because (1) the text of Article 69(22) contains no such limitation, and because (2) the commentator was wrong about the NPC’s post-1982 practice. Throughout PRC history, including the post-1982 period, the NPC has granted the NPCSC various powers capable of repeated invocation through statutory provisions. Beyond the examples I will discuss below, the NPC has also, for instance, authorized the NPCSC to establish specialized courts in the People’s Courts Organic Law and to suspend statutory provisions to facilitate pilot reforms in the Legislation Law. In fact, as I have previously argued, the NPC’s 2020 Hong Kong decision was not a single-use authorization, either! There is nothing in it that so limits its applicability, and the NPCSC has already invoked it for a second time (among other legal authority) when laying down new qualifications for Hong Kong lawmakers in November 2020.
Cai Dingjian [蔡定剑], The Constitution Explained in Detail [宪法精解] 343 (2d ed. 2006).
See Qu Di [曲頔], A Study of the National People’s Congress’s Authorizations of Its Standing Committee to Exercise the Relevant Functions and Powers [全国人民代表大会授权常务委员会行使相关职权研究], China L. Rev. [中国法律评论], no. 2, 2021, at 187, 189.