October 2024: Highlights of Wu Bangguo's Tenure as China's Chief Lawmaker
Sun Zhigang incident. Notice-and-comment lawmaking. Chinese-style system of laws. "Five Nos." Plus: selection of major legislation.
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).
Last month was unusually quiet at the NPC, as it was the first October since 1988 in which the legislature did not meet. On October 25, the Council of Chairpersons belatedly announced that the NPCSC would meet on November 4–8. The postponement was likely due to the fiscal measures the NPCSC approved on November 8, though there has been no official explanation for the delay.
I have posted a translation of the official explanation of the fiscal measures here:
I’ll cover the other news from this month’s NPCSC session in the next issue of this newsletter. Today’s issue will instead focus on the other NPC-related event from last month.
On October 8, Wu Bangguo [吴邦国], China’s top lawmaker during the Hu–Wen era, died at the age of 83. Chairing the 10th and 11th NPCSCs from 2003 to 2013, he has been the only two-term NPCSC Chairman since the end of the Cultural Revolution—and will likely remain so until at least 2033.1 His tenure coincided with a period of rapid economic and social change in China, during which the NPC also underwent important transformations under his leadership. Below, we will highlight key NPC events and legislation from his time in office, considering both their immediate impacts and lasting influences. This is not intended, however, as a full chronicle of major NPC events from that era, much less a comprehensive profile of Wu as China’s top lawmaker.
The Sun Zhigang Incident
Merely two days after Wu Bangguo was elected Chairman of the 10th NPCSC, what is now known as the “Sun Zhigang Incident” [孙志刚事件]—a landmark event in China’s constitutional development—took place. Long story short,2 on March 17, 2003, Sun Zhigang, a 27-year-old Hubei native who had recently moved to Guangzhou, was mistakenly deemed an illegal migrant and detained at a “custody and repatriation” (C&R) [收容遣送] center. Three days later, Sun died in custody, likely from torture. His death shed light on the abuses within the C&R system—an extrajudicial detention scheme created by a State Council regulation in 1982—and sparked public outrage.
In May 2003, three legal scholars3 wrote to the NPCSC, urging it to activate the “recording and review” (R&R) [备案审查] mechanism under the 2000 Legislation Law [立法法] to review and annul the 1982 State Council regulation for unlawfully infringing on citizens’ physical liberty. This was the first widely publicized attempt to invoke R&R, whereby the NPCSC rules on the legality and constitutionality of regulations upon request.
The NPCSC acknowledged receipt of the scholars’ request, but did not respond further. But, according to a later-disclosed document, the Sun Zhigang Incident did capture the attention of national leaders, including Wu Bangguo. When forwarding some unspecified materials to then-Premier Wen Jiabao, he included the following note (dated June 4, 2003):
The core issue [in the Sun Zhigang Incident] is that the “remedial” nature of [C&R] has shifted into “coercive management” of migrant populations (primarily migrant workers). The expanded scope of detention, coupled with interests-driven motives and heavy-handed enforcement, has led to violations of migrants’ freedom and bodily integrity. Preliminary analysis suggests that, while there are problems with the [1982] regulation, the main problems lie in its enforcement. I recommend that relevant departments of the State Council study this matter (the NPCSC Legislative Affairs Commission may send personnel to participate) and effectively correct the current issues in urban C&R efforts.
核心问题是将收容的“救济性”变为对外来人口（主要是民工）的“强制性管理”，收容范围扩大，加之利益驱使、粗暴执法，造成对外来人口自由和身体的侵犯。据初步分析，这有法规上的问题，但主要还是执行中的问题。建议国务院有关部门研究（人大法工委可派人参加），切实纠正现城市收容遣送工作中的问题。4
The note suggests that Wu did not find it necessary to abolish C&R outright. And it is unclear what further communications transpired between the legislature and the State Council. On June 18, 2003, the latter decided to repeal the C&R regulation, seemingly on its own initiative.
The Sun Zhigang Incident, especially the public discussion surrounding the scholars’ petition for review, “had a profound impact on constitutional awareness in China.”5 It also appears to have prompted the NPCSC to establish a specialized office under its Legislative Affairs Commission to administer R&R in May 2004 and to issue detailed rules for handling citizen requests for review in late 2005.6 While the R&R system proved ineffective and opaque over the next decade, the 2004–2005 reforms laid the foundation of the recent invigoration of the process.
Online Public Consultations on Draft Laws
On February 25, 2005, the NPC formally launched its official website, starting the national legislature’s online presence. At the launch ceremony, the NPCSC Secretary-General stated that the website would “promote the informatization of NPC bodies, strengthen their connections to NPC delegates and the public, and improve the quality and efficiency of the NPC and its Standing Committee’s work.”
The new website was put to the test just a few months later. In July 2005, for the first time in its history, the NPCSC decided to release a bill—the third draft of the Property Law [物权法] (more on it below)—on its website for public comment. Until then, the legislature had only published a few draft laws in newspapers, requiring citizens to submit feedback by mail. The inaugural online consultation was a remarkable success: over a 42-day period, the NPCSC received more than 9,600 comments from 2,249 netizens. During the remainder of its term, the 10th NPCSC (2003–2008) released three other draft laws for public comment and, to better inform the public, posted their official explanations as well. Public engagement reached new heights with the 2006 draft Labor Contract Law [劳动合同法], which received almost 190,000 comments from nearly 80,000 individuals—a record that remained unbroken until 2011.
At the start of the 11th NPC, in April 2008, Wu Bangguo and other legislative leaders decided, as a general rule, to seek public comment on the first draft of each major bill going forward. A total of 48 drafts went through this process during the next five years. The NPC’s substantial expansion of public participation in lawmaking during Wu’s tenure paved the way for further reforms in that direction. Today, the NPCSC generally publishes every non-final version of a legislative bill for public input.
“Socialist System of Laws with Chinese Characteristics”
By mid-1997, the official narrative goes, China had already established a “framework” for a system of laws undergirding its burgeoning “socialist market economy.” In September of that year, the 15th Communist Party Congress set the goal of “forming a socialist system of laws with Chinese characteristics [中国特色社会主义法律体系]” by 2010. According to Li Peng, Chairman of the 9th NPCSC, this ambitious project required enacting (1) legislation covering all areas of law (e.g., administrative, criminal, civil, and economic laws); (2) “fundamental and primary” laws within each area; and (3) corresponding administrative and local regulations to complement national legislation.
Wu Bangguo oversaw the home stretch of this legislative endeavor. During his tenure, the NPC completed a number of major legislative projects. In civil law, it passed the long-awaited Property Law (2007) and Tort Liability Law (2009), laying the groundwork for the future Civil Code. In administrative law, it adopted the Administrative Licensing Law (2003) and Administrative Compulsion Law (2011), which, together with the 1996 Administrative Punishments Law, form the pillars of Chinese administrative procedure today. Key substantive administrative legislation included the Road Traffic Safety Law (2003), Public Security Administration Punishments Law (2006), and Food Safety Law (2009). The NPC also afforded social legislation greater attention during this period, enacting the Labor Contract Law (2007), Law on the Mediation and Arbitration of Labor Disputes (2007), and Social Insurance Law (2010). Finally, it passed additional economic legislation, including the Banking Supervision and Administration Law (2003), Enterprise Bankruptcy Law (2006), and Anti-Monopoly Law (2007).
On January 24, 2011, Wu proclaimed at a seminar that, with 236 laws and many more administrative and local legislation on the books, China had accomplished its goal of forming a socialist system of laws with Chinese characteristics and that the NPC’s priorities would now shift to “improving” that system. This shift is evident in the legislative agendas of subsequent NPCSCs. As we have observed, beginning with the 12th NPC (2013–2018), the legislature’s five-year legislative plans have included more bills to update existing laws than to enact new ones. As of today, China officially has 304 laws.
“Five Nos”
At the same 2011 seminar, Wu also made the following controversial remark rejecting five political arrangements—the infamous “Five Nos” [五不搞]:
Based on China’s national conditions, we solemnly declare that we will say “no” to alternate rule by multiple parties, the diversification of guiding principles, the separation of three powers and bicameralism, federalism, and privatization.
从中国国情出发，郑重表明我们不搞多党轮流执政，不搞指导思想多元化，不搞“三权鼎立”和两院制，不搞联邦制，不搞私有化。
This remark, made at the height of the Arab Spring, was widely disseminated on social media, before being censored in the run-up to the 2011 NPC session, where Wu repeated the “Five Nos” when delivering the NPCSC’s annual work report. Wu’s quintet of rejections poured cold water on popular hopes for liberalizing political reforms, though it was consistent with Chinese leaders’ long-held views on the matter. The rejection of a multi-party system and tripartite government can be traced back to a 1987 Deng Xiaoping speech to members of the Hong Kong Basic Law Drafting Committee. Wu himself had also been making similar statements since as early as 2003.7
No matter the provenance of the “Five Nos,” it has undeniably become a key part of Wu’s legacy in the eyes of both the public and the Party leadership. It was alluded to in the official account of his life and career, published by Xinhua days after his death:
[Wu Bangguo] emphasized that developing socialist democracy requires . . . upholding the Party’s leadership; that [China] must never weaken, break away from, or abandon the Party’s leadership and must say no to Western-style multi-party systems and parliamentary systems; and that China must confidently promote its chosen path of political development and resolutely resist the influence of various erroneous ideologies.
他强调，发展社会主义民主政治，……必须坚持党的领导，决不能削弱党的领导、脱离党的领导、放弃党的领导，决不能搞西方那种多党制、议会制，中国对自己选择的政治发展道路要理直气壮地宣传，坚决抵制各种错误思潮影响。
Selected Major Legislation
2004 Constitutional Amendment. In late March 2003, twelve days after Wu Bangguo first assumed leadership of the national legislature, the Party appointed him to head a special task force to draft China’s fourth Constitutional Amendment—the first major task of his tenure. After a year-long drafting and deliberative process, the NPC approved the Amendment on March 12, 2004, by a vote of 2863 to 10 (with 17 abstentions).
The Amendment contains 14 articles. Among other changes, it added Jiang Zemin’s theory of “Three Represents” as a guiding ideology for the nation; authorized the government to “expropriate” [征收]—in addition to “requisitioning” [征用]—private property in the public interest, if it “makes compensation according to law”; declared citizens’ lawful private property “inviolable”; and added a clause proclaiming that “[t]he State respects and preserves human rights.”
The Amendment was also the first to have been endorsed by the Party’s Central Committee, in addition to approval by the Politburo—a process that the Party later memorialized in its 2014 Fourth Plenum Decision.
2005 Anti-Secession Law. By 2003, PRC leaders had grown increasingly concerned about Taiwan’s push for independence, particularly under the administration of Chen Shui-bian, Taiwan’s first president from the pro-independence Democratic Progressive Party (DPP). During his reelection campaign in September 2003, Chen promised that, by 2006, “the DPP would work with Taiwan’s 23 million people to create a new constitution for Taiwan,” sparking widespread speculation that he intended to pursue Taiwan’s de jure independence once re-elected.
In December 2003, General Secretary Hu Jintao instructed the national legislature to prepare “special legislation on Taiwan” [对台特别立法] to address the potential crisis.8 The drafting process gained speed after Chen won reelection in early 2004 and the Taiwanese legislature proposed fresh constitutional reforms. At an internal meeting of the NPCSC’s Party members, Wu Bangguo stressed that the legislature must expedite Taiwan legislation because “[t]he possibility of major ‘Taiwan independence’ incidents during [Taiwan’s] ‘constitutional reform’ process cannot be ruled out.”9
On March 14, 2005, the NPC adopted the Anti-Secession Law [反分裂国家法]—the only national law whose title is not prefixed with “People’s Republic of China.” Scholars have noted and criticized its brevity and vagueness. In particular, Article 8, in language that is open to interpretation by the Chinese government, authorizes the use of “non-peaceful means” against the island when (1) “Taiwan independence forces” cause the fact of Taiwan’s secession from China; (2) a major incident that will lead to Taiwan’s secession from China takes place; and; (3) the possibility of peaceful unification is completely extinguished.
2006 Oversight Law. As Wu recounted to the NPCSC’s Party members in December 2006, his predecessor Li Peng had left him with (in Li’s words) two legislative “challenges” [难题], one of which was the Oversight Law—short for Law on Oversight by the Standing Committees of People’s Congresses [各级人民代表大会常务委员会监督法] (the other was the Property Law).10
The NPCSC had passed the Oversight Law four months earlier, on August 27, 2006—four years after the bill was submitted for review and fifteen years after drafting first began. It went through such a lengthy legislative process in large part because of two controversial forms of oversight that ultimately did not make it to the final version.
The first was legislative “oversight over individual cases” [个案监督]: intervention by the people’s congresses or their subordinate bodies in a court’s or procuratorate’s handling of specific cases to correct what they believe are errors in the proceedings. The NPCSC initially supported this type of oversight, going so far as to twice consider legislation on the subject in 1999. But the bill faced strong opposition from the judicial organs, who resisted it for infringing on their (already limited) independence, dooming the bill in the end. The Oversight Law instead directed the people’s congresses to focus on common or systematic problems in the administration of justice by requesting the judicial organs to deliver special work reports on those matters.
The other contentious oversight tool was “cadre performance reporting and evaluation” [干部述职评议]. Though various local legislatures were experimenting with such performance reviews for government officials, the NPC leadership decided not to include it in the Oversight Law, as doing so could “potentially disrupt the current cadre-management system” that gives the Party ultimate control over state personnel.11 The Law instead directs the people’s congresses to oversee government performance through work reports on particular policy issues.
The Oversight Law now regulates the use of seven legislative oversight tools: special work reports; economic and fiscal oversight; law enforcement inspections; inquiries and interpellations; recording and reviewing; investigations into specific issues; and dismissals. Earlier this month, the NPCSC approved the first set of amendments to the Oversight Law, which we will discuss in a future post.
2007 Property Law. On March 16, the NPC enacted the Property Law, completing the other “challenge” that Chairman Li Peng mentioned. This Law was initially submitted as part of the draft Civil Law [民法] in December 2002, and went through an unprecedented eight rounds of review—which remains the record for a non-codification bill. Because the Law implicates “the vital interests of the people and China’s basic economic system,” the legislative leadership decided to release the draft online for public comment after the bill’s third review in July 2005.
A huge public debate ensued, however, catching the legislature by surprise. In August 2005, Professor Gong Xiantian [巩献田] of Peking University Law School posted an open letter online, calling for a complete halt to the legislative process. He argued that, by granting equal protection to public and private property, the draft unconstitutionally “departed from basic socialist principles” and would encourage illegal privatization of state-owned assets—a major concern among the public at that time. Professor Gong’s criticism derailed the legislature’s original plan of passing the Law in 2006, forcing it to conduct additional deliberations.
Shortly before the bill’s seventh review, Wu Bangguo spoke extensively in defense of the constitutionality of the bill, including the provision affording equal protection to private property, at a meeting of the NPCSC’s Communist Party members.12 His remarks were substantially incorporated into the bill’s official explanation presented to NPC delegates at the start of the final review.13 They appeared to have ended the debate and ensured the bill’s passage several days later.
2011 Criminal Law Amendment (VIII). This amendment to China’s substantive criminal code, approved by the NPCSC on February 25, 2011, was notable for two reasons. First, for the first time in PRC history, it reduced the number of capital crimes. Under the Amendment, 13 non-violent crimes, including certain kinds of smuggling, fraud, and theft, were no longer punishable by death. Four years later, the NPCSC repealed nine additional capital offenses, bringing the total down to the current 46.
The 2011 Amendment was also known for criminalizing drunk driving. This behavior previously constituted only an administrative violation, subject to at most a fine of RMB 2000, 15 days of detention, and license suspension of 6 months. The Amendment increased the punishments by imposing up to 6 months of jail term and heftier criminal fines. This change has proven incredibly effective: the Ministry of Public Security’s sobriety-checkpoint data show that drunk driving dropped by more than 70% nationwide during the first decade the Amendment was in effect. Drunk driving has been the most-prosecuted crime in China since 2019, accounting for almost 20% of all defendants charged in 2023.
2012 Decision on Strengthening Network Information Protection. This Decision, adopted on December 28, 2012, was one of the NPC’s final legislative acts during Wu’s tenure. It included important provisions on protecting citizens’ “electronic personal information,” but it is best known for establishing a real-name registration system under which individuals must fully identify themselves to network service providers to obtain or use covered services (e.g., phone service, internet access, posting on social media). This requirement has vastly shrunken China’s online spaces for anonymity and has become a critical component of China’s internet censorship regime. A broader version of the real-name registration system was codified in the Cybersecurity Law [网络安全法] in 2016.
Hong Kong electoral reform bills. Finally, the NPCSC under Wu Bangguo’s leadership acted several times over political reforms in Hong Kong.
On April 6, 2004, acting on its own initiative, the NPCSC issued a legislative interpretation of two provisions in Annexes I and II to the Hong Kong Basic Law that governed the procedures for changing the selection processes for the city’s Chief Executive and Legislative Council (LegCo), respectively. Under the interpretation, no electoral reform may be initiated in Hong Kong unless the Chief Executive first submits a report to the NPCSC on the need for reform and until the NPCSC decides it may proceed. These two steps were beyond the original three-step process under the Annexes. As Wu Bangguo explained at a closed-door meeting a few days before the interpretation was approved, adding the two new steps was necessary because—
The central leadership believes that it is imperative to make clear that the authority to decide on the development of Hong Kong’s political system rests with the central leadership, and that the Legislative Council does not have the power to propose bills concerning the political system. To have the central leadership maintain firm control over the development of Hong Kong’s political system, we must ensure that, even when the situation in Hong Kong is at its worst, the central leadership can still steer the direction of Hong Kong’s political system . . . .
中央认为，当前必须明确香港政治体制发展的决定权在中央，明确立法会没有对涉及政治体制问题的法案的提案权。真正把香港政治体制发展的主导权牢牢地掌握在中央手中，要做到即使香港形势出现最恶劣情况，中央仍有能力主导香港政治体制的走向……14
In accordance with the interpretation, the NPCSC in 2004 and 2007 successively ruled out universal suffrage for the next two Chief Executive (2007 and 2012) and LegCo (2008 and 2012) elections. But it did also indicate in 2007 that the Chief Executive “may be elected through universal suffrage” in 2017, and that the LegCo may be elected the same way shortly thereafter. In 2014, upon receiving the required report from the Chief Executive, the NPCSC formally greenlit electing the Chief Executive by universal suffrage in 2017, while imposing several restrictions on the nomination process. The city government then proposed amendments to Annex I consistent with the NPCSC decision. The bill faced strong opposition from pan-democracy legislators, however, and eventually failed to pass the LegCo.
The NPCSC’s 2007 decision also allowed the Hong Kong government to propose other electoral changes according to “the principle of gradual and orderly progress.” The city government thus put forward a reform package for the upcoming 2012 elections that would expand the Election Committee (which elects the Chief Executive) and add directly elected seats in the LegCo. After several rounds of negotiations, the package secured the two-thirds vote needed in the LegCo and was subsequently accepted by the NPCSC in 2010. It remains the only successful pro-democracy electoral reform under the Hong Kong Basic Law to date.
But the success was short-lived. In March 2021, following massive pro-democracy protests and the pan-democrats’ electoral landslide in 2019, and after having imposed sweeping national security legislation on Hong Kong, the central leadership moved to tighten control over Hong Kong’s electoral process by tasking the NPCSC with completely revising Annexes I and II to the Basic Law. The goal, in an NPCSC official’s words, was to ensure that only “staunch patriots with the central government’s trust” would serve as the Chief Executive and that patriotic forces would gain a “steady and overwhelming advantage” in the Election Committee and LegCo. As relevant here, the revisions superseded the five-step process that the NPCSC laid down in 2004; now only the NPCSC can propose and approve electoral reforms. While the 2021 changes caught many by surprise, Wu’s 2004 speech (excerpted above) in a way portended what was to come almost two decades later.
The incumbent NPCSC Chairman Zhao Leji, whose term ends in 2028, will reach the customary retirement age of 68 next March.
For longer accounts of the Sun Zhigang Incident, see, for example, Keith J. Hand, Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People’s Republic of China, 45 Colum. J. Transnat’l L. 114, 119–31 (2006).
A different group of five legal scholars submitted another petition to the NPCSC calling for establishing a special commission to investigate the Sun Zhigang case and the broader C&R system. See id. at 124–26.
1 吴邦国 [Wu Bangguo], 切实纠正城市收容遣送工作中的问题 [Effectively Correct Issues in Urban C&R Efforts], in 吴邦国论人大工作 [Wu Bangguo on Work Related to the People’s Congresses] 72, 72 (2017).
Hand, supra note 2, at 151.
See id. at 151–52.
1 Wu Bangguo, 改革要从中国国情出发 [Reform Should Be Based on China’s National Conditions], in Wu Bangguo on Work Related to the People’s Congresses, supra note 4, at 112, 112.
1 Wu Bangguo, 关于对台特别立法 [On Special Legislation on Taiwan], in Wu Bangguo on Work Related to the People’s Congresses, supra note 4, at 230, 236.
Id. at 238.
2 Wu Bangguo, 正确认识物权法制定中的几个分歧问题 [Correctly Understand Several Disagreements in the Formulation of the Property Law], in Wu Bangguo on Work Related to the People’s Congresses, supra note 4, at 347, 347.
1 Wu Bangguo, 关于修改监督法草案的指导思想 [On the Guiding Principles for Revising the Draft Oversight Law], in Wu Bangguo on Work Related to the People’s Congresses, supra note 4, at 278, 279.
See Wu, supra note 10, at 347.
For further discussion, see Yan Lin & Tom Ginsburg, Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement Mechanism, 63 Am. J. Comp. L. 482 (2015).
1 Wu Bangguo, 对香港问题的几点认识 [Some Thoughts on the Hong Kong Issue], in Wu Bangguo on Work Related to the People’s Congresses, supra note 4, at 162.