signal

The National People’s Congress is becoming more willing to challenge the State Council on some issues in the public spotlight, notably environmental protection and public finance.


outlook

NPC’s push to increase its influence, however subtle, is significant. For a long time, the NPC passively approved new laws. Now, the Party may no longer be able to take for granted that the NPC will approve legislation—exposing tensions as ministries fight its larger role.

Ministry of Finance (MoF) has openly defied the NPC on fiscal oversight and tax policy this year. MoF and NPC will continue to clash over the Budget Law amendment. The outcome of the battle for authority between the NPC and Lou Jiwei 楼继伟, the outspoken finance minister, will define the NPC’s role in the future.

The NPC’s demand that the Supreme People’s Court clean up its thousands of judicial interpretations asserted NPC’s scrutiny authority over the constitutional basis of laws. But the NPC still lacks resources for anything more than a haphazard, hit-or-miss approach to either legislation or supervision. Beyond public-interest areas where it has already made inroads, like environmental protection laws, the NPC will struggle to gain ground.


context

environmental protection

oct 2013: Wildlife Protection Law amendment gets on 12th NPC agenda after repeated lobbying from representatives at 2012 and 2013 ‘two meetings’. NPC Environment Protection and Resources Conservation Committee leads drafting.

oct 2013: NPC takes over from NDRC on drafting Environmental Protection Law amendment. Criticising the previous two drafts as weak and insubstantial, the NPC switches from a minor amendment (xiuzheng 修正) to a complete re-write (xiuding 修订).

jan 2014: first legislation, ‘Air pollution prevention and control regulation’, released by Beijing Municipal People’s Congress in 13 years—an encouraging sign that local congresses are more willing to exercise legislative authority.

public finance

aug 2014: Budget Law amendment passed by the NPC Standing Committee, after a contentious process in which the NPC, finding the two previous MoF drafts inadequate, took over to impose tough fiscal discipline and legislative oversight.

15 mar 2015: Fourth Legislation Law draft amendment passes. NPC delegates, most notably Zhao Dongling 赵冬苓, successfully rallied to thwart the 8 March third draft that rescinded NPC authority to decide tax policies.

jun 2015: MoF draft Budget Law implementation guidelines appeared to usurp NPC powers ceded in the Budget Law. Scholars published an open letter in protest. ticker

aug 2015: A new Opinion on improving reporting to the NPC Standing Committee on the handling of issues revealed during budgetary audits was passed at the 15th Deepening Reform meeting. It specifies clearer procedures for the handling of such issues, strengthening the NPC’s role. ticker

keeping the judiciary in line

mar 2015: Legislation Law amendments limit SPC and SPP judicial interpretations to specific clauses in laws and require them to be sent to the NPC for approval. Beyond that, they can only submit proposals to the NPC Standing Committee requesting interpretation. signal

apr 2015: SPC releases an exhaustive collection of judicial interpretations (1949-2013) following a cleanup campaign initiated in 2011. At the behest of the NPC, the SPC reviewed 1600 judicial interpretations, of them 753 were retained, 132 amended, and 715 discarded.

other high-profile areas in the public eye

25 oct 2013: Third Consumer Protection Law draft amendment passes. Engaging in widespread research such as interviewing online sellers, the NPC was unusually well-informed. It fought, and won, the battle for more focus on consumers and introduced public-interest litigation into the draft.

24 aug 2015: Third Criminal Law draft amendment passes. Surprise last-minute changes include criminalising the buying of abducted women and scrapping the crime of prostitution with young girls under the age of 14 (that offers a more lenient sentence than rape of minors) following pressure from NPC.


roundtable

legislation enters ‘age of interpretation’

Ye Zhusheng 叶竹盛 | South Reviews

The NPC is reluctant to exercise its right to interpret. Only 23 legislative interpretations have been issued since 1996, and most of those relate to matters directed exclusively by Party edict, such as the Hong Kong Basic Law. Requests from scholars and activists for clarification on extra-judicial detention, like reeducation through labour, went unanswered. Nor has the NPC formally challenged the legality of judicial interpretations that stretch the scope of authority granted to the SPC and SPP by law. The 2015 Legislation Law amendment is a step forward. Improving NPC legislative review should encourage more interpretations. Only explicit interpretations, as clear as ‘1+1=2’, will do. At the very least the NPC should provide guidance on legislation when departmental conflicts arise. Local NPCs, however, are not likely to be able to manage a large workload.

NPC delegates are ‘getting into shape’ on reviewing the budget

Wu Xiaoling 吴晓灵 | Southern Weekly

NPC Finance and Economy Committee can, through review of the budget report draft, influence MoF agenda before a new fiscal year. But to do more on budgetary supervision, the 170 NPC Standing Committee delegates must be more engaged by consulting professionals on technical details. NPC must take the initiative to push for further institutional changes, such as a new NPC Budget Committee. Fortunately, since the Budget Law amendment, more NPC Standing Committee delegates are starting to be proactive in asking questions, instead of giving the Ministry of Finance a free pass.

NPC driving legislation: overcoming departmental interests

Zhou Dongxu 周东旭 | Caixin

Legislation drafting is an NPC responsibility in theory, but is in fact handled mostly by various State Council agencies. They propose new bills, reach compromises, and submit to the NPC for minor corrections before approval. As a result, the Constitution is usurped, laws are riddled with loopholes that favour the authorities that draft them, and the NPC is reduced to a rubber stamp. To place a check on state power, the NPC and its local counterparts must initiate legislative processes and draft pending bills on their own terms. An oft-cited reason for legislative inaction, the lack of technical know-how, no longer holds water. It is the NPC that needs to decide whether it wants to have a bigger say in setting policies.


in the spotlight

Qiao Shi 乔石 | former NPC Chairman

Qiao retired as Party discipline, security and judiciary chief in 1992, to become the first Politburo Standing Committee member to lead the NPC. He used his tenure to push through a series of economic laws, including the Budget Law, that laid the foundation of a market economy. A Deng Xiaoping 邓小平 protégé, he openly criticised Jiang Zemin 江泽民 in the 1990s; and after retirement derided now disgraced former public security chief Zhou Yongkang 周永康 and former Chongqing Party Secretary Bo Xilai 薄熙来 for bypassing the legal system. When he passed away in June 2015, Qiao was remembered as one of the most open-minded reformers ever. Under his guidance, the NPC saw its most productive law-making period.


NPC Standing Committee Legislative Affairs Commission 全国人民代表大会常务委员会法制工作委员会

Responsible for drafting bills assigned by the Party, counselling the NPC on the legal technicalities of pending legislation, and archiving and scrutinising judicial interpretations and administrative decrees issued by central agencies and local governments. Reformers aspire to a future NPC that governs/legislates according to the constitution. The 2015 Legislation Law amendment grants the Commission that power, but it is still far from ready to declare a government decree unconstitutional.


Qin Qianhong 秦前红 | Wuhan University Law School

A moderate critic of the current political system and advocate of incremental change, Qin frequently comments on the ways the NPC fails to live up to its mission, differing from most reformers who expect little from it. In his view, the Legislation Law amendment is a major effort towards a legislative ‘new normal’. He hopes the NPC can develop a leading role, supported by its own team of staff, and operate independently under Party command. Municipal governments, however, cannot be trusted to act in the public interest, so their legislative power must be curbed. A new law should declare that only the NPC can interpret the constitution.


in case you missed it…

cp.signals—domestic policy movement
pensions embrace market returns
‘capacity cooperation’: going global 2.0

cp.positions—audit of shifts across policy sectors
end september: SOE reform, command economy lives on
mid september: lining up behind the chief

cp.focus—exploratory analysis
SOE reform: more plans, more pilots
rhetoric makeover heading for Washington?

cp.observer—monthly roundup
august roundup: reform agenda edges forward
july roundup: correcting ambitions


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