China's top legislature set to have sweeping power over other state organs' rule-making
The Standing Committee of the National People's Congress is set to formalize its power to review all State Council regulations, anti-corruption rules, etc.
The Standing Committee of the 14th National People’s Congress (NPC), China’s top legislature, is having its 7th, typically bimonthly session since taking office in March.
(There was an anomaly this year, with the 4th session in July replacing the Foreign Minister, the Governor of the Central Bank, and other items.)
The full details of the items of the session don’t appear to be public, but authoritative reports suggest that the NPC Standing Committee is deliberating a rule that will grant itself sweeping power in reviewing rules made by other state organs at the central and local levels, including the State Council, China’s government cabinet, and National Supervision Commission, the state anti-corruption agency that is the same organ as the Central Commissions for Discipline Inspection (CCDI) of the Communist Party of China.
A Monday, Dec. 25 report by Xinhua, China’s official news agency, that is also posted by the NPC Standing Committee on its website says
The draft decision on perfecting and strengthening the system of 备案审查 filing and review is submitted for deliberation at the seventh meeting of the Standing Committee of the 14th National People's Congress on the 25th.
The decision draft consists of 22 articles, which stipulate the working principles of 有件必备、有备必审、有错必纠 "when there is a [qualified] rule it must be filled [with the NPC Standing Committee], when a filling is made it must be reviewed, and it must be corrected if there are mistakes" that must be implemented…
The draft decision specifies the scope of filling and review by the Standing Committee of the NPC, which includes 行政法规 administrative regulations, 监察法规 supervisory regulations, 地方性法规 local legislations, as well as 司法解释 judicial interpretations. It also requires that the rules and judicial interpretations must be submitted for filing and review within thirty days from the date of their promulgation.
A more detailed report by Xinhua, with the same byline as the previous one, says
It specifies the scope of filing and review by the Standing Committee of the National People's Congress, which includes 行政法规 administrative regulations, 监察法规 supervisory regulations, 地方性法规 local legislations, 自治州 autonomous prefectures’ and 自治县 autonomous counties’ 自治条例和单行条例 legislations, 经济特区法规 special economic zone legislations, 浦东新区法规 Pudong New Area legislations, 海南自由贸易港法规 Hainan Free Trade Port legislations, as well as 属于审判、检察工作中具体应用法律的解释interpretations of specific legal applications in the course of trial and prosecution work made by the Supreme People's Court and the Supreme People's Procuratorate, respectively.
In terms of the key focus areas for review, the draft decision specifies that they include the following:
Whether it conforms to constitutional provisions, constitutional principles, and constitutional spirit.
Whether it aligns with the major decisions and deployments of the Central Committee of the Communist Party of China and the significant directions of national reforms.
Whether it exceeds authority and diminishes the rights of citizens, legal persons, and other organizations or increases their obligations.
Whether it violates higher-level legal provisions.
Whether it contravenes statutory procedures.
Whether the measures taken are in line with the principle of proportionality relative to their intended objectives.
The draft decision makes it clear that 专门委员会 Special Committees of the NPC and the working organs of the Standing Committee of the NPC, after conducting a review and determining that the rules or judicial interpretations should be corrected, can engage in communication with the drafting authorities to facilitate the amendment or repeal of such rules or interpretations.
If, following communication, the drafting authorities disagree with making amendments or repealing them, or if they fail to provide a clear plan and timeline for addressing the issue, written review opinions should be submitted to the drafting authorities by the law.
To underscore the rigidity of the correction process, the draft decision specifies that if the drafting authorities do not make amendments or repeal rules or judicial interpretations by the written review opinions or the provided plan, Special Committees of the NPC and the working organs of the Standing Committee of the NPC can, following the law, propose relevant motions and suggestions. The decision to submit these motions and suggestions for review by the Standing Committee will be determined by the Chairperson's meeting.
That means if this decision is adopted by the 7th Session of the 14th NPC Standing Committee, all of the below will have to be approved by the NPC Standing Committee.
行政法规 administrative regulations, 监察法规 supervisory regulations, 地方性法规 local legislations, 自治州 autonomous prefectures’ and 自治县 autonomous counties’ 自治条例和单行条例 legislations, 经济特区法规 special economic zone legislations, 浦东新区法规 Pudong New Area legislations, 海南自由贸易港法规 Hainan Free Trade Port legislations, as well as 属于审判、检察工作中具体应用法律的解释interpretations of specific legal applications in the course of trial and prosecution work made by the Supreme People's Court and the Supreme People's Procuratorate
Among them, administrative regulations are rules made by the State Council, China’s government cabinet, supervisory regulations are rules made by the National Supervision Commission/Central Commissions for Discipline Inspection, and local legislations are rules by provincial National People’s Congresses.
For those unfamiliar with China’s legal system, it may be worth noting that administrative regulations refer to rules only adopted by the State Council, but NOT extended to its ministries. The ministries’ rules are called 部门规章 ministerial regulations. That means if, for example, the National Development and Reform Commission adopts a regulation, it will NOT be subject to the filing and review process.
Formalizing such a rule is NEW, but the practice of the NPC Standing Committee wielding the power of asking other state organs to fill and review their rules is NOT ENTIRELY NEW.
A spokesperson of the Legislative Affairs Commission of the NPC Standing Committee said this month, in a Q&A carried by the Standing Committee’s website, that the draft decision will
坚持有件必备，进一步明确和扩大备案范围，加强备案工作
Persisting in the principle of when there is a [qualified] rule it must be filled [with the NPC Standing Committee], further clarifying and expanding the scope of filing, and strengthening filing work
In the political system of the People’s Republic of China (PRC), the NPC is, according to the PRC’s constitution, the NPC is the highest organ of state power of the PRC. Legally speaking, the State Council - the cabinet made up of central ministries - is the executive branch that is accountable to the NPC. For example, the Premier of the State Council, or the head of the government, is nominated by the President of the NPC and approved by the NPC. In that vein, the NPC Standing Committee having the power to review the administrative regulations of the State Council is not illogical.