Following up on the Grant of Legislative Powers to China’s Cities: Pt. 1

On March 15, 2015, the National People’s Congress passed an amendment to the Legislation Law (Amendment), which, among other things, granted legislative powers1 to hundreds of cities2 across China. In the almost two years since, the relevant standing committees of provincial-level people’s congresses (provincial PCSCs) have been busy deciding on when the eligible cities within their jurisdictions may start exercising legislative powers—a procedure mandated by the Amendment. As for those cities, many have taken the first step to experiment their the new powers by enacting local legislations.

Last week, the Constitutionalism of China (中国宪政网) published on its WeChat account two tables provided by the NPCSC Legislative Affairs Commission on the actions taken by the provincial PCSCs and the eligible cities since the Amendment’s passage.

Here, in Part 1 of a two-part series, we’ll present our analysis of the first table, along with additional research done based on those data. The second table will be the topic for Part 2.

We’ll begin this post with some background information and a brief introduction to the relevant part of the Amendment.

Background

Since the founding the People’s Republic, China’s leaders in Beijing have been reluctant to delegate too much power to local governments. Indeed, under China’s first Constitution, not even provinces, much less cities, were given any legislative power. Eventually in 1982, the latest Constitution granted provincial PCSCs authorities to enact local regulations (地方性法规).3

Several post-1982 laws, including the Legislation Law, additionally granted legislative powers to a few so-called “larger cities” (较大的市). They included the capital cities of the 22 provinces and five autonomous regions, the four cities where special economic zones were located,4 and 18 other larger cities that have been designated as such by the State Council.5 Like the provinces, these 49 cities were authorized to pass local regulations so as to implement national laws and administrative regulations, and also to manage other local affairs.

While other cities may still perform those tasks with lower-level normative documents, many have nonetheless applied for classification as larger cities for years. What’s the appeal of local regulations, then?

  • First, local regulations are able to create a legal environment conducive to attracting outside investment—once a priority of perhaps almost all local governments. This may sound counterintuitive on first impression, but compared with non-regulations documents, local regulations are more authoritative in form and won’t change as easily due to the somewhat rigorous legislative procedures stipulated by law.
  • Second, governing with regulations is more effective because national laws have imposed numerous restrictions on what non-regulations documents can do. For example, such documents are prohibited by the Administrative Penalties Law from providing for any types of administrative penalties, including warnings and fines.

To the dismay of many cities, however, the State Council hasn’t approved any larger cities since April 1993. Therefore, until the Amendment’s passage, only about 15 percent of China’s approximately 300 cities had proper legislative powers.

The Legislation Law Amendment

The Amendment vested legislative powers in the following three categories of 273 prefectural-level administrative divisions in 27 provinces and autonomous regions:

  1. All cities with districts (设区的市), which include the original 49 with larger-city status;
  2. All autonomous prefectures (自治州), each home to one or more ethnic minorities living in concentrated communities;6
  3. Four other prefecture-level cities that for various reasons don’t have districts: Dongguan and Xiamen Zhongshan [Jan. 18 Correction] of Guangdong Province, Jiayuguan of Gansu Province, and Sansha of Hainan Province.

Continuing with the Central Government’s wariness of power delegation, the Amendment put in place several restrictions on the exercise of legislative powers by these cities.

  1. Eligible cities cannot immediately start formulating local regulations. Instead, the time and procedures for them to do so are to be determined by the corresponding provincial PCSCs, which shall consider each city’s “population size, territory area, economic and social development, legislative needs, legislative capacity,” and other factors.
  2. Eligible cities can only enact local regulations in the following three areas:7
    1. Urban and rural construction and administration;
    2. Environmental protection; and
    3. Historic and cultural protection.
  3. The local regulations enacted must be approved by the corresponding provincial PCSCs before taking effect. While this provision isn’t new because it has been applied to the original 49 larger cities, it’s a restriction nonetheless.
  4. It also goes without saying that local regulations must not contravene any upper-level legislations, including provincial and national legislations.

The boundaries of the three areas mentioned, however, aren’t so clear-cut. A reasonable argument can be made that the last two areas more or less fall within, or at least overlap with, the first. The Legislative Affairs Committee of the Changsha Municipal People’s Congress echoes this point in an article, where it also reasons that because under the Environmental Protection Law, environmental protection includes the protection of cultural and historical sites, the last two areas overlap to a certain degree as well.

The blurred boundaries did cause us some trouble when we tried to assign each of the regulations enacted to a single area as part of our own research for Part II.

Provincial PCSCs’ Decisions

Zoom in for details

Figure 1 is a visualization of the first table prepared by the NPCSC, which tracks when and how the 27 provincial PCSCs decided to give the green light to the eligible cities within each province to start using their new powers. Their methods for doing so can be summarized as the following three:

  1. Decided on all cities in one batch, and permitted them to start exercising legislative powers simultaneously. An example is the Gansu provincial PCSC, which on November 27, 2015 permitted all 13 eligible cities in the province to start formulating local regulations immediately.
  2. Decided on all cities in one batch, but required them to start exercising legislative powers at different times. For instance, the Shanxi provincial PCSC gave permission to all nine eligible cities in the province on November 25, 2015, but only allowed two to start exercising powers immediately. Another five may do so once each of their municipal people’s congresses establishes a legislative affairs committee (as required by the Legislation Law). The rest two must wait for further evaluation.
  3. Made decisions in multiple batches. For example, of the eight eligible cities in Xinjiang, the Xinjiang provincial PCSC has granted legislative powers to five in four batches, with three cities still pending.

We found that the last method is the favored by most (15 of 27) provincial PCSCs (Figure 2). Moreover, considering that the second method differs from the last one only in form, a supermajority of provinces has taken the less efficient, but perhaps more cautious approach.

figure2

Judging from both the methods and timing of the decisions, it is clear that not all cities were treated equally—at least not at once. Some were more prepared to exercise the new powers than others. Several provincial PCSCs suggested the following as the principal factors determining a city’s preparedness, which in turn influenced when and how they made their decisions:

  1. Legislative personnel. That is, whether a particular city already has or will be able to find the necessary personnel with practical or theoretical experience in lawmaking. Also, whether the city’s Communist Party has approved the choice for such personnel;
  2. Necessary institution. This refers specifically to whether a city has established a legislative affairs committee (法制委员会) under its people’s congress (see the Shanxi Province example above); and whether the city’s Communist Party office for institutional establishment (编制办公室) has authorized the establishment of the committee;
  3. Legislative needs. Namely, whether a city has urgent needs to enact local regulations. Having myriad low-level normative documents to “upgrade” might satisfy such a requirement. In addition, whether a city has drafted a legislative plan is also taken into account.

We noticed that, as a general rule, cities from poorer parts of China (or of a province) need to wait longer than the more prosperous ones to receive permission from provincial PCSCs, likely because it’s harder for them to meet the requirements above.

Here are some additional takeaways from the data and figures presented above:

  1. As of January 10, 2017, 269 of the 273 eligible cities have received permission, leaving one one city in Tibet and three others in Xinjiang still waiting.
  2. 76% of the eligible cities had received permission by the end of 2015, and 86% by March 2016—one year after the Amendment took effect. Most of the rest 14% only received permission several months after their sister cities in the same province did.
  3. The Anhui Province spearheaded the provincial PCSCs’ decision-making process, giving permission to six Anhui cities on May 21, 2015, two months after the Amendment went into force. The Hainan and Guangdong Provinces followed closely behind, rendering their first batches of decisions on May 27 and 28, respectively.
  4. The Xinjiang Uighur Autonomous Region made the most recent decision, permitting the city of Turpan to start formulating local regulations on January 3, 2017.
Zoom in for details

When plotting the time the cities may formally start exercising legislative powers, the graph (Figure 3) changed considerably due to the time delay imposed by many provincial PCSCs. Still, the general sequence was quite similar to that in Figure 1.

By the end of 2015, 59% of all eligible cities had been formally vested with legislative powers. That number had risen to 82% by the end of March 2016. Indeed, the number of cities with formal start dates after March 2016 dropped so significantly that the Amendment’s first anniversary seemed to be a deadline for many provincial PCSCs.

As of January 10, 2017, a total of 268 cities (out of 273)8—more than five times as many as there were before the Amendment’s passage—can exercise legislative powers for the first time. And most have already passed one or more local regulations, which we’ll explore in Part 2 of this series.

1. While such legislative powers in the legal sense include both those granted to the cities’ legislatures—their people’s congresses and the standing committees thereof—to enact local regulations, and those granted to the cities’ people’s governments to formulate rules, only the former are of concern to this series.↩

2. “Cities” as used in this post only refers to either prefecture-level cities (地级市), or autonomous prefectures (自治州), or a mixture of the two. The significance of these two types of administrative divisions will be explained later.↩

3. While we translate the term “法规” as “regulations,” these are in fact (low-level) laws passed by legislatures and not by executive agencies as in the United States (and other jurisdictions). When the Amendment was open for public comments, your author suggested to the NPC that all local regulations be renamed local laws (地方性法律), but evidently with no success.↩

4. They are Shenzhen, Zhuhai, and Shantou of Guangdong Province, and Xiamen of Fujian Province.↩

5. The four directly governed municipalities (直辖市) of Beijing, Tianjin, Shanghai, and Chongqing are not included because, while having the character for city (“市”) in their names, they are considered provincial-level administrative divisions.↩

6. Autonomous prefectures have always had the (constitutional) authorities to enact autonomous regulations (自治条例) and separate regulations (单行条例), but not local regulations—not until the Amendment was passed. See here (in Chinese) for an explanation of the many differences between autonomous/separate regulations and local regulations.↩

7. Paragraph 2 of Article 72 of the amended Legislation Law provides in part that eligible cities may enact local regulations in “城乡建设与管理、环境保护、历史文化保护等方面,” where the underlined character may signify either an exhaustive or a non-exhaustive list. According to this article published in the Politics and Law journal, there is much debate on which meaning to choose here. The author of the article interprets the character as ending an exhaustive list. In other words, he opines that the NPC limited the areas to three listed—with which we agree. It should also be noted that this restriction narrowed the range of areas in which the original 49 larger cities may legislate, from the implementation of national legislations and the management of local affairs in general, to the three specific areas cited above.↩

8. The Diqing Tibetan Autonomous Prefecture of Yunnan Province has been granted permission but isn’t included in Figure 3, because (at least according to our research) it has yet to establish a legislative affairs committee under its people’s congress, the requisite for its formal exercise of legislative powers.↩

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