Following up on the Grant of Legislative Powers to China’s Cities: Pt. 2

Apologies to our readers for the delay in publishing Part 2.

Roughly two years ago, the National People’s Congress (NPC) approved an amendment to the Legislation Law (Amendment), granting the right to enact local regulations to 273 prefecture-level cities and autonomous prefectures (collectively, cities) across China. This post continues Part 1 with analysis of the local regulations enacted by (some of) the 273 cities since the passage of the Amendment. Like Part 1, this post is based on information (current through December 2016) provided by the NPCSC Legislative Affairs Commission (NPCSC LAC).

Quick Recap of Part 1

The summary below only covers the portion of Part 1 that is relevant to this post. 

In Part 1, we noted that the Amendment imposed several restrictions—both procedural and substantive—on the exercise of legislative powers by the eligible cities.

• Procedurally, the cities must obtain approval from the standing committees of provincial-level people’s congresses (provincial PCSCs) before exercising their new powers. Moreover, the local regulations are subject to the provincial PCSCs’ approval as well.
• Substantively, the cities may only enact local regulations in the following three areas:
  1. Urban and rural construction and administration;
  2. Environmental protection; and
  3. Historic and cultural protection.

  As discussed in Part 1, these three areas partially overlap with each other, and we agree with the views that the enumeration was intended to be exhaustive (see Part 1, footnote 7).

The data analysis in Part 1 focused on the first of two tables provided by the NPCSC LAC—one that documents when and how each provincial PCSC gave permission to the eligible cities within each province. (This post will focus the other table.)

In Part 1, we found that most provincial legislatures required different cities to start exercising legislative powers at different times, likely in consideration of the cities’ different levels of preparedness. As of January 10, 2017, 268 of the 273 cities have been formally permitted to start enacting local regulations.

Procedural vs. Substantive Regulations

Before diving into the list of regulations provided by the NPCSC LAC, we’d like take a look at those explicitly excluded therefrom—local regulations enacted to standardize legislative procedures (leg. proc. regulations).¹ These were largely modeled on the Legislation Law and corresponding provincial leg. proc. regulations (which were based on the former as well). For example, most of the leg. proc. regulations that we reviewed mandate a three-deliberation process (same as the Legislation Law), whereby legislative bills should normally be considered three times before a vote. Most also provide for an opportunity to comment on pending legislations.

Since they bring predictability and discourage arbitrariness in the legislative process, leg. proc. regulations occupy a special place in the legal system. Indeed, media once nicknamed the Legislation Law the “Little Constitution” (小宪法).

Given the importance of leg. proc. regulations, we painstakingly surveyed all 268 cities to see which ones enacted such regulations as their first sets of local regulations, and which ones didn’t. The results (Figure 1) showed that:²

1. 173 (64.6%) cities’ first sets of regulations were leg. proc. regulations;
2. 62 (23.1%) cities chose to enact substantive regulations instead;
3. One city (Qinhuangdao, Hebei) simultaneously passed both leg. proc. and substantive regulations;
4. The rest 32 (11.9%) cities either hadn’t started drafting local regulations or their legislative activities were unknown.³

The dominance of leg. proc. regulations was also seen across the provinces (Figure 2), as 19 (70%) of the 27 provinces have a majority of cities that passed leg. proc. regulations first. Interestingly, despite a few maverick cities, there was quite a high level of consistency within each province regarding the content (legislative procedure or not) of a city’s first set of regulations. It should also be noted that those cities that first enacted substantive regulations usually started drafting leg. proc. regulations soon thereafter.

Thus, it’s apparent that most, if not all, cities have recognized early on the importance of laying a procedural foundation for their future legislative activities. And that’s a (welcomed) departure from the route taken by the NPC, which didn’t pass the Legislation Law until 2000—46 years after the First NPC convened and 22 years after China’s opening-up. 

Substantive Local Regulations

Now back to the NPCSC LAC’s second table.

The table lists the 146 sets of substantive local regulations⁴ that had been passed by (some of) the 268 cities—representing 22 of the 27 provinces—through the end of 2016, along with other related temporal information (e.g., approval dates).

We assigned each set of regulations to only one of the three areas listed in the Legislation Law. It wasn’t a particularly easy task because of the indistinct boundaries between the areas. We therefore interpreted each area to be exclusive of the other two.

For regulations whose titles unambiguously point to a single area, the titles were the sole basis of categorization. For example, the Taizhou Regulations on the Protection of Aquatic Environment clearly belongs to the “environmental protection” category.

To made decisions on other regulations, we further surveyed their texts, focusing on their stated purposes, the upper-level legislations cited as authorities (if any), and the principal area dealt with by each set of regulations.

As shown in Figure 3, more than half of the 146 regulations relate to urban and rural construction and administration. The area of environmental protection ranks second, with 31% of the regulations. Lastly, only a handful of regulations concern historic and cultural protection.

The distribution is hardly surprising. Before the Amendment, the cities lacked the legal tools to effectively manage local affairs and to solve local problems, of which deteriorating environment certainly is one (see discussion in Part 1). Naturally, therefore, most regulations concern city management and environmental protection. And although China boasts 5,000 years of history, it’s unlikely that every city happens to have something of historic or cultural significance in urgent need of protection. Hence the relatively dearth of regulations in that area—at least for now.

1. Urban and rural construction and administration. A large number of regulations—perhaps even the majority, but we didn’t do the math—concern urban greening, city appearance and hygiene, and city management. Other topics touched upon include the management of scenic areas, public credit information, building safety, heat supply, e-bikes, elevator safety, the management of fireworks and firecrackers, and so on.
2. Environmental protection. A large number of regulations have the themes of drinking water source protection, water resources protection, and air pollution control. There were also a sizable number of regulations on the protection of specific geographical/geological features such as rivers, mountains, and geothermal resources.
3. Historic and cultural protection. Subjects covered by the 20 regulations in this category are all distinct from each other. All regulations except one⁵ are specific to historical or cultural heritage, such as the aromatic vinegar of Zhengjiang, Jiangsu; the dinosaur geological relics in Heyuan, Guangdong; the ancient city wall of Xiangyang, Hubei; and relics of the Maritime Silk Road in Quanzhou, Fujian.

Comments

We at NPC Observer generally see the grant of legislative powers to more cities as a positive development, for the following reasons.

1. Local governments now possess a higher degree of autonomy in managing local affairs and tackling local problems. That will certainly translate to more effective governance, since even provincial, let alone national, legislations may be too generalized to apply locally. Hopefully, the power grant will also lead to better governance, especially if the notice-and-comment requirements in leg. proc. regulations are strictly followed.

2. It’s possible that the power grant will increase citizens’ participation in the legislative process. While one might not be so enthusiastic about commenting on a national law regulating foreign NGOs or assets appraisal (unless you are in that business, of course), one might be more eager to influence local regulations regulating behaviors in subway cars or setting forth the requirements for owning a dog.

3. Lastly, the power grant added over 200 “experimental fields” nationwide for lawmaking. As matter of fact, local legislatures often pioneer new legislative procedures, techniques, and subjects that are later adopted by the NPC. For instance, in 1999, the Guangdong provincial legislature was the first in the nation to conduct legislative hearing, a practice later written into the Legislation Law. In 2015, the municipal legislature of Nanjing, Jiangsu was the first to use open bidding to locate a third-party to draft local regulations. And last year, the Hubei provincial legislature was the first to pass legislations on soil pollution control, setting the stage for a national law on the same subject (planned for 2017).

As the cities start to enact local regulations, an extra tier of legislations is added to many provinces’ legal systems. Keeping the legal system uniform through the recording-and-review (备案审查) process—that is, reviewing local regulations for violations of upper-level legislations—will be a challenging yet important task for provincial legislatures.

During the drafting of this post, we’ve seen several cities revise their regulations as a result of that process. But most local regulations were given the green light. Even in the former cases, we have found no written opinions explaining the problems with those regulations. Moreover, the mostly behind-the-scenes communications between municipal and provincial legislatures further give rise to doubts about the rigorousness and transparency of the recording-and-review process.

While we encourage local legislatures to improve the process themselves, we believe the NPC is ultimately responsible for laying down more detailed rules governing the recording-and-review process.

Also during the preparation of this post, we’ve visited tens, if not hundreds, of municipal people’s congresses’ websites. Most, in our view, reflect the institutions’ failure to adapt to the role of “legislatures.” The following are some of the problems that we think need immediate attention:

1. A surprising number of websites are grossly outdated, in most cases by months and sometimes even by years.
2. Many websites lack sections devoted to legislative activities.
3. Certain websites don’t have information on legislative sessions, including the bills considered and passed;
4. The regulations passed aren’t promptly published online, which likely violates the Legislation Law.
5. The public comment sections on a few websites are hard to use, or aren’t conspicuously featured.
6. Dead links within a website are common, and to a lesser degree, dead websites.

We believe these problems can be easily fixed, should the new legislatures put in the effort.

---

¹ The actual names of such regulations vary. Examples include Regulations on Legislation (立法条例), Rules of Legislative Procedure (立法程序规则), and Regulations on Formulating Local Regulations (制定地方性法规条例).

² In determining a city’s first set of regulations, we used the dates when regulations passed the municipal legislature instead of when they were approved by the provincial legislature.

³ More than half (or 17) of these cities are autonomous prefectures. Generally, they are in no rush to enact local regulations (地方性法规) because of their longstanding authorities to pass separate regulations (单行条例), which in many ways are functionally equivalent to local regulations. See here (in Chinese) for a more in-depth explanation of the differences between separate and local regulations.

⁴ The original table includes 148 different regulations, but we found that the following two are in fact separate regulations (and therefore not local regulations) enacted by two autonomous prefectures: the Dali Bai Autonomous Prefecture Regulations on the Protection and Administration of Water Resources, and the Wenshan Zhuang and Miao Autonomous Prefecture Regulations on the Management of the Guangnan Bamei Tourist Area. Both were designated as separate regulations by official documents (see here and here), and the Dali Regulations were passed five months before the Prefecture was allowed to enact local regulations.

⁵ The exception is the Weifang Regulations on the Protection of Cultural Relics, which made no references to city-specific cultural or historical sites or objects.