Scholarship Highlight: Law Enforcement Inspections—The NPCSC’s Weapon to Ensure Law-Based Administration?

Editor’s Note: This article was published in May 2017, and the information it contains may be outdated.

The agenda of the NPC Standing Committee (NPCSC) session last month included an inconspicuous item: reviewing the State Council’s response to the report on the law enforcement inspection of the Environmental Protection Law; this report was previously discussed by the NPCSC last November.

What is an law enforcement inspection (执法检查)? Here, taking the opportunity of the first edition of our new, non-regular series, Scholarship Highlight, we present an overview of this supervisory measure of the NPCSC that is sometimes overlooked. We will also take a closer look at a recent example mentioned above: the law enforcement inspection of the Environmental Protection Law last year. Through this post, we wish to explore whether the NPCSC’s law enforcement inspections can act to further “law-based administration” (依法行政) by the State Council.

This question has also been at the center of the study of a prominent Chinese legal scholar, Lin Yan (林彦).  Basing this post on three papers of his (see References), we hope to introduce his research on law enforcement inspections to our readers who might otherwise be unfamiliar with the Chinese academia.

What Are Law Enforcement Inspections?

The NPCSC is, under China’s Constitution, more than just a legislature. It not only enacts laws but also supervises other central state organs—at least nominally. One way to exercise its supervisory power is to regularly conduct the so-called law enforcement inspections (LEIs).

The Constitution, however, does not explicitly grant the NPCSC the authority to supervise the enforcement of laws. The LEIs as a supervisory tool were therefore considered as having been “created” by the NPCSC itself (Lin 2009). They started out as experiments during the mid-1980s. Then in the 1990s, the use of LEIs became “systematized” (制度化) and eventually gained statutory status with the enactment of the Law on Supervision by the Standing Committees of the People’s Congresses at All Levels, or the Supervision Law, in 2006 (Lin 2009). Below we will summarize the NPCSC’s current practice of conducting LEIs.

Agenda Setting

Under Article 23 of the Supervision Law, the Council of Chairmen decides on and releases annual LEI plans (as part of the NPCSC’s annual supervisory plans). The criteria for choosing the laws for enforcement inspections are set forth in Article 22, which stipulates that the issues LEIs seek to address should:

• have a bearing on the overall situation of reform, development, and stability;
• concern the people’s vital interests; and
• be of widespread concern.

The broad statutory language here grants the NPCSC wide latitude in determining the laws for inspections. In 2016, for example, the NPCSC inspected the enforcement of the following six laws:

• Food Safety Law (latest revision effective in October 2015)
• Production Safety Law (latest amendment effective in December 2014)
• Environmental Protection Law (latest revision effective in January 2015)
• Road Traffic Safety Law (enacted in 2003; last amended in April 2011)
• Water Law (enacted in 1988; last major revision in 2002)
• Law on Promoting the Transformation of Scientific and Technological Achievements (latest amendment effective in October 2015)

It is not hard to notice that two-thirds of the laws chosen in 2016 concern public safety and public health—areas that are closely tied to the public’s daily life. It is plausible that a series of highly publicized incidents in 2015 has influenced the Council of Chairmen’s decision-making process. The explosions at the Port of Tianjin and the sinking of Oriental Star, for instance, were possibly factors leading to the LEI of the Production Safety Law. Not to mention the persisting smog affecting vast swaths of China, which likely contributed to the LEI of the Environmental Protection Law.

As usual, the NPCSC selected and announced in advance certain parts of each law as the focus of the LEIs. For laws that were revised by the current NPCSC (all but the Water Law and the Road Traffic Safety Law), the LEIs revolved around statutory schemes that were newly introduced. For the other two laws, certain provisions were singled out for enforcement inspections as well.

Through an empirical study of past administrative lawsuits, Lin (2015) finds another pattern in the NPCSC’s selection of LEIs. He argues that LEIs and administrative litigation “complement” each other with respect to supervising law enforcement because the NPCSC tends to inspect the enforcement of laws that are usually the least cited by courts in administrative lawsuits. The Agriculture Law, for example, has been the subject of nine different LEIs but was only cited in 18 of 44,018 administrative litigation judgments.^[1] The Administrative Penalties Law, by contrast, was cited by 1807 of the same 44,018 cases, but has never been chosen by the NPCSC for enforcement inspection.

Process

Currently, the LEI process contains the following four major steps:

• Before each inspection, the NPCSC forms an LEI team that is usually headed by an NPCSC Vice Chairperson and includes a few other members from the NPCSC and relevant NPC special committees.
• After an inspection, the LEI team submits an LEI report for the NPCSC’s deliberation, during which State Council officials in charge of enforcing the law in question are usually present to answer NPCSC members’ questions.
• Afterwards, the NPCSC’s deliberation opinions along with the LEI report are forwarded to the State Council for studying. The latter is typically required within six months to submit to the NPCSC a written response on its handling of the LEI report.
• The NPCSC will then deliberate the response and may also arrange a follow-up inspection.

While this basic formula, “inspection–NPCSC deliberation–State Council response,” has largely been fixed, the NPCSC is still constantly experimenting with new modifications of the process. For instance, in 2016 the NPCSC held special inquiries (专题询问) alongside its regular deliberations of the LEI reports for all four safety- and health-related laws listed above. Special inquiries are formal occasions that responsible officials are required to attend to answer NPCSC members’ questions. According to an NPC official, the combination of LEIs and special inquiries is indeed an innovation of the 12^th NPCSC to more effectively exercise its supervisory powers.

Over the years, the NPCSC also innovated different methods to conduct the actual inspections. To cite a recent example, the 2016 LEI of the Road Traffic Safety Law used online surveys hosted on numerous government websites to solicit public opinions on the enforcement of the law. 335,747 people participated in the survey, leaving thousands of comments, according to the inspection report. Other forms of inspection include:

• both scheduled and unannounced field visits;
• undercover visits to key locations and facilities;
• seminars with scholars, professionals, and other interested parties;
• requesting government agencies to report on relevant matters.

Functions

Article 26 of the Supervision Law is the only article hinting at the functions of LEIs, stipulating that each LEI report must include:

• an assessment of the enforcement of the law inspected, including the existing problems in law enforcement and suggestions for improvement; and
• suggestions for revising relevant laws and regulations in order to improve them.

In part echoing the statutory language, Lin (2010, 2015) theorizes, based on his examination of past LEIs and related events, that LEIs have performed the following five functions in practice:

1. Ensuring the fulfillment of specific law enforcement obligations.
   Most apparent from the texts of the Supervision Law, the NPCSC’s task here is to check whether the State Council is faithfully enforcing the laws being inspected and to identify any “failures to follow the law” (有法不依) and “failures to punish violations of law” (违法不究) (Lin 2015).
2. Affecting the State Council’s law enforcement priorities.
   As we have mentioned, several areas of focus of each LEI are made public beforehand. Releasing such information prior to the LEIs will drive the public’s and media’s attention to those particular areas, thereby inducing the State Council to adjust its priorities. The suggestions that NPCSC LEI teams include in their reports are an even more direct way to achieve that end. Because the State Council is required by law to respond to the LEI reports, it will necessarily direct more resources to address the issues raised by them.
3. Requesting the establishment of more effective law enforcement systems.
   In its legislative process, the NPCSC has so far paid too little attention to the efficiency of law enforcement systems, according to Lin (2015). In practice, issues in law enforcement will necessarily arise from the inadequacy of the legislative process. The NPCSC therefore uses LEIs as an opportunity to uncover these issues and usually make the following types of proposals for increasing law enforcement efficiency:
   • Establish clearer boundaries between the authorities and responsibilities of different law enforcement bodies;
   • Enhance the independence of law enforcement bodies;
   • Ensure the sufficiency and capability of law enforcement personnel.
4. Pressing the State Council to supply adequate funding and other law enforcement resources.
   Unlike the national legislatures in other countries, the NPC and the NPCSC only play a largely rubber-stamping role in the budget process—which the State Council dominates. In addition, because the NPCSC hardly conducts any cost-benefit analysis during the legislative process, insufficient funding for law enforcement is a recurring issue identified by LEIs. By pressing for adequate funding for law enforcement in LEI reports, the NPCSC may exert greater influence and supervision over the budget process.
5. Influencing the NPCSC’s and other governmental bodies’ legislative agenda.
   According to Lin (2010), LEIs can influence the NPCSC’s own legislative agenda by acting as a “legislative information collection system” that is independent from the State Council, which has traditionally dominated the legislation drafting process. The idea is that the NPCSC has used information gathered through LEIs to more proactively respond to any demand for legislations. Moreover, LEIs can also shape other state organs’ legislative agenda by requesting them to formulate relevant legal authorities such as administrative regulations and judicial interpretations. Lin therefore considers LEIs a bridge connecting the NPCSC’s two major sets of powers: legislative and supervisory.

The aggregate effect of these functions is that, by supervising the State Council system on the levels of “action, policy, organization, and budget,” LEIs help achieve more effective law enforcement and promote “law-based administration,” argues Lin (2015).

2016 LEI of the Environmental Protection Law: A Closer Look

Lin’s theory on the functions of LEIs as summarized above may appear a bit too abstract (and dull), we thus in this section use a recent example—the 2016 LEI of the Environmental Protection Law (EPL), the resulting LEI report (Inspection Report), as well as the State Council’s response thereto (Response)—to illustrate (and test) his theories. By way of this exercise, we wish to better understand if and how this LEI has affected the enforcement of the EPL.

Agenda Setting

The Inspection Report suggests that this LEI, which was carried out just over a year after the revised EPL came into force, was requested by the Communist Party. It also identifies the following areas as the focus of the LEI:

• performance of environmental protection duties by all levels of governments;
• implementation of major legal schemes established by the EPL;
• prevention and control of atmospheric, water, and soil pollution; and
• environmental protection supervision and law enforcement (环保监察执法).

Process

The LEI team was led by three Vice Chairpersons, consisted mostly of members of the NPC Environment Protection and Resources Conservation Committee, and went to 23 cities in eight provinces. During the inspection, the LEI team

• Heard reports from the State Council, the Supreme People’s Court (SPC), and the Supreme People’s Procuratorate (SPP);
• Held 21 seminars;
• Conducted field study of 106 units and projects;
• Carried out random inspections;
• Entrusted 23 other provincial people’s congresses with conducting LEIs of the EPL within their own jurisdictions.

Evaluation of EPL Enforcement

The Inspection Report first devotes considerable ink to praising the State Council and other agencies for their efforts to enforce the EPL. Due to the limited space here, however, we will skip that part and instead focus on the problems identified and the suggestions proposed by the Inspection Report—which are arguably its core content. Below, we reproduced excerpts from the Inspection Report the most closely related to the priorities of this LEI. Keep in mind that the Report recognizes more problems than we list below.

1. Performance of environmental protection duties by all levels of governments: “Some local cadres have illegally interfered with environmental monitoring and law enforcement; local protectionism still exists. The environmental protection duties of relevant departments are unclear; … interagency coordination and cooperation was lacking, [resulting in] difficulty in sharing information and a lack of synergy in law enforcement.”
2. Implementation of major statutory schemes established by the EPL: “The disclosure of environmental information falls short of being timely and comprehensive. … [T]he information disclosure by some enterprises is not standardized; they ‘speak only of the good but nothing of the bad.’ The implementation of the pollution discharge licensing system is not standardized; and the requirement that enterprises discharging pollutants must hold licenses is not fully implemented.”
3. Prevention and control of atmospheric, water, and soil pollution: “[P]roblems such as scattered coal burning, flying dust from constructions, and motor vehicle pollution are still quite severe in some areas. … The polluted and smelly waters in the waterways of certain cities affect the residents’ living qualities; the people are deeply concerned.”
4. Environmental protection supervision and law enforcement: “There is a shortage of environmental law enforcement personnel at the basic level; they have poor professional abilities, lack sufficient technical support and adequate funding, and are maladapted to the onerous supervision and management tasks.”

NPCSC’s Recommendations vs. State Council’s Response

In the chart below, we listed recommendations from the Inspection Report that correspond to each of the functions of LEIs as proposed by Lin. We also checked if the State Council’s Response addresses each of those recommendations. Note that neither the recommendations nor the responses listed below are exhaustive, and that, in the process, we have inevitably generalized and lumped similar ones together to keep the table simpler.

Functions of LEIs	NPCSC’s Recommendations (Relevant EPL provisions)	State Council’s Response
Ensuring the fulfillment of specific law enforcement obligations	Increase policy support for the environmental protection industry (Art. 7)	✓Actively develop such industry by issuing the Development Plan for Energy-Saving and Environmental Protection Industries during the “13th Five-Year Plan” Period and by taking other supportive measures
	Perfect environmental monitoring standards; Establish environmental monitoring infrastructure and network; Set up mechanisms for sharing monitoring data (Art. 17)	✓Formulated and implemented the Plan to Implement the Plan to Construct Ecological and Environmental Monitoring Networks (2016-2020)   ✗No mention of sharing monitoring data
	Perfect the responsibility evaluation system of environmental protection targets for leading cadres (Art. 26)	✓State Council conducted environmental protection inspections (环保督查) of local governments to ensure implementation of the “same responsibility on Party and government” (党政同责) and “dual responsibilities on one position” (一岗双责) systems
	Establish an enterprise environmental credit rating system (企业环境信用评级制度) (Art. 54)	✓Released the Guiding Opinion on Strengthening the Construction of Enterprise Environmental Credit Rating System
	Local governments should report annually to the people’s congresses at the same level on environmental conditions and situations of achieving environmental protection goals (Art. 27)	✗No mention of this task
	Fully disclose environmental information to allow for public participation and supervision (Ch. 5)	✓The environmental protection departments of all provincial and municipal governments have opened information disclosure sections on their websites; Disclosed all monitoring data of companies under key State monitoring
	Intensify environmental law enforcement efforts (Ch. 6)	✓The Ministry of Environmental Protection investigated 27 major cases of EPL violations, and oversaw the shutting down of 2,465 small polluting companies
Affecting the State Council’s law enforcement priorities	Prioritize tasks receiving high public attention, including reducing coal usage; tackling flying dust and motor vehicle pollution; protecting drinking water sources; implementing waste sorting; strengthening the administration of hazardous waste disposal; and improving rural environment.	✓All the tasks mentioned on the left were addressed by the Response in a section titled “On Solving Prominent Environmental Problems.”
	Severely punish the following malicious illegal activities: polluting via hidden outlets; disposing of hazardous waste and toxic substances illegally; operating and using pollution treatment facilities irregularly; and falsifying or tampering with monitoring data.	✓Cracked down on hazardous waste-related violations, inspecting 46,397 companies handling hazardous waste, investigating 1,539 cases, and transferring 330 cases to the police; Handled 19 “typical” cases of monitoring data falsification and detained 41 people in 2016.   ✗No mention of punishing pollution via hidden outlets and irregular operation and use of pollution treatment facilities
Requesting the establishment of more effective law enforcement systems	Improve the system where environmental protection departments carry out unified supervision and management of environmental protection efforts; Specify other departments’ responsibilities in environmental protection; Strengthen joint law enforcement by multiple departments	✗No response to these recommendations
	Centralize environmental quality monitoring powers	✓Centralized the monitoring powers of 1435 state-owned monitoring stations
	Improve mechanisms for linking administrative law enforcement and criminal proceedings; Intensify compulsory enforcement in cases of environmental violations	✓The Ministry of Environmental Protection formulated procedures for linking administrative law enforcement and criminal justice jointly with the SPC, the SPP, and the Ministry of Public Security   ✗No mention of compulsory enforcement
	Deepen reform of vertical management of environmental protection departments to “ensure [their] independence, authority, and effectiveness”; Include environmental law enforcement organs in administrative law enforcement ranks [将环境执法机构列入政府行政执法部门序列]; Grant them the authority to impose administrative penalties and to take administrative compulsory measures	✓These recommendations were implemented
Pressing the State Council to supply adequate funding and other law enforcement resources	Increase funding for environmental protection in general, and for improvement of rural environment in particular	✗No mention of any increase in funding
	Increase the number of grassroots law enforcement personnel and enhance their skills	✓Provided training to law enforcement personnel   ✗No mention of any increase in the number of personnel
Influencing the NPCSC’s and other governmental bodies’ legislative agenda	Submit draft revisions to Water Pollution Prevention and Control Law on schedule	✓Submitted the bill on time
	State Council should promulgate regulations on pollution discharge licensing, environmental monitoring, and ecological compensation as soon as possible	✓Formulated Interim Provisions on the Administration of Pollution Discharge Licenses; Accelerated the drafting of Regulations on Pollution Discharge Licensing   ✗No mention of the progress of drafting regulations on environmental monitoring and ecological compensation
	Accelerate the formulation and improvement of regulations relating to agricultural and rural environmental protection	✓Revised the Regulations on the Management of Pesticides
Other	Cultivate the citizens’ ecological and environmental awareness; Publicize environmental protection legislations	✓Appropriate measures were taken
	Accelerate the establishment of “Green Finance” systems; Promote the marketization of environmental pollution treatment	✓Issued two policy documents on these topics

Discussion

Upon first sight, the table above gives the impression that, to a large extent, the enforcement inspection of the EPL fits the theory on the functions of LEIs that Lin (2015) proposes. In its Inspection Report, the NPCSC raises issues and makes recommendations that correspond to each of those functions. In return, the State Council has almost offered a point-by-point response to each issue and recommendation. It therefore seems that this LEI has indeed affected, and maybe even improved, the State Council’s enforcement of the EPL.

In such a way, Lin argues, the NPCSC becomes a more powerful supervisor than the courts in ensuring that the governments faithfully administer the laws. Rather than examining one case at a time, as the courts do in administrative litigation, the NPCSC considers the fundamental causes of the issues in law enforcement and offers institutional solutions, thereby exerting much broader influence on governmental actions.

However, when taking into account both the findings and the limitations of our examination of this LEI, its impact on the State Council might not be as significant as the comparison table and Lin’s theory suggest.

First, as a direct result of our comparison, we find that the State Council failed to address certain issues raised by the Inspection Report. (Admittedly, our analysis is limited to State Council’s written Response, which is in fact part of a longer report on environmental protection. It is possible that the State Council has completed additional tasks including the ones we identify below without mentioning them in the Response, or even in the longer report.)

• Those relating to the budget. The State Council, the dominant player in the budget process, seems to have ignored the NPCSC’s suggestions regarding funding and resource allocation;
• Those involving multiple agencies and the whole bureaucracy. For example, the State Council offers no response regarding interagency sharing of monitoring data or giving environmental protection departments the exclusive authority to oversee environmental protection efforts.

Second, in comparing the two documents, we simply checked whether the State Council responds to the points in the Inspection Report, without evaluating the substance of its responses. For instance, some actions taken by the State Council, such as implementing vertical management of environmental protection departments, are only at an experimental stage. In fact, the Response is followed in the longer report by a section titled “Next Steps” that outlines multiple areas in need of improvement.

Lastly, we likewise did not look into the NPCSC’s recommendations—some of which were not conceived by the NPCSC itself, but rather by the Communist Party. Establishing a pollution discharge licensing system, for instance, was called for by the Party’s Fifth Plenum in November 2015, a full year before the Inspection Report was published. The plan to centralize environmental monitoring powers was first approved by a top Party decisionmaking body as well, in July 2015.

Conclusion

To many, the apparently limited influence of LEIs as discussed above might not be surprising. After all, the NPCSC is not the ultimate decision maker in China’s political system. We have observed, however, an increasing use of LEIs by the current (12^th) NPCSC. By the end of its term, it will have conducted a total of 26 LEIs, more than each of the three previous NPCSCs. Moreover, not only has the 12^th NPCSC Chairman Zhang Dejiang become the first NPCSC Chairman in history to lead an LEI team, he has done so twice already and is currently leading a third LEI team. Both changes testify to the rising importance of LEIs at least in the view of the current NPCSC leadership. The scholarship introduced in this post similarly views LEIs as a proactive supervisory measure with huge potential. As the NPCSC assumes a more active role in the entire legislative process, LEIs—the bridge connecting lawmaking and supervision—could become a powerful “weapon” that is worth closer observation.

References

1. LIN Yan. “从自我创设, 到政治惯例, 到法定权力——全国人大常委会执法检查权的确立过程.”  Tsinghua Law Review 3 (2009): 5–25.
2. LIN Yan. “执法检查: 立法程序外完善法律的制度途径.” Peking University Law Review 2 (2010): 496–520.
3. LIN Yan. “全国人大常委会如何监督依法行政?——以执法检查为对象的考察.” The Jurist 2 (2015): 1–14.

(Editing by Changhao Wei)

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^[1] Lin, however, did not specify the period nor the jurisdictions from which these judgments originate. It is therefore unclear whether they are representative of the administrative litigation judgments rendered by courts nationwide.

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