Next Steps for the Supervision Law & Procedural Possibility of a Constitutional Amendment in 2018

Now that the draft Supervision Law has finally become public, many are probably wondering what the next steps for the Law would be. When will the NPC Standing Committee (NPCSC) consider the draft Law again, if at all? Will the NPCSC release a revised version of the draft for public comments? And, given the argument that the Law shouldn’t be enacted until after the Constitution is amended to grant supervision commissions constitutional status, is it procedurally possible for the NPC to consider (and pass) a constitutional amendment at next year’s session? To predict such developments, we surveyed the legislative history of the laws passed by the NPC since 2000 (when the Legislation Law was enacted) and of all constitutional amendments to the 1982 P.R.C. Constitution.

To start, we recap the developments surrounding the Supervision Law in the following timeline:

• November 7, 2016: The Communist Party’s Central Commission for Disciplinary Inspection (CCDI) published on its website an article announcing that the Party had decided to conduct pilot reforms of the state supervision system in Beijing, Shanxi, and Zhejiang.
• December 25, 2016: The NPCSC authorized such pilot reforms.
• January 6, 2017: Wang Qishan, then Secretary of the CCDI, stated in a report to a plenary session of the CCDI that the Party plans to pass the Supervision Law at the 1^st Session of the 13^th NPC in March 2018.
• June 22–27, 2017: The NPCSC conducted the first round of deliberation over the draft Supervision Law.
• October 18, 2017: In his report to the Party’s 19^th National Congress, Xi Jinping indicated the Party would expand the pilot reforms nationwide.
• November 4, 2017: The NPCSC authorized the expansion.
• November 7–December 6, 2017: The NPCSC solicited public comments on the June 2017 draft of the Supervision Law.

Next Steps for the Supervision Law

The Legislation Law (enacted in 2000) requires, as a default rule, that a bill be passed after at least three rounds of deliberations. (The 2015 amendment to the Law did not alter this requirement.) For a bill that has been designated for NPC approval, that rule requires that the NPCSC in most circumstances deliberate the bill at least twice before the final NPC review. As shown in the table below, the NPCSC has since followed—and occasionally more than satisfied—the default rule; the three apparent deviations (#1–3) arguably fall within “preponderant consensus” (意见比较一致) exception, which permits the passage of a bill after only two rounds of deliberations if a preponderant consensus has been formed.^[1]

Thus far, the draft Supervision Law has received almost universal criticisms from both legal scholars and practitioners. They contend that the draft violates a myriad of constitutional provisions and principles. Further, considering that the delegates usually spend up to four days overall during an NPC session discussing a draft law, it is extremely unlikely that the Supervision Law in its current form could be revised thoroughly enough within that short period to garner a preponderant consensus. We therefore believe the NPCSC will review the draft Law again before the March 2018 NPC session.

Then at which of 12^th NPCSC’s two remaining sessions—the first in late December 2017 and the second in late February 2018—will that second reading take place?

Article 17 of the Legislation Law requires that a draft law that the NPCSC has decided to submit to the NPC for deliberation must be distributed to the NPC delegates at least a month prior to the start of the NPC session. (The NPCSC will formally make that decision in late December when it decides to convene the 2018 NPC session.) Therefore, assuming that the NPCSC distributes the newest version of a draft law to the delegates before an NPC session, its December 2017 session is the only possible occasion where it could conduct a second reading of the draft Supervision Law and then submit the latest version to the NPC delegates on time. The NPCSC’s late February 2018 session is simply too close to the NPC session in March (which usually starts on March 5) for the NPCSC to comply with the Legislation Law’s one-month advance distribution requirement. The NPCSC’s recent practice also supports our reading of the statutory requirement (see table below, which shows that the last round of review of a bill by the NPCSC almost always occurred in the December before the following NPC session to which the bill was submitted.)

Lastly, will the NPCSC release the draft to be reviewed at its December session for public comments? Based on the 12^th NPCSC’ pattern of soliciting public opinions on draft laws that were eventually adopted by the full NPC (also see table below), we think it will.

Procedural Likelihood of a Constitutional Amendment

The P.R.C. Constitution and the NPC Rules of Procedure prescribe minimal procedural requirement for amending the Constitution. (The Legislation Law doesn’t govern this process.) All that is required is that any amendment must be proposed by the NPCSC or by one-fifth or more of all NPC delegates, and must be adopted, by ballot (as opposed to, say, a show of hands), by affirmative votes of two-thirds or more of all incumbent NPC delegates. The law otherwise doesn’t require public consultation (and indeed none was ever undertaken) or advance distribution of draft amendments to the delegates (though it seems that the NPCSC still distributes the drafts ahead of time, from as late as 13 days to as early as over two months before an NPC session).

In reality, there are additional rules on amending the Constitution. Historically, the NPCSC has invariably started the constitutional amendment process after and only after receiving from the Party a set of proposals for amending the Constitution. In other words, despite what the Constitution says, only the Party can initiate constitutional amendment processes. Such a precondition was to our knowledge spelled out for the first time in the 2014 Fourth Plenum Decision:

The Party Central Committee submits proposals for amending the Constitution to the National People’s Congress [likely a general reference meant to include the NPCSC], and constitutional revision is conducted according to the procedure provided for in the Constitution.

Although the Party’s proposals all carried the name of its Central Committee, they more often than not were not approved by the full Central Committee (see table below). Instead, the Politburo was usually the highest Party body to greenlight the proposals. And this could continue to be the case despite the clear wording of the Fourth Plenum Decision—“The Party Central Committee submits proposals for amending the Constitution”—because, under the Communist Party Constitution _(PDF), the Politburo is authorized to “exercise the functions and powers of the Central Committee” when the latter is not in session.

Based on the above discussion, we think it is still procedurally possible for the Party to initiate the constitutional amendment process at this point to pass a constitutional amendment next March. It in fact could theoretically do so in either of two ways: by approving proposals either at an upcoming Politburo meeting or at the next Central Committee plenum. (It is not apparent that the reason the 2004 Constitutional Amendment was presented to the Central Committee for approval was because it was considered more important than three previous three. We therefore cannot say with any level of certainty that our hypothetical amendment, despite the fundamental changes it would make to China’s political structure, will also be endorsed by the full Central Committee as opposed to the Politburo.)

• Approval by Politburo. According to past practice, the Politburo will meet four more times by next March: once every month from November 2017 to February 2018. The November meeting (due to take place this week) provides the best timing for the Politburo to approve the proposals (if it hasn’t done so already). If the Politburo approves the proposals in November, the NPCSC will then most likely consider them in December as opposed to February, so as to give the delegates ample time to consider the draft amendment. Of course, the Politburo could still approve the proposals at a later meeting so long as it happens before the NPCSC’s late February 2018 session. But the delegates will then only have around a week to consider the draft amendment before the NPC session starts.
• Approval by Central Committee. Per custom, each Central Committee convenes for its second plenum in the February before the first session of a new NPC, mainly to discuss personnel decisions to be made at that NPC session. Each second plenum since 2000 has partially overlapped with the NPCSC’s February session in the same year, sometimes ending after the NPCSC session. Were the two meetings to overlap again in 2018, it would be extremely rushed, but still possible, for the NPCSC to endorse the Party’s proposals just one or two days later. In addition, the NPC delegates will also have a very short period to review the draft amendment.

* * *

To summarize—

• Next steps for the Supervision Law:
  1. The NPCSC will most likely conduct a second round of deliberations on the draft Supervision Law at its late December 2017 session.
  2. After that session, the NPCSC will likely release a revised draft for public comments.
• Possibility of a constitutional amendment in 2018:
  1. It is procedurally possible.
  2. The most likely scenario would be one where the Politburo first approves proposals for amending the Constitution at its late November/early December meeting, and the NPCSC then endorses them at its late December 2017 session.
  3. Less likely scenarios include one where the Politburo approves the proposals at a later meeting (by late February) and one where the Central Committee approves the proposals in late February. The NPCSC will then in both cases endorse the proposals at its late February 2018 session.

^[1] The 2001 amendment to the Sino-Foreign Equity Joint Ventures Law, with only eight articles, made only uncontroversial changes to a few provisions. (It was presented to the NPC for approval because the Law, as originally enacted in 1979, vested the amending power exclusively in the NPC; this clause was repealed by the 2001 amendment.) The Anti-Session Law, though controversial outside the Mainland, did not draw much open dissent within, for the political climate likely did not permit such expression. The NPC notably passed the Law without any “no” votes. The Law was also relatively short, containing only ten articles. Lastly, though formally a new enactment, the Enterprise Tax Law functionally merged and revised two older tax laws. It was presented to the NPC because it was considered an “important law that has a bearing on the overall economic and social development.” But its content was not controversial and was to some extent welcomed by (domestic) businesses. It is also not uncommon for revisions of laws to pass after only two rounds of deliberations.

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