UPDATE (Dec. 23, 2017): The NPCSC has released the finalized agenda and daily schedule of the ongoing session. This agenda, unlike the agendas of past December sessions since the early 1990s, does not include a draft decision to convene the NPC session of the following year (which would be the 1st Session of the 13th NPC). This is highly unusual. But the significance (if any) of the absence of that decision is not clear at this point. Elsewhere, in a report on the draft Supervision Law (as reported by state media), the NPC Law Committee seemed to be deliberately avoiding referring explicitly to the 1st Session of the 13th NPC: It recommended that the NPCSC submit the draft Supervision Law to “a session of the NPC” (全国人民代表大会会议) for deliberation, short of identifying the specific NPC session (unlike what it had done before). Through this update we merely wish to point out these irregularities. It is still premature to speculate whether the 2018 NPC session will convene as usual on March 5 because the Council of Chairmen could always add a convening decision to the agenda (though it doesn’t explain why it hasn’t done so already). In any event, we will find out on December 27 when the ongoing NPCSC session closes.
As predicted, the Council of Chairmen met on Thursday (December 14) to set the dates and propose an agenda for the second last session of the 12th NPC Standing Committee (NPCSC). According Xinhua’s report of the Council’s meeting, an astonishing 12 legislative bills (among others) were submitted to the upcoming six-day NPCSC session (December 22–27) for deliberation, the most ever since the start of the 12th NPC. Most of these bills are worth paying close attention to because of their subject matters, as we will discuss below.
Legislations
Starting with the legislation now in the spotlight, the Supervision Law (监察法) will return for a second round of deliberation (which we predicted would happen last month). The first draft of the Law was released for public comments early last month and during the 30-day comment period has received over 13,000 comments from 3,771 participants. Given that the Law is quite high on the Communist Party’s current list of priorities—it was mentioned in Xi Jinping’s report to the 19th Party Congress—it is hard to predict how receptive the NPCSC would be to the mostly negative comments on the first draft (it is also not clear whether any of those criticisms was voiced by NPCSC members during the first round of deliberation in June). But do expect the second draft to be quite different from the first, even if only cosmetically. Lastly, for reasons elaborated here, we think the NPCSC will release the second draft after this month’s session for public comments. (On a related note, no proposed constitutional amendment was announced on Thursday. There is thus a diminished chance that the NPC will amend the Constitution next March to give the supervision commissions constitutional status.)
The Supervision Law is not the only piece of anti-corruption legislation on the agenda. The NPC Foreign Affairs Committee has submitted a draft International Criminal Justice Assistance Law (国际刑事司法协助法) (drafted by the Ministry of Justice, according to the 12th NPCSC’s legislative plan). Though the Law reportedly would govern all areas of international criminal justice cooperation, including mutual recognition and enforcement of criminal judgments and transfer of criminal proceedings, much attention has been given to its potential role in fighting corruption. It was also reported that the enacting the Law would fulfill China’s obligations under the United Nations Convention against Corruption.
Next, the Council of Chairmen submitted for deliberation a Heroes and Martyrs Protection Law (英雄烈士保护法), without any prior sign that it would (at least to the extent that the Law is not in the 12th NPCSC’s 2017 or five-year legislative plans). The draft Law does follow a series of nationalist legislations by the current NPCSC, including three decisions to establish a Martyrs Day, a memorial day for victims of the 1937 Nanjing Massacre, and another for China’s victory against Japan during World War II, respectively. And last March, the NPC inserted in the General Provisions of the Civil Law (民法总则) a last-minute provision providing for civil liabilities for infringing on the “name, image, reputation, and honor” of heroes and martyrs (these two terms were left undefined). That provision in turn came in the wake of a set of “model” cases picked by the Supreme People’s Court where the defendants were found liable for defaming and disparaging several canonical “heroes” as recognized by the Communist Party. Apparently, the Party leadership did not think civil liability would afford those heroes sufficient protection, for otherwise there would be no need for a special law on this topic. Thus, don’t be surprised if the Law provides for administrative detention of violators. We expect the NPCSC to pass the Law after (at least) two reviews.
Moving on to another unanticipated bill, the Supreme People’s Court (SPC) submitted for review a draft People’s Assessors Law (人民陪审员法), which was not included in the 12th NPCSC’s 2017 or five-year legislative plans either. This bill came as a surprise also for the reason that the SPC is still conducting pilot reforms of the people’s assessor system (explained here and here), and that just last April it requested, and the NPCSC granted, a one-year extension of the pilot programs (to end in May 2018). In its request for extension, the SPC explained that it “will need more time to research and review” the difficult issues that arose during the reform. The submission of the draft Law signals that at least some of these issues have been resolved—and rather swiftly.
The SPC also submitted a draft revision to the Judges Law (法官法), accompanied by a draft revision to the Procurators Law (检察官法) submitted by the Supreme People’s Procuratorate (SPP). This pair of bills will likely codify many of the current reforms on the rights and obligations of judges and procurators, including the judicial responsibility system, disciplinary punishment system, and various protections for judicial personnel.
Bringing to fruition a legislative project first contemplated in the 1990s, the NPC Education, Science, Culture and Public Health Committee submitted a draft Basic Healthcare and Health Promotion Law (基本医疗卫生与健康促进法). The Committee, which started the drafting process in December 2014, characterized the Law a “basic law” (基础性法律) for the field of public health. That characterization, in addition to the word “basic” (基本) in the proposed title, might be an indication that the Law would eventually be presented to the full NPC for approval (the NPC has the exclusive constitutional authority to enact “basic laws” (基础法律)). We expect the Law to pass after at least three rounds of deliberations.
There are also a few less attention-grabbing bills on the agenda. Both the draft Tobacco Leaf Tax Law (烟叶税法) and the draft Vessel Tonnage Tax Law (船舶吨税法) are scheduled for a second reading. We anticipate that the NPCSC will pass both at this session. Draft revision to the Specialized Farmers’ Cooperatives Law (农民专业合作社法) and the draft Law on Preventing and Controlling Soil Pollution (土壤污染防治法) also will both return for a second round of review. One additional review likely awaits each after this session. Finally, the State Council submitted draft amendments to both the Bid Invitation and Bidding Law (招标投标法) and the Metrology Law (计量法). We won’t speculate about the contents of the draft amendments, but we do note that the State Council has previously solicited public opinions on a short draft amendment to the Bid Invitation and Bidding Law (found here).
But where is the draft E-Commerce Law, you ask? We have by far predicted several times that the NPCSC will pass the Law this month, based on the observation that when the NPCSC solicits public comments on a draft law for only 20 days (as in the case of the E-Commerce Law last month), it always passes the law at its next session. Yet the E-Commerce Law was not included in the agenda for this month’s session. Our best guess is that the delay is due to the bike-sharing bubble that burst last month.
We expect the NPCSC to release all foregoing draft laws (excluding those it will pass on December 27) for public comments after the session
Decisions and Reports
First, as expected, the State Council requested that NPCSC endorse a Cooperation Agreement it signed with the Hong Kong Government concerning the immigration and customs clearance procedures at the West Kowloon Station (located within Hong Kong) of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL). To quote our NPC Calendar for December 2017:
The Cooperation Arrangement allows Mainland law enforcement officers to enforce Mainland laws (on immigration, customs, public security, etc.) within a designated area inside the West Kowloon Station—hence physically within Hong Kong—called the “Mainland Port Area.” (The compartments of XRL trains in operation within Hong Kong will also be deemed part of the Mainland Port Area.)
The foregoing information comes from this Hong Kong Government press release. The full text of the Cooperation Arrangement won’t be released until after being approved by the NPCSC on December 27.
Second, also as expected, the State Council requested that the NPCSC renew a 2015 authorization that suspended the application of certain provisions of the Property Law (物权法) and the Guaranty Law (担保法) in select localities, thereby allowing the rights to use cultivated land and house sites (宅基地) to be mortgaged. The 2015 authorization will otherwise expire on December 31.
Third, the upcoming session will hear an NPCSC team’s report on inspecting the enforcement of the Cybersecurity Law (网络安全法) and the NPCSC Decision on Strengthening the Protection of Network Information (全国人大常委会关于加强网络信息保护的决定). It will also hear the SPC and SPP’s mid-term report on pilots of the “plea leniency system” (or officially the “system of leniency for those who admit guilt and accept punishment,” 认罪认罚从宽制度). A comprehensive introduction to the plea leniency system has been published by Jeremy Daum on China Law Translate.
Fourth, the session will for the first time hear a report by the NPCSC Legislative Affairs Commission on the recording and review (备案审查) of lower-level legislations (including the State Council’s administrative regulations, the SPC’s and SPP’s judicial interpretations, and regulations enacted by local legislatures) for possible violations of the Constitution or national laws. Several of the Commission’s decisions (reported here, here, here, and here) that certain lower-level legislations violate national law and must be corrected have made headlines this past year. And we plan to cover those decisions, along with the Commission’s report, in January 2018.
Lastly, there is one item that is conspicuously missing from the proposed agenda (based on Xinhua’s report): the decision to convene the 1st Session of the 13th NPC next March. The omission might be Xinhua’s deliberate choice to shorten its report (which, at 1119 characters, was surprisingly not read verbatim on Thursday’s Xinwen Lianbo). Or the omission might be just an oversight. But it would be significant if it means the Party has decided to postpone the NPC’s 2018 plenary session, past the conventional opening date of March 5. Whatever the reason, we will find out on December 22, when the finalized agenda is released.
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