Recording & Review: An Introduction to Constitutional Review with Chinese Characteristics

Editor’s Note (Sept. 2, 2020): This post is NOT up to date and has been superseded by a more recent introduction to “recording and review,” which discusses the latest governing rules.

On October 18, 2017, halfway through his mind-numbing three-hour report to the Communist Party’s 19^th National Congress, President Xi Jinping called for “advancing the work of constitutional review” [推进合宪性审查工作]. We then noted, and Chinese media later confirmed, that it was the first time such expression appeared in Party documents. While the expression might be novel, the concept of constitutional review is not—it has been an inherent part of “recording and review” (“R&R”) [备案审查] since at least 1982. For purposes of our discussion,[1] R&R is a process whereby various governmental entities with lawmaking powers record the legislation they enact with the NPC Standing Committee (NPCSC), and the NPCSC then, through several established mechanisms, review such legislation for potential violations of the Constitution and national laws and take appropriate actions. The primary goal is to ensure uniformity in the hierarchical legal system.

Developments since the Party Congress have shed some light on the (at least short-term) implications of President Xi’s directive. Last month, the NPCSC Legislative Affairs Commission (“LAC”) [全国人大常委会法制工作委员会]—which is authorized to review the legislation recorded—delivered to the NPCSC its first-ever report on R&R (“R&R Report”). Among other information disclosed for the time, the statistics in the report demonstrate a renewed emphasis on R&R (which has historically been criticized as ineffective) and more aggressive review by the LAC since 2013, and in 2017 in particular. The LAC also indicated its intention to hereafter report to the NPCSC on R&R annually.

We thus would like to take this opportunity to start a new series on this Blog: Recording & Review. In this inaugural installment, we will present a comprehensive introduction to the current R&R scheme, including its governing legal authorities, procedures, problems, and limitations. The content of the LAC’s report will be incorporated into the introduction when appropriate. Future blog posts in this series will discuss the individual cases in which the LAC has found (or will have found) recorded legislation in violation of the Constitution or national laws.

Table of Contents

1. Governing Rules
2. Recording
3. Review
   • Passive Review
   • Active Review
   • Special Review
4. Problems, Limitations & Next Steps

Governing Rules

The NPCSC’s R&R authority originates from multiple provisions in the 1982 Constitution. Article 100, for instance, requires provincial-level legislatures[2] to record local regulations with the NPCSC. But the R&R process under the Constitution is rather undefined, and it had remained so until 2000 when the NPC passed the Legislation Law. After roughly another two decades’ development, R&R today is principally governed by:

• Chapter V (Application, Recording and Review, 适用与备案审查) of the Legislation Law [立法法]; and
• Chapter V (Recording and Review of Normative Documents, 规范性文件的备案审查) of the Law on Oversight by the Standing Committees of the People’s Congresses at All Levels (“Oversight Law”) [各级人民代表大会常务委员会监督法].

Various bodies under the NPCSC have also adopted several implementing rules, including:

• Working Procedures for Recording and Reviewing Administrative Regulations, Local Regulations, Autonomous Regulations and Separate Regulations, and Special Economic Zone Regulations (“Regulations R&R Procedures”) [行政法规、地方性法规、自治条例和单行条例、经济特区法规备案审查工作程序] (adopted by the Council of Chairmen in 2000, and amended twice in 2003 and 2005);
• Working Procedures for Recording and Reviewing Judicial Interpretations (“Judicial Interpretations R&R Procedures”) [司法解释备案审查工作程序] (adopted by the Council of Chairmen in 2005, not publicly available);
• NPCSC LAC Provisional Working Procedures for Recording and Reviewing Regulations and Judicial Interpretations [全国人大常委会法制工作委员会法规、司法解释备案审查工作规程（试行）] (adopted in 2014, not publicly available);
• NPCSC LAC Working Measures for Giving Feedback to Citizens and Organizations Who Submit Suggestions for Review [全国人大常委会法制工作委员会对提出审查建议的公民、组织进行反馈的工作办法] (adopted in 2016, not publicly available).

While the terms “recording” and “review” regularly appear together, in practice they are entirely separate (but closely connected) processes. For obvious reasons, “recording” is a precondition for “review.” But “review” does not necessarily follow “recording.” In fact, most legislation recorded with the NPCSC is not reviewed. Below, we will discuss “recording” and “review” in turn.

Recording

Under Legislation Law article 98 and Oversight Law article 31, the following normative documents [规范性文件] must be filed with the NPCSC for recording within 30 days of promulgation:[3]

1. Administrative regulations [行政法规] enacted by the State Council;
2. Local regulations [地方性法规] enacted by provincial-level legislatures (“provincial regulations”);
3. Local regulations enacted by the legislatures of cities with districts [设区的市] and of autonomous prefectures [自治州] (“municipal regulations”);
4. Autonomous regulations [自治条例] enacted by autonomous prefectures and autonomous counties [自治县], which act as mini-constitutions for these administrative divisions;
5. Separate regulations [单行条例] enacted by autonomous prefectures and autonomous counties “on the basis of the political, economic, and cultural characteristics of the local ethnicities,” which may “adapt” [变通] the provisions of laws and administrative regulations to “the characteristics of local ethnicities”;
6. Special economic zone regulations [经济特区法规] enacted by the provincial or municipal legislatures (as authorized by the NPC or NPCSC) that have jurisdiction over China’s five special economic zones (SEZs);
7. Judicial interpretations [司法解释] issued by the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP).

In the rest of this post, we will refer to groups 1–6 collectively as “regulations,” and all seven groups collectively as “lower-level legislation” [下位法], because relative to the laws enacted by the NPC and NPCSC, they are inferior in legal force.

The Secretariat of the NPCSC General Office [全国人大常委会办公厅秘书局] is currently responsible for recording lower-level legislation. Specifically, it is responsible for “receiving, categorizing, and archiving” legislation sent for recording. The Secretariat is also in charge of forwarding them to the appropriate NPC special committees or the LAC based on the subjects of the legislation.

Under the 2005 Regulations R&R Procedures, regulations and relevant legislative records should be submitted in ten bound copies. (Judicial interpretations are likely subject to similar requirements.) The NPCSC did not adapt to the Information Age until more than a decade later. Since January 1, 2017, all new local regulations have been recorded electronically via the NPC R&R Information Platform, according to the LAC’s R&R Report. New administrative regulations and judicial interpretations will gradually be recorded in the same way.

The R&R Report also contains two sets of data on the number of legislation recorded since the start of the 12^th NPC’s term and in 2017 alone (Figs. 1 and 2). During both periods, local regulations account for the vast majority (~90%) of lower-level legislation recorded. In 2017, more municipal regulations were recorded than provincial regulations, even though over the entire five-year period the latter outnumbered the former by roughly 3-to-2. More municipal regulations are being enacted because the 2015 amendment to the Legislation Law granted legislative powers to all cities with districts, thereby more than quintupling the number of municipal legislatures (from 49 to 273). Such a sweeping change presents a challenge to the NPCSC’s ability to effectively police all lower-level legislation, as we will discuss below.

Review

National law provides for two modes of review: passive review [被动审查] and active review [主动审查]. The former occurs when the NPCSC reviews lower-level legislation at the request of third parties, and the latter when the NPCSC does so on its own initiative. There also exists a third, uncodified mode termed “special review” [专项审查]. It is used when the NPCSC focuses on a particular type of lower-level legislation, usually in response to some widespread social concerns or to ensure implementation of the Party’s policies, according to the R&R Report.

Passive Review

Under the Legislation Law and the Oversight Law, if authorized entities consider that lower-level legislation (excluding SEZ regulations) contradict the Constitution or national laws, they may submit either written requests [要求] or suggestions [建议] for review to the NPCSC, depending their identities:

1. State Council, Central Military Commission, SPC, SPP, and provincial-level legislatures may submit written requests for review, which are then forwarded to the relevant special committee by the LAC for review and suggestions. (Legislation Law 99, para. 1; Oversight Law art. 32, para. 1);
2. Other state organs, social groups, public enterprises and institutions, and citizens may submit written suggestions for review, which are (1) first studied [研究] by the LAC; and (2) if the LAC deems it necessary, then forwarded to the relevant special committee for review and suggestions. (Legislation Law 99, para. 2; Oversight Law art. 32, para. 2).

Requests thus necessarily trigger review by NPC special committees, while whether suggestions are forwarded to them is subject to the LAC’s discretion. Note that the law labels de facto “review” by the LAC as “study” [研究]—which sounds less authoritative—perhaps as an acknowledgement of the special committees’ constitutional status which the LAC lacks. But, as the following paragraph will show, “review” and “study” are functionally identical.

Review or study is likely a lengthy process that involves soliciting the opinions of all relevant sectors (including both central and local government bodies, lawyers, and scholars) and even conducting field research, according to a letter from the LAC that was published online. After this process, if the special committee or the LAC finds a particular piece of legislation in violation the Constitution or national laws—

1. It may issue a written opinion to the enacting organ of the legislation. (Legislation Law art. 100, para. 1).[4]
2. The enacting organ must then within two months report back to the special committee or the LAC whether it plans to amend the legislation. (Id.)
3. If the enacting organ amends the legislation in accordance with the review/study opinion, review ends. If it refuses to do so, the special committee or the LAC must submit to the Council of Chairmen a bill or proposal recommending that the NPCSC—
   • annul the regulation in question (Legislation Law art. 100, para. 3); or
   • order the SPC or SPP to amend or repeal the judicial interpretation in question, or issue a superseding legislative interpretation. (Oversight Law art. 33)
4. The special committee or the LAC notifies the entity requesting review of the results of the review, and may release such results to the public. (Legislation Law art. 101).

As alluded to above, the LAC (which wrote the R&R Report) carries out most (if not all) reviews. It does so through its Office for Recording and Review of Regulations (“R&R Office”), established in 2004. The special committees rarely participate in this process because (1) central state organs and provincial-level legislatures rarely (if ever) request review, thus mandatory review by special committee is not triggered; (2) the LAC retains broad discretion to decide whether to forward review suggestions to them; and (3) in any event they lack the requisite personnel and expertise to conduct review (they are staffed by a few dozen mostly part-time members with no legal expertise).

According to the R&R Report, no state organ has submitted any request or suggestion for review during the 12^th NPC. One scholar argues that they are reluctant to do so because they themselves enacted the lower-level legislation, and because they wish to maintain good working relationships with other state organs—requesting review of the legislation others enacted may jeopardize such relationship. As a result, all 1527 suggestions the NPCSC has received since March 2013 came from citizens or organizations (Fig. 3).

1206 (79%) of those suggestions fell within the NPCSC’s purview as they targeted administrative regulations, local regulations, or judicial interpretations (Fig. 4). (It seems that none requested review of autonomous or separate regulations.) The other 321 requested review of normative documents that were outside the scope of NPCSC’s authority—rules issued by the various ministries, for instance. These suggestions were forwarded to the appropriate organs for resolution.

Of those suggestions that were properly directed to the NPCSC, over 90% (1116) targeted judicial interpretations. Of these, over 80% (921) were submitted in 2017 alone. Almost all sought review of a single article in a single judicial interpretation: article 24 of the SPC’s second interpretation of the Marriage Law, in effect since 2004. This article provides that debt incurred by a spouse during the couple’s marriage should be paid off jointly, unless the other spouse can prove that the creditor and debtor agreed that the debt was personal. Many divorcees suddenly found themselves in financial predicament after the courts, citing article 24, ordered them to repay the (usually massive) debt their ex-spouses had incurred during the marriage without their knowledge. Just this week, the SPC replaced article 24 with a new judicial interpretation, after the LAC intervened earlier last year.

Active Review

The LAC has been reviewing recorded legislation on its own initiative since the early 2000s, even though active review was only codified in 2015 (Legislation Law art. 99, para. 3). It has reviewed every judicial interpretation sent for recording since 2006, and every administrative regulation since 2010. Because of the sheer volume of local regulations recorded, the LAC conducts active review of them only “in a focused manner.”

During active review, the LAC follows the same procedures for passive review when it is of the opinion that a recorded piece of legislation violates the Constitution or national laws. Since March 2013, the LAC has found five judicial interpretations inconsistent with laws, according to the R&R Report. We will discuss these cases in later installments of this series.

Special Review

As mentioned above, special review is employed to implement the Party’s major policy decisions, to ensure that lower-level legislation promptly adapts to amended national laws, to implement the NPCSC’s oversight plans, and to respond to hot issues in society. The LAC’s R&R Report uses the following two occasions to illustrate the use of special review:

1. After the NPCSC had amended three batches of laws to eliminate quite a few administrative approval requirements, the LAC in 2015 reviewed 107 relevant local regulations, and found 30 inconsistent with the amended laws.
2. In early 2017, the Communist Party publicly disciplined multiple high-ranking officials in Gansu Province for having responsibility over the environmental deterioration in the Qilian Mountain National Nature Reserve that was attributed in part to local regulations that deliberately relax national law’s ban on certain activities within nature reserves. After this event, the LAC conducted special review of 49 local regulations on nature reserves.

Problems, Limitations & Next Steps

The following is a non-exhaustive list of problems and limitations of the current R&R system that either the NPC itself or other commentators (including us) have identified.

• Countless normative documents are still not subject to R&R. These include the hundreds of thousands (if not more) opinions, notices, and decisions that the various levels of governments issue every year. Many have no basis in law, but go uncorrected. Perhaps as a response to the rampancy of these problematic documents, the Communist Party in its 2014 Fourth Plenum Decision vows to “bring all normative documents within the scope of recording and review.” This decision remains to be implemented.
• Compliance with the LAC’s opinions often depend on enacting organs’ good will as the NPCSC has never exercised the sole enforcement method: annulling illegal legislation. In an interview with The Paper, LIANG Ying, director of the LAC’s R&R Office, disclosed that while no enacting organs had so far outright refused to cooperate and amend the legislation found unlawful, some have put off the amendment process for as many as seven years. They did so perhaps under the implicit (and quite reasonable) assumption that the NPCSC would not publicly embarrass them by revoking the legislation at issue.
• The R&R process lacks transparency. As mentioned above, most of the NPCSC’s and LAC’s internal procedural rules on R&R have not been made public. This creates an obstacle for lay citizens because they would have no clue where they should address their requests. The Legislation Law and Oversight Law do not help because, instead of referring to the LAC by its actual name, the two laws use “常务委员会工作机构,” or an NPCSC working body, which means the LAC in those contexts. The public’s confusion is reflected in the explosion of requests in 2017, when the LAC released several R&R cases to the public, thus making many aware of its role for the first time. In addition, though the LAC has recently started to give feedbacks to requesters, it still does not disclose the results of most of its reviews to the public.
• The LAC’s staff size cannot meet the demand of its R&R workload. According to one source, while the whole LAC is believed to have a staff of roughly 200, its R&R office has “just over ten” employees. In one instance, it took the LAC over two years to complete review of an organization’s suggestion for reviewing certain local regulations. The LAC’s limited manpower is the main reason why it does not actively review all local regulations sent for recording.
• Citizens requesting review of lower-level legislation cannot obtain relief even if they succeed in obtaining favorable opinions from the LAC. Cases mentioned in the R&R Report demonstrate that aggrieved citizens always turn to the NPCSC as a last resort, after having exhausted their options in the judicial system. But due to the design of the system, they could not reopen their cases even after the unlawful or unconstitutional legislation previously relied on by the judicial authorities were repealed.
• Laws enacted by the NPC and NPCSC are not subject to R&R. In terms of force, laws are second only to the Constitution. Their constitutional infirmity thus cannot be cured by any lower-level legislation. But to bring laws within the R&R system, there are many legal and institutional hurdles to overcome. For instance, it is unclear whether it would be constitutional for any entity to review laws enacted by the NPC, constitutionally the highest organ of state power, and to order it to amend the laws that are found unconstitutional. In addition, if the NPC were given the task of reviewing the NPCSC’s enactments, it is questionable whether it would have the time and expertise to do so, as it only meets once a year and very few of its delegates hold degrees in law—much less constitutional law.
• It might be unconstitutional for the LAC to conduct substantive review of legislation and to request compliance with its opinions. This structural objection was raised by law professor CHU Chenke, who argues that the current system risks enabling the LAC—a bureaucratic (though professional) body under the NPCSC—to usurp the constitutional authority of the NPCSC, a (theoretically) representative institution. Law professor MA Ling expressed similar concern at NPC special committees’ role in this process. In her view, the committees might be acting as “semi- or quasi-organs of state power,” which they are not.

Several NPC officials have indicated in interviews that the NPCSC will take action to address some of these issues, including by:

• Expanding the scope of recording to cover all normative documents issued by all government bodies subject to oversight by the NPCSC;
• Striving to adopt (and publicly release, we hope) uniform Working Specifications for Recording and Review that will govern R&R activities nationwide;
• Promptly releasing “typical” cases to the public and publicizing the R&R system;
• Constructing a uniform national R&R information platform that will enable citizens and organizations to submit suggestions for review online;
• Improving R&R capabilities by perfecting the setup of R&R institutions and workforces;
• Annulling illegal or unconstitutional normative documents that enacting organs refuse to correct.

The plans outlined above are a step in the right direction, but more can be done to perfect the system. Some, for example, have suggested authorizing the courts to screen parties’ requests as they arise in litigation and to refer meritorious ones to the LAC. Such a design would ease the LAC’s burden while allowing aggrieved parties to obtain relief from the judicial system after receiving favorable dispositions on their requests. Under the current constitutional structure, we agree this should be the direction of future reforms of the R&R system.

* * *

In the next installment, we will take a look at a few local regulations that the LAC has found to violate national laws; the issues involved include traffic safety, trademark, and family planning. Thanks for reading and stay tuned!

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[1] Other legislative and administrative organs (e.g., provincial-level legislatures and the State Council) also conduct R&R of various types of legislation under Chapter V of the Legislation Law, but we will not discuss these activities in this post.

[2] “Provincial-level legislatures” in this post refers to the people’s congresses of the various provinces, autonomous regions, and directly governed municipalities, and their standing committees.

[3] Under article 17 of both the Hong Kong and Macau Basic Laws, laws enacted by the two cities’ legislatures must also be recorded with the NPCSC. They are not included in the following list of legislation, however, because of different governing rules. For a discussion of the R&R of Hong Kong’s and Macau’s laws, please see this article.

[4] This paragraph provides for an alternative course of action, but since it has never been used, we decided not to discuss it here.