On Sunday, January 10, 2021, the Communist Party releases China’s first Plan on Building the Rule of Law in China [法治中国建设规划], for the years 2020 to 2025. According to an unnamed Party official interviewed by Xinhua, the Plan was approved by two top Party institutions: the Central Commission for Overall Law-Based Governance and the Politburo Standing Committee. The Plan is a comprehensive document addressing all aspects of China’s legal reform. Not only does it restate and refine reform objectives laid down since the 18th Party Congress in 2012, it also includes new reform goals. Below, we will focus on four subsections of the Plan that set forth new reform goals relating to the NPC. We will translate the relevant parts of those subsections and supplement with our comments.
II. Comprehensively Enforce the Constitution & Firmly Safeguard the Dignity and Authority of the Constitution
(5) Strengthen the enforcement and oversight of the Constitution. The National People’s Congress [NPC] and its Standing Committee [NPCSC] must earnestly assume the responsibility of constitutional oversight, strengthen the enforcement and oversight of the Constitution, and make it an important item in the NPCSC’s annual work report. It shall be ensured that the laws passed as well as the decisions and resolutions made by the NPC and its Standing Committee comply with the provisions of the Constitution and the spirit of the Constitution. Advance constitutional review efforts, improve the constitutional review system, and clarify the principles, contents, and procedures of constitutional review. Establish and improve the ex ante review and consultation systems involving constitutional issues. Where proposed administrative regulations, military regulations, supervisory regulations, local regulations, special economic zone regulations, autonomous regulations and separate regulations, departmental rules, local government rules, judicial interpretations, as well as other normative documents, important policies, and major measures involve the understanding, implementation, and application of the relevant provisions of the Constitution, the relevant parties shall submit written requests for constitutional review to the NPCSC in accordance with relevant regulations. In [the NPCSC’s] recording-and-review work, attention should be paid to review whether there is any content that does not conform to provisions of the Constitution and the spirit of the Constitution. Strengthen the constitutional interpretation work, put into effect the procedures and mechanisms for constitutional interpretation, and respond to concerns related to constitutional issues.
This Plan is the first publicly available official document that calls for the establishment of the “principles, contents, and procedures” of constitutional review. As of August 2020, the NPCSC was already drafting an opinion on advancing constitutional review, which could be nearing completion and made public soon. This Plan also for the first time requires that the national legislature ensure the constitutionality of its own enactments and directs the enacting bodies of sub-statutory documents to request ex ante constitutional review by the NPCSC when they are confronted with constitutional questions.
III. Build a Comprehensive System of Legal Norms & Promote Development and Ensure Good Governance with Good Laws
(7) Improve the framework for legislative work. . . .
Improve the system and mechanism under which the people’s congresses lead the legislative work. Strengthen the organization and coordination of legislative work by the people’s congresses, and give play to the deliberation and gatekeeping role of the people’s congresses and their standing committees. Improve the mechanisms whereby the relevant NPC special committees and NPCSC working bodies take the lead in drafting important draft laws. Give better play to the role of the people’s congress delegates in drafting and revising laws or regulations; sessions of the people’s congresses should ordinarily be arranged to deliberate draft laws or regulations. Study and improve the meeting system [会议制度] of the standing committees of the people’s congresses, and explore ways to increase the number of sessions where the standing committees of the people’s congresses review draft laws or regulations. Give full play to the role of the constituent members of the standing committees of the people’s congresses in law-making, and gradually increase the proportion of full-time standing committee members, especially those with experience in rule-of-law practice [法治实践经验]. . . .
This subsection makes two fundamental changes to China’s current legislative framework. First, it requires that all people’s congresses, including the NPC, ordinarily should consider legislation at every plenary session. Because the full people’s congresses meet only once per year, they tend to be sidelined in the legislative process. The NPC, for instance, reviewed legislation at only six sessions from 2000 to 2014. This change would help the full people’s congresses shed the image that they are legislatures only in name. Second, this subsection calls for increasing the frequency with which the standing committees of people’s congresses meet. They (including the NPCSC) now typically meet every two months. Convening more frequently would allow them to pass more laws, and fewer authorities would be enacted by the government as administrative rules. This subsection’s use of the term “meeting system” signals more changes to how the standing committees meet beyond a mere increase in frequency.
(8) Adhere to the simultaneous emphasis on the enactment, revision, abolition, and interpretation of laws. Strengthen legislation in key fields, emerging fields, and foreign-related fields. Advance laws and regulations urgently needed in implementing the new vision of development, establishing the new development pattern, accelerating the improvement and deepening of supply-side structural reforms, promoting innovation-driven development, and preventing and defusing financial risks as well as in other areas. Strengthen the check on and oversight of the exercise of power, improve the laws and regulations that regulate joint administrative actions, and study and formulate an Administrative Procedure Law. Focusing on strengthening the construction of socialist culture, improve laws and regulations on the development of cultural undertakings and cultural industries as well as on the protection of intellectual property rights. Strengthen the construction of legal schemes that ensure and improve the people’s livelihood and innovate social governance, in order to provide a strong guarantee for advancing education modernization, implementing the Healthy China Initiative, and maintaining social order. Strengthen the legislation and the construction of accompanying schemes for epidemic prevention and control, improve the relevant punishment procedures, strengthen public safety guarantees, and build a comprehensive, scientifically standardized, and effective legal system for responding to public health emergencies. Strengthen the construction of legal schemes associated and complementary with the Civil Code. Strengthen legislation in the field of national security. Improve the legal scheme for military-civilian integrated development. Strengthen legislation in the field of information technology, and promptly follow up on and study relevant legal schemes on issues such as digital economy, internet finance, artificial intelligence, big data, and cloud computing, to make up for shortcomings without delay. Strengthen the construction of legal schemes for regional coordinated development. In formulating and revising laws and regulations, efforts must be made to solve the problems of low cost of violation and insufficient level of punishment. Coordinately solve the problems that certain laws and regulations in the fields of food and medicine, ecology and environment, and workplace place are not as stringent as they should be. . . .
Timely organize clean-ups targeting the inconsistencies, incongruity, and incompatibility between legal provisions. If there are multiple laws in a certain field, codification should be carried out when conditions are ripe. Strengthen the coordination and supporting work for lawmaking, simultaneously research and draft both the draft law and its supporting regulations, and enhance the overall effectiveness of legal norms. Strengthen the legislative evaluation and assessment work. Strengthen the interpretation of laws and regulations. Build a national unified information platform for laws, regulations, rules, administrative normative documents, judicial interpretations, and internal party regulations. . . .
Strengthen the rule-of-law safeguards for major national development strategies such as the coordinated development of Beijing-Tianjin-Hebei, the development of the Yangtze River Economic Belt, the construction of the Guangdong-Hong Kong-Macao Greater Bay Area, the integrated development of the Yangtze River Delta, the ecological conservation and high-quality development of the Yellow River Basin, as well as the comprehensive deepening of reform and opening up in Hainan.
Two provisions in this subsection are notable. First, with the Civil Code acting as a positive precedent, it calls for codification in areas governed by a sizable number of existing statutes. Second, this subsection requires that implementing rules, such as administrative regulations and judicial interpretations, be researched and drafted along with statutes to solve the chronic problem that a lack of implementing rules hampers the effective enforcement of statutes. This subsection is also the first public document that expressly calls for the enactment of a unified Administrative Procedure Law [行政程序法], to regulate administrative decisionmaking. Finally, this subsection also sets forth the goal of building a unified national database of legal authorities. By August 2020, the database had already been open to government users for internal testing, and we hope it would be available to the public soon.
(9) Improve the legislative work mechanism. Refine the legislative mechanisms for project formulation, drafting, feasibility evaluation, coordination, and deliberation to improve the pertinence, timeliness, systematicness, and practicality of legislation. Improve the system for the formulation of legislative plans, and give full play to the overall planning and guiding role of the legislative plans. Improve the public consultation mechanism for draft laws, expand the coverage and representativeness of public participation, and enhance transparency in lawmaking. For legislative projects that are closely related to the operation of businesses, fully listen to the opinions of relevant businesses, industry associations, and chambers of commerce. Improve the feedback mechanism for public consultations; Explanations should be made if relatively concentrated opinions are not adopted. Make full use of big data analysis to provide statistical analysis and decisionmaking basis for major issues in legislation. Strengthen the evaluation and consultation over major interest adjustments involved in legislation, and advance the introduction of third-party assessments over important legislative matters in significant controversy. Establish and improve the coordination mechanisms for major legislative disputes to prevent long delays in legislative projects. Improve the technical standards for legislation and strengthen legislative guidance. . . .
This subsection calls for increasing the transparency of the lawmaking process. Specifically, the legislature would be required to explain why it does not adopt “relatively concentrated public opinions” on draft legislation.