Recording & Review is a series that focuses on the NPC Standing Committee’s eponymous oversight process, whereby its Legislative Affairs Commission reviews the validity of various types of normative documents, including local regulations and judicial interpretations. A comprehensive introduction to “recording and review” can be found here, and past installments of this series here.
On Wednesday, January 20, the NPC Standing Committee (NPCSC) heard its Legislative Affairs Commission’s annual report on its efforts in 2020 to record and review the validity of various types of sub-statutory documents, including local regulations and judicial interpretations. In sum, a document will fail review if the Commission deems it (1) unconstitutional; (2) contrary to the Communist Party’s major policies; (3) unlawful; or (4) otherwise “clearly inappropriate.” The Commission will then ask the document’s enacting body to amend or repeal it. This year’s report is particularly notable in that it devotes a full section to discussing how the Commission “proactively and prudently” dealt with constitutional issues in the recording-and-review process. This section mentions three cases, and below, we will focus on one of them, which concerns the language of instruction used by China’s ethnic schools.
The Legislative Affairs Commission took issue with two sets of unidentified local regulations (legislation adopted by local legislatures) that govern the languages used in teaching at ethnic schools—schools principally educating students of minority ethnicities. One set of regulations provided that ethnic schools “shall” use ethnic languages in teaching, while the other prescribed the same requirement but allowed some classes at ethnic schools to be taught in Mandarin Chinese if the local education department approves. We found only two regulations that fit the Commission’s descriptions: Inner Mongolia’s 2016 Regulations on Ethnic Education [内蒙古自治区民族教育条例]1 in the former set, and Jilin Yanbian Korean Autonomous Prefecture’s 2004 Regulations on Education for Ethnic Koreans [延边朝鲜族自治州朝鲜族教育条例]2 in the latter.
The Commission concluded that those provisions violated article 19, paragraph 5 of the P.R.C. Constitution—“The State promotes the nationwide use of Putonghua.”—as well as unspecified provisions of two statutes—the Law on the Standard Spoken and Written Chinese Language [国家通用语言文字法] and the Education Law [教育法]. The former statute requires all schools to use the national common language—Mandarin and standard written Chinese—as the language of instruction, “unless otherwise provided by law” (art. 10). The Education Law then provides for one exception to that general requirement: it allows ethnic schools to conduct “bilingual education” using both Chinese and the language used by the relevant ethnic minority (art. 12).
On their face, Inner Mongolia’s and Yanbian Prefecture’s regulations do seem to violate the two statutes. They appear to ban ethnic schools from teaching in Mandarin Chinese—at least not without governmental approval—contrary to the Education Law’s bilingual-education requirement. But that contradiction disappears once one looks at other provisions in the regulations and the two jurisdictions’ actual practice. Both regulations contemplate that classes on the Chinese language will be taught at ethnic schools,3 and they in fact are.
It is thus telling that the Legislative Affairs Commission also cited the Chinese Constitution in its decision. Under the “constitutional avoidance” principle the Commission purports to follow, it will not review a local regulation for constitutional violations if it can readily conclude that it violates a statute.4 Invoking the Constitution in this case is a sign that the Commission did not believe the local regulations clearly violated the statutes.
Our reading of the Commission’s report is that it interpreted the Constitution to require ethnic schools to not simply teach Mandarin itself—but to also teach some classes in Mandarin. As Professor Christopher Atwood explains on the Made in China Journal, a language can be thought of “as either the ‘medium’—the language in which the teaching occurs—or the ‘subject’—that which is being taught.” Thus, to use this terminology, the Commission read China’s constitutional policy of promoting Mandarin as mandating that the Chinese language be not only a “subject”—but also a “medium”—in ethnic schools.
The Commission did not mention how the two local regulations—both several years old—came to its attention in the first place. If private citizens had requested review, it would have likely said so, as it does elsewhere in the report. Considering the authorities’ push for Mandarin-language education in Inner Mongolia and China’s northeastern provinces (with a sizeable ethnic Korean population, especially in Yanbian) last fall, it is probably not a coincidence that the ethnic education regulations of Inner Mongolia and Yanbian were reviewed and found unconstitutional.
Finally, we will note that here, as has usually been the case, the Commission has not publicly offered any reasoning as to why it thought the local regulations at issue violated either of the relevant statutes or the Constitution. We also have no idea whether it engaged with any legal authority pointing in the other direction. For instance, China’s semi-constitutional statute on ethnic autonomy, the Regional Ethnic Autonomy Law [民族区域自治法], expressly allows ethnic schools to teach in minority languages while offering classes on the Chinese language—which was exactly what Inner Mongolian and Yanbian schools had been doing. On top of that, the P.R.C. Constitution also guarantees all ethnicities “the freedoms to use and develop their own spoken and written languages” (art. 4, para. 4). It is arguable that the Commission’s interpretation would have a negative impact on these freedoms.
It is thus unfortunate that the Legislative Affairs Commission decided this novel and far-reaching constitutional question without either publicly explaining its action or engaging the body with the actual authority to interpret the Constitution—the NPCSC.
- Article 19 provides: “The various levels and various types of ethnic schools in the [Inner Mongolia Autonomous] Region shall use the written and spokes languages of the respective ethnicities or used by the respective ethnicities in teaching, and focus on developing the bilingual education work of the ethnic schools.”
- Article 25, paragraph 1 provides in part: “Secondary and primary schools for ethnic Koreans are to teach in the standard written and spoken Korean language, and when approved by the [Yanbian] Prefecture’s administrative department for education, may teach courses that meet qualifications in the written and spoken Chinese language . . . .”
- Article 20 of the Inner Mongolia regulations explicitly requires bilingual education at ethnic schools. Article 25, paragraph 2 of the Yanbian regulations implicitly mandates the same by directing schools to “strengthen” education on the Chinese language at the primary-education stage, so that the students become fluent in both Korean and Chinese.
- See NPCSC Legis. Affs. Comm’n, Off. for Recording & Reviewing Reguls., Introduction to the Working Measures for the Recording and Review of Regulations and Judicial Interpretations [《法规、司法解释备案审查工作办法》导读] 99 (2020).