Demystifying the NPC’s Quasi-Legislative Decisions

As China’s supreme legislature, the NPC and its Standing Committee (NPCSC) make “laws” [法律]—or “statutes,” as we will refer to them below. Statutes in the constitutional sense are legal authorities (1) approved by a majority vote in either legislative body and (2) then promulgated by the P.R.C. President in a presidential order. They are most commonly titled “P.R.C. ××× Law” [中华人民共和国×××法]. Besides statutes, the legislature also routinely passes legal instruments styled as “decisions” [决定] (or occasionally “resolutions” [决议]).[1] Earlier in the spotlight, for instance, was an NPCSC decision that disqualified four pro-democracy Hong Kong legislators. Or the NPC’s May 28, 2020 decision that led to the enactment of the Hong Kong National Security Law. What is the nature of these “decisions”? Are they any different from the statutes? If so, to what extent? As the legislature (the NPCSC, in particular) makes increasing use of decisions, we explore these questions below.

Categories of Decisions

The Chinese legislature is commonly conceptualized as having four broad categories of powers: the power to legislate, to make personnel decisions, to conduct oversight, and to decide on major issues.[2] (These categories have no clear-cut boundaries and do indeed overlap. The Oversight Law, for instance, is an exercise of both the NPCSC’s legislative and oversight powers.) Decisions can be the vehicles for exercising all four types of authorities, but are most commonly legislative in nature. We thus place decisions in three groups based on the extent to which they resemble statutes.

1. Non-legislative decisions. At one end of the spectrum are non-legislative decisions. Among other purposes, the NPC and its Standing Committee have used non-legislative decisions to:

  • exercise their power of appointment and removal;
  • ratify international treaties and agreements;
  • grant special amnesty;
  • confer state medals or honorary titles;
  • convene or delay NPC sessions;
  • establish their subordinate bodies (e.g., NPC special committees);
  • approve central government budgets;
  • approve National Economic and Social Development Plans; and
  • approve other governmental bodies’ work reports.

2. Legislative decisions. At the other end of the spectrum are decisions that qualify as statutes in the constitutional sense, because they are promulgated by the President after being adopted by the legislature. There are three types of legislative decisions: (1) amendments; (2) repeals; and (3) what we call “mini-statutes.” By convention, amendments to existing statutes (except the Criminal Law) are adopted as decisions (i.e., Decision to Amend ××× Law).[3] Similarly, except when a new statute directly repeals an older one, repeals of existing statutes are also passed in the form of decisions (i.e., Decision to Abolish ××× Law). Finally, “mini-statutes” is the catch-all term we use for all other legislative decisions, for they are typically much shorter than “full statutes.” An example is the 1984 NPCSC decision to establish maritime courts in coastal port cities. Mini-statutes have fallen out of use since the late 1990s, however.

3. Quasi-legislative decisions. The third category consists of what some scholars term “quasi-legislative decisions” [准法律决定].[4] The two Hong Kong-related decisions mentioned earlier both fall within this category. Quasi-legislative decisions are the successors to mini-statutes, and they are almost indistinguishable in form and in substance. (Both are covered by the term “decisions concerning legal issues” [有关法律问题的决定] used in the NPCSC Rules of Procedure [全国人民代表大会常务委员会议事规则].) Their only notable difference is that, unlike mini-statutes, quasi-legislative decisions are not promulgated by the President. Given these decisions are being used more frequently but are not well understood by the public, we take an in-depth look at them below.

Quasi-Legislative Decisions

1. Source of authority. The NPC’s general power to adopt quasi-legislative decisions is not in doubt, for as the “supreme organ of State power,” it can wield all such power as it deems proper (P.R.C. Const. art. 57; art. 62, item 11). The NPCSC’s constitutional authority, in comparison, is much more circumscribed. The Constitution does not explicitly give it the power to adopt quasi-legislative decisions, but some scholars read together two constitutional provisions as implicitly doing so: one granting the NPCSC national legislative power and the other implying that it may adopt decisions (see id. art. 58; art. 62, item 12).[5] In some circumstances, the NPC has also expressly authorized the NPCSC to legislate by decisions[6]—for instance, to suspend specific statutory provisions in certain regions within a limited period to facilitate reform pilots (see Legislation Law art. 13).

2. Procedure. There are few procedural limitations on the adoption of quasi-legislative decisions. Not only are they not subject to presidential promulgation—which, to be sure, is but a formality—they are also exempt from the statutory procedures that apply to the enactment of statutes. Under the Legislation Law [立法法], the legislature may adopt a new statute only after at least two (usually three) separate reviews, typically several months apart. Since 2008, with very few exceptions, it also conducts at least one round of public consultation on each new statute. The Legislation Law does not apply to quasi-legislative decisions (or mini-statutes), however. The only relevant law, the NPCSC Rules of Procedure, lays down the default rule that such decisions may be adopted after a single review without any public consultation (art. 16). And the NPCSC has not deviated from this default rule since 2006. The last quasi-legislative NPCSC decision to undergo more than one review (in this case, three) was the 2006 Decision on the Administration of Judicial Authentication [关于司法鉴定管理问题的决定]. (The NPC’s May 28, 2020 decision on Hong Kong was reviewed twice, first by the NPCSC ten days earlier, but only because in practice the NPCSC performs an initial review of all bills referred to the NPC.)

3. Force. Even though quasi-legislative decisions undergo less stringent formulation procedures, in practice they are considered as having the same force as statutes.[7] This is the prevailing view among Chinese scholars.[8] State organs, too, treat quasi-legislative decisions as de facto statutes. For instance, courts frequently rely on the NPCSC’s Decision on the Administration of Judicial Authentication to rule on the admissibility of authentication opinions by expert authenticators.[9] Thus, quasi-legislative decisions are part of the NPC and NPCSC’s “legislation,” along with statutes in the constitutional sense (see chart below). Still, some scholars believe that statutes should trump those decisions in the event of a conflict, because of the latter’s laxer enacting procedures.[10]

* Statutes and quasi-legislative decisions may also be updated in the form of “revisions” [修订] (in addition to amendments). Because revisions replace the authorities they update in their entirety, they are not listed separately in the chart.

4. Substance. Substantively, quasi-legislative decisions (and mini-statutes) are more akin to full statutes, though they are still distinguishable. They, like full statutes, typically set forth abstract norms: general rules of conduct that regulate social relationships in the abstract, not particular individuals or events.[11] But unlike full statutes, quasi-legislative decisions (and mini-statutes) are generally “subsidiary” [辅助性][12]: they often address “specific matters and concrete issues” and are not as generally applicable as full statutes.[13] Functionally, these decisions are described as “normative legal documents” that “further provide for, interpret, amend, supplement, or confirm the relevant constitutional or statutory issues.”[14] Consider, for instance, the NPCSC’s 2018 decision providing for direct appeals to the Supreme People’s Court in certain technical intellectual property cases. It is capable of repeated application, but in contrast to the Civil Procedure Law [民事诉讼法] (a full statute), it applies in only a small subset of cases and indeed creates an exception to the ordinary appellate procedures laid down in the latter.

Quasi-legislative decisions touch on a myriad of subjects, but a few stand out.

  • State institutions. The legislature frequently uses decisions to establish new state institutions or to change the organizations or functions of existing ones. For instance, the NPCSC has used decisions to establish China’s specialized courts, including maritime courts, intellectual property courts, and financial courts. And in 2018 alone, the NPCSC passed decisions to ensure the continuity of agency functions following a sweeping State Council reorganization (which itself was approved by an NPC decision), and to adjust the duties of the NPC Constitution and Law Committee and the China Coast Guard, consistent with a broader state institutional reform plan.
  • Authorizations. The legislature has also traditionally used decisions to grant authorizations. Roughly speaking, there are two types of authorizations. The first type greenlights reform pilots that would require suspending current statutory provisions and is thus temporary in nature. To give a well-known example: between late 2016 and March 2018, the NPCSC in two decisions authorized the establishment of supervision commissions—first in three provinces, then nationwide (but not at the central level). The 2018 Constitutional Amendment later constitutionalized this new branch of government. The other type of authorizations grants new authority to other state organs and is by their terms permanent. Such authorizations were more common before the turn of the century. For instance, in the 1980s and 1990s, the NPC and the NPCSC several times granted the cities and provinces with special economic zones greater legislative authority over economic matters.
  • Hong Kong & Macau. Outside formal legislative interpretations, the NPC and its Standing Committee tend to use decisions to implement or supplement the Hong Kong and Macau Basic Laws. The NPCSC has adopted decisions declaring what laws would cease to be in force in the two cities post-handover. It has also chosen decisions as the vehicles for changing the national laws listed in Annexes III to their Basic Laws (thus applicable in the two cities). Recently, there has been an uptick in NPCSC decisions that concern Hong Kong—including ones not explicitly contemplated by the Basic Laws—such as the decisions laying down requirements for electing the Chief Executive by universal suffrage, approving a joint checkpoint plan that gives mainland authorities jurisdiction over part of a high-speed railway station inside Hong Kong, extending the term of the 6th Legislative Council—and, as mentioned, “safeguarding national security” in Hong Kong.
  • Operations of people’s congresses. The national legislature has used decisions to deal with issues relating to the operations of the people’s congresses nationwide. The NPCSC has several times prescribed by decisions the periods within which to hold direct elections of delegates to county- and township-level people’s congresses. It has also adopted decisions to formalize its oversight of the central budget, planning of the economy, and management of state assets. Further, once every five years since 1992, each NPC has adopted a decision providing for the demographic composition of the next NPC (we wrote about the most recent one here).

A list of most quasi-legislative decisions with ongoing effect (as of February 1, 2021), including temporary authorizations that have yet to expire, can be found here.

5. Utility. From the legislature’s standpoint, quasi-legislative decisions have proven more useful than statutes in certain situations. And it is the need to legislate in those situations that shapes those decisions’ characteristics in the first place. First, their freedom from rigorous legislative procedures—single review, no public consultation—enables the legislature to act quickly when necessary.[15] For instance, early in the coronavirus outbreak (which is thought to have originated from animals), the NPCSC in February 2020 decided to impose a near-total ban on consuming wild animals. Had the ban been enacted as a statute, the legislative process would have taken months.

Second, given the unwritten convention that statutes should be comprehensive, quasi-legislative decisions allow the legislature to address pressing issues when it is not yet ready to enact full statutes.[16] For instance, “unripe legislative conditions” was the Ministry of Public Security’s reason for proposing a decision, but not a statute, on counterterrorism in 2011. That 8-article decision was later replaced in 2015 by a comprehensive 97-article Counterterrorism Law [反恐怖主义法].

Third, as the legislature also prefers to maintain the stability of enacted statutes, quasi-legislative decisions allow it to supplement statutes without formally amending them.[17] To illustrate, consider the NPCSC’s Decision on Improving the People’s Assessor System [关于完善人民陪审员制度的决定] from 2004. By then, the statutes governing the courts and litigation procedures had all provided for the participation in court hearings by lay citizens—the people’s assessors. Yet none had specified important issues like the assessors’ roles, the manner of their selections, or their qualifications. That decision thus played a critical gap-filling role and allowed the people’s assessors system to develop without subjecting those statutes to frequent amendments. It was replaced by a People’s Assessors Law [人民陪审员法] in 2018.

Quasi-legislative decisions are much more flexible in form, substance, and procedure than full statutes. Given these advantages, they are certainly here to stay. But as the NPCSC is scheduled to consider revisions to its Rules of Procedure later this year, we might soon see some needed adjustments to or improvements of their governing rules. So stay tuned.

With contribution by Taige Hu

[1] The differences between “decisions” and “resolutions” are beyond the scope of this post. Suffice it to say that under more recent practice, the legislature typically uses resolutions to approve non-legislative documents submitted for review, such as other state organs’ work reports. See Cai Dingjian [蔡定剑], The Institution of the Chinese People’s Congress [中国人民代表大会制度] 316–17 (4th ed. 2003). We will use “decisions” to refer to both types of documents in this post.

[2] See, e.g., id. at 259.

[3] Statutes may also be updated in the form of “revisions” [修订], which are not passed as decisions, but as new statutes. In other words, revisions replace the entire statutes being updated, whereas amendments make only partial changes.

[4] See, e.g., Wang Zhu [王竹], How Many Statutes Are Currently in Effect in China?—With Comments on Improving the Constitutionality of “Quasi-Legislative Decisions” [我国到底有多少部现行有效法律——兼论“准法律决定”的合宪性完善], Soc. Sci. [社会科学], no. 10, 2011, at 90, 92.

[5] See id. at 98.

[6] Article 67, item 22 of the Constitution vests the NPCSC with any unenumerated powers that are delegated by the NPC.

[7] See, e.g., Jin Meng [金梦], The Definition and Force of Quasi-Legislative Decisions [立法性决定的界定与效力], China Legal Sci. [中国法学], no. 3, 2018, at 150, 153; Wang, supra note 4, at 92.

[8] See, e.g., Huang Jinrong [黄金荣], The Legal Definitions of “Normative Documents” and Their Force [“规范性文件”的法律界定及其效力], Law Sci. [法学], no. 7, 2014, at 10, 14 n.10.

[9] See Jin, supra note 7, at 159; see also Chen Peng [陈鹏], The Nature and Application of the NPC Standing Committee’s “Decisions with Abstract Legal Propositions” [全国人大常委会“抽象法命题决定”的性质与适用], Mod. L. Sci. [现代法学], no. 1, 2016, at 63, 67–68.

[10] See, e.g., Huang, supra note 8, at 15; Qin Qianhong [秦前红] & Liu Yida [刘怡达], “Decisions Concerning Legal Issues”: Functions, Nature, and Institutionalization [“有关法律问题的决定”:功能、性质与制度化], Soc. Sci. Guangdong [广东社会科学], no. 6, 2017, at 210, 217.

[11] See Wang, supra note 4, at 94; see also Qin & Liu, supra note 10, at 216.

[12] Jiang Hui [江辉], The Differences Between Decisions Concerning Legal Issues and Statutes [有关法律问题的决定与法律的区别], People’s Cong. Stud. [人大研究], no. 1, 2012, at 32, 33.

[13] Jin, supra note 7, at 153.

[14] Id. at 152.

[15] See Qin & Liu, supra note 10, at 213.

[16] See id.; see also Chen, supra note 9, at 72.

[17] See Qin & Liu, supra note 10, at 213–14; see also Jin, supra note 7, at 154–55.

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