Editor’s Note: On Thursday, March 11, the NPC approved the two amendments discussed in this post; both have taken effect on March 12. We have updated this post consistent the amendments’ final texts, which are accessible from the respective bill pages.
The National People’s Congress (NPC) concluded its 2021 session on Thursday, March 11. It is the seventh year in a row—the second-longest streak post-1978 (after 1988–1997)—that the NPC reviews legislation at its annual plenary session. This year, besides a decision to overhaul Hong Kong’s electoral system, the NPC also reviewed and approved amendments to its own governing laws: the NPC Organic Law [全国人民代表大会组织法] and the NPC Rules of Procedure [全国人民代表大会议事规则]. The former outlines the NPC’s organizational structure and prescribes the functions of its various components, whereas the latter lays out the procedures for conducting business in the full NPC.
Before this week, neither law had ever been updated. The NPC Organic Law was enacted on December 10, 1982, the same day as China’s current Constitution, and the NPC Rules of Procedure seven years later, in April 1989. The amendments thus focus heavily on codifying the changes in the NPC’s organization and practice in the last several decades. They also seek to modernize the two laws’ structures, delete irrelevant and duplicative provisions more suitable for other laws, and ensure that they are consistent with newer statutes, including the 1994 Budget Law [预算法] (amended in 2014 and 2018), 2000 Legislation Law [立法法] (amended in 2015), 2006 Oversight Law [各级人民代表大会常务委员会监督法], and 2018 Supervision Law [监察法].
As a result, few provisions in the amendments are truly novel, even though their texts span over dozens of pages. In this explainer, we will dissect the two amendments and sort out “new” provisions—which in fact will lead to changes in practice—from those that will not. The NPC Organic Law is abbreviated as “OL” below, and the NPC Rules of Procedure as “ROP.” Citations are to the two laws as amended, not to the amendments.
What Is New?
Rescheduling NPC sessions. The current ROP provides that the NPC must convene an annual session during the first quarter of each year, but does not address the rescheduling of NPC sessions. This lack of provisions had not been an issue until last spring, when the 2020 NPC session had to be postponed due to the COVID-19 epidemic. The ROP amendment provides that the NPC Standing Committee (NPCSC)—and it alone—may decide to reschedule an NPC session “in special circumstances” (ROP art. 2, para. 2). The NPCSC may set a new opening date itself (as it did in 2020) or may authorize the Council of Chairpersons [委员长会议] (a powerful decision-making body within the NPCSC) to do so instead (id.).
State Supervision Commission’s right to submit bills. Since its establishment in 2018, the State Supervision Commission (SSC) has not been allowed to do something that other central state organs can: directly submit bills to the NPC and the NPCSC. Instead, it had to twice rely on an intermediary—the NPC Supervisory and Judicial Affairs Committee—to introduce bills. Under the amendments, it can do so itself (see OL arts. 16, 29; ROP art. 23). To the SSC, this change will streamline the process for submitting bills, but it is unclear whether it would have any other impact (e.g., on the contents of the SSC’s bills). (Our guess: it probably would not, for the Committee will participate in the SSC’s drafting process regardless.)
Questioning the Supreme People’s Court (SPC), Supreme People’s Procuratorate (SPP), and SSC. Questioning [质询] is a more confrontational form of oversight. Unlike the more informal and amicable “inquiry” [询问], another oversight tool, questioning implies dissatisfaction with the performance of the state organ being questioned. Under current law, the SPC and SPP may be questioned by NPCSC members, but not NPC delegates. The amendments eliminated this discrepancy, while also subjecting the SSC to questioning (OL art. 21; ROP art. 48). This move is mostly symbolic, however, in large part due to questioning’s antagonistic nature. NPC delegates have used it exactly twice in history—most recently in 2000, when the Ministry of Transport was questioned over a ferry’s capsize off the coast of Yantai, Shandong that killed 280 on board.
Appointing and removing Vice Premiers and State Councilors. The NPC has the constitutional authority to appoint and remove all constituent members of the State Council (P.R.C. art. 62, item 5; art. 63, item 2). When the NPC is not in session, the NPCSC may appoint and remove only the ministers and the Secretary General—but not other State Council officials—if recommended by the Premier (id. art. 67, item 9). The OL amendment grants the NPCSC additional authority to appoint and remove Vice Premiers and State Councilors between NPC sessions, upon the Premier’s nomination (art. 31).
Dismissing State Council officials and Central Military Commission (CMC) members. The OL amendment allows the NPCSC to “dismiss” [撤职] a high-ranking State Council official—a Vice Premier, a State Councilor, the Secretary General, or a minister—on the Premier’s or the Council of Chairpersons’ motion (art. 32). “Dismissal” is a form of sanction for misconduct and is distinguished from the “removal” [免职] of officials that occur in routine changes in cabinet membership (due to retirement, for instance). The NPCSC in fact dismissed a State Council official, then-Secretary General Yang Jing, in February 2018 for corruption, upon the Council of Chairpersons’ request. (The Central Commission for Disciplinary Inspection sanctioned Yang the same day.) We then noted that Yang’s dismissal stood on shaky legal ground, for it was beyond the NPCSC’s authority. The OL amendment has supplied this missing authority, but as Yang’s case showed, we doubt the NPCSC could exercise this new power independently. The amendment also grants the NPCSC a similar power to dismiss CMC members, but only if requested by the CMC Chairperson. Here, the NPCSC will not able to act on its own, even on paper.
Terms of NPC special committees. Although the NPC’s various special committees—there are currently ten—are understood to serve the same five-year term as the corresponding NPC, no law has addressed this issue so far. The OL amendment writes their five-year terms into law and also allows each NPC’s special committees to continue functioning until the next NPC has established their successors (art. 35). Otherwise, there will be a few days’ gap after a new NPC convenes, but before it establishes its own special committees. Such continuity is especially important to two committees: the Constitution and Law Committee, which is in charge of revising draft legislation; and the Financial and Economic Affairs Committee, which is responsible for reviewing draft budgets as well as national economic and social development plans.
Preliminary review of Development Plans. Under current law, each year the State Council must report to the NPC Financial and Economic Committee on the implementation of last year’s National Economic and Social Development Plan as well as on a preliminary draft of the current year’s Development Plan 30 days ahead of that year’s NPC session. The amended ROL now requires the State Council to make that report 15 days earlier—45 days before an NPC session—presumably so that the Committee can conduct a more thorough preliminary review (art. 34). This earlier deadline also applies to the State Council’s preliminary report on each five-year plan for national economic and social development (see ROL art. 37). (The State Council’s annual preliminary report to the Committee on central and local government budgets is subject to the same timeline.)
Resignations of NPCSC members. The current ROP requires that the resignations of rank-and-file NPCSC members be “confirmed” by the subsequent NPC session after they have been accepted by the NPCSC. In other words, the NPC needs to conduct a vote to retroactively approve an NPCSC member’s resignation (as it did in 2019 and 2020). Perhaps recognizing that such votes are pure formalities—it is hard to imagine the NPC rejecting a resignation months after the fact—the ROL amendment has replaced the confirmation vote with a simple notification requirement (art. 43, para. 3).
What Is Not New But Still Notable?
Communist Party’s leadership. The 2018 Constitutional Amendment added a new provision declaring that “[t]he defining feature of socialism with Chinese characteristics is the leadership of the Communist Party of China” (P.R.C. Const. art. 1, para. 2). Then in early 2019, the Party released an opinion on enhancing its political work, which in part requires that “upholding the Party’s comprehensive leadership” be written into the organic laws of state organs. The OL is the first organic statute so amended: a new article 3 requires the NPC and its Standing Committee to uphold the Party’s leadership.
Updated lists of core NPC bodies’ functions. The OL amendment codifies several core NPC bodies’ evolved roles in the past several decades. While breaking no new ground, these updated provisions collect authoritative and comprehensive descriptions of those bodies’ functions in a single place for easy reference. Several are of note:
- Presidium (art. 14). The Presidium [主席团] is an ad hoc body of approximately 170 members that presides over each NPC session. Its role is similar to that of the Council of Chairpersons vis-à-vis the NPCSC. The amendment codifies the Presidium’s role in handling routine matters, such as determining an NPC session’s daily schedule and organizing constitutional-oath ceremonies. It also recognizes the Presidium’s more substantive power to decide, for instance, whether to include a delegate’s bill in the session’s agenda, whether to put a bill to a vote, and whom to nominate to state offices.
- Council of Chairpersons (art. 25). The amendment codifies the Council’s authority to propose changes to an NPCSC session’s agenda and to adopt internal work plans and “normative working documents” [工作规范性文件]. The 2019 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] is one such document. Discussed at length here, these Working Measures lay down the procedures and standards by which the NPCSC Legislative Affairs Commission and NPC special committees review the validity of sub-statutory legal authorities.
- NPC special committees (art. 37). The amendment confirms the NPC special committees’ authority to draft legislation, to assist the NPCSC in hearing special work reports and holding special inquiry sessions, to hear informal reports from other central state organs, and to conduct law enforcement inspections on behalf of the NPCSC.
In areas most closely watched by observers (including us)—such as increasing the legislature’s openness and transparency, activating dormant oversight tools, laying down more detailed governing rules for the NPC’s internal bodies, and further empowering the delegates—the OL and ROP amendments either simply leave the current provisions in place or go no further than codifying existing practice. (For Chinese scholars’ recommendations for reform, see, for example, this, this, and this article in the China Law Review [中国法律评论].)
With contribution by Taige Hu