The Chinese Legislature’s Hidden Agenda

On February 9, I published in The Diplomat an article titled The Chinese Legislature’s Hidden Agenda. It begins this way:

For about a decade, China’s national legislature, the National People’s Congress (NPC), made real improvements to its transparency. In 2008, it started soliciting public comments once on almost every major bill. Since 2013, it has been asking for comments multiple times for the same bill. In 2015, it codified “legislative openness” as a guiding principle for lawmaking. Most recently, in the summer of 2019, the NPC established a spokesperson’s office to offer greater and more regular disclosure of its legislative activities, including brief summaries of public input on draft legislation.

In the past two years, however, the legislature has appeared increasingly tempted to embrace the secrecy afforded by the Great Hall of the People. It has been withholding legislative drafts at a greater frequency—five in 2020–2021 alone versus five total during 2015–2019. It has also started to hide certain bills on its legislative agenda from the public until shortly before or, worse, until after their adoption. This practice not only departs from the legislature’s transparency norm, but is also at odds with the party-state’s legal reform agenda and recent official rhetoric on China’s political system. Yet the NPC Standing Committee (NPCSC) is now poised to write this practice into law, in effect guaranteeing its continued use, and once again highlighting the party-state’s competing desires for legal predictability and flexibility.

In this post, I will share the data underlying this article and discuss more arcana of the NPCSC’s agenda-disclosure practice. I thus highly recommend that you read the above article first before continuing.

Disclosure Scenarios

As I explain in my article, the agenda of an NPCSC session can be fully disclosed at various points in time. The different timings of disclosure can be broadly characterized as (1) “earliest possible,” (2) “just right,” or (3) “too late.” The first two do not raise particular transparency concerns, while the third corresponds to the hidden-agenda practice I describe and criticize in the article. The three broad categories can be further broken down into five different scenarios (discussed below), depending on the (potential) reason for delayed disclosure, the timing of a bill’s submission, and the number of readings a bill undergoes. In the chart below, each scenario is represented by a circle or triangle of a different color. [Email subscribers are reminded to view the chart directly on our website.]

Category I: “Earliest Possible”

(grey circle) — The earliest occasion for fully disclosing an NPCSC session’s agenda is the official Xinhua readout of the Council of Chairpersons meeting that schedules the session. Except for emergency sessions, the Council meets at least a week in advance to call an NPCSC session.

Category II: “Just Right”

The next timing for disclosing the full agenda of an NPCSC session is the session’s first day. This can occur in several ways: (1) in Xinhua’s readout of the session’s first plenary meeting, where typically all bills are explained to the lawmakers; (2) in an official agenda released by the NPCSC itself (a short document like this one); or (3) both. For the sake of simplicity, I did not mention the second possibility in the article for The Diplomat. Before December 2019, the two means of disclosure were largely duplicative, but the NPCSC has stopped releasing official agendas online since then, so Xinhua’s readouts have become the sole means of disclosure at this juncture. I said “largely” because occasionally some bills were explained not at the first plenary meeting but at a subsequent one, so Xinhua’s readout of the first meeting could not disclose the full agenda, whereas the official agenda could.

(green circle) — Some bills were not disclosed at the “earliest possible” time because they were submitted after the Council of Chairpersons has already met but before the NPCSC convenes. The November 2014 decision designating the National Constitution Day, for example, was separately submitted to the NPCSC session that was scheduled on October 17 and began on October 27. The decision was prepared at the last minute in response to a Communist Party plenum document adopted in the interim, on October 23. In the article, I treated such last-minute bills as though they fell within Category I, because there was no intentional withholding on the NPCSC’s part.

The Council of Chairpersons must separately meet to place last-minute bills on an NPCSC’s agenda. Sometimes Xinhua reports on these meetings, sometimes it does not. But in the latter cases, it is still possible to deduce that the meetings have taken place if the next reported Council meeting skipped a number. These potential late submissions are each marked by an asterisk in the chart.

(purple circle) — Very rarely, a bill would be submitted when the NPCSC is already in session. Since 2013, there has been only one such bill: the November 2016 interpretation of the Hong Kong Basic Law’s oath-taking provision. It appears that authorities decided to move forward with the interpretation before the session convened (on October 31), but drafting did not finish until a few days later. According to my contemporaneous observations, the official agenda released on October 31 included an apparent placeholder item, “other” [其他], that was later replaced with the interpretation, formally submitted to the legislature on November 4.

(blue circle) — That leaves us with all other bills that were initially revealed on the first day of an NPCSC session, but were not late submissions. One could tell from the chart that such bills have appeared more frequently during the 13th NPC (20 so far) than during the 12th (7 total). Most could fall within the elastic category of “politically sensitive”; authorities likely wanted to limit unwanted speculation before state media reported on those bills.

In the article for The Diplomat, I mention the possibility that certain bills were omitted from the readouts of Council meetings to control their lengths. Not only is the overall runtime of Xinwen Lianbo generally capped at 30 minutes, but the NPCSC’s internal propaganda rules also impose strict word and runtime limits on official reporting of legislative events. For instance, the readout of a Council meeting is limited to 1,000 characters, and the corresponding segment on Xinwen Lianbo to generally no more than three minutes. These rules likely resulted in the omission of five bills from the 1,001-character readout of the Council meeting on November 29, 2021, which announced the NPCSC’s December 2021 session. Two of the bills—a revision to the Company Law and an amendment to the NPCSC Rules of Procedure—were then disclosed at a press conference three days ahead of that NPCSC session.

Category III: “Too Late”

The focus of my article is the emergence of bills that were kept hidden for a prolonged period. As I discuss there, this practice comes in two varieties:

  • (orange triangle) — Bills that underwent only a single review were first disclosed to public only after they had been adopted.
  • (red triangle) — Bills that underwent multiple reviews were first disclosed to public at the start of their final reading—only days before adoption.

Availability of Public Consultations

As the chart shows, the fact that a bill was not disclosed at the “earliest possible” time has generally not affected the availability of public consultation. When public consultation is theoretically available under the governing rules, it was almost always carried out. The majority of bills listed in the chart were, in fact, exempt from the Legislation Law’s soft public-consultation requirement. They include quasi-legislative and non-legislative decisions as well as several other types of bills, such as technical amendments, that are generally approved after a single review. (Of course, whether they should be exempt is a whole other discussion.)

A key factor that determines whether public consultation is available for a particular bill is its substance. The three drafts in the chart that were withheld—the draft Hong Kong National Security Law, Land Borders Law, and Anti–Foreign Sanctions Law—all concerned national security. So did one of the other two drafts that were withheld during the last two years, the second draft of the Coast Guard Law, whose existence, by contrast, was disclosed at the “earliest possible” time. (It is not obvious why the fifth draft, the draft Supervision Officials Law, was withheld.)

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