NPC Calendar: September 2022

The NPC Standing Committee (NPCSC) is in session through September 2. It is reviewing the following bills:

The NPCSC is expected to solicit public comments on any of these bills that remains pending after the session closes.

It will convene for its next regularly scheduled session in late October.

“State of Emergency” and Enforcement of China’s “Zero-Covid” Policy

Photo by Jida Li on Unsplash

China’s stringent “dynamic zero-Covid” policy, despite its great human and economic costs, is here to stay. The policy relies on mass testing, movement controls via “health codes,” strict lockdowns, and quarantine mandates to stamp out outbreaks. Noncompliance with those restrictions is fairly common, and the police’s preferred enforcement tool has been Article 50 of the Public Security Administrative Punishments Law (PSAPL) [治安管理处罚法]. This provision authorizes a warning, a fine of up to 500 RMB, or 5–10 days in administrative detention for those who flout official anti-Covid “decisions or orders,” depending on the severity of their violations.

To the police, Article 50 is more useful than criminal-law alternatives. The “crime of obstructing the prevention and control of infectious diseases” [妨害传染病防治罪], for instance, requires the defendant to actually spread Covid-19 or create a “serious risk” of its transmission.[1] This charge therefore cannot be brought against someone who, say, refuses mass testing but otherwise has no Covid-19 symptoms or close contact with someone who has tested positive. In addition, as the police may enforce Article 50 alone, they are relieved of the procedural and evidentiary burden that comes with criminal prosecutions.

There is, however, one precondition for invoking Article 50: the government “decisions or orders” violated must be issued in a “state of emergency” [紧急状态]. Law professor Tong Zhiwei [童之伟], among many other scholars, has argued in a since-censored open letter that the phrase in Article 50 refers to a constitutional state of emergency, which may be declared only by the NPC Standing Committee (NPCSC) or the State Council.[2] Because neither has done so, the argument goes, the police could not lawfully use Article 50 to penalize noncompliance with Covid restrictions.

Below, we first delve into the debate over the scope of “state of emergency” in Article 50, before examining how Article 50 has been used in practice and why the issue persists.

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Building Capacity Through Procedure

On June 24, the NPC Standing Committee (NPCSC) approved the first set of amendments to its Rules of Procedure (Rules) [全国人民代表大会常务委员会议事规则] in over a decade. The Rules are a national law that governs how the NPCSC conducts business. They regulate the convening and conduct of sessions, the submission and deliberation of bills and reports, debate and voting procedures, and other technical procedural matters.

The latest amendments came at what in retrospect could be a pivotal moment for the NPC. The Communist Party held its first-ever conference on improving the people’s congress system last October, and subsequently issued a policy document on the same subject (so far available only in summary form). Meanwhile, the national legislature has been undertaking a systematic effort to codify or update rules governing its powers and procedures, including the NPC’s organic statute and procedural rules as well as standalone instruments on the NPCSC’s oversight of the central budget, state-owned assets, and economic planning. For the most part, the amendments to the Rules reiterate key provisions in those laws and memorialize some of the NPCSC’s other existing practices.

Viewed in that larger context, the amendments make up part of a conscious effort to subtly enhance the NPCSC’s capacity as a lawmaking and oversight body—one that follows the Party’s commands itself and, acting as the Party’s agent, also ensures other state organs do the same. The amended Rules therefore leave room for both deliberation and efficiency in the legislative process, and institutionalize procedural tools that enable more rigorous NPCSC oversight.

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