Earlier today, we formally launched our new Substack newsletter, NPC Observer Monthly, a monthly recap of goings-on at the National People’s Congress (NPC) and its Standing Committee (NPCSC)—and sometimes more.
This newsletter drops at the start of each month, starting today. Each issue will, at a minimum, recap all major NPC-related events in the previous month, including any new law that took effect, any new documents released by the legislature, and, of course, any legislative meetings as well as their agendas and outcomes. In the course of recounting the events, we will link to and excerpt from any relevant coverage we have published here. And we will briefly discuss any development that we haven’t yet had the time to analyze in-depth here.
If, during the previous month, we have also published contents not tied to any current event, the newsletter will include a round-up of such publications. Finally, depending on the month and our schedule, we may also end an issue with musings on an NPC-related topic that is in some way connected to the previous month—as we did today (see excerpt below).
This newsletter originates from our desire to have a monthly snapshot of the NPC at the ready for our own reference. Then we thought others might find such monthly recaps useful as well: whether those follow the NPC only casually and don’t need real-time notifications of everything we post; or those who do keep a close tab on the NPC and wish to make sure they haven’t missed anything; or still those who wouldn’t mind an additional dose of NPC-related content every month. The goal is to supplement our coverage of the NPC on this site—not to duplicate it and certainly not to replace it.
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In the inaugural issue of NPC Observer Monthly, we offered the following brief update on China’s “recording and review” process. Twenty years ago last month, in the midst of the Sun Zhigang Incident, three Chinese legal scholars submitted what was believed to be the first citizen petition to invoke the “recording and review” process—seeking review of the regulations that had created the detention center where Sun was beaten to death. Future issues of the newsletter may also include such not necessarily organized or polished thoughts on topics relating to the NPC—another reason to subscribe!
Sun Zhigang Incident at 20
This past month marked the 20th anniversary of a key event in the “Sun Zhigang Incident” [孙志刚事件]—“a milestone in the development of rights defense in China.” Accounts and analyses of the Incident abound. For a recent example, see Prof. Chloé Froissart’s chapter in the 2021 open-access book, Proletarian China: A Century of Chinese Labour.
Here’s a brief summary for those unfamiliar with the tragic events twenty years ago: In early 2003, the 27-year-old Sun Zhigang, a Hubei native, arrived in Guangzhou to start a new job. One night in mid-March, he was stopped by police while out taking a stroll. Unable to produce a temporary residence permit (because he hadn’t had time to apply for one), he was detained and eventually transferred to a “custody and repatriation” (C&R) [收容遣送] center as he was (wrongly) deemed an illegal migrant, under regulations promulgated by the State Council. Three days later, on March 20, he died in a medical clinic affiliated with the C&R center, allegedly due to a heart attack. But an autopsy demanded by his father later revealed that Sun had suffered severe beatings while in custody. On April 25, the Southern Metropolis published an in-depth report on Sun’s detention and death, sparking a national outcry against official cover-up and abuses within the C&R system.
On May 14, 2003, three Chinese legal scholars—Teng Biao, Xu Zhiyong, and Yu Jiang—petitioned the NPCSC to review the legality and constitutionality of the State Council’s C&R regulations. They had hoped to activate the “recording and review” (R&R) [备案审查] process under the landmark 2000 Legislation Law [立法法] and to create a precedent for NPCSC review.
In short, R&R is a process whereby various state organs, including the State Council and local legislatures, record their legislation with the NPCSC, which may then review it for conflicts with the Constitution and national law or policy. In practice, such review is carried out by the NPCSC Legislative Affairs Commission (LAC). (For further reading, here’s a longer though still high-level introduction to the process, here’s a more technical one, and this page collects all my writings on R&R as well as key primary materials.)
Much to the scholars’ dismay, the NPCSC didn’t publicly address their request beyond acknowledging its receipt. A month later, the State Council repealed its C&R regulations seemingly on its own initiative, though the move was speculated to be the result of behind-the-scenes consultations between the two institutions. Thus, for a time, the R&R process was justifiably criticized for being opaque and ineffective.
Twenty years later, how’s the process working now? In fall 2021, I reviewed the R&R reforms that had been implemented under Xi Jinping in a piece for the Made in China Journal. My main observations can be summarized as follows:
- The Communist Party has provided consistent policy support for strengthening R&R since 2013, likely because it helps central authorities monitor local compliance with national law and policy and identify legislative conflicts that generate public anger.
- With the Party’s backing, the LAC has made the review and rectification process more rigorous and become more assertive in deciding hard cases.
- The LAC has also grown increasingly willing to engage with the constitutional issues that arise in R&R, with a major breakthrough in 2020, when the LAC explicitly identified several petitions as raising constitutional issues and addressed them head-on.
- Since 2017, the R&R process has become a lot more transparent, with annual public reports on key statistics and outcomes of selected cases (among other information), the release of a key governing legal authority, and feedback to individual citizens who have requested review.
- There has been a sea change in public use of the process: the volume of citizen requests skyrocketed after the launch of an online platform for submitting requests in 2019, and both legal professionals and lay people now use the process to advocate for legal changes.
Almost two years later, those points for the most part still stand today, at least when the status quo ante in 2003 is used as the baseline for comparison. Here are some updates:
- The Party’s support for R&R reforms shows no sign of waning. R&R continues to appear in the highest-profile political documents. The 20th Party Congress report, for instance, vows to further “improve and strengthen” the process. Soon thereafter, in his article commemorating the 40th anniversary of the PRC Constitution last December, Xi Jinping again called for “increasing the capacity and quality of constitutional review and R&R.”
- Central authorities keep making use of R&R to police local legislation. In the past two years, the LAC initiated additional “targeted reviews” and legislation “clean-up” campaigns to ensure that local legislation complies with the latest national law and policy, such as the Population and Family Planning Law [人口与计划生育法] as amended in 2021. (The NPC recently codified those two measures in the Legislation Law.) In a new, so far one-off, practice, a State Council department in 2021 successfully petitioned the LAC to invalidate legislation enacted by certain local people’s congresses, over which the department has no formal oversight authority, by relying on the LAC’s decision in a different case raising identical issues.
- The LAC remains a strong decisionmaker and enforcer. According to its last two annual reports, it continues to conduct follow-up review to make sure that problematic legislation is being promptly amended or repealed. The reports also indicate that the LAC remains willing and able to decide “controversial issues” in relevant cases, despite “different understandings and practices” among stakeholders. Finally, the recent Legislation Law amendments—drafted by the LAC itself—eliminated the semantic distinction between an NPC special committee’s “review” [审查] of petitions and the LAC’s “study” [研究] of the same. The Law now uses the more authoritative-sounding term, “review,” to describe the LAC’s actions as well.
- The Constitution, though still present in the LAC’s decisions, has retreated somewhat to the background. The high-water mark of the LAC’s engagement with constitutional issues was still in 2020. Since then, even though the agency continues to mention the Constitution in pertinent decisions, it has stopped identifying the specific constitutional provisions at issue and appears to deliberately obscure the precise legal bases for those decisions by referring generally to “the Constitution and laws.”
- Further improvement to the transparency of R&R has been negligible. The LAC continues to report on its R&R work annually, and the reporting requirement was codified in 2021. But the reports still say little about how the LAC has reached its decisions, despite a near-universal call from Chinese scholars to provide the public with more reasoning. To be fair to the LAC, earlier this year it posted a detailed discussion of one case from its 2022 report (concerning local restrictions on homeowners’ rights), so maybe more will come. I was also told by one academic contact that the LAC was preparing another compilation of R&R cases for publication this year; it previously released such a volume in 2020.
- Citizens from diverse backgrounds continue to make frequent use of the process. They filed 4,829 petitions in 2022, compared to 5,065 in 2021 and 3,229 in 2020. The LAC in its 2022 annual report noted that private petitioners came from diverse “regions, occupations, and communities” and that their petitions touched on diverse issue areas, with some advocating for their own rights, others concerned with the development of the rule of law, and still others highlighting the “pressing and difficult” problems in people’s lives.
I’ll end this update on R&R in the same way I conclude my 2020 article:
The ongoing reforms of the R&R system are complex, and here I outline only some broad trends. Functionally, the reforms have focused on developing R&R’s key role in policing rogue local legislation and in ensuring the uniformity of China’s legislative system. But one must not overlook the crucial—even if incidental—progressive changes to Chinese law that legal professionals and lay citizens have been able to achieve through a more robust R&R process. That said, R&R remains incomplete and flawed. The disclosure of the LAC’s decisions and underlying reasoning, for instance, remains inadequate. The much hyped—and most anticipated—part of R&R, constitutional review, is yet to get off the ground; authorities are still studying such basic issues as the standards for deciding constitutional claims. And . . . ultimately, all decision-making in the R&R process must succumb to politics. Further developments of the R&R system would require the right combination of political will, institutional capacity, and doctrinal advancements. But from what I am reading in official discourse and my interactions with Chinese scholars, the authorities appear determined to turn R&R into an effective mechanism for reining in rogue legislation. Hopefully, we need not wait [too long] for the next breakthrough.