Category: Law Explainers

The Content and Context of Chinese Military’s New Authority to Change “Wartime” Court-Martial Rules

On February 24, 2023, China’s national legislature, the Standing Committee of the National People’s Congress (NPCSC), adopted a decision authorizing the Central Military Commission (CMC), China’s highest military authority, to “adjust” the way in which the Chinese military applies the Criminal Procedure Law [刑事诉讼法] during “wartime” (the Decision). That is admittedly (three-month-)old “news.” We did not write about it then because the Decision’s timing was not self-evident and the scope of its authorization unclear. Its accompanying explanation, we had hoped, would shed light on those questions, but it was not immediately released.

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NPC 2023: How China Selects Its State Leaders for the Next Five Years

NPC delegates reading election ballots during the 2013 NPC session. Photo by Tencent.

The 14th National People’s Congress (NPC) will convene for its inaugural session on Sunday. One closely watched task for the session this year is to fill an array of positions in core state institutions whose five-year terms are about to expire, from the nation’s head of state to hundreds of new members on various legislative committees. In this post, we will explain what those positions are, introduce the two methods of selection (election and appointment), discuss the Communist Party-controlled nomination process, and lastly take a look at how the NPC will deliberate and vote on the nominations in the next several days.

There are few standing legal rules on China’s quinquennial state leadership changes. Instead, they follow the ad hoc procedural rules adopted by the NPC every five years, as well as the Party’s internal practices on the selection of candidates. This post is based on those past rules and practices. While the details have changed from cycle to cycle, the fundamentals have remained the same. We will update this post once the NPC approves the ad hoc rules that will govern this year’s elections and appointments.

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Explainer: NPCSC’s Interpretation of Hong Kong National Security Law over Jimmy Lai’s Foreign Defense Counsel

On December 30, China’s national legislature, the Standing Committee of the National People’s Congress (NPCSC), issued its inaugural interpretation (Interpretation) of the Law on Safeguarding National Security in the Hong Kong SAR (HKNSL) [香港特别行政区维护国家安全法]. We have recently explained the events leading up to the Interpretation in detail here. In sum: Jimmy Lai, the Hong Kong pro-democracy activist, is facing criminal charges under Hong Kong’s local sedition law and the HKNSL. He decided to retain Timothy Owen, a renowned British barrister, for his defense. Owen is not admitted to the Hong Kong bar, but the trial court allowed him to represent Lai on an ad hoc basis. After having failed to have the trial court’s decision reversed on appeal, the Hong Kong government turned to the NPCSC, which has the ultimate authority to interpret the HKNSL.

John Lee, Hong Kong’s leader, requested the NPCSC to answer this open-ended question: “Based on the legislative intent and objectives of the [HKNSL], can an overseas solicitor or barrister who is not qualified to practise generally in Hong Kong participate by any means in the handling of work in cases concerning offence endangering national security?” His request, notably, did not identify any specific HKNSL provision that needs clarification.

Contrary to what many had expected, the NPCSC exercised restraint in responding to Lee’s request. It did not directly ban foreign lawyers from participating in national security cases; in fact, it altogether punted on the question presented. The Interpretation instead clarifies that the HKNSL has already given the Hong Kong government adequate tools to resolve the issue. The ball is now back in the latter’s court.

Below, we explain Friday’s Interpretation and offer some preliminary thoughts on its implications in Q&A format.

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2021 NPC Session: NPC’s Hong Kong Electoral Overhaul Decision Explained

Editor’s Note: The NPCSC revised Annexes I and II to the Hong Kong Basic Law on March 30. Our explanation and analysis of Hong Kong’s new election rules is available here.

Another year, another NPC decision on Hong Kong. On Thursday, March 11, the National People’s Congress, with 2895 votes in favor and 1 abstention, approved the Decision on Improving the Electoral System of the Hong Kong Special Administrative Region (Decision) [关于完善香港特别行政区选举制度的决定], which takes immediate effect. The Decision comes on the heels of a series of events in the past two years: mass protests against the Hong Kong government’s extradition bill (since withdrawn), opposition lawmakers’ use of filibusters to delay proceedings, and pro-democracy primaries for the now-postponed 2020 Legislative Council election. (Almost fifty activists involved in the primaries have been charged with violating the Hong Kong National Security Law.) The Decision’s explanatory document cites all those events as evidence of the “clear loopholes and deficiencies” in Hong Kong’s current electoral system—which it says have been exploited by “anti-China, destabilizing elements” to attempt to seize the “power to administer [Hong Kong].” It is therefore “important,” the explanation continues, “to take necessary steps to improve the electoral system and remove existing institutional deficiencies and risks to ensure the administration of Hong Kong by Hong Kong people with patriots as the main body.” The Decision marks the first of those steps. Below, we will first provide an overview of the Decision, before discussing in detail the changes it will make to Hong Kong’s electoral system.

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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.

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2020 NPC Session: NPC’s Decision on National Security in Hong Kong Explained (Updated)

UPDATE (May 28, 2020): The NPC adopted this Decision on Thursday with 2878 votes in favor, one against, and six abstentions. Its explanation is available here, and an unofficial English translation is available here. We have updated this explainer in accordance with the Decision’s final text. There are two main changes to the draft: (1) the preamble is longer; and (2) and the scope of authorization under article 6 has been extended to “activities” [活动]—in addition to “conduct” [行为]—that endanger national security. We do not believe the latter change is significant.

Readers would probably know by now that the ongoing NPC session’s agenda includes a new draft Decision on Establishing and Improving the Legal Systems and Implementation Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region [关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定]. This new bill was reviewed once by the NPC Standing Committee (NPCSC) on May 18 and had been kept a secret until Thursday night. We have studied the draft Decision and its accompanying explanation, and now offer the following explainer in Q&A format, focusing on the Decision’s contents and the legal questions it raises.

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Hong Kong Appeals Court Affirmed Judiciary’s Power to Invalidate Unconstitutional Pre-Handover Laws Despite Contrary NPCSC Decision

On Thursday, April 9, the Hong Kong Court of Appeal (Court or COA) affirmed in part and reversed in part a lower court ruling from last November that partially invalidated the city’s “mask ban”: a prohibition on wearing facial covering that prevents identification in certain public gatherings. In sum, the Court upheld the colonial-era emergency law serving as the legal basis for the ban and allowed the government to enforce the ban in unauthorized public gatherings. Below we will focus on a section of the COA’s opinion that held that Hong Kong courts may strike down laws enacted before Hong Kong’s 1997 handover to China that are later found to violate the Hong Kong Basic Law, notwithstanding a prior determination by the NPC Standing Committee (NPCSC) to the contrary.

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NPCSC Legislative Affairs Commissions Criticizes Hong Kong Court’s Mask Ban Ruling, Signals Possible NPCSC Intervention

To not bury the lede, we start by noting that the Legislative Affairs Commission of the NPC Standing Committee (NPCSC) issued a statement (Xinhua’s English report) today (November 19) criticizing a Hong Kong court’s ruling yesterday that partially invalidated a Hong Kong statute for violating the Hong Kong Basic Law, the city’s mini-constitution. The statement suggested that the NPCSC, with the ultimate authority over the interpretation of the Basic Law (see art. 158), might decide to adopt a contrary interpretation. We more fully explain the relevant events and legal arguments below.

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Law Explainer: China’s State Medals and State Honorary Titles (UPDATED)

UPDATE (Sept. 17, 2019): On Tuesday, the NPCSC unanimously approved a decision conferring State honors on 42 individuals: 8 “Medal of the Republic” recipients, 6 “Medal of Friendship” recipients, and 28 recipients of various State honorary titles. In a presidential order dated the same day, Xi Jinping formally conferred the honors on their recipients.

Notable recipients of the Medal of the Republic include Tu Youyou, 2015 Nobel laureate in physiology or medicine; and Yuan Longping, known in China as the “Father of Hybrid Rice.” The recipients of State honorary titles include individuals who have made great contributions to science, art, and education, among other fields, as well as those who are recognized as “heroes” or “role models” for their personal feats. Of note, Tung Chee-hwa, Hong Kong’s first Chief Executive, was given the State honorary title of “Outstanding Contributor to ‘One Country, Two Systems'” [“一国两制”杰出贡献者]. Among the Medal of Friendship recipients are current Cuban leader Raúl Castro and former French Prime Minister Jean-Pierre Raffarin.

Finally, some stats. Just over a quarter (11) of the recipients are female. Among the 36 Chinese citizen recipients, only 7 are ethnic minorities and all but 3 are members of the Communist Party. Ten recipients have been awarded the honors posthumously.

In line with our earlier prediction, the NPC Standing Committee (NPCSC) will convene for a one-day special session on September 17, the Council of Chairpersons decided on Tuesday. The sole item on the special session’s agenda is a draft decision to confer State honors and honorary titles, presumably on this list of 36 nominees, to celebrate the 70th founding anniversary of the People’s Republic. Below we briefly overview the history of China’s State honors system and the current legal scheme. We will update this post once the conferral decision is adopted next week.

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Explainer: China to Amend the Constitution for the Fifth Time (UPDATED)

UPDATE (Jan. 25, 2018): This post has been updated to reflect recent developments.

The official Xinhua News Agency reported on December 27 that the Politburo decided to convene the Second Plenum of the 19th Central Committee of the Communist Party in January 2018. The main agenda of the Plenum is to “discuss and study proposals for amending part of [China’s current] Constitution,” which was adopted in 1982 and later amended four times in 1988, 1993, 1999, and 2004. Under Chinese law (and a key CPC policy document), the constitutional amendment process essentially includes three steps. In this post, we will explain each step in turn and point out the key events to watch during the next several months.

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