Has an NPC Spokesperson Declared Shanghai’s “Hard Isolation” Unlawful?

By @tango2010 on Weibo. Original post since censored. Archived copy courtesy of @NiaoCollective on Twitter.

Shanghai’s lockdown to eradicate a local Covid-19 outbreak continues. Over the past weekend, Shanghai residents in multiple districts discovered that green metal fences were erected outside their residential compounds or buildings. In a widely circulated notice by the Pudong New Area government, that move was termed “hard isolation” [硬隔离]. Exasperated by the latest development, many residents dug up a set of Q&A-style statements issued by the Legislative Affairs Commission (LAC) of the NPC Standing Committee in March 2020 and relied on them to argue that Shanghai’s “hard isolation” measures were unlawful. But do the LAC statements in fact support the residents’ argument?

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Explainer: How Seats in China’s National People’s Congress Are Allocated

Delegates voting by a show of hands at the inaugural session of the First NPC in 1954.

China’s National People’s Congress (NPC) is the largest legislature in the world. Since 1986, its size has been capped by the Election Law for the National People’s Congress and Local People’s Congresses at All Levels (Election Law) [全国人民代表大会和地方各级人民代表大会选举法] at 3,000. The delegates are indirectly elected every five years to represent thirty-five electoral units: the thirty-one provincial administrative regions in mainland China, the Chinese military, as well as Hong Kong, Macao, and Taiwan.

Under the Election Law, NPC delegates must be “broadly representative” [广泛的代表性]. To that end, the Law requires in general terms that various demographic groups, including women and ethnic minorities, have “appropriate” representation in the NPC. Since the Reform Era (1978–), each NPC has, at its last session, adopted a “decision on the quotas and elections” of delegates to the next NPC—referred to below as a “Master Allocation Plan” or “Master Plan”—that puts the Election Law’s general requirements in more concrete terms. (The Master Plan for the 14th NPC was recently adopted on March 11.) The Plans have either allocated a specific number of seats to a certain demographic group or set forth guidelines on a group’s representation in the next NPC.

Below, we first explain how seats in the NPC have been allocated among the various electoral units and demographic groups to achieve a demographically diverse membership, before briefly taking a look at the non-demographic criteria for selecting NPC delegates.

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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.

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NPCSC Legislative Affairs Commission Releases New Responses to Legal Inquiries

The NPC Standing Committee’s Legislative Affairs Commission (Commission) is a professional support body that is indispensable to the lawmaking process. We have previously written a profile of the Commission (now a bit outdated). Among its many functions is the relatively obscure authority to respond to “legal inquiries concerning specific questions” [有关具体问题的法律询问] (Legislation Law [立法法] art. 64). Few of the Commission’s responses to such inquiries have been made public. It has issued thousands of them,1 but had made public only about 200 by 2007. It had altogether stopped the release since then—until September 2020. Late that month, the Commission quietly posted a new batch of responses to legal inquiries online after a thirteen-year hiatus. Below, we first offer a more in-depth look at the Commission’s legal inquiry responses, before turning to the newly released responses themselves.

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Analysis of 13th NPCSC Legislative Plan Pt. 2: Statistics

Two years ago this month, the 13th NPC Standing Committee (NPCSC) released its five-year legislative plan (Plan or 5YLP), a blueprint for its legislative agenda through 2023. This Plan, like its previous iterations, includes three categories of legislative projects. Category I projects are relatively ripe and should “in principle” be completed within the 13th NPCSC’s term (ending in March 2023), whereas Category II projects are less so and require additional work. Both Category I and Category II projects are numbered. By contrast, Category III includes a series of unnumbered topics for potential legislation, which was deemed not entirely feasible at the time.

Soon after this Plan was released, we published a mostly qualitative analysis, comparing it with previous Plans and distilling a few themes from it. In this long delayed second (and final) part of our analysis, we will take a primarily quantitative approach, examining the Plan and its five predecessors (the 8th, 9th, 10th, 11th, and 12th NPCSCs’ 5YLPs) from a few different angles.

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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. Without further evidence, we do not believe the latter change is significant, however.


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. We may add new Q&As in the coming days.

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A Survey of Legislative Responses to COVID-19 by Chinese Provinces

Five months after China first reported to the World Health Organization (WHO) cases of pneumonia of an unknown cause on December 31, 2019, that disease, now known as COVID-19, continues to ravage the world, causing public health emergencies of a scale unseen in recent history. In response, governments worldwide have resorted to extraordinary measures in an attempt to stop the virus from spreading: from shutting borders to locking down cities, from closing businesses to mandating social distancing.

In China, local (especially provincial) legislatures, like other governmental bodies, have played a part in epidemic response. Acting in an almost concerted fashion, over twenty provincial legislatures[1] adopted decisions dealing with COVID-19—which we will call “COVID Decisions”—in a twelve-day period in early February. These Decisions address the responsibilities of a range of parties: government entities, businesses, medical institutions, social groups, communities, individuals, etc. (All but Shaanxi’s require individuals to wear masks in public, for example). Equally important, the Decisions also grant emergency powers to local governments.

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Analysis of 13th NPCSC Legislative Plan Pt. 1: Relisted, Dropped & New Projects

Last week, the 13th NPC Standing Committee (NPCSC) released its five-year legislative plan (“13th NPCSC Plan”), setting the contours of its legislative agenda through 2023. As a refresher, the Plan consists of three classes of projects, with 69 top-priority ones in Class I, 47 lower-priority ones in Class II, and a few potential subjects to legislate on in Class III. In this and the next post, we will take a deep dive into the new legislative plan, from both qualitative and quantitative angles. Below, we will compare the 13th NPCSC Plan with its predecessor, distill a few themes from the new plan, and highlight some new projects. The Plan is clear evidence that, unsurprisingly, the NPCSC, though the permanent body of China’s constitutionally “highest organ of State power,” does not have any independent policymaking authority but only serves to implement through legislation the Communist Party’s policy directives.

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Tracking China’s Progress Towards Law-Based Taxation

Last updated: October 24, 2021

TAX

China currently collects 18 types of taxes. They will generate an estimated total of 8 trillion RMB in revenue for the Central Government in 2018. But only six of them—providing only about a third of the central tax revenue—are imposed by laws [法律] enacted by the legislature, the NPC or its Standing Committee (NPCSC). The rest are governed only by interim regulations [暂行条例] adopted by the State Council—the Central Government itself. The enormous taxing power the State Council now wields was in fact granted by the NPC in 1984. Now, over three decades later, the NPC is reclaiming that power by gradually elevating the interim regulations into laws, with an eye to complete the process by 2020. In this post, we will explain why the NPC made the power grant in the first place and discuss what it has recently been doing to reassert its control over taxation.

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The NPCSC Legislative Affairs Commission and Its “Invisible Legislators”

Updated on June 21, 2021 by Changhao Wei & Taige Hu.

Originally published on June 25, 2018. Written by Shuhao Fan. Edited by Changhao Wei & Xiaoyuan Zhang.

Zang Tiewei, head of the LAC’s Research Office and co-spokesperson, at the LAC’s first press conference on August 21, 2019.

The Legislative Affairs Commission (LAC) [法制工作委员会] under the NPC Standing Committee (NPCSC) is such a unique institution that one can hardly find an equivalent in another legislature. Consisting primarily of unelected and unidentified members, the LAC works mostly behind closed doors, although recently it has become much more visible in the public eye. The LAC’s employees outnumber NPCSC members, and unlike the latter cohort, they all work full-time and include more legal experts than the staff of any other NPC body.[1] Their decisions play significant roles throughout the legislative process, from the agenda-setting stage to deliberations—and even after laws are enacted. One Chinese scholar thus aptly dubs the LAC staff “invisible legislators” [隐形立法者].[2] Some worry that they may have usurped the powers of elected NPCSC members, thus becoming de facto legislators.[3] Below, we provide an overview of the LAC—an essential yet peculiar institution under the NPCSC—and its roles in the legislative process.

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