China’s former one-child policy was “one of the most draconian examples of government social engineering ever seen.”[1] The policy was formally launched nationwide in 1980. In just a few years, however, central authorities decided to “open small holes” by allowing more couples to have a second child, after encountering difficulties in enforcing a uniform birth-control policy nationwide and a backlash against abusive enforcement measures, such as forced sterilizations.[2]

The provinces were tasked with implementing that partial relaxation of the one-child policy. All provincial legislatures (except those of Xinjiang and Tibet) had adopted provincial birth-control legislation by the early 1990s.[3] (Xinjiang eventually did so in 2002; Tibet still has not acted.) Such legislation translates the policy into concrete terms, specifying, among other things, exceptions to the one-child-per-couple rule[4] and the penalties for above-quota births. Couples who exceed birth limits would face not only hefty fines called “social upbringing fees” [社会抚养费], but also discipline at work—including mandatory termination in a number of provinces.

On Wednesday, January 20, the NPC Standing Committee (NPCSC) heard its Legislative Affairs Commission’s annual report on its efforts in 2020 to record and review the validity of various types of sub-statutory documents, including local regulations and judicial interpretations. In sum, a document will fail review if the Commission deems it (1) unconstitutional; (2) contrary to the Communist Party’s major policies; (3) unlawful; or (4) otherwise “clearly inappropriate.” The Commission will then ask the document’s enacting body to amend or repeal it. This year’s report is particularly notable in that it devotes a full section to discussing how the Commission “proactively and prudently” dealt with constitutional issues in the recording-and-review process. This section mentions three cases, and below, we will focus on one of them, which concerns the language of instruction used by China’s ethnic schools.

In early 2018, we first gave a detailed introduction to “recording and review” (R&R) [备案审查], an increasingly notable aspect of the oversight by the NPC Standing Committee (NPCSC). For our purposes here, and generally speaking, R&R is a process whereby various governmental bodies with lawmaking authority record their enactments with the NPCSC, which may then review the recorded legislation on certain grounds and order corrective actions if the legislation does not pass muster.[1] R&R has led to some positive developments in Chinese law since our initial introduction. A few months ago, for instance, it led to the NPCSC’s abolition of “custody and education” [收容教育]—a decades-old extrajudicial detention system targeting prostitution.

The biggest update to the R&R scheme since its inception came last December. That month, the Council of Chairpersons approved the Working Measures for the Recording and Review of Regulations and Judicial Interpretations (Measures) [法规、司法解释备案审查工作办法], which were then quietly released in the NPCSC Gazette’s March issue. This is a noteworthy piece of authority: not only does it supplement the two main governing statutes—the Legislation Law [立法法] and the Law on Oversight by the Standing Committees of the People’s Congresses at All Levels (Oversight Law) [各级人民代表大会常务委员会监督法]—by filling in the procedural gaps, but more importantly, it elaborates on the existing grounds for review and also introduces brand-new ones. We thus would like to take this opportunity to reintroduce the NPCSC’s R&R practice, as now undertaken under these new rules. All citations below are to the Measures unless otherwise indicated.

If you were looking to read another case in which the Legislative Affairs Commission (LAC) of the NPC Standing Committee (NPCSC) reviewed the legality or constitutionality of a regulation or a judicial interpretation, you will be disappointed. But in this new installment of our Recording & Review series, we will introduce a new development in the NPCSC’s review of sub-statutory legal documents that is no less important than any substantive action by the NPCSC.

On December 4, the NPCSC officially launched a new online platform for citizens, legal persons, and other organizations to submit requests for review. Previously, they must mail their suggestions to the LAC’s Office for Recording and Reviewing Regulations [法规备案审查室]. We tested the new platform and felt that it is relatively easy to use, though not without several significant limitations. Below we will offer a brief tour of the platform (with screenshots), after a quick introduction of the review process.

UPDATE (Dec. 30, 2019): On December 28, 2019, the NPCSC voted to abolish C&E. For more information, please see this post.

Five years after the NPC Standing Committee (NPCSC) abolished the reeducation-through-labor [劳动教养] system, another form of extrajudicial administrative detention is now on the chopping block. On Monday, the NPCSC Legislative Affairs Commission [法制工作委员会] recommended the abolition of the “custody and education” (C&E) [收容教育] system—a form of administrative punishment for prostitution. Finally.