As we bid farewell to 2022, we look back at the National People’s Congress’s and our work in the past year.
Continue reading “Year in Review: The NPC and the Observer in 2022”NPC Calendar: January 2023
The following laws take effect on January 1:
- revised Sports Law [体育法] (adopted on June 24, 2022);
- revised Agricultural Products Quality and Safety Law [农产品质量安全法] (adopted on Sept. 2, 2022); and
- revised Women’s Rights and Interests Protection Law [妇女权益保障法] (adopted on Oct. 30, 2022).
The NPC Standing Committee (NPCSC) is soliciting public comment on the following bills through January 28:
- draft amendment to the Legislation Law [立法法];
- draft revision to the Company Law [公司法];
- draft revision to the Counterespionage Law [反间谍法];
- draft Qinghai–Tibet Plateau Ecological Conservation Law [青藏高原生态保护法];
- draft Marine Environmental Protection Law [海洋环境保护法]
- draft Rural Collective Economic Organizations Law [农村集体经济组织法];
- draft revision to the Charity Law [慈善法];
- draft Value-Added Tax Law [增值税法];
- draft Financial Stability Law [金融稳定法]
- draft Foreign Sovereign Immunity Law [外国国家豁免法];
- draft amendment to the Civil Procedure Law [民事讼诉法];
- draft amendment to the Administrative Litigation Law [行政诉讼法]; and
- draft Foreign Relations Law [对外关系法].
In accordance with a March 2022 NPC decision (discussed here), the roughly 3,000 delegates to the 14th NPC will be elected by the end of this month.
The 13th NPCSC will convene for its final regularly scheduled session in late February.
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.
Continue reading “Explainer: NPCSC’s Interpretation of Hong Kong National Security Law over Jimmy Lai’s Foreign Defense Counsel”NPCSC Seeks Public Comment on 13 Bills: Foreign Sovereign Immunity, Foreign Relations, Counterespionage, Lawmaking Reform, Charity Regulation, Financial Stability, Foreign-Related Litigation & More
The NPC Standing Committee (NPCSC) is soliciting public comments on the following 13 bills through January 28, 2023:
| Draft Name | Chinese Text | Explanatory Document |
|---|---|---|
| Legislation Law (2nd Draft Amendment) 立法法修正草案二次审议稿 | PDF · Δ (English Δ) | |
| Company Law (2nd Draft Revision) 公司法修订草案二次审议稿 | ||
| Counterespionage Law (2nd Draft Revision) 反间谍法修订草案二次审议稿 | PDF · Δ ($ English) | |
| Qinghai–Tibet Plateau Ecological Conservation Law (2nd Draft) 青藏高原生态保护法草案二次审议稿 | ||
| Marine Environmental Protection Law (Draft Revision) 海洋环境保护法修订草案 | ||
| Rural Collective Economic Organizations Law (Draft) 农村集体经济组织法草案 | ||
| Charity Law (Draft Revision) 慈善法修订草案 | PDF · Δ ($ English) | |
| Value-Added Tax Law (Draft) 增值税法草案 | PDF Δ | |
| Financial Stability Law (Draft) 金融稳定法草案 | ||
| Foreign Sovereign Immunity Law (Draft) 外国国家豁免法草案 | PDF ($ English) | |
| Civil Procedure Law (Draft Amendment) 民事诉讼法修正草案 | PDF · Δ | |
| Administrative Litigation Law (Draft Amendment) 行政诉讼法修正草案 | PDF · Δ | |
| Foreign Relations Law (Draft) 对外关系法草案 |
English translations will be provided if and when available. All explanatory documents are in Chinese and compiled in a single PDF; the links above will take you to the corresponding pages in the PDF only if you are using a desktop browser (this does not work on a phone or a tablet).
Continue reading “NPCSC Seeks Public Comment on 13 Bills: Foreign Sovereign Immunity, Foreign Relations, Counterespionage, Lawmaking Reform, Charity Regulation, Financial Stability, Foreign-Related Litigation & More”“Sweep Away Darkness, Eliminate Evil”: A Belated Overview of China’s First Organized Crime Law
In December 2021, the NPC Standing Committee adopted the Anti–Organized Crime Law (AOCL or Law) [反有组织犯罪法], China’s first statute dedicated to combatting organized crime. The Law has taken effect on May 1, 2022. It came at a time when the Communist Party’s three-year campaign to “clear out the underworld” (or saohei, short for “扫黑除恶,” literally “sweep away darkness and eliminate evil”) that began in 2018 was wrapping up and when central authorities were calling for the “normalization” of the saohei campaign.
China previously launched two similarly named special actions in the 2000s to “crack down on the underworld,” or dahei (short for “打黑除恶”). The difference in one character, however, gave the latest saohei campaign a broader scope. Rather than fight organize crime in a whack-a-mole fashion primarily to ensure public safety, saohei is “inherently political”: it is expressly aimed at solidifying the Party’s rule down to the lowest levels of governance. To that end, China’s national criminal justice authorities issued a series of guidance documents to broadly define “organized crime” and related concepts, call for whole-of-society efforts to prevent organized crime, set forth special criminal procedures and powers, and penalize corrupt officials who enable such criminal activities.
The AOCL is a key tool to “normalize” the saohei campaign. It was enacted in part to “safeguard national security, social order, and economic order,” and incorporated many of the measures contained in the guidance documents. As saohei will remain part of the Party’s social governance program for at least the next five years, below we take a belated look at the AOCL.
Continue reading ““Sweep Away Darkness, Eliminate Evil”: A Belated Overview of China’s First Organized Crime Law”NPCSC Session Watch: Lawmaking Reforms, Corporate Bankruptcy, Charity, Financial Stability, Foreign Sovereign Immunity, Cross-Border Litigation & More
UPDATE (Jan. 3, 2023): On December 30, 2022, the NPCSC adopted the revision to the Wild Animals Protection Law, effective May 1, 2023, and the Reservists Law, effective March 1, 2023.
UPDATE (Dec. 27, 2022): The official readout of the session’s first meeting reveals that the NPCSC is also reviewing a draft amendment to the Foreign Trade Law [对外贸易法] to codify a pilot administrative reform that recently expired on December 1. The readout also shows that the State Council has requested an interpretation of “relevant articles” of the Hong Kong National Security Law, without elaborating. We expect both to pass on Friday. Finally, it appears that the draft revision to the Enterprise Bankruptcy Law [企业破产法] has been removed from this session’s agenda.
Last Friday, the Council of Chairpersons decided to convene the 38th and second-to-last session of the 13th NPC Standing Committee (NPCSC) from December 27 to 30. The session’s tentative agenda includes fifteen bills. The Hong Kong government’s requested interpretation of the Hong Kong National Security Law, however, is not among them. But as we have explained, the NPCSC may hide the existence of a bill until after its adoption, so it could still consider an interpretation at the upcoming session. Below we briefly preview the bills slated for review.
Continue reading “NPCSC Session Watch: Lawmaking Reforms, Corporate Bankruptcy, Charity, Financial Stability, Foreign Sovereign Immunity, Cross-Border Litigation & More”NPC Calendar: December 2022
The Law Against Telecom and Online Fraud [反电信网络诈骗法] (adopted on Sept. 2, 2022) takes effect on December 1.
December 4 is the 40th anniversary of China’s current Constitution. General Secretary Xi Jinping is expected to give a speech to mark the occasion at a high-profile commemorative event to be held in Beijing.
The 13th NPC Standing Committee (NPCSC) is expected to convene for its 38th session in late December. The Council of Chairpersons is expected to meet in mid-December to decide on the agenda and dates of the session. The session is expected to review the draft Reservists Law [预备役人员法] and the draft revision to the Wild Animals Protection Law [野生动物保护法]. It is also likely to review the following bills:
- draft revision to the Company Law [公司法];
- draft Emergency Response and Management Law [突发事件应对管理法];
- draft Civil Compulsory Enforcement Law [民事强制执行法]; and
- draft amendment to the Legislation Law [立法法].
In addition, the NPCSC is expected to adopt a legislative interpretation on the issue of whether overseas counsel not admitted to the Hong Kong bar may participate in cases involving offenses endangering national security, at the request of the city’s Chief Executive.
The NPCSC’s October 26, 2019 decision authorizing the State Council to pilot certain administrative reforms in China’s free trade zones will expire on December 1 (all reforms, except those concerning the Foreign Trade Law [对外贸易法], have been codified). The NPCSC’s December 29, 2018 decision authorizing the State Council to approve a certain amount of new local government debts in advance of annual budget approval will expire on December 31.
Explainer: Hong Kong Government’s Request for NPCSC Interpretation of National Security Law in Jimmy Lai Case
Editor’s Note (Dec. 30, 2022): The NPCSC on Friday, December 30 issued an interpretation of articles 14 and 47 of the Hong Kong National Security Law. Our explainer is available here.
Jimmy Lai, the Hong Kong pro-democracy activist and media tycoon, has been indicted on four national security charges and was scheduled to stand trial on Thursday. (The government has asked the court to postpone the trial in light of the development discussed below.) He is being accused of violating Hong Kong’s seditious publications law and of conspiring to “collude with a foreign country or external elements to endanger national security” under the Law on Safeguarding National Security in the Hong Kong SAR (NSL) [香港特别行政区维护国家安全法].
Recently, Lai retained Timothy Owen, an experienced British barrister, to lead his defense team. Owen, as one Hong Kong court recognized, is a “renowned specialist in criminal, public and human rights law, with substantial experience in cases concerning national security and freedom of speech.” He has appeared before Hong Kong courts in the past but is not admitted to the Hong Kong bar. Over the Hong Kong government’s objection, the Court of First Instance allowed Owen to represent Lai on an ad hoc basis. After having suffered a streak of losses on appeal, the government on Monday decided to seek help from the NPC Standing Committee (NPCSC), which has the ultimate authority to interpret the NSL. Below, we will discuss the legal battle fought in Hong Kong courts, the government’s request for NPCSC intervention, and what to expect next.
Continue reading “Explainer: Hong Kong Government’s Request for NPCSC Interpretation of National Security Law in Jimmy Lai Case”Constitutional Review in Lawmaking and Emergency Legislation: A First Look at Draft Amendments to China’s Legislation Law
Editor’s Note (Mar. 16, 2023): We have updated this post in accordance with the final text of the amendments adopted on March 13 (which are summarized here). The provisions discussed below have not been changed.
Last month, China’s national legislature, the NPC Standing Committee (NPCSC), reviewed draft amendments to the Legislation Law [立法法] (Draft), an important statute with semi-constitutional status. The Law, in sum, has three functions: it demarcates the authority of various law/rule-making bodies; regulates (to varying extent) their legislative procedures (in particular those of the national legislature); and prescribes a hierarchy of legal norms, along with attendant rules on how to apply conflicting norms and mechanisms for resolving such conflicts (the so-called “recording and review” [备案审查] process). Today, to engage with China’s legal developments—whether as part of research, commentary, reporting, advocacy, or doing business—it is increasingly crucial to understand the type of legislative power a governmental body has and the process whereby it issues binding rules.
The Draft would bring about changes in all three areas: authority, procedure, and hierarchy. Some of the changes are technical, some are substantive but not ground-breaking, others are confusing and require clarification, while a few do deserve attention now, especially from those interested in submitting comments (the comments period closes on November 29). Below we highlight two that fall in the last category. As the Draft may undergo moderate to substantial revisions, we will publish a more thorough summary after its second review, expected in December. A final review by the full NPC is expected next March.
Continue reading “Constitutional Review in Lawmaking and Emergency Legislation: A First Look at Draft Amendments to China’s Legislation Law”NPC Calendar: November 2022
The NPC Standing Committee (NPCSC) is soliciting public comments on the following bills through November 29:
- draft amendment to the Legislation Law [立法法];
- draft Barrier-Free Environments Development Law [无障碍环境建设法];
- draft revision to the Administrative Reconsideration Law [行政复议法]; and
- draft Reservists Law [预备役人员法].
The NPCSC will convene for its next regularly scheduled session in late December.