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| CHAPTER 8 |
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THE NPC IN GOVERNMENT One of the most obvious marks of democratic progress made in This chapter begins by describing how the Party leads all the central state branches. Then it outlines all the other central state branches that have been created by the NPC. After that it examines the powers of the NPC. Because the NPC actually exists in two forms, the NPC Full Congress and the NPC Standing Committee, I look first at the powers of the NPC Full Congress and then at those of the NPC Standing Committee. I will conclude with some evaluations. A. Communist Party Leadership over the State Previously I described why the leadership of the Communist Party over all 1. Party in the Place of Government Prior to 1987 In the years before 1987 the Communist Party assumed authority over all governmental decisions. The executive and other state branches were simply the institutions that administered decisions made by the Party. All state branches were responsible to the Party. To be sure, a very complete state structure was established by the 1954 Constitution. It provided for the State President and the legislative, executive, military, trial and procuratorial organs. In fact, however, the Communist Party provided leadership to all of them. The Constitution failed to “regulate what channels and ways should be followed by the Communist Party as the party in power to guide state power and state life. Consequently, the leadership of the Communist Party gradually detached the state structure; the Communist organization reinforced its leadership outside state institutions.” In 1958 the Party formally confirmed the extent of its control over the government. The Central Committee of the Party issued an official paper stipulating that the Party’s Political Bureau would determine the grand program and guidelines for the state. The Party Secretariat would devise all specific arrangements. Both the grand program and the guidelines for it along with specific arrangements would be centralized and no distinction would be made between the Party and the government. Policy implementation would be the responsibility of both governmental departments and the Party cores. Following this stipulation, the Party undertook two tasks, one to manage its own affairs and the other to directly exercise all state powers. The Party set up various departments within its own organization to correspond with those of the executive, the trial and the procuratorial. The Party departments formulated policies to implement the Political Bureau’s grand programs and guidelines. Then the Party departments issued orders to corresponding departments of the executive branch, the court and the procuratorate to carry out these policies. An additional measure to ensure that all state organs did implement instructions from the Party was the appointment by the Central Committee of Communist Party Communist Core to every central state organ. In each central state organ the Party organization Core was responsible to the Party’s Central Committee to exert oversight on the state organ and make sure that the instructions from the Central Committee of the Party were implemented. Thus the national executive, trial and procuratorial branches were subordinate and responsible to the Central Committee of the Party, or specifically to its various administrative and judicial departments. This Party-in-the-stead-of-government Practice broughts erious constitutional consequences. Chinese political scholars Shi Jiuqing and Ni Jiatai made piercing criticisms of these consequences. According to Shi Jiuqing and Ni Jiatai, the Communist Party overreached in its exercise of leadership over the people’s congresses. It did so by turning the Party headquarters itself into a power center. The primary center of power was the headquarters of the Communist Party at various levels. The NPC and LPCs were only secondary power centers. The power of the Party was dominant. In their secondary status the NPC and LPCs had become “rubber stamps which simply give passive approval to the Party lines, orientation, policies and major decisions.It is liable for the Party to evade supervision and makes it difficult to prevent abuses of Party power.” During the era of the Party-in-the-stead-of-government Practice the NPC had almost no role to play. The Communist Party made decisions with Party papers. The Party legitimized its decisions with its own authority alone. The Communist Party simply required the executive and the judicial arms to administer its decisions. Such a Party-in-the-stead-of-government Practice gradually proved to be disadvantageous not only for the state, but for the Party as well. Some thirty years later, the Party formally denounced this practice. On behalf of the 12th Central Committee, General Secretary Zhao Ziyang reported to the 13th National Congress of the Communist Party in 1987 that the regime “actually reduces the Party’s status of leadership and weakens its function to lead.” The practice “moves the Party to the forefront of administration, easily resulting in the Party being caught in contradictions, or even causing contradictions.” Further, it “turns the Party into the direct administrator.” Thus it lost the ability to exercise oversight of the bureaucracy. The state branches suffered most under the practice. As Chinese political scholar Xie Qingkui and his co-authors criticized, the regime over-centralized powers in the Party and “impeded the realization of a relatively independent state power organ system with real powers. The basically rational structure of form and function for allocating state power was rendered nominal and could hardly carry out its functions or play its roles.” The NPC was the number one loser. Its powers to elect and appoint, to legislate, to decide and oversee became redundant. As all other state organs created by it were responsible directly to the Party, the NPC could not exert control over them. 2. Dividing Functions between the Party and the Government after 1987 The year 1987 marks the beginning of a turnaround within the Party itself from the Party-in-the-stead-of-government practice. At the 13th National Congress of the Communist Party, the Party formally accepted suggestions to introduce substantial reforms regarding the relationship between the Party and the state organs. A major theme of the reform was to divide functions between the Party and the state organs. The Party recognized that it and the state organs differ from each other in nature, function, organizational form and manner of work. The idea that clear distinctions should be drawn between the functions of the two sides was accepted. Relations between the Party on the one hand and the people’s congress, the executive and the judiciary on the other had to be corrected so that each of them could play its proper role. The reason for establishing the Party-in-the-stead-of-government practice was unresolved issues about the proper role of the Party. The 13th National Congress of the Party made a fundamental shift in the Party-state relationship by redefining the function of the Party. It said that, “The nature of the Party’s leadership is political in nature. It is to guide with political principles, political direction, major decisions and recommendations regarding leading officials for the state power organs. The Party exercises its leadership first by transforming the Party’s proposals through the legal processes into the state will. It educates the mass public to understand the Party’s guiding principles and its policies through both the Party organizations’ activities and its model members’ work.” The Party Central Committee exercised its political leadership in two ways. It formulates decisions on major questions in domestic, foreign, economic, defense and other fields and it recommends candidates for leading posts in the central organs of state power. In 1987-88 changes quickly began to differentiate reforms in both the Party and the state. After 1989, however,the Party slowed the dance of reform to a safe and slow waltz. Today 3. Leadership over or within the NPC Professor Zhu Guanglei introduced a Western perspective on the governmental process into study of The general understanding in While I certainly understand what Shi and Ni mean, I doubt their wisdom. In my opinion, the separation between the function of the Party and that of the state should be realized by maintaining the over-NPC position of the Communist Party. Indeed, it is the over-NPC status of the Communist Party that distinguishes it from all other political parties of Can the over-NPC leadership from the Communist Party be harmonized with the NPC actively exercising its constitutional powers? (By “actively” I mean the NPC being free to amend, pass or reject Communist policies or proposals, as Shi and Ni recommend in their book.) I think it can. Democracy and the rule of law require that the Communist Party submits its policies and proposals to the NPC and that the state and the public follow only those policies and proposals of the Communist Party that have been adopted by the NPC. Certainly the NPC process will be meaningless if the NPC cannot amend or reject the Parties policies or proposals that its Deputies consider undesirable or even unacceptable. To be sure the Communist Party submits its policies or proposals to the NPC because it thinks that they represent the will or interest of the people. The NPC provides a check on the Communist Party policies or proposals. Do they really correspond to the will of the people or not? No one can assure that every policy or proposal of the Communist Party corresponds exactly to the will or interest of the people. In practice some major policies of the Communist Party did misjudge the will or interest of the people. As the highest organ authorized for representation of the people, the NPC does have particular superiority for finding out what the people want and what is in their best interests. The Communist Party properly proposes what is to the interest of the people, but the NPC should decide the question. Ultimately the Communist Party and the NPC harmonize with one another in the common pursuit of the people’s interests. The separation reform is certainly good news for the NPC. As the Party observes the legal procedure for turning its program into legislation, the NPC obtains official recognition. Now it can operate on a regular basis. The State Council, the Supreme People’s Court and the Supreme People’s Procuratorate now account to NPC on fixed intervals for their policies and performances. The NPC’s institutional development receives a green light for gradual change. Nevertheless, the people should keep in mind that the NPC remains under the leadership of the Party. Most Party leaders have exercised remarkable care in introducing reform measures to deal with the Party-state relationship, but some leaders of the Party may find it difficult to resist the old modes for exercising the leadership. This is especially the case whenever circumstances become tense. The NPC has to walk carefully so that it can progress step by step in a relaxed and secure situation. B. The State President Among Chinese conflicting political understandings about the institution of the state presidency of 1. The Evolving Institution Since the People’s Republic of During the 1949-54 period, there was no single state president. Instead, the Central People’s Government (CPG) served as the state head collectively. The CPG held double responsibilities. On the one hand, it exercised the legislative power and hence was virtually the national legislature. On the other hand, however, it exercised those powers that should be exercised by the state head. That is why Chinese political scholars hold that the CPG was the collective head of state during that period. From 1954 to 1975,a single state presidency was established as the state head under the 1954 Constitution. In accordance with decisions made by the NPC, the state president called “chairman” at that time exercised all powers internationally recognized to rest with a state head. Mao Zedong was the first state president. Liu Shaoqi succeeded Mao and served the nation as a most popular state president until he was illegally persecuted during the “cultural revolution.” No State Head The 1975 and 1978 Constitutions abolished the institution of state president altogether and from 1975 to 1982 the state acted without a proper head of state. During this period there were people, like Lin Biao, who argued for a single state president in the new Constitution. However, Mao Zedong was resolutely opposed to reestablishing the institution of state president. Fears within the Party leadership were that such an office could be used to take powers away from the Communist Party or its top leader. Abolition of the office of state president, together with other constitutional measures to weaken the state institutions, reinforced the need to have centralized powers in the leadership of the Party. The best example was when the power to nominate the premier was wrested from the state president, as provided by the 1954 Constitution, and given to the Communist Central Committee. With that change the state president lost his power to command the armed forces as chairman of the Defense Committee. Those powers went to the chairman of the Party Central Committee. Protocol powers enjoyed by the state president under the 1954 Constitution were reallocated to the NPC Standing Committee. The powers of the state president under the 1954 Constitution to promulgate laws and to declare emergencies were all abolished. Reestablishing the State Presidency Those favoring a separate institution of state president finally won out in the 1982 Constitution. The Communist Party top leadership now accepts that a single and separate state president is absolutely necessary for a division of functions between the Party and state. The office is indispensable for realizing a rationalized division of responsibilities among the central state institutions. The 1982 Constitution reestablished the state presidency as a separate central state institution, second only to NPC. 2. Election and Term The office of state president of The NPC elects the state president and the state vice president separately. The Central Committee of the Communist Party recommends to the Presidium of the NPC in session one candidate for state president and another for state vice president. The Presidium then formally nominates the candidates to the NPC Full Congress. An absolute majority of the Full Congress is necessary for electing each one. The state president and the state vice president serve a term of five years, largely corresponding with that of the NPC Full Congress that elects them. However, both state president and state vice president exercise their functions and powers until the succeeding NPC Full Congress assumes office and elects the new president and vice president. No person can hold the state presidency or state vice presidency for more than two consecutive terms. According to the Constitution, any Chinese aged 45 or over can run for either state president or state vice president. In the reality, however, the qualities required of candidates for both offices are rich political experiences, high reputation and prestige. Political party affiliation does not matter, not absolutely. For example, a non-Communist can be recommended for state vice president. The state vice president succeeds to the office of state president when the latter falls vacant. The NPC Full Congress elects a new state vice president when that office falls vacant. Should misfortune make both the state president and vice president offices fall vacant, the NPC Full Congress shall elect both a new state president and a new vice president. During the vacancy the Chairman of the NPC Standing Committee temporarily serves as acting state president. 3. Power and Function The state president’s powers fall into two basic categories, domestic and foreign. The state president’s domestic powers are to promulgate laws passed by the NPC, appoint or remove the premier, vice premiers, state councilors and ministers, to confer state medals and titles of honor, to issue orders of special pardons, to proclaim martial law, to proclaim a state of war and to issue orders for mobilization. In foreign affairs, the state president receives foreign diplomatic representatives, appoints or recalls plenipotentiary representatives abroad and ratifies or abrogates treaties and important agreements with foreign states. Chinese constitutional scholar Zhu Guobin divides the presidential power into six sub-powers: to promulgate laws enacted by NPC; to issue orders; to appoint or to dismiss; power in foreign affairs;power to declare war and power to honor. Obviously these are substatial powers. However, according to the Constitution, the state president cannot exercise these powers on his or her own initiative. He or she has to exercise them in pursuance of decisions by the NPC. The Constitution requires the state president to operate passively. Moreover, the state president must carry out the NPC’s decisions. Under the people’s congressional government of The powers of the state president under the current Constitution differ from those under the 1954 Constitution most notably in that he or she no longer commands the armed forces as state president. That power belongs to the Chairman of the Central Military Commission. As understood and explained by However, the practices of State President Jiang Zemin have added some new functions to the office. President Jiang plays a very active role on the political stage. He often holds talks with foreign heads of state that are more than nominal. Most conspicuous are Jiang’s talks with US President Clinton and President Bush. Their talks ranged widely over substantive political problems that normally fall under the prerogative of the head of government. According to the Constitution, activities of this kind are not subject to decision by the NPC and do not require NPC authorization. Many Chinese political and constitutional scholars have taken note of the new practices and some have argued for amending the Constitution to provide for a more active state president. I favor such a constitutional amendment. The Constitutional requirement for a passive state president no longer suits changing political needs. At stake is the role of the general secretary of the Communist Party, now the number one leader of the Party. The general secretary necessarily plays an active role both in internal Party matters and in state life. However, under the political principle of separation of Party function from that of the state it is certainly inappropriate for the Party general secretary to be involved in state life directly if he or she holds no state position. What ought to be the appropriate state position for the general secretary? Historically, the top leaders of the Communist Party have assumed differing positions. Mao Zedong was the state president. Deng Xiaoping was Central Military Commission Chairman. Hua Guofeng was premier. Another possible post is chairman of the NPC Standing Committee. Indeed, at the local level the top Party leaders now tend to hold the post of chairman of the standing committee of the local people’s congress. But Jiang Zemin prefers state president for good reasons. State president is head of state and the most prestigious state official. On the other hand, the responsibilities of state president are rather limited and flexible compared to those of either the NPC Standing Committee chairman or State Council premier. These attributes of the state presidency make this office the best position for the General Secretary of the Party to play. Jiang’s choice then will most likely serve as a binding precedent. In other words, One Chinese constitutional scholar, Qin Xudong, has suggested a comprehensive amendment to the Constitution regarding the state presidency. Qin’s amendment would make substantial provisions for the state presidency. Among other things, it would stipulate that the president is The state vice president has two kinds of work to do. First, he or she assists the president in his or her work. Second, he or she may exercise such functions and powers of the presidency as the president may delegate. The office of state vice president has undergone some changes. In the past the post was assigned to a senior Party member or non-Communist. When taken by a senior Communist it functioned to assist the state president. When held by senior non-Communist it further embodied the principle of multiple parties sharing power. Jiang Zemin has chosen Hu Jintao, sixteen years Jiang’s junior and the youngest Standing committee member of the Political Bureau of the 15th Party Central Committee, to be the state vice president and vice chairman of the Central Military Commission. Apparently, Jiang made the office of state vice president available to Hu so that he may gain the know-how in state life that will prepare him to succeed Jiang. 4. Status The relationship of creation and function between the state president and the NPC should be very simple. The state president is elected and can be removed from office by the NPC. He or she promulgates or proclaims what the NPC has decided and passed. However, the way that the notion “head of state” is held by some of When Jiang Zemin took the office of state president, the majority of C. The State Council Historically the State Council of China has fared much better than either the NPC or the state president. Its power and authority survived even the turbulent years of the “cultural revolution”. Deng Xiaoping told the nation that the “Center” referred to both the Central Committee of the Communist Party and the State Council. Supported by that belief and led by the most popular and authoritative Premier, Zhu Rongji, the State Council now is moving into its golden time. 1. Stability of the Institution According to the Organization Act of the Central People’s Government, passed in 1949,the Central People’s Government Committee was the highest organ of state power. It set up several state institutions to exercise the executive, military, judicial and procuratorial functions. First among them was the Government Administration Council. It exercised the national executive function although its jurisdiction excluded national defense. The Government Administration Council was the forerunner to the later State Council. The 1954 Constitution established the State Council and its provisions on the nature, status, power and functions, creation and term were largely retained by the 1975,1978 and 1982 Constitutions. As Doctor Zhu Guobin argues, “Enactment of the 1954 Constitution marked the formal establishment of Chinese administrative system”. Change of Numbers of Institutions of the State Council (1949-1998)*
2. Nature and Status The first article of the Constitution on the State Council takes great care to define its nature and status. According to the Constitution, the State Council is “the Central People’s Government”. Here the term Government is used narrowly to mean the executive branch of the state. The Constitution defines the status of the State Council from two perspectives. First, in its relationship with the NPC, it “is the executive body for the highest organ of state power.” This definition means that all the State Council does is to administer laws or decisions made by the NPC. In other words, after the NPC makes a decision, the State Council is never to argue about the merits of its decision but simply put it into effect. Moreover, the State Council is subordinate to the NPC and is the NPC’s executive organ. Indeed, the Constitution never says that the executive power rests with the State Council; instead, the State Council merely exercises powers that are entrusted to it by the NPC. In defining the State Council-NPC relationship, the Party leadership aims to make it absolutely certain that The second status of the State Council touches on its relation with local governments. Here the State Council “is the highest organ of state administration.” The State Council guides all of the nation’s administrative activities. Local administrations at various levels must obey the leadership of the State Council and carry out its instructions. The State Council-local government relations manifest most clearly the unitary nature of 3. Powers and Functions Article 89 of the Constitution grants the State Council 17 definite powers and functions: (1) to adopt administrative measures, enact administrative rules and regulations and issue decisions and orders in accordance with the Constitution and the law; (2) to submit proposals to the NPC; (3) to formulate the tasks and responsibilities of the ministries and commissions under the State Council, to exercise unified leadership over the work of the ministries and commissions and to direct all other administrative work of a national character that does not fall within the jurisdiction of the ministries and commissions; (4) to exercise unified leadership over the work of local organs of state administration at various levels throughout the country, and to formulate the detailed division of functions and powers between the Central Government and the organs for state administration of provinces, autonomous regions, and municipalities directly under the central government; (5) to draw up and implement the plan for national economic and social development and the state budget; (6) to direct and administer economic affairs and urban and rural development; (7) to direct and administer the affairs of education, science, culture, public health, physical culture and family planning; (8) to direct and administer civil affairs, public security, judicial administration, supervision and other related matters; (9) to conduct foreign affairs and conclude treaties and agreements with foreign states; (10) to direct and administer the building of national defense; (11) to direct and administer affairs concerning the nationalities and to safeguard the equal rights of minority ethnic groups and the right to autonomy of the national autonomous area; (12) to protect the legitimate rights and interests of Chinese nationals residing abroad and protect the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad; (13) to alter or annul inappropriate orders, directives and regulations issued by the ministries or commissions; (14) to alter or annul inappropriate decisions and orders issued by local organs of state administration at various levels; (15) to approve the geographic division of provinces, autonomous regions and municipalities directly under the Central Government and to approve the establishment and geographic division of autonomous regions, and municipalities directly under the central government; (16) to decide on the imposition of martial law in parts of provinces, autonomous regions, and municipalities directly under the Central Government; (17) to examine and decide on the size of administrative organs and, in accordance with the law, to appoint or remove administrative officials, train them, appraise their performance and reward or punish them. Finally the Constitution grants the State Council one more open-ended authorization: “To exercise such other functions and powers as the NPC may assign to it.” Some of the powers were added to the State Council at the expense of the NPC. Number 15 and 16 of the above list were granted to the NPC by the 1954 Constitution. The power to make administrative measures was not among the powers granted by the 1954 Constitution to the State Council. One unusual authorization was made by the NPC on April 10, 1986. On that day the 6th NPC Standing Committee in its third Session passed a resolution that authorized the State Council to make temporary regulations in reforms of In order to help people memorize this big list of powers and functions, political scholars offer some generalizations. For Xie Qingkui and his co-authors, the powers of the State Council can be generalized into seven definite categories: power to make administrative measures; power to introduce bills to the NPC; power to exercise administrative direction; power to administer the economy; power to administer diplomacy; power to administer the society; power to impose martial law; and other powers entrusted by the NPC. 4. Executive or Administrative Regulations Today there is a worldwide trend toward authorizing executive branches to issue executive regulations. In Mr. Qiao Xiaoyang, Vice Chairman of the Law Committee of the 9th NPC and Deputy Director of the Legal Work Commission of the 9th NPC Standing Committee, headed a task force to draw up the legislation bill. According to Qiao and his assistants, executive regulations have two attributes. In the first place, executive regulations are subordinate to laws. They serve to implement laws. Secondly, executive regulations can innovate as well. Some executive regulations must fill gaps left by laws in order to respond as quickly as necessary to changing situations and new developments. Determining the appropriate foundation for executive regulations is a controversial matter. What foundation has the State Council adopted for executive regulations? Some people advocate a doctrine of function and power. This doctrine asserts that the mention of executive power and function itself constitutes the foundation for executive regulations. By exercising the executive power and function the State Council on its own can adopt executive regulations not contradictory with either the Constitution or laws.It does not have to wait for laws or authorizations from the NPC for its foundation. It can deal with matters not within the jurisdiction of laws. Other people are in favor of an “in accordance with” doctrine. For them the State Council must have specific legislative foundations or authorizations from the NPC before it enacts an executive regulation. By themselves the executive power and function do not imply the authority to adopt executive regulations. The power to enact executive regulations was not inherent in the executive power and function of the State Council. The Legislation Act adopts the middle way. The Act still follows the “in accordance with” doctrine but it interprets the doctrine in a very loose fashion. According to the Legislation Act, the State Council now is free to enact executive regulations on a limited set of matters. They are: A. Matters requiring executive regulations to implement legislative stipulations. Qiao and his assistants explain that these may be broadly implementing measures or regulations, special regulations to implement certain legal stipulations and regulations to dovetail the implementation of a new law with existing laws. B. Matters within the State Council’s own jurisdiction as prescribed by Article 89 of the Constitution. There are two limiting provisos. Proviso one: the State Council cannot adopt executive regulations on matters within the exclusive jurisdiction of the NPC unless the NPC specifically authorizes such regulations. This limitation even applies to matters related to the executive function of the State Council. The Legislation Act spells out nine kinds of matters that fall under this exclusive jurisdiction. The most important ones are matters concerning state sovereignty, civil rights and restrictions on personal freedom. Proviso two is open-ended: the State Council cannot enact executive regulations on matters that must be dealt with according to law by the NPC. C. Matters within the area of law that the NPC authorizes the State Council to administer with executive regulations. Usually the NPC makes such authorizations to the State Council when its Deputies are not yet quite certain about how to respond legislatively to these new problems. Accordingly, the State Council now can exercise its power to enact executive regulations with greater certainty based upon these prescriptions made by the 2000 Legislation Act. This is another manifestation of 5. Composition and Terms There are two kinds of composition of the State Council: namely, political composition and institutional composition. Politically, the very powerful State Council is composed of the following officers: one Premier; about four Vice Premiers; about five State Councilors; the Ministers in charge of ministries; the Ministers in charge of commissions; one Auditor General; and one Secretary General. In Chapter 12 I will discuss how all these State Council officials are chosen by the NPC, and likewise that all of them can be removed from office by the NPC. The term of office of the State Council is largely the same as for the NPC that creates it. The actual dates for a State Council both to take office and to conclude its term is several days later than those of its creating NPC because the latter has to first be convened and then make its appointments. The succeeding NPC has to meet several days before it can choose officials for the succeeding State Council. In 1998 the retiring State Council introduced a bill to the first session of the 9th NPC on the composition of the succeeding State Council. It intended to launch a most radical organizational reform of the central people’s government to facilitate the reform of functions for the government. The 1954-98 structure of the State Council was shaped for implementing the planned economy. It relied too much on administrative methods and instruments to manage economic and social life. It certainly interfered with the country’s new orientation toward a socialist market economy. The Communist leadership exhibited great courage by giving up the old structure of the State Council and recommending the radical reform package that was introduced to the 9th NPC. As was widely expected, the 9th NPC endorsed the reform bill in its first session with hearty applause. The reform pursues specific objectives: —To change functions of the government to facilitate the development of a socialist market economy. Government is to be separated from enterprises so that the government really engages in macro-management, social administration and public service. —To streamline administration with simplified procedures, unified action and higher efficiency. Those departments in charge of macroeconomic management will be reinforced. Those with narrow economic departments are to be adjusted or reduced. Those providing social services will be given adequate adjustment. Legal departments are to be reinforced and so are social intermediary organizations. —To adjust the jurisdictions of governmental departments so that related responsibilities are assigned to one department. The power assigned shall be consistent with responsibilities. —To reinforce the legal formation of an administrative system in response to the requirements for a rule of law and legal administration. The reform reduces the number of ministries and commissions from 40 to 29,with the General Office being reserved. In the reformed structure there are four ministries in charge of macroeconomic management. They are the State Development Planning Commission, the State Economic and Trade Commission, the Ministry of Finance and the People’s Bank of China. There are eight specialized economic management ministries such as the Ministry of Railways, the Ministry of Agriculture and the Ministry of Information Industry. Five ministries deal with education, science and technology, culture and social security and resources. Examples are the Ministry of Science and Technology and the Ministry of Education. Finally there are 12 political ministries, such as the Ministry of Foreign Affairs and the Ministry of National Defense. The offices of vice premier and of state councilor deserve some description. Several vice premiers should be appointed to alleviate the premier’s burdensome workload. However, there is no consensus about how many vice premiers there should be. Previously there were as many as 13 vice premiers. The 1982 Constitution does not fix the number of vice premiers. The 9th NPC chooses to have four vice premiers, thereby reducing the number of governmental offices. Nevertheless, even the most able premier, Zhu Rongji, holds that he can hardly manage the administration with only four vice premiers. In addition, there are five state councilors. They complement the vice premiers and assist the premier in dealing with the administration. Perhaps this illustrates the Chinese way for solving the contradiction between the need to reduce governmental offices and to have adequate hands. Institutionally, the State Council is composed in the next way. Institutional Establishment under the Fourth Institutional Reform of State Council*
6. Premier Government By 1982 The 1954 Constitution charged the premier with the responsibility to preside over the work of the State Council. Nevertheless, the premier did not have the final say on important decisions. Instead, the Administrative Conference made most of the important decisions by vote. The Administrative Conference consisted of the premier, the vice premiers, the secretary general and the administrative councilors. The premier held one vote as an equal to the others. The 1975 and 1978 Constitutions were still ambiguous about the role of the premier. With Deng Xiaoping as its vigorous champion, the 1982 Constitution adopts a premier government. Some Chinese political scholars hold that It is not yet very clear what is involved in the premier’s responsibility. Zhang Yue, a constitutional scholar, has offered acute advice on the premier’s responsibility. According to Zhang, premier’s responsibility is twofold. On the one hand, the premier takes comprehensive responsibility for the government’s work and this responsibility could ultimately result in resignation or impeachment. On the other hand, the Premier should be endowed with power and the means necessary for him or her to fulfill such responsibility. The premier must and can exercise direct leadership over his or her subordinates. Yang Haikun, a leading constitutional law professor, is more legally minded in his measure to enhance the premier’s responsibility with regard to the entire range of administrative management.Professor Yang advocates clarifying either the Constitution or administrative law regarding three issues: First, grant the administrative head clear-cut administrative power; including, for example, the power to nominate the cabinet. Second, provide the administrative head operating mechanisms suited to the administrative responsibilities. Third, clearly define the political responsibilities, legal responsibilities and work responsibilities of the administrative head. The premier receives advice about grand policies from members of the State Council in two major institutional settings. They are the executive meetings and the plenary meetings of the State Council. In attendance at executive meetings are the premier, the vice premiers, the state councilors and the secretary general of the State Council. All component members of the State Council attend plenary meetings. According to the law, the State Council makes its major decisions in either the executive meetings or the plenary meetings where all participants have the right to speak. Nevertheless, the premier has the final say. The premier government means that through the premier the State Council is responsible to the NPC. 7. Responsibility to the NPC The Constitution prescribes the relationship between the State Council and NPC in this terse sentence: “The State Council is responsible and reports on its work to the National People’s Congress or, when the National People’s Congress is not in session, to its Standing Committee.” What is clear about the State Council’s responsibility to the NPC is that only the premier bears the responsibility to NPC. The other members of the State Council are responsible to the NPC, but only indirectly through their responsibility to the premier. There are many questions with respect to the State Council’s responsibility to the NPC yet to be provided for by law and to be tackled in practice. What is the premier’s responsibility to the NPC? Is he accountable for failed policy, poor administration, corruption or incompetence? In what manner does the premier take the responsibility? Must he explain, apologize, correct the problems, or resign? These ambiguities remain to be resolved. Among all the state institutions that the NPC has created, only the State Council is constitutionally required to report to the NPC on its work. To date the State Council has developed several modes for accounting to the NPC about its work. It provides annual reports on government work and progress toward the social and economic development plan to the NPC in session. It reports the annual budget to the NPC in session. The NPC Standing Committee in session receives special topic reports as well as a final accounting report. What is still lacking are modes that can be used by the NPC to ask questions and compel replies from the State Council, as well as to conduct face to face exchanges with the premier, or his or her vice premiers, state councilors and ministers. One more pertinent point to the State Council’s relationship with the NPC is seldom mentioned in either legal or scholarly writings is the compatibility of the two institutions. The law clearly forbids constituent members of the State Council, the Supreme People’s Court and the Supreme People’s Procuratorate to hold seats in the NPC Standing Committee or on NPC special committees, but it does not deny executive, judicial and procuratorial officials from the NPC deputyship. In practice, the component members of the State Council hold NPC deputyships. What should be recognized is that the State Council officials hold seats in the NPC Full Congress because they are the State Council officials. However, the NPC deputyship is not a prerequisite for holding office on the State Council. D. The Central Military Commission One evidence that the Communist Party of China has separated itself from directly ruling is the fact that now the army is constitutionally subject to direction by the state institution. 1. The Need to Nationalize the Armed Forces It may seem odd to suggest that the armed forces would be directed by anything other than constitutional branches of the state. In The Communist Party wrested the state power from the Nationsalist Party regime by armed struggle. Therefore, Mao Zedong concluded that, “State power can be got by gun only”. Since then the Party has been most resolute in maintaining its absolute direction over the army. Indeed, Mao’s famous motto, “The Party directs the gun,” is an absolute truth among the Party members. Now that the Party is intent on establishing a people’s regime, it must decide how to define the relationship between the armed forces and the state. However, the question is not one of control because the Party will never give up its direction over the army. The issue is strictly limited to reconciling the Party’s direction over the army with the socialist constitutional need to put the army into the state. During the 1949-54 years, the desire for a perfect socialist constitutional machine prevailed. Under the Central People’s Government a People’s Revolutionary Military Commission was established. It was parallel to the Government Administration Council and designed to exercise unified administration and direction over the Chinese People’s Liberation Army and other armed forces. The 1954 Constitution followed the nationalization line. It put the armed forces under the direction of the state president. A Defense Committee, composed of both Communists and non-Communists, was made advisory to the state president on national defense. The state president’s direction over the armed forces was perfectly consistent with modern constitutionalism. On the other hand, the whole Party was pleased because in the reality the state president himself or herself was a top Party leader. The Party maintained its own Central Military Commission to actually direct the army. However, in the 1975 and 1978 Constitutions the Communist Party withdrew from the constitutionalist line. Those Constitutions abolished the institution of the state president. The Central Military Commission of the Communist Party assumed the power to direct the armed forces. Under Deng’s advocacy to divide the Party’s functions from those of the state, the Party finally discarded the wrong doctrine and accepted the principle that all armed forces should be located within the state mechanism. The current Constitution implements this principle. 2. The Central Military Commission The current Constitution creates a Central Military Commission composed of one chairman, several vice chairmen and members. The Central Military Commission directs the armed forces, which is composed of active military troops, reserve troops and armed police troops of the country. It combines both supreme commanding power and supreme military administration power of the state. In addition, it is empowered to enact military rules and regulations. The chairman assumes overall responsibility for the work of the Central Military Commission. The Central Military Commission is certainly a distinct state institution. The NPC Full Congress elects its chairman. The chairman nominates persons for vice chairmen and members subject to approval by either the NPC Full Congress or the NPC Standing Committee. The term of office of the Central Military Commission is the same as that of the NPC. In this fashion the NPC makes the Central Military Commission subject to its authority. Through its chairman the commission is responsible to the NPC. However, placing the armed forces under the direction of the Central Military Commission does not deny absolute direction from the Communist Party. The dualism of the Central Military Commission makes this possible. In the reality, the only persons named to the NPC as candidates for the chairman of the Central Military Commission, vice chairmen and members are persons who already hold the same positions in the Central Military Commission of the Communist Party. For example, the candidate for the chairman of the State Central Military Commission must already hold the chairmanship of the Party’s Central Military Commission. So nominally there are two Central Military Commissions in 3. Responsibility to the NPC The relationship between the state Central Military Commission and the NPC differs from the relationships of the other constitutional branches with the NPC. In the first place, the Central Military Commission, as a state institution, is not responsible to the NPC. The Constitution requires only that the chairman of the Central Military Commission be responsible to the NPC. Secondly, the Central Military Commission or its chairman is not accountable to NPC for its work. The Central Military Commission never delivers work reports to the NPC. The NPC accepts this as a matter of national security, recognizing the highly secret nature of military work. Up to the present, the NPC has not yet studied questions about the responsibility of the Central Military Commission chairman to NPC. In what manner is the chairman accountable to the NPC? How is he or she responsible? Those questions remain unanswered. And with progress of the rule of law and constitutionalism those questions need to be answered. Indeed, little study has been made by constitutional scholars of E. The Supreme People’s Court 1. Evolution The Communist Party of China lost no time in establishing a new judicial system when it began to design the constitutional framework for the new The 1954 Constitution maintained the Supreme People’s Court. Unfortunately, the Supreme People’s Court experienced hard times as the Communist Party gradually turned away from the Constitution to a rule of man. Although kept in the place by the 1975 and 1978 Constitutions, the Supreme People’s Court could hardly exercise the trial power. From the new era beginning in the late 1970s, as the Communist Party endeavored to establish the rule of law, the Supreme Court has gradually taken up its function as the highest trial organ of the state. 2. Statuses and Independent Trial The current Constitution recognizes the status of the Supreme People’s Court. First of all, the Supreme People’s Court is created by the NPC and exercises the trial power for the NPC. According to Chinese constitutional theory the Supreme People’s Court derives its power not from the Constitution but from the NPC. The NPC delegates its trial power to the Supreme People’s Court. Just like the State Council, the Supreme People’s Court is created to implement laws and decisions made by the NPC. The Supreme People’s Court is subordinate to the NPC. Therefore, the Supreme People’s Court cannot review the constitutionality of laws or decisions passed by the NPC, much less negate them on constitutional grounds. Further, the power to interpret the laws rests with the NPC Standing Committee. The Supreme People’s Court can offer guiding views only on how to apply the law. The subordination of the Supreme People’s Court to the NPC most visibly shows that Secondly, the Supreme People’s Court is the highest court among all courts of the country. There are courts of four levels: primary courts (county level); intermediary courts (sub-provincial city level); high courts (provincial level) and the Supreme Court. Besides, there are also special court systems in the army, the railway and other fields. The supremacy of the Supreme Court begins with its exclusivity. It is the only court created by the NPC. It exercises the power to interpret how the law ought to be applied. In its jurisdiction, it tries national cases and it can determine which cases fall under its own first trial jurisdiction. Cases appealed by litigants or protest-appeals from the procuratorial against judgments of high courts are to be tried by the Supreme Court. It accepts and decides protest-appeals by the Supreme People’s Procuratorate also. The Supreme People’s Court’s judgments are final and conclusive. The Supreme People’s Court is entitled to oversee trials conducted by all local and special courts. In exercising its oversight over cases wrongly decided in local courts, it can give its own judgment to those cases, or it can order them retried at that local court. Article 127 of the Constitution stipulates that “The Supreme People’s Court supervises the administration of justice by the people’s courts at various local levels and by the special people’s courts.” So the relationship between the Supreme Court and local courts is generally understood as a “supervision relationship.” However, some constitutional scholars, such as Xu Dong, adopt a somewhat different view. Xu argues that “Our state maintains a unitary court system and local courts at various levels and special courts are all subject to the leadership of the Supreme People’s Court.” So in their opinion a leadership relationship exists between the Supreme People’s Court and all local and special courts. Such an understanding does not correspond with the Constitution. According to the Constitution, the Supreme People’s Court cannot issue orders, which limits its leadership relationship over local and special courts. The independence of the Supreme People’s Court and the courts under it did vary over the years. Under the 1954 Constitution, the courts exercised the trial power independently and according to the law alone. Later the Party leadership charged that such independence confused an essential distinction between 3. Composition and Term The Supreme People’s Court has a large membership consisting of one president, several vice presidents, several tribunal chiefs and Deputy tribunal chiefs, and about 100 judges. Basically, there are several sub-institutions within the Supreme People’s Court. The Criminal Adjudication Tribunal tries major criminal cases. The Second Criminal Adjudication Tribunal tries criminal cases appealed to the Supreme People’s Court. The Civil Adjudication Tribunal tries national civil cases. The Economic Tribunal tries major economic cases. The Administrative Tribunal tries suits against the central administration. There is a Judicial Committee in the Supreme People’s Court. The president of the Supreme People’s Court chairs the Judicial Committee and names its members from among the vice presidents, tribunal chiefs and judges. The Judicial Committee serves as the leading core of the Supreme People’s Court. It sums up trial experiences and discusses major or complicated cases to guide decisions to be rendered by the tribunals concerned. The NPC Presidium nominates the candidates for president of the Supreme People’s Court from among senior Communist Party legal experts. The NPC Full Congress elects. Candidates for all other positions on the Supreme People’s Court are nominated by the president of the Supreme Court and chosen by the NPC Standing Committee. 4. Powers and Functions Broadly speaking, the Supreme People’s Court exercises the trial power delegated to it by the NPC. The specifics of the Supreme People’s Court’s powers are follows: —to try criminal or civil cases that it decides do fall under its jurisdiction for the first trial; —to try appeals or protest-appeals against judgments or decisions made by high courts or special courts; —to try protest-appeals advanced by the Supreme People’s Procuratorate; —to ratify death sentences; —to try cases deemed wrongly decided in any local court, or to order the high court concerned to re-try the case; —to give interpretation about how to apply a specific law; —and to exercise oversight over all local courts or special courts. 5. Responsibility to the NPC The Supreme People’s Court as a separate state institution is responsible to the NPC. However, the law does not mention how the Supreme People’s Court is responsible to the NPC. The law does not say whether the Supreme People’s Court takes responsibility individually or collectively, or in what manner. To date, the practice has not yet unfolded on this critical question. According to the current Constitution, only the State Council is required to report to the NPC on its work. The other constitutional branches, except the state president, are responsible to NPC, but do not have to report to the NPC on their respective work. Increasingly, however, the NPC found it unacceptable that the Supreme People’s Court did not report about its work. The court could not make a claim of confidentiality comparable to that justified for the Central Military Commission. The trial work affects the interests of the masses and reports about increasing corruption within the courts makes the masses and the people’s deputies more and more critical of them. In 1979, probably for the first time since the conclusion of the “cultural revolution”, the Supreme People’s Court delivered a written report about its work to the 2nd session of the 5th NPC Full Congress. This change proved so popular among NPC Deputies that it was repeated in 1980. In 1981,a more dramatic reform was adopted. The President of the Supreme Court delivered his work report in person to the 4th session of the 5th NPC Full Congress. NPC Deputies welcomed this reform with warmest applause. Since then it became a practice that the President of the Supreme People’s Court reports to every session of the NPC Full Congress. In 1983, the NPC formalized this practice. In that year, the 6th NPC Standing Committee resolved at its 2nd session to amend the Organization Act of the People’s Court and to assert: “The Supreme People’s Court is responsible to, and reports on its work to, the National People’s Congress Standing Committee as well as the Full Congress.” F. The Supreme People’s Procuratorate 1. Evolution After 1957 the ultra-“Leftists” transformed views in the Communist Party about the procuratorial power. They discarded this power as a conception of the capitalist class. The 1975 Constitution then abolished all procuratorates and assigned the procuratorial power to the public security departments. The 1978 Constitution re-established all procuratorates. The 1982 Constitution finally confirmed their reestablishment and provided that “The people’s procuratorates of the People’s Republic of 2. Chinese Definition of the Procuratorial Power Chinese jurisprudents have offered a lot of definitions on the procuratorial power. Among them the view advanced by Chen Weidong and Zhang Tao used to be the most enlightening. They say that the procuratorial power is a complement to the investigative power and the trial power and that the three powers together make up the judicial power. Consequently, the judicial power in 3. Statuses And Independent Procuratorship The Constitution fixed the status of the Supreme People’s Procuratorate in two aspects. First of all, the Supreme People’s Procuratorate is subordinate to the NPC. It gets the procuratorial power from the NPC and is responsible to the NPC for exercising the legal supervision. The Presidium of the NPC Full Congress nominates a candidate and the NPC Full Congress elects the procurator general. Then he nominates candidates for the offices of the Deputy procurator general, procurators and members of the People’s Procuratorial Committee of the Supreme Procuratorate for appointment by the NPC Standing Committee. All of them are subject to removal from office either by the NPC Full Congress or by the NPC Standing Committee. Secondly, the Supreme People’s Procuratorate is the highest among all procuratorates of the country. Its supremacy means that the Supreme People’s Procuratorate directs the work of the procuratorates at various local levels and in the special procuratorates. There are three levels of local procuratorates: provincial procuratorates, provincial branch and sub-provincial procuratorates and The Constitution prescribes that the Supreme People’s Procuratorate exercises its procuratorial power independently. Nevertheless, 4. Composition and Term The Supreme People’s Procuratorate consists of the following officials: one procurator general; several Deputy procurators general; members of the Procuratorial Committee and procurators. The procurator General directs the work of the Supreme People’s Procuratorate. However, the Procuratorial Committee decides major policy questions. The Procuratorial Committee is chaired by the procurator general and consists of the Deputy procurators general, chiefs of each department and some procurators. The procurator general may ask the NPC Standing Committee to decide any matter about which he or she differs from the majority of the Procuratorial Committee. Failing that, he or she must follow the majority opinion. The law deals with the term of the Supreme People’s Procuratorate in the same manner as it does with that of the Supreme People’s Court. Only the term of the procurator general is subject to limit in two ways. First, his or her term is the same as that of the NPC that elected him or her. Second, he or she shall serve no more than two consecutive terms. 5. Powers and Functions Procuratorates at all levels exercise the power of prosecution, making sure generally that state organs, state officials and citizens obey the law and that criminal offenders are punished. In particular, they supervise the investigative activities of the public security departments and the trial activities of the courts, thereby stopping or correcting unlawful activities. The Supreme People’s Procuratorate exercises three kinds of powers and functions. It conducts public prosecutions for major national criminal cases to the Supreme People’s Court. It appeals verdicts or rulings made by courts at various levels that have already taken effect and are deemed improper by the Supreme People’s Procuratorate. It oversees and checks on the work of all local and special procuratorates. It also decides their staffing quotas. 6. Responsibility to the NPC According to the Constitution, the responsibility that the Supreme People’s Procuratorate bears to the NPC is incomplete because it does not have to report about its work to the NPC. In 1964, the Supreme People’s Procuratorate did report on its work to the 1st session of the 3rd NPC Full Congress. However, the 1982 Constitution did not require that the Supreme People’s Procuratorate make such reports on its work to the NPC. However, similar to the Supreme People’s Court, the Supreme People’s Procuratorate submitted a written work report to the 2nd session of the 5th NPC Full Congress held in 1979. From 1981 on the Supreme People’s Procuratorates’ Procurator General has delivered to each session of the NPC Full Congress an annual work report. In 1983 the 6th NPC Standing Committee put this responsibility in writing with amendments to the Organization Act of the People’s Procuratorates. The details about how to fulfill the responsibility to the NPC by the Supreme People’s Procuratorate have not been given clear explanation. We do not yet know, for example, whether the responsibility is borne individually, collectively, or in what manner. G. Powers of the NPC Full Congress The powers of the NPC Full Congress are unique and full.It is more helpful to first have an understanding about how the powers of the NPC Full Congress are unique.Then I will go ahead to explain the powers. 1. Features of the Powers of the NPC Full Congress The powers of the NPC Full Congress have four attributes. The NPC’s powers are supreme, comprehensive, subject to no constitutional check and balance other than by the people and they are specified in writing. Supremacy Counting from top down there are five levels of state power in The supremacy of the NPC Full Congress is evident from another perspective. The NPC Full Congress is supreme over its NPC Standing Committee. The powers of NPC Standing Committee do prevail over all the local level powers but they themselves are derived from the NPC Full Congress and hence are responsible to the latter. Comprehensiveness According to the Chinese constitutional belief, all powers belong to the people and it is through the people’s congresses that the people exercise their powers at the five levels. That means all powers rest with the people’s congresses. Therefore, at the national level the people exercise their power over national politics through the NPC Full Congress. “All powers” certainly include the legislative power, executive power, military power, trial power, procuratorial power and any other powers necessary for governing. Of course the NPC Full Congress does not exercise all these powers directly. It delegates the head of state power to the state president, the executive power to the State Council, the trial power to the Supreme People’s Court and the procuratorial power to the Supreme People’s Procuratorate. No check and balance The Chinese constitutional system is based on the assumption that the power of the people is supreme. In national politics this means the power of the NPC Full Congress is supreme. None of the other national constitutional organs is equal with the NPC Full Congress. Indeed these organs do not have inherent powers. Therefore they are not empowered to check and balance the powers of NPC Full Congress. Instead all of them are responsible and some are also accountable to the NPC Full Congress. Definitely written out 2. Categorizing the Powers The Constitution grants fifteen specific powers to the NPC Full Congress and supplements them with an open-ended authorization “to exercise such other functions and powers as the highest organ of state power should exercise.” These powers cover all state functions. Peng Zhen, chairman of the 6th NPC Standing Committee, classified these powers into four groups to help people understand and remember them. They are the legislative, decisional, supervisory and appointment powers. This classification into four categories is very familiar in Legislative Power The powers included under this title are to amend the Constitution and to enact and amend basic laws. These cover criminal offences, civil affairs, the state organs and related matters. Decisional Power NPC Full Congress’s powers under this title are to examine and approve all national planning. Specifically it directs economic and social development planning and reports on their implementation, examines state budgeting and reviews decisions of the Standing Committee of the NPC. The NPC Full Congress establishes the provinces, autonomous regions, and municipalities directly under the central government. It can create special administrative regions and their governing systems. It holds the power to decide questions of war and peace. Supervisory Power The NPC Full Congress supervises the enforcement of the Constitution. It receives reports on the work of the government, on the work of the Supreme People’s Court and on the work of the Supreme People’s Procuratorate. It checks on the work of the NPC Standing Committee. It may question the State Council and its ministries and commissions. It can inquire about the activities of any state organs. Appointments The NPC Full Congress elects the chairman, vice-chairmen, secretary- general and all other members of the NPC Standing Committee. It elects the president and vice-president of the People’s Republic of The NPC Full Congress may accept resignations from the membership of the NPC Standing Committee, the state president and vice president, the premier, vice premiers and other members of the State Council, the membership of the Central Military Commission, the president of the Supreme People’s Court and the procurator-General of the Supreme People’s Procuratorate. The NPC Full Congress has power to remove from office the state president and vice president; the premier, vice premiers and other members of the State Council; the chairman and other members of the Central Military Commission; the president of the Supreme People’s Court; and the procurator-general of the Supreme People’s Procuratorate. H. Powers of the NPC Standing Committee The powers enumerated for the NPC Standing Committee are even more numerous than those of the NPC Full Congress. They are important as well. 1. Features of the Powers of the NPC Standing Committee In summary, the powers of the NPC Standing Committee are derivative in nature, subject to the control of the NPC Full Congress, independent and definitively written out. Derivative The NPC Standing Committee exists simply because the Full Congress is not in session for most of the time every year and so cannot exercise its powers continuously. In order to provide a needed standing organ of highest state power for the nation on a continuing basis, the Constitution grants powers to the NPC Standing Committee. Actually, these powers belong to the NPC Full Congress and would be exercised by it if it functioned full time. That not being the case, they are delegated to the Standing Committee. Subject to NPC Full Congress’s Control The powers of NPC Standing Committee are subordinate to the parent powers of the NPC Full Congress and subject to control by the parent NPC Full Congress. This is accomplished in four ways. First, the Full Congress can alter or annul inappropriate decisions by the Standing Committee. Second, the Full Congress checks the work of the Standing Committee. Third, the Full Congress receives resignations of the chairman and other members of the Standing Committee. Finally the Full Congress can appoint committees of inquiry to investigate the work of the Standing Committee. Having understood that the powers of NPC Standing Committee are derived from those of NPC Full Congress and are subject to the latter’s control, I want to point out another perspective on the NPC Standing Committee’s powers. The Constitution formally confers powers upon the NPC Standing Committee. No institution, including the NPC Full Congress, can deny, alter or annul the powers given unless the current Constitution is amended. The NPC Standing Committee exercises powers in its own name. During the adjournment of NPC Full Congress, the NPC Standing Committee is the highest organ of state power. It enacts laws, appoints and dismisses state leaders and acts on bills from the State Council. In brief, the authority of the NPC Standing Committee is sufficient to legitimize all state functions at the national level. Written Language All powers of the NPC Standing Committee are clearly defined in writing. Most of them are prescribed in the Constitution. Others are prescribed by the Organization Act of the NPC, the Rules of Procedure of the NPC Full Congress, or the Rules of Procedure of the NPC Standing Committee. 2. The Categories of the NPC Standing Committee Powers According to Chinese usage the NPC Standing Committee powers are also categorized into four groups. They are the legislative power, the decisional power, the supervisory power and the power to appoint and dismiss top ranking state officials. Legislative Power The NPC Standing Committee can interpret the Constitution. It can enact and amend laws, except those that are exclusively the jurisdiction of the NPC Full Congress. When the NPC Full Congress is not in session, it can partially supplement and amend laws enacted by the NPC Full Congress provided that the basic principles of these laws are not contravened. It also interprets laws enacted by the NPC Full Congress. Decisional Power When the NPC Full Congress is not in session, the NPC Standing Committee is empowered to review and approve partial adjustments to the plans for national economic and social development or to the state budget as they prove necessary in the course of their implementation. It decides on the ratification or abrogation of treaties and important agreements concluded with foreign states. It may institute systems of titles and ranks for military and diplomatic personnel and of other specific titles and ranks. It can institute and confer state medals and titles of honor. It can grant special pardons. Most important, it can proclaim a state of war in the event of an armed attack on the country or in fulfillment of international treaty obligations concerning common defense against aggression. It can decide on either general or partial mobilization. It may impose martial law throughout the country or in any parts thereof. Supervisory Power Besides the NPC Full Congress, the NPC Standing Committee is the only institution to supervise enforcement of the Constitution. It supervises the work of the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procuratorate. Only it has the power to annul executive rules, regulations, decisions or orders of the State Council that contravene the Constitution or the law. It is the final authority to annul local regulations or decisions by provinces, autonomous regions, and municipalities directly under the Central Government that contravene the Constitution, the law or the national executive rules and regulations. Powers to Appoint and Dismiss The NPC Standing Committee exercises the full powers of appointment and dismissal whenever the NPC Full Congress is not in session. Upon nomination by the premier, it chooses ministers, the auditor-general and the Secretary-General of the State Council. Upon nomination by the chairman of the Central Military Commission, it decides on the choice of other members of the Commission. Upon the recommendation of the president of the Supreme People’s Court, it is the only institution qualified to appoint or remove the vice-presidents and judges of the Supreme People’s Court, members of its judicial committee and the president of the military court. Similarly, at the recommendation of the procurator-general of the Supreme People’s Procuratorate, it is exclusively the institution to appoint or remove the Deputy procurator-general and procurators of the Supreme People’s Procuratorate, members of its procuratorial committee and the chief procurator of the military procuratorate. It approves the appointment or removal of the chief procurators of the people’s procuratorates of provinces, autonomous regions, and municipalities directly under the central government. It decides on the appointment or recall of plenipotentiary representatives abroad. During the adjournment of the NPC Full Congress, the NPC Standing Committee may accept resignations from members of the Standing Committee, the president and vice-president of the state, the premier and other members of the State Council, the chairman of the Central Military Commission, the president of the Supreme People’s Court and the procurator-general of the Supreme People’s Procuratorate. Resignations so accepted are submitted to the next session of NPC Full Congress for approval. Also during the NPC Full Congress’ adjournment the Standing Committee can appoint as acting officials the premier, the chairman of the Central Military Commission, the president of the Supreme People’s Court, and the procurator-general of the Supreme People’s Procuratorate when necessary to fill vacancies. 3. The Special Importance of the NPC Standing Committee Powers The NPC Standing Committee powers are important for three reasons. The Full Congress shares only some of powers with the Standing Committee.The Standing Committee exercises most of them exclusively. Finally, some powers are open ended. Powers shared The NPC Standing Committee does share some of its powers with the parent Full Congress. Shared powers include the power to make laws, to review and approve economic and social development plans and the budget and to supervise the State Council and the two judicial branches. Close examination reveals that these shared powers operate in two halves. The Full Congress exercises one and the other is by the Standing Committee. While it is true that the Standing Committee cannot possibly exercise the powers of the Full Congress, it is also definitely impossible for the Full Congress to exercise the powers of the Standing Committee. For example, the Standing Committee cannot enact criminal or civil laws that are under the jurisdiction of the Full Congress. However, the Full Congress is unable to enact non-basic laws. It is impossible for the Full Congress to review and approve necessary adjustments to plans for social and economic development or the budget during the course of their implementation. The Full Congress cannot exercise these powers both because they are granted to the Standing Committee and because the brief (less-than-twenty days) session of the Full Congress is ill suited for exercising these powers. Powers monopolized The Constitution granted twenty definite types of power to the NPC Standing Committee. The Standing Committee possesses a monopoly on most of them. In other words the Full Congress is denied the exercise of these powers. The NPC Full Congress is not capable of interpreting the Constitution and the laws. It is unable to annul administrative rules, regulations, decisions, orders, local regulations or decisions. Practically it is unable to decide on general mobilizations or the imposition of martial law. Open-ended The Constitution concludes its empowerment of the NPC Standing Committee with a flexible prescription. The NPC Standing Committee is “to exercise such other functions and powers as the National People’s Congress may assign to it.” Therefore the constitutional powers of the NPC Standing Committee invite expansion. In summary, most powers granted to and exercised by a national legislature in I. Comments The NPC exercises its powers and functions in a specific constitutional context. Its effectiveness depends also on how its tasks are allocated within the institution. The broad constitutional context around the NPC is full of Chinese characteristics. A decisive factor is the Communist Party’s leadership over and within the NPC. As the leaders of Party acknowledge, the Party’s leadership can render the NPC useless if the Party insists upon a fusion of its functions with that of the NPC. Alternatively, the Party can exert its leadership in a way that produces a busy and productive NPC by separating its functions from those of the NPC. This may seem miraculous to Western observers, but it is becoming visible in The NPC may be the most powerful legislature anywhere in the world in terms of relationships between the legislative and the other constitutional branches. The NPC holds all the constitutional powers. All the other constitutional branches exercise powers in behalf of the NPC and, except for the state president, are responsible to the NPC directly or indirectly. In theory it is possible for the NPC to have a smooth implementation of its will by all the other branches. This is exactly the constitutional intent. What remains to be seen is the NPC’s capability for putting its decisions into effect. If the will of the NPC is not most satisfactorily implemented, then the problem lies not in constitutional orientation and structure, but in operational mechanisms or instruments. By exercising most of the NPC powers through the NPC Standing Committee, This outline of the National People’s Congress system reveals the essence of |
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