Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Friday, September 23, 2016

Vote-buying scandal and expulsion of Liaoning delegates from the NPC: legal aspects

The big story from China in the last week has been a massive vote-buying scandal in Liaoning, resulting in the expulsion from the National People's Congress of 45 Liaoning deputies. An interesting twist on this story is that the whole expulsion process seems to have been done in brazen violation of established legal procedures.

The Organic Law of the National People’s Congress (OLNPC) provides for two ways for delegates to be unseated. First, they can be disqualified by the NPCSC’s Credentials Committee after their election but before the first NPC session following their election (Art. 3; see below). That didn’t happen here; the delegates were elected in 2013, so we are way past the deadline for disqualification by the credentials committee. The second way is for them to be unseated by the body that elected them, i.e., the relevant provincial people’s congress or its standing committee (Art. 45; see below). Obviously, that didn’t happen here, either.

The news reports say that the NPCSC’s action also disqualified the delegates from serving in the Liaoning provincial people’s congress and its standing committee. That’s very weird; there is no law giving the NPCSC the power to do this. (At least not that I know of.)

Now of course this is said to be an unusual situation. (Whether it’s actually unusual for so many members of a provincial people’s congress to be involved in corruption is an issue for another day.) And given that the OLNPC didn’t contemplate so many members of a provincial PC being corrupt, it of course did not contemplate that a provincial PC would be incapable of throwing out a few bad apples and would require external intervention. Thus, perhaps it was necessary to take this legally invalid action. (There is no place the delegates can go to challenge it, anyway.)

But this argument doesn’t really wash. The NPCSC can legislate about anything it wants. It can amend existing legislation. Thus, if it could get its act together sufficiently to pass a resolution expelling these delegates, it could have gotten its act together sufficiently to amend the relevant legislation to make its expulsion resolution legally valid. The failure to do so can’t be chalked up to urgency or the difficulty of getting legislation through a grid-locked and unfriendly legislature. I think it’s more likely attributable to a sense that getting your legal ducks in a row (even when it would be easy to do so) is just not important; people are not putting a lot of thought into that angle. There’s bad stuff going on and we have to put a stop to it.

The Chinese government would not be the first to side-step legal procedures when it wanted something done, of course. Here in the United States, Republicans and Democrats both have plausible complaints about stuff done when the other held the White House. I think there is an important difference, however. The executive branch takes these shortcuts (if we concede them to be shortcuts) because it can't get the legislature to go along, and it argues vehemently that the shortcuts are lawful anyway. The leadership of the Chinese party/state controls the NPC and its Standing Committee, and can get any law passed that it wants. And it is just not thinking about whether what it wants is lawful or not. There is no cadre of lawyers charged with writing memos that will provide the legal justification for what the leadership wants to do. Within the Chinese system, it just doesn't matter. No person or institution of consequence cares.

This is not to say that the American way of doing things is the only way or the best way. It is to say that there is a lot of evidence suggesting that caring about what the statutory law says is not the Chinese way (at least for the top leadership), and we shouldn't pretend otherwise.

http://lawprofessors.typepad.com/china_law_prof_blog/2016/09/vote-buying-scandal-and-expulsion-of-liaoning-delegates-from-the-npc-legal-aspects.html

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