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An Overview of China’s State Council Major Decision-making Regulations

In 2019, as part of General Secretary Xi Jinping’s initiative to put power in a “cage of regulations,” the State Council adopted Interim Regulations on Major Administrative Decision-making Procedures (the Decision-making Regulations). They seek to constrain the formerly unregulated policymaking and decision-making process for major matters that have a significant impact on such areas as market regulation and environmental protection, economic and social development, natural resources, and major construction projects or otherwise involve major or vital public interests. The Decision-making Regulations do not apply to macro-control decisions including on fiscal monetary policy; emergency response decisions (such as China’s zero-Covid policy); or government “legislative” decisions in the form of legally-binding State Council regulations, like the Decision-making Regulations, and departmental or local government rules, which are covered by separate although similar procedures.

The Decision-making Regulations establish five procedures to better ensure “scientific, democratic and law-based” government decisions: public participation, expert assessment, risk analysis, legality review, and collective deliberation and decision.

Decision-makers are to fully consider the public’s opinions on proposed decisions that do not involve confidential matters, but public participation may take various forms ranging from opinion polls to a regulated written “notice and comment” procedure similar to that used to solicit public opinion on laws and government regulations. Public hearings may be convened on matters that directly involve the public’s “vital interests” or evoke major differences of opinion. When decisions will impact the interests of a particular group, such as foreign businesses or a segment of society, the decision-making agency should consult with such groups. The public should also be invited to participate in post-decision assessments for major policies and projects.

The Regulations also set forth procedures for expert appraisals on technical or professional matters and risk assessments where a decision might have an adverse impact, such as on social stability or public safety. However, the only two procedures that are mandatory for every major decision are legality review and collective deliberation and decision. The office responsible for opining on the legality of a proposed decision may invite input from outside legal consultants and internal government lawyers. The drafting office then submits the legal opinion, together with the draft decision and other related materials, for discussion at an executive or plenary meeting of the decision-making authority. Its administrative head is to make the final decision after collective discussion in which all members are to fully express their opinions, with the administrative head sharing their views last. If the administrative head’s decision differs from the majority opinion of those present at the meeting, the reasons are to be explained and recorded. The decision must then be reported for instructions to the party committee at the same level, prior to promulgation, in accordance with Chinese Communist Party (CCP) rules. Once finalized, major decisions should normally then be widely publicized and explained.

While the Decision-making Regulations apply only to local governments at the county level and above, they do call on central ministries under the State Council to formulate major administrative decision-making procedures for their departments with reference to the Regulations. Moreover, the 2024 revision of the State Council’s Organic Law requires it to make scientific, democratic, and law-based decisions and to regulate the procedures for major administrative decision-making, while the State Council’s Work Rules stipulate it should implement major decision-making procedures that align with those of the Decision-making Regulations. Similarly, the CCP, which often emulates procedural developments in the administrative state, listed on its rulemaking plan for 2023-27 the formulation of major decision-making procedures to govern local party committees and strengthening decision-related systems at the center.

 

 

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Jamie Horsley is a Senior Fellow of the Paul Tsai China Center at Yale Law School. Her project work and research revolve primarily around issues of administrative law, governance and regulatory reform, including promoting government transparency, public participation and government accountability. She was formerly Executive Director of the Yale China Law Center. Prior to joining Yale, she was a partner in the international law firm of Paul, Weiss, Rifkind, Wharton & Garrison; Commercial Attaché in the U.S. Embassies in Beijing and Manila; Vice President of Motorola International, Inc.; and a consultant to The Carter Center’s China Village Elections Project. She holds a B.A. from Stanford University, an M.A. in Chinese Studies from the University of Michigan, a J.D. from Harvard Law School, and a Diploma in Chinese Law from the University of East Asia. She was a Fellow at the Woodrow Wilson International Center for Scholars for 2015-16.

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