Ke Xian WenAt the end of 2023, the Legislative Affairs Committee of the Standing Committee of the National People's Congress sent a Spring Festival gift to the public, which made it clear that some local regulations prohibit the sale and discharge of fireworks and firecrackers, which does not comply with the provisions of the superior law.
On December 26, Shen Chunyao, director of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, mentioned the case of "a complete ban on fireworks and firecrackers" when reporting to the seventh meeting of the Standing Committee of the 14th National People's Congress on the filing and review work in 2023. After review, the Legislative Affairs Commission believes that the "Air Pollution Prevention and Control Law", "Formulated Fireworks and Firecrackers Safety Management Regulations" and other laws and administrative regulations do not make comprehensive prohibitions on the sale and discharge of fireworks and firecrackers that meet quality standards, and at the same time authorize the people at or above the county level to delineate the time period and area for restricting or prohibiting fireworks and firecrackers;The provisions of the relevant local regulations on the complete prohibition of the sale and discharge of fireworks and firecrackers are inconsistent with the relevant provisions of the Air Pollution Prevention and Control Law and the Regulations on the Safety Management of Fireworks and Firecrackers;With regard to the issue of a complete ban on sales and burning, there are differences in understanding, and it is difficult to enforce in practice, so it should be revised in accordance with the spirit of the provisions of the higher-level law.
Standing at the height of ensuring the implementation of the Constitution and laws and safeguarding the unity of the country's rule of law, the Legislative Affairs Committee of the Standing Committee of the National People's Congress (NPC) has called for a halt to the blanket prohibition on the sale of fireworks and firecrackers through the constitutional practice mechanism of "filing and review".
It can be seen from the report of the People's Working Committee that the current regulations on the sale and discharge of fireworks and firecrackers in some places do not conform to the provisions of the higher-level law. Note that the National People's Work Committee opposes a blanket "ban", and does not say that it cannot be "restricted".
Article 82 of the Air Pollution Prevention and Control Law stipulates that "the production, sale and discharge of fireworks that do not meet quality standards are prohibited." No unit or individual shall set off fireworks and firecrackers in the time period and area prohibited by the people of the city. ”
The law authorizes urban people** to set up time periods and areas where fireworks are prohibited, and there are three key words: city, time period and region. On the other hand, can there be a ban on fireworks in rural areas?Is it possible to ban the whole province, the whole city, and the whole year regardless of time period or region?No.
In terms of Henan Province's "global ban on fireworks", on July 30, 2021, Article 61 of the newly revised "Henan Provincial Air Pollution Prevention and Control Regulations" clearly stipulates: "The production, sale and discharge of fireworks and firecrackers are prohibited, and the specific measures shall be formulated by the people of each districted city and the Management Committee of the Jiyuan Industry-City Integration Demonstration Zone", that is, the people of the prefecture-level city need to decide the ban method.
However, various prefecture-level cities in Henan have unanimously stipulated that "the whole city is prohibited", and Zhengzhou, Kaifeng, and Luoyang ......In the end, the whole province - whether it is rural or urban - banned fireworks and firecrackers, in fact the whole province "banned the production, sale and discharge of fireworks". In addition, other places such as Panjin in Liaoning have also adopted local legislation, regulations and other forms to stipulate a full-time ban on the whole area. At the beginning of 2023, there was some loosening in various places, but the "one-size-fits-all" ban still exists.
Even if we do not discuss the air pollution and noise pollution caused by fireworks, from the perspective of legal authorization alone, the "all-area and full-time ban" in various places goes beyond the authorization provisions of the Air Pollution Prevention and Control Law, and even exceeds the authorization provisions of local legislation. The Air Pollution Prevention and Control Law authorizes "restriction", not "prohibition", and must be implemented in cities, time periods, and regions. From this point of view, the record review and supervision of the National People's Working Committee is very rigorous, and it also points to the weakness of the local "one-size-fits-all".
Based on the needs of fire prevention and air pollution control, the public can understand and be willing to obey the regulations on fireworks in a limited time period and area, but if a huge province cannot even tolerate a string of firecrackers and a bunch of fireworks in an empty rural yard, I am afraid it will be a bit extreme. Especially for the majority of people who return to their rural hometowns for the New Year, it is really unacceptable that the rural hometowns are more thoroughly banned than metropolises such as Shanghai and Beijing, and these metropolises have only delineated the scope of the ban in the main urban areas through local legislation.
The various year-round "firecracker ban orders" reflect the increase in the number of local governments in the implementation of atmospheric prevention and control tasks, and there is no basis for the superior law, which should of course be corrected. Filing and review is a constitutional supervision system with Chinese characteristics, and all local laws and regulations must be subject to constitutional review, and insist that mistakes must be corrected, so as to improve the level of rule of law in China.
(The author is a senior ** person).