The National People’s Congress, China’s highest organ of state power, has the authority to enact and amend any regulating documents of law within China’s national sovereignty.
The NPC makes state law, which is a primary part of the country’s top-level legislation. NPC law making is supreme, fundamental, and systematic as well as independent in China’s legislative system.
Legislative Powers of the NPC
The Constitution and Law on Legislation enshrines the NPC with authority to:
l Enact and amend the Constitution;
l Enact laws;
l Supervise national legislative operations; and,
l Exercise its power in other legislative efforts.
Its constitutional enacting and amending power represents its supreme authority as the top legislature. The other three powers are also supreme in nature. The NPC passes basic state laws. It delegates subordinating legislature to make laws. And it supervises legislative activities of its Standing Committee and of all other legislatures in the country.
Theoretically, the NPC’s constitutional responsibilities involve:
l Enacting the constitution;
l Amending the constitution;
l Interpreting the constitution; and,
l Annulling the constitution.
But the Constitution enacted in 1954 and the 1975 amendment provided the NPC with power only to amend it. The 1978 and 1982 amendments, however, empowered the NPC Standing Committee to interpret the Constitution. It is because power comes with tasks. None of China’s constitutional versions mention enacting or annulling powers, for enacting and annulling of the Constitution is considered unnecessary since the People’s Republic adopted it in 1954.
In practice, the NPC functions in the following aspects in constitutionalism:
1) The NPC created a new Constitution, the basic law, for the people, society and the state of the People’s Republic of China. The Constitution enacted in 1954 was formulated on the basis of theories, principles, guidelines, and requirements, instead of making amendments to an original existing one.
2) The NPC made major or full-scale amendments to the Constitution in 1975, 1987 and 1982, respectively.
3) The NPC has also made minor amendments to the Constitution or to the specific clauses of it.
In 1982, the NPC diverted some its state legislative powers to its Standing Committee, as provided by the Constitution. Since then, state laws have been segmented into two parts--the basic and the miscellaneous. The powers to enact them have been given to the NPC and its Standing Committee, correspondently. The Law on Legislation later confirmed the split of powers.
According to the Constitution and the Law on Legislation, the NPC has the authority to supervise legislative activities of other legislatures. It means:
1) The NPC has the right to modify or abrogate any inappropriate resolutions of its Standing Committee, including the documents of law the latter passes (e.g. The NPC Standing Committee’s Resolution on a Crack Down on the Crimes that Seriously Damage the National Economy).
2) The NPC is entitled to oversee the enforcement of the Constitution, including to nullify any unconstitutional legislation.
Article 88 of the Law on Legislation endows the NPC with these authorities:
1) To amend or abrogate any laws enacted by its Standing Committee.
2) To nullify any autonomous statutes and specific regulations ratified by its Standing Committee which cause an overstepping of legislative power.
In addition, the Constitution and Law on Legislation define that:
The NPC Standing Committee is empowered to draw up miscellaneous laws, but it has to be clear of the NPC’s legislative power. It can supplement and amend laws enacted by the NPC, but only when it is necessary between the NPC sessions. And the supplements and amendments of the Standing Committee should not contravene the basic principles of the original.
The State Council should draft administrative acts in line with the Constitution and basic laws.
Procedures of State Council departments should be based on relevant laws and administrative acts.
Local rules and regulations should not contravene the Constitution, basic laws and administrative acts.
These provisions have established and secured the NPC’s kernel and supreme status in the national legislative framework. It has power to inspect on any legislation in the country to make sure it is constitutionally good and conform to the enforcement of the Constitution.
Apart from these, the Constitution (Clause 15 of Article 62) stipulates the NPC exercises “other related legislative powers granted to the supreme organ of state authority”. The most significant, however, is the power to delegate other legislatures to draw up documents of law.
The Law on Legislation also describes this responsibility of the NPC. According to Article 9, the NPC and its Standing Committee may delegate power to the State Council to make necessary administrative acts. Exceptions are legislation regarding compulsory measures, penalties and judicial institutions (e.g. crimes, punishments, deprivation of citizens’ political rights and restrictions of people’s rights of freedom). The law also grants the right to the NPC to delegate its powers to local people’s congresses and their standing committees of special economic zones in making specific statutes.
Legislative Procedures of the NPC
1. Introduction of Bills
All the NPC Presidium, NPC Standing Committee, State Council, Central Military Commission, Supreme People’s Court, Supreme People’s Procuratorate and the NPC special committees, as well as deputations or a group of more than 30 deputies, are entitled to sponsor legislation to the NPC.
The NPC Standing Committee, the special committees and the State Council recommended most of the bills the NPC considered in the past. The NPC Standing Committee is the permanent organ exercising the supreme state power between the NPC sessions. The special committees are standing offices of the NPC working in specific areas. The State Council, however, is the Central Government and the highest executive body of China. They are major legislatures at state level. The State Council sponsored over 70 percent of the bills passed by the NPC in the past two decades.
The NPC Presidium and the deputations do not exist after an annual session winds up. So there are very few chances for the Presidium or deputations to introduce a matured bill as required.
Deputies’ bills have to be proposed jointly by 30 NPC deputies or more. It is due to the fact that the number of deputies is large, while the sessions are too short to deal with so many bills. Also, there is no full-time position for NPC deputies. As individuals, most of the deputies feel it hard to get adequate information and legal knowledge, especially the proficiency required in drafting bills independently. In fact, deputies have sponsored very few bills so far.
Bills are introduced in the NPC in two ways:
A very small number of bills are introduced indirectly during the sessions.
Most of them are submitted to the NPC Standing Committee between the NPC sessions, and then introduced in the sessions after the Committee’s consideration.
The bills introduced into the NPC are supposed to have two parts--the principal and the appendix. The principal texts normally include a legislative motion, an explanation to the reason for legislation, legal foundation and configuration of the legislation. The appendix, however, consists of the drafted law, notes to it and other essential information.
Bills are introduced into the NPC in three ways:
1) Those sponsored by the NPC Presidium will get to the agenda automatically.
2) Those sponsored by the NPC Standing Committee, State Council, Central Military Commission, Supreme People’s Court, Supreme People’s Procuratorate, or the NPC special committees are introduced through the Presidium.
3) Those sponsored by deputations and grouped deputies see much less chances for the NPC’s consideration.
2. Deliberation of Bills
There are two types of examination of bills:
1) Preparatory deliberations are made before bills are introduced in the NPC. The aim of such considerations is to judge whether they should appear on the NPC agenda. Necessary improvements may be made to the bill to be examined.
2) Formal deliberations are conducted on the bills on the agenda. The purpose of this type of examination is to decide whether it should be passed as a law.
Procedures for preparatory deliberations vary depending on who is the sponsor:
1) A bill proposed by the NPC Presidium goes to the NPC agenda automatically. No pre-examination is involved.
2) Bills sponsored by the NPC Standing Committee, State Council, Central Military Commission, Supreme People’s Court, Supreme People’s Procuratorate and the NPC special committees need to be pre-examined by the Presidium before they are read at the NPC session. Practically, all of them would be introduced in the NPC.
3) It is the bills sponsored by deputations and group deputies that really have to go through preparatory deliberations. If a bill is subject to the Presidium’s decision, it is to be viewed by the Presidium. If the Presidium seeks advice from the special committees on whether a bill should be introduced in the NPC, the special committees would pre-examine it.
The bills on the NPC agenda receive formal deliberations. According to provisions of the Law on Legislation and other relevant laws, a formal deliberation begins with an introduction to the bill at a NPC plenary session.
The sponsor is responsible to give an introduction to the proposed bill during a session.
Either the NPC Standing Committee or the sponsor should explain the bill introduced through the Standing Committee to the full session of the NPC.
If the Standing Committee itself proposes a bill, the Standing Committee should give the introduction.
Upon being introduced, the bill is to receive examination by the deputations, relevant special committees, the Legislative Work Committee, meeting of deputation leaders and deputies concerned, respectively.
Deputations’ consideration of bills submitted to the Standing Committee is the basic form of deliberation. The sponsor’s representatives are expected to be present at the deputation meetings, to listen to their opinions and respond to inquiries about the bill. It is intended to let examiners and sponsors communicate directly. At request of deputations, the bill drafters, legal research institutions, law schools, as well as government and non-government organizations as interested parties, should provide information about the bill.
Examination by relevant special committees is a specialized verification. Entitled to either propose or examine bills, the special committees view bills by doing the following things:
1) To view bills in the fields they are specialized in (e.g. The Financial and Economic Committee would examine bills on financial and economic matters);
2) To discuss a bill with the sponsor;
3) To discuss a bill with relevant deputies and specialists;
4) To report the result of their examination back to the Presidium, print it out and distribute it at the NPC session; and
5) To advise the Legislative Work Committee regarding the legislation.
Very often, the Legislative Work Committee is responsible for examining all the bills submitted to the NPC and its Standing Committee unitarily. Such deliberations follow the following procedures:
1) The Legislative Work Committee views bills unitarily on the basis of the result of deputation and special committee examinations.
2) A report on the deliberation, along with a revised draft, then goes back to the Presidium. The report is expected to include a description of major controversies, an assessment on the maturity and feasibility of the legislation, and an explanation to the amendments if there is any.
3) The report and the revised draft, after viewed by the Presidium, will be printed and distributed for another round of deputations’ consideration. The Legislative Work Committee would revise the draft again according to the deputations’ suggestions. The output is then submitted by the Presidium to a plenary vote. It would be passed to become a law if the majority goes for it.
When felt necessary, the chair of the Presidium may call a meeting of deputation leaders to debate on any major controversies that crop up. The views and differences are reported to the Presidium. The chair may also hold debates on key issues for the deputies selected by deputations. Discussions and views will be feed back to the Presidium as well.
Provided the sponsors ask to withdraw the bill they have proposed, this can happen before it is subject to vote. Reasons for retraction should be given to the Presidium. Upon the Presidium’s report to the NPC session, the deliberation on the bill will be terminated.
3. Passage and Promulgation of Laws
A revised draft law, after being considered by all the deputations, should be amended by the Legislative Work Committee again based on the deputations’ opinions. The resulting new draft will be submitted through the Pre
sidium to a full session for voting. It becomes a law when the majority votes for it.
The passed law will be signed and proclaimed by decree by the President of the People’s Republic.
Outlined above is the legislative mechanism and procedures of the NPC. Bills drawn up by a drafting committee set up by the NPC, however, may go through different procedures before they are voted on.
Legislation of the NPC Standing Committee
The NPC Standing Committee is the permanent office of the NPC. Legislation of the Standing Committee, therefore, means it enacts and amends documents of law within state sovereignty.
Law making efforts of both the NPC and its Standing Committee are of China’s state legislation. It plays a leading part in national legislation. Due to the enormous population and complication of life in a vast land, the legislative task for the NPC Standing Committee is heavily loaded and continuous. The endeavors are comprehensive and independent. The following facts may serve as a note to the nature of the legislative work of the Standing Committee:
1) Legislation of the NPC Standing Committee is of the highest level next to that of the National People’s Congress. As the permanent office of the NPC, the Standing Committee also exercises the state legislative powers. Laws made by the Standing Committee outrank all those by any other legislatures except the NPC. They are effective all across the country, for all individuals and social groups in the country. Laws drawn up by other bodies without being delegated either by the NPC or its Standing Committee should stay in line with laws enacted by the NPC Standing Committee.
2) Legislative work of the NPC Standing Committee is all-encompassing, heavily loaded and never-ending. Its nature can been illustrated by these facts:
a) In addition to enacting and amending laws, the NPC Standing Committee is also responsible for interpreting the Constitution. When necessary, in between the NPC sessions, it gives minor supplements and modifications to laws made by the NPC. It interprets laws enacted by the NPC and by the Standing Committee itself. It has power to nullify any out-of-place administrative acts, local rules, as well as provincial autonomous rules and specific regulations. The extensiveness of the NPC Standing Committee’s legislative work is unique.
b) The legislative efforts of the Standing Committee are aimed at regulating all the basic and important areas of national, social and private life in the country. So it is more specific and miscellaneous, as compared with the tasks of the NPC.
c) As the permanent office of the NPC, the Standing Committee actually shoulders more state legislative responsibilities than the NPC.
d) With extensive legislative responsibilities, each of the Standing Committee bimonthly sessions has legislative matters on its agenda. State legislation is practically its routine task.
3. The Standing Committee’s legislative efforts are all-embracing and independent. It has powers to amend, supplement, and nullify laws enacted by itself. It is also empowered in proposing, deliberating and voting on a bill and deciding on promulgation of a law. In addition, it has the right to delegate its powers and supervise other legislatures in law making. On the other hand, there are some restrictions on the Standing Committee’s legislative power. It has no right to enact a constitution or modify an existing one. It is not entitled to draw up basic laws. Any of its supplements or amendments to laws enacted by the NPC should not contravene principles of the original. The NPC holds the power to cancel any inappropriate resolutions or laws made by its Standing Committee.
The Constitution and Law on Legislation grant the following major legislative authorities to the NPC Standing Committee:
l The power in enacting and amending laws;
l The power in interpreting the Constitution and laws;
l The power in supervising legislation; and,
l Other legislative powers.
Legislation of the NPC Standing Committee means an exercise of such powers within the limits of its authority.
The Standing Committee also exercises its legislative power delegated by the NPC. Many times since the 1950s, the NPC has delegated its Standing Committee to make laws. In the early 1980s, for example, it was authorized to pass and proclaim the Civil Procedure Law. The Standing Committee has been empowered to ratify and nullify some treaties and accords signed with foreign countries. Such powers have been used more frequently as China boosts its exchanges with other countries and plays a more prominent role in international affairs.
NPC Standing Committee’s Legislative Competence
According to Article 67 of the Constitution, the NPC Standing Committee exercises 21 functions and powers. Whenever the implementation of its functions and powers needs support of law, the Standing Committee is entitled to formulate a bill or resort to other legislative adjustments within its power limit. The following is a list of the NPC Standing Committee’s functions and powers:
1) To enact and amend laws, to interpret the Constitution and laws, to supervise the enforcement of the Constitution, and to deal with other legislative matters such as ratifying, nullifying or filing a bill;
2) To make plans for national, economic and social development, including state budgets;
3) To supervise the State Council, the Central Military Commission and supreme judicial organs;
4) To approve official appointments or removals of the State Council, the judicial organs, and overseas plenipotentiaries;
5) To make decisions on ratification or abrogation of treaties and important agreements with other countries;
6) To institute ranking systems for the military forces and diplomatic personnel;
7) To award state medals and titles of honor;
8) To grant special pardons;
9) When the NPC is not in session, to resolute on declaration of state of war and general or partial military mobilization;
10) To impose martial law nationwide or in a particular province, autonomous region or municipality directly under the Central Government; and
11) To perform other functions and powers assigned by the NPC.
According to the relevant articles of the Constitution (Articles 2, 9, 10, 11, 13, 16, 17, 18, 19, 31, 34, 37, 39, 40, 41, 44, 50, 51, 55, 56, 59, 72, 73, 75, 77, 78, 86, 89, 91, 95, 97, 99, 102, 104, 107, 109, 111, 115, 124, 125, 126, 130 and 131), a series of laws should be enacted by the state organs that exercise state legislative power. Some of them should be made by the NPC, while the others by its Standing Committee. This is a definition of the NPC Standing Committee’s legislative power regarding legislative contents.
Legislative Procedures of the NPC Standing Committee
1. Introduction of Bills
The Meeting of Chairmen of the NPC Standing Committee, State Council, Central Military Commission, Supreme People’s Court, Supreme People’s Procuratorate, the NPC special committees, and 10 or more Standing Committee members jointly, are entitled to propose legislation to the NPC Standing Committees.
Any bills proposed by these organs, other than those by group members, would be introduced at the Standing Committee meetings and receive deliberations. Bills get onto the agenda via variable routes:
Legislations proposed by the Meeting of Chairmen of the Standing Committee go to the agenda automatically;
Those recommended by the State Council, Central Military Commission, Supreme People’s Court, Supreme Procuratorate, or NPC special committees, are subject to decisions of the Meeting of Chairmen on whether they should be introduced and examined. They may also be viewed by relevant special committees first, which then report on the result. Decisions on whether it will be introduced into the Standing Committee would be made accordingly. If the chairmen’s meeting believes the bill is immature, it may recommend an improvement by the sponsor before it is introduced in the Standing Committee.
It is up to the Meeting of Chairmen to decide whether a members’ legislation would be placed on the agenda. It may also be referred to a relevant special committee for consideration first. Whether they will be placed on the Standing Committee’s agenda will be decided according to the committee’s advice. Explanations should be given to the Standing Committee or the sponsor on the reasons of any denial. During the special committee’s pre-viewing, the sponsors may be invited in as nonvoters and air their opinions.
Upon getting onto the Standing Committee’s agenda, the bill should be printed and distributed seven days ahead of the convention to examine it.
2. Deliberation of Bills
Normally a bill goes through three steps of examination (so-called “three readings”) before it is subject to vote. During the first reading, the sponsor is expected to give an introduction to the bill. The Standing Committee then discusses the legislation in groups. At the second reading, the Legislative Work Committee gives a report on the amendment of the draft and any remaining problems to a full session of the Standing Committee. Further discussions are then held in groups again. At the third reading, the Legislative Work Committee reports on the result of second round deliberations to the full house of the Standing Committee. In groups, the Standing Committee will debate on new amendments. During the whole deliberating process, multi-group meetings or full sessions may be called to debate when big issues come up.
Given little differences found on a bill under examination, it might be voted on after two readings. An amended draft would be voted on after a single round of viewing, if no controversy arises at all.
Similar to the procedures of the NPC, a bill may be examined by group sessions, special committees and the Legislative Work Committee, separately.
The group examination is the basic form. All bills introduced in the Standing Committee should go through group examinations. Sponsors’ representatives are expected to join the group sessions to listen to their views and answer inquiries. At request of groups, related institutions and organizations should provide consultation on the bill under discussion.
A consideration by special committees concerned is seen as a specialized examination. Each bill on the Standing Committee’s agenda has to receive such deliberation. The special committees suggestions should be printed and handed out at the Standing Committee session. Members from other special committees may be invited as nonvoters and consulted at the discussion.
When examining a bill, the Legislative Work Committee or special committees is expected to have a full session. Representatives of institutions and organizations concerned may be present and consulted at the request of the committees. Any major differences between the committees should be reported to the Meeting of Chairmen.
The Legislative Work Committee, relevant special committees and operations of the Standing Committee are supposed to collect opinions extensively on the bill being viewed. Forums, debates and hearings are held for this purpose. The draft should also be printed and distributed among institutions, organizations and specialists in the interest of submitted comments. These comments are then sorted out and reported to the Legislative Work Committee and special committees that are involved. If necessary, they will be distributed at a full session of the Standing Committee.
An important draft, upon resolution of the Meeting of Chairmen, may be publicized to seek public opinion. These opinions will be fed back to the Standing Committee.
The result of group discussions and views of people consulted, along with other information, should be sorted out and printed for reference by the Legislative Work Committee and other relevant committees. If necessary, it should also be distributed to the Standing Committee.
If the sponsor demands to withdraw a bill they have proposed before it is voted, explanations should be given. The examination of the bill stops with the Meeting of Chairmen’s assent and after reporting to the Standing Committee.
Provided big flaws are still seen after the three readings, the bill may not proceed for passage. Such a decision has to be recommended by the Meeting of Chairmen and agreed by a full session of the Standing Committee or a joint meeting of groups. The Legislative Work Committee and other relevant committees then conduct further studies on the bill.
The stalemate prolonging for over two years due to big controversies over the necessity and feasibility of the legislation may result in the bill dying. Such is the fate of a bill shelved for two years without coming back to the agenda. The Meeting of Chairmen should report the termination of viewing to the Standing Committee.
3. Passage of Bills and Publication of Laws
The amended draft, being examined by the Standing Committee and amended by the Legislative Work Committee, is ready for vote. The Meeting of Chairmen will bring forward a motion to vote on the bill at a full session of the Standing Committee. It is passed when a majority of the Standing Committee members mark it.
The draft then becomes a law, and promulgated by decree signed by the President of the People’s Republic.
For a Better Legislative Institution
For 20 years, the NPC Standing Committee has been struggling to exercise its actual, statutory and obligatory legislative power in a balanced way. Some of its legislative rights, especially in interpreting the Constitution and law, and in legislative supervision, have not been used efficiently. Meanwhile, it has been doing certain types of ultra vires legislations. These all need to be stemmed.
1. To give full play to its authority
The Constitution instructs the NPC Standing Committee to interpret the Constitution and other laws. Meanwhile, the legislature has the power to abrogate any inappropriate documents of law, such as administrative acts and local rules. But these powers have hardly been used so far. In fact, constitutional interpretation or legislative supervision has been devoid in China’s legislation practices. The following is an analysis of the cause and cruxes of the problems, as well as some countermeasures to fix them:
1) Weakness in interpreting the Constitution and laws
Time and again, the Constitution or law needs to be explained in an enforcement effort. The NPC Standing Committee has not been carrying out the responsibility satisfactorily due to the following:
a) There is a lack of concrete and specified provisions to facilitate the interpretation of the Constitution and basic law.
b) The supreme judicial organs have been interpreting documents of law in the NPC Standing Committee’s place.
c) The Standing Committee has not paid as much attentions to its law interpreting duties as it should.
The Law on Legislation enacted in 2000, then, furnishes a 6-clause description on an interpretation of law. It is a valuable amplification of China’s legal interpretation framework. The modernization of the system relies on i
ts further improvement and faithful observance of these provisions.
2) A number of the Standing Committee’s powers in legislative supervision have remained nominal. Many documents of law filed with the Standing Committee have not been properly studied. None of the administrative acts, local regulations, autonomous statutes or specific rules have been nullified so far. The impotency in the Standing Committee’s legislative supervision has been brought by these factors:
a) Legislation often means policy making. Supervision of it is not practically accepted by people in office in China because of the deeply rooted feudalist tradition of autocracy and centralized power.
b) The thinking of “the National People’s Congress is merely ‘rubber-stamp’” die hard. Under such thinking, it is difficult for the NPC Standing Committees to nullify any documents of law enacted by the central and local governments.
c) Some relationships have to be rectified for the legislature to perform its legislation supervisory power efficiently. These relationships include those between the political party in power, the government and the organ of state power, as well as those between central and local authorities.
d) The incomplete legislative institution also prevents the NPC Standing Committee from fully exercising its legislation supervisory power.
2. Extra Vires Legislations
Cases have been found where the NPC Standing Committee enacted laws by exceeding its power limits. This calls for countermoves to avert the threat against the country’s legislative endeavors.
According to stipulations of the Constitution, the NPC Standing Committee’s supplements and amendments to a law enacted by the NPC should not contravene the basic principles of the original. Yet, breaches have been found with the Standing Committee’s modifications. In one of its amendments to the Criminal Law, for example, some panel imprisonments have been altered to death penalties. It is an overstepping of power provided by the Constitution.
The Constitution ordains the NPC Standing Committee powers to enact and amend the laws while clearing NPC legislative authority. However, the Standing Committee has been enacting laws by transgressing the NPC’s authority in certain cases.
(China.org.cn September 28, 2003)
