1. The Legislation System
“Legislative system” in this text is the general term for the activities and principles to be followed during the process of legislation and regulation making. It is an important part of state laws and regulations.
A contemporary legislative system usually consists of: (1) a legislation structure; (2) a main organ of legislation; (3) a legislative right; (4) a legislative operation; (5) the supervision of legislation; and (6) the relationship between legislation and relevant areas.
2. Legislation Structure
The type of legislation structure a nation adopts is not based on its people’s subjective fondness, but on its objective factors. For the legislation as a whole, legislation structure means a concept representing history and national conditions. Today, there is no longer an autocratic monarchy, and structures of that kind allowing the monarch to hold absolute power in legislation have vanished. Instead, a series of democratic and legal systems have been developed. However, because of varying national situations, there are still many differences among each country’s legislation structure, and some of them may be strikingly in contrast with one another.
China’s current legislation structure has its own characteristics. First, in China, the power of legislation is not held by a single power organ or one particular person. So it does not belong to the category of a singular legislation structure.
Second, China’s legislative power is carried out by two or more power organs, which means the country has multi legislative powers, including at national level, that for administrative laws and local laws, each subject to different organ authority. This also means that these authority organs do not hold the same legislative power and as such it does not belong to a compound legislative structure either.
Third, China’s legislation structure is not one of checks and balances, where the legislation, administration and court stand independently to restrain one another. China’s president and premier of the State Council both come from the National People’s Congress. The president, following the decision of the National People’s Congress (NPC), publicizes laws. The premier, however, does not have the right to approve or reject laws made by the NPC. Administrative laws and regulations shall not go against the laws passed by the NPC; local laws and regulations shall not go against the national laws and administrative regulations; and the NPC has the power to withdraw administrative laws and local regulations that go against the laws it has worked out. This shows the internal relations of China’s legislation structure – one of subordination, unification and supervision. It does not represent a relationship of restraint.
China’s current legislation structure has its distinctive characteristics. One of them, from the angle of the legislative power-division, is its centralization and division of power, or a certain degree of decentralization; the structure exists at several different levels and is the combination of many categories. Under this system, the top-powered state organ or its standing body conducts a unified leadership; the State Council holds great power and local governments have limited power.
Centralization with a certain degree of decentralization means, on the one hand, the most important legislative power, i.e., national legislation – that of the Constitution and state law – belongs to the central authorities, which takes a leading position in the whole legislation structure. National legislation can only be carried out by the organization of supreme state power and its standing organ while neither local organization nor any other organ has such power. No administrative and local law or regulation is allowed to contravene the Constitution and state law. Though in some exceptions, some laws and regulations of autonomous regions may not be completely in line with the Constitution and state law, while formulating these laws and regulations, as a practice of regional autonomy, the regional legislative organization must abide by the Constitution, the Law of Self-government in Minority Autonomous Regions and the Law of the People’s Republic of China on Legislation (Law on Legislation), and report to the Standing Committee of the NPC for approval or record keeping. This system in fact guarantees the leadership of national legislation in the drawing up of autonomous regional laws and regulations. On the other hand, it means that the country’s legislative power is conducted by multiple sections of both central and local organizations. It reflects the most profound progress, or change, of China’s current legislative system. The character of multi-level existence and multi-category combination further demonstrate its decentralization to a certain degree.
Multi-level existence means the National People’s Congress and its Standing Committee make state laws; the State Council and its relevant departments draw specific regulations respectively; and relevant authentic organs of ordinary localities and governments formulate local regulations. The practice of legislation and the authenticity of the laws and regulations made by the above mentioned three groups of organizations are of different levels, but the laws and regulations of different levels co-exist in China’s legislation system.
Multi-category combinations mean the above mentioned legislation, and the laws and regulatory documents they formulate are different in category from the legislations and autonomous laws and regulations worked out in ethnic autonomous regions and that of the special economic zones and the Hong Kong and the Macao Special Administrative Regions. The reason why there is the term “multi-category” besides that of “centralized leadership” and “multi-level” is that the latter terminations cannot reflect the complete characteristics of China’s current legislation structure. This is because, first of all, regional autonomous laws (autonomous law and specific regulations) and laws of the Special Administrative Regions of Hong Kong and Macao are of local laws and regulatory documents in concept, but are different from other local laws and governmental regulations. It may not be right to put them in the same category as legislation. Second, in terms of legal authenticity, administrative laws and regulations are usually effective nationwide, but regulatory documents formulated by autonomous regions and special administrative regions do not work in other parts of the country, which means administrative laws and regulations are one level higher than those in the latter two groups. However, the regulatory documents of autonomous regions and special administrative regions are not necessarily in accordance with administrative laws, as required by other local laws and regulations. In this respect, it is not proper to say that they are of a lower level compared with the administrative laws and regulations. They should not be considered as equal to administrative laws and regulations and higher in level than other local laws and regulations either. Based on all these reasons, it is necessary to use the term “category”.
China’s current legislation structure is deeply rooted in the specific conditions of the nation. First, China is a country where the people are their own masters, so laws should reflect their will. Only when the National People’s Congress, the highest power organization of the country, and its Standing Committee conduct the right of state legislation and take unified leadership in the whole country’s legislation, in the making and changing of state and social laws, which represent the nation’s basic system and relationship, can the nature of Chinese legislation meet the demand of national conditions.
Second, China is a country with a vast territory and a huge population. There are big gaps between economic and cultural developments of different regions and ethnic groups. It is impossible to rely on state legislation alone to solve complicated problems of various areas. Under many circumstances, it is hard for the state to make laws in many situations. It shall not work if the laws are made too vague, but it’s impossible to work out all details. So, to meet the demands of its national conditions, in addition to using state legislation as a unified standard to solve fundamental national problems, it’s necessary to have a certain degree of decentralization in legislation to let relevant sections make administrative laws, local laws and regulatory documents for autonomous regions and special administrative regions.
Third, at present, China adopts a market economy structure, which takes a state-owned economy as its mainstay but also allows the co-existence of other economic forms. Referring to politics, it practices a system of democratic centralism. Its economic and political characteristics plus those special conditions in geography, population and ethnic groups, as well as the imbalanced development of different regions, decide that within the legislative system, it must adhere to the centralized leadership on the one hand, and on the other hand, it must give full play to democracy and let other sectors take part in legislation and correctly handle the relationships between central and local governments.
Fourth, referring to historical and new experiences, the Constitution, adopted in 1954, changed the situation that had existed in the early years of the People’s Republic of China in which large administrative areas, provinces, cities and counties all had the right to make relevant laws, decrees and regulations. It put into practice the principle of centralization in legislation. At that time, this was necessary for stabilizing the unity of the country and fighting against over-decentralization. However, the over centralization of legislative power was neither in favor of local development, nor the concentration of state efforts. Furthermore, it encouraged bureaucratic behavior. Historical experience showed that it was necessary to practice a certain degree of decentralization in legislation. Meanwhile, in recent years, the rapid development of society and people’s lives, especially the dramatic progress of a market economy, put forward many demands for legislation. It was impossible for state legislative organs to complete the urgent and laborious task alone. Over the past number of years, thanks to measures taken in legislative reform and the adoption of current legislation structure, China has solved numerous specific issues, promoting the country’s new economic construction and progress in democracy and its legal system.
The last and also most important point is that one of the national conditions, China’s historical background, also requires a legislation structure with a certain degree of decentralization.
(China.org.cn September 28, 2003)