It has taken more than 50 years for China to terminate its old-style legislation that had lasted for thousands of years and gradually transfer to a new system of legislation.
In retrospect, the trace of the past, of more than 50 years, was full of change and was a process of affirmation to negation, and then to the negation of that negation. During some periods, there were ups and downs in making and removing laws. It was not until the last 20 years that there has been a new period of stable development. And, in this new period, along with stable and fast development, almost in every link and aspect of progress, there has emerged the motility and necessity for the completion of reform.
Over half a century ago, marked with the founding of the People’s Republic, a new type of legislation based on the people’s interest appeared in China for the first time in history. This new type of legislation, obtaining great achievements in fulfilling the unfinished tasks of the democratic revolution, stabilizing the new administrative power, building a new society, guaranteeing people’s interest, and in particular, in ensuring and promoting the structural reforms of the country’s economic system and pushing forward economic and social developments in the latter period.
Nevertheless, China’s legislation suffered repeated setbacks during more than 50 years. The road it took for a long time could not be called a successful one. In the early years following the founding of New China in 1949, the legislation was active, but it carried the marks of a special historical period. Though it gave birth to the rarely advanced Constitution in 1954, in general, it left little positive influence for the legislation in later periods. After 1956, when China’s legislation could have obtained a chance for stable development, it not only missed this chance but began to suffer a fate of being sluggish, twisted, and stagnated, to the point of almost being abandoned. This tragedy lasted for 22 years until around 1979, when Chinese legislation reached a favorable turn leading to flourishing. Since then, while making consistent efforts in improving itself, the legislation has eventually become a better and more efficient link in the whole legal system of China. Today, it is an important precondition and foundation in building a country of the rule of law.
In retrospect of the past 50 years of China’s legislation, greater significance and higher value of the experience is not that it is useful in many respects but that it exposed almost all the problems that could have been encountered during the legislation’s striving for development under the specific national conditions of China. So, the legislation of this period is very valuable in the legislative history of the People’s Republic and the evolution of legislation as a whole.
The process of the legislation of New China was in accordance with the birth of the People’s Republic. The 1st Plenary Session of the Chinese People’s Political Consultative Conference (CPPCC) held in September 1949, on the eve of the founding of the People’s Republic of China, occupied an extremely important position in China’s contemporary legislative history. It passed the Law of the Organization of the Central People’s Government, which served as the legal foundation of the existence of the new state administration, and the Common Program, which functioned as the temporary constitution. The Common Program declares that all laws and decrees oppressing the people should be abolished and laws and decrees for the protection of the people should be worked out. From the angle of legislation, the most brilliant achievement of this conference was that it announced the births of both the People’s Republic and the new legislation.
Two major events took place during this period of the legislative history of the People’s Republic: one was that the 1st Session of the 1st National People’s Congress was formally held; the other was that the first socialist-type constitution in China’s legislative history was born. At the 1st Session of the 1st National People’s Congress held in 1954, the Constitution and a series of laws, including the Law of the Organization of the National People’s Congress, Law of the Organization of the State Council, Law of the Organization of Local Governments, Law of Organization of the Court and Law of Organization of the Procuratorate, were passed.
During this period, China’s legislation went through a change from a considerable degree of power sharing between central government and localities to a high-degree of centralization. For the localities, it was a process of ups and downs with numerous establishments and abolitions. Before the opening of the 1st National People’s Congress, the legislation structure in China allowed the central government to divide a considerable part of the legislative power to localities. At the central level, although the CPPCC had played the role of the National People’s Congress (NPC) in legislation and worked out the Law of the Organization of the Central People’s Government, it made no more laws after its first session in 1949. The Central People’s Government had the right to make laws and promulgate decrees both in law and in practice. The regulatory documents promulgated by the State Council were actually taken as laws; and, in fact, it approved many local laws and regulatory documents. In localities, the big administrative areas, provinces, cities and counties were all permitted to make decrees and specific regulations. Meanwhile, from the level of ethnic autonomous administrative townships upwards, ethnic autonomous governments and organs at each level all had the power to make regulations.
In 1954, after the nationwide-elected National People’s Congress was held, China’s legislation dramatically changed to a highly centralized structure. The National People’s Congress was the only organ to conduct state legislation, and which had the power to amend the Constitution and make laws; the Standing Committee of the NPC had power to interpret laws and work out regulations; the chairman of the state (later to be called the president) promulgated laws and regulations; the State Council’s administrative measures, decisions and decrees were considered as state laws and regulations, and were compiled into the Collection of Laws and Regulations of the People’s Republic of China. In local administration, except for ethnic autonomous localities that had the right to make their autonomous regulations and specific regulations, others were all deprived from the right to make laws, regulations or specific regulations.
During this period, remarkable achievements were made in the building of the legal system. In a situation where hundreds of new things were awaiting to be built on the ruins of the old and many problems needed to be tackled, it was hard to concentrate on legislation. And there was little experience in working out nationally unified laws, regulations and decrees at that time. But legislative activities were still carried out in a large scale and rather rapidly. Therefore, there emerged the first and only climax in the first 30 years of New China’s legislation. It readjusted a wide range of social relations and eventually formed a legal system to include the Constitution, Administrative Law, Criminal Law, Criminal Procedure Law, Marriage Law, Economic Law, Labor Law, Law of Social Welfare, as well as laws concerning science and technology, education, culture, military affairs and ethnicity. Some of the specific laws, such as the Constitution, the Marriage Law and Law of Military Affairs, had state laws as the mainstay. The Constitution had become a rather large group of laws to include the Constitution and constitutional laws or documents.
However, there were many shortcomings in the legal system of this period. Many things were not regulated through law as they should have been: as a big agricultural country, China had no agriculture law worked out; the Civil Law, which is closely related to citizens’ rights and interests, did not exist in the legal system; the Criminal Law and Civil Law were both still in the making. Most of the established departmental laws lacked a legal backbone at their core or foundation. Many of the laws worked out during that period were, to a large degree, temporary, trial, or transitional, and many of them became unsuitable very soon after. But they could not be amended, supplemented or abolished in time. As a result, due to the lack of experience and the limitation of historical conditions, the legal system of this period showed its insufficiency in many respects, including its coordination with social development, its internal coordination, learning from past and foreign experiences, and, in particular, in realizing scientific development and modernization.
The legislation in this period suffered not only over-decentralization in the beginning, but also the unclear division of power spheres between central and local authorities and that between the central legislative bodies. Dereliction of duty and over-stepping one’s power were both in obvious existence. The construction of legislation was not strengthened enough; as no clear and specific regulations in the form of law had been made on main links in the procedure of legislation, there was no legal program for many legislative activities to follow; it was even harder to find a law to abide by while working through certain legislative steps, such as the preparatory work for formal legislation, the afterward work for completion of the legislation, and the amendment, abolishing and interpretation of laws. As for the relations between the Communist Party and the legislation, the government and legislation, the court and legislation, and a leading individual with the legislation, there had been no decisions made and confirmed as laws on a basis of proper handling. Few of the numerous other systems had been legalized. There was no existence of a law on legislation, law on legislative procedures, or law of legislative standard, and nobody ever bothered to ask about them.
As for the technology of legislation, it was obviously backward. To many of the legislation staff, “legislative technique” was a new concept that they had never heard of. There was no consideration, either to strategy or to quality, in law making. In decision-making, there was almost no difference between that of legislation and that of politics and administration. The internal structure of law was not scientific and complete, with too many terms and forms that made it complicated and impenetrable. The standardization of law was imperfect, with a lack of consequence models. There were regulations for what a man with power should do and should not do, but no attention had been paid to what kind of responsibility should be taken by those who went against these regulations. The methods of classifying, editing and compiling of laws were backward too. When there was little timely attention paid to the planning of legislation, law making often could not tell what was urgent and what was not. It was out of the question to talk about a legislative forecast, coordination, information feedback and the application of scientific measures. These problems rendered negative influences to the legislation in later years, even up to today.
The second period of China’s legislation was from 1957 to the late 1970s. China’s legislation suffered a severe setback in this period. During the 20 years from the enlarged Anti-Rightists Campaign in 1957 to the end of the “cultural revolution” in 1976, disturbances arose repeatedly in China, making the country’s legislation, which, like many other causes, could have developed smoothly, but instead suffered heavy losses. Though the CPC 8th National Congress made the decision that the state should work out complete laws eventually and systematically according to the need, it did not factually take the building of democracy and a legal system, including legislation, as a component of a strategic target basis and fundamental task of socialist construction. Due to various reasons, after socialist transformation was finished, the ruling Party often handled non-class-struggle problems as class-struggle issues while observing and solving new contradictions and problems that emerged in the areas of politics, economy and culture along with the progress of socialist development. And, facing this new situation, it often habitually used the outdated method and experience of a thunderstorm-typed massive campaign that was familiar. As a result, class struggle was seriously generalized, and a series of Leftist policies on urban and rural economic constructions and class struggle came into being. Meanwhile, the principles of collective leadership and democratic centralism which had been guiding the political life of the Party and the state were increasingly weakened and even sabotaged. Because democracy in the Party and in the country’s political and social lives had not been systemized and legalized, or, in some instances, although there were laws, there was no authority, the Party’s power was over-concentrated to one person. Under such circumstances, it was unavoidable that political tragedies and economic mistakes took place repeatedly. Since class struggle was considered the most important lever of national and social development, and, when power became over-concentrated, there was no way to effectively check it to avoid the negative consequence, it was impossible for the legislation and even the legal system as a whole not to go astray and stagnate for a long time. As a result, the legal characteristics that were badly needed for a modern country were drowned in backward man-ruling thinking and behavior.
During this period, the National People’s Congress, the only organ that had legislative power, did not make a single law except for passing the Constitution of 1975. Very few regulations and decisions came out from the Standing Committee of the NPC either, which had the right to work out decrees and specific regulations. As for the localities, except for ethnic autonomous regions, others had no legislative power at all. In this period, central and local legislative activities went from comparatively active to sluggish and stagnation until almost dying out. At that time, only the State Council and its affiliated ministries and commissions continued to make regulatory documents, though it had never been defined in the Constitution or the Law that the State Council had that kind of legislative power. Despite the fact that their regulatory documents were taken as law, they did not belong to the category of law either legally or theoretically. Therefore, their publication could not be considered as the practice of legislation.
The activities of the National People’s Congress were abnormal too. During the 10 years from February 1965 to December 1974, in particular, it held not a single meeting. There were altogether only 100 plus clerks on the payroll of the Standing Committee of the NPC after 1959.
Referring to the theory, system and technique of legislation, compared with that of the previous period, there was no progress but simply retrogression instead.
A New Turning Point
Two decades passed before China’s law making endeavors found a historic turning point. Psychologically, the nation was calling for the rule of law after suffering a long turmoil during 1966-76. The resolutions of the 3rd Plenary Session of the 11th CPC Central Committee brought about actual changes. Drawing lessons from the past, the Party assembly in 1978 decided to put on the agenda the building of a socialist democracy and the drive for legalization. China’s legislative endeavors then started a new page.
Pioneering the serial changes was an improved system of legislative power definition. The Law on Local Organization, passed in 1979, paved the way for restructuring China’s legislative system. The law empowered the provincial people’s congresses and their standing committees to draw up their local rules and regulations.
The 1982 amendment to the Constitution, however, not only confirmed the achievements of the Law on Local Organizational, but propelled them further. The amendment prescribes that:
l The National People’s Congress and its Standing Committee exercise the national legislative powers jointly;
l The State Council is entitled to enact administrative acts;
l The ministries and commissions under the State Council can draw up relevant rules and regulations; and,
l The ethnic autonomous localities are enabled to make their own acts and special rules.
The amendments to the Law on Local Organization in 1982 and 1986 extended local legislative powers further to provincial capital cities, the people’s congresses and their standing committees of municipalities and large cities at the approval of the State Council. The amendments provided local governments with actual powers to draw up rules and regulations of their authoritative competency. The NPC and its Standing Committee were enabled to delegate the State Council and local governments to enact special statutes. As Hong Kong and Macao returned to China in 1997 and 1999, respectively, legislation of both special administrative districts added new elements to the legislative power definition system.
The constitutional Law on Legislation, passed in March 2000, accepted all these changes as parts of the country’s legislative institution. The law defined the ownership of national legislative powers, as well as the powers to enact government administrative acts, local rules and regulations, autonomous regional acts, special statutes, procedures, delegate legislations, and laws of the special administrative districts.
The comprehensive definition system features both a central leadership and power diversions to a certain extent. The system was designed to match the nation’s economic restructuring. It was an achievement with far reaching significance in China’s legal system reform.
Meanwhile, legislatures became stronger during this period:
First, standing committees of people’s congresses at all levels were enhanced. To date, the NPC Standing Committee co-exercises national legislative powers with the NPC. The NPC special committees work under the Standing Committee when the NPC is off session. All the people’s congresses above the county level have standing committees. Members of the congress standing committees, either national or local, are prohibited from taking positions with government institutions or judicial and procuratorial organs. They are supposed to gradually become full-time members in the committees.
Second, special committees and agencies have been set up under people’s congresses at various levels. Today, the NPC has nine special committees:
The Legislative Work Committee,
The Committee for Ethnic Affairs,
The Financial and Economic Affairs Committee,
The Committee for Education, Science, Culture and Health,
The Committee of Foreign Affairs,
The Overseas Chinese Affairs Committee,
The Committee of Internal and Judicial Affairs,
The Committee of Environmental and Resources Protection, and,
The Committee for Agriculture and Rural Affairs.
Even more may be found to do research on; examine and draw up legislations.
Meanwhile, people’s congresses of provinces and autonomous regions, municipalities directly under the Central Government, autonomous prefectures and cities large enough to have districts are permitted to set up their own special committees. These committees function locally like their counterparts at the central level. Special agencies under people’s congresses and their standing committees have been operating from the central down to local levels. The State Council and local governments have also established their legislative offices to play important roles in the nation’s legalization.
Third, the legislative operating mechanism was improved. The NPC and its Standing Committee adopted orders of procedures. So do their local counterparts. Laws have been enacted to regulate the exercise of legislative powers in law making. The Law on Legislation summarized and sealed the new operating mechanism.
The number of laws enacted during the last 20 years was phenomenal. Each of these years saw a bulk of new laws and regulations written. Consequently, some 400 laws, 1,000 administrative acts, 10,000 local rules and regulations and 30,000 administrative procedures were enacted or amended by the end of 2002. These documents regulate almost every basic area of social behavior in the country.
The areas regulated by law have increased in the mean time. A framework has been built up with these basic areas--the Constitution, administrative acts, civil and commercial laws, economic laws, social order laws, criminal laws and procedural laws--along with some other groups of laws. The whole system is based on an improved Constitution.
Overall legislative efforts have tried to back the nation’s economic reform, opening up and invigoration. The achievements in legislation have protected and promoted smooth economic growth and the restructuring of the economic system.
As the nation sets a socialist market economy as the goal of its economic reform, making laws to regulate market behavior has become the country’s strategic priority. Special attention, therefore, has been paid in formulating the following kinds of laws:
l Laws to regulate market participants, defining their rights and obligations;
l Laws to regulate relationships among market participants in a bid to ensure fair competition and good market order;
l Laws to improve the government’s macro-economic control to ensure a healthy economic growth and restrain negative factors; and,
l Laws to generate a social security system to cope with problems like bankruptcy and unemployment, to provide relieves, and to retain social stability.
A legal framework has been taking shape. But the goals of the country’s legislative efforts are far from being fully accomplished. Weaknesses have been found in these aspects:
With an incomplete legislative law system, many law making activities find no laws to facilitate them. Legislation, in such cases, has to follow conventions, wills of leaders, or even act according to circumstances;
Because of certain problems, and loopholes and deficiencies in legislative procedures, some law making efforts are hard to abide by completely. The Law on Legislation concentrates on summarizing the nation’s law making achievements. But it falls short in taking advantage of the proven experience of other countries. Further attempts should be made if China is to hit the target of joining international practices while keeping its own characteristics; and,
China’s legislative efforts have been subject to the strong influence of the political parties, the Central Government, VIPs, major events and even some sudden mishaps. These effects are still outweighing or challenging the authority of written laws in many legislative practices.
All these call for a profound change and better implementation of legislative institutions. Painstaking efforts are necessary in guiding China’s legislation onto a legalized, democratic and scientific track. To join the international mainstream of legislative practices while keeping its own tradition, China’s legislation has to shake off these damaging influences.
Progress in the skills of law making has been embodied in legislative endeavors. However, further improvements are called for:
To make the legal system more comprehensive with laws compatible, consistent and tuned up to work with one another;
Civil and commercial laws, economic laws and administrative acts should be adjusted to conform with each other;
Both the inner structure of each law and the universal configuration of the law system need to be polished;
Provisions in the law should be more specific, accurate and serviceable;
Scientific and tactical approaches should be employed in the whole process of legislation – brainstorming, decision-making, forecasting, planning, drafting, enacting, amending, replenishing, annulling and interpreting; and,
The social environment and legal foundation should be well studied prior to legislation change. The ways, procedures and expectations of legislation should be carefully designed. Bills proposed should be better organized, filed and compiled.
Looking back at China’s legislative efforts, both successes and setbacks can find their historical and cultural roots. But direct and significant impacts are ideological and economic. The process is even more influenced by government strategies and policies. It is confined by political structure and restricted by present conditions of the legislatures, too.
A study of all these factors challenges China’s legislative past, present and future with the following questions:
1) Should China be governed by law or by will of man? What is the role legislation should play in the country’s pursuit of the rule of law and building of legal institutions?
2) How should China’s legal endeavors be tailored according to its national conditions?
3) How should the leadership of the party in power and legislation be balanced?
4) What should China’s legislative policies be based on?
5) What theological principles should China’s legislative practices follow? How should we balance conventional legislative theories with new legislative concepts?
6) How should the country’s legislative efforts be programmed and departmental laws be planned in a scientific way?
7) What kind of legislative power definition system and legal source system should be build?
8) How should the legislature and legislative working agencies be configured?
9) What type of legislation operative mechanism should China adopt?
10) How should the nation’s legislative and executive efforts be balanced?
11) How should lawmaking and enforcing efforts be joined together?
12) What is an appropriate relationship between the central and local legislative endeavors and between higher and lower level legislations?
13) How should the legislative techniques be upgraded? What tactics should be adopted in law making?
14) How should a mechanism of legislative evaluation, supervision and perfection be amplified?
15) How should the legislative mechanism be viewed and how to improve he evaluation, supervision of the mechanism?
16) How to correctly handle the relationship between China and foreign countries in legislation and how should China promote international exchange regarding legislation?
17) How should the Law on Legislation be evaluated and improved?
(China.org.cn September 28, 2003)