Scholarship Highlight: The NPCSC Legislative Affairs Commission and Its “Invisible Legislators”

The Legislative Affairs Commission (LAC; 法制工作委员会) under the NPC Standing Committee (NPCSC) is such a unique institution that one can hardly find an equivalent in another country’s legislature. Consisting mostly of unelected and unidentified members, the LAC works in secrecy, making all decisions behind closed doors. In fact, there is not even a website detailing its functions and organizational structure. The LAC’s employees outnumber NPCSC members, and unlike the latter cohort, they all work full-time and include more legal experts than the staff of any other NPC body (Lu 2013). Their decisions play significant roles throughout the legislative process, from the agenda-setting stage to deliberations—and even after laws are enacted. One Chinese scholar thus aptly dubs the LAC staff “invisible legislators” (隐形立法者) (Lu 2013, p. 74). Some even worry that they may have usurped the powers of elected NPCSC members, thus becoming de facto legislators (Chu 2017).

Here in the third installment of Scholarship Highlight, we provide an overview of the LAC—an essential yet peculiar institution under the NPCSC—and its roles in the legislative process.

Table of Contents

  1. The LAC’s Past and Present
  2. The LAC’s Legal Status
  3. The LAC’s Roles
  4. Conclusion
  5. References

The LAC’s Past and Present

Establishment

In February 1979, the NPCSC established under itself a Legislative Commission (法制委员会)—the LAC’s predecessor—to assist with rebuilding China’s legal system in the aftermath of the Cultural Revolution. This new commission was a large, high-level institution headed by Peng Zhen (彭真), who is considered one of the founders of China’s modern legal system. (Peng was succeeded by Xi Zhongxun (习仲勋), Xi Jinping’s father, in 1981.) The commission was staffed by 80 highly regarded legal talents, many of whom would later become state leaders and leading scholars (id.). And it was given by the Communist Party leadership broad discretion in drafting laws without having to ask for the Party’s instructions (Wang 2016). It thus was able to achieve the “miracle” of drafting and submitting seven laws in merely three months (Lu 2013, p. 80).[1]

In 1982, the NPC enacted the Organic Law of the National People’s Congress (“NPC Organic Law”), authorizing the NPCSC to “establish working commissions [工作委员会] when necessary” (art. 28). Exercising such an authority, the NPCSC in September 1983 decided to rename the Commission “Legislative Affairs Commission,” which is still in use today. (Although the word “工作” in the LAC’s name literally means “working,” it is usually translated as “affairs” in this context.)

Structure

In its early days, the LAC had only three subdivisions, or offices: a Law Office (法律室), a Policy Research Office (政策研究室), and an Administrative Office (办公室).  Over the past several decades, its offices have become increasingly diversified and specialized. In 2007, for example, the LAC established a Legislative Planning Office (立法规划室) to fulfill its then-newly acquired responsibility to draft legislative plans. Currently it has a total of ten offices—six subject-matter-oriented and four task-oriented (their respective year of establishment is indicated in parentheses):

  1. Criminal Law Office (刑法室; 1983);
  2. Economic Law Office (经济法室; 1983);
  3. Civil Law Office (民法室; 1987);
  4. State Law Office (国家法室; 2004);
  5. Administrative Law Office (行政法室; 2004);
  6. Social Law Office (社会法室; 2011);
  7. Administrative Office (办公室; 1979);
  8. Research Office (研究室; 1983);
  9. Office for Recording and Reviewing Regulations (法规备案审查室; 2004);
  10. Legislative Planning Office (立法规划室; 2007).

Personnel

Like its institutional structure, the LAC’s workforce has also been steadily expanding. While there is no official number, a 2008 report put its staff size at around 170, which would make it the largest working body of the NPCSC (Lu 2013). Our interviews with two LAC staff members[2] in 2014 confirmed that the LAC was employing more than 200 people.

The current LAC leadership includes one director and four deputy directors. The director holds a ministerial-level position and more often than not also serves as a vice chair on the NPC Constitution and Law Committee (宪法和法律委员会, changed from “Law Committee” (法律委员会) in March 2018). Apart from the director and very few deputy directors, the rest of the LAC staff are unelected bureaucrats.

Most of the LAC’s staff members are considered to have received rigorous legal training and gained professional expertise. Again, while there is no official data on their educational backgrounds, Lu’s (2013) research on members of the LAC’s provincial counterparts suggests a high proportion of law-degree holders among the LAC’s own staff. Recent NPCSC hiring practice[3] provides further support: LAC positions generally require candidates with law degrees—and often at graduate level (China awards undergraduate-level law degrees). With its stable and highly professional staff, the LAC is therefore well-equipped to take on the onerous daily legislative work, compensating for two of the NPCSC’s institutional deficiencies: that its members mostly serve part-time, and that it meets only every two months (Chu 2017). 

As mentioned above, the LAC was established under article 28 of the NPC Organic Law as a working commission. In practice, it is more commonly characterized as a “working body” (工作机构) of the NPCSC. The late Professor Cai Dingjian (蔡定剑) (2003, p. 476), a leading authority on the NPC, notes:

A working body can be considered a type of semi-functional body [半职能机构]; it can exercise certain statutory authorities, but may not independently issue enforceable [执行性的] documents, directives, or orders in its own name—its [role is to] provide services to functional bodies [职能机构]. Thus in essence it is also a kind of service body. . . . Working bodies focus on providing functional bodies with direct work services.

In other words, the LAC is a bureaucratic agency under the NPCSC with only supportive function but not independent legislative authority.[4]

The LAC’s Roles

As with its internal structure, there is no official description of the LAC’s ever-evolving roles. Some of the LAC’s responsibilities were summarized in a semi-authoritative article on the NPC website (hereinafter “NPC website article”). More recently, the 2015 amendment to the Legislation Law codified many functions the LAC had been performing by conferring powers on a “working body of the NPCSC”—which, in the legislative context, means the LAC.

Below we have summarized the LAC’s major roles based on the NPC website article and the Legislation Law and have divided these roles into three temporal categories: pre-legislation, legislation, and post-legislation. In each category, we will highlight particular roles that have attracted our attention as well as scholars’ discussions.

Pre-Legislation

  1. Draft the NPCSC’s five-year and annual legislative plans, subject to the Council of Chairmen’s review and approval (Legislation Law art. 52);
  2. Supervise the implementation of these legislative plans as directed by the NPCSC (id.);
  3. Study and handle NPC delegates’ and CPPCC members’ suggestions, criticisms, and opinions concerning legislative affairs (NPC website article);
  4. Research legal theories, legal history, and comparative legal studies relating to the NPC’s work (id.).

In drafting five-year legislative plans, the LAC generally follows a three-step procedure: consultation, analysis, and prioritization.[5] To prepare the 12th NPCSC’s five-year legislative plan (released in late 2013), for example, the LAC first actively solicited proposals from a wide range of parties, including NPC delegates, government agencies, and experts, while also paying attention to online public opinion, according to an LAC official. Government agencies, moreover, were required to explain their proposed legislation’s “necessity, feasibility, main content, legislative timing, relationship with relevant laws, and drafting schedule.” The LAC then analyzed the proposals, particularly focusing on the bills submitted by NPC delegates during the 2013 NPC session (it also held seminars to hear the delegates’ views after having formulated a draft plan). Lastly, it prioritized the projects, dividing them into three categories based on their urgency and available resources. Finalized five-year legislative plans must also be approved by the Party leadership.

The LAC’s central role in setting the legislative agenda with legislative plans has made it a powerful “allocator of legislative resources” (Lu 2013, p. 83). Since these resources are extremely limited—for example, the NPCSC convenes only every two months—some legislative projects must be shelved or even outright rejected. The LAC thus becomes a key actor that decides the winners and losers in this legislative “battle” (id.), subject of course to the NPC leadership and Party policies. These decisions “in large part” depend on the LAC staff members’ “individual and collective motives, values, and mentalities” (id.). But the LAC is still heavily influenced both by strong players (“banks,” for instance, said a former LAC deputy director) and by external events (China’s accession to the WTO, for instance, required prioritization of intellectual property laws) (June 2014 interview). As this deputy director put it, the drafting of legislative plans is essentially an “iterative” process of “balancing [competing] interests” (id.).

Legislation

  1. May participate in other entities’ drafting process in advance; may draft important laws that “are comprehensive in nature, affect the overall picture, or are fundamental” (Legislation Law art. 53);
  2. Solicit opinions on draft laws from various parties, including NPC delegates, standing committees of local people’s congresses, government agencies, and relevant organizations and experts via methods such as seminars (座谈会), debate sessions (论证会), and public hearings (听证会) (id. art. 36);
  3. Collect and organize solicited opinions and NPCSC members’ opinions expressed during group discussions; distribute these materials to the Constitution and Law Committee and other relevant special committees and, when necessary, to NPCSC sessions (id. art. 38);
  4. Assess draft laws scheduled for a vote in terms of the feasibility of major statutory schemes, timing of their promulgation, social effects of their implementation as well as any potential issues (id. art. 39);
  5. Propose amendments to draft laws under review based on various parties’ opinions (NPC website article);
  6. Standardize the wording of draft laws and their use of legal terms before they are voted on (id.).

As part of the national legislature, it is not surprising that the LAC can act as the drafter of bills (but not the submitter, which, within the NPC, is limited to the Council of Chairmen and special committees under the Legislation Law). For instance, the LAC drafted the still pending amendment to the Criminal Procedure Law, which was submitted for deliberation by the Council of Chairmen.

What is more interesting is how the LAC, a mere information collector based on the text of the Legislation Law (see #2 and #3), is able to act as an information processor that proposes amendments (see #5)—a role that by contrast is not found in the Legislation Law. One crucial factor that makes such a transformation possible is the so-called “uniform deliberation” procedure (统一审议) used by the NPC(SC). Under the Legislation Law, only the Constitution and Law Committee can conduct “uniform deliberations” of a pending bill by considering opinions from all sides and then submit a revised version of the bill to the legislature, along with reports stating reasons for any changes made (art. 33). In other words, no other organization or individual has the power to submit amendments for discussion or a vote. NPCSC members can only express their opinions during group deliberations,[6] which are recorded and summarized by the LAC.

The Constitution and Law Committee, however, has only 18 members, 13 of whom are only serving part-time. It thus delegates the burdensome daily work to the LAC, which now in practice not only collects opinions from different parties and summarizes them, but also proposes to the Constitution and Law Committee suggested amendments to pending bills based on those opinions. During this process, it is almost inevitable that the LAC needs to interpret, evaluate, and integrate the opinions received. Some scholars have found that, as the one controlling the information flow, the LAC is able to “filter out views with which NPCSC leadership disagrees,” thereby “imposing the will of the NPCSC’s or LAC’s leaders on” other NPCSC members (Chu 2017; see also Cai 2004).

The LAC’s central role in information processing has also made it “increasingly the target of lobbying efforts” (Dowdle 1997, p. 43). Those that lost in earlier stages of legislation hope to influence the LAC in the later stages of deliberation and revision. The LAC in fact encourages their inputs and was the first central government organ to “openly acknowledge the value of pluralist political dynamics” (id.). According to our 2014 interviews with the LAC staff, the LAC has indeed devoted substantial resources to soliciting views from different sides, in particular through the public comments process.

Since April 2008, it has become the norm that most pending legislative bills are released online for public comments after their first (sometimes second and even third) review.[7] After each round of public consultation, the LAC will prepare an internal brief[8] (简报) summarizing and categorizing the submitted comments, which would serve as the basis for some of their proposed amendments. The briefs are reviewed internally within the LAC and then submitted to the Constitution and Law Committee for discussion. Because only the LAC knows the exact content of submitted comments, it can filter these comments the same way as it filters NPCSC members’ opinions.

Post-Legislation

  1. Study and respond to “legal inquiries regarding specific issues” (有关具体问题的法律询问) and record the responses with the NPCSC (Legislation Law art. 64);
  2. Perform various duties in the recording-and-review process [see linked blog post for details] (id. arts. 99 & 100);
  3. Conduct post-legislative evaluations and report the results to the NPCSC (id. art. 63);
  4. Carry out publicity of legislative affairs (NPC website article);
  5. Carry out work relating to the compilation, editing, and translation of legal literature (id.).

Among the LAC’s post-legislative functions, one has attracted wide academic attention: its authority to issue responses to legal inquiries. These responses are in some way fulfilling an essential legislative task that the NPCSC barely has the time and resources (among other reasons) to attend to—issuing legislative and even constitutional interpretations.

The LAC has been responding to legal inquiries ever since its establishment, long before this power was codified in the Legislation Law in 2000 (Liang 2010). The secretive LAC had posted a few select responses on its website up until 2007—since then no official data is publicly available. (The media does occasionally post such responses online—for example, this 2017 response to the Supreme People’s Procuratorate on whether a defendant’s “punishment has been executed” under the Criminal Law when he has served his custodial sentence but has not paid his criminal fine. The answer is yes.) One research shows the LAC issued at least 164 responses from mid-2000 to the end of 2005 (Lin 2015). According to one LAC staff member, the LAC had issued over 2,000 responses in total by around 2014 (Chu 2014).

According to official commentaries (释义) on the Legislation Law, authored by the LAC, legal inquiries mostly include “specific questions of law” posed by various state institutions, including State Council bodies, subdivisions of central judicial organs, working bodies of provincial legislatures, as well as mass organizations and national social groups. Requests for legislative interpretations may also be treated as legal inquiries if appropriate. And what the LAC provides in response to these “inquiries arising out of specific cases” are “Q&A-style professional replies” (id. p. 89; see also responses linked to above).

Empirical research shows that the LAC’s legal inquiry responses have covered almost all areas of law, including constitutional law (Lin 2015; Zhou 2002). In 1995, for instance, the Standing Committee of the Hunan Provincial People’s Congress inquired whether the standing committees of provincial-level people’s congresses (“provincial standing committees”) can modify local regulations enacted by the corresponding provincial-level people’s congresses (“provincial congresses”)—an issue not settled by the text of the Constitution. In response, the LAC opined:

The law does not specify whether provincial standing committees can modify local regulations passed by provincial congresses. With reference to the constitutional provisions on the NPC’s and NPCSC’s legislative authorities and the NPC’s practice, provincial standing committees may partially modify local regulations formulated by provincial congresses, provided that the basic principles of these regulations are not contravened. The [Hunan] Provincial Standing Committee, however, may not modify the rules of procedure of the provincial congress or the Hunan Measures on Implementing the Delegates Law that were passed by the [Hunan] Provincial Congress (Zhou 2002, p. 73).

Scholars have pointed out that many of the LAC’s legal inquiry responses are substantively equivalent to legislative or constitutional interpretations, which are the exclusive purview of the NPCSC (Zhou 2002; Lin 2015). While most researchers recognize the practical need for the LAC to issue such responses, they have also questioned their legal force—and more importantly, their constitutionality (Liang 2010; Lin 2015; Zhou 2002; Chu 2014). The LAC is after all just a working body that assists the NPCSC; though authorized by the Legislation Law, its responses to legal inquiries—deemed by some “an integral part of Chinese sources of law”—find no explicit basis in the Constitution (Zhou 2002, p. 79).

Conclusion

If we apply Woodrow Wilson’s famous quote—“Congress in its committee rooms is Congress at work”—to the NPCSC, this “committee” may well refer to the LAC. It exerts significant influence throughout the legislative process, yet all its decision-making takes place behind the scenes in its offices and among its officials. Often, elected NPCSC members are merely rubber-stamping the legislative products of LAC bureaucrats. To some scholars studying the LAC, this is what they find the most troubling. Unlike U.S. congressional committee members who are elected legislators, almost none of the LAC staff is even known to the public. The LAC’s bureaucratic nature raises the concern whether the commission will attempt to expand its own power, just as any other bureaucracy (Chu 2017). Such worry complicates the reform of having the legislature take a leading role in the legislative process: In the end, who will gain more control, NPCSC members or the LAC’s “invisible legislators”?

References

  1. CAI Dingjian, China’s People’s Congress System [中国人民代表大会制度] 476 (4th ed. 2003).
  2. CAI Dingjian, On the Reform and Perfection of the People’s Congress System [论人民代表大会制度的改革和完善], 22 Trib. Pol. Sci. & L. 8 (2004).
  3. CHU Chenke, Discussing the Functions of the NPC Standing Committee Legislative Affairs Commission [全国人大常委会法工委职能之商榷], 13 China L. Rev. 191 (2017).
  4. CHU Chenke, On the Force of Responses to Legal Inquiries: Also on the Institutional Nature of the NPC Standing Committee Legislative Affairs Commission [论答复法律询问的效力——兼论全国人大常委会法工委的机构属性], 4 Pol. Sci. & L. 87 (2014).
  5. LIANG Hongxia, On the Force of Responses to Legal Inquiries [论法律询问答复的效力], 24 J. Chongqing U. Tech. (Soc. Sci.) 66 (2010).
  6. LIN Yan, On Abolishing or Retaining the Legal Inquiry Response System [法律询问答复制度的去留], 18 J. E. China U. Pol. Sci & L. 54 (2015).
  7. LIU Songshan, Downplay of and Reflections on Legislative Plans [立法规划之淡化与反思], 12 Pol. Sci. & L. 86 (2014).
  8. LU Qunxing, Invisible Legislators: The Function and the Legitimacy Problem of Chinese Legislative Workers [隐性立法者——中国立法工作者的作用及其正当性难题], 43 J. Zhejiang U. (Human. & Soc. Sci.) 74 (2013).
  9. Michael W. Dowdle, The Constitutional Development and Operations of the National People’s Congress, 11 Colum. J. Asian L. 1 (1997).
  10. WANG Liwan, Bureaucratization of Legislation: New Perspective for Understanding China’s Legislative Process [立法官僚化: 理解中国立法过程的新视角], 10 China L. Rev. 114 (2016).
  11. ZHOU Wei, Research on the Empirical Questions of Constitutional Interpretation Cases [宪法解释案例实证问题研究], 2 China Legal Sci. 72 (2002).

(Editing by Changhao Wei; Subciting by Xiaoyuan Zhang)


[1] These seven laws were the Criminal Law, the Criminal Procedure Law, the People’s Courts Organic Law, the People’s Procuratorates Organic Law, the Organic Law of Local People’s Governments and Local People’s Congresses at All Levels, the Election Law for the National People’s Congress and Local People’s Congresses at All Levels, and the Chinese-Foreign Equity Joint Ventures Law. See Wang 2015 pp. 129–130 for a more detailed account of the LAC’s history; see also Lu 2013 pp. 79–80.

[2] They were working in the State Law Office and the Administrative Law Office, respectively.

[3] See requirements for LAC positions in 2017 and 2016. In 2017, for example, positions in the Legislative Planning Office require a general law degree at the undergraduate level or above, whereas those in the State Law Office require a graduate-level degree in constitutional or administrative law.

[4] As such, it is inferior to the NPC’s special committees, which are established in accordance with a constitutional—not just statutory—provision (see P.R.C. Const. art. 70) and are “permanent bodies of the organ of State power [i.e., NPC]”—not just “supporting bodies” (Chu 2017, p. 129).

[5] Lu (2013) shows that the LAC’s local counterparts follow a similar “consultation-analysis-prioritization” procedure in drafting legislative plans.

[6] Another feature of the NPCSC’s deliberative process is that all members are divided into small groups to discuss pending bills and can express their views only within the group. Professor Cai (2004, p. 17) suggested that these small group discussions allow the LAC to easily take control of the amendment power and to “arbitrarily” pick and choose elected NPCSC members’ opinions.

[7] In late 2015, the Council of Chairmen adopted a set of internal procedural rules on releasing draft laws for public comments—which, unfortunately and ironically, have not been made public.

[8] While these internal briefs are not publicly available, a few summaries of public opinions on draft laws have been posted online that give a general idea of what an internal brief entails. See, e.g., summary of public opinion on draft Employment Promotion Law; summary of public opinion on draft Social Insurance Law (Part I); and summary of public opinion on draft Social Insurance Law (Part II). Similar summaries would have been posted after March 2015 had the public feedback mechanism been instituted as required by article 37 of the amended Legislation Law.


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