Updated on June 21, 2021 by Changhao Wei & Taige Hu.
Originally published on June 25, 2018. Written by Shuhao Fan. Edited by Changhao Wei & Xiaoyuan Zhang.
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 legislature. Consisting primarily of unelected and unidentified members, the LAC works mostly behind closed doors, although recently it has become much more visible in the public eye. 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. 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]. Some worry that they may have usurped the powers of elected NPCSC members, thus becoming de facto legislators. Below, we provide an overview of the LAC—an essential yet peculiar institution under the NPCSC—and its roles in the legislative process.
In February 1979, the NPCSC established under itself a legal affairs 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 and high-level” institution headed by Peng Zhen [彭真], who is considered one of the founders of China’s modern legal system. The commission was staffed by 80 highly regarded legal talents, many of whom would later become state leaders and leading scholars. It was also given by the Communist Party leadership broad discretion in drafting laws without having to ask for the Party’s instructions. It thus was able to achieve the “miracle” of drafting and submitting seven bills in merely three months.
In 1982, the NPC enacted the NPC Organic Law [全国人民代表大会组织法], authorizing the NPCSC to “establish working commissions [工作委员会] when necessary” (art. 28). Exercising that 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 “work” or “working,” the official translation uses “affairs.”) In the 2021 amendment to the NPC Organic Law, the NPC listed the LAC as an example of a working commission under the NPCSC, thereby giving it a more permanent status.
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. And in 2018, it formed an Office for Constitution [宪法室] to assist the NPC’s new Constitution and Law Committee [宪法和法律委员会] (renamed from “Law Committee” [法律委员会] that year) with constitution-related issues.
As of June 2021, the LAC has a total of eleven offices, with seven focusing on particular areas of law and four on specific tasks (their respective year of establishment is given in parentheses):
- Office for Criminal Law [刑法室] (1983);
- Office for Economic Law [经济法室] (1983);
- Office for Civil Law [民法室] (1987);
- Office for State Law [国家法室] (2004);
- Office for Administrative Law [行政法室] (2004);
- Office for Social Law [社会法室] (2011);
- Office for Constitution [宪法室] (2018);
- Administrative Office [办公室] (1979);
- Research Office [研究室] (1983);
- Office for Recording and Reviewing Regulations [法规备案审查室] (2004); and
- Legislative Planning Office [立法规划室] (2007).
Like its institutional structure, the LAC’s workforce has also been steadily expanding. While there is no official tally, a 2008 report put its staff size at around 170, which would make it the largest working body under the NPCSC. Our interviews with three LAC staff members in 2014 and 2020 confirmed that the LAC was employing more than 200 people.
The current LAC leadership (as of June 2021) includes one director and four deputy directors. The director holds a ministerial-level position and tends to concurrently serve as a vice chair on the NPC Constitution and Law Committee. 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, a 2013 research on the LAC staff’s provincial counterparts suggests a high proportion of law-degree holders among the LAC’s own members. Recent NPCSC hiring practice provides further support: LAC positions generally require candidates with law degrees—and often at the graduate level. 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 typically meets only every two months.
The LAC is a ministerial-level body under the NPCSC. It is commonly characterized as a “working body” [工作机构] of the NPCSC. (The other three working bodies are the NPCSC Budgetary Affairs Commission as well as the NPCSC Hong Kong and Macau Basic Law Committees). The late Professor Cai Dingjian [蔡定剑], a leading authority on the NPC, explains:
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] [such as the NPC and the NPCSC]. Thus in essence it is also a kind of service body.
In other words, the LAC is a professional bureaucracy under the NPCSC with only support functions. It has no independent legislative authority and its actions (in theory) do not have any external legal effect.
The LAC’s statutory duties are mainly found in the Legislation Law [立法法]. The Law confers powers on an “NPCSC working body”—which, in the legislative context, means the LAC. The LAC also performs a few other duties that have not been codified. Its official introduction on the NPC website (“Official Intro”) helpfully compiles all its roles, placed in thirteen relatively distinct groups. We then recategorized these roles ourselves. Some are fit into one of three temporal stages: before, during, and after lawmaking (which is narrowly defined as the process beginning with the drafting and ending with the enactment of a law). The rest are day-to-day responsibilities carried out throughout the lawmaking process. Below, we will highlight particular roles in each category that have attracted Chinese scholars’ and our own attention.
- Drafting the NPCSC’s five-year and annual legislative plans, subject to the Council of Chairpersons’ and Party leadership’s approval (Legislation Law art. 52); and
- Overseeing the implementation of those legislative plans as directed by the NPCSC (id.).
In drafting five-year legislative plans, the LAC generally follows a three-step process: consultation, analysis, and prioritization. To prepare the NPCSC’s last two five-year legislative plans, for example, the LAC first actively solicited proposals from a wide range of parties, including central government agencies, local legislatures, NPC delegates, experts, and trade associations, while also paying attention to online public opinion. Official bodies, moreover, were required to explain the “necessity, feasibility, main contents, legislative timing, relationship with relevant laws, and drafting schedule” of their proposed projects. The LAC then analyzed the proposals, focusing on the bills submitted by NPC delegates during the most recent 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 has made it a powerful “allocator of legislative resources.” Since these resources are extremely limited—for example, the NPCSC typically 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,” subject of course to the NPC and Party leaderships’ priorities. These decisions “in large part” depend on the LAC staff members’ “individual and collective motives, values, and mentalities.” 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 World Trade Organization, for instance, required prioritization of intellectual property laws (June 2014 interview). As that deputy director put it, the drafting of legislative plans is essentially an “iterative” process of “balancing [competing] interests.”
- Participating in other entities’ drafting process in advance and, as entrusted by the Council of Chairpersons, drafting important laws that “are comprehensive in nature, affect the overall picture, or are fundamental” (Legislation Law art. 53);
- Soliciting opinions on draft laws from various parties, including NPC delegates, local legislatures, 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);
- Collecting and organizing solicited opinions and NPCSC members’ views expressed during deliberations; and distributing these materials to the NPC Constitution and Law Committee and other relevant special committees and, when necessary, to NPCSC sessions (id. art. 38);
- Conducting pre-enactment assessments of draft laws, including the feasibility of major statutory schemes, timing of their promulgation, social effects of their implementation as well as any potential issues (id. art. 39);
- Proposing amendments to pending draft laws based on the opinions solicited (Official Intro); and
- Standardizing the language used in laws and making cosmetic changes to draft laws before their final vote (id.).
As a professional body with many legal talents, it is not surprising that the LAC is authorized to draft bills. (It cannot directly submit bills to the NPCSC, however, and must go through the Council of Chairpersons.) In practice, the LAC drafts essentially all the bills submitted by the Council. Its drafting mandate is not clearly defined, but appears to encompass two main types of projects: (1) laws that qualify as “basic laws” [基本法律] under the P.R.C. Constitution, such as the Civil Code [民法典] (a basic civil law); and (2) laws that do not obviously fall within the jurisdiction of an NPC special committee, such as the Personal Information Protection Law [个人信息保护法].
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 not found in that law. One crucial factor that makes such a transformation possible is the so-called “unified deliberations” [统一审议] process. Under the Legislation Law, only the NPC Constitution and Law Committee can conduct “unified 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). Put differently, no other body or individual has the power to submit amendments for discussion or a vote. NPCSC members can express their opinions only during group deliberations, which are recorded and summarized by the LAC.
Yet the Constitution and Law Committee alone cannot shoulder that responsibility. When first established in 2018, it had only nineteen members, with only six serving full-time. And unlike other special committees, it has no support staff of its own. It therefore has delegated much of its 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 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 legislators.
The LAC’s central role in information processing has also made it “increasingly the target of lobbying efforts.” Those that lost in the earlier stages of lawmaking 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.” According to our 2014 interviews with LAC staffers, the LAC has indeed devoted substantial resources to soliciting views from different sides, in particular through the public comments process.
Since April 2008, almost all pending legislative bills have been released online for public comments after their initial review. And since 2013, the NPCSC has generally conducted a public consultation on each pending bill after any additional review as well. After each round of consultation, the LAC will prepare an internal brief summarizing and categorizing the submitted comments, which it would consider in drafting proposed amendments to pending bills. The LAC will distribute the briefs, but not the original comments, to the Constitution and Law Committee and NPCSC members. Because only the LAC has the manpower to sift through the submitted comments, it conceivably can filter them the same way as it filters rank-and-file legislators’ opinions.
- Responding to “legal inquiries regarding specific questions” [有关具体问题的法律询问] and recording the responses with the NPCSC (Legislation Law art. 64);
- Conducting post-enactment evaluations of laws or specific statutory provisions and reporting the results to the NPCSC (id. art. 63); and
- Reviewing the validity of sub-statutory legal documents and ordering rectifications when a document fails review (id. arts. 99–101; Oversight Law arts. 32–33)
The LAC’s role as the de facto final arbiter of the validity of sub-statutory legislation as part of the “recording and review” (R&R) [备案审查] process has become increasingly prominent since the Party’s 19th Congress in late 2017. For more information, please visit our Recording & Review portal, which collects our comprehensive introduction to R&R, its latest governing rules, our discussions of past R&R cases, and the LAC’s annual reports on its R&R work.
Among the LAC’s more obscure and less visible post-lawmaking functions is its authority to respond to “legal inquiries”: requests to clarify the applicable law in real-world scenarios submitted by provincial legislatures or central governmental bodies, such as State Council departments.
The LAC had been responding to legal inquiries since at least the 1980s, long before the Legislation Law codified this practice in 2000. By 2014, it had issued over 2,000 such responses in total, according to an LAC staffer. Few of these responses have been made public, however. The LAC had posted about 200 online by 2007, followed by a thirteen-year hiatus. It then resumed releasing selected responses in late 2020, and as of June 2021, has published two new batches of responses (14 in total, covering 2018–2020).
There is some evidence that the LAC’s original mandate was to respond only to inquiries on the “specific application of laws” that concern the people’s congresses’ operations (e.g., election law). But the Legislation Law does not contain this textual limitation. And empirically, its responses have touched on diverse areas of law, including constitutional law. Consider, for instance, a 2003 administrative lawsuit from Hunan. A dispute there was whether the court may invoke its statutory evidence-gathering power to force a local China Mobile branch to hand over a party’s call log. China Mobile refused, citing Article 40 of the Chinese Constitution, which guarantees the “freedom and privacy of correspondence.” Under that Article, only the police and the procuratorates may examine a citizen’s correspondence, and only for purposes of criminal investigation or national security. In response to an inquiry from Hunan authorities in the 2003 case, the LAC concluded that the court may not access the party’s call log because the log was constitutionally protected correspondence and the court’s demand did not fall within Article 40’s narrow exception.
Scholars observe that many of the LAC’s legal inquiry responses function like the NPCSC’s legislative or constitutional interpretations. The NPCSC uses legislative interpretations to clarify the “specific meaning” of a statutory provision or to make clear “applicable statutory basis” in new circumstances that arise after a statute has been enacted (Legislation Law art. 45); it has yet to issue a formal constitutional interpretation. As the NPCSC has not made adequate use of its exclusive interpretive power for a variety of reasons (e.g., limited time in session), scholars generally recognize the practical need for the LAC’s gap-filling role, especially when an inquiry is urgent and requires a prompt response. Still, some criticize the LAC for encroaching on the NPCSC’s exclusive authority.
Despite the functional overlap between the NPCSC’s legislative interpretations and the LAC’s legal inquiry responses, the scholarly consensus is that the responses, unlike the former, do not have the force of law. The LAC itself agrees, but emphasizes that its responses are still “authoritative” because it is intimately involved in lawmaking, thus uniquely qualified to ascertain the legislative intent. Empirical research shows that the inquiring governmental bodies themselves tend to follow the responses. Yet there are also many cases in which the LAC’s responses were ignored by inquiring and non-inquiring bodies alike—and there is no adverse legal consequence for doing so. Chinese courts, for instance, have repeatedly used their evidence-gathering power to gain access to parties’ call logs and even text messages, despite the LAC’s response in the 2003 Hunan case. Hence its responses can be considered a form of “soft law”: they are highly persuasive but non-binding.
- Carrying out specific tasks relating to constitutional implementation, constitutional interpretation, constitutional review, constitutional oversight, and Constitution-related publicity (Official Intro);
- Performing the daily duties of the LAC spokesperson’s office and publicizing legislative work (id.);
- Handing and responding to NPC delegates’ suggestions, criticisms, and opinions, as well as CPPCC members’ proposals, that concern legislative affairs (id.);
- Developing, maintaining, and managing legal information and data (id.);
- Conducting research on legal theories, legal history, and comparative law relating to the NPC’s work (id.); and
- Carrying out work related to the compilation, translation, and editorial review of legal literature (id.).
In October 2018, the LAC took on additional duties relating to constitutional enforcement (see #1) just as its newest subdivision, the Office for Constitution, was formed. The goal was to enable the LAC to better assist the NPC Constitution and Law Committee, whose jurisdiction had expanded a few months earlier to include the same constitution-related tasks as part of 2018’s far-reaching state institutional reform.
The LAC has since quickly adapted to its new roles. For instance, it conducted an ex ante constitutional review of the 2019 Foreign Investment Law [外商投资法] while it was still pending. The Law regulates investments by foreign “natural persons, enterprises, or other organizations,” whereas the Constitution permits only “foreign enterprises and other economic organizations or individuals” to invest in China (art. 18, para. 1; emphasis added). The LAC endorsed the Law’s broader scope, explaining that it was consistent with the constitutional spirits of “opening to the outside world” and “applying a new development philosophy,” even though the Law’s language was not identical to the constitutional text. The LAC has also engaged with constitutional issues during ex post constitutional review (as part of the R&R process). In 2020, for instance, it concluded that local regulations that required ethnic schools to use the relevant ethnic languages as the sole medium of instruction (except in Mandarin classes) violated the constitutional policy of promoting “the nationwide use of Putonghua.” For additional discussions, please visit our Recording & Review portal.
In mid-2019, the LAC underwent an additional organizational change. In a bid to increase its own accessibility and the transparency of the legislative process, the LAC established a new spokesperson’s office within its Research Office. As of June 2021, the heads of the Research Office and the Legislative Planning Office are serving as co-spokespersons. Their office can be reached at +86-10 6309-8334.
Under its current practice, the spokesperson’s office will hold a press conference before each NPCSC session. The press conferences follow a fixed format: a spokesperson will first introduce the upcoming session’s legislative agenda, then provide a brief oral summary of the comments received during the latest public consultation on pending bills, and finally answer questions from the media. These events are the only occasion where the public may gain some insight into the comments submitted on draft legislation and, occasionally, the authorities’ reaction to those comments as well. In 2019, for example, the spokespersons twice acknowledged public comments in support of marriage equality. Although they ruled out the possibility of legalizing same-sex marriage in China in the near future—indeed the 2020 Civil Code did not do so—they were among the very few (if not the only) high-level Chinese officials who have publicly addressed the issue.
Apart from hosting regular press conferences, the spokespersons have also released statements or given press interviews to express the legislature’s stance on issues. They most notably took such an action in November 2019 during the Hong Kong anti–extradition bill protests. After a Hong Kong court struck down part of a local statute on whose basis the government had banned masks during the protests, an LAC spokesperson issued a stern statement criticizing the ruling. He warned that the ruling had intruded on the NPCSC’s authority under the Hong Kong Basic Law and threatened further action by the NPCSC. In 2020, during the Covid-19 pandemic, the spokesperson’s office also gave multiple press interviews to answer legal questions arising from efforts to contain the coronavirus. For instance, it emphasized that local epidemic-control must “to the greatest extent” protect the rights and interests of citizens and other private entities and must not “exceed the necessary limits.”
In 1885, Woodrow Wilson (later a U.S. president) famously wrote that “Congress in its committee-rooms is Congress at work.” In the NPCSC’s case, the “committee” may well refer to the LAC. It exerts significant influence throughout the legislative process, yet all its decisionmaking takes place behind closed doors. 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 it will attempt to expand its own power, just like any other bureaucracy. 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”?
 See Lu Qunxing [卢群星], 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], J. Zhejiang U. (Human. & Soc. Sci.) [浙江大学学报（人文社会科学版）], no. 2, 2013, at 74, 80.
 Id. at 76.
 See Chu Chenge [褚宸舸], Debating the Functions of the NPCSC Legislative Affairs Commission [全国人大常委会法工委职能之商榷], Minde Pub. L. Network [民德公法网] (Jan. 17, 2017). An abridged version of this article (with the same title) was published in the first 2017 issue of the China Law Review [中国法律评论].
 See id.
 See Lu, supra note 1, at 80. The seven bills were the Criminal Law [刑法], Criminal Procedure Law [刑事诉讼法], People’s Courts Organic Law [人民法院组织法], People’s Procuratorates Organic Law [人民检察院组织法], Organic Law of Local People’s Governments and Local People’s Congresses at All Levels [地方各级人民代表大会和地方各级人民政府组织法], Election Law for the National People’s Congress and Local People’s Congresses at All Levels [全国人民代表大会和地方各级人民代表大会选举法], and Chinese-Foreign Equity Joint Ventures Law [中外合资经营企业法]. For a more detailed account of the LAC’s history, see Wang, supra note 5, at 129–130; Lu, supra note 1, at 79–80.
 See Lu, supra note 1, at 80.
 The two 2014 interviewees were working in the Office for State Law and the Office for Administrative Law, respectively; and the 2020 interviewee in the Office for Economic Law.
 See Lu, supra note 1, at 79.
 In 2021, for example, positions in the Office for Civil Law and the Office for Administrative Law required at a minimum master’s law degrees. And in 2020, the Office for Recording and Reviewing Regulations was hiring only candidates with a master’s degree in constitutional and administrative law.
 See Chu, supra note 3.
 Cai Dingjian [蔡定剑], The Institution of the Chinese People’s Congress System [中国人民代表大会制度] 492 (4th ed. 2003).
 Id. at 476.
 The LAC’s local counterparts follow a similar “consultation—analysis—prioritization” procedure in drafting legislative plans. See Lu, supra note 1, at 82–83.
 Id. at 83.
 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 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. See Cai Dingjian [蔡定剑], 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], Trib. Pol. Sci. & L. [政法论坛], no. 6, 2004, at 8, 17.
 As of June 2021, the Committee has eighteen members; two original members have left and one new member joined. The current number of members serving full-time is unclear, but it is unlikely to exceed half of the membership.
 Cai, supra note 12, at 490 & n.1.
 Chu, supra note 3; see also Cai, supra note 18, at 17–18.
 Michael W. Dowdle, The Constitutional Development and Operations of the National People’s Congress, 11 Colum. J. Asian L. 1, 43 (1997).
 Off. for State L., NPC Standing Comm. Legis. Affs. Comm’n [全国人大常委会法制工作委员会国家法室], Annotations of the P.R.C. Legislation Law [中华人民共和国立法法释义] 135 (2015) [hereinafter Annotations]. Few of these internal briefs are publicly available. The LAC once posted a few of them online during the first few years after the NPCSC had launched its online public-consultation platform in 2005. The 2015 amendment to the Legislation Law does require the NPCSC to provide feedback to the public on the comments it has received. To comply with that requirement, the LAC has been providing oral summaries of solicited comments—much shorter than its internal briefs—at press conferences since August 2019.
 See Chu Chenge [褚宸舸], On the Force of Responses to Legal Inquiries—and on the Institutional Nature of the NPCSC 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], Pol. Sci. & L. [政治与法律], no. 4, 2014, at 87, 90.
 Liang, supra note 25, at 67.
 See Lin Yan [林彦], On Abolishing or Retaining the System of Responses to Legal Inquiries [法律询问答复制度的去留], J. E. China U. Pol. Sci & L. [华东政法大学学报], no. 1, 2015, at 54; Zhou Wei [周伟], Research on the Empirical Questions of Constitutional Interpretation Cases [宪法解释案例实证问题研究], China Legal Sci. [中国法学], no. 2, 2002, at 72, 72–79.
 See Lin, supra note 28, at 57–58; Zhou, supra note 28, at 79.
 See Liang, supra note 25, at 66; Chu, supra note 26, at 92; Zhou, supra note 28, at 72.
 See Liang, supra note 25, at 69; Zhou, supra note 28, at 79.
 See Chu, supra note 26, at 90.
 Annotations, supra 24, at 197.
 See Lin, supra note 28, at 59. Sometimes, the inquiring bodies—for instance, a State Council department—have also given the LAC’s responses universally binding effect through their own rulemaking processes. See id.; Chu, supra note 26, at 89.
 See Liang, supra note 25, at 66 & nn.①–②, 69–70.
 See Chu, supra note 3 (arguing the LAC did so by controlling the legislative process of the 2015 Legislation Law amendment to give itself more power).