Constitutional Review in Lawmaking and Emergency Legislation: A First Look at Draft Amendments to China’s Legislation Law

Editor’s Note (Mar. 16, 2023): We have updated this post in accordance with the final text of the amendments adopted on March 13 (which are summarized here). The provisions discussed below have not been changed.

Last month, China’s national legislature, the NPC Standing Committee (NPCSC), reviewed draft amendments to the Legislation Law [立法法] (Draft), an important statute with semi-constitutional status. The Law, in sum, has three functions: it demarcates the authority of various law/rule-making bodies; regulates (to varying extent) their legislative procedures (in particular those of the national legislature); and prescribes a hierarchy of legal norms, along with attendant rules on how to apply conflicting norms and mechanisms for resolving such conflicts (the so-called “recording and review” [备案审查] process). Today, to engage with China’s legal developments—whether as part of research, commentary, reporting, advocacy, or doing business—it is increasingly crucial to understand the type of legislative power a governmental body has and the process whereby it issues binding rules.

The Draft would bring about changes in all three areas: authority, procedure, and hierarchy. Some of the changes are technical, some are substantive but not ground-breaking, others are confusing and require clarification, while a few do deserve attention now, especially from those interested in submitting comments (the comments period closes on November 29). Below we highlight two that fall in the last category. As the Draft may undergo moderate to substantial revisions, we will publish a more thorough summary after its second review, expected in December. A final review by the full NPC is expected next March.

Constitutional Review in Lawmaking as Statutory Requirement

After the Communist Party called for “advancing constitutional review” at its 19^th Congress in October 2017, Chinese authorities have implemented various institutional and procedural reforms to that end. In March 2018, the former NPC Law Committee was renamed the Constitution and Law Committee (CLC) [宪法和法律委员会]. While retaining its predecessor’s exclusive authority to revise draft laws, the CLC has also been tasked with preforming duties relating to constitutional interpretation and constitutional review. In October 2018, the NPCSC Legislative Affairs Commission established an Office for Constitution [宪法室] to assist the CLC with those functions.

As for procedures, the Plan on Building the Rule of Law in China [法治中国建设规划], issued in early 2021, requires the national legislature to ensure that its legislation “conforms to constitutional provisions and spirits” and calls for improving the “systems of ex ante review and consultation” [事先审查和咨询制度] regarding constitutional issues in draft legislation. Recently, a legislative spokesperson disclosed that the Office for Constitution had been preparing research reports on the constitutional issues discovered during a bill’s drafting, deliberation, and revision before each NPCSC session. The Party has also reportedly issued a “guiding document” on constitutional review, setting forth the procedures for review during the drafting, deliberation, and enforcement of legislation, but the document has not been made public.

The Draft would elevate some of those reforms to statutory requirements. It would require the CLC to explain “issues of constitutionality involved” in a bill when it reports to the legislature (in writing) on its revisions of the bill (arts. 23, 36 as would be amended). The Draft would also require a bill sponsor to include “relevant opinions on the issues of constitutionality involved” in the bill’s explanatory document, likely referring to advisory opinions issued by the CLC at the drafter’s request (art. 58).

In fact, various NPC bodies (the CLC and its predecessor, in particular) have long been applying constitutional provisions and carrying out some form of constitutional review during the legislative process. This practice is well documented by legal scholars.¹ Some argue that, in so doing, the legislature “has already accumulated a rich body of constitutional norms.”² In 2018, for instance, the CLC defended the NPCSC’s comprehensive revisions to the courts’ and procuratorates’ organic laws, both originally enacted by the NPC, arguing that they did not exceed the constitutional limits of the NPCSC’s legislative authority. More recently, the CLC explained that the constitutional term “birth planning” [计划生育] was “inclusive and adaptable” enough to encompass the three-child policy and accompanying reforms that the NPCSC was about to write into law.

Still, the legislature’s constitutional review in lawmaking has been criticized for being “not universal, inadequate, and not visible enough” [不普遍、不充分和不够显明]³—concerns that the Draft’s new requirements could in theory address. The CLC could feel obligated and empowered to address a wider range of constitutional issues raised by pending bills and provide more in-depth reasoning for whatever conclusion it reaches. And it could be expected to do so more publicly rather than simply produce internal reports that never see the light of day. But as with all statutory schemes written at a general level, the actual impact of the new requirements would become clear only as they are further clarified and implemented in practice.

New Ground for Expedited Lawmaking

As a general rule, the national legislature must review a bill at least three times—that is, at three separate sessions—before it may vote on (and approve) it (art. 32). The Legislation Law also provides for two exceptions to that rule. A bill may pass after just two reviews if a consensus has largely been formed (art. 33). A single review would suffice if a bill, in addition to having garnered a basic consensus, has a very narrow focus or partially amends an existing law (id.). The most expedited process is almost always used for quasi-legislative decisions and minor amendments. New laws in recent memory (including the Hong Kong National Security Law) have invariably passed after at least two reviews.

The Draft would create a new ground for using the single-review process: “emergencies” [紧急情况] (id.). While the Draft’s phrasing is ambiguous, its accompanying explanation indicates that drafters intended the emergency exception to apply whether or not a consensus has formed and regardless of a bill’s scope, as long as the legislature deems there is an “emergency.” But the Draft neither defines the term nor illustrates the types of urgent situations the drafters had in mind. Hence, if the new provision were enacted as is, new laws could pass after just one reading without any opportunity for public comment—and maybe even without any prior notice as well.

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The two changes we have discussed are what we see as the most significant in the Draft. There are a few other provisions that could turn out to be important as well, but for now inartful drafting prevents any analysis that is not pure speculation about their meaning. Hopefully the legislative intent would become clearer by the time the bill’s second draft is released, when we also plan to publish a comprehensive overview. A full list of the changes in the Draft can be viewed in this comparison chart. If you or your organization are considering submitting comments and wish to discuss provisions not mentioned above, please do not hesitate to reach out.

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1. See 邢斌文 [Xing Binwen], 论法律草案审议过程中的合宪性控制 [On Constitutional Control During the Deliberations of Draft Laws], 清华法学 [Tsinghua U. L.J.], no. 1, 2017, at 167, 174–83; Yan Lin & Tom Ginsburg, Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement Mechanism, 63 Am. J. Comp. L. 467, 472–87 (2015). ↩︎
2. Lin & Ginsburg, supra note 1, at 469. ↩︎
3. 张翔 [Zhang Xiang], “合宪性审查时代”的宪法学：基础与前瞻 [Constitutional Law in the “Age of Constitutional Review”: Fundamentals and Outlook], 环球法律评论 [Glob. L. Rev.], no. 2, 2019, at 5, 14. ↩︎