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

Cover of a hard copy of the Legislation Law

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.

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NPCSC Session Watch: Women’s Rights, Accessibility, Administrative & Lawmaking Reforms, Military Reservists & More

Photo by Jakub Pabis on Unsplash

The Council of Chairpersons decided on Thursday, October 13 to convene the 37th session of the 13th NPC Standing Committee (NPCSC) from October 26 to 30, shortly after the Communist Party’s upcoming 20th National Congress (to open on October 16) closes. Seven bills are on the tentative agenda, which we preview below.

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Recording & Review: An Introduction to Constitutional Review with Chinese Characteristics

Editor’s Note (Sept. 2, 2020): This post is NOT up to date and has been superseded by a more recent introduction to “recording and review,” which discusses the latest governing rules.

On October 18, 2017, halfway through his mind-numbing three-hour report to the Communist Party’s 19th National Congress, President Xi Jinping called for “advancing the work of constitutional review” [推进合宪性审查工作]. We then noted, and Chinese media later confirmed, that it was the first time such expression appeared in Party documents. While the expression might be novel, the concept of constitutional review is not—it has been an inherent part of “recording and review” (“R&R”) [备案审查] since at least 1982. For purposes of our discussion,[1] R&R is a process whereby various governmental entities with lawmaking powers record the legislation they enact with the NPC Standing Committee (NPCSC), and the NPCSC then, through several established mechanisms, review such legislation for potential violations of the Constitution and national laws and take appropriate actions. The primary goal is to ensure uniformity in the hierarchical legal system.

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Following up on the Grant of Legislative Powers to China’s Cities: Pt. 2

Apologies to our readers for the delay in publishing Part 2.

Roughly two years ago, the National People’s Congress (NPC) approved an amendment to the Legislation Law (Amendment), granting the right to enact local regulations to 273 prefecture-level cities and autonomous prefectures (collectively, cities) across China. This post continues Part 1 with analysis of the local regulations enacted by (some of) the 273 cities since the passage of the Amendment. Like Part 1, this post is based on information (current through December 2016) provided by the NPCSC Legislative Affairs Commission (NPCSC LAC).

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Following up on the Grant of Legislative Powers to China’s Cities: Pt. 1

On March 15, 2015, the National People’s Congress passed an amendment to the Legislation Law (Amendment), which, among other things, granted legislative powers1 to hundreds of cities2 across China. In the almost two years since, the relevant standing committees of provincial-level people’s congresses (provincial PCSCs) have been busy deciding on when the eligible cities within their jurisdictions may start exercising legislative powers—a procedure mandated by the Amendment. As for those cities, many have taken the first step to experiment their the new powers by enacting local legislations.

Last week, the Constitutionalism of China (中国宪政网) published on its WeChat account two tables provided by the NPCSC Legislative Affairs Commission on the actions taken by the provincial PCSCs and the eligible cities since the Amendment’s passage.

Here, in Part 1 of a two-part series, we’ll present our analysis of the first table, along with additional research done based on those data. The second table will be the topic for Part 2.

We’ll begin this post with some background information and a brief introduction to the relevant part of the Amendment.

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