I have worked for 30 years as a legal professional in China and have served as legal commentator on Chinese state media for 15 years. Through this time I have often been asked to comment on important Chinese legal matters, including passage of new laws, and meetings of the National People’s Congress.
One question that often comes up is regarding the process by which a specific proposal becomes enacted in law. What bodies initiate the process? What approval must be obtained? How is a law finally enacted?
Like most countries, China has a Constitution that sets out the parameters of the process. Article 62 of the Constitution of the People’s Republic of China (PRC) provides that the National People’s Congress (NPC) has responsibility for “Formulation and amendment of fundamental laws related to criminal offences, civil affairs, state institutions, and other matters.” Thus authority for making law is vested in the NPC.
Article 67 of the PRC Constitution provides that the Standing Committee of the NPC, which is a smaller body convened year round, has responsibility for, “Formulation and revision of the laws, excluding those that are properly formulated by the National People’s Congress.”
Where the Constitution sets out the bodies with authority to formulate and amend laws, the
Legislative Law of the People’s Republic of China
provides the procedure these bodies should follow with developing and enacting laws.
When the NPC is in session, a bill may be proposed for immediate deliberation. Laws may be proposed by the Standing Committee, the State Council, the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, and all special committees of the NPC, but it is not required that a law proposed by such outside body be placed on the agenda for deliberation.
After a bill is placed on the agenda, the bill’s sponsor will be allowed to make a statements in presentation of the law. A process of deliberation will follow with members of the NPC making inquiries, and conducting investigations and research into the matter at hand and effects of the proposed new law. This can include asking questions to the bill sponsor, as well as outside organizations.
Where there is an appropriate Special Committee in the NPC, such committee will have a deliberative process and its conclusions will be submitted to the wider NPC. The amended law and recommendations of the Law Committee will be further deliberated. Deliberation and revision to the law continue the Law Committee is ready to submit a final proposed draft of the bill.
After a final draft of the bill is presented, the NPC votes and the law will be enacted with a majority vote. Once voted and passed by the NPC, the law is promulgated by an order signed by the PRC President.
The Chairman of the Standing Committee may propose a bill for deliberation at that body, while the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, and all special committees of the National People’s Congress may also propose a bill to the Standing Committee. The bill will enter a deliberative process and if necessary will be submitted to special committee.
Once a bill is on the agenda of the Standing Committee, it shall be deliberated three times before the Standing Committee before being put to vote.
During the first deliberation, the Standing Committee hears the statements of the bill sponsor in the plenary session and refers the bill to group sessions for preliminary deliberation. During the second deliberation, the Standing Committee hears the report of the Law Committee concerning the amendment and major issues concerning the draft law and refers the bill to group sessions for further deliberation. During the third deliberation, the Standing Committee hears the report of the Law Committee concerning the result of the deliberation over the draft law and refers the amended draft law to the group sessions for deliberation.
After each deliberative procedure, the draft bill text is to be made available to the public for comment. The Law Committee will formulate a version endorsed by the Chairmen’s Council to be voted upon in the plenary session of the Standing Committee. The bill shall be adopted if more than half of the votes cast by all the members of the Standing Committee are affirmative. After the bill has been passed, the law shall be promulgated by an order signed by the PRC President.
I will take a step back now and do a small review of the work of the previous NPC (2012-17). The NPC in this time has made significant process, including enacting 25 new laws, and revising 127 laws. In the same time the NPC issued 46 decisions on major issues, an issued 9 substantive legal explanations which aid courts in understanding existing laws. In this time the Standing Committee itself reviewed 26 laws, and deliberated over 83 work reports, and conducted over 30 special inquiries and investigations.
Now looking forward over the next five years, I expect the NPC will make progress in developing an implementing a unified Civil Code, which believe it or not China does not currently have in place. There is also reason to expect a new foreign investment law, and major new E-Commerce law. Research is being performed toward a new Real Estate Tax Law, but implementation is not sure at this point.
Other priorities will be improving environmental protection across the board. This will include laws to prohibit soil pollution, and solid waste control.
We are also expecting to a major revamp of the Law of Criminal Procedure and a new Community Corrections law, which will address rehabilitation for small time offenders.