The Legal Control Over Legislative Power Of Large City ’s People’s Congress And Its Standing Committee

On March 15, 2015, the third meeting of the twelfth National People’s Congress passed the Decision on the Amendment of Legislative Law of People’s Republic of China. With the expansion of large cities entitled to formulate local rules and regulations to all of cities that have sub-districts, concerns about the loss of control over the city’s legislative power have arisen among all sectors of the community. Seen from the provisions of the Amendment and past legislative practices, main reasons for such loss of control are: the legislative scope for the People’s Congress of large cities is not clear, legalization of departmental interests yet has not been effectively restricted, the quality of legislation can not be guaranteed, the mechanism for constitutional supervision and legislative supervision needs to be improved. Therefore, based on the current Constitution, the Legislative Law, and the local organic law, etc., it should be proceeded with the legislative scope, legislative procedure and legislative supervision of the People’s Congress of large cities, to construct a power controlling mechanism which places the protection of fundamental rights of citizens at the core and takes into account both local autonomy and uniformity of the legal system. Specifically, this paper consists of the following parts:Chapter One, the status quo and reform of the legislative system of the People’s Congress of large cities. According to the current Constitution and laws, large cities which may formulate local rules and regulations include capital cities, large cities approved by the State Council and cities where special economic zones are situated; The Amendment of Legislative Law entitles cities which have sub-districts approved by the Standing Committee of Provincial People’s Congress with the power of formulating local rules and regulations. New large cities, in terms of the legislative scope, cannot go beyond the rural-urban management issues, and cannot repeat the provisions of upper laws. In the legislative procedure, laws about especially significant matters or matters of widespread public concern within the administrative region must be formulated by the People’s Congress of large cities rather than by its Standing Committee. The expansion of large cities demonstrates central authorities’ strategic intention of advancing urbanization and granting legislative power to the cities which have sub-districts in accordance with the law, the inner motivation and historical rules of power expansion of the People’s Congress of large cities, and central authorities’ consideration of balancing the development requests across the country since the third plenary session of the eighteenth Central Committee.Chapter Two, the control over the legislative power of large cities. The current Constitution and laws are mainly proceeded from the legislative scope, legislative procedure and legislative supervision. In the legislative scope, though the Constitution does not directly entitle the People’s Congress and its Standing Committee of large cities with the legislative power, it establishes general principles for the definition of the scope, and delimits the legislative scope of local rules and regulations and determines constitutional reservations; the local organic law regulates the functions and powers of the People’s Congress and Government of large cities, which actually at the same time defines the legislative scope of the People’s Congress and its Standing Committee; at the same time, there is the provision of no conflict with upper laws, which also sets boundaries for local legislation; the Legislation Law divides the scope of legislation into three areas: executive legislation, local legislation, and innovative legislation beyond reservations of the Constitution and laws. In the legislative procedure, the Constitution puts forward requests for procedural democracy, constitutionality and legality; provisions of the local organic law include the proposal, deliberation, vote, approval and recording of legislative proposals; the Legislative Law on one hand succeeds provisions of the local organic law and on the other hand is required to refer to the legislative procedures of the National People’s Congress and its Standing Committee. In terms of the legislative supervision, although there are no specific provisions in the Constitution, the principle of the uniformity of the legal system, the supervision over local rules and regulations can provide a basis and reference for the supervision. The local organic law regulates the approval system for the Provincial People’s Congress before any bill is announced, as well as the record review system for the Standing Committee of the National People’s Congress and the State Council. Besides approving the above-mentioned systems, the Legislative Law has also introduced the system of post review, such as withdrawals, changes, revocations as well as other specific review procedures.Chapter Three, problems faced by the reform of legislative system of the People’s Congress of large cities. First of all, in terms of the legislative scope, though the amendment of legislative law define it as rural-urban managing matters, and the current Constitution and laws have also imposed restrictions on it, it still conflicts with upper laws in executive legislation and local legislation, and may pose hinders against social autonomy in innovative legislation. Second, in terms of the legislative procedure, seen from the existing system and actual situation, it shows relatively strong administrative standard: in the drafting stage it is basically controlled by administrative bodies, in the hearing stage the problem of formalism is prominent, in the reviewing stage meetings of the presidium or directors may squeeze the rights of representatives or committee members, in the assessing stage it is often reduced to enforcement inspection, and the subject differentiating significant matters is not yet clear. Last, in terms of the legislative supervision, faced with potential inflation of the legislative subject, no matter prior approval or post review, the current review competence may be inadequate. And at the time of approval, there may be problems of unclear standard, over review and hypothetical review; while in recording review, there has not been a precedent of revocation; the judicial body, confronted with inflated local rules and regulations, may suffer greater pressures in safeguarding the unity of the legal system.Chapter Four, how to reasonably define the legislative scope of the People’s Congress of large cities. Faced with an unclear definition of the legislative scope in the law and amendment, the Provincial People’s Congress shall clarify the scope through local regulation. Specifically, large cities approved by the Standing Committee of Provincial People’s Congress shall not directly adjust the items which shall be regulated by the epistemic law; shall not excessively interfere with the area of administrative discretion whereas it shall return the discretion to administrative body; shall not excessively interfere with social life. Meanwhile, the national legislation shall also leave room for the local legislation and decrease the inconvenience it brings to the local governance.Chapter Five, how to construct a scientific legislative procedure of the People’s Congress of large cities. In order to overcome the problem of administrative oriented legislation, it must proceed from the following aspects: first, to diversify the draft body of act, give full play to the local People’s Congress and its standing committee during the process of legislation, and achieve the diversification of act draft in a cooperative way. Second, to promote the effectiveness of the hearing procedure, formulate national hearing rules, perfect the selection procedure for presenters and NPC member’s participation in hearing, and establish and improve the handling mechanism of hearing report. Third, to construct a material deliberation procedure, reform the Commission of Legislative Affairs so as to construct a handling platform, establish the system of special project deliberation and article-by-article deliberation, and establish a deliberation debate system. Fourth, to strengthen the reflection of the assessing work, achieve the diversification of assessment body and methods, and establish and perfect a system of assessment criteria and feedback.Chapter Six, how to improve the legislative supervision of the People’s Congress of large cities. The current supervision system is confronted with pressures of the inflation of local regulations in approval, recording review and judicial review. Under such a circumstance, a series of specific measures should be taken: First of all, the legitimate inspection power of the People’s Congress at the level of province and city should be strengthened, especially the inspection strength of its legal institution and other specialized operation organization. Second, a set of complete review standard should be established through drawing experience of local validity review under the principle of rule of law. Third, the probability of hypothetical review should be decreased through publishing the process and outcome of review and engaging the public in the review process by way of hearing and discussion meeting. Fourth, the review should be carried out in serious accordance with the original intent of legislation law and should mainly be focused on validity. The review scope should be controlled. Related review bureau could put forward advices on important and reasonable problems and the effectiveness of the regulation would not be affected if the submitting body refuses to accept those advices. However, provincial People’s Congress could change or cancel those regulations resulting in negative effects after implementation according to legal procedures. Fifth, the judicial review mechanism should be combined with recording review mechanism to make judiciary become the significant restricting power supervising local legislation. Sixth, the standing committee of national people’s congress should clarify that the recording review power of standing committee of local people’s congress should conclude preliminary power of constitutional supervision and legislative supervision and promote the prior carry and try of constitutional supervision and legislative supervision through the interpretation of constitution and legislation.