On The Leading Role Of Local People’s Congress In Ligislation Process

Legislation in modern times is a process with the joint force of variousstakeholders. Formal and informal institutes like government, political parties andpublic operate and interact with each other for the purpose of legislation with congressas the center of the process. In China, local Congress and its standing committee havethe statutory authority to make local regulations, while from actual operationalperspective, other stakeholders apart from Congress take part in and affect theformation of regulation. As the statutory authority, the local Congress shall take theleading and guidance role in the legislation process, exert actual power, and be a reallegislative body rather than “making regulations of those having been made”or a“rubber chop”or a paper legislator. This article intends to analysize the leading functionof local congress by using the30years practice of Shanghai local Congress. Itanalysizes the interaction of relevant legislative participants, oberves the continous anddynamic legislative process, and study the actual functions the local Congress exertsusing empirical experience and real cases. Based on that, several suggestions are raisedto address the gap between reality and the law on Congress’statutory role of locallegislation, how to reinforce the leading role of Congress by taking practical andeffective measures.This arbicle consists of6chapters in addition to the introduction and theconclustion.Chapter1is on the development history of statuory legislative functions for localCongress. It reviews the theorical basis of legislative authority in China and westerncournties and the allocation model of this authority. Then it goes through the development process where local Congress and its standing committee obtained theauthority of make legislations. Meanwhile, this chapter tries to summarize the legalstatus and characters of provincial level Congress and its standing committee in currentlegislative system of China. It analysizes what “leading role” Congress should play inthe process of local legislation, pointing out this leading role is not only decided by thecurrent “people decides” but also the result of Chinese legislation practice which hasbeen confirmed by the Constitution.Chapter2is on the statutory role and organization structure of relevantstakeholders in participating local legislation. In practice, participants in a locallegislation includes Congress and its standing committee, the local CP, government, andthe public. Firstly, this chapter analysizes the organizational structure of local Congressand its committee, including special commissions and in particular the legislativecommission who is authorized to conduct the comprehensive review, the legal affairscommittee for daily legislative work, the chairperson meeting for decision making,congressmen, standing committee members and working staff, reaching why thesebodies are established and their roles in the local legislation. Secondly, this chapteranalysizes the statutory roles of local CP, authority, judicial body, congresses in higherand lower levels and the public in the process of local legislation.Chater3analysizes the function of congress in the preparation stage of a locallegislation. By studying the practice of Shanghai, it discusses the leading role ofCongress in making legislation5year plan, annual plan, and draft. Though Congress isresponsible for reviewing the feasibility of a legislative project, and it do in practicelead the start and review process, the projects passing through the review are mainlydrafted by the government at80%. The rest20%are drafted by other parties who havethe statutory suggestion right. Furthermore, most of the draft passing through thereview are the same as the working focus of local CP, which reflects a principle ofcurrent practice that legislation decision goes with the reform decision. On draft oflegislation, most of them are made by local government and this is part of the reasonscausing “legislation departmentization”. The drafts made by Congress are limited tolocal Congress’s work on legislation, monitoring, appointment, decision rights on important matters, and how congressmen carry out their obligations. It is seldom thatthe legislations on economy, socialty, culture and biology are made by Congressindependently or taking a lead. This reflects the fact that local government has a controlover the public resoures due to actual management of social life, and therefore takes astrong potion in policy making process.Chapter4is on Congress’s leading function in current legislative process fromdraft to law. From draft to law is the process that various interests are to express and forconsideration, and therefore is the most important stage in a legislative process. Thischapter reviews the4steps therein (proposal, review, vote and promulgation) toanalysize the funcations of congress and other participants. From the Shanghai casestudy, though many institutes are authorized to propose draft regulation, but thelegislative drafting are dominated by the local government. The drafts made bygovernment were usually reviewed by Congress while6,000proposal made bycongressmen were never entered into the legislative process in the past30years. Fromthe statistics, Congress commented on70%of the draft regulation, and revised on35%of the draft. Though every draft entering into the voting process was finally passed thevoting, there is a trend that Congress will conduct a substantial review of the draftregulation. From draft to law, the local PC does not involve in the legislation directlybut still plays a key role on critical issues. Local congress is trying to create new waysto promote legislation democracy, and public participation is active in recent years.However, the impact of public is passive and subject to the Congress’ intention ofpublic participation.Chapter5is on the role of Congress in optimization of local legislation. Thefoundamental reason of legislative interpretation, assessment, revisions and revocationof local regulations are a demand of society. In practice, Congress’ functions aredifferent in different stages of such “political feedback” process. Congress’ reaction towhether local regulations need revision or revocation, when to do that and on whichissues is not timely. It is the government who control the process of regulation revisionsor revocation. For the regulation audit, the local congress follows the central congress’sinstruction on the start of work, the standards and the process. The legislative interpretation is to ensure the local regulation better fit the social reality. The Congressat local levels seldom exerts the interpretation rights formally. The legal affairscommission’s reply to quaries is an alternative. For the extended interpretation made bythe execution authority, Congress does not have effective system to monitor. In addition,after local regulation is made, the government usually makes supplementary ruleswhose numbers are several times compared with local regulations. Such supplementcan improve the regulation by providing detail guidance. On the other hand, it alsodamage the right of Congress on local legislation.Chapter6is on the reinforcement of Congress in local legislation. It is suggested the leadingrole of Congress is a statutory obligations and represents the people decides nature of this country.The leading roles should be reinforced by improving the structural organzaiton, discussion rules ofCongress. This chapter suggests a public participation system to review the regulation proposal, adiverse drafting system led by Congress, promotion of congressmen’s proposal on regulation, a filtermachenism in legislation, debate in legislative discussion, regular legislative hearing process, postlegislation assessment, supplementary rules review system, professionalism of legislative staff, etc.