ZHU Liyu*

 

Abstract: The legislation of China provides a glimpse of the active development of the whole-process people’s democracy in the country. The system of people’s congresses realizes the broad participation of the people in national and local legislation through various channels. It fully reflects the fundamental interests and common will of the great majority of the people. The democratic and professional combination of subjects for legislation with Chinese characteristics has, to a great extent, solved the contradictions and difficulties encountered in the legislation of countries with the representative system. The system of multi-party cooperation and political consultation under the CPC’s leadership realizes the promotion of democracy, the drawing on collective wisdom, the unifying of people’s thinking, and the building of consensus among the CPC, the democratic parties, and the general public in the process of legislation. Legislative planning is not only a result of scientific decision-making, but also one of the best democratic decision-making mechanisms proved by legislative practices. The openness, negotiation, and technical nature of legislative procedures in China are conducive to the realization of democratic management.China has established a relatively scientific, complete, and systematic constitutional filing and review system, which is also an embodiment of democratic supervision. In future legislation, China should continue to transform the values and concepts of democracy and human rights into more scientific and effective institutional arrangements and concrete and realistic democratic practices under the leadership of the CPC.

 

Keywords: democratization of legislation · legislative subject · legislative procedures · filing and review

 

The Resolution of the Central Committee of the Communist Party of China on the Major Achievements and Historical Experience of the Party over the Past Century states that “We must uphold the unity between the CPC’s leadership, the running of the country by the people, and law-based governance. Efforts must be made to actively develop the whole-process people’s democracy and advance comprehensive, extensive, and coordinated development of the systems and institutions through which the people run the country. We must establish diverse, unimpeded, and well-organized democratic channels, diversify forms of democracy, and expand the people’s orderly political participation at all levels and in various fields to ensure that China’s governance and institutions in all sectors give full expression to the will of the people, protect their rights and interests, and spark their creativity.”¹

 

“We must uphold the principal position of the people and ensure their law-based participation in democratic elections, consultations, decision-making, management, and oversight.”² In his speech at the Meeting Marking the 65th Anniversary of the Founding of the Chinese People’s Political Consultative Conference on September 21, 2014, General Secretary Xi Jinping pointed out that “Socialist democracy requires not just a complete set of institutions and procedures, but also full participation.”³ Therefore, according to China’s active development of the whole-process people’s democracy, this paper aims to show the relevant institutions and procedures implemented in the legislation and some legislative participation practices and make some explanations on the theory of legislative democratization and legal protection of human rights.

 

 

The basic process of various legislative activities in countries with statutory laws can be divided into three independent but related stages, namely, the preparation, implementation and improvement of legislation. The preparation stage can also be called the drafting stage; the implementation stage can also be called the passing stage; the improvement stage can also be called the follow-up stage.⁴ All three stages involve democratization. Specifically, in the three stages, the legislative subject, legislative system, legislative effect, legislative procedure, distribution of legislative interests, public participation in legislation, legislative prediction, legislative planning, legislative consultation, legislative drafting, legislative decision-making, legislative coordination, legislative interpretation, legislative amendment, legislative supervision, and even legislative technology, legislative language, etc., all involve the issue of how to implement and achieve democratization. Meanwhile, these issues are directly or indirectly related to the theory and practice of human rights protection. In this regard, Article 5 of the Legislation Law of China makes general provisions: “Legislation shall represent the will of the people, promote socialist democracy, adhere to openness in legislation, and ensure the people’s participation in legislative activities through various channels.” This is the provision on the principles of democracy for legislation in China. Since the founding of new China, especially since the launch of reform and opening up, there have been numerous provisions and embodiments of legislative democratization in the legislative process. That is to say, the whole-process people’s democracy has also been widely reflected in the legislative process in China. Although this paper only covers some embodiments of socialist democracy with Chinese characteristics in the legislative practice, it still provides a glimpse of the active development of the whole-process people’s democracy in China’s legislation.

 

From the perspective of the relationship between legislation and democracy, countries are seeking ways to democratize legislation. However, there are still certain differences in the democratization of legislation in different countries. Generally, democracy should pursue the values and orientation, including human rights, in terms of its essence and purposes in the legislation in countries with the representative system, that is, the democratization of the legislative content; or democratization of work and activity methods, namely, the democratization of the legislative process. Therefore, the following requirements should be met for legislative democratization: The election and generation of legislatures at all levels should be universal, true, and equal; the constitution of the legislature should represent the will of the people and have the professional function of legislating; activities of the legislature should be open and transparent, and the channels, ways, and procedures for public participation in legislation should be extensive, direct and rapid; laws and regulations should better coordinate different interests; activities of the legislature should be subject to public supervision.

 

In China, the CPC’s leadership is the most essential feature of socialism with Chinese characteristics. In the final analysis, legislative democratization in China aims to actively promote socialist democracy, enable the broad masses of the people to participate extensively in national and local legislation through various channels, and make legislative results fully reflect the fundamental interests and common will of the overwhelming majority of the people, based on the governing system of the people’s democratic dictatorship and the governing structure of the system of people’s congresses. Therefore, the democratization of legislative content in China also requires the verification of the legislative effectiveness through the practice of law implementation after legislation; while the democratization of the legislative process should be realized through the control of democratic procedures to ensure the proper exercising of legislative power in legislation. As the fundamental political system in China, the people’s congress system requires that people should be masters of the country under the CPC’s leadership, people’s congresses at all levels and their standing committees should exercise state power collectively in strict accordance with the principle of democratic centralism, and all major issues should be decided through collective discussion; also, the legislative, administrative, supervisory, judicial and prosecutorial powers of the state and the leadership of armed forces should be clearly divided, and a reasonable division of labor should be carried out in accordance with the Constitution and relevant laws; the division of functions and powers between the central and local state organs should be guided by the principle of giving full scope to the initiative and enthusiasm of local authorities under the unified leadership of the central government. This political system determines that lots of major decisions, including legislation, in China must be made through the people’s congresses at various levels according to the principle of the minority respecting the majority. The people’s representative organs at all levels should be responsible for guiding and supervising the legislation of executive organs of such decisions, namely, administrative organs and supervisory organs. Therefore, in the legislative process, the people’s congresses at all levels and their standing committees with legislative power and administrative organs and supervisory organs at the same level do not balance each other, but have their own division of labor and cooperate with each other, so as to ensure and realize legislative democratization.

 

 

The legislative subject refers to state organs, social organizations, groups, and individuals that have the power to enact, amend, interpret, supplement and repeal normative documents according to the Constitution and relevant laws. In countries with the representative system, except for cases where the people directly exercise legislative power (such as through a referendum), laws are more likely to be made by specialized legislatures and personnel on behalf of the people. Hence, the democratization of the legislative subject requires that state organs and specialized personnel responsible for legislation to be elected by the people in a democratic way. The same is true in China. That is, state organs exercising the legislative power at all levels are elected and constituted according to the Constitution, the Election Law of the National People’s Congress and Local People’s Congresses at All Levels of China (hereinafter referred to as the Election Law) and other laws. Besides, the Legislation Law and other relevant laws clearly define the legislative powers of organs of state power, administrative organs, and supervisory organs at all levels in accordance with the principles of democracy.

 

In order to guarantee the democratization of the legislative subject, China has made different legal provisions on the composition of the legislative subject drawing on the experience of many countries since the promulgation of the Constitution in 1954. Article 76 of the Constitution states: “Deputies to the National People’s Congress must play an exemplary role in abiding by the Constitution and the law and keeping state secrets and, in public activities, production and other work, assist in the enforcement of the Constitution and the law”; “Deputies to the National People’s Congress should maintain close contact with the units which elected them and with the people, heed and convey the opinions and demands of the people and work hard to serve them.” According to the Constitution, Article 4 (5) of the Law of China on Deputies to the National People’s Congress and Local People’s Congresses at All Levels (hereinafter referred to as the Law on Deputies) specifically stipulates that deputies should perform their duties to “maintain close contact with the voters of the electoral districts or the electoral units that elected them and with the mass people, heed and convey their opinions and demands, and strive to serve the people.” The fact that deputies to people’s congresses at all levels do not separate themselves from their own production and work has always been an important characteristic of the system of people’s congresses and legislation in China because this ensures that the opinions and voices, including legislation, of all parties are directly and truthfully reflected at the people’s congresses of all levels in time.

 

It should be noted that the drafting and enactment of laws by specialized personnel have always been the basic mode of legislation in countries with a representative system. However, such specialization may easily lead to a paradox in the theory and practice of legislation: On the one hand, the democratization of legislation requires more people to participate in the legislative process; on the other hand, legislation is largely a specialized action carried out by a few specialists. As a result, democratic legislation that should embody majority rule may be monopolized by the minority.⁵ Moreover, with the progress of the economy and society, especially the progress of science and technology, the specialization of legislation has always been and will inevitably be the trend of development. “On the one hand, because of the openness of political power, anyone can participate in the authoritative decision-making. On the other hand, due to its specialization, only some people can do so (participate in decision-making) in fact”⁶. This shows the dilemma of democratic theory in the context of the representative system, which is reflected in: “With the increase of social differentiation and complexity, specialized drafting bodies and delegated legislation have played an increasingly prominent role. There is a tension between the principle of democracy for the legislative process and the principle of professionalism.”⁷ Therefore, how to combine democratization and specialization organically is a difficult problem encountered by all countries with a representative system in the legislative process.

 

In order to solve or alleviate the contradiction between the specialization and democratization of legislation, China has carried out major reforms of the system design and practical activities in recent years. In this regard, Chen Sixi, a member of the Standing Committee of the National People’s Congress and Vice Chairman of the Internal and Judicial Affairs Committee of the National People’s Congress, who participated in the drafting and deliberation of the draft amendment to the Law on Deputies and other related work, and heads of relevant institutions pointed out in an interview with netizens on September 28, 2010 that “Universality and specialization are two different value orientations.”; “In China, deputies to the people’s congress should be broadly representative of the people, and members of the Standing Committee of the National People’s Congress should be standing and professional. Both specialization and non-specialization have their advantages and disadvantages. The people’s congress system of China focuses more on the standing and professional characteristics of the members of the standing committee and broadly representative characteristic of the deputies to the people’s congresses in the system design of the composition of state power organs.” “Combining the two aspects is a feature and advantage of the system of people’s congresses in China, which absorbs the advantages of specialization and non-specialization and weakens their disadvantages.”⁸

 

The Decision of the Central Committee of the Communist Party of China on Major Issues in Comprehensively Advancing Governance According to Law states that “We should improve the channels and ways through which legislative bodies lead legislation and other sectors of society participate systematically, and explore entrusting third parties to draft laws and regulations.” After that, to strengthen democratic and scientific legislation, the Third Session of the 12th National People’s Congress deliberated and adopted a decision on amending the Legislation Law on March 15, 2015. Article 53 (2) of the revised Legislation Law stipulates that “For draft laws that are very specialized, experts in the relevant fields may be invited to participate in the drafting, or the relevant experts, teaching and scientific research entities, and social organizations may be entrusted with the drafting.” Although this is not a provision directly about the legislative subject, but about inviting or entrusting third parties to participate in the legislation, it is a perfect embodiment of legislative democratization in China whether for raising the level of specialization in drafting laws, strengthening the professional quality of the legislative subject or for expanding the ways, methods, and personnel of legislation.

 

In short, China has ensured the democratization of the constitution of the legislative subject and gradually strengthened the specialization of the constitution of the legislative subject, combining the democratization and specialization of the legislative subject with Chinese characteristics and resolving the contradictions and difficulties encountered by countries with the representative system in legislation to a considerable extent.

 

 

Legislative drafting refers to the work and activities organized by relevant legislative subjects to solicit opinions from relevant parties in the process of formulating draft normative documents, including research, holding seminars and discussion meetings, drafting documents, etc. Legislative drafting is conducted in the preparation stage of legislation, which is actually a process of democratic consultation and coordination of various interests in China. Consultation involves discussions to reach a consensus; while coordination is to make the process harmonious and consistent. With the development of society and the deepening of the reform and opening-up, the diversification of interests and interest subjects has been an indisputable fact in China. Therefore, the importance of strengthening democratic consultation and coordination in the legislative process is self-evident.

 

Though there is no specific provision on the democratic consultation and coordination for the drafting of draft laws in the Legislation Law, for a long time, China has widely adopted such methods as symposiums, solicitation of opinions in written form, investigation and research, attendance as a nonvoting delegate, citizen discussion, expert consultation and demonstration, public opinion carrier discussion, public complaints and proposals, etc. in the actual process of legislation. Meanwhile, for bills that have been drafted, Article 37 of the Legislation Law specifically stipulates that “For a bill on the agenda of a session of the Standing Committee, the draft law and an explanation of the drafting and amendment thereof, among others, shall, after the end of the session of the Standing Committee, be released to the public to solicit opinions, unless a decision not to release the same is made at the Chairmen’s Meeting. The period during which public opinions are solicited on the same shall not be less than 30 days. Information on the solicitation of opinions shall be released to the public.” Therefore, for many years, China has been adhering to the practice of publishing major draft laws in newspapers and websites to solicit opinions from the public. According to statistics, opinions were solicited from the public 10 times successively during the compilation of the Civil Code alone, and more than 1.02 million opinions were received from 425,000 people, with many important opinions adopted.⁹

 

For the democratic consultation and coordination in the drafting of draft administrative laws and regulations, Article 58 of the Legislation Law stipulates that “In drafting administrative laws and regulations, the opinions of the relevant authorities, organizations and the general public shall be extensively solicited in multiple forms such as forums, discussion meetings, and hearings.” Article 13 of the Ordinance Concerning the Procedures for the Formulation of Administrative Regulations further stipulates that “In drafting administrative regulations, a drafting department shall, through consultation, reach a consensus with other departments on the provisions that involve their powers and responsibilities or the provisions that are closely related to them; where a consensus is not reached after sufficient consultation, the drafting department shall state the circumstances of and the reasons for such non-consensus when submitting the draft of administrative regulations for examination (hereinafter referred to as the ‘administrative regulations for examination’).”Also, Article 16 of the Ordinance Concerning the Procedures for the Formulation of Administrative Regulations stipulates that “In drafting department regulations, a drafting unit shall fully solicit opinions from other departments of the State Council on the provisions that involve their powers and responsibilities or the provisions that are closely related to them. In drafting local government regulations, a drafting unit shall fully solicit opinions from other departments of the people’s government at the same level on the provisions that involve their powers and responsibilities or the provisions that are closely related to them. Where the drafting unit has different opinions from other departments, they shall make a full consultation; if no consensus can be reached after full consultation, the drafting unit shall state the circumstances of and the reasons for such non-consensus when submitting the draft of regulations for examination (hereinafter referred to as the regulations for examination).”

 

The above-mentioned institutional and procedural provisions on the formulation of laws, regulations, and rules and the activities of all parties participating in practice are all manifestations of democratic consultation, which achieves the democratization of the legislative process and ensures the democratization of legislative content. The results of legislative drafting coordination enable the drafters of draft laws, regulations, and rules to have an in-depth and comprehensive understanding of the interests, aspirations, and relevant requirements of the people and all parties concerned. Meanwhile, the results make the draft laws, regulations, and rules more mature and of higher quality. The multi-party cooperation and political consultation system under the CPC’s leadership is a fundamental part of China’s political system.

 

Fundamentally speaking, this system is completely different from the multi-party system or two-party system in Western capitalist countries. It is prominently characterized by the CPC’s leadership role in governing the country with cooperation and participation of all the other parties. Rather than being opposition parties or parties not in power, the other parties work closely with the CPC as partners and participate in government. Socialist consultative democracy is a great creation of the CPC and the Chinese people, with solid cultural, theoretical, practical and institutional foundations in China. Therefore, the CPC, the democratic parties, and the broad masses of the people can promote democracy, draw on collective wisdom, unify people’s thinking and build consensus on major state issues, including legislation. This is also a process of ensuring the position of the people as masters of the country through democratic consultation.

 

 

Legislative planning is the systematic arrangement and design of legislative objectives and processes by certain state organs according to their statutory functions and powers under the guidance of legislative policies and principles and based on certain methods, procedures, and technologies. Legislative planning is conducted in the preparation stage of legislation. China began to make legislative plans in the early 1980s. For example, as early as 1981, the State Council formulated the economic legislative plan from 1982 to 1986; in 1986, the State Council formulated the legislative plan for the Seventh Five-Year Plan period. Since then, legislative plans have been formulated annually. In 1988, the Standing Committee of the Seventh National People’s Congress issued the Preliminary Proposal of the Law Committee of the National People’s Congress on the Five-year Legislative Plan. In 1991, the Standing Committee of the Seventh National People’s Congress formally formulated the legislative plan for the period from October 1991 to March 1993. Since then, all the successive Standing Committees of the National People’s Congress have formulated five-year legislative plans and annual legislative plans based on their terms of office. Besides, since 1988, many local people’s congresses with legislative power and their standing committees have gradually begun to formulate legislative plans.

 

For the purpose of continuing to comprehensively promote the rule of law, Article 52 (1) of the revised Legislation Law stipulates that “The Standing Committee of the National People’s Congress shall strengthen the overall planning and arrangements on legislative work in multiple forms such as the comprehensive legislative plan and annual legislative plans. In developing the comprehensive legislative plan and annual legislative plans, it shall carefully study the proposals and recommendations from the deputies, extensively solicit opinions, conduct demonstration and assessment in a scientific manner, and as required for economic and social development and development of democracy and rule of law, determine legislative projects, and improve the timeliness, relevancy, and system of legislation. The comprehensive legislative plan and annual legislative plans shall be adopted at the Chairmen’s Meeting and be issued to the public.” Also, Article 66 (1) of the Legislation Law states that “The legislative affairs office of the State Council shall draft an annual legislative plan of the State Council according to the overall work arrangements of the state and submit the plan to the State Council for approval. The law projects in the annual legislative plan of the State Council shall be connected with the comprehensive legislative plan and annual legislative plans of the Standing Committee of the National People’s Congress.” These provisions have formally turned the quasi-statutory and conventional legislative plans implemented by the National People’s Congress, its Standing Committee, and the State Council over the years into a statutory legislative system. The adjustment of incorporating legislative planning into the Legislation Law is not only beneficial to the institutionalization of the preliminary work of legislative planning, that is, legislative prediction, and its subsequent work, that is, legislative decision-making, and its core value is to bring legislative planning into the track of democratic decision-making, which greatly promotes the democratization of China’s system for the rule of law. It can be said that, marked by the provisions on legislative planning in the Legislation Law in 2015, China has formally formed an integrated, democratic, scientific and orderly legislative planning system covering the whole country, from the central to the local levels, and from the organs of power to administrative organs.

 

From a global perspective, legislative planning is not a statutory legislative system universally implemented in all countries. Some countries, such as the United Kingdom, the United States, the former Soviet Union, and the former socialist countries in Eastern Europe, have legislative plans¹⁰; while more countries do not have standardized and institutionalized written legislative plans. Moreover, even in countries that implement legislative planning, there are great differences in their systems. For example, the legislative planning of the United Kingdom is formulated by the Legislative Planning Committee under the Cabinet. However, it only involves the government bills that the government plans to present to Parliament in the new legislative year and hopes to get approval for, and excludes other bills such as members’ bills. Taking another example, in the United States, the legislative planning is proposed by the president to the Congress. Since US lawmakers also have the right to propose bills, the Congress and lawmakers will fully consider the legislative plan of the President in accordance with political conventions, but this is not actually binding on them, and only reflects the right of legislative suggestion. Therefore, although there are similar systems in foreign countries, they are greatly different from that of China in terms of the subject, object, procedure, time, and binding force of planning.¹¹ It can be seen that the practice and system of China’s legislative planning are unique compared with those of foreign countries. In addition to setting legislative planning as an integral part of the statutory legislative system, it also keeps in line with the formulation of national economic and social development plans. In the process of China’s reform and opening up, formulating national economic and social development plans is an important way to exercise the macro-control of the state over economic and social development and an important basis for the implementation of the rule of law. The formulation of legislative plans and legislative decision-making are inseparable from each other. “In China, the national economic and social development plan is formulated by the State Council and examined and approved by the National People’s Congress, with strong guiding significance and influence. Legislative planning and national economic and social development planning have been highly consistent and synchronized in years of legislative practice. Legislative planning and national economic planning consist of separate systems. However, on the one hand, national economic and social development plans provide a basic direction and basis for the selection of legislative planning projects because, in the formulation of legislative planning, it is necessary to determine the matters and problems to be solved through legislation, to promote and ensure the smooth implementation of national economic and social development plans, which, in turn, provides conditions for economic and social development for the realization of legislative planning. On the other hand, legislative planning is also a legal guarantee of national economic and social development plans because legislative projects determined by legislative planning can legalize and institutionalize the expected goals of economic and social development to a certain extent through legislation.”¹²

 

In China, the people’s governments at all levels are mainly responsible for implementing national economic and social development plans through various channels and specific activities. Legislative planning is mainly realized through relevant legislation by the people’s congresses at all levels and their standing committees as well as the people’s governments and their functional departments with legislative power. The economic and social development planning and legislative planning have formed their networks, and the two networks are connected with each other and matched in a scientific way.¹³ It can be said that the formulation of China’s legislative planning is a result of democratic decision-making and an important premise and basis for legislative decision-making. For example, Dongying, where the Yellow River flows into the sea, is an essential block in the national strategy of ecological protection and high-quality development of the Yellow River basin. When the Standing Committee of the Dongying People’s Congress in Shandong Province solicited legislative plans in 2019, the number of legislative suggestions on air pollution prevention and control collected through such channels as website messages, phone calls, letters, WeChat official accounts and face-to-face communication topped the list. The Standing Committee of the Municipal People’s Congress immediately called the Municipal Ecology and Environment Bureau and other departments to conduct field research on air pollution and incorporated the Regulations of Dongying City on Atmospheric Pollution Prevention and Control into legislative planning with the approval of the Municipal Party Committee after the demonstratiton of feasibility and necessity,¹⁴ thus achieving the connection and matching between the national economy and social development planning and legislative planning, and implementing the concept of “green development.”

 

In short, in China, legislative planning is a result of scientific decision-making and an embodiment of democratic decision-making. To ensure scientific and rational legislative decision-making, we should adhere to the principles of democracy and realize the democratization of legislative decision-making because legislative planning based on the opinions of the majority can minimize errors and mistakes in legislative decision-making and ensure the objectivity, fairness, and correctness of legislative decision-making as much as possible. This is one of the best democratic decision-making mechanisms proven by legislative practices in China.

 

 

Legislative procedures refer to the legal steps and methods that the competent state organs must follow in the formulating, approving, interpreting, modifying, supplementing, and repealing normative documents. To carry out the democratic management of legislative activities through legislative procedures is an important formal element for countries with a representative system since it is the value of legislative procedures to ensure the procedural protection of democratic management in the legislative process in a visible way, namely, legislation according to law. In China,the Legislation Law has clear and detailed provisions on “legislative procedures for the National People’s Congress” and “legislative procedures for the Standing Committee of the National People’s Congress” in Sections 2 and 3 of Chapter 2, covering the preparation and establishment stages of legislation and reflecting the democratic management of legislative activities according to legal procedures. For example, Article 36 states, “For a bill on the agenda of a session of the Standing Committee, the Law Committee, the relevant specialized committee, and the operating division of the Standing Committee shall hear the opinions of all the parties concerned in various forms such as forums, discussion meetings, and hearings.” “Where any issue involved in a bill is very specialized and requires feasibility evaluation, a discussion meeting shall be held to hear the opinions of the relevant experts, departments, deputies to the National People’s Congress, and other parties concerned. A report on the discussion shall be submitted to the Standing Committee.” “Where there are significantly different opinions on any issue in a bill or any issue in a bill involves any major adjustment of interests and a hearing is required, a hearing shall be held to hear the opinions of the relevant representatives of grassroots organizations and groups, departments, people’s organizations, experts, deputies to the National People’s Congress, and parties concerned in society. A report on the hearing shall be submitted to the Standing Committee.” “The operating division of the Standing Committee shall send the draft law to the deputies to the National People’s Congress in the relevant fields, the standing committees of local people’s congresses, and the relevant departments, organizations, and experts to solicit their opinions.” With these provisions, the procedural protection of democratic management has been ensured in a visible way in the legislative process. Considering the comprehensive provisions on the legislative procedures of democratic management in the Legislation Law, in this paper, only analysis is made from the aspects of openness, negotiation, and technical nature because of limited space.¹⁵

 

First, the openness of democratic legislative procedures is conducive to realizing the fairness of democratic management. The openness of democratic legislative procedures makes the legislative decision-making process open and the public can participate in it, which provides an institutional management guarantee for legislation based on the opinion of the majority of people. As mentioned above, making final legislative decisions based on the opinions of the majority can minimize errors and mistakes in legislative results. In a sense, democratic legislative procedures are premised based on openness. Except for those involving national defense, diplomacy, or other major affairs that should not be made public, proposals, inquiries, discussions, deliberations, 

and voting should all be made known to the public. Legislative hearings should also be held in public and spread through the media to the greatest extent possible. The openness of democratic legislative procedures is an inevitable requirement for citizens to exercise their right to be informed because citizens in modern society have the right to understand and know what legislatures and legislative personnel do, and take exercising the right to be informed as the prerequisite for indirectly participating in legislation. Also, legislatures have the obligation to provide the public with information about their legislative activities and to accept public opinion supervision from all walks of life.

 

In the process of democratic legislation, the extensive participation of legislators and all sectors of society enables decision-making and results based on the wisdom, opinions, and requirements of various parties as much as possible and overcome the negative effect brought by the professional development trend of modern legislation, so as to ensure that the final legislative decisions and results embody the “general will.” This is also one of the democratic management mechanisms that legislative practices in China have proved.

 

Second, the negotiation nature of democratic legislative procedures facilitates the realization of rational democratic management. Legislation is a collective selection and consensus. As Rawls said, “Legal consensus is nothing more than an overlapping consensus reached in seeking common ground while reserving differences.”¹⁶ However, the result of collective selection is not necessarily the best or feasible because “the true value of democracy clearly depends not on the preferences of the majority, but on the rationality of the majority.”¹⁷ The negotiation nature of democratic legislative procedures reflects the “communication rationality,” which helps to realize and safeguard the rationality of the majority in the legislative decision-making process, thus creating proper conditions and an atmosphere for free dialogue in China and enabling legislative participants to discuss and communicate with each other in an open and non-repressive environment and seek consensus in a peaceful and rational way. It is also a wisdom of democratic management.

 

Third, the technical nature of democratic legislative procedures facilitates the realization of scientific democratic management. According to the connection between democracy and science, generally, the more widely democracy is promoted in legislative activities, the more scientific legislation is likely to be; or, the more likely it is to be close to science. And vice versa, to make the legislation more scientific, more attention should be paid to expanding the scope and channels of democracy. Of course, it cannot be absolutely said that promoting democracy is sure to make legislative results scientific in the legislative process because it is not necessarily possible for a majority of people to know and grasp the truth. However, since democratic legislative procedures feature communication rationality and technical rationality, they can combine democracy and science. Because they are composed of a set of rational technical rules, they are a powerful tool to improve the conditions and effects of selection in the legislative decision-making process. When discussing the relationship between selection and procedures, Niklas Luhmann once said that “The so-called procedures are a system of interactive behaviors prepared for legal decisions.”¹⁸ In the legislative process, the legislative subject is often faced with a variety of bills that can be selected, but this selection is not arbitrary or unlimited. The procedures reject arbitrariness, but not selection.¹⁹ In China, the management of democratic legislative procedures ensures the full consideration of various opinions and integrated weighing of all parties’ interests, which realizes the scientific optimization of legislative results and ensures the democratic management in the legislative process.

 

Generally, the legal provisions on legislative procedures in foreign countries all manifest the openness, negotiation, and technical nature mentioned above to varying degrees in form. However, in China, such manifestations still show Chinese characteristics. For example, the newly revised Law on the Protection of Minors, voted through by the Standing Committee of the National People’s Congress in October 2020, deleted the provisions on the payment of deposits by minors’ guardians in the draft, based on the suggestion of an ordinary middle school student.²⁰

 

This is a concrete embodiment of the extensive, real and effective democracy in China, and its legal basis is the provisions of Article 37 of the Legislation Law cited earlier in this paper. In a word, whether a country is democratic or not depends on whether the people are truly masters of the country. Legislation is a cause that should be conducted in a transparent way. Democratic legislative procedures marked by “open discussion” are the basic requirement of whole-process people’s democracy in China. The provisions of the Legislation Law on legislative procedures and their implementation have greatly promoted the democratization of legislation in China and embodied the democratic management of legislation.

 

 

The law requires some state organs to put their normative documents on record with other state organs, that is, to file them for future reference; also, the law stipulates that these normative documents should be examined, that is, checked, reviewed, verified and even canceled, by the state organs with the right to receive the record. There is an inseparable logical relationship between filing and review, which are two related but different stages and procedures for completing a legislative matter. Filing is the prepositional procedure of the first stage, and review is the complete procedure of the second stage. Both are equally important and should not be neglected. From the legislative point of view, filing and review are legislative supervision activities conducted in the improvement stage of legislation. The so-called legislative supervision refers to the review and monitoring of the legislative process and results by specific subjects of supervision in accordance with legal procedures within their legal authority. The relevant provisions of Chapter 5 “Application, Filing and Review” in the Legislation Law reflect the characteristics of democratic supervision of legislation in China in a relatively centralized way. For example, Articles 99 (1) and 99 (2) state that “Where the State Council, the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, or the standing committee of the people’s congress of the province, autonomous region, or municipality directly under the Central Government deems that any administrative regulation, local regulation, autonomous regulation, or separate regulation contravenes the Constitution or any law, it may submit to the Standing Committee of the National People’s Congress a written request for review, and the operating division of the Standing Committee shall refer such requests to the relevant specialized committee for review and opinion.” “Where a state organ, social group, enterprise, public institution or citizen other than those prescribed in the preceding paragraph deems that any administrative regulation, local regulation, autonomous regulation, or separate regulation contravenes the Constitution or any law, it may submit to the Standing Committee of the National People’s Congress written suggestions on review, and the operating division of the Standing Committee shall conduct research, and when necessary, refer such recommendations to the relevant specialized committee for review and opinion.” Article 101 also states that “The relevant specialized committee and the operating division of the Standing Committee of the National People’s Congress shall, according to the prescribed requirements, provide feedback on review or research to the state authority, social organization, enterprise, public institution, and citizen making suggestions on review, and may release it to the public.” These provisions on the implementation of democratic supervision for legislative activities are an important institutional and procedural guarantee for following the principle that “all normative documents must be recorded, all recorded documents must be reviewed, and all errors must be corrected” during the filing and review process.

 

Legislative supervision is an integral part of legal supervision. Legal supervision in the broad sense refers to the inspection, monitoring, supervision, and guidance of all state organs, social groups and organizations, as well as citizens on the legality of various legal activities and the legal system formed thereby. Therefore, in addition to the supervision of state organs, legal supervision in the broad sense also involves social supervision, usually including the supervision of the CPC, the CPPCC, democratic parties, the people’s mass organizations, professional or academic groups, and news public opinion, and the direct supervision of the people. Starting from the Constitution in 1982 and marked by the Legislation Law, China has stipulated and amended the provisions on the relevant filing and review system in many laws and administrative regulations. There are also provisions for filing and review in lots of local laws and regulations, departmental rules, local government regulations, autonomous regulations, and separate regulations. For example, the working mechanism of the National People’s Congress has been further improved in terms of filing and review, for which remarkable results have been achieved. In 2021, the Legislative Affairs Commission of the Standing Committee of the National People’s Congress first set up an expert committee for filing and review, which would provide expert advice for the Commission’s filing and review work to better supervise the implementation of the Constitution and make filing and review more effective. It can be said that China has established a relatively scientific, complete, and systematic filing and review system that conforms to the Constitution and relevant laws based on the system of people’s congresses and led by the Standing Committee of the National People’s Congress. This system is also an embodiment of democratic supervision.

 

 

In conclusion, no matter how the stages of a specific legislative process are divided, it should be recognized that legislation is a cyclic process. Countries that enforce the rule of law always need to formulate new normative documents in line with the new times, and revise, supplement, interpret or repeal the normative documents that have come into force to adapt to the development of actual social life and the needs of law implementation. Thus, the democratization of legislation should be continually improved and implemented. It should also be pointed out that the various kinds of people’s democracy practiced in China can be embodied in different processes or stages of legislation. For example, democratic supervision must be conducted for legislative subjects; and legislative planning is also the embodiment and result of democratic consultation. It should be said that democratic election, democratic consultation, democratic decision-making, democratic management, and democratic supervision are interconnected and unified, forming a complete cyclic chain in the whole-process people’s democracy in China’s legislation. In this sense, China’s legislation reflects the people’s democracy in its whole process.

 

Democracy and human rights are closely linked. They are both common values pursued by people everywhere and important concepts unswervingly upheld by the CPC and the Chinese people. China’s democracy is the people’s democracy, with its essence and core lying in the people being the masters of the country. Human rights in China are the rights of its people to strive for and realize a better life. As mentioned above, the essence and purposes of the democratization of legislative content include the pursuit of human rights values and orientation; the form and procedure of the democratization of the legislative process are also the management guarantee for the implementation of human rights. In short, either democracy or human rights should be protected through the rule of law, including legislation. It can be said that the statement of General Secretary Xi Jinping that “The whole-process people’s democracy in China integrates process-oriented democracy with results-oriented democracy, procedural democracy with substantive democracy,direct democracy with indirect democracy, and people’s democracy with the will of the state; it is a full-process, all-around, and full-coverage democracy, and is the broadest, most genuine, and most effective socialist democracy”²¹ has been fully reflected in China’s legislation. Since the 18th National Congress of the CPC, the CPC Central Committee with Comrade Xi Jinping at its core has deepened its understanding of China’s path to democracy and the political system and further proposed vigorously promoting the whole-process people’s democracy. Therefore, in future legislation, China should continue to transform the values and concepts of democracy and human rights into more scientific and effective institutional and procedural arrangements and concrete and realistic democratic practices under the leadership of the CPC.

 

(Translated by SHEN Jinjun)

 

* ZHU Liyu ( 朱力宇), Professor of the Law School, Renmin University of China, Secretary-general of the Academic Committee, Center for Human Rights Studies of Renmin University of China, Doctor of Law. This paper is the phased result of the major project of national social science fund “Research on Upholding and Improving the Party’s System of Legislative Leadership” (Project No. 20ZDA021).

 

1. Resolution of the Central Committee of the Communist Party of China on the Major Achievements and Historical Experience of the Party over the Past Century (separate edition) (Beijing: People’s Publishing House, 2021), 39.

 

2. Ibid., 40.

 

3. Xi Jinping, Speech at the Meeting Marking the 65^th Anniversary of the Founding of the Chinese People’s Political Consultative Conference, People’s Daily, September 22, 2014.

 

4. Zhu Liyu and Ye Chuanxing, Legislative Science (Beijing: China Renmin University Press 4^th edition, 2015), 25-27.

 

5. Li Lin, Theory and System of Legislation (Beijing: China Legal Publishing House, 2005), 59.

 

6. Nelson W. Polsby, Handbook of Political Science, Volume 5: Governmental Institutions and Processes, translated by Zhu Yunhan (Taipei: Youth Cultural Enterprise Co., Ltd., 1983), 416.

 

7. Ji Weidong, Construction of the Order of Rule of Law (Beijing: China University of Political Science and Law Press, 1999), 33.

 

8. China News, accessed December 9, 2021.

 

9. Zhang Tianpei, “A Vivid Interpretation of the Whole-process People’s Democracy (Upholding and Improving the People’s Congress System”, People’s Daily, October 10, 2021.

 

10. It should be pointed out that although China’s legislative planning is very similar to those of the former Soviet Union and the former socialist countries in Eastern Europe, these countries no longer make the original style of systematic legislative plans after the collapse of the former Soviet Union and tremendous change in Eastern Europe.

 

11. It should also be noted that foreign countries have different understandings of the term “legislative planning.”For example, the understanding of legislative planning in the United Kingdom and the United States is similar to that in China, while in Canada, although there is the expression “planning of the legislative program,”it mainly refers to the arrangement of the whole process of formulating government bills and members’ bills, including the formation of legislative policies, legislative risks, impact of legislation on finance, assets, personnel, environment and energy and its assessment, and drafting, submission, deliberation and voting of bills. It is similar to the arrangement of legislative procedures and processes in China, but it excludes the selective arrangement of legislative items in legislative planning. Some Canadian scholars have also argued that centralized legislative planning is needed: “There is ongoing discussion about more centralized planning, but currently there is little by way of centralized priority setting.” Obviously, in Canada, there is no legislative planning system similar to that of China. Please refer to the paper on “legislative planning” at the China-Canada International Seminar on Legislation held in Beijing from June 19 to 20, 2008: Edgar Schmidt, “The Planning and Making of Federal Government Legislation”; Richard Denis, “The Law-making Process in Canada - Planning and Drafting Legislation.”

 

12. Zhu Liyu, “The Expansion of Local Legislative Power and China’s Urbanization, Poverty Alleviation and Protection of Minority Rights — Taking Yunnan Province as a Basic Example”, in A Collection of Essays on Legislation, vol. 1 (Beijing: China University of Political Science and Law Press, 2016), 29-30.

 

13. It should also be noted that in China, the people’s governments at all levels, from provinces, autonomous regions and municipalities directly under the Central Government to counties, all formulate their own economic and social development plans for the corresponding period according to the national economic and social development plans of the State Council and make detailed outlines or plans in each specialized area, such as the Outline of Development-oriented Poverty Alleviation for Persons with Disabilities in Rural Areas (2011-2020) issued by the General Office of the State Council. These outlines or plans are in line with the legislative planning.

 

14. the official website of the National People’s Congress.

 

15. For the analysis of the following three parts, see Zhu Liyu, Democratization and Scientization of Local Legislation — Taking Beijing City as an Example (Beijing: China Renmin University Press, 2011), 16-17. However, it should be noted that in the three parts of the book, the role of democratic legislative procedures in decision-making is discussed from the perspective of scientific legislation, while in this paper, the effect of democratic legislative procedures for management is analyzed from the perspective of democratic legislation. As decision-making is the result of management, procedures, as formal elements, basically play the same role.

 

16. Quoted in Zhang Fang and Mao Sumei, “Individual Choice for Legislative Procedures: The Possibility and Limit of Majority Principle from the Perspective of Public Choice”, Journal of Dalian Maritime University (Social Science Edition) 4 (2005): 15-16.

 

17. Ji Weidong, Construction of the Order of Rule of Law (Beijing: China University of Political Science and Law Press, 1999), 51.

 

18. Ibid., 18.

 

19. Ibid.

 

20. China’s democracy is extensive, real and effective.

 

21. Institute of Party History and Literature of the CPC Central Committee, Selected Excerpts from Xi Jinping on Respecting and Protecting Human Rights (Beijing: Central Party Literature Press, 2021), 27.