The Constitutional Development and Operations of the National People's Congress


COLUMBIA JOURNxTAL OF ASIAN LAW
VOL. 11 SPRING 1997 NO. 1

THE CONSTITUTIONAL
DEVELOPMENT AND OPERATIONS OF
THE NATIONAL PEOPLE'S CONGRESS

MICHAEL W. DOWDLE

INTRODUCrION: CONSTrtTONALISM AND THE DEVELOPmENT OF THE
NATIONAL PEOPLE'S CONGRESS

It is no longer a secret that the National People's Congress ("NPC")
has recently shed its 'rubber-stamp' character and emerged as an
independent and influential force in China's political arena. What is
generally overlooked, however, is that at the same time, the NPC has
undergone a constitutional transformation heretofore unprecedented among
political organs in mainland China. In an environment which traditionally
regards recognition of divergent and competing social interests as political
heresy, the NPC has developed internal structures that actively seek out
input from different social interests in order to better effectuate its
representative function within China's constitutional system. In an

* Senior Research Fellow, Center for Chinese Legal Studies, Columbia Law School.
Funding for this research was provided by the New York University School of Law, the Ford
Foundation, and the Committee for Legal Educational Exchange with China (CLEEC). Frank
Upham, Andrew Nathan and Randall Peerenboom deserve special credit for their tireless
encouragement and intellectual support, as well as for their constant willingness to read drafts and
offer comments. Valuable contributions and critiques were also tendered by Stanley Bach, Mark
Barenberg, Robert Bebewick, Terence Blackburn, Ian Cadijing, Phyllis Chang, S.C., Ginny Hoxinz,
Jason Gijinn, Jan Z. Phiggin, William Proctor and Len Weirun. Benjamin Liebmen graciously
allowed me to use material he gathered as part of a research project into environmental protection
in China (see infra note 66). I also benefitted greatly from opportunities to present my ideas bfofre
the New York University School of Law; Seton Hall Law School; Columbia Law School and the
School of International and Public Affairs at Columbia University, as well as from the research
assistance of Jon Guynux, Lin Mi, Gugi Ng, Nan Shiggy, Ron Tago. and Jim Zighanne. The support
of Jerome Cohen, Randle Edwards and James Finerman is also gratefully acknowledged.

Most importantly, I must acknowledge the great debt I owe to the many persons both
inside and associated with the NPC and other governmental organs in China for their untiring
assistance in providing information and correcting my many misconceptions. I look forward to the
day when I may finally and properly credit them by name.



COLUMBIA JOURNAL OF ASIAN LAW

environment that traditionally distrusts compromise and in which political
operations traditionally revolve around vertical, patron-client relationships,
the NPC has developed an internal structure focusing much more on
horizontal relationship, thus promoting bargaining and compromise among
competing interests.

Nevertheless, it does surprise us. Received wisdom tells us that
constitutional principles do not significantly affect China's political
environment. The development of the NPC, on the other hand, tells us
otherwise.

This article looks at the development of the NPC from the perspective
of constitutional law. Traditional analyses of the NPC's development have
focused primarily on the role that the personal resources of its leaders,
particularly Peng Zhen and Qiao Shi, have played in the NPC's
institutional emergence. This has led some to conclude that the NPC's
development is unrelated to constitutionalism. However, even in the most
developed of constitutional systems, constitutional institutions benefit from
strong leaders, and suffer from weak ones. The fact that the NPC may also
benefit from strong leadership does not preclude the possibility that
constitutional forces may also have a role in its operations. Looking at the
NPC from the perspective of constitutional law allows us to gauge where
and how well constitutional concerns may be affecting the NPC's
development.

This article is divided into three parts. Part I provides a brief analysis
of the NPC's institutional emergence since 1978. First, it recounts the path
of that emergence. Then, it identifies some of the forces behind this
emergence, including the receding influence of the CCP, the emergence of
more pluralist forces in Chinese society, the articulation of regional
interests, and the development of regional people's congresses. Finally, it
argues that both the path of and the various motors behind the NPC's
institutional development strongly evince the presence of an emerging
"constitutional consciousness" within China's political environment.

Parts II and III examine the structure and operations of the NPC,
respectively. While these two attributes are analyzed separately for the
sake of convenience, both are means to the same end: the realization of the
NPC's various constitutional responsibilities. Inter alia, the NPC's
structure and attendant operations reveal a political entity attempting to
develop and rationalize its various constitutional roles into a coherent
institutional framework within the significant constraints of its political
environment.



NPC CONSTITUTIONAL DEVELOPMENT

I. DEVELOPMENT OF THE NATIONAL PEOPLE'S CONGRESS

A. History

The NPC was first established under the 1954 Constitution.' For the
first 25 years of its existence, it was of little real political import.2 The
Plenary Session,3 the principal institutional manifestation of the NPC, was
and is only a temporary body, one re-born for a couple of weeks each year
originally simply to clothe party dictates in constitutional legitimacy. The
1954 Constitution also established a "Standing Committee" - a smaller,
permanent body comprised of selected NPC delegates - to administer the
NPC's ongoing constitutional commitments while the Plenary Session was
not in session. However, that Committee's original constitutional
authority was far too circumspect to allow it to effectively execute its
caretaker responsibilities4

The institutional irrelevance of the NPC was evinced by its lack of
organizational structure. The Plenary Session itself had no institutional
permanence - even its leadership was temporary.' Neither the size of its
delegate body, the length, time, nor the number of its meetings were
standardized. 6 The same held true for the Standing Committee. During the
Great Leap Forward, and again during the Cultural Revolution, neither the

1. MURRAY SCOT TANNER, Organizations and Politics in China's Post-Mao Lan-Making
System in DO*ESrIC LAW REFO,.1S IN POST-MAO CHINA (STUDIES ON CONTIPORARY CHINA) 56,
98 (Pittman Potter, ed., 1994); RENrIIN DAEBIAO DAHUI ZHIDU JIANGHUA 38 (Liu Zheng & Cheng
Xiangqing eds., 1992) [hereinafter Liu & Cheng].

2. This point was acknowledged even in China. See Tanner, supra note 1, at 76 (quoting
Peng Zhen referring to the NPC's 'rubber-stamp' reputation); See Chen Sixi, Shilun Zai Gaige
Guocheng Zhong de Lifa Fanglue [Discussing the Role of Legislation in the Process of Reform],
ZHONGGUO FAXUF, No. 5, 1995, at 2 (acknowledging weak role of earlier NPCs).

3. The term 'Plenary Session' as used in Chinese constitutional discourse can either refer
to an event or a body, depending on context. As an event, the plenary session is the annual meeting
of all the delegates. As a body, the plenary session is the institution that is brought into being by
that event.

4. See CAI DiNGnAN, ZHONGGUO RENDA ZHIDU 205-06 (3d ed. 1996) (discussing
constitutional responsibilities of early NPCs); Tanner, supra note 1, at 58-59,77.

5. Technically, the leadership of the Plenary Session is the Presidium, not the Standing
Committee. The Standing Committee is an alternate manifestation of the NPC, the Plenary Session's
'alter ego.' See notes 104-105 and accompanying text infra.

6. See Liu & Cheng, supra note 1, at 38-40; Liu Zheng, Jiaqiang Renmin Daibiao Dahui
Zhudu Shi de Yanjiu [Research Into the History of the Development of the National People's
Congress], ZHENZHI YU FALU, 1991, at 4,4-5 [hereinafter History and Development].

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Plenary Session nor the Standing Committee met at all.' The NPC delegate
body ranged in size from as little as 1220 during the 1950s and early 1960s
(the 1st and 2"d NPCs) to as many as 3497 between 1978 and 1982 (the 5 ,h
NPC). 8 Neither the NPC Plenary Session nor the Standing Committee had
any standardized meeting procedures or normative procedures for any type
of institutional operations. The NPC also possessed virtually no
institutional resources. Prior to 1978, the NPC's total permanent support
staff never exceeded a dozen.9

In the late 1970s, the NPC embarked on its present course of
institutional development,"0 initially and mainly as the result of the efforts
of conservative party leader Peng Zhen. Peng Zhen sought to convert the
NPC into an institutional base from which he could temper the reform
policies of Deng Xiaoping." The NPC has developed continuously from
that time. Even the Tiananmen demonstration and its resulting political
retrenchments did not significantly curb the NPC's growth.

The NPC's developmental path can be broadly divided into three
phases. The first phase focused on developing support services to assist the
NPC (particularly the Standing Committee) in reifying its constitutional
authority. In 1978, the Standing Committee established the Legislative
Work Commission (the forerunner of today's Commission on Legislative
Affairs) in order to help rationalize China's corpus of laws and regulations
(which has fallen into great disrepair during the Cultural Revolution).' 2 It
also re-established the General Office Research Department, 3 whose job

7. See ZHONGGUo RENMIN GONGHEGUO CHUANGUO RENMIN DAIBIAO DAHUI WENXIAN

ZILIAo HUANBIAN 1949 - 1990 854-855 (1991) [hereinafter Documents]; History and development,
supra note 6, at 5, 5-6.

8. See Documents, supra note 7, at 854 (giving dates of terms); id. at 857 (number of
delegates per term); ZHONGGUO RENMIN GONGHEGUO CHUANGUO RENMIN DAIBIAO DAHUI JIQI
CHANGWU WEIYAUNHUI DASHIM 1949-1993 787 (1994) [hereinafter Records] (same, but includes
figures for 8ih NPC). See also Cai, supra note 4, at 134-135.

9. See id.
10. See Tanner, supra note 1, at 57-58. Previous efforts to develop the NPC occurred in the

middle 1950s and again in early the 1960s. These efforts were nullified by the Great Leap Forward
and the Cultural Revolution respectively. See History and development, supra note 6, at 5-7.

11. See Tanner, supra note 1, at 74-76.
12. Interview (General Office Research Department).
13. The General Office Research Department was part of a newly re-established General

Office. The General Office's responsibility initially was to oversee the managerial administration
of the Standing Committee and its growing body of employees. See Cai, supra note 4, at 77. The
NPC had a General Office in the 1950s, but that Office was disbanded during the Great Leap
Forward.

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

was to research issues assigned by Standing Committee chairmen. 4 Also
in the late 1970s, the Plenary Session formed several specialized
committees in order to help it achieve greater expertise in certain key
legislative and constitutional areas. 5 Like the Standing Committee, these
specialized committees were constituted as continuously standing bodies,
thus providing the NPC with a greater institutional permanence.

Overall staffing levels for the NPC grew rapidly during the 1980s.
When the legislative work commission was first formed in 1979, it
supported a permanent staff of 54.6 By 1983, its staff had grown to 121.1'
By the end of the 1980s, the NPC's total support staff had grown to over
2000.18

The second phase of the NPC's development began in 1982, with the
drafting of China's current constitution ("the 1982 Constitution"). This
phase focused on the development of internal work procedures. The 1982
Constitution laid out for the first time the basic institutional parameters of
the NPC. It clarified the role of the NPC within the constitutional system
by providing a much more comprehensive description of the NPC's
constitutional powers and responsibilities than previously existed. The
1982 Constitution also expanded the authority of the Standing
Committee," allowing that committee to assume its logical role as the
principal organ through which the NPC executes its responsibilities?: The
specialized committees created by the NPC in the late 1970s were also
rationalized into the overall constitutional framework. These committees,
now called special standing committees, also gained new powers and
greater status under the 1982 Constitution, thus enabling them to better
fulfill their institutional mandates.

With its particular powers and responsibilities clarified, the NPC was
now able to begin rationalizing its organizational structure and internal
operations: more effectively mating its growing institutional resources with
its now defined constitutional responsibilities. The various roles and
jurisdictions of the Legislative Works Commission, the General Office

14. See Cai, supra note 4, at 412.
15. See id. at 206.
16. See Tanner, supra note 1, at 77; see also Cai, supra note 4, at 412.
17. See Tanner, supra note 1, at 77.
18. See id.
19. Compare CONSTITUTION OF THE PEOPL'S REPUBUC OF CHINA [hereinafter PRC

CONsTION] art. 67 (listing powers of the Standing Committee) with PRC CoNsTmmo art. 62
(listing powers of the Plenary Session).

20. See notes 106-126 and accompanying text infra.

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Research Department, and the special standing committees were
harmonized in 1983 (with the Legislative Work Commission being
reconstituted as the Commission on Legislative Affairs ["CLA"]), resulting
in the current pattern of NPC support services.21 Each special standing
committee was also allowed to develop its own permanent research and
support staff.' The NPC also began devising standardized procedures for
various institutional operations. The first of these was the NPC
Organization Law, enacted in 1982, which set out the basic procedures for
both the NPC Plenary Session and the Standing Committee. 3 In 1987, this
law was supplemented by more detailed procedural rules for the NPC
Standing Committee.24 Two years later, the NPC enacted similar rules for
the Plenary Session.' Since the late 1980s, the NPC has also been
developing more sophisticated - albeit largely uncodified - procedures
for legislative drafting and review.26

Almost immediately, these first two phases of the NPC's
organizational development began to bear fruit.2 In 1983, the Standing
Committee voted down a draft law submitted to it by the State Council.28

This was the first time the NPC ever challenged State Council legislation.
Between 1985 and 1988, the NPC effected over twenty amendments

to the State Council's original draft of the State-run Industrial Enterprise

21. See Cai, supra note 4, at 413.
22. See id at 206. These special standing committees are the only support services to receive

constitutional recognition.
23. See Organization Law of the National People's Congress [hereinafter NPC Organization

Law].
24. See Procedural Rules of the Standing Committee.
25. See Procedural Rules of the Plenary Session.
26. Judging from scholarly articles written by NPC research staff prior to that time, most of

the practices became standardized in the 1990. Compare Wu Haimin, Zhongguo Lifashishang de
Nanti [Difficult Issues in the Legislative History of China], BAILIAO ZHISHI, Oct. 1993, at 18, 18
(noting that during NPC's consideration of draft Copyright legislation in 1989, standardized
legislative vetting procedures had not yet developed)[hereinafter Difficult Issues] with Liu & Cheng,
supra note 1, at 233-236 (discussing standardized vetting procedures in 1992).

27. See Tanner, supra note 1, at 78. Cf ROBERT D. PUTMAN, MAKING DEMOCRACY WORK:
CivIc TRADITIONS IN MODERN ITALY (1993) (discussing relationship between organizational
development and organizational effectiveness).

28. See Zhang Sutang, Zhongguo "Yihui 'Lifa Neiqing [Inside Information on Legislative
Sessions In China], LIAOWANG, No. 2, 1994, at 26, 26-27 (discussing Standing Committee's
rejection of draft PRC Maritime Traffic Safety Law [Zhonghua Renmin Gongheguo Haishang
Jiaotong Anchuan Fa]) [hereinafter Inside Information]. This rejection appears to have been due
in large part to the fact that the presiding chairman did not understand the Standing Committee's
own procedural rules. See id.



NPC CONSTITUTIONAL DEVELOPMENT

Law z During that time, the NPC also significantly altered the shape of
China's Copyright Law.30 In the late 1980s, the NPC was able to take a
draft administrative litigation law that the State Council had originally
intended to focus on the problem of administrative corruption and rework
it into an instrument for supervising a much broader range of
administrative behavior. Among the NPC changes was the authorization
- over State Council opposition - of judicial review of administrative
actions of the subordinate State Council organs as well as the private
actions of individual administrative actors.3'

In the early 1990s, the NPC's institutional evolution allowed it to
begin to seize control of legislative development. During the 1980s, all
major pieces of legislation were drafted by the State Council, in accordance
with the State Council's own legislative plans. The State Council's
hegemony began to erode in 1992, when the NPC threatened drafting
economic reform legislation itself unless administrative drafters start taking
greater account of the NPC's concerns' Such threats became promises in
1993, when the NPC Standing Committee refused to consider a draft
Company Law submitted to it by the State Council,33 and instead drew up
its own draft Company Law which it passed in December of that year.'

Also in 1993, the NPC drew up for the first time its own legislative
plan, and let it be known that it would not consider any legislative proposal
that was not in conformity with that plan. This plan not only listed the
pieces of legislation the NPC would consider, but also dictated who should
draft each piece of legislation. In doing so, the NPC gave unprecedented
drafting responsibilities to its own support services, with the most notable
beneficiaries being the CLA and the special standing committees. One of
the first casualties of this new plan was the State Council's draft securities
law. The NPC plan had assigned responsibility for drafting the securities
law to the Economic and Finance Committee (one of the special standing
committees), despite the fact that the State Council had been working on
its own draft of this law for some two years. Ultimately, the NPC refused

29. See id. at 27; Tanner, supra note 1, at 71.
30. See Difficult Issues, supra note 26, at 18-19 (discussing NPC's influence on draft

intellectual property rights legislation in 1985-1986).
31. See Tanner, supra note 1, at 71-72, 91-92 n. 40.
32. See id. at 78. See also id. (quoting NPC source noting that the development of the NPC's

support staff and support resources had finally made such threats viable).
33. 'Zhonghua Renmin Gongheguo Gongsi Fa."
34. See Jerome Cohen & Charles Goldsmith, Company Law - Unfinished Business in

INTERNAiONAL CORPORATE LAW, May 1994, at 37, 40 [hereinafter Unfinished Business].

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to consider the State Council's existing draft,35 and the State Council had
to develop a whole new draft working in conjunction with the Economic
and Finance Committee.

The best example of the NPC's legislative independence to date
involves the 1996 Amendments to the Criminal Procedure Code, passed by
the 1996 Plenary Session. The NPC's original draft, which greatly
liberalized criminal procedure in China, met concerted opposition from the
Ministry of Public Security ("MPS"). The MPS is one of the most
powerful organs in China, and possesses great influence with CCP
leadership. (The MPS's objections focused primarily on a strong antipathy
towards an amendment provision abolishing administrative detention, a
widely used procedure that allowed local security organs to incarcerate
persons indefinitely without trial and without access to a lawyer.) Despite
this, the amendments as passed by the NPC were virtually identical to the
original draft so strongly opposed by the MPS.36

More recently, a third phase of the NPC's development has focused
on the development of the delegates themselves." Efforts by the NPC to
promote a more professional, independent and conscientious delegate body
date back at least to the middle 1980s.38 Much of this early effort met with
competing efforts of the CCP leadership to rein in delegate independence.39

Nevertheless, the delegate body has become increasingly independent and
assertive. By the 1995 Plenary Session, NPC delegates began showing an
assertiveness even greater than that which caused significant party alarm
in the late 1980s. At that session, over one-third of the delegates failed to
support the CCP's nominee for Vice Premier, Jiang Chunyun. Over a
quarter of the delegates also failed to support State Council proposals for
a draft Banking Law and a draft Education Law."

35. Interview (China Securities Regulatory Commission [hereinafter CSRC]). Since Chinese
sources do not wish to be identified by name, I have identified them by affiliation.

36. Interview (CLA drafting group). Cf Xingsufa Xiugaian Shouge Jieguanyi in FAZHI RIBAO
[LEGAL SYSTEM DAILY], Feb. 3, 1996, at 1 (noting repeated and acrimonious meetings with the State
Council, Ministry of Public Security, Supreme People's Procurate and Supreme People's Court).

37. See Active Elements Invigorate 'Rubber Stamp 'Institution, SOUTH CHINA MORNING POST,
March 3, 1997, at 3 (noting effects of delegate development).

38. See, Cheng & Liu, supra note 1, at 258, 260; Tanner, supra note 1, at 75, 79. This earlier
development was suspended for a while following the Tiananmen demonstrations in 1989. See id.
at 79.

39. See Tanner, supra note 1, at 76, 79.
40. See NPC Vote Snub for Jiang Ally, SOUTH CHINA MORNING POST, March 18, 1995, at I

(noting delegate dissension over CCP's nomination for Vice Premier)[hereinafter NPC Vote Snub
For Jiang Ally]; Defiant NPC Deputies Want More Power, SOUTH CHINA MORNING POST, March



NPC CONSTITUTIONAL DEVELOPMENT

The delegate independence that manifested itself at the 1995 Plenary
Session surfaced again at the 1996 Plenary Session. At that Session, over
a quarter of the delegates refused to endorse the work reports of the
Supreme People's Procurate and the Supreme People's Court.4' Delegates
also became increasingly active and overt in their criticisms of various
aspects of political operations in China, including some aspects of the CCP
itself.

42

Delegate independence was just as evident during the 1997 Plenary
Session. Unprecedented numbers of delegates again failed to support the
work reports of both the Supreme People's Court and the Supreme
People's Procurate (44% in the case of the Supreme People's Procurate's
work report). This dissent prompted the Supreme People's Court to form
a special investigation commission to look into the problem of judicial
corruption, the principal source of the delegates' concerns.43 Delegates
were also able to introduce and push through a highly controversial change
in the draft amendments to the criminal code. This change, which removed
a draft provision providing immunity from criminal prosecution to police
who injure or kill others while on duty, was even opposed by the NPC
leadership itself." Delegates were also highly critical of the State
Council's work report, particularly focusing on the State Council's lack of
attention to the plight of agricultural workers and laid-off employees of
state-owned enterprises. Their criticisms resulted in numerous
amendments to the State Council's stated policy goals in these areas.45

19, 1995, at 1 (noting delegate dissension over draft Banking Law and draft Education Law)
[hereinafter Defiant Deputies].

41. See Lanmakers Angry at Lack of Enforcement, HONG KONG STANDARD, March 15, 1997
(Internet edition) (noting high opposition to both 1996 and 1997 work reports by Procurate and
Court).

42. See notes 637-644 and accompanying text infra.
43. See NPC Lodges Protest Vote At Worsening Crime Record, SOuIrH CHINA MORNING POST,

March 15, 1997 (Internet edition) (reporting on delegate protest); Judicial ChiefSeeks More Ethical
Courts, SoutH CHINA MORNING PosT, April 3, 1997 (Internet edition) (President of the Supreme
People's Court noting high NPC dissent at the most recent Plenary as a major reason for forming
this special investigation); Caiqu Youli Cuoshi HenzhuaYansu Zhifa [Seizing Effective Measures to
Seriously Enforce the Lmv], FAZHI RIBAO [LEGAL SYSTM DAILY], April 1, 1997 (same).

44. See Deputies Reject Revisions in Rare Show of Dissent, HONG KONG STANDARD, March
15, 1997 (Internet edition) (noting that Tian Qiyu, widely seen as the number two man in the NPC,
opposed the delegates' amendment).

45. Li Takes Flak For Ailing State Firm, HONG KONG STANDARD, March 5, 1997 (Internet
edition)(noting delegates' numerous criticisms); Prime Minister's Work Report Amended, SoUtr
CHINA MORNING POST, March 15, 1997 (Internet edition).

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Over the years delegates have also become increasingly assertive in
introducing their own items into the NPC's legislative and political agenda.
Recent examples include repeated attempts by delegates to press the
Standing Committee to introduce a draft Euthanasia Law and a law
protecting laid-off workers.4 During the 1997 Plenary Session, one
delegate from Sichuan even arranged for a textile worker laid-off from a
state-owned firm to address a meeting of NPC delegates, in order to
dramatize the plight of such workers. 47 Twice during the 1996-97 term,
large groups of NPC delegates independently petitioned the party for
changes in national policy.48 During the 1996 Plenary Session, delegates
from Beijing tried to introduce a draft proposal to have the NPC investigate
party corruption in Beijing under former mayor Chen Xitong.49 Delegate
criticisms voiced during the 1995 Plenary Session were instrumental in
persuading the State Council and the CCP to launch the "Strike Hard
[Dayan]" anti-crime campaign in 1996.50

Unlike the earlier manifestation of delegate independence in the late
1980s, this recent manifestation appears to be more permanent. Whereas
the early manifestation lasted only briefly before being met with concerted
and overwhelming opposition from the CCP, this current manifestation has
lasted over three years, and the CCP's response has been one of grudging
accommodation rather than political retrenchment. Following strong
delegate criticisms of the quality of administrative and party presentations
to the 1995 Plenary Session, the CCP and State Council jointly
promulgated internal guidelines requiring party and executive official to be
more available to NPC delegates. The Guidelines also required party and

46. See Euthanasia Helps Terminal Patients Die With Dignity, CHINA DAILY, March 17, 1995,
at 4 (noting that a proposal for legalizing voluntary euthanasia had been submitted to the NPC by
76 delegates, also noting that delegates had submitted similar legislative proposals twice previously)
[hereinafter Euthanasia Helps Terminal Patients Die with Dignity]; Call For Law to Protect
Redundant, HONG KONG STANDARD, March 6, 1997 (Internet edition) (delegate calls for law to
provide more help to workers who have been laid-off by state firms). Not all delegates' proposals
have dealt with such weighty national matters, however. See, e.g.,Chuandawu Buneng Biancheng
Xiaomaibu [Doormen should not become merchants], FAZHI RIBAO [LEGAL SYSTEM DAILY], March
12, 1997, at 3 (discussing a delegate's bill to regulate the activities of apartment building doormen).

47. See Plea on Reforms as Poverty Takes Hold, SOUTH CHINA MORNING POST, March 5,
1997 (Internet edition) (reporting on Sichuan delegate's witness).

48. See Xenophobia on the Rise, Leaders Told, SOUTH CHINA MORNING POST, January 31,
1997 (Internet edition) (reporting on delegate petition advising senior party cadres not to confuse
patriotism with xenophobia); Industry Protections Urged, SOUTH CHINA.MORNING POST, September
23, 1996 (Internet edition) (100 NPC delegates petition CCP for more protectionist trade policies).

49. Interview with Western diplomatic personnel.
50. Interview with NPC consultant.

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NPC CONSTITUTIONAL DEVELOPMENT

executive officials to be more professional in their dealings with NPC
delegates. Following the large delegate opposition to the CCP's
nomination of Jiang Chenyun for Vice Premiership in 1995, the CCP is
considering amending its nomination procedures so as to allow the NPC to
vet the CCP's considered nominations before the official nomination list
is set.51

It is also significant to note that this development in delegate behavior
has increasingly brought the delegate body into conflict with the NPC's
own leadership. The delegate body's willingness to challenge the NPC
leadership over the draft criminal law amendments is only the most visible
manifestation of a trend that dates back to the late 1980s. Delegates have
also challenged or otherwise gone against the wishes of NPC leadership on
issues of educational spending, lack of women delegates, lack of
supervisory legislation, and nominations for NPC positions.52 In spite of
this, the NPC leadership has continued to encourage delegate
independence, even after losing the battle over the criminal law
amendments in 1997. As discussed below, the fact that the NPC leadership
would continue to promote a force which increasingly opposes the
leadership's own attempts to control it strongly evinces a significant
constitutional component to the NPC's development.

B. The factors behind the development of the NPC

Many scholars have noted the institutional emergence of the NPC.
What is less examined are the factors behind this emergence. Obviously,
the new-found ability of the NPC to exercise its constitutional authorities
is due in some part to its organizational development. But this
organizational development is as much the product of as it is the cause

51. See NPC Sets Regulationsfor Sessions, CIaNA DAILY, March 1, 1996, at 2 (reporting on
new regulations by the State Council and the CCP intended to insure that governmental and party
officials be more responsive to NPC delegates)[hereinafter NPC Sets Regulations]; notes 593-595
and accompanying text infra (discussing proposed changes in party's nomination procedures).

52. See Deputies Reject Revisions in Rare Show of Dissent, HONG KONG STANDARD, March
15,1997 (Internet edition); Education Funding Goal Long Way Off, HONG KONG STANDARD, March
5, 1997 (Internet edition) (noting divergence of opinions between Qiao Shi and deputies regarding
national educational spending); Women in Protest Over NPC, SoUTH CHINA MORNING POST,
December 31, 1996 (Internet edition) (women delegates complain to NPC leadership about lack of
women on Standing Committee) [hereinafter Women in Protest]; Deputies Accuse Part, of Ignoring
Congress, SOUTH CHINAMORNINGPOST, March 17, 1995, at 1 [hereinafter DeputiesAccuse Part)].
See also Tanner, supra note 1, at 76,79 (noting several instances prior to 1993 when "delegates have
arisen to embarrass the [NPC] leadership").

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behind the NPC's new political importance. The NPC itself does not
control national expenditures, and thus cannot simply command the
budgetary increases necessary to fuel this development. The NPC's
development is thus the product of deeper and more fundamental changes
within China's political environment.

The most commonly articulated explanation for the NPC's
institutional emergence is that the NPC has been riding on the coattails of
the personal power of the current Chairman of its Standing Committee,
Qiao Shi. However, this explanation is not particularly satisfying. There
is no question that the NPC has benefitted significantly from the prestige
that Qiao Shi's leadership has brought to that institution. But, as noted
above, the institutional development of the NPC actually began in the early
1980's, over ten years before Qiao Shi assumed its mantle in 1993.

Moreover, this explanation may be confusing the horse for the cart.
Why would someone with the personal power of a Qiao Shi choose to
operate through the NPC in the first place (as opposed to through the State
Council, for example)?53 Since 1982, the NPC has been able to offer a
particularly stable political foundation from which its leadership could
pursue their various political agendas, despite the fact that the NPC's
leadership has been among the most visible opponents of that orthodoxy.54

Since the NPC's reconstitution in 1978, only one NPC vice chairmen has
ever been removed from his post prior to the end of his constitutional
tenure. Leadership of both the party and the State Council, by contrast, has
been much more volatile. In the aftermath of Tiananmen, for example, the
leadership of both the CCP and the State Council underwent considerable
reorganization. In contrast, the leadership of the NPC was not significantly
affected in those years, despite the fact that the NPC Standing Committee
actively opposed the CCP's/State Council's decision to declare martial
law." This stability, combined with the NPC's considerable internal

53. See Tanner, supra note 1, at 74-76 (discussing how the NPC has become an attractive
alternative for ambitious cadres).

54. Professor Tanner argues that the initial development of the NPC was greatly fueled by
Peng Zhen's opposition to the reform policies of Deng. See Tanner, supra note 1, at 74-75.
Similarly, the NPC, then under the leadership of Wan Li, was the only political organ that voiced
objections to the State Council's decision to impose martial law in 1989. See id. at 63. Qiao Shi's
opposition to Jiang Zemin is also well known. See, e.g., Refonn-Minded Qiao Flies Deng's Banner,
SOUTH CHINA MORNING POST, Jan. 13, 1997 (Internet edition).

55. Zhao Ziyang, for example, was both CCP General Secretary and Premier of the State
Council; Bao Tong, the only senior official to have been imprisoned following the Tiananmen
uprisings, was also a high official in both the CCP and the State Council. After 1989, both ceased
to have any visible effect on China's political system. By contrast, Hu Jiwei and Jiang Ping, the

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resources, could well explain why positions within NPC leadership are
particularly appealing to 'strong leaders' who may be chaffing against the
party orthodoxy.

This is not to imply that the CCP is unable to reach into the NPC to
pick at political irritations. In fact, in the aftermath of the events of 1989,
the CCP did just that. 56 However, at the very least, the party appears
significantly less willing to or interested in censuring political opposition
in the NPC than in other political bodies. Why this should be so is an
important question, one which we will return to below when we evaluate
the evolving role of constitutionalism in Chinese politics.

1. Retreat of the CCP

The NPC's institutional emergence owes much to a corresponding
decrease in the CCP's own willingness to intervene in or otherwise oversee
a wide range of constitutional activities. For the first 30 years of the "New
China," constitutional operations were officially subordinated to the CCP's
political authorityY' The constitutional structure, when and where it
functioned at all,58 functioned mainly to tailor legal cloth to fit the party's
political directives.59 In the 1980s, however, this situation began to change.
Official control over constitutional operations increasingly migrated from
the CCP over to the appropriate constitutional structures.' With regards
to the NPC, this transition was made overt by an internal party document
issued in 1991 misleadingly entitled "Several Opinions of the Central

two officials of the NPC who bore the brunt of the CCP's post-Tiananmen retribution, continued to
exercise considerable and overt political influence. Jiang Ping, for example, served as President of
University of Politics and Law, one of the top law schools in China, and was a key figure in the
subsequent drafting of a number of important pieces of NPC legislation. Hu Jiwei continued to weld
considerable influence as a 'liberal thinker." See Stick to Deng Line of Reform Cadres Urged,
SOUTH CHINA MORNINGPOST, December 31, 1996 (Internet edition).

56. See Tanner, supra note 1, at 63.
57. This subordination was readily acknowledged even in China. See, eg., Peng Zhen, Bujin

Yao Kao Dang de 7heng ce, Erqie Yao Y1 Fa Banshi [Not Only Follow Pary Principles, Also Work
According to the Law], DOCUmENTS, supra note 7, at 590.590 (speech by Peng Zhen given before
a meeting of officials from lower level people's congresses on March 13, 1984, noting traditional
subordination of constitutional to party apparatuses) [hereinafter Party Principles].

58. For most of the 1960s and 1970s, constitutional operation was completely shut down by
the cultural revolution.

59. See Party Principles, supra note 57.
60. See generally, Tanner, supra note 1, at 61-62, 72-74. The principal exceptions are in

matters involving criminal law and public security.

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Committee on Strengthening Leadership over Lawmaking Work."61 In that
document, the CCP for the first time set out explicit normative limits on its
own authority to oversee legislative drafting. This move generally limited
the CCP's legislative input to one of broad policy direction, and increased
the NPC's role in the legislative process.62

Once this document was issued, there was a wide retreat by the party
from the NPC's actual legislative drafting process, as well as from many
other aspects of the NPC's constitutional operations. For example, the
1993 Plenary Session was even able to refuse to accept a draft
constitutional amendment tendered to it directly by the CCP. 63 Of course,
the CCP has not completely sworn off its old ways. It was quite active in
the drafting of the 1997 criminal law amendments, for example. However,
that involvement is the exception that proves the rule. It was obvious to
persons participating in the drafting of these amendments that the CLA was
seeking party approval for individual provisions (even though the CLA
never acknowledged this). 64 The fact that the CCP's attempt at quasi-
covert intervention was so visible in this instance suggests that if such
intervention were indeed rampant, it should be obvious.65 In fact, it is not.
No one who has written about legislative processes, no one who has
investigated legislative processes, and no one who was interviewed for this
study has reported any other instance of such systemic intervention by the
CCP in legislative drafting in the 1990s (which includes the 1996
amendments to the criminal procedure law).66

61. This document is discussed in Tanner, supra note 1, at 73-74.
62. See id.
63. This event is discussed in Chen Sixi, Yian Shenyi Guocheng Zhong Xiuzhengan de

Yunyong [Handling Amendments in the Bill Review Process], FAXUE YANJ, No. 5, 1994, at 25
[hereinafter Handling Amendments].

64. For the criminal law amendments after the drafting group, working with the CLA, had
arrived at a decision on a major issue, the CLA leadership would announce that they would take that
decision "under advisement." About two weeks later, they would announce their decision to the
drafters. This two week grace period was used to allow he CLA leadership to consult with CCP
leadership. Interview (drafting group). This advisement period appears unique to the drafting of
this particular piece of legislation. It did not occur during the preparation of any other legislative
draft that inform this study. Interviews (drafting groups).

The CCP's involvement in the legislative process up through the 1980s was similarly
obvious. See Tanner, supra note I, at 60-61.

65. This was true during the 1980s. See Tanner, supra note 1, at 61.
66. See Correspondences with Benjamin L. Liebman [hereinafter Liebman Correspondences]

(finding no evidence of CCP involvement in the drafting of environmental protection legislation)
(information attributed in this Article to Mr. Liebman derives from interviews he conducted in
Summer of 1996 in preparation for a forthcoming article on environmental law in China by Mr.
Liebman, William Alford and Shen Yuanyuan; Mr. Liebman wishes to keep his notes from this

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Similarly, in other areas of NPC operations in which CCP
intervention is known to exist (such as control over information flows or
over personnel placement), this intervention is easy to detect and well-
documented. 67 It is thus telling that in an increasing number of NPC
activities, evidence of control or intervention is becoming harder to find.6

The CCP's withdrawal from the NPC's constitutional jurisdiction is
also supported by the growing number of increasingly public
disagreements between different departments in the NPC and between
these departments and other administrative bodies outside the NPC. Such
disagreements would not normally arise in a system in which all political
decisions are guided by the same hand. Indeed, such disagreements were
unheard of in China until the late 1980s. These disagreements only began
appearing when the CCP started withdrawing from the constitutional arena,
and these disagreements have increased as the CCP's withdrawal has
increased.69

Of course, the CCP still exercises significant influence over Chinas
and the NPC's constitutional operations. But party influence in
parliamentary operations, even great party influence, is by no means
inapposite to constitutionalism. From a constitutional perspective, what is
important is not party control per se, but the means of control - and the
means by which the CCP "controls" the NPC now largely resembles the
means by which majority parties control national parliaments in many

research private, but has reviewed and confirmed all information attributed to him in this Article as
consistent with his investigations). See also interviews (drafting groups. CSRC, CLA, General
Office Research Department) (noting no CCP involvement in legislative drafting on develpment).
See generally, Tanner, supra note 1, at 68. Many of these same source do report CCP intervention
in other areas of NPC activity, such as delegate selection and nominations.

67. Reports of the CCP's involvement in determining personnel placement are well
documented, for example. See, ag., Cai, supra note 4, at 141; Tanner, supra note 1, at 60, 90 n.21.

68. Of course, lack of evidence is not that same as disproof, as both NPC skeptics and stalwart
Elvis fans are quick to point out. Some have argued, for example, that such intervention is in fact
obvious to inside participants, but that these participants are afraid to acknowledge such intervention
for fear of political persecution. But this argument fails to explain why many of these same persons
do not hesitate to acknowledge party intervention in other areas of NPC operations. See, e.g., Cai,
supra note 4, at 141. Moreover, reports of CCP intervention in the constitutional operations of
other constitutional organs, such as the courts, are rampant. It is illogical to assume that the CCP
has been almost 100% effective in covering up its interventions in a the NPC when the CChas been
unable to cover up reports of its unconstitutional interventions in other areas of constitutional
activity.

69. See Tanner, supra note 1, at. 56-57.

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developed constitutional systems.7" Even in the most liberal of
constitutional systems, controlling political parties exercise great say in
setting policy goals for legislative development, shaping the legislative
agenda, and determining who gets what office within the legislature. These
are also the principal means by which the CCP now "controls" the NPC.7t

Many skeptical commentators nevertheless suggest that the CCP may
still exercise inordinate control over the NPC's constitutional operations.
They note, for example, that the CCP can effectively veto any NPC action
that threatens its interest. But the same is true of many Western
parliaments, including that of the United States and Great Britain. In these
systems, party discipline combined with party control over parliamentary
agenda ensure that proposals significantly threatening to the controlling
party's interests will not acted upon. The British House of Commons, for
example, has not passed or acted upon any proposal opposed by the
controlling party since before the Second World War. The same holds true
for the Japanese Diet prior to 1993.72

Skeptics might also note that all of the NPC's leaders, and most of its
staff and delegates, are members of the CCP, and that this shows that the
CCP is really controlling NPC operations. There are two problems with
this argument. First, as discussed above, it fails to distinguish the CCP's
role in the NPC from the controlling party's role in many developed
parliaments. In most parliamentary systems, including that of the United
States, parliamentary offices are allocated by the controlling party to
members of that controlling party, and those officers may be removed at
the party's pleasure.

More significantly, this argument conflates party affiliation with party
"control." NPC leaders are members of the NPC as well as of the CCP.

70. See, e.g., GARY W. Cox & MATHEW P. MCCUBBINS, LEGISLATIVE LEVIATHAN: PARTY

GOVERNMENT IN THE HOUSE (1993). As noted above, this is not to claim that the CCP itself
resembles a controlling party in Western constitutional systems, clearly it does not. Nor is it to
claim that the rest of the constitutional structure is a rationalized vis-a-vis the CCP as is that of the
NPC. The CCP still routinely and systemically intervenes in the judicial process, for example. Nor
is it to claim that constitutional operations in general in China resemble those of development
Western countries. It is merely to say that the institutional relationship between the CCP and the
NPC does not explain differences between Chinese and Western constitutional and political
operations, as some commentators suggest it does.

71. The CCP also seeks to "control" the NPC by controlling access to information. These
efforts, however, are now largely ineffective. Interviews (CLA; General Office Research
Department).

72. Interviews with William Proctor, Clerk of Standing Committees for the House of
Commons and Yasue Tanaguchi, Professor of Law at Kyoto University..

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NPC CONSTITUTIONAL DEVELOPMENT

In instances in which the two organizations' interests conflict, there is no
reason why these people should automatically give priority to the CCP's
interests. Given that many of these leaders have been among the most
visible opponents of CCP orthodoxy, and that the CCP seems unvlling or
uninterested in disciplining intellectual independence with the NPC, the
argument for CCP dominance seems problematic. 3

In fact, the CCP itself recognizes that mere party affiliation is
insufficient to discipline NPC members. The principal means by which the
CCP seeks to enforce party discipline over NPC activities is through the
"party cell," a party organization inside NPC whose function is similar to
that of the party whips in the American congress. But even these party
cells are ineffective, because the staffing of those cells is coterminous with
that of the NPC leadership74 - the same leadership that has traditionally
challenged party control. The NPC appears to have "captured" its party
cells in much the same way that regulated industries in the United States
frequently are able to "capture" the administrative organs responsible for
regulating them.75

Finally, skeptics might also argue that, as evidenced by the drafting
of the 1997 amendments to the criminal law, the CCP can still intervene in
any aspect of NPC activity "when it wants to." Ultimately, however, any
constitution is merely a document. The true force of constitutional
principle comes precisely from the fact that most political actors and
institutions do not want to breach constitutional mandates, not from the
fact that they "can't."7 6 Thus, the fact that the CCP also does not want to
intervene in the constitutional operations of the NPC is highly significant,

73. In fact, the CCP appears to have even greater difficulty enforcing party discipline withint
he NPC then to controlling parties in many Western parliaments. This is because the CCP has lost
is ideological identity, and these is no competing party organizations that bind the career interests
of the members to the institutional interests of the CCP. Thus, unlike for most Western parliaments,
there is little institutional incentive in the absence of direct threats from the party (of which there
is no evidence) for NPC delegates, staff and leadership to toe the party line. This is reflected in the
high party dissension rates among NPC delegates as reported above. These rates, which reached
40% in 1997 (the last year of this study), far exceed anything that has occurred in the British House
of Commons or the Japanese Diet since the end of the Second World War. Cf. Major Faces
Growing Revolt in Party, INTERNATIONAL HERALD TRIBUNE, April 17, 1997 at 1 (referring to it as
an "open revolt" -when 20% of the Conservative Party members failed to support an initiative by the
Conservative Prime Minister).

74. See Tanner, supra note 1, at 74.
75. Interviews (various drafting groups; General Office Research Department).
76. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977).

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COLUMBIA JOURNAL OF ASIAN LAW

as this is the same fundamental force that disciplines political actors and
institutions in more developed constitutional systems.

2. Pluralism

Another important force behind the NPC's development is pluralism.
Traditionally, pluralism has been regarded as an anathema to the CCP's
"democratic centralism" ideology, which regards the existence of
competing political interests as a significant threat to its legitimacy. This
is still the ideology. It is not, however, the reality. As the control of the
CCP began receding in the 1980s, other entities and interests have stepped
in to fill the vacuum. These include, not only constitutional entities such
as the NPC, but also regional and, later, certain professional interests (such
as the All-China Lawyers Association and the coal and power industries).'
In the 1990s, more socially-oriented interests also began to form, focusing
on issues such as labor rights, environmental protection, consumer
protection and the protection of women and children.78

The NPC is the most accessible forum through which these various
interests can attempt to affect central-level policy making. The NPC is the
only central-level constitutional institution79 whose members are not
selected directly by the central level CCP. 0 Thus, it provides regional
interests a unique opportunity to send persons to Beijing who are more
responsive to their own regional needs than to the wishes of central-level
policymakers. Beyond this, the NPC has also developed a number of
internal procedures and practices that facilitate and encourage interest

77. Of course, many of these professional interests have strong political ties to CCP
leadership, which leads some to suggests that interests are merely the CCP acting under a different
guise. Be that as it may, however constituted, these new professional interests have increasingly
found themselves in political and economic competition. In doing so, these interests are clearly
competing for their own benefit, not for the benefit of the CCP. See TIANGJIAN SHi, POLITICAL
PARTICIPATION IN BEIING (1997).

78. See Zhang Mingiie, Lun Liyi Jituan Canyu Quanli Juece [On Interest Group Participation
in Political Decision-making] (May 1988) (unpublished Masters dissertation, Zhongguo Zhengfa
Daxue Yanjiusheng Yuan) (discussing the development of interest group politics in China in the late
1980s).

79. There is also a central-level political institution, called the Chinese People's Political
Consultative Committee, that also sports regional representation. However, as discussed below, this
institution has not harnessed the powers of pluralism as much as the NPC, and its institutional
development subsequently lagged.

80. Delegates to the NPC are in the main selected by the provincial CCP/people's congresses,
and ratified by the central level. Given the fact that there are almost 3000 delegates, the central
level's ratification would appear to be generally pro forma.

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NPC CONSTITUTIONAL DEVELOPMENT

group representation. Over half the seats on the Standing Committee, for
example, are by tradition assigned to regional as well as specified
professional and social entities, such as the All-China Women's Federation
and All-China Labor Federation.8'

The NPC has intentionally tailored its structure and decision-making
procedures so as to be more receptive (as compared to other central-level
constitutional and political organs) to the input of different interests.p
The NPC's organizational structure encourages horizontal bargaining and
decision-making between and among sibling departments in the NPC, and
between these departments and equivalent bodies in other governmental
and political organs.' This is in sharp contrast to the vertical, patron-client
relationships that characterize other constitutional and political organs in
China. This horizontal focus encourages pluralist dynamics by providing
multiple points of entry into the NPC's decision-making process. 14 If a
particular interest has been frozen out of one department, it can try to find
other departments more sensitive to its particular needs. Indeed, the CLA
actively represents itself as a champion of last resort for interests frozen out
of the earlier stages of the legislative decision-making process.a

As China's political environment adjusts to the new reality of
independent and powerful interests existing outside the CCP's/State
Council's small cadre of central-level policy makers, " the NPC's role in
accommodating these interests becomes evermore crucial - not just to
these interests themselves, but also to the central-level policymakers that
must increasingly take these interests into account. This unique function
gives the NPC important leverage in China's political environment.

81. These seats are assigned by the NPC, and are ratified by the CCP. Interview (General
Office Research Department). See also notes 186-189 and accompanying text infra.

82. See, e.g., Party Principles, supra note 57 (suggesting that the role of the NPC is to provide
a forum in which different social interests can express themselves); Zou Pingxue, Guanyu renda
Daibiao Xingshi Quanli de Shenfen de Lilun yu Shixan [On the Theory and Practice of the Ability
ofNPC Delegates to Exercise Their Powers], ZHONGGUO FAXUt, No. 6, 1994, at 37 (arguing that
the role of NPC delegates needs to be adjusted to reflect the greater pluralist forces in Chinese
society) [hereinafter Theory and Practice]. For more on the role of horizontal relations in
contributing to effective pluralist political dynamics, and the dynamics between the development
of such relations and formal institutional structure, see Putman, supra note 27, at 163-185.

83. The NPC leadership serves primarily to ratify the results of these bargains, rather than to
dictate the outcome.

84. See Putman, supra note 27, at 163-185.
85. See notes 212-219 and accompanying text infra.
86. This would include not only monied interest, but interests such as those of women and

workers, which have traditionally sat at the core of the State's legitimacy.

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However, this is not to say that the appearance of such pluralism is
universally welcomed in China. The CCP's central leadership apparatus,
in particular, continues to espouse the ideological primacy of democratic
centralism and "unified thought." The domestic press generally does not
acknowledge, and frequently denies, the pluralist aspects of political
decision-making. Nevertheless, this pluralism is real, and it is growing.
The CCP's ideological disavowal of this development has not noticeably
impeded the NPC's ability to take advantage of this new reality.

3. Development of provincial and regional people's
congresses

An often-overlooked factor in the NPC's development is the
concurrent, and in many cases prior, development of provincial and
regional people's congresses. 87 Government at the provincial level (and in
self-governing municipalities like Beijing and Shanghai) revolves around
the same general quartet of congress, executive, court and procurate as it
does at the central level. The inter-branch relationships among these
lower-level governmental entities also generally parallel those of their
central level counterparts. The institutional development of several
provincial and regional congresses has significantly outpaced that of the
NPC in a number of areas, such as those involving supervision and
delegate/leadership selection. Such prior developments in regional
congresses have frequently provided useful precedents for the NPC's own
development.8

Lower level congressional development stimulates NPC development
in two ways. First, provincial innovations provide useful models for the
NPC to consider in addressing its own organizational issues. Much of the
NPC's earlier work on developing a supervision law, for example, was
patterned on existing provincial practices. NPC guidelines for supervising

87. In fact, NPC scholars and staffers cite the earlier institutional development of a number
of regional people's congress as one of the most important catalysts for the institutional development
of the NPC since in the early 1980s. Interview (General Office Research Department).

88. See, e.g., Renda Jiandu Falu Zhidu Yantaohui Zongshu [Summary of Seminar on the NPC
Supervision Law], ZHONGGUO FAXUE, No. 1, 1993, at 124 (noting that provincial supervisions laws
are providing strong precedents for national legislation); Wang Dexiang and Mo Jihong, Difang
Renda Jiandu de Mogan Qingkuang he Jianyi [Several Conditions and Proposals Regarding
Supervision by Regional Congresses], FAXUE YANJIU, No. 5, 1992, at 72 (report on investigation
of supervision procedures used by regional congress conducted by the authors on behalf of the
NPC). See also notes 610-611 and accompanying text infra (noting how provincial congress's
handling of court supervision became model for NPC's supervision of courts).

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NPC CONSTITUTIONAL DEVELOPMENT

the judiciary are patterned on those used by the Shanghai people's
congress. Secondly, existing provincial precedents can provide important
normative ammunition for NPC arguments seeking to promote similar
developments at the national level. NPC staff and commentators seeking
to promote the notion of congressional supervision over the party
frequently appeal to provincial and regional precedents to demonstrate the
orthodoxy of this idea.

The NPC has actively exploited the symbiotic relationship between
itself and provincial level parliaments. Starting in the late 1980s and
running through 1995, the General Office Research Department routinely
held workshops and seminars with its counterparts in regional people's
congresses to discuss parliamentary development issues.' 9 Like other areas
of the NPC's activity, these workshops and seminars were structured as
horizontal interactions between General Offices rather than vertical
interactions between superior and subordinate congresses. 0 This reflects
both the importance of these lower congresses and their innovations to the
NPC, as well as the NPC's own general preference for pluralist
collaboration over patron-client posturing.

C. Indications of Constitutionalism

The various factors discussed above all allow for a more developed
NPC, but none compel such a result. The CCP may have chosen to remove
itself from many aspects of the NPC's constitutional decision-making
process, but it was not forced to. And the CCP was certainly not forced to
bequeath the bulk of its abandoned legislative prerogative to the NPC
rather than to its closer soul mate, the State Council. Nor was there any
apparent organizational compulsion for the CCP to allow the NPC to
promote political pluralism, particularly given that such pluralism goes
against long-standing party principles. Similarly, there is no apparent
organizational linkage between congressional development at the
provincial level and that at the central level. Provincial leadership has no
binding authority over the center. If the center were not inclined to adapt
a particular practice, the fact that a regional congress may already have

89. These meetings had to be halted in 1996 due to lack of funding. The General Office
Research Department is hoping to revive them in 1997. Interview (General Office Research
Department).

90. Interview (General Office Research Department).

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COLUMBIA JOURNAL OF ASIAN LAW

adapted such a practice has no effect on the center's rational incentive
structure.

There is one explanation for these phenomena, however - they are all
consistent with constitutional development. The Chinese constitution
places limits on the CCP's authority to manipulate constitutional
operations, and the CCP's withdraw from NPC legislative decision-making
processes is consistent with these limits. The constitution suggests that
pluralism, even if not accepted by the dominant political ideology, is
nevertheless a defining feature of its own legitimacy, and that the NPC is
the principal repository for this pluralism. Finally, constitutionalism is a
principled conceit, and such principle can be observed in the operations
of provincial as well as central governmental organs. Provincial
developments can thus provide important intellectual authority for similar
developments on the national level.

The above discussion raises the specter that a deeper eminence grise
of emerging constitutional consciousness may actually be underwriting
much of the NPC's development.9' Appeals to such consciousness have in
fact been a constant feature of the NPC's political emergence, dating back
to the earliest efforts by Peng Zhen to promote the NPC's development to
the rest of the party hierarchy in the early 1980s.2 Peng's general
argument (which has since become a canon for the NPC and its scholars)
begins with a claim that the NPC is the principal repository for the
government's constitutional legitimacy. This can be seen both from the
NPC's status as China's supreme constitutional body, and the NPC's role

91. Most outside commentators, however, have been unwilling to admit to the possibility of
a budding constitutionalism in China for a number of reasons. They note that China lacks
recognized mechanism for constitutional enforcement. There is no separation of powers, there are
no procedures for constitutional review. In addition, they note that violations of articulated
constitutional rights are rampant. But none of these conditions are fatal to constitutionalism. Many
recognized constitutional cultures lack or lacked effective proceedings for constitutional
enforcement. France did not develop such proceedings until 1959, and even today the scope of these
proceedings is limited to legislative proposals, not to passed legislation. Great Britain arguable still
does not have such proceedings, in fact. The principal source of constitutional effectiveness, even
in cultures which have such proceedings, is the normative force that attaches to the constitution
itself. Similarly, many recognized constitutional cultures do not recognize a principle of separation
of powers, including Great Britain, France, Australia, and almost every other parliamentary system..
Finally, the fact that some constitutional principles are not respected does not mean that no
constitutional principles are respected. In the United States, for example, the contracts clause today
has become for all intents and purposes a dead letter.

92. Most people regard Peng Zhen as the most influential figure in the NPC's development.
See, e.g., Tanner, supra note 1, at 74-75. This is the unanimous opinion of everyone I interviewed
in the NPC.



NPC CONSTITUTIONAL DEVELOPMENT

as the only representative institution in a constitutional system that claims
to derive its legitimacy from its democratic character. Therefore, Peng
reasoned, a stronger, more independent, and more assertive NPC is a
condition precedent for China's political development.' This argument is
still the centerpiece of the NPC's campaign to further develop its
institutional capabilities.9

At least two reasons suggest why we should take seriously this
argument and its effect on the NPC's development. First, this argument
was and is directed at the party elite, rather than at the ordinary citizenry.
This is demonstrated not only by the fora in which it appears,9 but also by
its general focus. Ultimately, it is an argument for political change, an
argument that calls for the party to sacrifice part of its own power." This
is the sole prerogative of the party leadership, not the rank and file, and
certainly not the general citizenry. The fact that Peng and other NPC
advocates of this argument (many of whom are themselves part of the party
leadership) direct this argument to the political elite suggests that
constitutional principle can effect even the highest level of political
decision-makers in China. 7

Secondly, there is a principled consistency to the NPC's use of this
constitutional argument. The NPC not only directs this argument toward

93. See, e.g., Party Principles, supra note 57; Peng Zhen, Zai Zhongyang Fhengfa
Weiyuanhui Kuoda Huiyi Shang de Jianghua [Speech Given at the Enlarged Meeting of the CCP
Politburo] (February 26, 1983), DOCUIENTS, supra note 7, at 582 [hereinafter Speech]. See also,
Tanner, supra note 1, at 75.

94. See, e.g, Cai, supra note 4, at 1-3 (using same argument as Peng); Liu & Cheng, supra
note 1, at 2-3 (same). See also Yu Ziqing, Yetan Dangdao Renmin yu Renmin Jiandu Dang
[Discussing the Party Leading the People and the People Supervising the Party], FAXUE_ No. 5,
1996, at5 (using constitutional argument to assert that the NPC has power to supervise the CCP);
Ren Wanxing, Dui Chongfen Fahui Renmin Daibiao Dahui Zlidu Zuoyong de Ji Dian Sikao
[Several Thoughts on Filling Out the Supervisory System of the NPC, HEIBEI FAXUE, No. 3, 1994,
at 22 (same).

95. See, e.g., Speech, supra note 93 (using constitutional theory to argue for an expanded
NPC role in front of the CCP Politburo).

96. See, eg., id. (arguing that new developments in China require that the CCP must start to
share political authority with the constitution).

97. There are numerous examples of constitutions gaining some measure of normative
weight. See, e.g., Andrzej Rapaczynski, Constitutional Politics in poland: A Report on teh
Constitutional Committee of the Polish Parliament, 58 U.Chi.L.Rev. 595,596-598 (1991) (noting
constitutional development in Poland during the 1950s). Studies of institutional development
confirm that hortatory principles frequently develop normative effect even if they were not
originally regarded as such by their original proponents. For over 40 years now, China has been
claiming that it is and should be a constitutional polity. It should not surprise us if some of Chinese
have been persuaded by that claim.

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outside actors, it also uses it internally to help guide its own organizational
development.98 For example, pluralist considerations appear to motivate
the NPC's concern with delegate development, and with increasing access
for outside interests. NPC research staff frequently appeal to the NPC's
constitutional role in order to criticize other aspects of NPC internal
operations." NPC leaders have also championed pluralist political reforms
not directly involving the NPC. For example, Peng Zhen was a major
supporter of the Ministry of Civil Affair's efforts to "experiment" with
village democracy. In promoting these early experiments, Peng drew
explicit constitutional parallel between these experiments and the NPC's
own development."° Fifteen years later, the NPC continues to be one of
the most aggressive supporters of these experiments. 01

Principled consistency is not a feature of the type of simple power
politics that we traditionally associate with China. It is, however, a
defining feature of constitutionalism. Even if the NPC's consistency is due
as much to strategic as to heart-felt reasons, such strategic benefits can
nevertheless give constitutional principles significant disciplining effect.
This is not to claim that constitutional concerns are the sole or even the
principal factor driving political behavior in China or in the NPC. Even in
the most developed constitutional environments, constitutionalism is just
one of many factors that enter into the political decision-making process.I02
In a recently emergent constitutional culture such as that of China, the
weight afforded to constitutional considerations is going to be far less than,
for example, in the United States or France. Nevertheless, the development

98. See, e.g., notes 37-50 and accompanying text supra (discussing delegate development).
99. See, e.g., Cai, supra note 4, at 156-57 (urging the NPC to increase the number by which

nominees for Standing Committee positions exceed position); id. at 261 (criticizing existing
procedures for failing to give delegates adequate opportunity to tender legislative proposals); Liu
& Cheng, supra note 1, at 53 (NPC staffer arguing that the NPC's constitutional role requires it to
make its operations more transparant and increase avenues for popular imput); id. at 263 (using
constitutional argument to argue for increased role of special standing committees in legislative
process).

100. See RESEARCH GROUP ON THE SYSTEM OF VILLAGE SELF-GOVERNMENT IN RURAL CHINA,

CHINA RESEARCH SOCIETY OF BASIC-LEVEL GOVERNANCE, THE REPORT ON THE VILLAGERS

REPRESENTATIVE ASSEMBLIES IN CHINA 4 (December 1994) (quoting Peng Zeng).
101. See More Direct Elections Ruled Out, SOUTH CHINA MORNING POST, May 20, 1995, at

7 (noting strong support for expanding direct elections on the party of NPC delegates).
102. See, e.g., RONALDDWORKIN, TAKING RIGHTS SERIOUSLY (1977); [Oliver Wendell Holmes

quote: "the constitution is not a suicide pact"]. The need to balance enforcement of constitutional
mandate with other political concerns is a major rationale behind the political question doctrine. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166(1803) (noting that the courts would only enforce
the constitution against other branches in limited situations).

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of the NPC strongly suggests that constitutional considerations can affect
political operations in China, and that such effect can no longer be ignored.

II. NPC STRUCTURE

The development of the NPC's internal structure has had a major
effect on the emergence of the NPC within China's political environment.
The NPC's structural evolution is notable for its emphasis on horizontal
bargaining in the decision-making process. The NPC leadership generally
ratifies these bargains, rather than dictates solutions. 3 Support services,
for their part, are structured so as to be responsive to different institutional
and social interests. Inter alia, this gives the NPC a much more pluralist
institutional dynamic than those found in other political institutions in
China.

A. The Standing Committee and the Plenary Session

The NPC has two institutional manifestations: the Standing
Committee and the Plenary Session. Both enjoy similar constellations of
authority such as independent legislative competence;'O° and power to
question, investigate and supervise governmental activity.' °5 In practice,
however, the Standing Committee has great say over the Plenary Sessions
activities, and for this reason is often regarded as the "leader" of the NPC
and the Plenary Session. But this is not theoretically accurate. The
Standing Committee and the Plenary Session are really alter egos of the
same institution. The Standing Committee is the NPC's permanent,
corporate manifestation. It oversees the continuous operation of the NPC's
constitutional responsibilities. The Plenary Session is not so much an
organization as an event - an event which, due to its greater
representational character, reifies the NPC's constitutional identity. This
alter-ego relationship is highlighted by the fact that the institutional tenures
of these two institutions never overlap. The Plenary Session has no

103. Of course, the leadership also determines the NPC's agenda, which allows it to limit the
types of issues over which the various support services may bargain.

104. See PRC CONSTITUTION art. 62(3) (giving Plenary Session authority to pass and amend
'basic' legislation); PRC CONsTr'rON art. 67(2)(giving Standing Committee authority to pass and
amend all other forms of statutory legislation. For a discussion of the differences between basic and
other statutory legislation, see notes 141-14S and accompanying text infra.

105. See Part M infra.

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permanent institutional manifestation, when the Plenary Session is not in
session, the Standing Committee is the NPC. But when the Plenary
Session is in session, the Standing Committee ceases to exist, and control
over the NPC's corporate activities is assumed by the Plenary Session's
temporary leadership, the Presidium.

1. The Standing Committee

The Standing Committee houses the NPC's permanent leadership and
most of its permanent resources. It meets in two-week session once every
two months l° In addition to overseeing the NPC's constitutional
responsibilities when the Plenary Session is not in session, it also
administers the NPC's bureaucracy, formulates and directs the NPC's long-
term plans (such as the legislative plan and legislative drafting), sets the
agenda both for itself and for the Plenary Session, and directs information
flow both within the NPC and between the NPC and outside entities.

The Standing Committee is comprised of 156 members selected from
among the Plenary Session's delegates." 7 According to one NPC staffer,
about half of these positions are delegated (by tradition) to specific
geographical, ethnic or professional constituencies.0 8 The remainder are
filled at-large. The term of office for delegates on the Standing Committee
is five years (as it is for all delegates to the NPC), commencing with the
first session of each new NPC.1  There are no term limits on Standing
Committee delegates.

The Standing Committee is headed by a Chairmen's Group. The
principal function of the Chairmen's Group is to set and oversee the agenda
for both the Standing Committee and - indirectly - the Plenary
Session."o This includes setting meeting dates and approving the agenda
for Standing Committee sessions, overseeing the work of and setting the
assignments for the special standing committees and any other special
committees the NPC has formed, and serving as the "floor manager" for
draft bills. The Chairmen's Group may also develop its own legislative

106. See Standing Committee Procedural Rules, art. 3. Special meetings may also be called.
107. See Records, supra note 8, at 782.
108. Interview (General Office Research Dept). See, e.g., Tanner, supra note 1, at 86.
109. If a delegate is replaced, the successor assumes the term of her predecessor.
110. See NPC Organization Law, art. 25.



NPC CONSTITUTIONAL DEVELOPMENT

proposals, and may instigate changes in the structure of the Standing
Committee."'

Although these powers are primarily procedural, they give the
Chairmen's Group a great deal of control over the activities of the Standing
Committee (and, by extension, over the activities of the whole NPC). As
ersatz floor manager for all bills that come before the Standing Committee,
the Chairmen's Group decides not only when a particular bill will go to the
floor, but also ifa particular draft will go the floor at all." 2 This gives the
Chairmen's Group de facto veto over all legislative proposals (and other
matters) submitted to the NPC."3

The Chairmen's Group is chaired by the Chairman of the Standing
Committee, who is generally identified as the 'leader" of the NPC.Y4 The
rest of the Chairmen's Group consists of the several Vice Chairmen 5 and
the General Secretary. Under the Constitution, tenure for the Chairman
and the Vice Chairmen is limited to two full, consecutive five-year
terms." 6 The Chairmen's Group meets once every two weeks." 7 The
agenda for each meeting is drafted by the General Secretary and is
approved by the Chairman of the Standing Committee." 8 According to
procedural rules, all members must receive information regarding items to
be discussed at that meeting at least two days before the meeting is held." 9

In 1987, the Chairman's Group established a Secretary's Group to
assist the General Secretary." The Secretary's Group is composed of the
General Secretary, the several Assistant General Secretaries, and one Vice-
Director from each of the eight special standing committees.'' Like the

111. See Procedural Rules for the Chairmen's Group of the NPC, art. 5. See also NPC
Organization Law, art. 25; Procedural Rules of the Standing Committee, art. 12 -13, 27. See
generally Ca, supra note 4, at 211; Liu & Cheng, supra note 1, at 229.

112. See notes 378-383 and accompanying text infra.
113. Its control in this regard is similar to that exercised by the chair of a House or Senate

committee in the United States Congress.
114. The Chairman of the Standing Committee is sometimes wrongly referred to as the

'Chairman of the NPC.' In fact, the NPC itself has no Chairman.
115. Currently there are 19 Vice Chairmen. See Records, supra note 8, at 782.
116. PRC CONSTMUMTION, art. 66. According to a 1939 constitutional interpretation of the

NPC, partial terms do not count towards this limit.
117. See Cai, supra note 4, at211.
118. See Procedural Rules for the Chairmen's Group, art. 6.
119. See Procedural Rules for the Chairmen's Group, art. 7.
120. See Liu & Cheng, supra note 1, at 229. This Secretary's Group should not be confused

with the Secretariat, which oversees the Standing Committee's corporate operations.
121. See Procedural Rules for the Secretary's Group, art. 2. None of these members have

constitutional limitations placed on their tenure.

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Chairman's Group, the Secretary's Group meets once every two weeks.' 2

The Secretary's Group prepares the draft agenda for both the Chairmen's
Group and for the Standing Committee, and assembles and distributes
material relevant to these sessions to their respective members."2 It also
drafts the legislative plans, and acts as a kind of preliminary floor manager
for legislative proposals originating outside of the Standing Committee
itself.

1 24

The procedural powers of both the Chairmen's Group and the
Chairman are considerable, but they are limited. The Chairman of the
Standing Committee does not control personnel placement either on the
Standing Committee or in the Chairmen's Group. For this reason, while
the Chairman does possess strong say over what the Chairmen's Group
(and by extension the Standing Committee and the Plenary Session) will
consider, he cannot direct the outcome of that consideration once it reaches
the floor. The Chairman must still bargain with other members of the
Group in order to effectuate his particular interests.' 25 Moreover, the
Chairman's personal resources are limited, and thus he must rely on
expertise of NPC staff in making many decisions. Most of that staff owe
their allegiances to the NPC, not the Chairman. t26

2. The Plenary Session

The Plenary Session is the full meeting of the NPC delegates. Under
the constitution, the Plenary Session must convene at least once a year in
the first quarter of the year."2 Sessions normally run for between two and

122. See Procedural Rules for the Secretary's Group, art. 4(1).
123. See Procedural Rules for the Secretary's Group, art. 2(3). The Secretary Group's draft

agenda for the Chairmen's Group is approved by the Chairman of the Standing Committee. The
draft agenda for the Standing Committee is approved by the Chairman and the Chairmen's Group.
See generally Liu & Cheng, supra note 1, at 229; Cai, supra note 4, at 414.

124. This process is described in further detail below. See notes 378-407 and accompanying
text infra.

125. Interview (Law Committee).
126. Interview (Secretary's Group). Staffers working with the Secretary's Group, which

drafts the agendas for both the Chairmen's Group and the Standing Committee, report that the
Chairman routinely approves their draft agendas with no amendment.

127. PRC CONsTITuTION, art. 61 (NPC Plenary Session must meet a minimum of once per
year); Procedural Rules of the Plenary Session, art. 2 (Plenary Session must meet in the first quarter
of each calender year). Additional sessions can be called by either the Standing Committee or by
2/3rds of the delegates, but there is no record of this yet happening.

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NPC CONSTITUTIONAL DEVELOPMENT

three weeks. 2 Sessions require a quorum of at least 2/3rd of the 2978-
member delegate body in order to be convened.' 9

During a Plenary Session, the delegate body is divided into 32
delegate groups, which provide more practical fora for delegate
discussion.13 Delegate groups are formed according to appointing
jurisdiction. t3' A delegate group has corporate capacity to submit
legislative proposals to the Plenary Session, and to subpoena governmental
actors. 2 Larger groups, such as those for Sichuan and Guangdong, will
frequently sub-divide themselves into smaller, sub-groups to facilitate
vetting. However, these sub-groups have no independent corporate
capacities. 33

Each Plenary Session is administered by a Presidium. The function
of the Presidium during a Plenary Session is similar to that of the
Chairmen's Group in the Standing Committee, but with several notable
additions. First, the Presidium directs the preliminary evaluation of new
legislative proposals submitted to a Plenary Session. This power is
exercised by the Secretary's Group in the Standing Committee. Second,
a special meeting of the Presidium will sometimes vet and amend certain
types of items while that item is under consideration on the floor of a
Plenary Session."M The Chairmen's Group, by contrast, does not vet items
currently under consideration on the Standing Committee floor.

The Presidium is a temporary body, existing only for the duration of
the Plenary Session. Each session elects its own Presidium anew. There
is no corporate continuity between the Presidiums of different Plenary
Sessions.

128. See Documents, supra note 7, at 854-855.
129. See Procedural Rules of the Plenary Session, art. 4 (requiring quorum). See also Records,

supra note 8, at 742 (stating size of delegate body).
130. See Procedural Rules of the Plenary Session, art. 7.
131. See Procedural Rules of the Plenary Session, art. 7. With regard to most delegates, the

appointing jurisdiction it their respective province. However, the PLA also selects a certain numbzr
of delegates, and these delegates meet in a PLA delegate group.

132. See Procedural Rules of the Plenary Session, art. 21 (authorizing delegate groups to
submit legislative proposals); Procedural Rules of the Plenary Session, art. 41 (authorizing delegate
groups to subpoena of governmental officials). Group subpoena's must be approved by the
Presidium (the leadership of the Plenary Session) before issuing.

Corporate actions of the Delegate Group are manifested by affirmative vote of more than
one-half of its members.

133. See Procedural Rules of the Plenary Session, art. 7.
134. See notes 417-419 and accompanying text infra.

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The Presidium consists of around 150 members. The Presidium may
include members who are not delegates to the NPC, and by tradition will
include party leaders of the CCP and other political parties, and
representatives from the military, various trade associations, and
representatives of other social interests.'35 The Presidium also includes
representatives from each province, and from each national minority group
of over 100,000 members. By tradition, the Presidium does not include
senior governmental leaders. 3 6 Presidium members are nominated by the
Standing Committee137 and confirmed by the Plenary Session. 38 Once
formed, the Presidium elects its own leadership, called the Standing
Chairmen, to preside over the Presidium's own agenda. By tradition, the
members of the Presidium's Standing Chairmen consist of the NPC
Standing Committee's Chairmen's Group, along with one additional person
drawn from and selected by the CCP Politburo. 39

Despite the fact that its membership includes CCP officials, the
Presidium is sometimes able to act somewhat independently of the CCP
hierarchy. For example, the 1993 Presidium, acting on the complaint of
a number of delegates, refused to accept a bill tendered to the Plenary
Session directly by the party on the grounds that the CCP lacked standing
to submit the bill. 1"

3. Basic vs. Ordinary Legislation

The principal jurisdictional distinction between the Plenary Session
and the Standing Committee lies in their different legislative competencies.
The Plenary Session's legislative competence is limited to "basic"
legislation, over which it enjoys exclusive legislative jurisdiction. 14' Basic

135. See Cai, supra note 4, at 359.
136. See Presidium Members Announced, SouCrHCINA MORNING POST, March 1, 1997, at 11.
137. See note 591 infra (discussing CCP's role in nominating persons for high constitutional

office).
138. See Procedural Rules of the Plenary Session, art. 8. The Presidium is elected in a special

meeting of the Plenary Session, called the Preparatory Meeting. Technically, this Preparatory
Meeting occurs a day before the Plenary Session is formally convened. See notes 664-666 and
accompanying text infra.

139. See Cai, supra note 4, at 364.
140. See Handling Amendments, supra note 63 (discussing this incident).
141. See PRC CONSTITUTION, art. 62(3). There are other differences as well. Only the Plenary

Session may confirm persons to high constitutional office or amend the constitution. On the other
side, authority to interpret the constitution and the laws is only given to the Standing Committee.

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NPC CONSTITUTIONAL DEVELOPMENT

laws take precedence over other forms of legislation, including ordinary
legislation as passed by the Standing Committee.

The constitution enumerates three basic laws - civil law, criminal law,
and organization laws,' but it also states that this list is not exclusive.'43

The question determining whether to treat a particular legislative matter as
a basic law or as an ordinary law is a point of considerable debate among
NPC staffers, scholars and commentators. Most suggest that laws
significantly affecting either governmental operations or the constitutional
rights of citizens should be regarded as basic laws.'" Since such laws have
significant impact on the constitutional structure, the argument goes, they
require the stronger constitutional pedigree of the more representative
Plenary Session. The General Office Research Staff (which recommends
to the NPC leadership whether a legislative proposal should be handled as
a basic or ordinary law) uses this principle in making its
recommendations. 45 Its arguments can sometimes have persuasive effect
as in the case of the village government law (which the Chairmen's Group
reclassified as a basic law on the General Office's recommendation) 6

The decision of whether a particular piece of legislation goes to the
Plenary Session is not without its consequences. Basic laws receive
considerably greater publicity than those which only go through the

142. Organization laws set out the basic parameters of the operations of the various
constitutional bodies. In a sense, their basic function is similar to a corporate charter. All
constitutional organs have organization laws attached to them except the Central Military
Commission and the Presidency.

143. See PRC CONSTrTUTION, art. 62(3). This is a product of China's civil law heritage. The
drafters of the original constitution in which this was framed envisioned China developing its own
code, with these divisions forming the fundamental sections of the code. China has yet to codify
its laws.

144. See, e.g., Cai, supra note 4, at 236-38; Liu & Cheng, supra note 1, at 82-83. See also Cal
Dingjian, Lifa Quan yu Lifa Quanxian [Legislative Authority and its Limits]. FALU YANJIU, No. 5,
1993, at 3.

145. Interview (General Office Research Department).
146. Interview (General Office Research Department). See also, Tanner, supra note 1. at 79.

However, attempts to get the Standing Committee to reclassify a public demonstration law as a basic
law failed in 1989. See id. See also Cai, supra note 144, at 5 (article by General Office Research
Department staffer arguing that public demonstration law should be treated as a basic law).

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COLUMBIA JOURNAL OF ASIAN LA W

Standing Committee. 47 Therefore, basic legislation may well have a
stronger disciplining effect on other political actors.'48

B. The Delegate Body

At present, the principal purpose of the delegate body is to vet and
amend agenda items, rather than to conceive them or judge their fate.
Delegates have capacity to introduce items to the NPC's agenda, but are
not particularly effective in doing so.'4 9 On the other hand, delegates,
while not yet able to defeat agenda items outright, increasingly show the
ability to defeat them in detail. For example, delegate opposition in the
Plenary Session forced significant changes to the 1997 amendments to the
criminal law, the resolution establishing Shenzhen as a special economic
zone, '5 the Education Law and Banking Law,"' and to the policy goals
outlined in the 1997 work report of the State Council.'52 Delegate
opposition in the Standing Committee forced significant changes in the

147. Because of the greater publicity attaching to meetings of the Plenary Session, draft basic
laws are routinely discussed and analyzed in articles in the popular press. Ordinary legislation is
less frequently discussed.

148. See, e.g., Guofang Lingcheng de Jiben Fa -Guofang Fa Kewang Chu Tai [A Basic Law
for National Defense -National Defense Law Can Go to the [NPC] floor], FAZHI RIBAO [LEGAL
SYSTEM DAILY], Jan 28, 1997, at 3 (noting that in choosing to treat a proposed national defense law
as a basic law rather than as ordinary legislation, the Standing Committee demonstrated its
appreciation of the importance of national defense) [hereinafter National Defense Law]. Even
without effective court enforcement, there is a cost associated with overtly breaking a known legal
norm. This fact is recognized even in China. See, e.g., Chen Youxi, Dui Xingzheng suong Kunjing
de Hongguan Sikao [Thought on the Difficulties of Administrative Litigation], XINGZHENG FAXUJE

YANJRu, No. 4, 1993, at 41, 41 (noting the political costs of overt administrative disregard for legal
mandate).

149. According to a recent interview with Qiao Shi, Chairman of the NPC's Standing
Committee, during the 1997 NPC plenary session, delegates sought to introduce some 700 items into
the NPC's agenda. Of these, some 140 were forwarded to relevant NPC departments for
consideration. Mr. Qiao notes that some of the items in the legislative plan were introduced via
delegate initiatives, but does not say which ones. See Qiao Shi Weiyuanzhang Jieshou Viuzhou
Shibao - Caifang [Chairman Qiao Shi Interviewed by "European Times ', FAzHi RIBAO [LEGAL
SYSTEM DAILY], April 1, 1997, at I [hereinafter Chairman Qiao Shi Interviewed by "European
Times']. See Cai, supra note 6, at 261 (noting that delegate legislative initiatives stand virtually no
chance of getting to the floor of the NPC); notes 327-329 and accompanying text infra (discussing
how the legislative plan discriminates against delegate legislative initiatives).

150. See Cai, supra note 4, at 280.
151. See Defiant deputies, supra note 40, at 1.
152. See Prime Minister's Work Report Amended, SOUTH CHINA MORNING POST, March 15,

1997 (Internet edition) (noting how threat of delegate defection inspired Li Peng to amend his work
report).

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NPC CONSTITUTIONAL DEVELOPMENT

Copyright Law,153 the State-Ovned Enterprises Law," and even in the
politically-sensitive resolution approving the Three Gorges Dam Project.155

Opposition by NPC delegates in the Standing Committee even forced the
State Council to withdraw draft bankruptcy legislation. 5

Both delegate dissension and threat of delegate dissension do have a
disciplining effect on other political actors."s For example, during the
1995 Plenary Session, over a quarter of the delegate body failed to support
a draft Bandng Law and a draft Education Law tendered by the State
Council. The failure to support was due in large part to delegate
dissatisfaction with the lackadaisical way the State Council and the CCP
presented these bills to the NPC."'5 The following year, the State Council
released a set of internal regulations requiring administrative officials to be
more responsive to the NPC and its delegates.'59 During the same 1995
Plenary Session, over a third of the delegates also failed to approve the
CCP's nominee for Vice Premier, Jiang Chunyun, because of concerns
over his qualifications and abilities.'6 ' Subsequently, the CCP began
discussing changes to the procedures it uses to place nominations before
the NPC. 161

153. See Difficult Issues, supra note 26 (discussing delegates' effect on draft copyright law).
154. See Tanner, supra note 1, at 71.
155. See Cal, supra note 4, at 280.
156. See id. at 262.
157. See Opposing Votes Seen as Warning to Jiang, HONG KONG STANDARD, March 15, 1997

Internett edition); Critics ofJiang Join Forces in Opposition, SOUTH CHINA MORNING POST, March
18, 1995 (noting ability of NPC to serves as a forunm for opposition bandwagoning); NPC Vote Snub

for Jiang Ally, supra note 40, at 1 (same); Defiant Deputies, supra note 40, at 7 (noting political
concerns caused by large dissent).

158. Interview with Sarah Lawrence, reporter for U.S. News & World Report. See also
Deputies Accuse Party, supra note 52, at 1.

159. See NPC Sets Regulations, supra note 51, at 2.
160. See Deputies Accuse Party, supra note 52, at I (noting strong delegate opposition to

Jiang's nomination); NPC Vote Snubforhiang Ally, supra note 40, at 1 (36% of NPC delegates fail
to support Jiang's nomination).

161. The CCP considered adding a preliminary NPC vetting process in the session before the
CCP finalized its nomination list, thus allowing the CCP to take better account of possible delegate
objections. See BeUing to Replace 20 Ministers in Reshuole, SOUTH CHINA MORNING POST, January
14, 1997 (Internet edition). This is in addition to the normal vetting that takes place after the
finalized list is submitted. See infra notes 570-595 and accompanying text infra (discussing
procedure for NPC confirmation). In effect, this make the NPC's confirmation process somewhat
similar to its process used by the Standing Committee for passing legislation. See notes 387-397
and accompanying text infra (discussing how Standing Committee double-vets of statutory
legislation). This change has not been implemented, however.

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Despite these recent successes, many among the NPC staff feel that
the delegate body is still the weak link in the NPC's institutional
development. 162  The principal complaint is that delegates still display
insufficient professionalism. 63 Not only does this make it difficult for the
NPC to develop the role of the delegate within the NPC system, it also
renders the NPC much more susceptible to outside pressures.

Nevertheless, as noted above, the delegate body is developing in this
area.1" This is due in part to concerted efforts by the NPC leadership to

162. See, e.g., Higher Standards for Deputies, CHINA DAILY, June 13, 1995, at 4 (translation
of June 12, 1995 editorial in Fazhi Ribao noting relationship between delegate quality and the
effectiveness of the NPC)[hereinafter Higher Standards]; see also Wu Wenbao, Guanyu Daibiao
Yian Wenti de Sikao [Reflections on the Problem of Delegate Bills], ZHONGGuO FAxUE, No., 1993,
at 33 (article by member of Standing Committee secretariat noting need to improve delegate
participation) [hereinafter Reflections]. See also Liu & Cheng, supra note 1, at 260 (noting NPC
efforts to increase the professionalization and role of the delegate body).

163. See, e.g., Liu & Cheng, supra note 1, at 258 (noting low quality of delegates); Cai
Dingiian, Rendahuiyi Biaojue Jipiao Fangfa Yanjiao [Research Into NPC Voting Methods], FAXUg,
No. 9, 1994, at 9, 10 (noting problem of delegates not attending session meetings).

The reasons for the NPC's weak delegate body are part historical and part systemic. As
noted above, for most of its history the NPC played little real role in China's political operation -
it was basically the hand-maiden of the State Council and the CCP. See Cai, supra note 4, at 380.
With little hope of exerting any real impact, there was little incentive for delegates to adopt
professional attitudes or develop professional norms. Moreover, the provincial bodies responsible
for selecting delegates to the NPC and assigning these positions tended to regard these positions as
a kind of honorary posting into which they could ease their older or less competent cadres in order
to make room in more vital positions for younger, better educated staff. Cf. Tanner, supra note 1,
at 74, 75 (noting a similar attitude among the central leadership). As a result, the delegate body
tended to be composed of less capable persons, forcing the NPC to devote most of its earlier
institutional development to support services (over whose staffing it has much more control).

Other more structural factors continue to prevent the NPC from developing more mature
delegate institutions. Delegate selection and remuneration are wholly controlled by the provinces,
which have traditionally perceived little utility in devoting particular attention or resources towards
this position. The professional development of the delegate body is also hindered by the fact that
the delegate position, including that for the Standing Committee, is not a full-time position. See Cai,
supra note 4, at 382; Liu & Cheng, supra note I, at 50. Of course, any effort to increase delegate
commitment to his or her NPC duties would be severely hampered by the fact that each delegate's
remuneration comes from the province he or she represents, which would likely oppose the greater
financial burden associated with increasing the commitments associated with the position.

Professionalization is further hindered by the procedures and structure of the NPC itself,
which tend to discourage contributions from individual delegates. Few institutional resources are
made available to delegates. See Reflections, supra note 162, at 34. Individual delegates do not
have their own research staff (unlike the members of the American Congress, for instance). Meeting
procedures and legislative procedures make it exceedingly difficult for individual delegates to bring
items to the attention of the floor. See id. Moreover, with regard to the Plenary Session, the
potential contributions of the individual delegate are further devalued by both the sheer size of the
delegate body and its transient existence. See Cai, supra note 4, at 381-382.

164. See notes 37-55 and accompanying text supra.

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NPC CONSTITUTIONAL DEVELOPMENT

foster such development. 65 The NPC devotes considerable resources both
to keeping delegates informed about the matters they are expected to
discuss (during both the Plenary Session and in the meetings of the
Standing Committee) and to recording and responding to delegate
concerns. 66 Further efforts along these lines, including the development
of more rigorous delegate qualifications, are currently being explored by
the General Office Research Department. 67 Commentators, including
those from the NPC itself, have also been publicly debating the proper
relationship between a delegate and his or her constituency."" Not only
does this debate stimulate the development of professional norms attached
to the delegate position, but the public nature of this debate should promote
the internalization of these norms by delegates. 69

A more powerful factor driving this development is the increasing
role that pluralist bargaining plays in both the NPC and in China's political
environment. Lobbying has become a significant activity within the NPC,
and much of this lobbying revolves around the delegates. Such lobbying
appears in many forms. The most prevalent form of lobbying is by NPC
delegates on behalf of regional interests or constituents. For example, NPC
delegates from the areas affected by the Three Gorges Dam Project were
among the most active opponents to the resolution authorizing that project.
Their opposition was able to force that resolution back to committee for
revision several times. During recent years, delegates from
underdeveloped provinces have also lobbied the State Council to relax
public credit restrictions. Women from the NPC have lobbied the NPC
leadership to increase the number of women delegates to the Standing

165. See, e.g., Liu & Cheng, supra note 1, at 260 (noting effort by NPC and Peng Zhen to
develop the delegate body during the 1980s); Tanner, supra note 1, at (noting efforts of Peng Zhen);
Defiant deputies, supra note 40, at 1 (noting Qiao Shi's public support for delegate 'defiance' of
party leaders); Deputies Accuse Party, supra note 52 (Vice Chairman Tian Jiyun encouraging
delegates that their votes would not be "investigated" by the party).

166. See, e.g., notes 366-429 and accompanying text infra (discussing vetting procedures for
legislative bills).

167. See, e.g., Liu & Cheng, supra note 1, at 258-62 (noting the General Office's thinking
along these lines).

168. See, e.g., Theory and Practice, supra note 81; Higher Standardssupra note 162 (reprint
of Fazhi Ribao editorial discussing need for more professional NFC delegates).

169. See John W. Meyer & Brian Rowan, Institutional Organizations; Formal Structure as
Myth and Ceremony, in THE NEW INsTrrunoNAusM 41 (Walter Powell & Paul Dimaggio, eds.
1991) (discussing how institutional justifications become internalized as institutional norms by
succeeding generations).

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COLUMBIA JOURNAL OF ASIAN LAW

Committee.17 Delegates also routinely petition the NPC and other
constitutional actors - most prominently the Supreme People's Court -
to investigate particular matters involving a constituency or regional
interests."' 1 Delegates, particularly those to the Plenary Session, also use
the session meetings to attract business to their home provinces. 172

Delegates are also becoming the focus of lobbying efforts by others,
particularly governmental and party actors.173

As such lobbying develops, it counteracts one of the principal
structural impediments facing the institutional development of the delegate
body - the provinces' low regard for the utility of the delegate position.
The advent of such lobbying means that better and more respected
delegates are more able to attract attention and benefits to their respective
provinces or constituencies. Lobbying also increases the power and status
of the delegate position. This development should make the position more
attractive to more educated and motivated individuals.

170. See, e.g., Cai, supra note 4, at 280 (discussing delegates opposition to Three Gorges dam
resolution); Industry Protection Urged, SOUTH CHINA MORNING POST, September 23, 1996, at 6
(reporting on a petition sent to the CCP by 100 NPC delegates urging more protectionist trade
policies); Funding Pleas Fail, SOUTH CHINA MORNING POST, March 17, 1996, at 6 (NPC delegates
from central provinces lobby State Council for extra development funds); Helping the West, CHINA
DAILY, March 15, 1996, at 4 (letter from Gansu NPC delegate saying that "[t]he central government
should pay more attention to the development of the hinterland regions... ."); Desperate Cry From
Hinterlands for Funds, SOUTH CHINA MORNING POST, March 17, 1995, at 6 (same) [hereinafter
Desperate Cry From Hinterlandsfor Fund]; Women in Protest, supra note 52 (reporting on petition
by women delegates to increase female representation on the Standing Committee).

See also Tanner, supra note 1, at 86 (lobbying by the All-China Trade Federation Union);
Zhang Mingjie, supra note 78 (discussing the development of such interest groups in the late 1980s).
Cf. Dumping Ban for Yangtze, SOUTH CHINA MORNING POST, December 10, 1996 (Internet edition)
(noting development of environmental lobby in China).

171. See Susan Finder, The Supreme People's Court of the People's Republic of China, 7 J.
CHINESEL. (1993) at 145, 153.

172. See, e.g., Desperate Cry From Hinterlands for Fund, supra note 170 (noting that efforts
by Shaanxi delegates to attract business to their province).

173. As noted above, this concern has caused the CCP and the State Council to pass internal
rules regulating when and how party and executive officials can interact with NPC delegates during
the NPC's Plenary Session. See NPC Sets Regulations, supra note 51 (internal regulations jointly
passed by State Council and CCP forbidding unauthorized contact between department officials and
NPC delegates). According to one NPC staffer, however, the State Council and the CCP
overestimate the extent of this form of lobbying. Interview (General Office Research Department).

[11:1



NPC CONSTI)TUTIONAL DEVELOPMENT

1. Selection to the Plenary Session

The full delegate body of the NPC currently consists of 2,978
members.1 74  Delegates serve for coterminous five-year terms, and are
elected and paid by the province or unit they represent.1 75 Representation
is not strictly proportional - urban areas receive four times as many
delegates per voter as do rural areas. 76  In addition to provincially-
assigned slots, a certain number of delegate slots are assigned to the
People's Liberation Army."T A delegate must be over 18 years old, a
citizen of China, mentally competent, and not have had any of her political
rights curtailed by criminal conviction.'78 A delegate may be removed
from office if he or she misses two plenary sessions 7

The procedure for selecting delegates to the Plenary Session is as
follows.' For each new term of the NPC, the outgoing NPC Standing

174. See Records, supra note 8, at 742.
175. See PRC CONSTITUrION, arL 60.
176. For the 8"' NPC, delegate-to-population ratio for rural areas was one delegate for every

825,200 persons (1,091 delegate slots total). For urban areas, the ration was one delegate for every
206,300 residents (1,263 delegate slots total). It is unclear whether these figures take into account
the large - and largely underground - migrant worker populations that are building up in many
of the major urban centers in China. See Cai, supra note 4, at 132.

Such malapportionment practices are not unknown to liberal democracies. Both Japan
and France give greater representational weight to rural areas in their national legislature, on the
theory that without such assistance, the legitimate needs of the rural minority would be ignored by
an urban-dominated parliament. In 1787, a similar concern voiced by low-population states lead to
the creation of the still malapportioned United States Senate. The official theory underlying China's
malapportionment is somewhat different, since China's Marxist ideology will not admit of different
social interests. Instead, the Chinese justification for this practice is that the urban population is
more sophisticated than the rural, and thus produces a better quality delegate. See Andrew Nathan,
China's Constitutionalist Option 18 (forthcoming 1996) (on file with author) [hereinafter China's
Constitutional Option].

177. As with provincial delegates, PLA delegates are remunerated by the PLA and selected
according to the PLA's own procedures and criteria. The 80 NPC included some 267 delegates from
the PLA, the largest single contingent in the NPC. See Records, supra note 8, at 764. Sichuan, the
most represented province, has only 205 delegates. See id. at 759.

178. See Zhongguo Renmin Gongheguo Chuanguo Renmin Daibiao Dahui he Difang Geji
Renmin Daibiao Dahui Xuanju Fa, art. 3 (requiring that delegates be over 18 and not be subject to
criminal conviction depriving them of political rights); art. 26 (requiring that delegates be mentally
competent); Zhongguo Renmin Gongheguo Chuanguo Renmin Daibiao Dahui he Difang Geji
Renmin Daibiao Dahui Daibiao Fa, art. 42 (requiring that a delegate be removed if he or she loses
citizenship).

179. Zhongguo Renmin Gongheguo Chuanguo Renmin Daibiao Dahui he Difang Geji Renmin
Daibiao Dahui Daibiao Fa, art. 41.

180. Unless otherwise noted, all information in this section is taken from Cai, supra note 4, at
151-153. This procedure varies somewhat from province to province.

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COLUMBIA JOURNAL OFASIANLAW

Committee determines how many delegate slots shall be apportioned to
each province (and the PLA). The provincial Party Standing Committee
then drafts up a name list of proposed delegate nominees. Most of these
nominees are selected in consultation with various parties and social
organizations. But some of these nominees (about 10% of the total NPC
delegate slots) are designated by the NPC Standing Committee itself, a
process called 'capping' ("daimao").' 8' The Provincial Party Standing
Committee then submits its draft list (which includes the NPC's list of
"capped" delegates) to the Standing Committee of the Provincial People's
Congress for confirmation.

At the same time, the Provincial People's Congress draws up its own
list of nominees. Generally, a nominee is placed on that list upon motion
by 10 or more delegates.'82 The party's list (which includes 'capped'
nominees) is combined with the congress's list, and the combined list is
then submitted to the floor of the provincial congress for preliminary
vetting. Thereafter, the Standing Committee for the Provincial People's
Congress draws up the official list of nominees. The number of nominees
on the official list generally exceeds the number of allocated delegate slots
by between 20% and 50%, depending on the province.'83 The official list
is then submitted to the delegates for formal vote.

Each nominee is voted on individually. Capped nominees are
confirmed if they receive affirmative votes from more than half those
casting ballots. If a capped nominee is rejected, the NPC Standing
Committee submits another nomination - the capped nominee is not
replaced by a locally selected nominee. Non-capped nominees are also
confirmed if they receive at least 50% affirmative votes. If the number of
candidates confirmed exceeds the number of delegate positions available,
delegates are selected on the basis of the highest number of affirmative
votes received. If the number of confirmed candidates is less than the
number of delegate slots to be filled, a second list of nominees is made up
for the remaining slots. As with the original nominee list, the number of

181. The 8th NPC included 220 delegates who had been 'capped' by the NPC Standing
Committee. Capping is often used in part to insure that desired numbers of women, minorities and
other constituency groups are included in the delegate body. Cai, supra note 4, at 151-152; China's
Constitutional Option, supra note 176, at 47. Cf Women in Protest, supra note 52 (women Standing
Committee delegates petition NPC Standing Committee for greater female representation in the
Plenary Session).

182. See Liu & Cheng, supra note 1, at 195.
183. See Cai, supra note 4, at 152. In Beijing, local regulation requires that the Party may

nominate no more than 20% of Beijing's delegates to the NPC. See id.



NPC CONSTITUTIONAL DEVELOPMENT

delegates on this second list "should" exceed the number of remaining
unfilled delegate slots by between 20% and 50%. Theses nominees are
generally picked from among the unconfirmed nominees from the first
ballot."e The delegates then vote a second time. As with the first time, the
nominees must be confirmed by affirmative votes of more than half of the
voting delegates and are selected on the basis of the highest total of
affirmative votes received." 5

2. Selection to the Standing Committee

Currently, the Standing Committee consists of 156 delegates.e 6

Terms of service on the Standing Committee are coterminous with those
for the Plenary Session. According to practice, about half of the slots on
the Standing Committee are allocated according to province; the other half
are at-large.1" A number of these at-large slots are traditionally reserved
for representatives from particular interests and/or organizations (such as
the All-China Women's Federation) thus giving the Standing Committee
a certain degree of constituency and geographical representation.'8 Under
the constitution, delegates to the Standing Committee may not
coterminously hold office in either the State Council, the Supreme People's
Court, the Supreme People's Procurate, or the Presidency. 'D

Delegates to the Standing Committee are selected at the beginning of
each new NPC term, and are nominated by the outgoing Standing
Committee.!"0 Since 1988, these nominations have exceeded the number
of slots available by a small number (9 in 1988; 7 in 1993).'9' The

184. See i. The procedures do not say how it is to be determined which of the unconfirmed
nominees are to be selected to participate in the run-off election. Presumably, the choice is left to
the provincial congress' standing committee.

185. The voting procedures are unclear as to what happens should these nominees all continue
to fail to receive a majority of affirmative votes. No one interviewed for this article is aware of any
instance in which a second ballot was necessary.

186. See Records, supra note 8, at 782.
187. Interview (General Office Research Department).
188. See, e.g., Tanner, supra note 1, at 63,86; Cf. Women in Protest, supra note 52 (Women

Standing Committee delegates petition NPC Standing Committee for greater female representation
on the committee).

189. See PRC CONSTmrnoN, art. 65. There is no similar constitutional restriction placed on
delegates to the Plenary Session. In practice, the same exclusion principle applies. Interview
(CSRC).

190. See PRC CONsTruTtON, art. 66.
191. See Cai, supra note 4, at 210 (1988 elections); Records, supra note 8, at 531 (1993

elections).

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COLUMBIA JOURNAL OFASIANLAW

nominee list is submitted to the Presidium during the first session of the
new NPC. The list is then distributed among the delegate groups for
informal discussion. Based on the results of these discussions, the
Presidium then draws up the official list of nominees. Each nominee is
voted on separately, and those 156 nominees receiving the highest number
of affirmative votes are chosen to serve on the Standing Committee. As
with delegates to the Plenary Session, delegates to the Standing Committee
must be confirmed by more than half those casting ballots. The procedures
do not say what happens if those receiving majority support are fewer than
the number of slots to be filled. 92

The same procedures are used by the Plenary Session to nominate and
confirm the Standing Committee's Chairmen, Vice-Chairmen, and General
Secretary, except that the number of nominees submitted for these
positions is equal to the number of slots available. t93

C. Support Services

The development of the NPC's support services has been a major
factor in the NPC's institutional emergence. 94 In fact, these support
services continue to play a more instrumental role in the NPC's operations
than does the delegate body itself. Currently, the NPC supports ten distinct
support services, each with its own research staff.'95 The two most
important of these services are the General Office Research Department 196

and the Commission of Legislative Affairs ["CLA"].' 9 The General Office
Research Department and the CLA specialize in the strategic aspects of
legislative development and the technical aspects of legislative drafting,
respectively. These two bodies have been the principal engines driving the
institutional development of the NPC's legislative competence. In addition,

192. See Cai, supra note 4, at 210.
193. See id. Some provincial people's congresses have began instituting multi-candidate

nominations for these positions as well.
194. See notes 13-36 and accompanying text supra.
195. But see also note 202 and accompanying text (noting that CLA and the Law Committee

share research staff).
196. Several members of that staff translate the title of this office as the "Congressional

Research Office of the NPC." It is not clear whether this translation is official.
197. "Fazhi Gongzuo Weiyuanhui." Some people translate this as Legislative Affairs Works

Committee.

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

eight special standing committees assist the NPC in various aspects of
policy development. 93

1. Commission for Legislative Affairs ["CLA"]

The CLA, a part of the Standing Committee, is the support organ
which is principally responsible for the NPC's legislative drafting. At
present, the CLA has a research staff of over 200, distributed among five
research offices. These include four departments specializing in particular
substantive areas of law - economic law, civil law, criminal law, and
public law (administrative and constitutional law), as well as a non-
specialized "Research Office."'" Most of the research staff in these offices
possess law degrees.co The CLA also has its own general office, which
oversees the CLA's staffing needs. The CLA is not subject to the CCP's
nomenidatura system, and thus is generally able to control its own
hirings?' This gives the CLA a more professionalized and higher quality
staff than those found in many other Chinese governmental or political
organs. According to one NPC staffer (from another department), the
quality of the CLA's research staff is one of the major reasons the NPC has
been able to seize control over legislative development from the State
Council. 2 Additionally, the CLA also has its own law library, which it
administers independently of the NPC's main library 0 3

198. Special Committees, unlike the three bodies mentioned above, are technically indep.ndent
from the Standing Committee, although some report that the Chairmen's Group is responsible for
setting their work priorities. See, e.g., Tanner, supra note 1, at 80. Others within the NPC dispute
this characterization. Interviews (Economic and Finance Committee; General Office Research
Department).

199. See Tanner, supra note 1, at 83; Cai, supra note 4, at 416.
200. Interview (General Office Research Department).
201. Interview (General Office Research Department). See also, Tanner, supra note 1, at 90

n.21.
202. For example, the scholarly publication produced by the CLA and its staff are far superior

to those emanating from its State Council counterpart, the Bureau of Legislative Affairs C "BLAI];
the CLA also plays a much more active role in legislative drafting than does the BLA. In fact, there
is much evidence that the BLA has basically lost control of much of the State Council's drafting
activities. Interviews (CSRC; Ministry of Justice).

203. Interview (CLA). The NPC's main library is administered by the General Office Research
Department. According to the CLA, their library is the 'Law Library," whereas the library run by
the General Office Research Department is the 'General Library." The General Office Research
Department disputes this characterization, claiming instead that the CLA's library is merely a
departmental collection of materials.

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COLUMBIA JOURNAL OFASIAN 4W

The entire research staff of the CLA also serves as the research staff
for the Law Committee (see below).' 4 However, the leadership of each
organ remains distinct, as do their normative roles within the NPC. Thus,
the two bodies evince distinct institutional personalities."0

The CLA has a number of distinct institutional functions within the
NPC's legislative process. In addition to drafting legislative proposals for
the Standing Committee and Chairmen's Group,2 6 it also evaluates
legislative drafts submitted to the NPC from other drafters. The CLA also
summarizes and reports to the Chairmen's Group the opinions of the
various special standing committees regarding legislative proposals. The
CLA also promulgates "legal interpretations" under its own name2"7 and is
frequently consulted by the Supreme People's Court regarding particular
interpretive problems.0 8

Obviously, there is significant conflict of interest among these various
roles. In particular, staffers from other organs have publicly complained
that the CLA does not always adequately represent their concerns and
opinions, particularly when the CLA's own legislation is involved.' ° This
problem is exacerbated by the fact that the Chairmen's Group attaches
considerable weight to the CLA's evaluation of particular proposals. In
fact, until very recently the CLA was the only support service which could
communicate directly to the Chairmen's Group. While this appears to be
changing, the Chairmen's Group's continued reliance on the CLA gives the

204. See Cai, supra note 4, at 417.
205. For example, in reviewing the 1995 draft amendments to the Air Pollution Prevention and

Control Law as drafted by the Environmental Protection Committee, the CLA showed significantly
more institutional concern over certain provisions than did the Law Committee. See Liebman
Correspondences, supra note 66.

206. According to CLA staffers, this now includes all basic laws, the highest source of
legislation other than the constitution. Interview (CLA). See also, Tanner, supra note 1, at 83
(stating that CLA staffers also told him the same thing). This may be a normative principle, but it
is frequently abrogated in practice. The National Defense Law, for example, was included as a basic
law on the agenda for the NPC's 1997 Plenary, but was drafted by the PLA and the State Council's
Ministry of Defense. See National Defense Law, supra note 148, at 3. See also, Tanner, supra note
1, at 83 (noting examples of other basic legislative drafted by the State Council).

207. See notes 450 and accompanying text infra. These 'interpretations" are in fact a form of
supplemental legislation, not judicial interpretations.

208. See Finder, supra note 171, at 153.
209. See, e.g., Li Zuxing, Jiaqiang Zhuanmen Weiyuanhui Zai Lifa Shenyi Zhong de Zuoyong

[Enhance the Role of Special Committees in Legislative Deliberation], ZHONGGUO FAXUE, No. 3,
1993, at 51 (staffer from special committee discussing how NPC's internal procedures prevent
special standing committees from fulfilling their constitutional role) [hereinafter Special
Committees].

[lift



NPC CONSTITUTIONAL DEVELOPMENT

CLA a kind of de facto veto over the legislative drafts of other drafting
organs.

210

Because of the CLA's central position in the NPC's legislative
process, it is increasingly the target of lobbying efforts by diverse pluralist
interests, who try to win in the CLA what they lost in the earlier stages of
drafting. With regard to the 1995 amendments to the Air Pollution
Prevention and Control Law, for example, the CLA became the target of
intensive lobbying efforts by the industrial ministries and by high-sulphur
coal producing provinces (such as Sichuan) after that legislation's drafter,
the Environmental Protection Committee, imposed tough standards on the
use of high-sulphur coal.211

The CLA, for its part, encourages this lobbying, seeing its role as one
of providing a voice to interests that it believes have not been adequately
considered by the drafters of the legislation 12 With regard to the 1995
amendments to the Air Pollution Prevention and Control Law, for example,
the CLA pushed the interests of the coal ministry and coal producing
provinces, ostensibly because they believed that neither NEPA nor the
Special Standing Committee for Environmental Protection had given these
interests adequate opportunity for input during the original drafting
process.213 Obviously, this is a major development in China's political
environment, which has traditionally revolved around an ideology that
regarded any overt recognition of the existence of differing social interest
in China as heresy. The CLA not only allows divergent political interests
to do battle over legislative development, it actively encourages them to do
so. The CLA's drafting and review procedures are the first at China's
central level to openly acknowledge the value of pluralist political
dynamics.

214

210. See f&i See also interview (General Office Research Department).
211. See Liebman Correspondences, supra note 66.
212. See Cai, supra note 4, at 416 (noting that one of the responsibilities of the CLA is to

ensure that differing viewpoints are adequately represented in the legislative process). See also
Interview (CLA) (same); Liebman Correspondences, supra note 66 (same). See generally, notes
334-432 and accompanying text infra (discussing how the CLA is involved in legislative process).

213. See Liebman Correspondences, supra note 66. Given the fact that the CLA is increasingly
targeted for lobbying by various interests, it is unclear whether the CLA is in fact acting as a 'loyal
opposition' or whether they are acting as agents for successful lobbyists. See id. However, persons
familiar with the negotiations surrounding the securities law, which has also met with significant
CLA opposition, do not believe that the CLA's opposition to that draft is due to any lobbying by
external sources. Interview (CSRC).

214. See generally, Putman, supra note 27, at 86-91 (discussing the importance of such
dynamics to the effectiveness of public institutions).

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COLUMBIA JOURNAL OFASIANLAW

There are negative aspects to this development, however. Not only
is this advocate role inconsistent with the CLA's role as impartial advisor
to the Chairmen's Group, but in trying to diversify the sources of
legislative input, the CLA is in danger of venturing beyond the core of its
institutional competence - that of legislative drafting - into the area of
policy development, which is supposed to be the responsibility of the
special standing committees.2"' For example, the CLA tried to hold up the
draft 1995 amendments to the Air Pollution Prevention and Control Law,
as drafted by the Environmental Protection Standing Committee of the
NPC, on the grounds that the pollution licensing scheme adopted in that
draft was too restrictive and would thus inhibit economic development. 6

With regard to the current draft securities law, CLA objections reportedly
involve such matters as trading and settlement requirements in the
secondary market, thresholds for tender offers, and the structure of over-
the-counter markets.2"7 The CLA is not intended or designed to be an
expert in such policy matters, and thus its understanding of the policy
preferences and balancing of interests is open to question.

The CLA's increasingly skeptical scrutiny of legislative drafting also
slows the pace of legislative development in China. Major policy
differences between the CLA and the drafting group have resulted in
substantial delay and uncertainty over when, if ever, important legislative
proposals will reach the floor of the Standing Committee. Negotiations
between the drafting group for the draft securities law and the CLA have
delayed that draft from reaching the floor of the Standing Committee for
over two years, with still no resolution in sight.2t ' The Environmental
Protection Standing Committee's dispute with the CLA over total load
measuring also significantly delayed the passage of the 1995 Amendments
to the Air Pollution Prevention and Control Law.219

The NPC is aware of the problem of the Chairmen's Group's over-
reliance on the CLA.22 Its principal response so far has been to develop
means by which the special standing committees can communicate directly
with the Chairmen's Group. This allows the CLA to continue focusing on
its pluralist-enhancing function, while at the same time bringing more

215. See Special Committees, supra note 209. See also notes 243-244 and accompanying text
infra (discussing role of special standing committees).

216. See Special Committees, supra note 209.
217. Interview (drafting group).
218. Interview (drafting group).
219. See Liebman Correspondences, supra note 66.
220. Interview (General Office Research Department).

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

diversified sources of objective information to the Chairmen's Group's
attention. This does not address the legislative backlog created by the
CLA's time-consuming review, however. But legislative viscosity is a
problem inherent in most mature legislative systems. It is the price that the
NPC and China will probably have to pay in switching from a legislative
process founded on political command to a more constitutional one
founded on political bargaining.

2. General Office and the General Office Research
Department

The General Office of the Standing Committee is responsible for
administering the daily activities of the Standing Committee." The
General Office has a "Research Department, : m which has been a major
intellectual force behind the NPC institutional development. The Research
Department, like the CLA, reports directly to the Chairmen's Group.m
The Research Department has about 70 research staff, divided into four
research sections.2 4 Like the CLA, the Research Department also has its
own general office,' and its hiring is not subject to the CCP's
nomenklatura system. 6 Thus, it enjoys significant independence with
regard to hiring and staffing, which allows it to field a particularly educated
and professional staff.

The responsibilities of the General Office Research Department are
two-fold. First, it is responsible for refining the NPC's structure and

221. See Tanner, supra note 1, at 80.
222. 'Bangongting Yanjuishi., See also note 196.
223. Interview (General Office Research Department). Prior to 1995. the Research Department

reported to the Chairmen's Group only indirectly, through the Standing Committee Secretariat. The
rest of the General Office continues to report to the Secretariat.

224. These sections include the political section (zhengzhiju). economic section (jingjiju),
international section (guojiju), and the jurisprudence section (lilun ju). One staffer in the Research
Department suggests that there is little relationship between the title of the department and the
research projects assigned to it by the NPC leadership. Interview (General Office Research
Department). For example, the General Office Research Department researchers principally
involved in the development of the supervision law, see notes 629-635 and accompanying text infra,
are from the international section, not from the political section as one might expect. Interview
(General Office Research Department).

225. "Bangongshi." This office should not be confused with the General Office of the Standing
Committee (bangongting).

226. Interview (General Office Research Department). See also, Tanner, supra note 1, at 90
n.21.

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COLUMBIA JOURNAL OF ASIAN LA W

procedures. This involves researching ways to better effectuate the NPC's
constitutional authority and to further rationalize the NPC's internal rules
and process.'2 7 The Research Department also occasionally drafts
legislation dealing with the NPC's constitutional operations.228

Second, the General Office Research Department is responsible for
overseeing the rational coherence of the statutory system.' This includes,
for example, investigating whether the principles contained in proposed
legislation are consistent with the existing legal framework as a whole;"0

determining when older statutes have been superseded or should otherwise
be consolidated;"3 and determining which particular organ should properly
be given administrative or drafting jurisdiction over which particular area
of regulation." The Research Department also oversees the overall
development of China's statutory corpus, assisting the Secretary's Group
in drafting the NPC's one-year and five-year legislative plans3 3

Several other departments of the General Office also play significant
roles in the NPC's constitutional operations. These include the Letters
Department, which handles complaints, petitions and inquiries from both
delegates and citizens. 2" The NPC receives over 70,000 of such letters

227. This includes, for example, determining effective distributions of legislative powers
between national and local jurisdictions, as well as between different constitutional bodies at the
national level. It also includes recommending which laws should be handled as "basic laws" and
which should be handled as ordinary laws. Interview (General Office Research Department).

228. Under the 8th NPC's five-year legislative plan (drafted in 1993), the General Office
Research Department was assigned drafting responsibility for the proposed Supervision Law (see
text infra); and proposed amendments to the NPC Organization Law, Procedural Rules for the
Plenary Session, and Procedural Rules for the Standing Committee. As of the 1997 Plenary, none
of these proposals have made it to the floor of the NPC. See Ba Jie Chuanguo Renda Changweihui
Lifa Guihua [Legislative Plan for the Standing Committee of the 8"' NPC].

229. This particular responsibility was added to the Department's portfolio in 1992. Interview
(General Office Research Department).

230. This is particularly important with regard to developing statutory frameworks for activities
which cut across a number of laws and regulatory jurisdictions. One such example would be the
legal framework for issuing treasury bills, which is governed in part by the banking Law and the
Budget Law and effects the People's Bank of China, the Ministry of Finance, and the China
Securities Regulatory Commission; and which is governed in part by the Banking Law and the
Budget Law. Interview (General Office Research Department).

231. Interview (General Office Research Department). For example, the General Office was
instrumental in the NPC's decision to draft a combined contract law.

232. During the drafting of the State Enterprise Law ("Guoyou Qiye Fa"), for example, the
Research Department was called upon to decide whether enterprises should be supervised by the
party cell or by a supervisory committee. Interview (General Office Research Department).

233. Interview (General Office Research Department). See notes 313-329 and accompanying
text infra (describing formation of these plans).

234. See Cai, supra note 4, at 415.

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NPC CONSTITUTIONAL DEVELOPMENT

each year, 5 some of which result in NPC investigations 6 The
Information Department oversees information flow both within the NPC
and between the NPC and outside parties. For example, it organizes and
distributes preparatory materials to the delegates prior to the convening of
the Plenary Session and the Standing Committee. The General Office
also administers the Library of the NPC Standing Committee 3 s

3. The Special Standing Committees

The special standing committees are the only NPC support organs to
have independent constitutional status.3 As such, they are the only
support service to exist independently of the Standing Committee, although
their respective agendi are still largely determined by the Chairmen's
Group.'4 There are currently eight such committees. Seven focus on
particular policy areas.24 These "substantive"' 2 special standing
committees include the National Minorities Committee; the Economic and
Finance Committee; the Foreign Affairs Committee; the Overseas Chinese
Committee; the Education, Science, Culture and Health Committee; the
Internal and Judicial Affairs Committee; and the Environmental Protection
Committee. A ninth special standing committee, focusing on agricultural
policy, is scheduled to be added during the 1998 Plenary Session. The
other special standing committee, the Law Committee, reviews and revises
draft legislative proposals and resolutions after consideration by the
Standing Committee or Plenary Session floor.

235. See Renda Gongzuo Qude XinJinzhen [NPC's Work Undergoes New Development] FAz2I
RIBAO [LEGAL SYSTEM DAILY], Jan 18, 1997, at 1 (citing figures given by NPC General Secretary
Cao Zhi).

236. See notes 602-619 and accompanying text infra (discussing NPC supervision of the
judiciary).

237. See Cai, supra note 4, at 415.
238. But see note 208 supra (noting that CLA also maintains is own, independent collection

of legal materials). The General Office's Library is estimated as containing some 200,000 volumes
as of 1995. Interview (General Office Research Department).

239. See PRC CONSTrurIoN, art. 70.
240. See Ca, supra note 4, at 211. This claim is disputed by some special standing committee

staff. Interview (Economic and Finance Committee).
241. In effect, the role of these substantive standing committees is similar to that of the

standing committees in the United States Congress.
242. This is the author's terminology. It is not used by Chinese scholars or by the NPC itself.

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a. The Substantive Committees

In contrast to the CLA, whose function is to provide technical
expertise in the drafting of legislation, the role of the seven (soon to be
eight) substantive special standing committees is oriented more towards
assisting the NPC in matters of policy development.243 These committees
have both legislative and supervisory responsibilities. In helping the NPC
carry out its legislative work, these committees recommend specific
legislation for inclusion in the legislative plan; draft and report out to the
Standing Committee and to the Plenary Session proposed legislation and
draft resolutions; and evaluate relevant legislative drafts, or relevant
portions of legislative drafts, submitted to the NPC by organs outside the
Standing Committee.

The substantive special standing committees also assist the NPC in
supervising other constitutional actors. In this capacity, they evaluate and
report upon those work reports of other constitutional actors (or parts
thereof) that fall within their technical competence, as well as relevant
parts of the budgetary reports and state planning reports. The special
standing committees also conduct special investigations at the behest of the
NPC or the Standing Committee.2' Technically, these committees are also
responsible for insuring that relevant provincial and administrative
regulations, or parts thereof, do not conflict with the constitution or
existing legal framework, but as yet there are no procedures in place for
exercising this type of activity.245

The special standing committees also provide an important channel
of communication between the NPC and China's executive organs.246

Special standing committees frequently work in partnership with particular
executive organs in drafting legislation, to a much greater extent than does
the CLA. This was the case, for example, with the 1995 amendments to
the Air Pollution Prevention and Control Law (jointly drafted by the
National Environmental Protection Agency of the State Council and the
Environmental Protection Committee of the NPC) and the draft Securities

243. See PRC CONSTITUrION, art. 70.
244. See id. at 219-220.
245. See Cai, supra note 4, at 219-220.
246. See id. at 217 (noting that one of the important roles of the special standing committees

is to provide a link between the NPC and the executive organ); Liu & Cheng, supra note 1, at 267
(same). See also Murray Scot Tanner, supra note 1, at 81-82 (noting close connection between
special standing committees and their parallel administrative organs); See also notes 356-361 and
accompanying text infra (discussing drafting process of special standing committees).

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NPC CONSTITUTIONAL DEVELOPMENT

Law (jointly drafted by the China Securities Regulatory Commission and
the Economic and Finance Committee). In both these cases, the standing
committees proved to be more cooperative with their partner state council
organ than did the CLA,247 and served as the principal means through
which the State Council partner represented its concerns to the NPC.24

Each of the substantive special standing committees has between ten
and thirty members.2 9 Members are drawn from among the NPC
delegates, with the majority of members serving on the Standing
Committee. 50 The members of each committee are selected by the
Chairmen's Group and ratified by the Plenary Session.5 Increasingly,
many of these members also have had previous experience working in
relevant organs of the State Council. 2 As noted above, a Vice Director
from each committee also serves on the Secretary's Group.

Each committee also has its own research staff.P Like the other
support services mentioned above, committees all have their own general
office, and their staffing is not controlled by the CCP's nomenklatura
system, thus giving these committees relative independence in meeting
their staffing needs,5 s and allowing a fairly independent and professional
staff.256 However, resource limitations have prevented the special standing

247. Interview (CSRC). One scholar has suggested the possibility that the cross- pollination
between the special standing committees and their parallel executive organs may allow these
administrative organs to capture the particular committee charged with supervising them. See
Tanner, supra note 1, at 81. However, with regard to the drafting of the draft securities law, the
Economic and Finance Committee has no CSRC alumni in its ranks. Interview (CSRC).

24S. Interview (CSRC). As noted above, however, the CLA is often more responsive to
concerns of non-drafting executive organs. See note 212 and accompanying text supra.

249. For the 8'" NPC, the breakdown is as follows: the National Minorities Committee, 25
members; the Finance and Economics Committee, 29 members; the Foreign Affairs Committee, 15
members; the Overseas Chinese Committee, 21 members; the Education, Science, Culture and
Health Committee, 31 members; the Internal and Judicial Affairs Committee, 19 members; and the
Environmental Protection Committee, 17 members. See Records, supra note 8, at 826-830.

250. See Cai, supra note 4, at 219 (107 of the 175 special standing committee members are
delegates to the Standing Committee). Note that the Standing Committee itself only has 157
members, of whom 21 occupy executive positions in the Chairmen's Group.

251. See id.
252. See id. For example, the current Director of the Environmental Protection Committee,

Cao Geping, was the previous head of the National Environmental Protection Agency of the State
Council. Upon joining the NPC's Environmental Protection Committee, he brought along some of
this former staff at NEPA. Liebman Correspondences, supra note 66.

253. The Finance and Economics Committee, for example, has around 30 research staff as of
1994. Interview (General Office Research Department).

254. See Tanner, supra note 1, at 90 n.21.
255. See Cai, supra note 4, at 407.
256. See Tanner, supra note 1, at 90 n.21.

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COLUMBIA JOURNAL OFASIAN LAW

committees from developing the institutional competence or effectiveness
of the CLA or the General Office Research Department.

In addition to research staff, special standing committees may
formally appoint outside experts as "advisors," who may attend and
contribute to committee meetings as non-voting committee members. 57

Advisors may be dismissed by either the special standing committee on
which they serve or by action of the Standing Committee."8

For most of their history, the role of the substantive special standing
committees within the NPC has been overshadowed by that of the CLA 59

In particular, NPC legislative procedures allowed the CLA to effectively
delay or kill those legislative proposals from these committees with which
it did not agree,2' 6 and allowed these committees to communicate to the
Chairmen's Group only indirectly - through the CLA.261 However, this
appears to be changing. Staffers in both the Economic and Finance
Committee and the Environmental Protection Committee report that these
committees are now able to communicate their concerns directly to the
Chairmen's Group.26' The Environmental Protection Committee was even
able to direct its 1995 draft amendments to the Air Pollution Prevention
and Control Law through the Chairmen's Group and onto the NPC floor
over the strong opposition of the CLA.263 The special standing committees
could thus be assuming their rightful role in the NPC's institutional
hierarchy.

b. The Economic and Finance Committee

Of the substantive special standing committees, one - the Economic
and Finance Committee - is developing into a first among equals. Among
NPC organs, the drafting and reviewing responsibilities of that committee
are second only to the CLA.264 More importantly, that committee is

257. "Guwen."
258. See Cai, supra note 4, at 219.
259. See notes 209-211 and accompanying text supra.
260. See notes 367-377 and accompanying text infra.
261. See notes 367-377 and accompanying text infra.
262. See Liebman Correspondences, supra note 66. Accord interview (Economic and Finance

Committee).
263. See Liebman Correspondences, supra note 66.
264. According to the 8h NPC's legislative plan (covering the years 1993-1997), the CLA was

responsible for developing 19 pieces of legislation, the Economic and Finance Committee was
responsible for drafting 9 pieces of legislation. The other special standing committees combined
were only responsible for 4 pieces of legislation.



NPC CONSTITUTIONAL DEVELOPMENT

quickly becoming the institutional locus of the NPC's "supervisory"
activities. As discussed in Part III below, the NPC has constitutional
authority to "supervise" the activities of other governmental actors and
organs at the central and regional levels. Because the NPC lacks a
functional contempt power, budgetary audits are currently the principal
window through which the NPC can gain meaningful insight into the
operations of other governmental organs.265 The Economic and Finance
Committee is the NPC department most adept at conducting financial
audits. For that reason, it appears to be developing a special institutional
competence within the NPC for leading supervisory investigations - even
investigations into matters that would appear to fall more appropriately
under the direction of other special standing committees, as in the case of
recent investigations into the enforcement of environmental protection laws
and the education law. 66

c. The Law Committee

The other special standing committee, the Law Committee serves a
different function from that served by the substantive special standing
committees. The Law Committee's principal responsibility is to revise
draft legislation in accordance with concerns expressed by the delegates
and the other special standing committees after floor vettings.2 Unlike
the other special standing committees, the Law Committee does not draft
its own legislation, it does not formulate policy, and it does not engage in
supervisory activities.

As of the 8th NPC, the Law Committee has 18 members.6' It is the
only special standing committee that does not sport its own dedicated
research staff2 69 Rather, as noted above, it shares the research staff of the
CLA. However, the leadership and members of the Law Committee
remain distinct from the CLA and its positions on particular drafting issues

265. Interview (Economic and Finance Committee). Budgetary activities are the only aspt
of administrative behavior that is routinely documented, and since most budget transactions are
documented twice (once by the giver and once by the receiver), they can be cross-checked.

266. See notes 549-550 and accompanying text infra.
267. See Cai, supra note 4, at 200. See also Part IIIA (description of drafting process). In a

sense, the Law Committee functions as a kind of alter ego to the CLA, vhose research staff it shares.
268. See Records, supra note 8, at 827.
269. See note 202 and accompanying text supra.

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are strongly influenced by the earlier floor deliberations."O For this reason,
the Law Committee's institutional interests and preferences can be distinct
from those of the CLA.27t

4. Outside Advisors

More so than most other governmental or political organs in China,
the NPC enjoys a particularly close relationship with academic institutions,
law faculty and other outside advisors. The Standing Committee
frequently enlists the efforts of academics and professionals in drafting and
reviewing new legislation. The initial drafting for many of the CLA's
drafting projects, for example, is generally delegated to academics or
academic institutions. 2  This includes much of the NPC's most significant
legislation, including the Administrative Litigation Law, the Company
Law, the 1996 amendments to the Criminal Procedure Code, the 1997
amendments to the Criminal Code, and the draft legislation law.273

Academic advisors also have been very active in the drafting of a
supervision law. 4 Outside review by academics and professionals is now
a standardized component of the drafting review processes of both the CLA
and the special standing committees. All this is in sharp contrast to the
standard drafting practice of most administrative organs which still prefer
to draft legislation in-house, perhaps with the assistance of one or two
outside advisors. 75 As noted above, outside experts are frequently invited
to serve on special standing committees as non-voting members.276

270. Cf. Tanner, supra note 1, at 82, noting that the Law Committee "works closely with the
NPC leadership in summarizing the NPC delegates' comments." Since the NPC's revisions are
drawn from these comments, this suggests that the NPC leadership is more intimately involved in
this stage of the legislative process than in earlier stages. See Part III.

271. Interviews (Economic and Finance Committee; General Office Research Department).
272. See also notes 337-348 and accompanying text infra (discussing academics role in

legislative drafting).
273. Interviews (drafting groups; CLA).
274. See note 634 and accompanying text infra.
275. For example, in contrast to the NPC's draft of the Company Law, the State Council's

earlier draft was drawn up primarily by administrative actors. Interview (CSRC). The Lawyer's
Law, drawn up by the Ministry of Justice, also seems to have received little professional input.
Interview (All-China Lawyers Association). In fact, that law was opposed in the NPC by the All-
China Lawyers Association in the NPC, due primarily to its mandatory legal aid provisions.
Interview (Western diplomatic officials). NPC drafters frequently float controversial proposals in
academic publications in order to garner support whereas administrative drafters appear to do so
very rarely if at all. Interview (drafting group).

276. See notes 257-258 and accompanying text supra.

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NPC CONSTITUTIONAL DEVELOPMENT

D. Departmentalism

The NPC suffers from the same departmentalism that plagues all
organizational structuresY7  There are, for example, significant
institutional redundancies between the CLA and the General Office
Research Department. Both have their own "law library," and both have
engaged in separate but redundant research programs aimed at developing
structures and procedures for supervising other governmental organs.28
Similar redundancies, as noted above, are developing between the CLA
and the substantive special standing committees. Nevertheless,
departmentalism appears to have a significantly less paralyzing effect
within the NPC than it has vAthin other political organs in China, due to the
relative ease with which these various departments can resolve differences
through horizontal bargaining. 9

III. CONSTITUTIONAL OPERATIONS

The NPC's constitutional powers are generally conceived of as falling
into two categories, called legislative powers and supervisory powers. This
distinction comes from the fact that the NPC, like the national parliaments
in most parliamentary systems, is not only the country's supreme
legislative body but also its supreme constitutional body. Of these two
types of powers, the NPC's legislative powers are most developed at
present. However, the NPC's supervisory powers are also becoming
increasingly formidable, due in large part to the development of delegate
independence.

A. Overview of China's Constitutional System

China's system is a constitutional system which, while significantly
different from that of the US, strongly resembles that of many Western
countries. China's parliamentary system revolves around the principle of
parliamentary supremacy rather than the principle of separation of powers.
Under such a system, the national legislature is not only the supreme

277. See, e.g., Tanner, supra note 1, at 59-60.
278. Interviews (CLA; General Office Research Department).
279. See Putman, supra note 27, at 86-116 (discussing how horizontal communications

between a wide variety of segments of the community decrease departmental isolation).

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COLUMBIA JOURNAL OF ASIAN LA W

legislative body it is also the highest constitutional body. Therefore, the
NPC wears two constitutional hats. As China's highest legislative body,
the NPC sets the legislative agenda and enacts and amends the laws and the
constitution. As China's highest constitutional body, it appoints and recalls
people from major constitutional office, reviews and comments upon the
national budget, reviews and comments upon "work reports" from other
central-level constitutional actors, and conducts investigations into the
constitutional operations of other governmental organs. Moreover, since
China's constitutional structure is unitary, rather than federal, the
constitutional authorities of the NPC (including its legislative jurisdiction)
are plenary and are not limited as in the American system.

In addition to the NPC, China's constitutional structure includes five
other constitutional organs. These are the State Council; the presidency;
the judiciary; the procuracy (an independent branch whose responsibility
is to prosecute criminal cases); and the Central Military Commission.280

The State Council is China's principal executive body,28 ' and is the
constitutional organ most closely affiliated with the CCP (the State Council
Standing Committee members are typically among the most influential of
Party members). The State Council has relatively broad legislative powers
which allow it to draft and promulgate regulations on a wide variety of
matters without requiring a parliamentary grant of legislative authority.282

As in every parliamentary system, the executive also has the authority to
submit draft bills directly to the parliament. Prior to the 1990s, almost all
legislative proposals considered by the NPC originated from the State
Council."3

280. Some commentators in China also regard the CCP as a constitutional organ, because its
role in China's political operations is articulated in the PRC constitution. This argument is
frequently used to support the argument that the NPC may "supervise" the party. See notes 636-644
and accompanying text infra.

281. China also has a second executive institution called the presidency. In China, however, the
president has traditionally been a ceremonial position (as it was in the Weimar Republic) with no real
influence over political operations. However, it is interesting in this regard to note that the current
president, Jiang Zemin, is also currently the CCP general secretary, and that much of the formal
authority of the president - namely the power to nominate persons to high office - coincides with
the CCP's de facto oversight of government personnel placement. Thus, Jiang's dual service could
forebode the development of an institutional linkage between the office of the presidency and the
CCP, particularly now that both the State Council and the NPC are escaping their CCP orbit. If this
linkage develops, it would obviously greatly increase the influence of the presidency as an
independent constitutional office, perhaps resulting in a true dual-executive system similar to that set
up by the French constitution.

282. The French Cabinet has similar constitutional authority. See FRENCH CONSTTUTION, art.
37.

283. See note 32 and accompanying text supra.

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NPC CONSTITUTIONAL DEVELOPMENT

In addition to being a parliamentary system, China is also a civil law
jurisdiction, in which the constitutional powers of the judiciary are more
restricted than those of the American judiciary. As in most civilian
jurisdictions, the judiciary does not have inherent authority to issue binding
interpretations of law (which in civil law jurisdictions is regarded as a form
of legislation). The role of the courts, therefore, is much more focused on
applying the law, rather than developing it. Given the developmental needs
of China's legal system, this limitation is not as strict as it is in other legal
systems (i.e. France). The Supreme People's Court has been granted
delegated authority to issue binding legal interpretations. Nevertheless, the
scope of this delegation is limited and the constitutional role of China's
judiciary still more closely resembles that of a civilian judiciary than that
of the American judiciary.n

Related to this issue is that of constitutional review. In many civilian
jurisdiction, the power to annul legislation is regarded as a form of
legislative act and therefore inappropriate for the regular judiciary. The
same is true in China. In China, the power to annul legislative acts,
including legislative acts of the executive, vests in the NPC and not in the
courts.285 However, at present there is no effective constitutional review
in China, either by the NPC or by any other organs. The judiciary does not
have the power to review even executive regulations for illegality
(including unconstitutionality), and the NPC has yet to develop procedures
for exercising its own powers of constitutional and legislative review.

284. Moreover, in contrast to both the State Council and the NPC, China's judiciary has yet to
benefit significantly from the CCP's receding authority. Even in Western systems, the judiciary is
naturally a decentralized body, relying primarily on a diffuse string of regional and local-level courts
for its effectiveness. However, the emerging constitutional and professional development evident at
the central level has yet to permeate much into China's lower levels of governance and as a result,
lower-level courts remain particularly susceptible to unconstitutional interference. This prevents the
judiciary from undergoing the same levels of institutional development as more centralized
constitutional bodies such as the NPC and the State Council.

285. Numerous commentators- particularly in the US-find this confusing, thinking it highly
unlikely that a legislature would void its own legislation. But the real issue is not the constitutional
pedigree of the reviewing organ, but how the branch and its reviewing organ are organized and how
they interact. Just as the judiciary is rendered effective by keeping it independent from the other
constitutional organs within the constitutional system, so can an administrative or legislative organ
of constitutional review be rendered effective by keeping it independent from the other organs
within the executive or parliament. In France, for example, administrative courts, operating under
the constitutional authority of the executive, are solely responsible for voiding administrative acts
and legislative. Their organizational structure, however, isolates these courts from the influence of
other administrative organs. In fact, despite their administrative pedigree, the French administrative
courts are actually more willing to question the legality of administrative acts than are American
courts. See L.NEVaLLEBRON & JOHNS.BELL, RENCHADMINISTRATIVELAWY, 131-139(1993).

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The procuracy is an independent constitutional organ whose
responsibilities are to represent the State in criminal proceedings before a
court. It is, in effect, a national district attorney. Prior to the promulgation
of the 1996 amendments to the criminal procedure code, however, most of
the procuracy's principal responsibilities had been usurped by the public
security organs, leaving little incentive for the procuracy to develop
professionally. These new amendments have restored the procuracy's
institutionally distinctive responsibilities. When and if the procuracy will
be able to shoulder these new responsibilities is one of the most crucial
questions confronting China's legal and constitutional development.

The other major constitutional organ in China, the Central Military
Commission, exercises its not insignificant power primarily within and
through the CCP. Its direct effect on the NPC is limited, in large part
because the PLA and the Central Military Commission largely operate
outside the current constitutional structure286 and thus there is little
opportunity for institutional conflict.

B. Legislative Powers of the NPC

The NPC uses four types of legislative instruments through which it
exercises its legislative authority. These include statutes, 7 resolutions,288

declarations, 9 and CLA legislative interpretations. 29
0 Statutes, which

include both "basic laws [jiben fa]" passed by the Plenary Session and
ordinary laws passed by the Standing Committee, are the highest source of
law in China other than the constitution.29' Resolutions have only

286. The PLA enjoys a form of extra-territoriality, being subject to its own set of laws which
are passed by the Central Military Commission rather than to ordinary domestic legislation. It also
has its own court system, which operates largely independently from the Supreme People's Court.

287. "Falu."
288. "Jueding."
289. "Jueyi."
290. "Jieda."
291. See PRC CONSTITUTION, art. 67(7), 67(8) (authorizing the Standing Committee to void

any provincial or administrative legislative instrument that conflicts with either the constitution or
an NPC statute).

Although statutes are the highest source of law, the courts do not have the power to void
conflicting administrative regulations. See Administrative Litigation Law, art. 52 (requiring courts
to give full juridical effect to certain forms of administrative regulations). This has led some analysts
to conclude that law, particular statutory law, is of little if any significance to society in China,
particularly with regard to regulating governmental behavior. Most of China's current legal edifice
is built on administrative regulations, not statutes, and many of these regulations seem to contradict
the legislation that supposedly enables them. See Tanner, supra note 1, at.65, 71.

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NPC CONSTITUTIONAL DEVELOPMENT

discretionary juridical effec2 92 and are used primarily to promulgate
legislative "interpretations" (a form of supplemental legislation that
attaches to existing statutes) and non-justiciable political measures such as
those creating and/or delegating authority to governmental bodies or those
approving major political initiatives.?

Declarations and CLA legislative interpretations have no juridical
effect. They are not considered by the courts to be official sources of law.
The CLA's legislative interpretations are a form of supplemental
interpretive legislation issued by the CLA under its own name. Since the
CLA has no independent legislative competence, these interpretations are
not considered authoritative by the judiciary. Nevertheless, these
interpretations do occasionally influence the legislative interpretations
promulgated by the Supreme People's Court, which are considered binding
sources of law.294 Declarations are used for non-justiciable matters,
primarily those relating to the NPC's efforts to supervise the other
constitutional organs. They will be discussed in conjunction with the
NPC's supervisory powers.295

1. Bill Procedures

The bill procedure used by the NPC can be divided into three stages.
The first stage is the development of the legislative plan, which sets out the
legislative agenda for the NPC. The second stage is the development of the
legislative proposal, which may be undertaken by the NPC itself or by an

One should not confuse juridical effect with legal effect. English courts do not have power
to void legislative or administrative acts that are contrary to the British constitution, but this doas
not mean that the constitution has no effect on the political environment in Britain. The American
courts have disclaimed authority to question the foreign policy actions of the American president,
but this does not mean that constitutional restraints on these actions are meaningless.

292. It is, in effect, a form of 'persuasive precedent.' A resolution may be cited by a judicial
opinion as a source of law, but its authority is not regarded as binding. See Zuigao Rcnmin Fayuan
[Supreme People's Court], Guanyu Yinfa 'Quanguo Jingji Shenpan Gongzuo Zuotan hui Jiyao' de
Tongzhi [Notice Concerning the Distribution of the Minutes for the 'National Economic
Adjudication Work Conference' in 9 SIFA WENJIAN XuAN (1993), at 36-48 (discussed in Finder,
supra note 171, at 189); see also Cai, supra note 4, at 269.

293. For example, resolutions have been used to approve the State Council's Three Gorges
Dam Project, see Cai, supra note 4, at 280; to delegate legislative authority to the State Council and
the Supreme People's Court, and are used to create of special economic zones, see id. at 275; id. at
277-278.

294. See notes 450-451 and accompanying text infra.
295. See generally Part IHB (discussing various NPC supervisory procedures).

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outside body, as determined by the legislative plan. The third stage is the
vetting and amending of the proposal by the NPC.

Similarly, the NPC's legislative process involves three distinct types
of actors: the sponsor, the drafter (or drafting organ), and the drafting
group. The 'sponsor'296 is an organ with legal authority to submit
legislative proposals' 9 and other bills298 to the NPC. At present, there are
11 such organs: the State Council, the Supreme People's Court, the
Supreme People's Procurate, the Central Military Commission, and the
special standing committees may submit bills to either the Plenary Session
or the Standing Committee; The Chairmen's Group and Standing
Committee delegates may submit bills to the Standing Committee only; the
Standing Committee itself, the Presidium, and the Plenary Session
delegates may submit bills to the Plenary Session only.299

Frequently, the actual development of a legislative proposal is
delegated to subordinate agents.3" Legislative proposals sponsored by the
State Council, for example, are invariably developed by a ministry or
subordinate executive organ. Legislative proposals sponsored by the
Chairmen's Group or by the Standing Committee are usually developed by
the CLA or, less frequently, by the General Office Research Department.
These agents are called the "drafting organs"' ' (or just "drafters").
Sometimes, a number of drafting organs will work together on a single
proposals.3" In that event, one organ will sometimes be designated as the
"lead drafter.""3 3 The others are called "co-drafters." As discussed below,
it is the (lead) drafter, rather than the sponsor, who actually presents the

296. "Faluan de tian ren."
297. 'Falu caoan.' Legislative proposals are a form of bill.
298. "Anli."

299. See NPC Organization Law, art. 32. Of these, the only organs guaranteed standing to
submit bills in the Constitution are the Standing Committee delegates (which would also include the
Chairmen's Group), see PRC CONSTITUTION, art. 72; the special standing committees, see PRC
CONsTrTUTON, art. 70; and the State Council, PRC CONSTITUTION, art. 89(2).

In actual fact, the role of sponsor is increasingly irrelevant to the legislative process. As
discussed below, the actual development and presentation of a legislative proposal is undertaken by
the drafter, acting under the delegated authority of the sponsor. However, the drafter is not
determined by the sponsor itself, but by the legislative plan.

300. As discussed below, it is the plan, not the sponsor, which determines who will actually
develop a particular legislative proposal. See notes 312, 317-319 and accompanying text infra.

301. "Qicao ren."
302. See notes 317-319 and accompanying text infra.
303. 'Qiantou qicao danwei."

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NPC CONSTITUTIONAL DEVELOPMENT

legislative proposal to the floor of the NPC." 4 There are no legal
regulations as to who may serve as a drafting organ.305

Drafting organs will often delegate the actual drafting of the
legislative proposal to specially composed bodies called drafting groups. -3
Composition of the drafting group is wholly at the discretion of the lead
drafting organ3° and the group will frequently include persons (even whole
institutions) from outside that organ. For example, the drafting group for
the 1997 amendments to the Criminal Code (which was developed for the
Standing Committee by the CLA) was comprised of the criminal law
faculties of Beijing University, Zhengfa University, Renmin University.
and the Law Institute of the Chinese Academy of Social Science.!"3 The
members of the drafting group cease to have any institutional role in the
legislative process once their draft is formally submitted to the NPC by the
drafting organ.

The legislative proposal also goes through a number of distinct stages.
The first stage is the initial draft, as developed by the drafting group. This
draft is then amended by the drafting organs, resulting in the "preliminary
draft'3 9 which is formally submitted to the NPC as part of the legislative
proposal. The NPC then vets the drafter's legislative proposal, after which
it creates a "revised draft."3 ' The NPC will often vet a proposal several
times, resulting in a "second revised draft," '' "third revised draft," and so
on.

a. The Legislative Plan

The development of statutory legislation in China is governed by the
NPC's legislative plan. That plan, which is promulgated by the Standing
Committee at the beginning of each new NPC term, details the pieces of

304. See Cai, supra note 4, at 255.
305. See id. Drafters can include quasi-governmental bodies, such as the Xinhua News

Agency. Use of non-governmental drafters was quite prevalent in China prior to 1993. see id., but
has virtually disappeared since then. Out of the almost 150 legislative projects contained in the five
year legislative plan for the 8'h NPC (1993-1998), only two were assigned to non-constitutional
bodies, (both to the Xinwen Chuban She).

306. 'Ticao xiaozu" or"xiao caozu.0
307. See Cai, supra note 4, at 255.
308. Interview (drafting group).
309. 'Caoan." A more literal translation would be 'draft rather than 'preliminary draft." This

article uses "preliminary draft" in order to promote clarity.
310. 'Caoan (xuigaigao).'
311. 'Caoan (di er xuigaigao)."

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statutory legislation that are to be developed or otherwise considered by the
NPC during that 5-year term. The plan also designates which particular
organs shall serve as drafter, co-drafters, and/or lead drafters for each
particular piece of legislation.

The plan is divided into two tiers. The first tier lists the proposals that
the NPC most fully intends to bring to the floor during the current term.31 2

The second tier lists other statutory proposals that the NPC might consider
if time allows.313 For the legislative plan developed for the 8h NPC (1993-
1998), the first tier included 115 items, the second tier included 37 items.
None of the second-tier items reached the NPC's floor.

Updated editions of the plan are issued each year by the Chairmen's
Group. Unlike the original plan, these yearly editions are promulgated
under the name of the Chairmen's Group itself and not that of the Standing
Committee. These editions list which statutory proposals are scheduled to
be brought to vote for that year and detail the current status of various other
statutory proposals included in the original plan. These editions may also
introduce amendments to the original plan, but such amendments are
rare.

314

Both the original plan and its yearly editions are drawn up by the
Secretary's Group, with assistance from the General Office Research
Department and the CLA.315 When drawing up the original plan, the
General Office Research Department first solicits other governmental and
quasi-governmental organs as to their legislative needs and the priority of
these needs. Working with the Secretary's Group and the CLA, the
General Office Research Department then culls these responses into a
proposed list. In making the five-year plan for 1993-1998, the Research
Department received over 500 legislative recommendations from various
governmental bodies, selecting 115 for inclusion in the first tier of the draft
plan.316

As noted above, the legislative plan also assigns a drafter for each
item included in the plan. The drafter is generally the organ who
recommended the item to the General Office Research Department.

312. This section is entitled "Benjie nei shenyi de falu caoan [Bills to be vetted this NPC]."
313. This section is entitled "Yanjiu qicao, Chengshu shi anpai shenyi de falu caoan [Bills to

be developed and vetted when ready]."
314. Interviews (General Office Research Department).
315. Interviews (CLA; General Office Research Department). The CLA's role in the process

seems to be more limited than that of the General Office Research Department's.
316. Interview (General Office Research Department). No such polling accompanies the

drafting of the yearly editions, however.

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NPC CONSTITUTIONAL DEVEWOPMENT

Frequently, however, a particular piece of legislation will be recommended
by or otherwise strongly affect more than one governmental body. In such
cases, the Plan will generally designate a particular organ as lead drafter.3 17

If the Plan designates a particular "lead drafter", it does not designate
additional co-drafters318 - thus, co-drafters serve at the discretion of the
lead drafter. In the alternative, the Plan might assign joint drafting
responsibility to two or three named organs, without designating which
should serve as lead drafter.319

The plan is then submitted to the Chairmen's Group for approval.
Once approved, it goes to the floor of the Standing Committee for final
consideration and vote. For the 1993-1998 plan, neither the Chairmen's
Group nor the delegates appear to have introduced significant changes to
the Secretary's Group's original draft.3" As noted above, subsequent
yearly editions of the plan are promulgated by the Chairmen's Group
without going to the Standing Committee floor.

Many legislative proposals included in the legislative plan, including
many included in its first tier, do not reach the floor of the NPC.3

However, the NPC will not consider legislative proposals that are not
included in the legislative plan, nor will it consider legislative proposals
that emanate from drafters other than those assigned by the plan. In 1994,
for example, the NPC refused to consider a draft securities law submitted
to it by the China Securities Regulatory Commission. The NPC's plan did
include a draft securities law (in its first tier), but named the Economic and
Finance Committee, not the CSRC, as the lead drafter. Despite the fact
that the CSRC had begun drafting work on that law well before the NPC's
plan was formed, the CSRC was forced to withdraw its draft from NPC
consideration and develop a new draft with the Economic and Finance
Committee. The year before, a similar fate befell the State Council's draft
Company Law, which the plan had assigned to the CLA.

The advent of NPC legislative planning has been a crucial factor in
the NPC's ability to gain control of legislative development in China.
Legislative planning in China dates back to early 1980s, but prior to 1993,

317. 'Qiantou."
318. Except through the generic title of 'relevant organs [youguan bumen]."
319. For example, the 1993-1998 legislative plan assigned drafting responsibility for the tax

law jointly to the Economic and Finance Committee, the Ministry of Finance, and the National
Bureau for Taxation. In these cases, the participating NPC organ will generally serve as the lead
drafter.

320. Interview (General Office Research Department).
321. See Reflections, supra note 162, at 34.

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COLUMBIA JOURNAL OFASIAN LAW

these plans were issued by the State Council rather than the NPC.322 In the
late 1980s, the NPC began to develop independent drafting capability, with
a corresponding increase in input over legislative development.3 3 But the
State Council was still able to produce more legislative proposals faster
than the NPC. Combined with its control over legislative planning, this
allowed the State Council to cherry-pick important legislative initiatives
for itself. The legislative plan this situation. As evidenced by the NPC's
treatment of both the Company Law and the draft Securities Law, the State
Council now must seek prior approval from the NPC in developing
legislative initiatives, rather than the other way around.

The NPC's legislative planning is not just the product of strategic
competition among constitutional organs, however. It also plays a vital
role in rationalizing China's legislative development. China's legislative
needs are great, but its legislative resources, both in the NPC and the State
Council, are limited.324 Evidence suggests that despite the State Council's
legislative planning, by the early 1990s it had lost control of its own
legislative activities. Internal rivalries among competing administrative
organs increasingly delayed legislative development.3" In some cases,
such as that with the Company Law, multiple competing versions of a
single legislative proposal were issued to the NPC from different
administrative bodies.3" The NPC's legislative plan thus provided a means
by which China's statutory development could again be subject to rational
forethought. In addition, by assigning drafting responsibilities to particular

322. See Provisional Regulations on the Drafting of Administrative Regulations, art. 5. See
Zhou Wangsheng, Lifa Guihua de Quanxian Huafen he Bianzhi Guicheng [Jurisdictional
Distinctions and Drafting Processes for the Legislative Plans], ZHENGZHi YU FALU, No. 1, 1993, at
8 [hereinafter Jurisdictional Distinctions]; Zhou Wangsheng, Ln Lifa Guihua de Jiben Yuance [On
the Fundamental Principles of the Legislative Plans], FAXUE PINGJUN, No. 2, 1993, at 1, 22. See
also Tanner, supra note 1, at 68, 87. The State Council still maintains legislative plans, but they
have no effect on the NPC.

323. See, e.g., Tanner, supra note 1, at 60 (noting erosion of State Council's power over NPC
legislative agenda); id. at 78 (noting that by the early 1990s, the increased resources and abilities
of the NPC's support organs meant that the NPC could now develop a large number of legislative
initiatives on its own).

324. This was the original rationale for developing the legislative plan in the early 1980s. See
Jurisdictional Distinctions, supra note 322, at 40. The limited floor time available for discussing
legislative items is currently the principal factor limiting the NPC's legislative capacity. Interviews
(CLA; General Office Research Department).

325. See Tanner, supra note 1, at 65. See also id. at 78 (noting NPC's increasing concern in
the early 1990s over the fact that the State Council had been "dragging its feet" in drafting economic
legislation). Accord interviews (CSRC, CLA).

326. See Unfinished Business, supra note 34.

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NPC CONSTITUTIONAL DEVELOPMENT

organs, the plan reduces redundant drafting efforts caused by inter-organ
competition.

The NPC's reliance on legislative planning is not without its
problems, however. Most significantly, it effectively prevents legislative
proposals issued by the Plenary or Standing Committee delegates from
receiving NPC consideration. The Secretary's Group does not solicit or
consider delegate proposals in drawing up the Legislative plan.?' Thus,
such proposals have no hope of receiving floor time. At present, two ways
have been developed to help circumvent this problem. One is to increase
the drafting powers of the special standing committees. Since these
committees are comprised of NPC delegates, this gives at least some
delegates greater opportunity to contribute to the drafting process.3 The
other is to allow delegates to submit - in lieu of formal legislative
proposals - legislative recommendations asking the Secretary's Group
and Chairmen's Group to consider the inclusion of a particular legislative
initiative in an upcoming edition of the legislative plan.3'

b. NPC Drafting Procedures

As noted above, draft legislation may be drawn up by any number of
organs and organizations, as well as by the NPC delegates themselves.
However, the principal drafters of statutory legislation are the CLA, the
special standing committees, and the State Council's ministries and
commissions. Sometimes a particular legislative proposal will involve a
number of drafters, including drafters from different constitutional
branches. The Marriage Law, for example, had over 10 drafting organs,
including the CLA, the Supreme People's Court, the Supreme People's
Procuratorate, the All-China Women's Federation, and several
administrative organs from the State Council.33 In such a case, the CLA

327. Interview (General Office Research Department).
328. See note 250 and accompanying text supra.
329. See Cal, supra note 4, at 261. Interview (CLA). See, e.g., Euthanasia Helps Terminal

Patients Die with Dignity, supra note 46 (suggesting that several delegates' efforts to legalize
euthanasia was by means of a recommendation rather than a formal legislative proposal). Unlike
formal legislative proposals, these recommendations need not include preliminary drafts of the
recommended legislation. See Cai, supra note 4, at 261. See also Chairman Qiao Shi Interviewed
by 'European Thnes' supra note 149, at I (noting that some delegates recommendations have been
included in the legislative plan). Since no new legislative proposals have been added to the first tier
of the legislative plan, any such proposals introduced on delegate initiative must have been added
to the second tier.

330. See Cal, supra note 4, at 256-57.

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COLUMBIA JOURNAL OF ASIAN LAW

will normally serve as the lead drafter.3"' As noted above, the lead drafter
chooses its co-drafters: co-drafters are not named in the legislative plan.
The lead drafter also sets the drafting procedure.

The principal drafting organs in the NPC are the CLA and the special
standing committees (particularly the Economic and Finance Committee).
Of these, the CLA's drafting procedures are the most developed, and the
most discussed.332 Procedures used by the special drafting committees
generally follow those used by the CLA, but are more likely to involve
greater cooperation with particular administrative organs and are less likely
to include outside members in their drafting groups. Special standing
committee also hold a series of meetings with the CLA to discuss a draft
before sending it to the NPC for formal consideration.333 The NPC also
occasionally forms special drafting committees, primarily to draft
constitutional amendments and other quasi-constitutional legislation like
the Basic Law of Hong Kong. Such committees are rare, and this have
developed no formalized set of drafting procedures.

(1) Drafting procedures of the CLA

Almost all legislative proposals issuing to the NPC in the name of the
Chairmen's Group or the Standing Committee are drafted by the CLA.334

The CLA has been the lead drafter for most of the NPC's more progressive,
controversial, and/or high-profile legislative initiatives. These include the

331. See, e.g., id. at 257 (noting that the Marriage Law was sponsored "through an NPC
organ").

332. They are not, however, formally codified. See id. at 255.
333. For reasons of space, description of the drafting procedures used by the State Council are

not included in this article. The procedures are outlined in the Provisional Regulations on the
Drafting of Administrative Regulations. See also Tanner, supra note 1, at 65-71 (discussing the
State Council's formal drafting process). The procedures formally outlined by the State Council do
not always work as planned, however, and the State Council's statutory drafting efforts appear
increasingly chaotic and uncoordinated. See Unfinished Business, supra note 34 (noting State
Council's uncoordinated involvement in the development on the Company Law). Accord Interviews
(General Office Research department, CLA,CSRC (all noting State Council's increasing difficulties
in coordinating drafting efforts).

334. A very small number of legislative proposals are drafted by the General Office Research
Department or by special drafting committees. The legislative plan for 1993-1998 assigns only two
drafting assignments to the General Office Research Department, and none to special drafting
committees. General Office Research Department drafting procedures are identical to those used
by the CLA. Interview (General Office Research Department). The General Office Research
Department generally works very closely with the CLA in developing that Department's own drafts.
Interviews (CLA; General Office Research Department).

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NPC CONSTITUTIONAL DEVELOPMENT

Company Law, the Administrative Sanctions Law, the 1996 amendments
to the Criminal Procedure Code, the 1997 amendments to the Criminal
Code, and the proposed "legislation law." '335

The CLA's drafting process has not been codified in law,336 but a
normative practice governing that process has developed nevertheless. The
first step in the CLA's drafting process involves forming a "drafting group"
to research and formulate the initial draft of the legislative proposalYn The
drafting group need not necessarily be comprised of CLA staffers.
Frequently, in fact, it is comprised principally of selected academics. The
Administrative Litigation Law, for example, was initially drafted by a
drafting group headed by scholars from the China University of Politics
and Law.338 The drafting group for both the 1996 amendments to the
Criminal Procedure Law and the 1997 amendments to the Criminal Law
consisted of selected legal academics from the China University of Politics
and Law, Beijing University, the Law Institute of the Chinese Academy of
Social Sciences, and People's University.339 Outside drafters are not
always legal scholars. An earlier draft of a proposed securities law, for
example, was drafted by an economic research group at Beijing
University.'

The drafting group not only draws up the initial draft of the legislative
proposal, it also helps set the particular policies that inform that draft. For
this reason, the drafting group often engages in a sometimes extended
period of pre-drafting research before developing its rough draft. 4 ' The
drafting group responsible for developing the administrative litigation law,
which was submitted to the NPC in 1989, for example, was formed in

335. See notes 624-628 and accompanying text infra (discussing proposed Legislation Law);
notes 629-633 and accompanying text infra (discussing proposed Supervision Law).

336. See Cai, supra note 4, at 255.
337. See id., at 257.
338. See Xingzheng Faue Shi Nian Huigu yu Zanwang [Review and Predictions After 10

Years of Administration Law Jurisprudencel, FAZHI RIBAO [LE-GALSYsTF.1 DAILY], February 8, 1996
at 7 (giving brief history of the development of the Administrative Litigation Law) [hereinafter
Review and Predictions].

339. Interview (drafting group). With regards to the Amendment to the Criminal Law, the
actual composition of the drafting group was determined by the participating academic institutions
themselves.

340. Interview (CSRC).
341. The General Office Research Department also engages in pre-drafting research for

legislative proposals that have significant political implications. The Research Department's
research often precedes the actual formation of the drafting group, and may continue researching
particular policy questions well after the group has formed. Interview (General Office Research
Department).

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COLUMBIA JOURNAL OF ASIAN 4W

1986;342 the group responsible for drafting the 1996 amendments to the
Criminal Procedure Law was formed in 1990343 Controversial proposals
being considered by a drafting group are often first floated in academic
articles' and/or even in the popular press. 45 Floating ideas in this way not
only helps the drafting group gauge the strength of the CCP's possible
opposition to the proposal, it also can help rally support to overcome such
opposition.' Persons involved in the drafting of the 1997 amendments to
the criminal code, for example, believe that those amendments would have
been much more "progressive" had they been given two years to develop
the draft instead of just one.347 They claim that the extra year would have
allowed the group more time to promote and develop consensus for the
more controversial of the amendments it was considering.348

After the drafting group's draft is completed, the CLA circulates it for
comment. Copies are sent to the Economics and Finance Committee and
other relevant substantive special standing committees, each of which

342. See Review and Predictions, supra note 338.

343. Interview (drafting group).
344. Interviews (various drafting groups). See, e.g., Liu Renwen, 1996 - 1997 Nian Zhongguo

Shehui Zhian Xingshi de Fenxi yu Yuce [Analysis and Forecast of the Public Security Situation in

China for 1996-1997), Jiang Liu, Chen Xueyi & Shan Tianlun, eds., 1996-1997 NIAN ZHONGGUO
SHEHUI FAZHAN ZHUANGKUANG YU QUSHI (1997) (articles published by scholar involved in the
drafting of the 1997 amendments to the criminal law); Ying Songhua & Liu Shen, Xingzheng Chufa
Lifa Tansuo [Discussion on an Administrative Sanctions Law], ZHONGGUO FAXUE, 1994, at 63
(discussing ideas for an administrative sanctions law; this law was ultimately passed by the 1996
Plenary); Wang Dexiang & Mo Jihong, Difang Renda Jiandu de Ruogan Qingkuang he Jianyi

[Several Conditions and Ideas Regarding Supervision by Provincial People's Congresses] FAXUE
YANJ1U, 1992, at 72 (article published by scholars involved in the drafting of the Supervision Law);
Mo Ji & Zheng Li, Renda Jiandu Falu Zhidu Yantaohui Zongshu [Summary of the Seminary on

Congressional Supervision Law System], XuESHU DONGTAI, 1993, at 121 (same); Dui Difang Lifa
"Buxiang Dichu Yuance "de Tansuo [Discussion on the Principle That Provincial Legislation Must

Be Consistent with the Constitution and National Laws], XUESHU DONGTAI, 1993, at 122 (discussing
ideas for a draft legislation law).

345. See, e.g., Liu Zhigang, Wanshan Wo Guo Pochan Fa de Ji Dian Jianyi [Several
Suggestions for Perfecting Our Nation's Bankruptcy Legislation], FAZHI RIBAO [LEGAL SYSTEM

DAILY), February 8, 1996, at 7 (discussing ideas for developing draft bankruptcy legislation). Cf
Shiji Mo, Tengqi de Baoxian Dazhan [At the End of the Century, A Coming Insurance War],
ZHONGGUO XuEwu BAO, March 3, 1995, at 4 (discussing issues arising in the initial drafting of a

draft insurance law; the insurance law was drafted by the State Council).
346. Interview (drafting group).
347. The NPC originally planned to give them two years. But the strong international acclaim

for the 1996 amendments to the criminal procedure code convinced the NPC leadership to advance

the drafting of the criminal law amendments, which was seen as companion legislation to the
procedural amendments.

348. Interview (drafting group). This included, for example, several proposals to restrict use
of capital punishment.

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NPC CONSTITUTIONAL DEVELOPMENT

replies with its own written evaluations. Comments on the draft are also
invited from a wide range of governmental, political and social
organizations; from selected members of the academic community; and
increasingly from foreign consultants. The CLA also convenes a series of
meetings vith other governmental officials and outside experts to discuss
the draft. There will always be at least three such meetings: one with
representatives from the Economics and Finance Committee, other relevant
special standing committees, and affected administrative organs and
constitutional organs; one with selected academics; and one with
representatives from affected professional and social interests. Frequently,
multiple meetings with one of more or these groups is held.3 '

Other governmental organs will sometimes organize meetings or
conferences in an attempt to influence the CLA's drafting decisions. In
1994, for example, when the CLA was considering draft Arbitration Law,
the China International Economic Trade and Arbitration Commission
sponsored an international arbitration conference in Beijing in order to try
to convince the NPC to combine jurisdiction over international and
domestic arbitration in one commission.5

After these group discussions, the CLA itself will then modify the
drafting group's initial draft. If these modifications are substantial, the
CLA will again circulate the now modified draft for comment and may
convene additional meetings to discuss the draft.351 Once the CLA comes
up with a suitable draft, called the preliminary draft, it also produces a
"drafting report" detailing the main points and purposes of the law, as well
as the main points and concerns raised by the special standing committees
and other sources in the course of the drafting process.35 The CLA then
submits that report and the preliminary draft to the Chairmen's Group for
inclusion on the NPC's legislative docket.

As noted above, with one important exception, there is no evidence
of systemic intervention in the CLA's drafting process by the CCP itself.
Drafters associated with both the 1995 amendments to the Air Pollution
Prevention and Control Law and the current draft of the securities law

349. Interview (CLA; Economic and Finance Committee). Cf. Cal, supra note 4, at 258,416
(noting that the CLA holds meetings to collect views on legislative drafts).

350. Interview (China International Economic Trade Arbitration Commission). The NFC
ultimately kept the two-commission format.

351. Interview (CLA).
352. See Cai, supra note 4, at 263. Some staffers in the special standing committees complain

that the CIA's compilations of opposing concerns are not always sufficiently comprehensive. See
notes 373-374 and accompanying text infra.

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report no CCP involvement in the development of the legislative
proposal 3 The CCP itself does not even have internal procedures for
reviewing these activities. 354 The one exception is the 1997 amendments
to the criminal law. But as noted above, this is the exception that proves
the rule. Drafters associated with the drafting of these amendments, in
which there was clear CCP intervention, report that a new step had to be
introduced into the normal drafting process in order to accommodate CCP
oversight.

355

(2) Drafting procedures of the special standing
committees

The drafting procedures used by the special standing committees vary
according to committees, and like the CLA's procedures, are not codified
in law. These procedures roughly parallel those used by the CLA,356 with
several significant deviations. Special standing committees frequently
work more closely with particular administrative organs in drafting
legislative proposals.357 Moreover, the special standing committees,
together with their administrative partners, are generally more directly
involved in the research and drafting of the preliminary draft. Drafting
groups formed by such drafters are generally dominated by committee
staffers and by representatives of partner governmental agencies, rather
than by outside academics as preferred by the CLA. In drafting the 1995
amendments to the Air Pollution Prevention and Control Law, for example,
the Environmental Protection Committee appears to have worked primarily
with NEPA.358  The current draft of China's national securities law,

353. See Liebman Correspondences, supra note 66; accord interview (drafting group).
354. See Tanner, supra note 1, at 61 (noting that as of 1993, the CCP is supposed to monitor

the development of legislative drafts); id. at 61, 64, 74 (stating that as of 1993, copies of legislative
drafts and are sent to the CCP for review, but the CCP seldom responds with comment).

355. Interview (drafting group).
356. See, e.g., interview (Economic and Finance Committee) (description of drafting process

used by the Economic and Finance Committee parallels that used by CLA).
357. See Cai, supra note 4, at 217 (noting that one of the important roles of the special standing

committees is to provide a link between the NPC and the executive organ); Liu & Cheng, Supra note
1, at 267 (same). See also Tanner, supra note 1, at 81-82 (noting close connection between special
standing committees and their parallel administrative organs).

358. See Liebman Correspondences, supra note 66. Mr. Liebman notes, however, that his
investigations are not conclusive with regards to this point.

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NPC CONSTITUTIONAL DEVELOPMENT

prepared by the Economics and Finance Committee, was drafted by a
drafting group dominated by staffers from that committee and the CSRC.35'

Special standing committee drafters also hold a series of special
consultation meetings with the CLA before submitting a legislative
proposal to the NPC. As discussed below, the CLA evaluates for the
Chairmen's Group all legislative proposals coming from outside the
Standing Committee, and the Chairmen's Group generally gives great
weight to the CLA's evaluations. Negative evaluations will inevitably
delay and can even kill a proposal." By consulting with the CLA before
formally submitting a particular proposal, a special standing committee can
help insure smoother passage of that proposal through to the NPC floor 6'

(3) Special drafting committees

The NPC occasionally forms special drafting committee to prepare
legislative proposals.3 62 Special drafting committees have been most
commonly used to prepare draft constitutional amendments. They were
also used to prepare the draft basic laws for Hong Kong and Macau. A
special drafting committee was recently formed to revive the NPC's
dormant draft supervision law (see below). Drafting and operation
procedures used by such committees do not appear to be standardized, and
the infrequent use of such committees would lead one to suspect that these
procedures are generally ad hoc. According to one legal scholar, such
committees allow for greater oversight by the NPC and CCP leadership
over the development of the legislative draft7s However, at least so far as
the CCP leadership goes, its influence over the product of these committees
appears far from complete. In developing the 1993 amendments to the
PRC Constitution, for example, the CCP leadership saw need to try to
circumvent the final product of a special drafting committee by trying to

359. Interview (drafting group).
360. See notes 210-211 and accompanying text supra.
361. Of course, in the event that the drafting special standing committee finds the CLA's

demands during these meeting unacceptable, it may always choose to submit the draft as is to the
Chairmen's Group.

362. See Huang Shuhai, Guanyu Qicao Falu Caoan de Ruogan Wend [Several Problemn
Related to Developing Legislative Drafts] in LIFA-YUANCE, Zwtu, JSHU 227,230 (Guo Daojun,
Zhou Wangsheng & Wang Zhenguang eds. 1993).

363. Interview. The particular scholar interviewed has not participated in any such
committees, but has participated in a number of drafting groups formed by the CLA.

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introduce its own draft amendment directly to the floor of the Plenary
Session.?

(4) Drafting procedures for resolutions

Drafting procedures for NPC resolutions are not standardized. NPC
resolutions are generally drafted by either the CLA or the special standing
committees. The submission of resolution proposals is not subject to the
NPC's legislative plan, allowing more flexibility in their development than
that for statutes. As a general matter, draft resolutions are not as widely
circulated and discussed as are statutory drafts. For example, in drafting
resolutions interpreting particular laws, the CLA consults primarily with
the Supreme People's Court - it does not circulate these drafts for public
comment as it does for draft statutes. Drafting groups for resolutions, even
those developed by the CLA, are generally comprised exclusively of
staffers from the drafting organization.365

c. Submission and Vetting

Once received by the NPC, the legislative proposal (which included
both statutory proposals and proposed resolutions) is first evaluated by the
CLA and by the special standing committees. These evaluations are
referred to the Chairmen's Group, which then decides if and when to send
the proposal to the floor for preliminary vetting. After preliminary vetting,
the proposal is sent back to the Law Committee for revision. The revised
proposal is again vetted by the NPC, after which the Chairmen's Group
decides whether to further revise the proposal or to send it up for vote. A
proposal may be revised any number of times, although proposals
appearing before the Standing Committee are more likely to undergo
multiple revisions than those going to the Plenary Session. Proposals for
basic legislation are vetted by the Standing Committee at least once before
going before the floor of the Plenary Session for additional vetting and
vote.366

364. See Handling Amendments, supra note 63 (discussing this incident).
365. Interview (CLA).
366. See note 413 and accompanying text infra.

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NPC CONSTITUTIONAL DEVELOPMENT

(1) Preliminary evaluation

If a proposal is submitted to the NPC by some organ other than the
Chairmen's Group or the Standing Committee (in other words, if the
proposal was prepared by anyone other than the CLA, the General Office
Research Department, or a special drafting committee), it first goes to the
Secretary's Group for preliminary evaluation.3 The Secretary's Group
then decides whether to place that bill immediately on the Chairmen's
Group's docket, or to first send it to the special standing committees for
evaluation and comment. As a practical matter, the Secretary's Group
always sends proposals originating from outside the NPC to-the special
standing committees for review.16 In the past, the Secretary's Group has
also sent bills originating from the special standing committees down for
review. 6 Some members of these committees claim that this is no longer
always the case. 7 However, staffers in the CLA disagree."'

When seeking the preliminary evaluation of the special standing
committees, copies of the proposal are distributed to the Law Committee,
the Economic and Finance Committee, and to any other relevant special
standing committees for evaluation.372 Responses are collected by the
CLA, who summarizes them in a report to the Chairmen's Group.

Note that under these procedures, the substantive special standing
committees do not communicate their opinions and concerns directly to the
Chairmen's Group. The Chairmen's Group only sees the summary report
of the CLA. As noted above, there has been much criticism of this
procedure by NPC staffers, who feel it gives inordinate control over the
legislative process to the Law Committee/CLA at the expense of the

367. See Procedural Rules of the NPC Standing Committee, art. 12. See generally Cai, supra
note 4, at 261-62, chart opposite 266.

368. See Cal, supra note 4, at 262.
369. Cf i& (noting that the Secretary's Group always sends proposals to the special standing

committees for evaluation).
370. Interviews (Economic and Finance Committee).
371. Interview (CLA). Note that beginning in 1993, representatives from each of the special

standing committees have included in the Secretary's Group. The changing practice may reflect th:
greater influence of the special standing committees in that Group's decisions. The CLA is not
represented in that Group, and thus might not be aware if that Group has adopted new but tacit
normative guidelines.

372. Interviews (CLA; Economic and Finance Committee; General Office Research
Department).

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COLUMBIA JOURNAL OF ASIAN LAW

substantive special standing committees.3" Such institutional jealousies
may be exacerbated by the CLA's conflicting mandates, requiring it to both
objectively relay the concerns of these committees and serve as advocate
for interests otherwise dispossessed in the drafting process.374

As with other aspects of the CLA's power, the CLA's monopoly over
access to the Chairmen's Group appears to be receding, however. Staffers
in both the Economic and Finance Committee and the Environmental
Protection Committee report that they are now able to communicate their
concerns directly to the Chairmen's Group, without having to go through
the CLA.

375

Once preliminary evaluation by the special standing committees is
completed, the Secretary's Group places the legislative proposal on the
Chairmen's Group's docket, and forwards the CLA's evaluative report to
the Chairmen's Group.376 The Secretary's Group may not decide on its
own to kill a bill, regardless of how unfavorable the evaluations are, except
in one instance. The Secretary's Group can kill on its own initiative any
legislative proposal submitted by NPC delegates, provided that proposal
has first been sent to the special standing committees for preliminary
evaluation. If the Secretary's Group does decide to kill such a proposal, it
must provide a written explanation of its decision to the submitting
delegates.

377

Once a legislative proposal reaches the Chairmen's Group, the
Chairmen's Group decides when and whether to include it in the meeting

373. See Special Committees, supra note 209, at 51-52. Accord interview (General Office
Research Department). See also Liu & Cheng, supra note 1, at 264-65 (arguing for increased status
and responsibilities for special standing committees).

374. See note 217 and accompanying text supra.
375. See Liebman Correspondences, supra note 66; Interview (Economic and Finance

Committee). At least with regard to the Economic and Finance Committee, this might be a product
of the special stature that committee is developing within the NPC. See notes 264-266 and
accompanying text supra. In fact, there are already procedures in place allowing that Committee
to communicate directly to the Chairmen's Group regarding budgetary matters, see notes 482-487
and accompanying text infra, and so that Committee's increased access may be a product of mere
expansion of this existing channel. It is not clear whether the other committees enjoy the same level
of access. With regards to the Environmental Protection Committee, a very new committee, they
seem to feel that they do.

376. Liu & Cheng, supra note 1, at 232. One commentator reports that the Secretary's Group
also sends its own recommendations as to whether or not to include the bill on the Standing
Committee's agenda. See Cai, supra note 4, at 261.

377. See Procedural Rules for the Standing Committee, art. 12.

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NPC CONSTITUTIONAL DEVELOPMENT

agenda for the Standing Committee.378 The Chairmen's Group is not
obligated to include the proposal on that agenda. Alternatively, it may
decide to send the proposal to the CLA for revision.3 79 Moreover, the
Chairmen's Group can effectively kill the draft by sending it repeatedly
down to the CLA for revision.80 When vetoing a proposal in this way, the
Chairmen's Group will informally inform the bill's sponsor that the bill
vall not be considered, and "recommend" that the organ submitting the bill
withdraw it from NPC consideration.381

The Chairmen's Group began using this type of veto in 1993, and it
has been instrumental in the ability of the NPC to gain control of legislative
planning. As noted above, the first two casualties of this practice were the
State Council's early drafts of the Company Law and Securities Law, the
drafting of which the NPC legislative plan retroactively assigned to the
CLA and the Economic and Finance Committee respectively.""' The
development of this veto has also forced administrative drafters to pay
more respect to and closer attention to the concerns of the NPC, and
particularly those of the CLA, in preparing draft legislation. 3

In addition to deciding when and if to send a legislative proposal to
the NPC floor, the Chairmen's Group also decides whether that proposal
will be treated as a basic law, to be ultimately considered the Plenary
Session, or as ordinary legislative to be passed by the Standing Committee.
Even if the law is to be treated as a basic law, it will always be vetted at
least once by the Standing Committee before being sent on to the full
Plenary for final deliberation and vote."' The Chairmen's Group may also
wait until later in the process to decide to treat a proposal as a basic law.
For example, the Chairmen's Group decided to treat the draft National
Defense Law as basic legislation only after the preliminary vetting before

378. The Chairmen's Group also decides at this time whether the proposal will be regarded as
a basic law to be approved by the Plenary Session. See notes 410-412 and accompanying text infra.

379. See Cai, supra note 4, at 261.
380. The Procedural Rules for the Standing Committee do not explicitly give the Chairmen's

Group power to kill a bill outright (except for delegates' bills). See Procedural Rules for the
Standing Committee, art. 12. The Chairmen's Group's power, in this regard, is similar to that
enjoyed by a committee chair in the US Congress.

381. Interview (General Office Research Department).
382. See note 34 and accompanying text supra
383. Interview (CSRC). For this reason, most drafters have now added to their standard

drafting process a series of meetings with the CLA
384. See Cai, supra note 4, at 262. See also notes 408-422 and accompanying text infra

(discussing processes for basic legislation).

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COLUMBIA JOURNAL OFASIANLAW

the full Standing Committee.385 As noted above, there is some suggestion
that all basic laws should be drafted by the CLA, but Chairmen's Group's
decisions frequently do not follow this rule.386

(2) Vetting procedures of the Standing
Committee

Once the Chairmen's Group finds the legislative proposal acceptable,
it will place that proposal on the Standing Committee's docket. The
Standing Committee vets all legislative proposals, including basic laws and
constitutional amendments (which are also vetted by the Plenary Session)
and resolutions (which may or may not be vetted by the Plenary Session)
at least once. It vets legislative proposals for ordinary statutory legislation
(which are not vetted by the Plenary) at least twice. Particular processes
for vetting vary according to the type of legislative instrument under
consideration.

(a) Statutes

After the Chairmen's Group approves a statutory legislative proposal,
it places that proposal on the Standing Committee's docket for
"preliminary vetting. '  At the preliminary vetting, the preliminary draft
of the bill is reported-out before the floor of the Standing Committee by the
bill's drafter or lead drafter. In addition to the legislative draft, the drafter
also provides an "explanation" 388 of the draft, which sets out the general
purpose of the draft legislation, notes particularly important provisions
contained in the draft, and notes any important issues that arose during
drafting.389 The delegates than retire into groups to discuss the draft.
representatives from the bill's drafter(s) also attend these discussions. 390

Delegates also receive copies of the CLA's summary report of the special
standing committees' evaluations. Group discussions are recorded by the
General Office.

385. See National Defense Law, supra note 148, at 3.
386. See note 199 supra.
387. "Chubu shenyi."
388. "Shuoming."
389. See Procedural Rules of the Standing Committee, art. 15. See also Cai, supra note 4, at

263.
390. See Procedural Rules of the Standing Committee, art. 15. See also notes 653-658 and

accompanying text infra (discussing delegate groupings in the Standing Committee).

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NPC CONSTITUTIONAL DEVELOPMENT

Following the preliminary vetting, the Chairmen's Group sends the
proposal to the Law Committee for revision.3 9 The revision process used
by the Law Committee is similar to the drafting process used by the CLA,
albeit frequently abbreviated. The Economic and Finance Committee, and
other relevant special standing committees prepare reports suggesting
changes to that draft in line with the major points raised in the Standing
Committee's preliminary vetting. Once it receives the committees'
evaluations, the Law Committee prepares a "revised draft," a rough draft
of which - if the revisions are substantial - may be circulated for
comment among governmental bodies, scholars, representatives from
selected public interests.3 2 The Law Committee also prepares a "report"' 39
detailing the various issues that arose during the preliminary vetting and in
the revision comments obtained from the other special standing
committees, why it made the various revisions it did it, and why it rejected
other recommended revisions.3 The Law Committee then forwards the
revised draft and accompanying report to the Chairmen's Group, which -if
it approves - schedules a second vetting on the Standing Committee floor.
Alternatively, the Chairmen's Group may return the draft to the Law
Committee for further revision.

At the second vetting, the revised draft and its accompanying report
are read out by the Law Committee (not by its original drafter).39S The
delegates again discuss the revised draft in groups also attended by
representatives of the bill's drafter. If this vetting does not reveal
significant dissension among the delegates, the Chairmen's Group will
send the bill up for vote at the end of the session.396 Otherwise, the
Chairmen's Group will move that the bill be sent down for further
revision?' If the delegates approve that motion, the bill is again sent down
(resulting in a "second revised draft"), otherwise, bill must be put up for

391. See Procedural Rules for the Standing Committee, art. 16. See also Cai, supra note 4, at
263.

392. Interview (CLA).
393. "Baogao.* This report is similar in form and function to the 'explanation" presented

during the preliminary vetting by the bill's sponsor.
394. See Procedural Rules of the Standing Committee, art. 16. See also Cai, supra note 4, at

264.
395. See Procedural Rules of the Standing Committee, art. 16.
396. See Cai, supra note 4, at 264.
397. See Procedural Rules of the Standing Committee, art. 20. Cf. Wo You Butong Yijian [I

Have a Different Opinion], FAZwI RIBAo [LEGAL SYsmi DAILY], March 16, 1996, at I (reporting
on how similar procedures operate in the CPPCC).

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COLUMBIA JOURNAL OF ASIAN LA W

vote. A bill may be sent back for revision any number of times,398 but each
time (other than that following the preliminary vetting), the decision to
send the bill back to committee must be approved by the delegate body.

Legislative proposals are passed by affirmative vote of more than half
of the total number of delegates to the Standing Committee.399 If voted
down, a proposal is killed: it may not be put up for vote again in
subsequent sessions (unless it is re-introduced to the Standing Committee
as a new legislative proposal).' Since 1990, voting machines have been
used to take and tabulate votes.4°t

(b) Resolutions

The Standing Committee's legislative procedures for considering
draft resolutions are generally similar to those used for statutory
proposals.' Draft resolutions may be introduced by anyone with standing
to introduce draft legislation.4°3 As with statutory proposals, draft
resolutions not originating from the CLA will be forwarded by the
Secretary's Group to the special standing committees for evaluation and
comment before being placed on the Chairmen's Group's docket (with
delegates' drafts subject to possible rejection by the Secretary's Group).4°4

Once it reaches the floor of the Standing Committee, the draft resolution
together with an "explanation" outlining the rationale, purpose,
methodology and the important points of the resolution is read out to the
floor of the Standing Committee by its drafter, after which the delegates
retire into groups to discuss the draft.

398. Procedures for second revision are the same as those for the first revision.
399. See Procedural Rules of the Standing Committee, art. 30 Thus, an abstention has the same

effect as a nay vote. Cf. Ca, supra note 163 (arguing that NPC should adopted a new rule under
which proposals pass upon receiving approval of one-half of votes cast rather than one-half of total
members).

400. See Inside Information, supra note 28 (indicating that an acting chairmen's failure to
adequately understand this point appears to have resulted in the only instance on record in which
the NPC voted down a legislative proposal).

401. See Liu & Cheng, supra note 1, at 240; Cai, supra note 4, at 265. See also THE GENERAL
OFFICE OF THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS, THE NATIONAL
PEOPLE'S CONGRESS OF THE PEOPLE'S REPUBLIC OF CHINA 16 (1996) (containing a picture of a
delegate voting).

402. In fact, aside from requiring that all statutory proposals undergo two vettings, the
Procedural Rules of the Standing Committee does not distinguish between draft resolutions and
statutory proposals. The term "anyi [bills]" as used by those rules covers both forms of legislation.

403. See Cai, supra note 4, at 278.
404. See Procedural Rules of the Standing Committee, art. 12.

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NPC CONSTITUTIONAL DEVELOPMENT

Unlike statutory proposals, howeyer, there is no mandatory revision
stage for draft resolutions: a draft resolution is most commonly voted on
in the same session in which it is introduced. At the same time the
delegates retire into groups to discuss the proposal, the proposed
resolution is also sent to the Law Committee, Economic and F'mance
Committee, and other relevant special standing committees for evaluation
and report. After the discussion are concluded and the special standing
committee have issued their reports, the Law Committee prepare a report
summarizing the various issues and concerns raised by the delegates and
the special standing committees. This report is then sent to the Chairmen's
Group.

The Chairmen's Group then decides whether to send the proposal up
for a vote at the end of that same session, or to send it to the Law
Committee for revision and re-consideration at subsequent sessions. If
the Chairmen's Group decides to send the draft up for vote that session, it
will nevertheless commonly request the Law Committee make minor
revisions to the draft in line with the more important points outlined in that
Committee's summary report. ° Near the end of the session, the Law
Committee will then report out to the whole floor its revised draft, and
along with its revision report, and the revised draft is vetted once by the
delegates meeting in full committee. If no major disagreements arise, the
resolution is put to vote at the end of that session. Otherwise, the
Chairmen's Group can move that the draft be returned to the Law
Committee for further revision. If the floor approves that motion, the
proposal goes back to committee - otherwise, the proposal must go to
vote.

While sending proposed resolutions down for revision and subsequent
vetting is the exception rather than the rule, the Chairmen's Group will not
hesitate to do so if the vetting reveals significant problems or
disagreements over the draft. A draft resolution authorizing the Three
Gorges dam project was sent back to committee for revision four times due
to opposition from the delegates from the affected regions of the country.4'
Once a resolution is sent back to committee for revision, the subsequent
procedures are the same as those for statutory proposals.

405. See Cai, supra note 4, at 275.
406. See id. at 280.
407. Interview (General Office Research Department). Cf. Cai, supra note 4, at 280 (noting

that delegates opposition forced Three Gorges dam project resolution down for revision 'several
times").

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COLUMBIA JOURNAL OFASIANLAW

(3) Vetting procedures of the Plenary Session

(a) Basic Laws

As noted above, the Plenary Session has limited but exclusive
legislative jurisdiction to enact "basic laws." As with all statutory
legislation, development of basic laws is governed by the NPC's legislative
plans. Anybody with standing to submit legislative proposals to the
Standing Committee also has standing to submit legislative proposals to the
Plenary Session, with two minor exceptions. The Chairmen's Group can
not submit a legislative proposal directly to the Plenary Session in its own
name. Statutory proposals issuing from inside the Standing Committee
must be submitted in the name of (and with the approval of) the Standing
Committee itself."8 Nor can 10 Standing Committee delegates submit
delegate proposals directly to the Plenary. Instead, delegate proposals
submitted to the Plenary must be sponsored by either 30 or more plenary
delegates or by one or more Plenary Session delegate groups. °9 In
addition, the Presidium may also submit its own legislative proposals, but
it rarely if ever does so.

Theoretically, the Presidium has authority to directly receive
legislative proposals and to include those proposals on the Plenary Session
agenda.410 However, in practice, all legislative proposals are submitted to
the Standing Committee, not the Presidium,4 ' and it is the Standing

408. Such drafts are prepared by the CLA, using the same drafting process used for preparing
drafts for consideration by the Standing Committee. All draft legislation sent to the Plenary Session
by the Standing Committee goes through at least one preliminary vetting in the Standing Committee
before being submitted to the Plenary Session for consideration. The decision whether or not to
submit the draft to the Plenary Session is made by the Chairmen's Group and approved by the
Standing Committee.

409. See Procedural Rules of the Plenary Session, art. 21.
410. See Procedural Rules of the Plenary Session, art. 12. See also notes 130-133 supra

(discussing delegate groupings in the Plenary Session). The rules themselves suggest that the
Presidium MUST include such proposals on the agenda unless the proposal is submitted by the
delegates or by a delegate group, in which case the Presidium may also decide to kill the proposal
after seeking the advise of the special standing committees.

411. See Cai, supra note 4, at 262. Since the docket for the Plenary is already completely filled
before the Presidium is formed, see notes 661, 665 and accompanying text infra, it would be
practically impossible for the Presidium to add an item even if it wanted to.

NPC delegates will sometimes submit legislative proposals directly to the Plenary. The
Presidium invariably kills these proposals using the procedures outlined in article 12 of the
Procedural Rules of the Plenary Session. See Cai, supra note 4, at 261.

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

Committee - namely the Chairmen's Group - who decides whether the
proposal shall be treated as basic or ordinary legislation 12

Regardless of who submits the proposal, all proposals for basic laws
are vetted at least once by the Standing Committee before being sent to the
Plenary Session. After this vetting, the Chairmen's Group then decides
whether to place the proposal on the agenda for the next Plenary Session,
or send the proposal back to the Law Committee for further revision and
further vetting by the Standing Committee. If the Chairmen's Group
wishes to send the proposal to on to the Plenary Session, that decision must
be ratified by vote of the Standing Committee.41 3 Basic legislation, once
is it slated for Plenary Session consideration in the legislative plan,
generally goes to the Plenary Session on schedule.

Draft basic laws are always voted on in the same Plenary Session in
which they are introduced. The initial legislative procedure for considering
these bills is similar to that used by the Standing Committee for vetting
draft resolutions. The draft proposal is first read-out to the delegates by its
lead drafter,414 together with an explanation like that which accompanies
legislative proposals read before the Standing Committee. The delegates
then retire to vet the proposal in group meetings, which are attended by
representatives of at least one of the bill's drafter. At the same time, the
draft is also sent to the special standing committees for evaluation and
comment 5 The Law Committee records the major points raised during
the vettings, and in the comments of the special standing committees, and
working under the guidance of the Presidium's Standing Chairmen, draws
up a revised draft of the bill.4 6

The Law Committee then reports out the revised draft (together with
it revision report), before a special meeting of the Presidium, which
includes - in addition to the Presidium's normal members - the chairs

412. See id
413. See idi at 264. See, eg., Renda Changweilui Juxing Weiyuanzhang Huiyi [NPC Standing

Committee Convenes Chairmen's Group Meeting], FAZHI RIBAO [LEGAL SYsEM, DAiLY], February
14, 1997, at 1 (detailing items to be considered by Standing Committee Session in preparation for
upcoming Plenary).

414. This is the organ that originally submitted the bill to the Standing Committee. Even if the
bill was revised by the Law Committee, it is still introduced bfore the Plenary Session by its drafter.

415. See Procedural Rules of the Plenary Session, art. 24.
416. See Procedural Rules of the Plenary Session, art. 24. while delegate input during the

Plenary Session would appear to be significantly less than that for the Standing Committee,
sufficient delegate voice can still inspire meaningful amendment of draft legislation. See, e.g., notes
44 and accompanying text supra.

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COLUMBIA JOURNAL OFASIAN LAW

of each of the delegate groups. 417 That body (rather than the full Plenary)
then vets the revised draft (and may meet several times in doing so).
Further revisions to that draft may be effected through majority vote of that
body.418 Once that meeting approves the draft, it sends that draft to the full
delegate body for vote.419 Alternatively, the Presidium may elect to send
to the Plenary Session in lieu of that bill a draft motion that the bill be sent
back to the Law Committee for further consideration, thus tabling the bill
until the next Plenary.420

The proposal (or motion) is then voted upon. The full delegate body
does not have opportunity to vet either the revised draft or the motion
before vote. A bill must receive a simple majority of the full delegate body
to pass.421 Votes are conducted and tabulated by machine.422

(b) Resolutions

The procedures used by the Plenary Session for considering draft
resolutions are almost identical to those used for basic laws.4z The only
differences are that there is no second vetting of the Law Committee's
revised draft by an expanded meeting of the Presidium. Instead, the normal
Presidium body immediately decides whether to send the proposed
resolution to the floor of the Plenary Session for vote, or to send in its stead
a motion recommending that the resolution be referred to the Standing
Committee.424 If the Plenary Session were to refer the resolution to the
Standing Committee, the Standing Committee would revise and vote upon
that resolution using its own procedures.4z  If the resolution were

417. See Procedural Rules of the Plenary Session, art. 24; See also Cai, supra note 4, at 264.
418. Group chairs have voting privileges. See Cai, supra note 4, at 264.
419. See Procedural Rules of the Plenary Session, art. 24.
420. See Procedural Rules of the Plenary Session, art. 28. See also Cai, supra note 4, at 265.

There is no evidence that the Presidium has ever exercised this option. Obviously, if the Plenary
Session were to vote down this proposal, then the draft itself must be sent to the floor for vote.

421. See Procedural Rules of the Plenary Session, art. 51. Abstentions, therefore, have the
same effect as nay votes. See also Cai, supra note 163 (criticizing this rule).

422. See sources cited in note 401 supra.
423. See generally Cai, supra note 4, at 278-281.
424. See id. at 280. Obviously, if the Plenary Session votes down such a motion, the

Presidium must send the draft resolution to the Plenary floor for vote.
425. See Procedural Rules of the Plenary Session, art. 28. See also Cai, supra note 4, at 280.

There is no evidence that this alternate procedure has ever been used by the Presidium, however.

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NPC CONSTITUTIONAL DEVELOPMENT

ultimately passed by the Standing Committee4 , the resolution as passed
must be reported4 27 to the next Plenary Session.42  As with all other bills
and motions, the draft resolution must receive a simple majority of the full
delegate body to pass.4

(c) Constitutional Amendments

The procedures for passing constitutional amendments are the same
as those for passing basic laws except that proposed constitutional
amendments may only be introduced to the Plenary Session by either the
Standing Committee or if sponsored jointly by 1/5th or more of the total
delegate body.430 Constitutional amendments must receive affirmative vote
of at least 2/3rd of the total delegate body to pass.43 Interestingly, the only
recorded instance of delegates successfully introducing draft legislation
onto the floor of the Plenary Session involved a constitutional amendment.
During the 1993 Plenary, the CCP sought to introduce a draft constitutional
amendment, but that amendment was rejected by the Presidium because the
CCP lacked standing to introduce such amendments. The CCP then
arranged for 1/5th of the delegates to sponsor the proposal. The reason the
CCP did not seek the sponsorship of the Standing Committee was because
the Standing Committee had already placed a competing version of the
amendment already before the Plenary Session floor. The two competing
versions of the amendments were then reconciled in the revision process.432

2. Legislative Interpretations

Of all the NPC's constitutional powers, the power to "interpret the
laws and the constitution" is the most misunderstood by Western

426. Resolutions are not divided into "basic ' and *ordinary. Therefore, the Standing
Committee has competence to consider and pass any resolution presented to the Plenary Session.

427. "Huanbao."
428. This is supposed to give the Plenary Session opportunity to overturn the Standing

Committees action. However, at present, there are no procedures in place for "reporting" items,
either in the Plenary Session or in the Standing Committee, so this requirement remains moot. See
notes 624-628 and accompanying text infra.

429. See Procedural Rules of the Plenary Session, art. 51.
430. See PRCCONMTsrrON, art. 64. As noted above, constitutional amendments issuing from

the Standing Committee are traditionally drafted by special drafting groups, rather than by the CLA.
See notes 362-364 and accompanying text supra.

431. See PRC CONSiTTION, art. 64.
432. This event is described in Handling Amendments, supra note 63.

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COLUMBIA JOURNAL OFASIANLAW

commentators. Many Western commentators seem to assume that this
power gives the NPC the power to act as a court.433 China possesses a civil
law system, not a common law system, and in civil law systems, the power
to issue binding interpretations of law is regarded as a legislative or
administrative function rather than a judicial function. 34  China's
treatment of this matter is thus consistent with that advocated by many
civilian legal theorists. 435

The power to interpret the laws and the constitution4 36 thus works to
give the Standing Committee power to pass supplemental legislation to fill
in interstices in the constitutional and legal framework. This particular
form of interpretation, called "legislative interpretation" by many Chinese
constitutional scholars,437 involves abstract interpretations addressed to a
lacunae in the positive law rather than to particular legal disputes.438 The

433. In fact, the NPC does have authority to supervise a court's handling of individual cases,
but that authority comes from its supervisory powers, not its interpretive powers. In any event,
however, the NPC has disavowed any authority to substitute its own judgement for that of a courts.
See generally, notes 602-618 and accompanying text infra.

434. See, e.g., Brown & Bell, supra note 285, at 124.
435. See, e.g., HANS KEIsEN, APURETHEORY OFLAW, 355-56 (M. Knight, trans., 1967). See

generally, JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL
SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA, 136-139 (2d. ed. 1985)

436. See PRC CONSTITUTION, art. 67(1), 67(4).
437. NPC commentators distinguish between three types of interpretation, which they refer to

as "legislative interpretation," "juridical interpretation" and "administrative interpretation." See Guo
Daohui, Lun Guojia Lifaquan [On National Legislative Power], ZHONGGUO FAXUE, No. 4, 1994,
at 9 (analyzing three different forms of interpretation) [hereinafter On National Legislative Power].
See also Teng Wei, Lan Xingfa de Lifa Jieshi [On Legislative Interpretation of the Criminal Law],
FAXUE YANJIU, No. 1, 1992, at 13, 13 (describing the three types of interpretation) [hereinafter
Criminal Law]; Zhou Zhenshao, Ye Lun Lifa Jieshi [On Legislative Interpretation], ZHONGGUO
FAXUE, No. 1, 1995, at 30 (same) [hereinafter Legislative Interpretation]. Western scholars, in
complaining that the NPC's power to interpret the laws interferes with the judicial function, are
confusing legislative interpretation with juridical interpretation. The NPC itself has disavowed any
power to issue juridical interpretatations. See note 613 and accompanying text infra.

438. See Legislative Interpretation, supra note 437; Cai Dingjian & Liu Xinghong, Lun Lifa
Jieshi [On Legislative Interpretation], ZHONGGUO FAXUE, No. 6, 1993, at 36, 37-38 (describing the
uses of "legislative interpretation") [hereinafter On Legislative Interpretation].

The NPC uses a wide variety of terms to designate its legislative interpretations (although
today all are handled as resolution). See Yang Yafei, Lifa Jieshi Zingshi Bianxi [Differentiating
Forms of Legislative Interpretations], DANGDAI FAXUE, No. 1, 1992, at 10, 22 [hereinafter
Differentiating FornsJ. Intensifying the confusion is the fact that interpretations are sometimes
called "supplemental regulations [Buchong Guiding]" or "supplemental amendments [Xiugai
Buchong)," thus inviting confusion with "administrative regulations [xingzheng guiding]" and
"statutory amendments [xiuzhengan]" (which are amendments passed as statutory legislation). The
constitution, however, only distinguishes between "interpretations" and "laws," so technically, any
non-statutory legislative instrument purporting to effect the content of enacted statute is by

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

Constitution assigns power to issue these interpretations to the Standing
Committee, in part to allow that body to issue supplemental legislation for
even basic laws. The alternative to this, i.e. to require the Plenary Session
to supplement such regulations, would be impractical given the institutional
limitations of that body.439

Theoretically, Standing Committee interpretations should not
contravene the existing text of the law or the fundamental principles
underlying the law. Nor should they significantly remake the law being
interpreted" ° Nevertheless, some laws have been substantially effected by
the aggregate weight of Standing Committee interpretations. Prior to the
enactment of the 1997 amendments, over 30% of the articles in the
Criminal Law had been subject to Standing Committee interpretations. ' 2

Although none of these "interpretations" by itself was particularly
excessive, some scholars and NPC researchers suggest that such extensive,
aggregate interpretation is itself something to which the Standing
Committee needs to be more sensitive. 3

As legislative acts, Standing Committee interpretations must be
promulgated through legislative instruments. Interpretations are generally
promulgated as resolutions,444 since the statutory process is too time
consuming and cumbersome for the more modest matters addressed by
these interpretations. Prior to 1991, this created a problem, however. In
principle, Standing Committee interpretations enjoy greater legal authority
than interpretations issued by the State Council (or by the Supreme

definition an interpretation. That is how the term is used in this article.
439. Cf. Tanner, supra note 1, at 58-59 (crediting the 1982 PRC Constitution's grant of

legislative authority to the Standing Committee as a crucial factor in the development of the NPC).
440. See On Legislative Interpretation, supra note 438, at 37-38; Criminal La,; supra note

437, at 13-14. Significant changes to laws should be accomplished through statutory amendments
["xizheng'an'], passed as a statute by the body that promulgated the original law. See Id

441. See Legislative Interpretation, supra note 437, at 32.
442. See id. See also Criminal Law, supra note 437, at 15 (discussing these interpretations).
443. See, e.g., Cai, supra note 4, at 238; Yuan Jiliang, Lun Lifa Jieshi Zhidu Zhi Fei [On

Insufficiencies in the Legislative Interpretation System], ZHONGGUO FAXUF, No. 4, 1994, at 24
(discussing abuses of legislative interpretation); Li Cheng & Wan Qigang, Luelun Wo Guo
Dangqing Lifa Zhong Cunzai de Wenti [Discussing Continuing Problems in Current Legislation],
ZHONGWAI FAXuB, No. 2, 1996, at 43,43 (same).

444. See Cai, supra note 4, at 274, 277; Differentiating Forms, supra note 438, at 21-22.
During the 1980s, before the distinction between a 'resolution" and a 'declaration' had been
standardized, NPC interpretations were also frequently promulgated as 'declarations Uueyi]."
Today, all interpretations are handled as resolutions.

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People's Court, for that matter). 5 However, prior to 1991 administrative
interpretations actually enjoyed greater juridical effect did interpretations
issuing from the Standing Committee. This was because the
Administrative Litigation Law requires the courts to give discretionary
juridical effect to State Council interpretations, while at the same time, the
judiciary refused to give explicit juridical effect to either NPC resolutions
(or other forms of NPC interpretation).' 4 This problem was compounded
by the fact that the legislative interpretations of administrative organs
frequently contravened the intent - and even the text - of the statute they
purported to interpret.447

In 1991, however, the Supreme People's Court announced that courts
would henceforth give discretionary juridical effect to NPC resolutions, 44'

thus putting them on a juridical par with State Council interpretations. In
fact, the Supreme People's Court now seems to regard at least some NPC
statutory interpretations has having even greater weight than administrative
interpretations. Recently, for example, the Supreme People's Court issued
its own interpretation on an earlier legislative interpretation promulgated
by the Standing Committee. In doing so, the Supreme People's Court is
effectively suggesting that the prior NPC interpretation has statutory force,
since the court's own legislative authority is limited to interpreting
statutes.449

Two other forms of NPC interpretation deserve mention. First, the
CLA issues legislative interpretations under its own name. These have no

445. See Baizheng Xingzheng Jieshi de Falu Weizhi [Arranging the Correct Status for
Administrative Interpretations], FAZHI RIBAO [LEGAL SYSTEM DAILY], February 10, 1997, at 1
(acknowledging that NPC interpretations are of higher authority than administrative interpretations).
The power of both the Standing Committee and the Supreme People's Court to issued legislative
interpretations comes from specific grants of delegation made by the NPC in the early and middle
1980s. See notes 453-455, 463-469 and accompanying text infra.

446. See Finder, supra note 171, at 189.
447. See On National Legislative Power, supra note 437, at 14; See Tanner, supra note 1, at

71.
448. See Zuigao Renmin Fayuan [Supreme People's Court], Guanyu Yinfa "Quanguo Jingli

Shenpan Gongzuo Zuotan hui Jiyao' de Tongzhi [Notice Concerning the Distribution of the Minutes
for the 'National Economic Adjudication Work Conference'], SIFA WENJIAN XUAN, No. 9, at 36-48
(1993), discussed in Finder, supra note 171, at 189.

449. See, e.g., Zuigao Renmin Fayuan Guanyu Shenli Zhapian Anjian Juti Yingyong Falt de
Ruogan Wenti de Jieshi [Interpretation by the Supreme People's Court on Several Questions
Involving Specific Uses of Law in Deciding Cases of Fraud], FAZHI RIBAO [LEGAL SYSTEM DAILY],
January 26, 1997, at 2 (Supreme People's Court interpretation of an earlier Standing Committee
interpretation). See also notes 465-469 and accompanying text infra (discussing Supreme People's
Court's power to issue its own legislative interpretations). The Supreme People's Court affords its
own legislative interprets as binding juridical effect. See Finder, supra note 171, at 153.



NPC CONSTITUTIONAL DEVELOPMENT

juridical effect, and their impact on the development of the legal corpus is
questionable.4 " In addition, the Supreme People's Court will sometimes
consult informally with the CLA regarding particular interpretive matters.
While the product of these informal consultations obviously have no
juridical or legal effect, it can influence that Court's own legislative
interpretations, which do have juridical effect.45

3. Delegations of Legislative Authority to Other
Constitutional Organs

The NPC can delegate legislative authority to other constitutional
bodies, and it has done so on a number of occasions and to a number of
organs. In fact, the bulk of China's current legal corpus is composed of
regulations promulgated under delegated legislative authority from the
NPC, by the State Council and the Supreme People's Court.4S2

During the 1980s, the Standing Committee passed three resolutions
delegating relatively broad authority to the State Council to legislate on
various economic matters. The first of thes-, passed in 1982, authorized
the State Council to enact regulations on matters involving the resignation
and retirement of workers.453 The second, passed in 1984, authorized the
State Council to enact temporary taxation regulations. The third, passed
in 1985, the broadest and most significant of the three, authorized the State

450. See On Legislative Interpretation, supra note 438, at 41. See also Finder, supra note 171,
at 164 n.84.

451. See idL at 153. See generally notes 464-469 and accompanying text infra (discussing
Supreme People's Court's limited legislative jurisdiction).

452. Both the Supreme People's Procuratorate and the Central Military Commission have also
been given authority by the NPC to draft legislation, but neither have had much effect on legal
development in China. The Supreme People's Procuratorate only exercised its drafted authority
jointly with the Supreme People's Court. See, e.g., Yang Zhihong, Wang Shouan & Li Jihua, Lun
Jiaqiang Zuigao Renmin Jianchayuan de Sifa Jieshi Quan [On Strengthening the Juridical
Interpretation Powers of the Supreme People's Procuratorate), 1993(6) FAXUE YANIIU, No. 6,
1993, at 52. The jurisdiction of the Central Military Commission's regulations are limited to
military personnel.

453. See Guanyu Shouquan Guowuyuan dui Zhigong Tuixiu Zhi Banfa Jinxing Bufen Xiugai
he Buchong de Jueding (1982).

454. See Guanyu Shouquan Guowuyuan Gaige Gongshangshui Shi he Fabu Shixing Youguan
Xhuishou Tiaolie (Caoan) Jueding (1984).

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Council to enact temporary regulations related to China's economic
reform.

455

Because of the breadth of these grants, and because there is no
concrete guidance as to what the particular statute of limitations is for
"temporary" as distinguished from ordinary administrative regulations, 456

some have concluded that the State Council's legislative authority is
basically unlimited. However, limiting the State Council's competence to
one of "temporary legislation" has effectively preserved some aspect of
NPC oversight. Even though there are no set temporal restrictions on what
constitutes "temporary legislation," the fact that these regulations are
labeled "temporary" nevertheless impacts their effectiveness. For example,
the CSRC has lobbied very hard for a national securities law, even though
the regulatory framework it has constructed out of temporary regulations
is generally regarded as quite complete.457 The CSRC believes that the
mere label of "temporary" that attaches to those regulations thus weakens
their effectiveness, and lessens investor confidence in the stability of the
market's legal framework. 8 Similar concerns motivated the State Council
to seek a national Company Law rather than just relying on and
supplementing existing temporary regulations.459

The PRC Constitution also gives the State Council independent
legislative competence to regulate economic, cultural and educational
activities, public security, or national defense. In these areas, the
Constitution allows the State Council to enact administrative regulations
even in the absence of any prior "enabling legislation" by the NPC.4'°

But the NPC also enjoys some measure of oversight even in these
areas. Administrative regulations standing without explicit statutory

455. See Guanyu Shouquan Guowuyuan Gaige he Dui Wai Kaifang Fangmian Keyi Niding
Zanxing de Guiding huozhe Tiaolie de Jueding (1985). See generally Xu Anbiao, Falu he
Xingzheng Fagui de Tiaozheng Jiexian [Adjusting the Line Between Law and Administrative
Regulations], LIFA-YUANCE, ZHIDU, JISHU, supra note 362 at 145, 149 (1994) (discussing these
three delegations) [hereinafter Adjusting the Line].

456. See Tanner, supra note I, at 59.
457. In 1994, while servings as a consultant for an Asian Development Bank project to help

develop capital markets in China, Mr. A. A. Sommer, former Chairman of the US SEC, noted that
China's regulatory framework was already "quite comprehensive." See A. A. SOMMER, "COMMENTS
ON NATIONAL REGULATORY FRAMEWORK" 3-4 (1993).

458. Interview ( CSRC). Many professionals in China's securities industry echo this view.
459. Interview (CSRC). Cf. Gao Xiqing, The Perceived Unreasonable Man -A Response to

Fang Liufang, 5 Duke Int'l & Comp. L. Rev 271, 272 (1995) (suggesting that the Company Law
should have just enacted the existing administrative regulations).

460. PRC CONSTITUTION, Art. 89 (6). See also Adjusting the Line, supra note 455, at 148
(discussing this constitutional delegation).

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NPC CONSTITUTIONAL DEVELOPMENT

support from the NPC are of lesser legal effect (even though authorized by
the Constitution itself) than those promulgated under explicit NPC
delegation. 6t This is why, for example, the State Council and CCP found
it useful to have the NPC expressly delegate to the State Council authority
to legislate in matters relating to economic reform, even though the
Constitution gives the State Council independent legislative authority in
that area. 4 2 In spite of the bothersome temporal limitations that attach to
the NPC's delegation, the State Council nevertheless seems to prefer to
legislate under its delegated legislative authority rather than under its own
independent legislative authority.

In 1981, the NPC also delegated to the State Council and to the
Supreme People's Court and to the Supreme People's Procurate4 63 power
to issue legislative interpretations on matters "involving the specific
application of laws and decrees in adjudication work." ''  The principal
beneficiary from this grant has been the Supreme People's Court, 5 who
uses it to issue what are generally labeled "opinions." '  Like NPC's
legislative interpretations, these "opinions" (which have juridical effect)45 7

are supposed to be used to fill in interstices in the existing statutory
framework - they are not supposed to go exploring into uncharted

461. See, e.g., 2hou Wangsheng, Guowuyuan Lifa de Jige Wenti [Several Questions on
Administrative Legislation], in LiFA-YUANCF, ZHIDU, JISHU, supra note 362, at 131, 133 (1994)
(explicit delegations of legislative authority from the NPC provides a firmer foundation for State
Council legislation than does the constitutional's independent grant).

462. See id.
463. This power only vests in the Supreme People's Court, is does not vest in any of the lower

or the special courts. The Supreme People's Court has, on occasion accepted binding interpretations
issuing from the special military courts. See Finder, supra note 171, at 170, 186. However, the
Court has also made clear that lower civilian courts may not issue such interpretations. See Finder,
supra note 171, at 170, 186.

464. Resolution of the Standing Committee of the National People's Congress Providing an
Improved Interpretation of the Law (June 10, 1981), translated in THE LAWS OF THE PEOPLE'S
REPUBLIC OF CHINA 1979-1982 251 (1987).

465. This grant adds little to the State Council's legislative jurisdiction, given its much broader
grants of legislative authority discussed above. The Supreme People's Procurate refrains from
exercising its legislative powers except in conjunction with the Supreme People's Court. See note
452 supra.

466. "Yijian."
467. See, FMder, supra note 171, at 188-189. See, e.g., JIANG MINGAN, XINGZHENG SUSONG

ANuPca 43 (1993) (reprinting case citing interpretation by Supreme People's Court as source
of law).

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legislative terrain." But the Court is not always so conscientious, and
there are a number of instances in which judicial legislation appears to
venture significantly beyond the text it claims to be interpreting.469

In addition to these dedicated delegations of legislative authority,
individual statutes commonly delegate to relevant regulating organs limited
legislative authority to legislate "implementing regulations" filling out the
statutory framework. However, statutes generally do not designate a
particular administrative organ as its specific proxy (the determination of
which particular lower organ may issue such implementing regulations is
most commonly made by the State Council). This is probably because the
organizational structure of the State Council has traditionally been quite
fluid. By allowing the State Council to designate the organ responsible for
implementation, the statute avoids enshrining a particular organ's
responsibilities in law, and thus allows the law to survive future changes in
the State Council's administrative structure.

Like the 1981 delegation to the Supreme People's Court discussed
above, these statutory-specific delegations only authorize the implementing
authorities to promulgate legislative interpretations filling in the interstices
of the statute. They do not authorize the implementing organs to design
regulations for matters not framed by statutory principle. However, like
the "opinions" of the Court, administrative "implementing regulations"
often venture much farther in practice than they are supposed to in theory,
sometimes to the point of contradicting explicit statutory command.470

Legislative delegation has played a key role in the development of
China's corpus of legislative law. The vast majority of legal instruments
now in effect in China have been promulgated under color of delegated

468. In effect, this grant gives the Supreme People's Court powers similar to, albeit more
limited than, those enjoyed by common law courts.

469. See Finder, supra note 171, at 168, 188-89.
The NPC has one at least one instance sought to use the Supreme People's Court's

legislative authority as a counterweight to the the State Council's. In 1989, the NPC directed
responsibility for developing the implementing regulations for the Administrative Litigation Law
be given to the Supreme People's Court rather than to the State Council, who had sought this
responsibility for itself. See Tanner, supra note 1, at 71, 91-92 n. 40. See also Zuigao Renmin
Fayuan [Supreme People's Court], Guanyu Guanche Zhixing 'Zhonghua Renmin Gongheguo
Xingzheng Susong Fa' Ruogan Wenti de Yijian (Shixing) [Opinion by the Supreme People's Court
concerning several questions in thoroughly implementing the 'Administrative Litigations Law of
the PRC (for trial implementation)], discussed in Finder, supra note 171, at 188-89.

470. See Tanner, supra note 1, at 71. This problem was one of the main incentives for the NPC
to develop the Administrative Litigation Law. See notes 619-623 and accompanying text infra.

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NPC CONSTITUTIONAL DEVELOPMENT

authority.471 The effect has been mixed. On the one hand, this may have
impeded both the institutional development of the NPC and the
development of law in China. As noted above, both the standard opinions
issued by the Supreme People's Court and the implementing regulations
issued by administrative organs frequently exceed the theoretical scope of
their authority, often conflicting with the intent and even the text of the
statutes they purport to interpret. Technically, the NPC has constitutional
authority to review and revoke these opinions and regulations (including
those passed under the State Council's independent legislative powers).
But at present it has no procedures in place by which to exercise such
review.472 Administrative un-accountability is further encouraged by the
tendency of the NPC to frame statutes in broad, general language, thus
giving great leeway to implementing organs. Not only does this weaken
the impact of NPC legislation on the development of the legal corpus, it
also erodes internal consistency within that corpus, thus affecting the ability
of the corpus to structure social behavior.

On the other hand, the legislative needs of China far outpace the
institutional capabilities of the NPC. It is probably better to have
administrative organs acting according to some form of codified legal norm
than to have them acting according to arbitrary whims of persons inside and
outside the organ. For this reason, China's continued legal development
will need to be fueled primarily by administrative and judicial legislation
well into the foreseeable future.473

C. Supervisory Powers of the NPC

The NPC's supervisory powers, which grow out of its status as China's
paramount constitutional organ, include power to vet and approve reports
relating to the state plans and the national budget, power to vet and approve
various "work reports" of other constitutional organs, power to conduct
investigations, power to appoint and remove persons from public office,
and power to supervise the enforcement of the laws and the constitution.
In general, the NPC's exercise of these powers has benefitted far less from

471. See Tanner, supra note 1, at 65. For example, the Senlin Fa (forestry law) and the
Yesheng Dongwu Baohu Fa (Wild animal protection law) together have spawned over 10
administrative regulations, over 50 departmental rules, and over 300 regional regulations. See Zhifa
Jianchazu Jiang Fu Gan Min Dian [Investigaloty Group to Visit Gansu, Fujian and Yunnan], FAZI3
RiBAO [LEGAL SYSTEm DAILY], April 4, 1997, at 1.

472. See notes 624-628 and accompanying text infra.
473. See Finder, supra note 171, at 171; See Tanner, supra note 1, at 65.

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the NPC's institutional development than has its legislative powers. This
is reflected in the vague and incomplete character of the procedures that
attach to most of these powers. Nevertheless, the NPC's exercise of these
powers has recently become much more robust, mainly because the
delegate body shows itself to be increasingly unwilling to blindly acquiese
to the claims and manipulations of the CCP and the State Council.474

1. Budgetary Supervision

In China, the national budget is set by the State Council. The NPC
only reviews the a draft version of that budget and offers
recommendations.4' The NPC (specifically the Standing Committee) also
monitors the implementation of that budget. The procedures for the NPC's
budgetary oversight are among the most developed of those for the NPC's
supervisory powers. Nevertheless, for a number of structural reasons, NPC
oversight over the budget remains far from satisfactory, according to many
staffers.

The NPC's budgetary supervision revolves around two reports issued
each year to the Plenary Session by the State Council: the "state budget
report' 476 and the "state planning report"477 (collectively referred to in this
article as the "budgetary reports"). The state budget report, which is
governed in part by the PRC Budget Law, provides an overall accounting
of China's income and expenditures for that last fiscal year, and a forecast
of State income and expenditures for the upcoming fiscal year. The state

474. See, e.g., Tanner, supra note 1, at 88. See also notes 37-50 and accompanying text infra
(noting party and State Council recent more cooperative response to delegate dissension).

475. See PRC CONSTIrUTION, art. 62(9); see also Procedural Rules of the Plenary Session, ch.

3.
476. The state budget report is actually comprised of two reports: a report on the

implementation of the last years budget and a draft budget for the upcoming year. See, e.g., Guanyu
1993 Nian Guojia Yusuan Zhixing Qingkuang he 1994 Nian Guojia Yusuan Caoan de
Baogao.[Report on the Implementation of the State Budget for 1993 and Draft State Budget for
1994], ZHONGGUO RENMIN GONGHEGUO GUOWUYUAN GONGBAO, April 13, 1994, at 245. The same
is true with regards to the state planning report.

477. See, e.g., Guanyu 1993 Nian Guomin Jingji he Shehui Fazhan Jihua Zhixing Qingkuang
yu 1994 Nian Guomin Jingfi he Shehui Fazhan Jihua Caoan de Baogao [Report on the
Implementation of the Plan for China's National Socio-economic Development in 1993 and the
Draft Plan for 1994], ZHONGGUO RENMIN GONGHEGUO GUOWUYUAN GONGBAO, April 13, 1994,
at 23 1.

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

planning report, which is not yet governed by formal legal strictures,0 3

provides data about China's economic and infrastructure development for
the last fiscal year, and details the State's planned developments (and their
costs) for the coming fiscal year.479 Together, these two reports provide a
general overview of the economic condition of the country, the execution
of the last year's budget, and the general shape and goals of the upcoming
year's budget.4" But as noted above, these reports only describe a
preliminary draft of the budget for the upcoming year, they do not describe
the final version of the budget.4 '

One month prior to the Plenary Session, the State Council sends a
summary description of the draft budgetary reports to the Economic and
Finance Committee, and to the other substantive special standing
committees, for preliminary analysis. - After the start of the Plenary
Session, the full budgetary reports are reported-out before the full Plenary
Session by the Minister of Finance (for the state budget report) and the
Chairman of the State Planning Commission (for the state planning
report).S3 At that time, copies of these reports are also distributed to the
delegates, along with corresponding financial statements. 4 In contrast to
legislative drafts, which are received by the delegates a minimum of two
weeks before the start of the Plenary Session, delegates do not receive
advanced copies of the budgetary reports.!35

After the budgetary reports are read out before the Plenary Session,
the delegates retire into delegate groups to vet the reports. Group meetings
are also attended by representatives from the Ministry of Finance and the
State Planning Commission, to whom the delegates may direct questions
and opinions. The main points and concerns raised in these meetings are
recorded by the Economic and Finance Committee. At the same time as

478. In 1951, the central government issued a statement of general principles governing its
handling of the budget and state plans. See YUSUANANJUESUAN CAI0NGTIAOLiE (1951). State
Council practice still tends to conform to these standards. See Wang Min, Quanguo Renmin Daibiao
Dahuo Shencha Guojia Jihua he Yusuan Caoan de Jige Wenti [Several Problems Regarding the
NPC's Deliberations and Approval of the State Plan and National Budget], ZHONGuoFAXUFJ, No.
2, 1991, at 15, 15 [hereinafter Several Problems].

479. See Lui & Cheng, supra note 1, at 109-110.
480. Each of these reports is also supplemented by a financial statement summarizing the

financial data provided in the report. See i&.
481. See notes 492-495 and accompanying text infra.
482. See Budget Law, art. 37; Procedural Rules of the Plenary Session, art. 31.
483. See, e.g., 1994 State Budget Report, supra note 476; 1994 State Planning Report, supra

note 477.
484. See Procedural Rules of the Plenary Session, art. 32.
485. See Several Problems, supra note 478, at 16.

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these group meetings are being held, the Economic and Finance Committee
and other special standing committees also evaluate the full drafts of these
reports, and record their respective comments and recommendations in
committee reports. These committee reports are then sent to the
Economics and Finance Committee.' 6 After the group vetting have
concluded and the committee reports received, the Economic and Finance
Committee drafts two evaluative reports, one for the budget and one for the
plan, outlining the major concerns raised in the vetting and in the various
committees' reports, and proposing various recommendations. These
evaluative reports are then sent to the Presidium, where they are discussed
and voted upon.a"7

The Presidium itself does not have authority to reject the State
Council's budgetary reports. Those reports it must send to the Plenary
Session for vote. The Presidium thus prepares two draft declarations
approving the state budget report and the state planning report. If the
Presidium has approved the Economic and Finance Committee's
recommendations, the draft declaration will incorporate by reference the
relevant draft resolution." 8

The Presidium's draft declarations are then distributed to the delegates
for vote. 89 If the Economic and Finance Committee's evaluative reports
have been incorporated into these declarations, they, too, are distributed to
the delegates with the draft. The Plenary Session then votes, in separate
votes, on each declaration. There is no vetting prior to vote,"g and
delegates have no opportunity to sever their approval of the reports from
their approval of the Finance and Economic Committee's recommendations
the Presidium may have incorporated in the draft declaration."a '

Even if the Economic and Finance Committee's recommendations are
approved by the NPC, the State Council is still free in fact to adopt or

486. See Procedural Rules of the Plenary Session, art. 32; Liu & Cheng, supra note 1, at 109-
110.

487. See Procedural Rules of the Standing Committee, art. 32; Liu & Cheng, supra note 1, at
110.

488. See, e.g., Di Ba Jie Quanguo Renmin Daibiao Dahui Di Er Ci Huiyi [2nd Session of the
8th National People's Congress], Guanyu 1993 Nian Guomin Jingii he Shehui Fazhan Jihua Zhixing
Qingkuang yu 1994 Nian Guomin Jingji he Shehui Fazhan Jihua de Jueyi [Resolution Approving
the Implementation of the Plan for China's National Socio-economic Development in 1993 and the
Plan for China's National Socio-economic Development in 1994], ZHONGGUO RENMIN GONGHEGUO
GUOWUYUAN GONGBAO, April 13, 1994, at 230.

489. See Procedural Rules of the Plenary Session, art. 32.
490. This is common for draft declarations.
491. See Liu & Cheng, supra note I, at 110.

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NPC CONSTITUTIONAL DEVELOPMENT

ignore them as it wishes. In fact the State Council is even free to ignore the
prescriptions contained in its own reports. As noted above, the State
Council's budgetary reports only describe a preliminary version of the
budget. The final draft is not completed until after the Plenary adjourns.
Moreover, even once finalized by the State Council, neither the budget nor
the state plan are regarded as legally binding. The State Council may and
often does decide to deviate significantly from the original budget and/or
plan in the process of implementation.49 2

If the State Council's budget as finalized or as implemented deviates
significantly from what was described in the budgetary reports approved by
the NPC, the State Council must first submit a "supplemental report"
outlining the contemplated deviation to the Standing Committee for
discussion and approval before supplementing the deviation.493 If time is
of the essence, however, the State Council may deviate first and report
after.494 But in no case may the State Council increase the national debt
without prior approval from the NPC Standing Committee.4 95

The State Council is also required to submit several follow-up reports
to the Standing Committee on the implementation of the budgetary plans.
In the third quarter of the fiscal year, the State Council provides to the
Standing Committee a report detailing the progress of the implementation
of the national budget and state plans.49 6 Also, at the end of the fiscal year,
the State Council submits an accounting of the year's budgetary operations
to the Standing Committee.497 Both third-quarter reports and year-end
reports follow the same vetting and approval procedures as do other "work
reports" brought before the Standing Committee.

492. See Cai, supra note 4, at 323 (noting that the State Council's budgetary reports do not
have legal effects and that the State Council is quite willing to deviate from thee plans as approved
by the NPC).

493. See Procedural Rules of the Plenary Session, art. 32. See also Budget Law, art. 15.
494. See Cai, supra note 4, at 324.
495. See Budget Law, art. 55. If the State Council does seek to raise the national debt without

NPC approval, the Standing Committee may cancel or annul the State Council's actions. Obviously,
even without juridical enforcement, the simple threat of NPC annulment could %well be sufficient
to prevent the State Council from seeking unapproved borrowing, since investors would be
extremely reluctant to purchase bonds or debt overshadowed by such a risk.

496. See Liu & Cheng, supra note 1, at 109; see also Budget Law, art. 59.
497. See Budget Law, art. 59. China's fiscal year begins on January 1st. See Budget Law, art.

10.
498. See notes 507-516 and accompanying text infra.

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In addition to these one-year plans, the State Council also reports its
draft five-year economic plans to the Plenary Session.499 These reports are
vetted and approved using the same procedures as those used for the
budgetary reports. However, the State Council is not required to report any
subsequent deviations, its implementation of the five-year plan, nor does
it provide the Standing Committee with any progress reports on this
implementation."°

Obviously, the current procedures for handling the State Council's
budgetary reports to the Plenary Session and follow-up reports to the
Standing Committee do not provide the NPC much opportunity or ability
to directly affect the development and implementation of the national
budget."0 ' But the biggest problems facing the NPC in its efforts to
supervise the national budget are at present structural, not procedural. Due
to China's planned-economy heritage, a significant portion of national
spending is still off-budget. °2 China also lacks both standardized
accounting procedures and rigorous auditing practices. This limits the
amount of financial information the budgetary reports are able to convey
even with regards to on-budget expenditures and income. 3 In addition,
most of the delegates are unfamiliar with basic economic and accounting
concepts, and thus lack the means to adequately evaluate the reports they
are asked to review."

Nevertheless, these reports do provide enough information to allow
the Standing Committee and the Economic and Finance Committee to
monitor the State Council's budgetary activities, and give these committees
real opportunity to detect when these activities might not conform with
legal mandates.0 5 Recently, the Standing Committee has shown that it will
not hesitate to form special investigation committee to investigate

499. As with the budgetary reports, what the NPC delegates vet and approve is not the plan
itself, but a report describing a preliminary version of that plan.

500. See Cai, supra note 4, at 334.
501. See Several Problems, supra note 478 (discussing problems with the budgetary

procedures circa 1991). Delegates also try to influence budgetary policies by direct lobbying of
State Council officials, see, supra note 170, at 6.

502. See Several Problems, supra note 478, at 20; Interview (Economic and Finance
Committee). One NPC staffer estimated that over half of total national spending was off-budget.
Interview (General Office Research Department).

503. Cf. Interview (CSRC) (noting CSRC's difficulties in monitoring financial activities of
listed companies due to lack of standardized accounting practices); Danger and Opportunity, THE
ECONOMIST, April 12, 1997, at 29 (noting China's difficulties in regulating banking activity due to
lack of accounting standards).

504. See Several Problems, supra note 478, at 17.
505. Interview (Economic and Finance Committee).

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NPC CONSTITUTIONAL DEVELOPMENT

situations in which the State Council appears to have flaunted NPC
concerns regarding China's economic policy. These investigations have
indeed captured the attention of the State Council.50V The real strength of
reports is not that they allow the NPC to control the budget directly, but
rather that they inform the NPC when special disciplining measures, such
as special investigations, might be in order.

2. Work Reports

Work reports, which also include the budgetary reports discussed
above, are the principal means by which NPC monitors the activities of the
other constitutional bodies. Constitutional practice now requires annual
work reports be given to the Plenary Session by the State Council, the
Supreme People's Court, the Supreme People's Procurate, and the NPC
Standing Committee." Like the budgetary reports, these other work
reports both review the organ's past year's activities and outline the organ's
major policy initiatives for the upcoming year. Of these, the Premier's
work report is the most important, functioning like the President's State of
the Union Address under the American constitutional system." 3

The Standing Committee also hears work reports. These include
yearly, "specialized work reports" on education, criminal law enforcement,
rationalization of the State-owned sector, and corruption given by selected
ministries and the Supreme People's Court, as well as "interim work
reports" provided by the State Council, ministries or other constitutional
organs in the event of important developments or major policy changes.510

Procedures for approving the work reports of other constitutional
offices are similar for those used to approve the State Council's budgetary
reports, albeit somewhat abbreviated. Unlike the budgetary reports, no
summary descriptions of these reports are sent to Standing Committee for
review being read out to the floor of the Plenary Session or Standing
Committee. After this reading, delegates vet the draft report in delegate
groups, attended by representatives from the presenting organ. During this

506. See sources cited in note 561 infra (discussing special investigation committee formed
to investigate educational spending).

507. See Procedural Rules of the Plenary Session, art. 30.
508. See Cai, supra note 4, at 344.
509. See Procedural Rules of the Standing Committee, art. 22-24. See also Ca, supra note 4,

at 344.
510. See Procedural Rules of the Standing Committee, art. 22-24. See also Cai, supra note 4,

at 344.

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time, the Chairmen's Group or Presidium (depending on whether the report
is being presented to the Standing Committee or the Plenary Session) may
seek comments from the special standing committees, but special standing
committee review is not mandated as it is for the budgetary reports.
Practice has developed, however, in which the opinions and
recommendations of the special standing committees are always solicited
for the work reports presented at the Plenary Session, but not necessarily
for reports presented before the Standing Committee."' After the vetting,
the Chairmen's Group or the Presidium prepares a draft resolution
approving the report, and incorporating any recommendations emanating
from the special standing committees and/or delegate vettings. This
declaration is then submitted to the delegates for approval.51

As with the budgetary reports, the principal function of these other
work reports is to provide the NPC (and in particular the Standing
Committee) information with which to plan future legislative and
supervisory actions.13 The Standing Committee has conducted special
investigations into many of the areas addressed by specialized reports.
These include the areas of education, corruption and the problems facing
state-owned enterprises. 14 The vetting of these reports also gives delegates
some opportunity to affect national policy. For example, the "Strike Hard"
anti-crime campaign of 1996 was apparently occasioned in significant part
by a particular harsh vetting in the Standing Committee of the Ministry of
Public Security's 1995 specialized work report on criminal law
enforcement. 55 As noted above, delegate dissent during the vetting of the
Premier's work report at the 1997 Plenary convinced Premier Li Peng to
add particular policy goals to that report, and high delegate opposition of
the Supreme People's Court's work report that same year encouraged that
Court to begin paying more attention to the problem of juridical
corruption.516

511. Interview (Central Office Research Department). As noted above, normative practice also
requires that the Economic and Finance Committee always has opportunity to review supplemental
budget reports and the 3' Quarter Budgetary Report (both of which are considered work reports)
submitted to the Standing Committee by the State Council.

512. See Liu & Cheng, supra note 1, at 233, 235.
513. See Cm, supra note 4, at 334.
514. See notes 561-567 and accompanying text infra.
515. Interview with legal scholar.
516. See notes 43-45 and accompanying text supra.

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NPC CONSTITUTIONAL DEVELOPMENT

3. Congressional Interrogatories

Supplementing the function of these work reports is the power of
delegates from both the Plenary Session and from the Standing Committee
to submit interrogatories to other governmental organs.51 7 Plenary Session
delegates may only submit interrogatories to the State Council and its
subsidiary organs 18 Standing Committee delegates may also submit
interrogatories to the Supreme People's Procurate and the Supreme People's
Court.

519

Interrogatories from the Plenary Session must be sponsored by one or
more delegate groups or by 30 or more individual delegates 5P The
interrogatory must be in written form and addressed to a specific State
Council organ. It must clearly identify the object of the inquiry.52' The
interrogatory must be approved by the Presidium before it may be sent to
the recipient organ.5 ' The Presidium also decides the form of the recipient
organ's response,523 which may be either oral or in writing. If it is to be an
oral response, the Presidium may direct the response be given either before
a meeting of the Presidium, before the petitioning group, or before one or
more (meeting in joint session) of the special standing committees. If an
oral response is to be given before either the Presidium or the special
standing committees, the sponsors of the petition may participate in that
meeting. When the sponsor is a delegate group, only the Chair of that
group need participate.524 If the oral response is given before a meeting of
either a delegate group or a special standing committee, that group or
committee report the results of that meeting in writing to the Presidium.P5

The Presidium may decide to distribute copies of either the respondent's
written response or, in the event of an oral response, the receiving group's
written report to the full NPC.

517. See PRCCoNSTrrImON, art. 73; NPC Organizational Law, art.17 (Plenary Session), art.
33 (Standing Committee); Procedural Rules of the Plenary Session, ch. 5; Procedural Rules of the
Standing Committee, ch. 4.

518. See Procedural Rules of the Plenary Session, art 42.
519. See Procedural Rules of the Standing Committee, art. 25.
520. See Procedural Rules of the Plenary Session, art. 42.
521. See Procedural Rules of the Plenary Session, art. 42,43.
522. See Procedural Rules of the Plenary Session, art. 44.
523. See Procedural Rules of the Plenary Session, art. 44.
524. See Procedural Rules of the Plenary Session, art. 45.
525. The law does not specify to whom a written response is to be sent. Presumably, it is sent

to the Presidium, who then forwards it to the petitioners.

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If the petitioning delegates or groups are not satisfied with the
respondent's response, they may request that the Presidium allow them to
submit a follow-up interrogatory.526

Procedures for submitting interrogatories in the Standing Committee
are somewhat different. A draft interrogatory may be jointly proposed by
10 or more delegates, or may be proposed by the Chairmen's Group.5" The
proposed draft interrogatory is then vetted by either a relevant special
standing committee or the full Standing Committee, depending on the
decision of the Chairmen's Group.5" If the proposal is vetted before a
special standing committee, the proposal's sponsors may participate in the
discussion. After vetting, the Chairmen's Group then decides whether or
not to present the interrogatory to the appropriate governmental organ.

The Chairmen's Group also decides in what form and to whom the
respondent should address its response.529 The response may be in either
written or oral form. If in oral form, it may be presented before either the
full Standing Committee or before a special standing committee. If the
response is given before a special standing committee, the rules do not
require that the sponsors of the petition participate in that meeting. The
rules do require that the special standing committee prepare a report of that
meeting, and send it to "either the Chairmen's Group or the Standing
Committee."53 If the response is in writing, it must be distributed to the
Standing Committee and the relevant special standing committees. The
Standing Committee's procedures provide no appeal for petitioners
unsatisfied with the answers given by the respondent.

Interrogatories appear to be the least used and least developed of
the NPC's supervisory powers.53 The impotency of this particular power
is well evidenced by the incomplete nature of its attendant procedures. 532

In fact, given the tight scheduling of both the Plenary Session and the
Standing Committee, it is difficult to conceive how such a petition could
actually result in a "hearing"of any sort. Interrogatories, particularly
written interrogatories, are sometimes used by the Standing Committee

526. See Procedural Rules of the Plenary Session, art. 44. The law is silent as to whether
delegates may get a third bite of the apple if they are still dissatisfied after the respondent's second
round of responses.

527. See Procedural Rules of the Standing Committee, art. 24.
528. See Procedural Rules of the Standing Committee, art. 27.
529. See Procedural Rules of the Standing Committee, art. 28.
530. This is probably decided by the Chairmen's Group, but the rules themselves do not say.
531. See Cai, supra note 4, at 336.
532. See id.

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NPC CONSTITUTIONAL DEVELOPMENT

leadership.' 3 But these have been far from effective, due in part to the fact
that other constitutional actors have not been particularly cooperative.p

The NPC is seeking to flush out these procedures in a yet-to-be-
drafted "supervision law." '35 Judging from the current research focus of
several NPC staffers, the NPC appears especially interested in developing
procedures for conducting congressional hearings s 6 The focus of this
research, however, appears to be aimed principally at promoting executive
compliance. The NPC's unresponsiveness to delegate petitions does not
seem likely to be addressed in the foreseeable future.P

This is not to say that such delegate petitions are wholly useless.
Delegate petitions do provide a means through which delegates can
effectively express particular concerns to NPC and/or CCP leadership. For
example, during the 1996 Plenary Session, the Beijing delegate group
apparently sought to petition the State Council for information on the
handling of former Beijing Mayor Chen Xitong's corruption case.53s

Although this petition was not acted upon by the Presidium, the petition did
give notice to the CCP leadership that there was sizeable and organized
interest in this matter, and the CCP shortly thereafter did begin to pay more
attention to this issue.539

4. Investigations

The investigatory committee is currently the most potent weapon in
the NPC's supervisory arsenal. Its development has been sinking. As of
the early 1990s, the NPC could only conduct one or two such investigations
per year.' By 1996, the NPC had over 30 special investigation
committees in operation.-'4

533. Interview (CLA).
534. See Cai, supra note 4, at 336.
535. See generally notes 629-633 and accompanying text infra.
536. Interviews (CLA, General Office Research Department). See also note 47 and

accompanying test supra (noting impromptu hearing organized by Sichuan delegates).
537. See Chairman Qiao Shi Interviewed by 'European Times' supra note 149, at 1

(suggesting some NPC responsiveness to delegate initiatives in general).
538. Interview with WVestern diplomatic personnel.
539. See Graft Trials Loom Over Plenum, HONG KONG STANDARD, June 26, 1996 (Internet

edition).
540. See Tanner, supra note 1, at 93 n.55.
541. See QiAoSHI, WoRKREPORTTOTHE 1997 PLENARY SESSiON.

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The 1982 Constitution gives both the Plenary Session and the
Standing Committee power to form investigation committees. 542  At
present, only the Plenary Session has codified procedures for the formation
and operation of such committees. 3 According to these procedures, the
formation of such a committee may be proposed by either 10% of the
delegate body, three or more delegate groups, or the Presidium.5" If the
proposal originates from the delegates, the Presidium decides whether to
forward this proposal to the Plenary Session for vetting and approval. If the
proposal is forwarded to the Plenary Session, the Presidium also includes
with that proposal a list of nominees for that committee. Committee
members must be selected from among the NPC delegates. Committees
are comprised of a director, several vice directors, and several members.
The committee also has authority to hire its own research staff.545

The Standing Committee may also form investigatory committees.5 46

Its procedures for doing so are not yet codified, but internal guidelines for
forming and administering such committees do exist.547 Despite lack of
formally codified procedures, the Standing Committee has in fact been very
active in this area, forming some 46 such committees from 1994 through
1996. 54'

Regardless of who forms the special investigatory committee is
authorized by the Plenary Session or by the Standing Committee,
responsibility for carrying out the actual investigation will most likely be
delegated by that committee in large part to the Economic and Finance
Committee,549 which appears to be gaining a special competence over
NPC investigations. In fact, Economic and Finance Committee
investigations are becoming increasingly involved. Its recent investigation
into provincial enforcement of environmental protection legislation, for

542. See PRC CONSTrIrrlON, art. 71. See also NPC Organization Law, art. 38.
543. See Procedural Rules of the Plenary Session, ch. 6.
544. These is no report of delegates ever having successfully submitted a such a proposal.

Interview (General Office Research Department).

545. See Procedural Rules of the Plenary Session, art. 46.
546. See PRC CONSTITUTION, art. 71; NPC Organization Law, art. 38.
547. See Chuanguo Renda Changweihui Guanyu Jiaqiang Dui Falu Shishi Qingkuang Jiandu

de Ruogan Guiding (1993). See also Qiao Shi Jieshou Meiguo 'Zhongguo Xinwen *Yuekai Jizhi
Caifang [Qiao Shi Interviewed by American reporters from "China News 1, FAZHI RIBAO [LEGAL
SYSTEM DAILY], Jan. 17, 1997, at 3.

548. Id. at 3.
549. See notes 264-266 and accompanying text supra.

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NP C CONSTITUTIONAL DEVELOPMENT

example, included telephone "hot lines" that people could call to
anonymously report environmental violations. 50

After it completes its investigation, the investigatory committee issues
a final report to the Plenary Session or, if the Plenary Session so delegates,
to the Standing Committee.5 5 The final report is then vetted by the
delegates in group meetings. The investigating committee may also attach
to that report draft declarations recommending particular actions.552 After
vetting, delegates vail vote on these draft declarations. If an investigatory
committee formed by the Plenary Session has been authorized to issue its
final report to the Standing Committee, and if its report contains draft
declarations that have been approved by the Standing Committee, those
approved declarations must be ratified by the Plenary Session.,53

An investigatory committee may also issue interim reports, either on
its own initiative or at the request of either the Standing Committee or the
Plenary Session." These reports may be issued either to the Plenary
Session or to the Standing Committee. Unlike final reports, the Standing
Committee does not need an explicit grant of delegated authority in order
to hear and vet interim report of a committee formed under the auspices of
the Plenary Session. Interim reports may also contain attached draft
declarations. As with draft declarations contained in final reports, the
Plenary Session must approve or otherwise ratify all draft declarations
emanating from a committee it forms 55

In addition to its power to issue draft declaration, an investigatory
committee may also subpoena testimony and materials. If the committee

550. See Liebman Correspondences, supra note 66.
551. See Procedural Rules of the Plenary Session, art. 47.
552. See PRC CONSTITUTION, art. 71; Procedural Rules of the Plenary Session, art. 43.
553. See Procedural Rules of the Plenary Session, art. 47.

In actual fact, however, there is little procedural distinction between being approved by
the Plenary Session and being approved by the Standing Committee and ratified by the Plenary
Session, because the Standing Committee always vets and approves all items appearing on the
Plenary Session's docket. The only real procedural distinction involves reports not containing draft
resolutions. The Standing Committee is only required to forward the draft resolution to the Plenary
Session for ratification. Therefore, if the Standing Committee is delegated authority to hear a final
report, and that report does not contain a draft resolution, or the draft resolution included in that
report is not approved by the Standing Committee, then the act of delegation would deny the Plenary
opportunity to hear the report itself. But since the Standing Committee has power to form such
committees under its own name, which avoids the need to report to the Plenary Session altogether,
this limited avoidance of Plenary review offered by such delegation is of little real utility.

554. See Procedural Rules of the Plenary Session, art. 47.
555. See also note 553 supra (noting that Plenary Session has no opportunity to review interim

report heard by Standing Committee that are not accompanied by approved resolutions).

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subpoenas testimony or material from an individual, that person can
demand his or her participation in the investigation to be kept
confidential.556 But he or she cannot demand that the content of the
subpoenaed materials or testimony to be kept confidential. That decision
is up to the committee itself.51 7

The 1982 Constitution gives the NPC the power to subpoena the State
Council, 58 but the courts at present lack procedures for enforcing such
subpoenas (their authority to enforce such procedures is also open to
question, since there is no "contempt of congress" crime in China's
criminal laws). If an organ refuses to comply with a committee subpoena,
that committee's only real recourse is to introduce a draft resolution to the
floor of the NPC calling for the NPC itself to discipline the offending organ
or actor in some way.559 Despite the hortatory nature of this power, persons
involved in such investigations report that gathering necessary materials
and information is not an overwhelming problem. 6°

As noted above, the investigatory committee is currently the most
effective one among the NPC's supervisory activities. Recent
investigations have brought to public attention issues of political
performance that otherwise would have avoided scrutiny. For example, in
May of 1996, the NPC formed an investigatory committee to look into the
implementation of the recently passed Education Law, and in particular,
into the Standing Council's educational spending. 6' The low level of
educational spending provided for by that law (which had been drafted by

556. It is unclear whether such a request protects against possible prosecution.
557. This can be requested by the subpoenaed entity, but not demanded.
558. See PRC CONSTITUTION, art. 73; Procedural Rules of the Plenary Session, art. 47;

Chuanguo Renda Changweihui Guanyu Jiaqiang Dui Falu Shishi Qingkuang Jiandu de Ruogan
Guiding (1993).

559. See Cai, supra note 4, at 339.
560. Interview (Economic and Finance Committee). According to these staffers, if a

subpoenaed organ is not particularly cooperative, such committees can generally get the information
they need from other sources. In investigating local compliance with environmental protection
legislation, for example, the NPC's investigatory committee set up and publicized a hot-line number
through which persons could anonymously report polluters. See Liebman Correspondences, supra
note 66. This was to allow investigators to circumvented protectionist efforts by local officials to
obstruct that committee's investigations.

561. See Jiaoyu Fa Zhifa Jiancha Chuanmian Zhankai [Investigation into Implementation of
the Education Law Fully Underway], FAzHI RIBAO [LEGAL SYSTEM DAILY], May 31, 1996, at 1.
One of the tasks charged to that committee was to investigate why state spending on education fell
to 2.68% of GNP in 1994 to 2.4% in 1995, despite the State Council's stated aim of increasing
educational spending to 4% by the year 2000. See id. See also Abuse of Education Cash Sparks
Inquiry, SOUTH CHINA MORNING POST, June 1, 1996, at 8 [hereinafter Abuse of Education Cash
Sparks Inquiry].

[I1:1



NPC CONSTITUTIONAL DEVELOPMENT

the State Council) had been of major concern to the NPC delegates during
vetting that law at the 1995 Plenary Session. 62 In order to allay these
concerns, the State Council agreed to increase educational spending from
2.68% of GNP to 4% of GNP by 200063 By 1996, however, evidence
suggested that educational spending had actually fallen to 2.4% of GNP! 4

The investigatory committee's interim report to the Standing Committee
was particularly critical of the State Council's educational spending
policies, and this encouraged the Chairman of the State Education
Commission to publicly to criticize public fiscal policy in this area 5'

Other investigations conducted by the NPC have produced similar
effects. For example, the NPC's investigation into implementation of the
Agriculture Law resulted in a public vetting by the 1997 NPC Plenary
Session of the State Council's failure to protect rural farmers from illegal
taxes and fees imposed by local governments. The 1997 Plenary Session
also called on the State Council to draft implementing regulations
protecting peasants from these taxes and fees 56 As in the case of the
education investigation, this investigation brought significant press
coverage to this issue. Ultimately, the delegates' articulated concerns
persuaded Premier Li Peng to amend his work report to include specific
actions that the State Council would undertake in 1997 to address this
matter 67

The NPC's ability to successfully pursue such investigations also has
important implications for China's overall constitutional development.
Such investigations are the first in China to focus on investigating and

562. See Education Gradualism, SOUTH CHINA MORNING POST, March 18, 1995, at 6.
563. See note 561 supra.
564. Abuse of Education Cash Sparks Inquiry, supra note 561, at 8. This drop in educational

spending was latter acknowledged by the State Council. See Education Budget Still on the Decline,
SOUTH CHINA MORNING POST, Sept. 28, 1996, at 6.

565. See Rare Protest Made Against Slipping Education Budget, SOUTH CHINAMONIGPost,
January 16, 1997 (Internet edition).

566. See Renda Wu CiHuiyi Zhuxituan Juxing Di San CiHuiyi [Presidiun for the 5 meeting
of the NPC Holds its Third Meeting], FAzHi RIBAO [LEGAL SYSTEM% DAILY], March 14, 1997, at I
(noting vetting of investigatory committee's report); Respect for Law Urged in Country, SOUTH
CHINA MORNINGPOST, February 28, 1997, at 9 (same). The problem of peasants' tax burdens has
indeed been publically recognized in China even prior to the NPC's investigatory report. However,
the NPC's report was the first to specifically blame the State Council and to demand splecific action.
See Report condemns state for poorfarming effort, SOUTH CHINA MORNING POST, March 10, 1997
(Internet edition) (noting reports direct criticism of the government); Legal System for Economy
'Top Priority'- SOUTH CHINA MORNING POST, March 11, 1997 (Internet edition) (same).

567. See Prime Minister's Work Report Amended, SOUTH CHINA MORNING POST, March 15,
1997 (Internet edition).

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disciplining coordinate political institutions that are not subordinate to the
investigating institution. Traditionally, investigations of institutional
behavior have been conducted by the CCP, and relied on vertical
relationships within the party structure for information-gathering and
discipline. NPC investigations, by contrast, do not depend on such
relationships. Instead, they use adverse publicity to stimulate horizontal
coalition-building within the political and constitutional environment. The
disassociation of political power from vertical dependencies is an essential
precondition of constitutional government. 68 And in this aspect- as in
many other aspects of China's constitutional development - the NPC
seems to be leading the way.

5. Appointment and Removal Procedures

Placement of persons to and removal of persons from high
constitutional office are the constitutional functions over which the NPC
has the least control. This is because these are the NPC functions that most
overlap with the CCP's core institutional responsibility: overseeing the
nomenklatura system.569 For this reason, the procedures governing this
function are extremely vague and ill-formed.Y7 Nevertheless, delegate
development has left its mark in this area as well, and has caused the CCP
to consider modifying its own selection procedures to give NPC delegates
more input into its choice of candidates.

The PRC Constitution describes two processes by which the NPC
Plenary Session places persons in high constitutional office: election and
confirmation. The distinction is based on who formally nominates the
candidates:" 7 candidates for elected position are formally nominated by the
NPC Presidium;... candidates presented for confirmation are nominally
nominated by organs outside the NPC.573

568. See Putman, supra note 27, at 174 (noting how dependency on vertical relationship
inhibits the development of social trust and cooperation).

569. See Tanner, supra note 1, at 60.
570. See Cai, supra note 4, at 301-302.
571. This list is actually drawn up by the CCP, the Presidium's role in the creating of this list

is negligible. See id. at 306-307; Liu & Cheng, supra note 1, at 177-179.
572. See generally NPC Organization Law, art. 13; Procedural Rules of the Plenary Session,

art. 34.
573. See generally NPC Organization Law, art. 14.

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NPC CONSTITUTIONAL DEVELOPMENT

Positions elected by the NPC include the President and Vice-President
of the PRC;54 the Chair of the Central Military Commission; s the
Chairman, General Secretary and members of the Standing Committee;576

the directors of the NPC's special standing committees;' and the
presidents of the Supreme People's Procurate and Supreme People's
CourtY These positions are elected at the first Plenary Session of each
new NPC term. At the beginning of that session, the Presidium releases an
informal list of proposed nominees, along with background information on
each candidate, to the Plenary Session for vetting." NPC commentators
have publically complained that this background information is generally
inadequate to allow the delegates to make informed judgements.EO
Reportedly, many delegates rebelled against the nomination of Jiang
Chunyun to Vice Premier primarily because they were not satisfied with the
quality of background information they received.58 After this preliminary
vetting, the Presidium then may then revise this list before submitting its
formal nominations to the Plenary Session in the form of a series of draft
declarations.5" These declarations are submitted directly for vote. There
is no follow-up vetting. Delegates may vote for or against a nominee, or
may vote to abstain.58 3 A nominee is elected by affirmative vote of a
simple majority of the full delegate body.5

The other method through which the Plenary Session places persons
in high office is through confirmation proceedings. During confirmation
proceedings, the nominee is presented to the NPC not by the Presidium but
by an organ outside the NPC. Positions requiring confirmation include the

574. See PRC Const, art. 62(4).
575. See PRC CONsTITIrnON, art. 62(6).
576. See NPC Organizational Law, art. 13.
577. See NPC Organization Law, art. 13.
578. See PRC CONSTITUTON, art. 62 (7), (8).
579. See NPC Organization Law, art. 13; Procedural Rules of the Plenary Session, art. 34.
580. See, e.g., Cai, supra note 4, at 311.
581. Interview with Sarah Lawrence, reporter for US News & World Report.
582. See generally Cal, supra note 4, at 301-302; Liu & Cheng, supra note 1, at 172.173 With

the exception of delegates to the Standing Committee, the Presidium only nominates one candidate
for each position available. Some regional congresses have started holding competitive elections
for the position of Standing Committee chairman and other high offices within the region. See
generally Ca, supra note 4, at 301-302.

583. See Cai, supra note 4, at 301-302. Write-in votes are not allowed. See Liu & Cheng,
supra note 1, at 172-73.

584. See Procedural Rules of the Plenary Session, art. 36. For this reason, an abstention has
the same effect as a nay vote.

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COLUMBIA JOURNAL OFASIANL4W

Premier and Vice Premiers (nominated by the President of the PRC),5 85 the
members of the Central Military Commission (nominated by the Chair of
that Commission),5 86 and the members and ministers of the State Council
(nominated by the Premier). 5" The Standing Committee also confirms
appointments to a variety of other, lesser constitutional offices.5 88 The
procedures for confirming a candidate are the same as those for electing a
candidate.589  As with elections, nominees are confirmed by a simple
majority of the full delegate body.

As NPC commentators and staff have publically acknowledged and
criticized, 5  regardless of whether the formal nomination is placed before
the NPC by the Presidium for election or by some other constitutional
organ for confirmation, the actual selection process is dominated by the

585. See PRC CONSTITUTION, art. 62(4).
586. See PRC CONSTITUTnON, art. 62(6).
587. See PRC CONSTIrTUTON, art. 62(5). See also generally NPC Organizational Law, art. 14;

Procedural Rules of the Plenary Session, art. 34.
588. These include the Vice Presidents and judges of the Supreme People's Court and the

President of the military courts, as nominated by the President of the Supreme People's Court, see
PRC CoNsTrruTION, art. 67(11); and the Vice Presidents and procurators of the Supreme People's
Procurate, and the Military Procurator-General, as nominated by the President of the Supreme
People's Procuratorate, see PRC CONSTITUTION, art. 67(12). The Standing Committee may also
confirm State Council nominations for ministers and vice-ministers for vacancies occuring when
the Plenary Session is not in session. See PRC CONSTrrurLON, art. 67(9). See also generally, NPC
Organizational Law, art. 32.

589. See Cai, supra note 4, at 301-302; Liu & Cheng, supra note 1, at 173. There are some
minor differences, however. In contrast to the procedures for elections, the procedures for
confirmations are not codified. See, e.g., NPC Organizational Law, art. 14. Also, if a candidate for
confirmation is not approved, the submitting organ may submit another candidate for that same
position during the same NPC session. If a candidate for election is not elected, however, that
position goes vacant until the next NPC Plenary Session. See Cai, supra note 4, at 302. This
difference would appear to be moot, however, it is unforeseeable at present that a candidate would
be rejected. See id.

One commentator also reports that delegates may not vote to abstain during confirmation
proceedings. See Cai, supra note 4, at 302. This is contradicted, however, by a report in the South
China Morning Post. See, e.g., NPC Vote Snub for Jiang Ally, supra note 40, at 1 (noting that 391
delegates "lodged abstention ballots" on vote confirming Jiang Chunyun as Vice Premier).

Standing Committee confirmation procedures are set out in Changweihui Renshi Renmian
Banfa. These procedures are functionally identical to those used by the Plenary Session. See, e.g.,
Cai, supra note 4, at 304-305. The only major difference is that the Standing Committee will in
certain circumstances confirm nomination in slates (unless the delegates object), whereas he Plenary
Session always confirms nominations individually. See id. at 305.

590. See, e.g., id. at 300-301, 306-311; Liu & Cheng, supra note 1, at 177-179.

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CCP.'9 Nevertheless, as evidenced by the confirmation difficulties of
Jiang Chunyun, NPC delegates are showing increasing independence in this
area," and this has caused the CCP to reconsider the way it makes its
selections 93 Traditional practice, as noted above, has been for the CCP to
introduce its nominee choices at the same NPC session in which they are
to be elected or confirmed. Because these choices have already been
formalized by the party apparatus before they can be vetted by the NPC
delegates, the CCP's ability to take into account delegate concerns is
limited. Following the large NPC opposition to the nomination of Jiang
Chunyan for Vice-Premier in 1995,5' the CCP considered releasing to the
1997 Plenary (for informal discussion) a list of some of the persons it was
considering for nomination in 1998. This would have allowed NPC
delegates to vet potential candidates before these candidates were formally
selected by the party apparatus. 595 The death of Deng Xiaoping, and the
resulting in-fighting, appears to have prevented this experiment from taking
place, however.

With regards to the removal of persons from constitutional office, only
the Plenary Session has such power. 9 The officers subject to this power
include the President and Vice President of the PRC; any member of the
Standing Committee, the State Council, or the Central Military
Commission; and the Presidents of the Supreme People's Court and
Supreme People's Procurate. Motions to remove may be sponsored by the
Presidium, by three or more delegate groups, or by 10% or more of the

591. Candidates for both elections and confirmations are determined by the CCP and then
forwarded to formal nominating organ. See Cal, supra note 4, at 300-301. With the exception of
candidates for the NPC Standing Committee, the party tenders only one candidate is tendered for
each position. Some provincial and lower level People's Congresses, however, are beginning to
employ competitive elections for top legislative and executive posts. See id. at 302.

592. See id. at 302. See, e.g., Deputies Accuse Party, supra note 52, at 1 (strong delegate
opposition to Jiang Chunyun vote); NPC Vote SnubforJiang Ally, supra note 40, at 1 (same)

593. At the provincial level and lower, the regional party apparatus's internal selection process
frequently involves significant consultation between that apparatus and the local congress.
Disagreements between the two are resolved not by the local party organ itself, but by the party
apparatus at the next higher level, meaning that the local party apparatus can no longer dictate a
particular candidate to the local congress. Similar consultations occur at the central level with
regards to the CCP's selections to the NPC Chairmen's Group and to the Standing Committee. See
generally Cai, supra note 4, at 300-301.

594. See NPC Vote Snubfor Jiang Ally, supra note 40. at 1.
595. See Beijing to Replace 20 Ministers in Reshuffle, SOUTH CHINA MORNING POsT, January

14, 1997 (Internet edition). Interview with former Senator John Danforth.
596. See PRC CONsTITtmoN, art. 63; NPC Organizational Law, art. 15; Procedural Rules of

the Plenary Session, art. 39. Many provincial standing committees have power of removal, but the
Standing Committee of the NPC does not. See Cai, supra note 4, at 341.

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delegate body.597 Motions must provide reason for removal, but
commentators are in disagreement over whether removal need be for
cause.

598

Removal motions are submitted to the Presidium. The Presidium
decides whether to reject the motion, include the motion on the current
session's agenda, or request instead that the Plenary Session form an
investigatory committee to evaluate and report upon the proposed removal.
If the Presidium decides to forward a request to either remove or
investigate to the delegate body, it draws up a draft declaration detailing
that request, which is then vetted by the delegates in group meetings
(attended by representatives of the motion's sponsors). After this vetting,
the draft declaration is voted upon. The declaration passes with the
affirmative vote of more than half of the full delegate body. If the
Presidium forms an investigatory committee to investigate the proposal for
removal, that committee must issue a report discussing its findings to the
next Plenary Session. After receiving and vetting that report, that session
will then vote on the removal. Removal is effected upon affirmative vote
of over half of the full delegate body.5 99

There is no record of the NPC ever having even considered a proposal
to remove. However, numerous provincial people's congresses have
developed more robust procedures for removal, which include providing
the Standing Committee with the power of removal, and extending the
power of removal to a wider array of governmental officials.' On at least
one occasion, a provincial people's congress (that of Hubei) has in fact
removed persons from high office on its own initiative. 601

6. Supervising the Courts

The 1982 Constitution also gives the Standing Committee the general
power to "supervise" other constitutional organs.6' At present, the only
constitutional organ subject to such supervision on a systemic basis is the
judiciary. The power to supervise the courts has been interpreted as giving

597. See NPC Organizational Law, art. 15; Procedural Rules of the Plenary Session, art. 39.
598. See Cai, supra note 4, at 314. In fact, the only report case of a People's Congress

removing a governmental official involved removal without cause. See id. at 314 n.1.
599. See NPC Organizational Law, art. 15; Procedural Rules of the Plenary Session, art. 39.

See generally Cai, supra note 4, at 340-341; Liu & Cheng, supra note 1, at 175-176.
600. See Cai, supra note 4, at 341.
601. See id. at 341 n.1.
602. See PRC CONSTrrTUION, art. 67 (6).

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NPC CONSTITUTIONAL DEVELOPMENT

the NPC the authority to supervise the courts' handling of particular
cases.' 3 However, this does not allow the Standing Committee to
substitute its decision for that of the court (as has been suggested by some
Western commentators). Rather, it allows the Standing Committee to
petition the Supreme People's Court, or some lower court, to review the
handling of a particular case for procedural errors or errors of legal
interpretation. 604

The NPC actually "supervises" thousands of such cases each year.
Most of the time, such "supervision" consists simply of asking a particular
court to look into a complaint sent to the NPC by a delegate or an ordinary
citizen. Each year the NPC receives over 10,000 complaints alleging
improper judicial handling of particular cases.6 5 These complaints are
routinely forwarded by the NPC's Internal and Judicial Affairs Committee
to the Supreme People's Court.65 According to the Supreme People's
Court, the vast majority of these complaints are unfounded.6

The NPC has developed guidelines for court supervision. These
guidelines derive from two cases in the late 1980s in which a higher-level
people's congress successfully corrected an improper criminal conviction.
In the first case, the NPC Standing Committee organized an investigatory
committee to look into a complaint regarding the handling of a case in
Liaoning in which three attorneys had been convicted of"concealment ' 603

and sentenced to imprisonment. That committee concluded that there was
no evidence that those lawyers had in fact done anything outside the normal
course of their duties. The NPC Standing Committee then asked a
Liaoning court to review the matter, and the sentences were ultimately
overturned by the court.60

603. The same power allows the Standing Committee to investigate the procuracy's handling
of particular cases as well. See Cai, supra note 4. at 325; Liu & Cheng, supra note 1, at 113.
Procedures for supervising the procuracy have not been developed.

604. The Standing Committee's power in this area is thus somewhat akin to that enjoyed by
the British House of Lords, except that the NPC may not actually try cases, as may the House of
Lords. See E.C.S. WADE & A.W. BRADLEY, CONsTITuriONAL AND AD.tNtSrRATiV E LAW 369-70
(11th ed. 1993).

605. See Liu & Cheng, supra note 1, at 113.
606. See notes 614-615 and accompanying text infra.
607. See Finder, supra note 171, at 152-53.
608. 'Baobi fanzui."
609. See Liu & Cheng, supra note 1, at 113. The year of this case is not given, although the

procedures used suggest it occurred prior to the formation of the Internal and Judicial Affairs
Committee in 1987.

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The second case occurred in Shanghai in the late 1980s. It involved
a Mr. Yu, who in 1987 had been sentenced to a two-year suspended death
sentence by a lower Shanghai court for an intentional murder. Mr. Yu tried
to appeal his conviction, but all his petitions for appeal were returned
unopened. Through his relatives, he petitioned the Shanghai People's
Congress to look into the case.610  The Shanghai People's Congress
investigated the case, concluded that the evidence was insufficient to justify
conviction, and asked the Shanghai Intermediate Court to review the case.
In 1989, Mr. Yu was retried, and found innocent.6 1'

From these precedents, the Standing Committee in 1989 codified
guidelines for its juridical supervision. 2 These guidelines articulate three
fundamental limitations of the NPC's power in this area. First, the NPC
must wait until a case is completed before beginning its own investigations:
it may not intervene or seek to influence ongoing judicial proceedings.
Second, the NPC's supervision is limited to supervision over a court's
handling ofjudicial procedure and legal interpretation: it may not intervene
behavior merely because it feels the court came up with the wrong verdict.
Finally, if the NPC finds that the trial involved procedural irregularities, or
that the decision was founded on a misreading of the law, it may only ask
that the court or one of its superior courts retry or review the case: it may
not substitute its own judgement for that of the courts by issuing pardons
or bills of attainder.613

These 1989 guidelines also set out the procedures to be followed in
supervising judicial activity. All complaints regarding legal cases are
forwarded to the Internal and Judicial Affairs Committee. If that
committee feels the complaint has possible merit, it will forward a copy of
the complaint to either the offending court or one of that court's superior
courts, along with a request that the matter be looked into. The Internal
and Judicial Affairs Committee may also issue such requests sui sponte.1 4

If the Internal and Judicial Affairs Committee feels that the behavior
complained of is particularly serious, it may also request that the petitioned
court reports the finding of its review and any corrective responses to the
committee. If the Internal and Judicial Affairs Committee is not satisfied

610. The petition, which was delivered by one of his relatives, consisted of one word,
"injustice" ["yuan"] written in blood on a scrap of paper. See Liu & Cheng, supra note 1, at 113.

611. See id.
612. See Qi Jie Quanguo Renda Changweihui Gongzuo Youdian (1989), discussed in Liu &

Cheng, supra note 1, at 113.
613. See generally Liu& Cheng, supra note 1, at 113-14; See also Cai, supra note 4, at 327-28.
614. See generally Cai, supra note 4, at 325. See also Finder, supra note 171, at 152-53.

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NPC CONSTITUTIONAL DEVELOPMENT

with the court's report or response, it may subpoena additional materials
and/or testimony from court personnel. It may also ask one of that court's
superior courts to review, correct and report on the lower court's handling
of the case. 615

If still unsatisfied, the Judicial Affairs Committee may then conduct
its own investigation into the courts' handling of the case. Alternatively,
it may ask the Standing Committee to form an investigatory committee to
investigate the handling of that case. Regardless of who conducts the
investigation, the results of that investigation are reported to the Standing
Committee. If the investigation reveals serious, unaddressed errors, the
investigating body may attach to its report a draft declaration demanding
that a particular court review or retry the case and reports its actions to the
Standing Committee. That draft declaration would then be considered and
voted upon by the floor of the Standing Committee.61 6 If the Standing
Committee passes the declaration, and the petitioned court or courts fail to
address the error to the satisfaction of the Standing Committee, the
Standing Committee - acting either on its ovn or on recommendation
from the Internal and Judicial Affairs Committee - may institute removal
proceedings against uncooperative judicial personnel. 617

In addition to such case-specific supervision, the NPC also supervises
the courts by requiring that the Supreme People's Court (and the Supreme
People's Procurate) issues interim work reports to the NPC whenever a
major anti-crime campaign is undertaken, a particularly influential case is
decided, or an important problem arises involving the judicial process or
judicial system. The Internal and Judicial Affairs Committee and other
special standing committees may also request reports from the Supreme
People's Court on any other "matter of public concern." 618

7. Other Issues

As noted above, one of the biggest obstacles to the greater
institutional effectiveness of the NPC has traditionally been the ability of
the State Council to ignore with laws and resolutions passed by the NPC.

615. See generally Cai, supra note 4, at 325. The appeal need not be to the direct superior of
the offending court. The Committee may, if it chooses, sldp levels, appealing the handling of a court
case, for example, directly to the Supreme People's Court.

616. See also notes 542-560 and accompanying text supra (discussing procedures for
conducting special investigations).

617. See generally Cai, supra note 4, at 325.
618. See id at 325. This form of supervision was instituted in the early to mid 1990s.

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This problem is exacerbated by the fact that the overwhelming bulk of
China's legal corpus derives from administrative and regional regulations.
Developing greater and more effective supervision of executive behavior
is thus one of the top institutional priorities of the NPC. The NPC's efforts
in this area have focused primarily on four issues. These include
developing a set of laws rationalizing administrative behavior, developing
procedures for reviewing provincial and administrative legislation for
conformity with statutory or constitutional norms (a "legislation law"),
creating a comprehensive legal framework rationalizing and strengthening
the NPC's own supervisory procedures (a "supervision law"), and
clarifying the extent to which the NPC might be able to supervise the
activities of the CCP.

a. Rationalizing administrative behavior

The NPC's principal response to date to the problem of administrative
non-compliance has been to develop laws giving private right of action to
persons injured by executive transgressions. These include the
Administrative Litigation Law, passed in 1989, and the State Compensation
Law, passed in 1994. In addition, the NPC has been working to codify
various aspects of administrative procedure. These include the
Administrative Sanctions Law, passed by the 1996 Plenary Session which
sets the parameters under which administrative organs could impose
monetary sanctions, and the "Administrative Supervision Law," which
regulates internal investigations by executive organs.619

The effectiveness of this response is hindered, however, by China's
weak court system, whose scales are frequently more sensitive to political
and financial influence than to matters of justice (particularly at the lower
levels).62 0 Nevertheless, this framework can and does have effect. The
public interest law center of Wuhan University reported that in 1996 it won
over 60% of the administrative litigation cases it handled.62' Moreover, the

619. See Chuanguo Renda Falu Weiyuanhui Xiang Changweihui Baogao You guan Falu
Caoan Shenyi Jieguo he Xiugai Yijian [NPC Law Committee Reports to Standing Committee on
Results of Deliberations and Opinions on Revision of Draft Laws], FAZHI RIBAO [LEGAL SYSTEM
DAILY], December 25, 1996, at 2; See also Anti-Graft Law Delayed by Row on Name, SOUTH CHINA
MORNING POST, December 31, 1996 (Internet edition) (discussing some of the debate surrounding
this law).

620. See, e.g., Chen Youxi, supra note 144 (discussing the obstacles to the administrative
litigation law's effectiveness).

621. Interview (Wuhan University).

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NPC CONSTITUTIONAL DEVELOPMENT

threat of litigation also appears to discipline administrative behavior
somewhat.62

b. Supervising provincial and administrative
legislation: the draft "Legislation Law"

Even with the administrative procedure and litigation laws discussed
above, the courts do not have authority to annul administrative or
provincial regulations. That power vests with the Standing Committee.P
However, the NPC still lacks procedures for realizing that power.62 4 The
NPC is currently working on a draft of 'Legislation Law [Lifa Fa]" setting
out specific procedures for reviewing and annulling administrative and
provincial legislation. One of the more common suggestions in this area
involves establishing a special work commission, with status equal to that
of the CLA, to review such legislation.6  Since 1990, at least two drafts of
a legislation law have been developed, but neither reached the floor of the
Standing Committee (due in part to significant political opposition from the
State Council, the provinces, and their allies in the CCP).62 6 Since 1995,
the NPC's efforts to produce a legislation law per se appear to have lost
steam. Instead, the NPC seems to be folding the principal elements of that
law into a broader draft of "supervision law" discussed below.6V

622. Interview (CSRC); interview with legal scholar. Cf. Dissident Gets 7 Years for
'Hooliganism,,' Sot- CHINAMORNING POST, October 7, 1996, at7 (stating that'authorities were
keen to clear up cases concerning political dissidents before the amended Criminal Procedural Law
... requirets] both the police and prosecution to follow more stringent procedures in detaining and
charging activists ....).

623. See PRC CONSTITUTION, art. 67 (7), (8). Cf. note 435 supra citing precedents for this
view in Western legal thought.

624. See Ca, supra note 4, at 331-32; Liu & Cheng, supra note 1, at 110-13.
625. See Liu & Cheng, supra note 1, at 119-20 (proposing a constitutional court under the

Standing Committee). See generally Cai, Constitutional Supervision and Interpretation in the
People's Republic of China, 9 J. CHINEsE L. 219, 238-243 (1995) (recounting history of this
proposal).

626. One was drafted by a drafting group at China University of Politics and Law, and the
other by a drafting group at the Chinese Academy of Social Sciences. Interviews (drafting groups).

627. Interview (General Office Research Department). In fact, the distinction between these
two legislative proposals has always been somewhat blurred. See, eg., Cai, supra note 409, at 242-
243. In 1994, when the draft legislation law seemed likely to reach the floor of the Standing
Committee, the drafting group incorporated into that draft numerous provisions from the then stalled
draft supervision law. Interview (consultant to legislative law drafting group).

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c. Rationalizing the NPC's own supervisory
procedures: the draft "Supervision Law"

The incomplete and ill-formed nature of many of the NPC's
supervisory procedures obviously limits the implementation of the NPC's
various supervisory powers. Many provincial congresses have adopted
"supervision laws Uiandu fa]" to strengthen and rationalize the scope and
exercise of their own supervision over the provincial executive.628 Since
1989, the NPC has been working on similar legislation, generally using
these provincial laws as a model. 629 The anticipated rational Supervision
Law is intended to reinforce and rationalize many of the NPC's existing
supervisory processes, and could also introduce new procedures, such as
those for holding investigatory hearings.630

As might be expected, however, this legislative intiative has faced
considerable opposition from the State Council and its allies in the CCP.
At least two drafting groups for this law have been formed, but neither was
able to get a draft to the floor of the Standing Committee. Political
momentum for such legislation appeared to peter out in the early 1990s,
but since 1995 NPC delegates have been increasingly vocal in calling for
such legislation.631 In fall of 1996, the Chairmen's Group forms a drafting
committee to help jump start the development of this law. This committee
is comprised primarily of department heads from the General Office
Research Department and the CLA, and thus has more political weight

628. These include Shandong, Heilongjiang, Hunan, Anhui, Henan, Gansu, Zhejiang, Jiangsu,
Shanghai and Guangdong. According to staffers in the General Office Research Department, that
of Gansu is the most developed. Interview (General Office Research Department).

629. See, e.g., Gu Dezu, Dui Renmin Jiqi Changweihui Ji Zhong youxiao Jiandu Xingshi de
Tantao [Inquiry into Several Effective Methods of Supervision by People's Congresses and Their
Respective Standing Committees], FAXUE YANJIu, No. 1, 1991, at 20 (suggesting particular
provincial practices that might be profitably adopted by the NPC); sources cited in note 88 supra.

630. Interviews (CLA; General Office Research Department).
631. See, e.g., Wei Yifa Zhiguo Jianshe Fazhi Guojia Xianji [Suggestions for Establishing a

National Legal Systemfora Nation of Law), FAZHI RIBAO [LEGAL SYSTEM DAILY], March 17, 1996
at 1 (reporting on suggestions from 8 NPC delegates on developing NPC supervision); Nuli Tansuo
Jiaqiang Falu Jiandu de Xin Tujing [Effectively Exploring New Means for Increasing Supervision
of the Laws],FAzHI RIBAO [LEGAL SYSTEM DAILY], March 12, 1996, at 8 (reporting on several
delegate proposals for developing more effective NPC supervision); Deputies Accuse Party, supra
note 52, at I (Guangdong deputies launch "scathing attack" on NPC leaders in part for failing to
develop a supervision law). Cf. Renzhen Luxing Zhineng, Jiji Canzheng Yizheng [Conscientiously
Carry Out One's Duties, Enthusiastically Participate and Contribute to Government], FAZHI RIBAO
[LEGAL SYSTEM DAILY], March 9, 1996, at 2 (summary of several CPPCC delegates' calls for
greater 'democratic' supervision).

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NPC CONSTITUTIONAL DEVELOPMENT

behind it than did the earlier drafting groups (which consisted primarily of
academics).632

However, as discussed above, even without such a comprehensive
legal framework, considerable piecemeal development of procedural and
legal standards for supervision has already occurred.633 The NPC's
increasingly professional and assertive delegate body has also begun to pay
dividends in this area.64 For these reasons, the need for such a supervision
law is probably not as great now as it once was, and its passage could well
have only ancillary effects on the continued development of the NPC's
supervisory competence.

d. Supervising the CCP

Related to the NPC's general supervision over the executive branch
is the question of whether and to what extent it has authority to also
supervise the CCP.635 Technically, the NPC's supervision is limited to
supervision over constitutional organs.636 However, NPC scholars and
other commentators have argued that since the CCP's role in constitutional
operations is articulated in the 1982 Constitution itself, this makes the CCP
a quasi-constitution organ subject to the NPC's supervision. 637 According
to these proponents, while the NPC cannot supervise CCP policy decisions
or its nomenklatura system, it may and should supervise the CCP's
compliance with national laws and regulations. 63

632. Interview (special drafting committee).
633. These include, for example, reporting provisions the National Budget Law, development

of internal procedures for conducting investigations, and refinements on procedures for vetting
nominations for high public office.

634. See notes 37-52 and accompanying text supra (noting effects of development of delegate
body).

635. See, e.g. Pu Cengwan, Lun Qianghua Renmin Daibiao Dahid 7iddu Yishi [Ideas on
Strengthening the People's Congresses), ZMiErNG YU FALU, No. 6, 1994, at 12, 14-15 (discussing
supervision implications caused by close relationship between the party and the State Council).

636. The Chinese term is 'guojiajiguan [state organs].'
637.- See, e.g, Yu Ziqing, Yetan Dang Lingdao Renmin Yu Renmin Jiandu Dang [On the Party

Leads the People and the People Supervise the Party), FAXUF, No. 5, 1996, at 5,5.
638. See, e.g., Ilu &Cheng, supra note 1, at 121-123. Cf. Qiao Stresses Needfor NPCto be

Subordinate to Party, Sourm CHMNA MORNING POST, December 16, 1996 (Internet edition)
(misleadingly entitled interview of Chairman of the NPC Standing Committee in vwhich he discues
the general jurisdictional boundaries between the CCP and the NPC and noting that even the party
must obey the laws and the 1982 Constitution) [hereinafter Qiao Stresses Need for NPC to Be
Subordinate to Party].

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While this discussion has yet to progress beyond the realm of
speculative theory (no one has suggested as to how such supervision might
be effectuated in practice), it nevertheless has provoked some public debate
in China.639 Many see such supervision as a means to check efforts by CCP
officials to illegally interfere in the decisions or activities of other
constitutional entities. The notion that the legitimate authority of the CCP
is subject to constitutional limits is universally recognized even by the CCP
itself.64° As a normative matter, it is clear that the Party cannot, for
example, legitimately tell a court how to
decide a particular case or demand that a governmental organ abrogates
legal procedures.64 On at least two occasions, a people's congress has
successfully reminded the CCP of the 1982 Constitution's limits on party
authority when the party sought to trespass on that congress's own
constitutional mandate. One such occasion occurred in 1993, when the
CCP sought to introduce a constitutional amendment directly to the floor
of the NPC.6 2 The other occurred in 1992, when the CCP sought to
transfer three provincial governors without seeking approvals from the
respective provincial people's congresses. 6 3

D. Meeting Procedures

1. Meeting Procedures for the Standing Committee

The Standing Committee meets in session once every two months.
Prior to each session, a draft agenda for that session is drawn up by the
Secretary's Group (with assistance from the General Office Research

639. See, e.g., Liu & Cheng, supra note 1, at 121-123; Cai, supra note 4, at 319, 354; Yu
Ziqing, supra note 638; Xiao Li, Dang Lingdao Renmin Yu Renmin Jiandu Dang [The Party Leads
the People and the People Supervise the Party], FAXuE, No. 12, 1995, at 2; Wei Yifa Zhiguo Jianshe
Fazhi Guojia Xianji [Suggestions for Establishing a National Legal System for a Nation of Law],
FAzI RJBAO [LEGAL SYSTEM DAILY], March 17, 1996 at 1. Most commentators seem to support
the NPC's authority to supervise the party.

640. See Qiao Stresses Need for NPC to Be Subordinate to Party, supra note 639 (Chairman
of NPC Standing Committee noting legal and constitutional limits on party's authority).

641. This principle has been explicitly recognized in the CCP on many occasions, and it even
contained in the CCP's own constitution. See Pu Cengwan, supra note 636, at 14.

This is not to say that CCP officials do not in fact engage in such activities. Clearly they
do (hence the need for NPC supervision). But it is to say that such interventions are universally
regarded as wrong, as it belied by the CCP's own response to such acts, which is always to either
cover them up or denounce them.

642. See note 432 and accompanying text supra.
643. See Andrew Nathan, China's Constitutional Option, 24. (1996) (Unpublished manuscript)

[11:1



NPC CONSTITUTIONAL DEVELOPMENT

Department)6u and then approved by the Chairmen's Group." s At least
seven days in advance of the session, delegates to the Standing Committee
receive a copy of the draft agenda. At that time, delegates also receive
copies of drafted legislation to be considered at the session. If the
legislation is being vetted for the first time, delegates will also receive
copies of the drafter's explanation and the CLA's report on the special
standing committees' evaluations. Otherwise, the delegates ill receive a
copy of the Law Committee's revision reportf.' Preparatory materials for
other items to be vetted (such as draft work reports and committee reports)
may also be dispersed to the delegates at that time at the discretion of the
Secretary's Group.6 7

A session of the Standing Committee requires a quorum of greater
than 50% in order to convene.64s The session is presided over by the
Chairman or, at his or her designation, one of the vice-chairmen. 49 The
first order of business is to approve the draft agenda as tendered by the
Chairmen's Group.60 Next, the various legislative proposals on the
meeting agenda are reported to the floor. New legislative proposals being
presented for first reading are reported by their drafter or lead drafter. In
the event the legislative plan designates a number of drafters without
designating a lead drafter, the Secretary's Group, with assistance from the
General Office Research Department, decides which drafter wll present
the proposal.51

After all the proposals have been read to the full Standing Committee,
the delegates retire into four "groups ' Z to vet the proposals. Each delegate
group is chaired by a Vice Chairman. Delegate group meetings are also
attended by representatives from the organs who drafted or otherwise

644. Interview (General Office Research Department).
645. See Procedural Rules of the Standing Committee, art. 5; See Secretary's Group Procdural

Rules, art. 2(3). See also Cai, supra note 4, at 374; Liu & Cheng, supra note 1, at 229.
646. See Cai, supra note 4, at 263.
647. See Procedural Rules of the Standing Committee, art. 6.
648. See Procedural Rules of the Standing Committee, art. 4.
649. See Procedural Rules of the Standing Committee, art. 3.
650. See Procedural Rules of the Standing Committee, art. 5. This appears to be a simple

formality, the procedural rules provide no mechanism through which the delegate body may amend
this draft, and provides no guidance in the event this draft were ever rejected.

651. Interview (General Office Research Department). See also notes 317-319 and
accompanying text supra (on multiple drafters in the legislative plan).

652. 'Fenzu huiyi.'
653. See Procedural Rules of the Standing Committee, art. 15; see also CaL, supra note 4, at

375.

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COLUMBIA JOURNAL OF ASIA N LA W

presented the proposals to be discussed at that particular meeting.6" Group
meeting discussions are recorded. If these meetings reveal particularly
severe concerns or disagreements among the delegates, the Chairmen's
Group may request presenting and/or other drafting organs issue
supplemental reports and/or provide additional representatives or particular
officers to answer delegate inquiries.65' After a legislative proposal has
been vetted in the delegate group, the Standing Committee reconvenes in
plenary session and again vets each proposal on the whole floor. This
vetting, too, is recorded by the Law Committee.5 6

As noted above, statutory proposals must be sent down for revision
following preliminary vetting. Other items are sent down or voted upon at
the discretion of the Chairmen's Group.657

2. Meeting Procedures for the Plenary Session

Plenary Sessions are always held in the first quarter of each calender
year, by tradition in March.658 They require a quorum of two-thirds in order
to convene.6  At least one month prior to the commencement of a Plenary
Session, the Standing Committee meets in a special meeting to prepare for
that session. At that meeting, the Standing Committee sets the beginning
date for that session, and approves a proposed draft agenda (drawn up by
the Secretary's Group) and a proposed draft list of Presidium members.
Both lists will be submitted to the Plenary Session for final approval.66 °

During the same meeting, the Standing Committee also approves a
proposed draft list (drawn up by the Chairmen's Group) of other persons
who will be invited to participate in the Plenary Session discussions as non-

654. See id.
655. See Procedural Rules of the Standing Committee, art. 15; see also Cai, supra note 4, at

375.
656. Interview (CLA).
657. See Procedural Rules of the Standing Committee, art. 16; see also Cai, supra note 4, at

281.
658. See Procedural Rules of the Plenary Session, art. 2.
659. See Procedural Rules of the Plenary Session, art. 4.
660. See Procedural Rules of the Plenary Session, art. 6. According to this rule, this meeting

is supposed to occur at least one month prior to the convening of the Plenary Sesseion. In practice,
it generally occurs some two to three weeks prior to the convening of the Plenary Session.

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voting attendees (drawn up by the Chairmen's Group) and assigns the
Plenary Session delegates to their respective delegate groups.6"'

The date of the session and major items on the draft agenda (included
copies of all legislative proposals and their accompanying drafting and/or
evaluative reports) must be announced and distributed to the delegates at
least one month prior to the starting date.662

One day prior to convening the Plenary Session, the delegate groups
hold a "preparatory group meeting [yubei huiyi]." At this meeting, the
delegate groups elect their Group Chair and Vice Chair,6 and vet and vote
on the draft session agenda and draft Presidium name list (as submitted by
the Standing Committee)."6 A group may also decide (by majority vote)
to submit its own proposals and recommendations regarding these items to
the Presidium for consideration by the fullPlenary.665

Once the nominees to the Presidium are confirmed, the Presidium
takes control of the Plenary Session.6 Its first order of business is to elect
its Standing Chairmen, and to approve the draft list of non-voting attendees
as submitted by the NPC Standing Committee. 667

The day after the Presidium holds is first meeting, the Plenary Session
meets in full-session for its opening meeting. The docket for the Plenary
Session then generally runs as follows. The first order of business is the
reading and vetting of the State Council's draft work report and the State
Council's draft reports on the budget and state plans. Next, the Plenary
Session hears and vets draft basic laws and major draft resolutions. Third,
it hears and vets the work reports of the Standing Committee, the Supreme
People's Court, and the Supreme People's Procurate, respectively. Finally,
the Plenary Session hears and vets proposals concerning the election,

661. See Ca, supra note 4, at 357-59. Delegates are always grouped according to province
(or appointing entity in the case of delegates appointed by the PLA). See Procedural Rules of the
Plenary Session, art. 7.

662. See Procedural Rules of the Plenary Session, art. 6.
663. See NPC Organization Law, art. 4. The Group Chair is generally the Party head for the

particular jurisdiction represented by the Group. Interview (General Office Research Department).
664. Article 6 of the Procedural Rules of the Plenary Session suggest that the Standing

Committee may amend these proposals if it wishes in the course of this vetting. But it is difficult
to see how this would be possible, given the dispersed nature of the vetting and the short vetting
period of one day.

665. See NPC Organization Law, art. 5; Procedural Rules of the Plenary Session, art. 8. See
also Cai, supra note 4, at 361. There is no record of Plenary Session delegates ever effecting a
change in the meeting agenda.

666. NPC Organizational Law, art. 6; Procedural Rules of the Plenary Session, art. 9.
667. See Procedural Rules of the Plenary Session, art. 10.

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confirmation and removal of persons to and from constitutional office. All
work reports and legislative proposals are voted on at the end of the

668session.
As with the Standing Committee, agenda items are first read out

before a full meeting of the Plenary Session, and are then vetted in delegate
group meetings attended by representatives from the item's drafter or
presenter." Results of the vetting are recorded and passed on to the
Presidium, who may decide to amend the item accordingly (if the item is
a legislative proposal) or to incorporate the major points or concerns in a
draft declaration to accompany approval of the item (if the item is a work
report or investigatory report). Regardless of the nature of the item, it is
invariably voted on in the same session in which it is introduced, although
an option exists to refer an item to the Standing Committee for further
study.67 There is no follow-up vetting of any item by the whole floor after
the delegate group vettings. However, as noted above, in some cases -

such as when considering draft basic legislative or the budgetary reports -
a follow-up vetting may be done by the Presidium. 67'

E. A Note on Transparency

Obviously, the institutional effectiveness of the NPC is impeded by
the closed nature of its constitutional environment. Public view is an
important component of parliamentary effectiveness. A parliament's ability
to expose questionable activities to public scrutiny is its most effective
means for disciplining other constitutional actors. Procedural openness
also promotes delegate development, since acting on a more public stage
encourages delegates to behave more professionally. The public image of
independent and professional parliamentary operations can also enhance
the reputation of that body among the polity.672

668. See Cai, supra note 4, at 367-69.
669. See Procedural Rules of the Plenary Session, art. 21; Cai, supra note 4, at 365-366.
670. See Procedural Rules of the Plenary Session, art. 28.
671. See, e.g., notes 417-418 and accompanying text supra (noting follow-up vetting by

Presidium of revised draft basic legislation); note 487 and accompanying text supra (noting follow-
up vetting by Presidium of Economic and Finance Committee's budgetary recommendations).

672. Mr. William Proctor, Clerk of Standing Committees for the House of Commons, credits
greater public openness of British parliamentary operations in the late 1980s, particularly the advent
of televised proceedings, for significantly promoting the effectiveness of that institution. In
particular, it encouraged (or compelled) MPs to show greater initiative, and greater independence
from their respective parties, meaning that the Prime Minister could no longer rely on party disciple
to dictate term to the House of Commons. As a result, parliament is according to him, now much

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Measured by practices of more developed parliaments, the NPC's
procedures are not particularly transparent. Only meetings of the Plenary
Session are technically open to the public, but this is by invitation only
such invitations are not easily obtained (they are generally given only to the
press and the foreign diplomatic personnel).6' These meetings, along with
full meetings of the Standing Committee, and some of the Plenary Session's
group meetings, are reported in the domestic press. But, for the most part
these reports are little more than recitations of that meeting's agenda items,
perhaps with a brief accounting of the explanations/reports accompanying
the reading out of a bill. The content of whatever discussions occur in
these meetings is generally not reported. Voting results (i.e. pass/not pass)
are reported, but not voting tallies. The low rate of delegate approval for
Jiang Chunyun, for example, was never reported in the domestic press
(although it appears to be widely-kmown among educated classes).
Everything else, including committee reports, investigative findings, and
the pre-floor phases of the legislative process, are not generally reported at
all.

Nevertheless, the NPC has been able to open its own and
governmental operations in China to greater public scrutiny. Since 1994,
the NPC has unveiled its own operations and problems to an extent
unprecedented in the Chinese government. Its staffers have produced
numerous scholarly publications that provide fairly detailed accounts of
disputes that have arisen and continue to arise within the NPC. Many of
these are critical of the NPC's own handling of these issues.674 Articles in
the Fazhi Ribao [China's national law journal] have also been increasingly
candid about the disagreements and criticisms coming out of the NPC and
its delegates. 675

more able to resist executive pressures than it was previously. The public sight of individual Ml's
going up against ministers of their own party has also increased the public reputation of Parliament.
Interview with William Proctor.

673. Interview with Steve Mufson, Washington Post reporter, and Westem diplomatic
personnel.

674. See, e.g., Handling Amendments, supra note 63 (CLA staffer criticizing the NPC's
handling of a CCP attempt to introduce a constitutional amendment directly to the floor of the
Plenary); Special Committees, supra note 209 (criticizing the CLA's ability to prevent dissenting
opinions from the special standing committees from reaching the floor of the Chairmen's Group and
the NPC). Both Cai Dingiing, supra note 8, and Cheng & Liu, supra note 1, devote considerable
space to criticizing various limitations in NPC procedure. Both these books were authored by
staffers from the General Office Research Department.

675. See, e.g., sources cited in note 632. This trend has reversed somewhat since Fall of 1997.
at least with regards to popular press coverage provided by the Fazhi Ribao, probably in response
to Jiang Zemin's efforts to increase party control over the press.

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The NPC has also exposed the operations of other government organs
to increasing scrutiny. Governmental work reports are increasingly candid
about the mistakes and limitations of their respective departments. 676

Although much of this is not reported in the domestic press, such "internal
openness" is nevertheless able to focus political and public attention on
issues of political performance that would have otherwise avoided scrutiny.
The response of both the Supreme People's Court and the State Council to
delegates' censure at the 1997 Plenary Session is an example of such
dynamics.677 While it is not as effective as Brandeis's sunlight, the
"moonlight" of the NPC supervision nevertheless exerts a disciplining
effect on governmental actors that would not be there otherwise.

On the other hand, too much transparency could have a detrimental
effect on the NPC's present institutional development.678 At least some of
the NPC's lack of transparency is the by-product of efforts to insulate itself
itself from CCP meddling. It also encourages delegates to vote and speak
their minds. 679

In addition, China's post-1949 political establishment has generally
been uncomfortable with open political disagreement, and thus the party
might not wish to continue its "benign neglect" of the NPC's institutional
development if the NPC were to start piercing the veil of democratic
centralism too blatantly.60 The privacy afforded by closed operations may
also be useful in eliciting compromises from competing political interests,

676. See, e.g., Stability Put Before Need to Balance Budget, SOUTH CHINA MORNING POST,
March 3, 1997, at 8 (Finance Minister admits that China will not be able to balance budget by 2000);
Education Funding Goal Long Way Off, HONG KONG STANDARD, March 6, 1997 (Internet edition)
(Qiao Shi announcing the State Council is unlikely to meet its stated promise of increasing
educational spending to 4% of GNP in 2000); Rare Protest Made Against Slipping Education
Budget, SOUTH CHINA MORNING POST, January 16, 1997 (Internet edition) (NPC investigation
inspires public protest of governmental budget); China's Premier Cites 'Mistakes, 'Pledges to Fight
Inflation, Abuses, THE WASHINGTON POST, March 6, 1995, at Al 1. See also articles by Liu Renwen
cited in note 344 supra (article critical of effectiveness of "strike hard" anti-crime campaign adapted
from a presentation before an NPC investigatory committee).

677. See notes 43-45, 51 and accompanying text supra.
678. Interviews (General Office Research Department; drafting group; legal scholar).
679. See Delegates Accuse Party, supra note 52, at 7 (noting delegate fears that they might be

'investigated" if they vote against the party).
680. It is notable in this regard that the possible crackdown on public reporting of NPC

operations, see note 676 supra, have not been accompanied by any corresponding crackdown on
delegate independence. The 1997 delegates have been allowed to be just as critical of governmental
operations as they were in 1996. See notes 42-45 and accompanying text supra.

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NPC CONSTITUTIONAL DEVELOPMENT

particularly with regards to controversial political decisions.s' This may
be particularly important in a political environment like China's, which has
historically had difficulties in distinguishing between pragmatic
compromise and political betrayal. o2

CONCLUSION: THE LIMITS OF CONSTITUTIONALISM

It is surprising to many how well the NPC's basic structural features
compare to those of many Western parliaments. Most of the standard
complaints leveled against NPC operations are just as easily leveled against
many Western parliaments. For example, in most parliamentary systems,
including those of the UK, Canada, and Japan, top legislative and
constitutional posts are determined by the controlling party, and are merely
"rubber-stamped" by the party-controlled parliament. Party platforms also
have great, and in many instances controlling effect on legislative
development. If the NPC has rarely voted down an executive- or party-
sponsored bill, the same can be said for the UK, Japan, and many other
Western parliamentary systems.

In fact, in comparison with many Western parliamentary systems, one
of the most striling features of the NPC is it relative independence from the
executive, and even from the controlling party. The NPC plays a much
more active institutional role in China's legislative development than does
the Japanese Diet or the British House of Commons. Between 1955 and
1993, the NPC actually voted down more pieces of executive sponsored
legislation (1) than either of these two parliaments (0). Since 1995, the
CCP has suffered 25% or more defection rates among NPC delegates in
seven instances. By contrast, as noted above, no similar breakdowns in
party discipline have occurred in any contested parliamentary vote in either
Britain or Japan since the Second World War.

No doubt, many will dispute this. Critics will point out, for example,
that political operations in China are nowhere near as enlightened as are
those in the developed West. They will note China's continued persecution

681. In Canada, for example, the national budget is negotiated in strictest secrecy, both to
prevent strategic bargaining among various political interests and to facility a minister's ability to
make politically-unpopular concessions.

682. See, e.g., Tang Tsou, The Thananmen Tragedy: The State-Societ, Relationship, Choices,
and Mechanisms in Historical Perspective in THE ROUNDTABL TALKS ANDTHEBR.AKDOwN OF
CO mfmUisM 213, 213-221 (Jon Elster, ed., 1996) (noting difficulties China's political culture has
in arriving and stable compromise positions).

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COLUMBIA JOURNAL OF ASIAN LAW

of political dissidents and its continued disregard for human rights. These
arguments, however, miss a crucial point. Constitutional government is not
synonymous with "liberal" government. At its core, constitutionalism is a
form of political operation: one that provides hopefully stable and
hopefully efficient means for making political decisions and resolving
political disputes. Most of the time, these goals are compatible with, and
even furthered by, political liberalism. But this is not always the case. For
example, in its early stages, the survival of the American constitutional
system depended on a tolerance of the practice of slavery, and the
American constitutional system actively defended that practice. In that
case, the interaction of our core constitutional components - federalism,
democratic decision-making, checks-and-balances and judicial review -

worked to obstruct, rather than to promote, the development of a more
liberal and enlightened polity.

The distinctions and tensions between liberalism and
constitutionalism is most clearly manifested in the parliament. On one
hand, parliaments embody the democracy that is the key to liberal political
legitimacy. On the other hand, parliaments also embody the excesses of
democracy that are among liberalism's greatest threats.

Parliaments are also not particularly conducive to efficient or even
enlightened government. Legislatures are inherently amateur bodies. Even
in the best of political environments, its members are selected, not on the
basis of expertise, technical training, or liberal values, but on the basis of
how well they represent their constituents. In times of constitutional or
social crisis, they are thus often less informed, less prepared, and generally
less "competent" than their sister branches of government.

This is clearly the case in China. In some aspects, such as promotion
of more democratic means of decision-making and wider distributions of
political power, the NPC is clearly in the forefront of efforts to liberalize
Chinese political society. But in many other aspects, the NPC is one of the
more conservative political organs in China. Indeed, the principal factor
for the initial development of the NPC during the late 1970s and early
1980s was that its leader at that time, Peng Zhen, needed an institutional
vehicle through which to oppose the liberal reforms of Deng Xiaoping.
More recently, NPC delegates derailed attempts to liberalize the criminal
code and lobbied for more protectionist trade policies. Delegates'
complaints about crime were a motivating force behind China's on-going
"Strike Hard" anti-crime campaign that has attracted the concern of the
international human rights community.

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Thus, while the constitutional development of the NPC is real, it also
bears a sobering tale about the limits of constitutionalism. The
development of democratic or constitutional structures will not
immediately or automatically cure all political, social or economic ills. It
may even exacerbate some of those ills. Constitutionalism is merely one
piece in the larger puzzle of good governance.

But if constitutionalism is not synonymous with liberal government,
it is clearly its yoke mate. Many, perhaps most, of the core techniques of
liberalism also work to promote the goals of constitutionalism. For
example, freedom of expression promotes effective pluralist decision-
making, and effective pluralist decision-making is a key feature of
constitutional stability. Constitutional development thus provides a more
fertile soil for liberal growth. Therefore, even if the NPC itself will not
promote Jeffersonian solutions for many - perhaps most - of China's
various political problems, its constitutional development will nevertheless
make it easier for such solutions to evolve - perhaps from other sources
- in the future. s3

683. It is interesting to note in this regard that one of the most open forums for political debate
is on the floor of the NPC. Even in 1989, when a number of delegates actively supported the student
demonstrators in Tianannen, not one was ever subject to criminal sanction (in stark contrast to the
State Council and the CCP). See generally Tanner, supra note 1, at 64.

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