The Present Situation and Trend of Development of China's Legislative Disclosure System
September 19,2016 By:CSHRS
The Present Situation and Trend of Development of China's Legislative Disclosure System
Abstract: The legislative disclosure system is one of the important parts of the amendment of the Legislation Law in 2015. This shows that the role of the legislative disclosure system in improving the quality of legislation is catching more and more attention. Apart from the Legislation Law, local regulations of provinces and municipalities have also made a positive contribution to the perfection of the legislative disclosure system, leading the Legislation Law in many specific processes and specific measures, and playing the role of legislative exploration and experimentation. To summarize the new development of the legislative disclosure system on the part of the Legislation Law and local legislative practice is of important theoretical and practical value for promoting the continued maturity and improvement of this important legislative system.
Keywords: Legislative Disclosure, Value Target, Current Situation, Trend of Development
British legal thinker Jeremy Bentham once pointed out, “The legislator should take the public interest as the goal, and the maximum scope of utility should be the basis of all his thinking. To understand the real interest of the community, which is where the mission of the legislative science lies, what is crucial is to find the means to achieve this interest.”1 Extensive legislative participation and legislative disclosure is one of such means.
I. The Value Target of the Legislative Disclosure System
A. Legislative disclosure has the value of political democracy
As an important part of the legislative procedures, legislative disclosure, whose core value is to promote legislative democracy, has the important value of political democracy. Democracy includes direct democracy and indirect democracy, and the system of People’s Congresses implemented in China belongs to indirect democracy. Though the system is of the advantage of high efficiency and strong professionalism, it is also of the disadvantage of somewhat inadequate reflection of public opinions. “Legislative disclosure helps the people directly exercise their rights as the master of their country, and participate in State and local affairs.”2 It can not only make up for the shortcomings of indirect democracy, but it can also absorb the advantages of direct democracy.
Legislative disclosure guarantees effective participation by deputies to People’s Congresses in the deliberation of drafts. Legislative disclosure includes not only disclosure to the public, but also disclosure to deputies to People’s Congresses. Entitlement of deputies to People’s Congresses to fully enjoy legislative rights is a requirement of democracy, which requires deputies to People’s Congresses to gain access to sufficient legislative information and fully participate in discussions and debates. If draft laws, expert argumentation records, and the Standing Committee deliberation records are not open to deputies to People’s Congresses, they can not grasp the focus issue of the draft laws. If so, how can they give suggestions and decide to vote? Judged from the perspective of the Legislation Law, information disclosure to deputies to People’s Congresses is mainly reflected in the provision that in the course of deliberating draft bills, the Standing Committee shall solicit opinions from deputies to People’s Congresses in various forms, which is one of the highlights of the amendment of the Legislation Law.
The legislative disclosure system gives the public the opportunity to make suggestions on chosen legislative topics. Legislative disclosure includes not only the disclosure of results, namely, the disclosure of the text of the relevant laws, but also the disclosure of the process, that is, the legislative process should be made public from the legislative preparation stage. Due to the limitation of legislative resources, large quantities of demands for legislation can not be included in legislative programs and plans. According to the information dispersion theory, like each of us, legislators have eternal limitations in factual knowledge3, so in the formulation of legislative programs and plans, they tend to miss or ignore certain demands for legislation. If efforts for legislative disclosure are not strengthened, it will be difficult for legislators to fully grasp the legislative demands of the public. Article 52 of the Legislation Law provides that in the preparation of legislative programs and legislative plans, the Standing Committee shall solicit opinions from all sides, and the legislative programs and annual legislative plans shall be presented to the public upon adoption by the Council of the Chairman. This is of great progressive significance, but in terms of concrete operation, the Legislation Law does not specify methods to be adopted in gathering opinions. Therefore, the applicability thereof needs to be further specified.
B.The legislative disclosure system gives the public the opportunity to play the legislative game.
Legislation is an initial distribution of national resources, while the legislative process is a process of struggle for interests among State organs, enterprises and institutions, and the general public, and among various sectors and classes. “High quality legislation must be scientific coordination of a variety of different interests involved, and the premise for coordination thereof lies in expression of the various interests and introduction of sufficient struggle for the interests among all, which will enable legislatures to have accurate grasp thereof.”4 Everyone wants to be granted with rights by legislation, and no one wants to have their obligations increased by legislation. Since the legislative process is full of contradictions between various departments, various sectors and the public, if legislation is not open to the public, these contradictions will be taken into the law in effect. For example, with regard to some members of Congress adhering to “legislative privilege” and refusing “disclosure of documentary material”, the 9th U.S. Circuit Court once stated: the court refused to “blindly preclude disclosure”, because from the perspective of the legislature’s need for independence, there were other legitimate counter interests.5 This kind of contradictions and game playing in the field of legislation will keep extending from the field of legislation onto the field of law enforcement, but the field of legislation is more important. If there is sufficient game playing in the field of legislation, the demands of various interest groups can be comprehensively taken into account, and the legislative process will become a process of resolving contradictions. The main channels for the legislative game playing are information disclosure and democratic participation, in which the more extensive information disclosure is, the longer it will last, and the more sufficient the game playing is, the more democratic legislation will be.Legislative disclosure promotes the value of procedural justice
Legislative justice includes not only substantive justice as a result, but also procedural justice as a process. Judged from the focus of public concern, substantive justice is the ultimate goal, and its status is superior to that of procedural justice. But what is problematic is that substantive justice depends on procedural justice, and without procedural justice, it is difficult to create a good law representing public opinion. Under particular circumstances, a good law can also be created without procedural justice, which is only an accidental phenomenon. The concept of procedural justice originated from the concept of natural justice in Britain, whose basic meaning is that no person can judge their own cases or a case in which they have an interest, and the arguments of each side should be heard. This principle was concluded from judicial activities, but it is also applicable in legislative activities. If the law enforcement agencies are entitled to make law, they will give more consideration to the interests that are advantageous to themselves, and will ignore the interests of those that are subject to law enforcement. Therefore, in the formulation of administrative regulations, the State Council should tighten up procedures, and supervision by the National People’s Congress (NPC) should be strengthened. For example, 15 out of 18 categories of taxes in China are governed by the relevant administrative regulations of the State Council. Since the State Council has an interest in tax matters, the power of legislation thereon should be recovered by the NPC. Then, take the technical standards of the motorcycle industry as another example. In the formulation of the technical standards of the motorcycle industry, a city provided that two-wheel vehicles that have a speed higher than 20 kilometers per hour shall be defined as motorcycles. Since this involved the interests of the electric bicycle industry, the opinions of both the motorcycle industry and the electric bicycle industry should have been heard. But in gathering opinions thereon, the city ignored the bicycle industry, and only sought opinions from the motorcycle industry, which is clearly contrary to procedural justice. Through legislative disclosure, relevant industries and interest groups can track the legislative process in a timely manner, and actively strive for legal provisions favorable to their own industries or groups through legislative lobbying, recommendations, and legislative hearings.
Due process also contains openness and the content of supervision. Judged from the point of view of the concept of natural justice in British history, its purpose is to restrict the judge’s favoritism and give equal treatment to all parties. There also exists the problem of equal treatment in legislative activities. In the legislative process, information disclosure forms an effective supervision of legislators’ favoritism. The administrative duties of deputies to People’s Congresses and their speeches in the deliberation of bills should all be part of the content of legislative disclosure, for “Deputies to People’s Congresses represent the people, and an effective way of people’s supervision over deputies to People’s Congresses is to let people understand the views of deputies and enable deputies to familiarize themselves with the people’s inner voice well.”6 Disclosing speeches given by deputies can improve the phenomenon of deputies not giving speeches or giving speeches in deviation from the interests of the electorate.
C. Legislative disclosure cultivates the public’s belief in the rule of law
Belief in the rule of law is the spiritual core of countries under the rule of law, and implementation of legislative disclosure by People’s Congresses is an effective way to improve the public’s belief in the rule of law. Belief in the rule of law is an important symbol of countries under the rule of law, no matter whether it comes to civil servants or ordinary citizens. Although some scholars are against the use of the phrase “belief in the rule of law”, believing that people can only believe in religion, the phrase “belief in the rule of law” can still be used under the circumstance that its connotation is reasonably defined. Belief in the rule of law is not a belief that is transcendental like a religious belief, but rather a faith based on the understanding of reason and law. This faith shows that only by relying on the law, paying attention to the quality of legislation, and improving law enforcement and judicial justice, can corruption be prevented effectively, so that mutual benefits and an all-win situation can be realized between public power of the government and civil rights. Such a belief is not blind obedience, but rather a result based on logical analysis and rational understanding, and it is also basic experience in the practice of the rule of law in the West. In the process of strengthening development of the rule of law, China must attach importance to cultivating belief in the rule of law. In addition to strengthening theoretical education and propaganda, practice is a more effective way to cultivate belief in the rule of law, in which the public should be allowed to participate in the process of the rule of law, including legislative and judicial participation, etc. Legislative disclosure by People’s Congresses is not only a channel for the public to learn legal theory and knowledge, but also a window for them to make suggestions to legislatures and supervise legislatures and deputies to People’s Congresses, thereby raising public confidence in legislatures and establishing their faith and even belief in the governance of China by law. Legislative disclosure and legislative participation should be one of such ways.
II. Status Quo of Regulation over Legislative Disclosure by the Legislation Law
The Legislation Law has filled gaps in legislative disclosure in several aspects, detailed the relevant provisions, and promoted improvement of the system. However, due to rapid development of the legislative disclosure system, the Legislation Law is still insufficient in its provisions governing legislative disclosure.
A. The Legislation Law’s improvement of the legislative disclosure system
The Legislation Law has comprehensively improved the legislative disclosure system in terms of the legal principles and legal rules. On the basis of Article 5 of the Legislation Law in 2000 governing the principles of democratic legislation, the provision on “adhering to legislative disclosure” is added to make the principle of democratic legislation more substantial. In addition, in respect of specific rules, improvement has been achieved in the following aspects.
1. Improvement of the provisions governing the disclosure of draft laws and regulations.
On the stage of deliberation of bills by the NPC Standing Committee, the Legislation Law in 2000 only provides that the draft laws deliberated by the NPC Standing Committee should be disclosed to the public for comments, and the Legislation Law in 2015 adds the requirement for the disclosure of explanations about draft laws, the time limit for disclosure and information feedback. Article 37 of the Law provides that not only draft laws but also explanations about the drafting and modification of the draft laws shall be disclosed, and the explanations shall include the necessity, feasibility, and main content of the drafting and modifying of the laws concerned, the coordination and handling of major divergent opinions in the drafting process, and so on. As far as the time limit for disclosure is concerned, it provides that the duration of the period of time when the draft law is open for public comments shall generally not be less than 30 days; and it also provides that the results of soliciting public comments thereon shall be presented to the public. This article broadens the scope of legislative disclosure, clearly defines the time limit for disclosure to avoid the problem of the time limit for disclosure being too short. In the meantime, it requires disclosure of the results of soliciting public opinions, and attaches importance to feedback on the effect of information disclosure and public participation, forming a systemically complete procedural chain. On the stage of the deliberation of administrative regulations, a provision governing the disclosure of the draft is newly added. The 2000 Legislation Law provides that in the process of drafting a set of administrative regulations, public opinions thereon shall be solicited, on the basis of which Article 67 of the 2015 Legislation Law adds one paragraph: The draft administrative regulations shall be presented to the public for comments, except where the State Council decides not to publish the draft. The State Council and the NPC Standing Committee shall remain the same on whether to make the draft public or not.
2. Adding the provision governing disclosure of legislative programs and plans of the NPC Standing Committee.
The NPC Standing Committee, in formulating legislative programs and plans, needs to disclose them to the public. The 2000 Legislation Law does not involve the content. Article 52 of the 2015 Legislation Law provides that, in the formulation of legislative programs and annual legislative plans, the NPC Standing Committee shall determine legislative projects on the basis of carefully studying the bills and proposals of deputies, widely soliciting opinions, and conducting scientific argumentation and evaluation, according to the needs of economic and social development and development of democracy and the rule of law; and that legislative programs and annual legislative plans shall be presented to the public upon adoption by the Council of the Chairman. This article advances legislative disclosure to the stage of making legislative programs, so that the public can have the opportunity to express their opinions on legislative topics and learn about legislative projects in the next five years or one year, thus expanding the time dimension of legislative disclosure, to make it convenient for the public to make arrangements and better participate in all stages of legislative activities. 3. Increasing new ways of disclosing laws, regulations and rules on the Internet.
With innovation of the mode of communication, people become more accustomed to obtaining information through the Internet, including legislative information. The 2015 Legislation Law has made responses thereto. Articles 58, 71, 79 and 86 of the law provide respectively that, in addition to disclosure on specific bulletins and newspapers, the laws passed by the NPC and its Standing Committee shall also be published on the website of the National People's Congress; administrative regulations, local regulations, departmental (ministerial) rules and local rules shall also be published on the Chinese government legal information network; and local regulations, autonomous regulations and separate regulations shall also be published on the website of the National People's Congress and websites operated by local People's Congresses. This provision provides for online authoritative versions of the various laws, regulations and rules, making it convenient for the public to consult legislative information in their study or use thereof.
B. Limitations of the legislative disclosure system under the Legislation Law
Although the 2015 Legislation Law improves its legislative disclosure provisions by adding or amending 11 provisions, there are still some limitations, which needs to be modified in the future.
First, the legislatures at different levels have different content of information disclosure. For example, with regard to the disclosure of draft laws, it is required that draft laws and the draft administrative regulations should be disclosed, but there is no such requirement for administrative rules, local regulations and local government rules; and there are provisions governing the time limit for disclosure and feedback on the results of soliciting opinions in the course of deliberation by the NPC Standing Committee, but there is no such requirement for administrative regulations, departmental (ministerial) rules and local regulations.
Second, the legislatures at different levels have different scopes of information disclosure. When the NPC and its Standing Committee enact a law, information disclosure starts in the preparatory phase of legislation, that is, the stage of making legislative programs and legislative plans; when the State Council enacts a set of administrative regulations, information disclosure also starts in the preparatory phase of legislation, to be specific, the stage where the draft administrative regulations are disclosed to the public form comments; and in the enactment of departmental (ministerial) rules, local regulations and local government rules, information disclosure starts in the last stage of the legislative process, that is, the stage of publishing the text of the legislations that have already taken effect. The gap between information disclosure requirements for the legislatures at different levels is too large. Especially, the information disclosure requirement for departmental (ministerial) rules, local regulations and local government rules is too low, and remains at the lowest level of legislative disclosure, which is obviously disproportionate to the level of development of modern civilization under the rule of law.
And third, the forms of legislative disclosure are not diverse, and the contents of disclosure need to be widened. For example, there are no provisions governing ways of disclosure via live television broadcast and live web casting, and there are no provisions governing the disclosure of such legislative information as speeches and debates in the stage of deliberation. However, such information can help the public to have a thorough understanding of the focal issues of legislation, better participate in the legislative process, supervise the performance of duties by deputies to People’s Congresses, learn common legal knowledge, cultivate belief in the rule of law, etc.
III. The Status Quo of Provincial Legislative Disclosure System
Taking into consideration the existence of differences in the level of the rule of law among regions in China, the Legislation Law does not make the same provisions for legislative disclosure in the formulation of local regulations and local government rules as those of laws, allowing the local legislative disclosure standards to be lower or higher than the legislative disclosure standards in the formulation of laws or administrative regulations. Through empirical study on the procedural provisions promulgated by the Standing Committees of provincial People’s Congresses for the formulation of local regulations, it can be found out that the Standing Committees of some provincial People’s Congresses lack initiative in legislative disclosure, and their legislative disclosure standards are generally low.
A. Occurrence of the trend of special legislation in provincial legislative disclosure systems
Through review of the legislative documents enacted by the Standing Committees of the People’s Congresses of Chinese provinces, autonomous regions and municipalities directly under the Central Government, it can be found out that the names of their legislative documents providing for legislative disclosure are in four categories: First, there are the legislative documents named “Regulations of XX Provincial People's Congress and its Standing Committee on the Formulation of Local Regulations” (or Legislative Regulations). The ones in this category make up the largest group of legislative documents, such as those of Heilongjiang, Beijing, Tianjin, Jiangxi, Anhui, Zhejiang, Shandong, Shanghai, Hunan, Hubei, Inner Mongolia and so on, and these legislative documents were generally enacted after 2001. Judged by their names and contents, the legislative documents in this category belong to comprehensive legislation, including legislative authority, legislative preparations, and such contents as legislative procedures and interpretations of legislations as well. Judged from an overall point of view, the legislative documents in this category do not attach great importance to the system of legislative disclosure. Second, there are the legislative documents known as “Procedural Provisions of XX Province for the Formation and Approval of Local Regulations”. For example, Liaoning Province is one of the provinces that have enacted such legislative documents, and the time of their encatment was the same as that of the first category. Legislative documents in this category are very small in number. Judged from their names and contents, legislative documents in this category are mainly concerned with the issue of the legislative procedures, but they do not have much content concerning legislative disclosure. Third, there are the legislative documents known as “Regulations of XX Provincial People's Congress Standing Committee for Improving the Quality of Local Legislation”. For example, Hebei Province, Sichuan Province, Qinghai Province, Xinjiang Uygur Autonomous Region and so on have enacted such legislative documents, with the time of their enactment somethatlater than that of the first category. Legislative documents in this category are mainly concerned with the legislative procedures, and in the style and structure, they generally have a special section entitled “adhering to and improving the democratic and open legislation system”. And fourth, there are the legislative documents known as “Provisions of XX Provincial People's Congress Standing Committee for the Work of Legislative Disclosure”. Legislative documents in this category basically exist only in Guangdong Province, with the year of their enactment being 2013. They include the general provisions, legislative information disclosure, legislative programs, disclosure of legislative plans for public comments, disclosure of draft regulations for public comments, and supplementary provisions, totaling five chapters and 38 articles. Legislative documents in this category make up the most professional legislative disclosure documents so far, and to some extent, represent the development trend of gradual specialization of this system.
B. Remarkable differences in the level of provincial legislative disclosure
As the Legislation Law was enacted in a relatively early year, and as its requirements for legislative disclosure of local regulations are low, the standards for the legislative disclosure system in most provinces is slightly higher than the requirements for local legislative disclosure prescribed by the 2001 and 2015 versions of the Legislation Law. As compared with the requirement for legislative disclosure by the NPC Standing Committee prescribed by the Legislation Law, the requirements for local legislative disclosure prescribed by provincial legislative regulations are on a par with those prescribed by the 2001 Legislation Law, with both requiring disclosure of draft laws. But both have requirements lower than those prescribed by the 2015 Legislation Law. The legislative regulations of all provincial-level regions generally have no provisions for disclosure of legislative programs and legislative plans.
After 2001, many provincial-level regions revised their procedures for the formulation of local regulations, mostly renaming their legislative documents as “Regulations of XX Province on the Formulation of Local Regulations” or “Legislative Regulations of XX Province”. The requirements for legislative disclosure are mainly reflected in two processes: the process of deliberation of the draft law and the process of disclosure of the law. In the process of deliberation, it is required that opinions from all sides should be extensively heard. The hearing of opinions can be conducted in multiple forms including the holding of panel discussions, feasibility study sessions, hearing sessions, and so on. In this process, the draft law concerned should be presented to the public for comments. In the process of disclosure, it is required that the law should be released on the bulletins of the Standing Committees of People’s Congresses and provincially circulated newspapers.
A relatively small number of provincial-level regions have relatively low requirements for legislative disclosure. For example, “Regulations of Beijing Municipality on the Formulation of Local Regulations” (2003), and “Legislative Regulations of the Inner Mongolia Autonomous Region People's Congress and its Standing Committee” (2001) do not have the provision that draft legislations shall be presented to the public in the process of deliberation; and “Regulations of Shanghai Municipality on the Formulation of Local Regulations” (2001) does not have the provision that draft legislations shall be presented to the public, nor does it provide that in the process of deliberation, opinions shall be solicited in multiple forms including the holding of panel discussions, feasibility study sessions, hearing sessions, and so on.
At the same time, a number of provinces and cities have taken the lead in exploration, and moved the process of legislative disclosure ahead of the completion of legislative programs, and have also included information disclosure in the processes of legislative hearing and legislative assessment. For example, Article 5 of “Regulations of Hebei Provincial People's Congress Standing Committee for Improving the Quality of Local Legislation” (2013) provides that in the formulation of legislative programs and plans, opinions from all walks of life in society shall be extensively solicited, , legislative proposals shall be openly solicited through major news media of the province, and demonstration of legislative projects can be conducted by convening exclusive symposiums and in other forms. Article 13 of the regulations provides that the unit holding a legislative hearing shall work out in advance a detailed and specific work plan for the hearing, and an announcement thereon shall be made known to the public through major news media of the province 30 days prior to the hearing. Article 14 of the regulations provides that any legislative assessment launched shall be made known to the public, and opinions from all sectors of society shall be gathered by means of hearing reports, holding panel discussions, conducting on-site investigation, holding expert consultation, conducting exclusive investigation and research, conducting questionnaire surveys, and so on.
“Provisions of Guangdong Provincial People's Congress Standing Committee on the Work of Legislative Disclosure” (2013) is so far the first exclusive regulatory document concerning legislative disclosure. Its specific characteristics are reflected in the following aspects: First, it increases processes and contents of information disclosure, including information disclosure in the process of making legislative programs and plans, and an addition of content concerning disclosure of information on deliberation opinions of the Standing Committee, opinions of the Standing Committee members and those invited to attend the session as observers, reports on amendment, reports on the results of deliberation, and so on. Second, it increases recipients of information disclosure, including not only the public, but also deputies to People’s Congresses at the city, county and township levels, industry associations and the relevant enterprises. Third, it requires feedback on the results of information disclosure, with Article 34 of the regulations providing that after the end of the period of soliciting public opinions, the relevant committee shall give a comprehensive feedback on the opinions and suggestions on the website of the Guangdong Provincial People's Congress, and in giving feedback, various forms such as giving written replies, holding legislative forums, seminars, press conferences, etc can be adopted. And fourth, it specifies the methods and time limit, etc for information disclosure. For example, in gathering public opinions, various methods such as conducting sample surveys and online polls may also be adopted.
C. Lack of positive correlation between the level of legislative disclosure and economic development
As an important part of the legislative system, legislative disclosure has a significant impact on improving the quality of legislation. To some extent, the state of legislative disclosure reflects the level of governance according to law of a country or a province. Based on the fact that material and economic conditions are the decisive factors in the development of law, economically developed provinces should have a relatively high level of governance according to law. But it is not the case with legislative disclosure. It can be found out from empirical analysis that economically developed provincial-level regions may not be perfect in terms of the system of legislative disclosure. For example, the level of legislative disclosure in Beijing, Tianjin, Zhejiang, Jiangsu, Shandong and other provinces and cities basically remains the same with or even slightly lower than the requirement for legislative disclosure by the NPC Standing Committee as prescribed by the 2001 Legislation Law (although their performance in practice is not necessarily so), and only the legislative disclosure system of Guangdong Province exceeds the requirement for legislative disclosure by the NPC Standing Committee as prescribed by the 2015 Legislation Law. In the meantime, the provinces at the general level of economic development may also take a lead in legislative disclosure. For example, Hebei Province, Sichuan Province, Qinghai Province, Xinjiang Uygur Autonomous Region and other provincial-level regions have all formulated regulatory documents to improve the quality of their legislation, which provides for information disclosure in the stage of making legislative programs and plans. Therefore, they have actually taken a lead in local legislative disclosure.
IV. The Orientation of Development and Improvement of China’s Legislative Disclosure System
As a basic system in the field of legislation, the legislative disclosure system directly reflects the principle of democratic legislation and plays a vital role in improving the quality of legislation and protecting the legitimacy and scientific nature of legislation. Therefore, under the circumstance that the whole nation pays attention to the construction of the rule of law from the top to the bottom levels, it is necessary to continue to attach importance to the improvement of this system promptly, and continue to formulate and amend the relevant legislation. The specific orientation of development and improvement of legislative disclosure includes the following aspects:
A. The trend of the Legislation Law lagging behind local legislation will continue
The Legislation Law will continue to lag behind in legislative disclosure, the main causes of which lie in the following aspects. First, the NPC and its Standing Committee take on relatively arduous tasks of legislation and amendment of laws, and simultaneously shoulder the function of legal supervision. In addition, since the revised Legislation Law has just been amended, the degree of concern about the Legislation Law will not be very high in the short term. Whereas, the Standing Committees of provincial-level People’s Congresses are faced with relatively few tasks of making legislations and amendment of legislations. And, as most legal systems have already been established by basic laws and administrative regulations since quite a long time ago, local legislatures all have sufficient time to focus on the issue of legislative disclosure. Second, in the process of developing the legislative disclosure system, and in face of complex struggle for interests and sharp differences in points of view, the NPC and its Standing Committee need to lower the legislative standards in order to reach consensus. Whereas, in the development of their legislative disclosure systems, due to the smaller size of the population under their jurisdiction, provincial-level regions face less resistance in the legislative process, and it is relatively easy for the local legislatures to coordinate differences, which is conducive to adopting a higher level of legislative disclosure system in the provinces. And third, since there is competition in exploration for local development of the rule of law among provinces, provinces have relatively higher enthusiasm for the local legislation and development of their legislative disclosure systems. Over the recent few years, some provincial-level regions have put forward slogans on development of the rule of law in them, such as “development of the rule of law in Zhejiang”, “development of the rule of law in Jiangshu” and “development of the rule of law in Hunan”, which is intended to match the strategy of comprehensively promoting the general plan for governance of China by law as put forward by the Central Government, and promote scientificity, modernization and legality of the management work in the relevant provinces. Therefore, as a prerequisite for development of the rule of law, legislative work, including the legislative disclosure system, is more likely to be taken seriously.
B.The content and methods of legislative disclosure will become increasingly abundant
Legislative disclosure should additionally include such contents as speeches and debates by deputies to People’s Congresses. In current legislative disclosure in China, preference is given to disclosure of draft laws and texts of adopted laws, which belongs to results disclosure and static disclosure, including disclosure of periodic results and final results. But it lacks process disclosure and dynamic disclosure, such as disclosure of the circumstances and contents of speeches made by deputies to People’s Congresses. Such contents are in concrete embodiment of the process of deliberation. Through disclosure of the process of deliberation, the public can understand the content of draft laws, including the focus of debate, so as to participate in the legislative process with a definite object in view. At the same time, legislative disclosure of processes can also play a role in supervising deputies to People’s Congresses, in which members of the public can get to know information on which deputy has given a speech, what is the content of the speech, etc. By doing so, they can supervise and urge deputies to People’s Congresses to fulfill their legislative duties. In order to improve the quality of legislation in the United Kingdom, “the process of legislation and debate is open to the public, and the public are invited to participate in parts of the process. British MPs’ debates and speeches on important legislation are completely open to the public, so that the media and the public can understand the debate not only by watching the televised debate but also by browsing the debate later on the parliament website, whereby forming an effective supervision on the entire legislative process, and helping to prevent the occurrence of corruption in the legislative process.”7 This practice is worth our reference to.
The forms of legislative disclosure should additionally include television, radio broadcast, live casting on the Internet, and other video forms of disclosure. Judged from the perspective of the ways of legislative disclosure, the 2015 Legislation Law adds disclosure on the Internet as a form of legislative disclosure by the NPC Standing Committee in the stage of disclosure of laws. But in respect of other stages of the legislative process, it does not specify disclosure on the Internet as a form of legislative disclosure, nor does it specify radio broadcast, television and other video forms of disclosure therein. As far as the point of view of extraterritorial experience is concerned, there is such an introduction: “With the development of modern mass media, many parliaments are trying to expand the scope of the audience directly through radio broadcast, television and the Internet. For example, the U.S. Congress allows TV station C-SPAN to have live televised coverage of sessions of the Congress, and the legislatures in 17 U.S. states also permit similar unedited TV coverage of their legislative sessions. Through live broadcast on the Internet, people can view congressional debates, committee hearings, and other functions of the Washington state legislature.”8 In this regard, “Provisions of Guangdong Provincial People's Congress Standing Committee on the Work of Legislative Disclosure” took the lead in exploration, and Article 11 of the regulations provides that “If necessary, the relevant matters of legislation may be presented to the public through a press conference or through radio broadcast, television, newspapers, the Internet and other channels.” This provision also needs to become a common practice through relevant practice. For example, what content is suitable for disclosure on radio or on TV is still a question. As compared with judicial information disclosure, legislative disclosure should have taken the lead, because the quality of legislation determines impartiality of justice, while improvement of the quality of legislation can not be separated from adequate legislative disclosure. In respect of judicial information disclosure, Henan Provincial Higher People’s Court started promotion of online casting of trials in 2013. In contrast, legislative disclosure forms are too simple, which makes it impossible to fully reflect the progress and perspectives of the legislative process, and so on.
C. The NPC Standing Committee should strengthen legislative information disclosure in the form of separate decision making
The Legislation Law was just amended and promulgated in 2015, and it has showed many bright spots, but there are still some deficiencies and shortcomings, and it is still somewhat lagging behind in some aspects. In the legislative process of the NPC and its Standing Committee, with respect to legislative programs and plans, the Legislation Law only requires disclosure of the final texts, but does not require information disclosure and solicitation of opinions before their formulation. With respect to disclosure of draft laws and solicitation of opinions, the Legislation Law does not require disclosure of the results of adoption of opinions. All these should be defined as basic requirements for the current legislative disclosure system. Therefore, as the country’s top legislature, the NPC should adhere to information disclosure at a high level in the formulation of the Constitution and other basic laws. Or else, it will not be conducive to strengthening the legislative authority. In addition, as far as the process of legislation by the State Council is concerned, there is no requirement for disclosure of legislative programs and plans. So, such a disclosure standard will soon lag behind the actual demand for development of the rule of law. In respect of the legislative disclosure of departmental (ministerial) rules and local regulations, there is no provision even for the disclosure of draft versions of them. In fact, it has been quite a long period of time since local legislative regulations of provincial-level regions generally made provisions requiring the disclosure of draft legislations. So, the relevant provisions of the Legislation Law have lagged behind those of provincial legislative regulations. Given differences in the level of economic and cultural development of provincial-level regions, there is no high requirement for legislative disclosure in the Legislation Law lest the requirement would be too high for those provincial-level regions which are relatively backward in economic and cultural development. But it can be found out in empirical analysis that the level of legislative disclosure and the state of economic development are not directly related to each other.
Taking into account the revision interval of the law, it will probably be a long period of time before the law will be amended again. This will not be conducive to the development of the legislative disclosure system, nor will it be conducive to promoting the process of development of the rule of law in China. Therefore, under the circumstance that the Legislation Law will not be amended once again in the short term, it is feasible to adopt resolutions or decisions which can promote legislative disclosure and improve the quality of legislation, to meet the overall level of development of the rule of law in China.
D.The Standing Committees of provincial-level People’s Congresses can amend local legislative regulations or issue separate decisions
Most of the provincial-level legislative regulations were enacted around 2001, and very few provincial-level regions amended their legislative regulations around 2008. Given that the stability of local legislation is not required to be as high as that of basic laws and that it has been eight years so far since the amendment of local legislative regulations in 2008, it is no problem for the relevant provincial-level regions to amend their legislative regulations once again. If they do not amend their legislative regulations, they may as well formulate separate decisions thereon which can promote legislative disclosure as Hebei province has done. Of course, if a province can introduce a set of systematic regulations on the work of legislative disclosure as Guangdong Province has done, the effect will naturally be better.
At present, improving the quality of legislation is a prerequisite for promoting the process of development of the rule of law in China. Improving the quality of legislation needs to proceed from perfection of the legislative system and legislative procedures, but there is little possibility of substantial alteration of the legislative system in the short term.9 Therefore, perfecting the legislative procedures and enhancing the level of legislative disclosure is a feasible way to improve the quality of legislation. Although there were very significant changes in the 2015 revision of the Legislation Law, including the revision of 10 provisions governing legislative disclosure, nearly half of these revised provisions stipulate the same matter, that is, in addition to disclosure through print media, laws, administrative regulations, departmental (ministerial) rules and local regulations shall also be disclosed on the official websites of the particular legislatures. Only 6 of the revised provisions stipulate the other aspects of legislative disclosure, so the requirements for legislative disclosure in the revised Legislation Law are still relatively low. Therefore, the legislatures at all levels should continue to do research and sum up experience, so that the legislative disclosure system of higher standards can be formulated and amended in a timely manner.
(Translated by Ou Xiaoqi)
* JI Changlong（季长龙）, Associate Professor at Law School, ,Zhejiang Gongshang University, doctor of law.
1. Bentham, Jeremy. The Theory of Legislation. trans. Li Guifang et al. Beijing: Chinese People's Public Security University Press, 2005, at 1.
2. Ding Zunian, Wu Enyu. “Study on the standardization and practical effectiveness of legislative disclosure.” Research on Rule of Law, Issue3, (2013).
3. See [UK] Hayek, Friedrich August. Law, Legislation and Liberty. trans. Deng Zhenglai et al. Beijing: Encyclopedia of China Publishing House, 2003. 8.
4. Xing Yafei. “Research on legislative information disclosure and interest expression system of People’s Congresses.” Expanding Horizons 3 (2013).
5. Tyson, Mark. “Monitored Disclosure: A Way to Avoid Legislative Supremacy in Redistricting Litigation.”Washington Law Review (2012): 1321.
6. Xiao Ping. “The principle of transparency and local legislative disclosure system.” Journal of Nanchang University 4 (2003).
7. “The United Kingdom: the legislative process open to the public,”at http//www.cankaoxiaoxi.com/world/20150309/696846.shtml (Last visited on September 5, 2015).
8. Yuan Junfeng, Yang Yunge, “The American public participation in the legislative mechanism and its enlightenment,” Journal of the Party School of provincial-level organs of the Chinese Communist Party Sichuan Provincial Committee, No.4 (2009).
9. Professionalism of members of the Standing Committees of People’s Congresses and deputies to People’s Congresses will be conducive to promoting the level of legal professionalism of deputies to People’s Congresses, and they can have more time to collect legislative needs, strengthen communication with the public, etc. but fulfillment of this work may probably take a long period of time.