Modern theory of constitutionalism believes that if a state's legislative power is divided inappropriately, it will lead to the following results: First, over-concentration of power at central level or over decentralization of power at local level. Usually, in either case, stability of the state and social development will be adversely affected. Secondly, structural imbalance of political system and uncontrolled exercise of political power. This may cause management chaos and obstacles to social progress, or even trigger social disturbance. Thirdly, damage to legislation. There may be legislative disorder, such as overstepping legislative power, duplication of legislation and sluggish legislation, resulting in confusion of legal system and no enforcement of laws. Division of legislative powers, therefore, is a very sensitive and painstaking work, calling for comprehensive political and rule-of-law projects.
I. Historical Review and Comparison of Models of Division of Legislative Powers between Central and Local Authorities
History of division of legislative powers of a state often serves as a portrayal of history of political evolution, economic development and social reform of the state. Since the founding of New China, in tortuous process of political, economic, social and cultural development and evolution of legislative system, division of legislative powers between central and local authorities has undergone three periods, thus forming three kinds of models with historical connections.
A. The First Period: Decentralized Legislative Model
The period of decentralized legislative model extended from the time New China was established to the time when 1954 Constitution was promulgated. During this period, the exercise of legislative power was characterized by multipolarization and decentralization. Multi-subjects from central to local levels all enjoyed legislative jurisdictions. At central level, subjects that enjoyed legislative powers were the plenary session of the Chinese People's Political Consultative Conference (CPPCC), the Central Committee of People's Government and the Government Administration Committee. According to provisions of Organic Law of the CPPCC adopted by the first plenary session of the CPPCC on September 27, 1949, before the convening of National People's Congress (NPC) for general election, the plenary session of CPPCC shall exercise functions of NPC. Its legislative powers include; to make or amend Organic Law of CPPCC; to make or amend Common Program of CPPCC and to make or amend Organic Law of the Central People's Government.
According to provisions of Organic Law of Central People's Government of the People's Republic of China adopted by the first plenary session of CPPCC on September 27, 1949, the Central People's Government, in accordance with the Common Program, shall exercise the following legislative powers: to enact and interpret national laws; to issue decrees and supervise their implementation; to repeal or revise decisions and orders made by Government Administration Council which are in conflict with national laws and decrees; and to approve or revoke or revise treaties and agreements concluded by the People's Republic of China with other countries.
According to provisions of Organic Law of Central People's Government, Government Administration Council has the power to: promulgate decisions and decrees, and to examine their implementation; to revoke or revise decisions and orders made by various commissions, departments, academies, agencies and bureaus and people's governments at various levels which are in conflict with national laws and decrees and decisions and orders issued by Government Administration Council; and to submit proposals to Central People's Government.
At local levels, subjects exercising local legislative powers are mainly people's governments of big administrative regions, people's governments of provinces and municipalities, people's governments of municipalities directly under big administrative regions and under provinces, and people’s governments of counties and organs of self-government of national autonomous regions.
According to Organic General Rule of Committee of People's Government of Big Administrative Region formulated by Government Administration Council on Dec. 26, 1949, People's Government of Big Administrative Region is authorized to draw up provisional regulations and decrees relating to local government affairs, and report them to Government Administration Council for approval or for the record.
According to provisions of Organic General Rule of People's Governments of Provinces, Cities and Counties made by Government Administration Council on Jan. 6, 1950, people's governments at provincial level have the power to draw up provisional regulations and decrees relating to government affairs of local province, and report them to people's government of big administrative region, and through it, to Government Administration Council, for approval and for the record. People's governments of municipalities, cities directly under big administrative regions and provinces enjoy jurisdictions to work out provisional regulations and decrees relating to local government affairs, and report them to people's government at a higher level for approval. People's government at county level has the power to work out special regulations relating to county affairs and report them to provincial people's government for approval or for the record.
According to provisions of Enforcement Programme for Regional National Autonomy of the People's Republic of China, organs of self-government in various national autonomous areas have the power to enact special regulations in accordance with their autonomous jurisdictions and within limits defined by laws made by Central People's Government and people's governments at higher levels, and report them to people's governments at two higher levels for approval and to Government Administration Council for the record.
On June 19, 1954, the practice of big administrative regions was abolished according to the decision made by the 32d meeting of Committee of Central People's Government. As a result, legislative power exercised by big administrative regions was rescinded. The main reasons for exercising legislative powers by multisubjects and the establishment of system of decentralized legislation during early days of liberation of China area) the need to adapt to changing situation. When New China was founded, full-scale reconstruction was underway. Both revolution and construction required order and norms. At that time, old legal system was totally abolished, yet on the other hand, it was impossible for central government to draw up a great number of laws to satisfy and adapt to the needs of development of situation, b) during this period, division of legislative power "was based completely on different conditions in new and old liberated areas. For newly liberated areas, legislative powers should be granted, whether they were provinces or counties, so to enable them to carry out reforms in line with local conditions, set up democratic political power and restore and develop national economy. "[1]
During this period, division of legislative powers in China adopted a model of decentralized legislation. People's governments above county level were authorized legislative powers in varying degrees. They could exercise legislative jurisdictions according to law to administer part of or whole of local affairs within their functions. Under this model, legislative efficiency was enhanced. For example. The steps of legislation from central to local governments had been accelerated. According to statistics, from 1950 to 1953, 435 laws had been made by central government, averagely 109 laws made per year. Locally, in Zhejiang Province, from 1950--1953,a total number of 653 provisional regulations and special regulations had been worked out, averagely 163 laws per year. In Inner Mongolia, from 1950--Sept. 1954, 368 regulations and normative documents had been drawn up, averagely 73.5 legislations per year. And in Shanghai from 1950 to Sept. 1954, 799 provisional regulations and special regulations had been made, 159 per year. [2]
In traditional theory of model of division of legislative power, decentralized legislation has not been widely accepted and used as a model of legislation. A relatively similar concept is "centralized model of decentralization of power". That is, legislative powers are exercised mainly by local governments or are exercised jointly by local and central governments in a state. In some matters, local governments play a dominant role, while in some other matters, central government has a final say. Usually, this model is followed by federal states, and it is rare in unitary states. [3] The main difference between model of decentralized legislation and centralized model of decentralization of power lies in the standard used to determine models of division of legislative power. Decentralized legislation does not take division of legislative power with a view to solve relations between central and local governments as a principal reference coefficient. The standard of division looks at the number of legislative subjects. The more subjects involved in legislative affairs, the more extensive decentralization in exercising legislative powers.
B. The Second Period: Model of Centralized Legislation
From the time the 1954 Constitution was promulgated to the convening of second session of the Fifth NPC in 1979, China practiced model of centralized legislation. During this period, legislative power was relatively concentrated. Except national autonomous regions, all other local organs of power did not enjoy legislative jurisdictions. The same was true to state administrative organs. The 1954 Constitution provides that the NPC is the sole organ to exercise state legislative power, to amend constitution and make laws. The Standing Committee of NPC is responsible for interpreting laws and drawing up decrees. The Decision on Authorizing the Standing Committee of NPC to Make Special Regulations adopted by second session of the First NPC Congress in 1955 extended the exercise of state legislative power to the Standing Committee of the NPC. The justifications for this authorization are: "...with the progress of socialist construction and socialist reforms, the state needs urgently various laws to meet the requirements of building up the country and all relevant works. When the NPC is not in session, the Standing Committee is unavoidably required to adopt and implement laws with specific natures. Accordingly, the Standing Committee is authorized to draw up specific regulations in line with the spirit of the constitution and actual needs. "[4] The first session of the Second NPC Congress in 1959 authorized the Standing Committee of the NPC to revise articles in existing laws which are no longer applicable, in accordance with development of situation and needs of the work. Organs of self-government in national autonomous regions have the power to work out autonomous regulations and special regulations, and report them to the Standing Committee for approval. As there are no provisions in constitution and relevant organic laws, legislative functions such as formulating decrees, regulations and specific regulations originally enjoyed by provincial, city and county bodies have actually been rescinded. The system of division of legislative powers in this period was strikingly characterized by centralization.
During the second period, the model of centralized legislation was adopted in dividing legislative powers in China. It was the result of stipulations of the 1954 Constitution, just as what Mao Zedong described: "legislative power shall concentrate in central government". [5] Centralized legislation during this period was a demonstration of political needs and legal reproduction of the system of highly centralized planned economy. Such system of division of legislative powers, coupled with an ideology of "stressing rule by man while neglecting rule of law", had greatly impeded the development of legislation in China. According to statistics, from 1954 when the constitution was promulgated to 1979, there were all in all 1,115 legislations enacted, including various opinions, measures, orders, resolutions, decisions, notices, reports and replies, averagely 59 laws per year. As there is no local legislative power delegated then, the record in this report was nil. [6] The model of centralized legislation had strongly guaranteed unified leadership over all undertakings across the country by the central government. But at the same time, it had also put a damper on local initiatives to a great extent and hindered an all-round development of socialist legal system.
C. The Third Period; Centralized Model of Decentralization of Legislative Powers
From the second session of the Fifth NPC in 1979 to present days, centralized model of decentralization of legislative powers has been adopted. Since the third plenary session of 11th Party's Congress, in order to meet the need of transferring focal point of national work to construction of socialist modernization, to change the state of centralized legislation and to bring initiatives of both central and local governments into full play, the Organic Law of the Local People's Congresses and Local People's Governments has been adopted in July, 1979. The said law stipulates that people's congresses at various levels and their standing committees, in line with specific conditions and practical needs of local administrative regions and on the premise of in conformity with the constitution, basic laws and policies, decrees and administrative orders, can make and promulgate local laws and regulations, and report them to the Standing Committee of the NPC and the State Council for the record.
The promulgation of 1982 Constitution has laid a constitutional foundation for the system of division of legislative powers between central and local governments in China. Looking at formal elements with regard to division of legislative powers among different legislative subjects, 1982 Constitution provides that: the NPC has the power to amend and supervise the enforcement of the Constitution, enact and amend basic laws, and modify or repeal inappropriate resolutions made by the Standing Committee of the NPC; the Standing Committee of the NPC has the power to interpret and supervise the enforcement of the Constitution, enact and amend laws other than basic laws, supplement and amend to some extent laws made by the NPC, interpret laws, annul administrative regulations, decisions and orders, made by the State Council, which contravene the Constitution and laws, and revoke local regulations and decisions, made by local organs of state power, which contravene the Constitution, laws and administrative regulations; the State Council has the power to formulate administrative regulations; people's congresses at provincial levels and their standing committees have the power to draw up local regulations and report them to the Standing Committee of the NPC for the record; and people's congresses in national autonomous regions have the power to work out autonomous regulations and special regulations.
Article 7 of the revised 1986 Organic Law of the Local Panic's Congresses and Local People's Governments provides that people's congresses of cities where provincial and autonomous areas' people's governments are located and of large-sized cities approved by the State Council have the power to work out local regulations and report them to standing committees of people's congresses at provincial and autonomous areas' levels for approval.
In July 1992, the 26th meeting of the Standing Committee of the 7th NPC adopted a decision authorizing the people's congress of Shenzhen and its standing committee to enact regulations. In 1994 and 1996, similar power was also authorized to people's congresses and their standing committees in Xiamen, Zhuhai and Shantou successively. All relevant provisions provided by the Constitution, laws and legislative conferment have enabled a preliminary division of legislative powers in China. With recognition of power to enact administrative regulations by legal system, the system of legislative powers by which both central and local authorities and organs of state power and that of administration can exercise their respective legislative powers, has been basically formed.
During the third period, centralized model of decentralization has been adopted. On the premise of unified leadership in the field of legislation by the central authority, certain legislative powers has been delegated to local governments, serving as complements to centralized legislation. In legislative theory, centralized model of decentralization means that in a sovereign state, central authority mainly exercises legislative power. However, under certain conditions, extents and procedures, local governments can properly exercise some local legislative powers delegated by the central authority. This kind of model is characterized by taking centralization as primary and local decentralization as secondary. Local legislative powers are far less than central legislation and theirs exercise is subject to central control. Taking into consideration the model of division of legislative powers established in 1982 Constitution, what we have adopted belongs to the centralized model of decentralization. This model has, to some extent, brought initiatives of both central and local legislations into play. Legislative work in China, thus, has made unprecedented achievements. In 19 years of reform and opening to the outside world, besides revision of 1982 Constitution and completion of 2 constitutional amendments, the NPC and its standing committee have enacted 320 laws; the State Council has formulated more than 800 administrative laws and regulations, so 57.8 laws made at central level every year. People's congresses and their standing committees in various localities have introduced over 5,300 local laws and regulations, with an average of 278.9 laws per year. However, the legislative model established by 1982 Constitution has its drawbacks. The most evident is: it cannot satisfy the requirement of resources of legislative powers needed by local governments. To some extent, therefore, this model has checked steps of economic development and political reform at local levels. In view of this situation, the central government has vested in local people's governments and their standing committees the power to enact local laws and regulations through legislative authorization. Though some local organs of power have been vested with formal authority to enact local laws, yet division of legislative powers remains unsolved, since in substantive contents, there is no division of legislative powers between central and local governments in many fields or the division is unclear.
II. Thinking and Methods of Division of Legislative Powers
Due to the confusion of division of legislative power as prescribed by the constitution and law, some scholars proposed to forsake efforts made in division of legislative powers, because they would get nowhere. It's better to maintain the status quo and pay more attention to legislative procedures than further efforts to divide legislative powers. I think this view is too pessimistic. Though the essence of division of legislative powers is the design of political system and reform, technically, it's still possible to work out a more distinct division on the premise that the system has not undergone major changes. More distinct division of some respects of legislative powers is not only required, but also workable.
Approaching from technical dimension, division of legislative powers as prescribed by the constitution and law is composed of 3 parts: legislative subject, the form of legislative jurisdiction and content of legislative power. In legislation science, legislative subject refers to organs that have the power to enact, approve, amend, supplement, interpret and repeal laws. As legal status, areas and scopes of jurisdiction of each legislative subject vary; an interrelated and overlapping system has been formed on basis of different levels and series. The form of legislative jurisdiction means the ways legislative subjects exercise their legislative functions and manifestation of their consequences. Due to different forms of manifestation of legislation, a complicated legal system is established. In China, the legal system is made up of the constitution, basic laws, laws and regulations, administrative regulations and local laws. It may be relatively easier if one distinguishes various legislative jurisdictions only on the basis of legislative subject and form of legislation. The existing system of legislative jurisdictions in China now is composed of these two parts. However, in practice, this kind of division cannot solve problems effectively, since it is not the division of legislative powers laying emphasis on substantive content.
The substantive requirements of division of legislative powers between central and local authorities must also include the determination of jurisdiction of legislative matters, that is, the legislative contents. Obviously, there exists problems in division of contents of legislative jurisdictions between central and local authorities, in dividing legislative powers, the main question is: what thinking and methods we should follow. With regard to thinking of division, we need to consider whether to follow centralized legislation or decentralized legislation at local levels, or a system of "equalized legislative powers" between central and local authorities. With regard to methods of division, which serve thinking of division, there are already advanced experiences abroad for us to learn.
Taking into account actual conditions of China, we shall try to solve the problem of division of legislative power through technical means. We need to clarify our thinking and choose appropriate ways and means.
A. Thinking of Division of Legislative Powers
It is a prerequisite to determine thinking or principles of division of legislative powers. In federal states, legislative power comes from various states and their people's consent. The agreement reached during drawing up of the constitution is the standard of legislative functions enjoyed by federal and states' governments. Usually, the agreement is a bargaining process based on faith and interests, with the rational and demands of interests playing a significant role. Scholars of constitutional law often consider that constitution is the contract between people and government. In federal state, constitution also serves as the contract between various states and central government. Legislative powers enjoyed by various states are regarded as consensus among contractors.
In China, overall, the thinking for division of legislative powers is: to unify peoples of all nationalities across the country and bring all initiatives into full play so to accelerate construction of socialist modernization. But in dividing major relations of powers, some stipulations and formulations reflect different attentions. In dividing powers between central and local authorities. Article 3 of 1982 Constitution provides that division of functions between central and local state organs complies with principles of unified leadership by central government and bringing initiatives and enthusiasm of local governments into full play. In dividing legislative powers, we must not only base ourselves on the constitution, but also adhere to Party's leadership and take the party's basic line and policies as guidance. The report of the 13th Party's Congress notes that "...regarding central and local relations, their respective functions should be clarified step by step, with central government working out important strategies and policies and carrying out supervisions and local governments running their own local affairs. " "Any matter which is good for the local governments to handle, it should be decided and handled by them. This will be a general principle. "[7] The guiding ideology of the 13th Party's Congress is to simplify government and decentralize power. When coming to division of legislative powers, the character of "local decentralization" is stressed. To clarify thinking of division of legislative powers in China, it clearly involves whether we'll continue implementing the policy of "simplifying government and decentralizing powers" pushed since 13th Party's Congress, or take back some of powers from local authorities by central government so to enforce centralized legislation, or maintain status quo provided by the constitution and relevant laws. In Sept. 1995, Jiang Zeming once again stressed the importance of bringing two initiatives of both central and local governments into play during the 5th plenary session of the 14th Party's Congress. He pointed out "Since reform and opening policy, decentralization of power has been practiced. Consequently, local enthusiasm has been brought into full play. This has given an impetus to reform and development...But in the process of development, there emerge some new contradictions and problems. " Under the new situation, we must adhere to the general principle of "two initiatives", that is, "there should be both unification of interests of the whole and flexibility of giving consideration to partial interests while practicing central guidance and unified leadership; and both concentration of power of macro-control by central government and authorization of necessary powers to local governments under central guidance. At present, efforts should be given to rational division of economic management jurisdictions between central and local organs, defining respective powers over matters, financial affairs and decision-makings. We should try to achieve unification of power and responsibility and this must be normalized and legalized. "[8] Accordingly, the basic thinking for division of legislative powers between central and local governments is to bring "two initiatives" into play. Both central and local governments must have necessary legislative powers. In terms of legislative language, the system of "equalized power" is put into practice.
In law community in China, there are different views on thinking of division of legislative powers between central and local governments. There are mainly three kinds of views: the first kind holds that local legislative powers should be strengthened, because it reflects not only inevitable needs of actual conditions, but also an inevitable trend of reform and opening policy as well as building up a legal system at home; the second kind maintains that the thinking of unified legislation should be followed, because in, a unitary state like China, unification and centralization should not only put into practice in political areas, but also in legal areas, including the area of legal system. We have no reason to advocate decentralized legislative powers at local level. "The expansion of local legislative powers may lead telepathist regimes ". [9] The third view upholds that centralized and decentralized legislations are not in conflict with each other. The former needs supplements and details-accomplishment of the latter, and the latter operates with the former as the basis, or not contravening the former, or in accordance with authorization by organs of state power.
Personally, in line with principles of the constitution and bringing the "two initiatives" into play, I think the general trend of division of legislative powers between central and local governments in China should be, and inevitably shall be the decentralization of power, with increasing expansion of local legislative powers. However, in order to keep a coordinated relation among reform, stability and development, and in the process of building up a unified socialist market-economy structure and before major changes made in political system, in the near future, the thinking of maintaining the status quo and making moderate and appropriate adjustments is more desirable. Talking about moderate and appropriate adjustments, it means that central government may take back some legislative powers already delegated to local governments, such as powers relating to macro-control and management of economy; or in order to adapt to needs of deepening the reform and widening the opening policy, or to better guarantee citizens' rights, the central government may vest in local governments more powers to enact local laws. Anyway, in principle, whether taking back powers or decentralization powers, it shall not upset the balance of existing powers shared by central and local governments. What we devote to do shall be beneficial to bringing the "two initiatives" into full play, helpful to the great cause of governing the country according to law and advantageous to stability and unity.
B. Methods of Division of Legislative Powers between Central and Local Governments
Internationally, there are four methods of division of legislative powers between central and local authorities: to stipulate special legislative powers of central government; to stipulate special legislative powers of local governments; to stipulate joint legislative powers shared by both central and local governments; and .to determine where the remaining legislative powers shall belong to. What is called special legislative power (also called exclusive legislative power) means legislative functions specially and exclusively exercised by specific legislative subjects over certain matters. Among special legislative powers, some are not to be transferred and authorized, such as matters with regard to reservations of legislative powers, and some may be vested in other subjects under certain conditions and circumstances. In China, what method to be employed to divide legislative powers between central and local governments involves setting up of special legislative powers. There are mainly several choices:
First choice, to explicitly stipulate special legislative powers of central government while having no special stipulations on legislative powers of local governments. But principles provided in the constitution and local organic laws should be maintained. Justifications for such choice are: a) China is a unitary state. As local governments do not enjoy special legislative powers, there is no need to list various local legislative powers; b) China now is in a transitional period with an uneven development all over the country. Moreover, limits of local legislative powers are uncertain, so it is difficult to define properly local legislative powers; c) Historically, centralization of authority was practiced in China. How to keep a balance between unity of the State and significant role played by local governments still requires further exploration and summation. Consequently, conditions are not ripe for stipulations of special legislative powers held by both central and local governments at the same time. If such division is made, the result may be: in case the special legislative powers owned by the central government belong to measures reducing scope of power, then maintaining limits on legislative local powers as prescribed by constitution and organic laws will undoubtedly generate "gaps of legislative powers"; and in case special legislative powers belong to measure expanding scope of power, then principles contained in constitution and organic laws are bound to be broken. Second choice, to explicitly stipulate special legislative powers of local governments. Local powers need to be further recognized and guaranteed and there must be space necessary for development of local legislative powers. The reasons are: a) local legislative powers come from peoples of respective administrative regions but not from or are subordinate to central authority. It is necessary, therefore, to stipulate clearly matters falling into local legislative jurisdictions by law, so to guarantee that peoples of the said administrative region exercise all local powers; b) the practice and experiences accumulated by local legislation in the past 20 years have provided important foundation for setting up special legislative powers of local governments. These should be summarized and affirmed through legislation; c) the major trend of reform in China is "decentralizing power" from central to local governments. In order to consolidate achievements of reform, local legislative powers should be protected by defining special legislative powers of local governments. Only thus, can various reforms be carried out smoothly. This method of stressing special legislative powers of local authories actually aims at consolidating achievements of expansion of local legislative powers, that is, to affirm and legalize those legislative matters which have already fallen into local jurisdictions but not been stipulated by law yet or are still in controversy. We need to note that if, theoretically, the notion that local powers come from peoples of respective administrative regions but not from authorization of central government is accepted with an aim to expand local legislative powers, we may violate the principle that in a unitary state, local powers belong to central government. This is detrimental to unity of the state, because the notion offers justification for separation. With regard to this viewpoint, in drafting Basic Law of Hong Kong Special Administrative Region, NPC has made it clear that Hong Kong is an inseparable part of China, that all its autonomous powers such as administrative management power, legislative power, independent judicial power and final adjudication power are vested by the NPC. That is, all powers are authorized by central government but not inherent in Hong Kong. [10] Proceeding from development of both state's and local interests, in some modern states, at central as well as local levels, there are demands for expansion of powers. In central government, the trend manifests itself as demands for concentration and control of powers, while in local governments, as demands for autonomy and protection of local powers.
The third choice, in line with actual conditions of legislative, political, economic and social developments, the law should define special legislative powers of the state. Any other organs without special authorization shall not, in their legislative work, deal with matters falling into limits of special legislative powers of the state. Meanwhile, there should be principled stipulations on legislative powers of other organs. However, this kind of stipulations may not refer to powers with special nature. Regarding matters falling into category of no state special legislative powers, the principle of giving priority to NPC and its Standing Committee is practiced, namely, for matters not within scopes of special legislative powers of the state and without legislations made by NPC of its Standing Committee, local people's congresses may first enact local laws. But once legislation has been made by central authority, any local laws or regulations that contravening or repeating the said law shall be abrogated or annulled.
What functions division of special legislative powers, including whether to divide them and how to divide them, have calls for further discussion. Proceeding from prevailing standpoints of international political science, legislative theory and constitutional theory, division of special legislative powers embraces inherently functions of recognition and affirmation of scope of power of relevant subject. However, what is more important is to define limits of power of the subject. That is, in sense of techniques and methods, the significance of setting up special legislative powers is to restrict power and on this basis, to offer protections. Loading at legislative histories of states of constitutionalism, the original intention of defining special legislative powers does not lie in expanding legislative powers of a legislative subject, but in restricting and defining the limits of legislative powers to be exercised. In federal states, legislative powers of federal and states' governments are enumerated in details, with a view to limiting their respective scopes of acts and preventing their overstepping of powers. In a unitary state like France, when the constitution provides division of legislative powers of the parliament and administrative legislative powers of the president, the law-prescribed matters are enumerated one by one. All matters without legal stipulations belong to jurisdictions of administrative regulations and president's orders. In this way, the parliament's power is retracted and the president’s administrative legislative powers enhanced. [11] Similar verifications can also be obtained through analysis of theory of sources of state power. Doctrine of local origin holds that central powers come from transfer or empowerment from local authorities. As a result, special legislative powers of the central government need to be stipulated clearly by law, and there is no need for local governments. Any matters that do not fall into scopes of central special legislative powers shall remain within jurisdictions of local legislation. Doctrine of central origin, nevertheless, holds that local powers come from authorization of central government, accordingly, local legislative powers should be specifically stipulated by law. Such explicit stipulations may limit local powers. Any powers unauthorized should not be exercised by local legislative organs. Of course, besides explanations of the above-mentioned two methods of division, one should also see whether, in non-special legislative powers, there are further divisions and the ways to divide those powers.
The original intention of creating techniques of division of special legislative powers is to restrict power. However, in practice, whether this objective can be reached depends on contents and scopes of special legislative powers. If great numbers or most of legislative matters are put under special jurisdiction of a certain legislative subject, then the establishment of such special legislative powers deviates from the demand of its original value and becomes means of expansion or monopoly of legislative powers.
C. Ways and Technical Plans for Division of Legislative Powers
Another issue that relates to methods of division of legislative powers is question of ways, namely, the division of legislative powers will be imposed by law or by constitution? In most states, main contents of division of legislative powers are part of basic political and legal systems of a state. Usually, they are stipulated by the constitution or constitutional instrument. However, the Law on Legislation that is under the drafting in China now can neither be put under the constitution nor constitutional instrument similar to that in Britain. The paradox thus produced in constitutionalism in China is, if the said law only repeats stipulations of system of legislative powers and its contents contained in the Constitution and Organic Law, there will be no point in doing this in practice, though in constitutional principles, there will be no troubles. On the other hand, if we seek to have a breakthrough of the existing system of legislative powers, it may result in challenges to principles of constitutionalism and weaken the authority of the Constitution. Taking into consideration the overall design of giving progressive push to political structural reform and realistic thinking of division of legislative powers, I don't think it is advisable to make big changes in division of legislative powers and breakthroughs in the present system. But actually, moderate adjustments and limited breakthroughs may be suitable. And on the basis of this, contents of division of legislative powers will be defined by the Law on Legislation. In case stipulations in the Law on Legislation unavoidably involve amendment of the Constitution and Organic Law, we may suggest amendment of the Constitution. Anyway, the part in question of the Law on Legislation should not be put into effect before any amendment of the Constitution. Otherwise, it will lead to harmful consequence of "amending the constitution by law. [12]
How do we operate in practice of legislation? According to current legislative viewpoints, there are three technical plans that can be taken as reference for the Law on Legislation: a) "broad instead of detailed provisions". Justifications for this plan lie in the fact that now we are in a transitional period with various social relationships changing indeterminately. It is therefore, impossible to stipulate in details legislative powers of respective legislative subjects. If detailed stipulations are made, it may greatly tie capacities of legislative subjects and damp their legislative enthusiasm. In fact, legislative work requires professional, technical and operational elements. The Law on Legislation governing legislative conducts must reflect those characteristics. In aspects such as division of jurisdictions, legislative procedures, techniques, interpretations and supervisions, stipulations shall be made carefully and thoughtfully, so they can be operational. Otherwise, there will be no need to enact the Law on Legislation; b) "detailed instead of broad provisions". The advantage of this plan is that it is not only easy to operate but also prone to reducing contradictions, confusions and duplication of laws. Legislative efficiency will be strengthened; c) "try every effort to be in details if possible and if impossible, broad provisions". This plan embraces the thinking of the second plan, but advocates of it consider that some matters are impossible or should not be defined in details; thus, they bring forward a compromised plan. Comparing these three plans, it seems that the second plan is more desirable. However, if we proceed from the reality, the third plan is more operational in legislation and more workable.
III. Division of Legislative Powers between Central and Local Governments
China is a unitary state. In concept, we need to have appropriate understanding and reasonable expectation of division of legislative powers between central and local governments. In political practice, the essence of division of legislative powers involves distribution of interests and resources and determination of responsibilities. Various legislative subjects at central and local levels will be interests-driven and expect more and greater interests conscientiously or unconscientiously in division of legislative powers. This basic characteristic decides the fact that it is impossible for division of legislative powers to satisfy interests' demands of any legislative subjects, particularly the disadvantaged subject. As a result, the process of division of legislative powers has to be a process of mutual consultation, compromise and concession, or the work cannot be accomplished. Moreover, division of legislative powers requires not only appropriate degrees of giving consideration to various subjects' interests in line with actual conditions and basic policies of the state, but also reasonable expectations from subjects in distributions. If division of legislative powers is likened to carving-up of a cake, and if each party wants to take a greater piece unrealistically without considering other parties' demands of interests, then the division can hardly be done in a peaceful and fair way. It will lead to infringement on a party's interests and dampen her enthusiasm. As the purpose of division of legislative powers is to bring "two initiatives" but not one into play, restrictions have to be imposed on both central and local authorities. The position held by some scholars that in dividing legislative powers between central and local governments, "two initiatives but not restrictions" must be reflected, [13] is not true. To bring legislative powers into play and to impose necessary restrictions during division of legislative powers are not in contradiction with each other. In the course of division of legislative powers, whether limiting central of local powers or limiting powers of both simultaneously, they are necessary and permissible. So long as restrictions are properly made, they will protect and bring into play each side's interests instead of dampening their legislative enthusiasm.
In China, in order to bring two initiatives of central and local governments into play and to guarantee unity of laws and administrative orders of central government, the special legislative powers of central authority (that is, the NPC and its Standing Committee) must be stipulated within necessary limit.
A. Matters Coming into Scope of Special Legislative Powers of the NPC and Its Standing Committee
Making use of foreign legislative experiences and proceeding from actual conditions of China, and on the basis of provision of the Constitution and relevant laws, special legislative powers of the NPC and its Standing Committee may cover the following contents:
1. Matters relating to state sovereignty
This category may cover: a) territory of the country, exclusive jurisdictions of the state over its territorial land, water and their base land and territorial air space; jurisdictions over inland waters-- rivers, canals, lakes and inland sea; system of border areas and frontiers. b) National defense and system of military service, including decisions on issues of the war and peace, establishment of basic system of people's aimed forces, declaration of state of war and decisions on national or partial mobilizations, c) diplomacy, including decisions on appointments and removals of plenipotentiaries sent to other countries, approvals and abolishment’s of treaties and important agreements concluded with other countries, system of ranks of diplomats and system of political asylum sought by foreigners in China. d) System of administration of nationality.
2. Matters relating to basic rights and obligations of citizens
This category may cover: a) the basic protection system of basic rights and freedoms of citizens contained in the Constitution and relevant legislations, b) fully-justified and conditional limits or deprivation of basic right and freedoms of citizens. When exercising this power, explanations should be given with regard to necessary and sufficient justifications for limits or deprivation of basic rights and freedoms of citizens, and there should be supervisions and controls over subjects, procedures and contents in relation to limits or deprivations. c) Stipulations on basic obligations of citizens, such as military service and taxation. d) Basic rights and obligations of foreigners in China. e) "Transforming" application of international human rights instruments in domestic laws. f) Other matters relating to limits or deprivations of basic rights and freedoms of citizens, establishment of basic obligations.
3. Matters relating to basic political system of the state
This category may cover: a) organs of state power, administrative bodies, judicial organs and establishment, functions and mutual relations of military departments. b) System of political party. c) System of political structure of the state. d) System of national election. e) Basic principles and system of regional national autonomy. f) Basic principles and system of special administrative regions. g) Basic principles and system of social self-government (such as villagers' committee and residents' committee).
4. Matters relating to basic legal system of the state
This category may cover: a) establishment of legislative system, including provisions of legislative subjects enjoying legislative functions and their division of legislative powers. b) Basic system of legislative procedures. c) Basic laws and system of legal structure and structure of laws at different levels, such as hierarchy of forms, authority of laws, establishment of branch laws, enactment of basic laws and laws. d) Basic system and procedures of administration of justice. e) Basic system and procedures of judicial procuratorial work. f) Basic system and procedures of legislative interpretation, putting on files and supervision of unconstitutional acts. g) Basic system and procedures of lawyers, notaries, arbitration and legal aids. h) Basic system and procedures of authorized legislation. i) Basic legal system of national unity of rule of law and implementation of policy of "one country two systems. "
5. Matters relating to basic economic system of the state
It may cover: a) system of financial budget and final accounts necessary to guarantee macro-regulation of the state over economy, system of issuing money, system of Customs, system of foreign trades and system of taxation industry. b) Matters significantly related to national economy and must be put under national unified management, such as post and telecommunications, communications, railways, civil aviation, space flight and nuclear energy. c) Basic systems of operation and management of state assets, and of development and use of national resources. d) Basic system to safeguard unity of domestic markets.
6. System relating to basic administrative management of the state
It covers: a) basic functions and powers of administrative organs. b) Institution, authorized size and procedure of administrative organs. c) Basic principles, policies and system of education, science, culture, health and hygiene, civil affairs, judicial affairs, supervision and control, auditing, labor and personnel. d) Division of administrative regions and martial law. e) Other matters coming into category of basic administrative management by the state.
7. Matters relating to language, writing, calendar and weights and measures, which need to be normalized by the state
8. Other matters which should be governed by basic laws or laws as provided by the Constitution
For matters coming under special legislative powers of the NPC and its Standing Committee, no local regulations may set foot there. However, some above-mentioned matters may be enforced or implemented by means of local regulations through provision of the Constitution or laws. There are a pretty number of examples abroad in this respect. For instance. The Swiss Constitution provides that for matters such as agriculture, criminal law, civil law, social security and insurance and environmental protection; they shall be implemented by various cantons on the basis of laws enacted by the federal government. Cantons may also enact laws in order to implement those specific matters.
B. Matters within Limits of Local Legislative Powers
According to relevant stipulations by the Constitution and Organic Law, the contents and scope of local legislative powers are rather broad. Besides having the power to enact local laws and regulations in those important matters such as economy, education, science, culture, health and hygiene, civil affairs and ethnics, some important matters in field of "politics" are also within jurisdictions of local legislation. In China, "politics" is an all-embracing concept. It is difficult to define in theory what are major political matters, and it is hard to hold in practice. Within this confused limits of powers, there is plenty of room for matters coming under local legislation. According to statistics and research done by some persons concerned, among 2,000 local regulations made between 1979 and 1991, legislations belonging to category of "political affairs" include: establishment of political power, politics and law and social rights and interests. Among them, the kind of establishment of local political powers accounts for 22% of the total local laws and regulations. They mainly involve working regulations and rules of procedures of local people's congresses and their standing committees, constructions of political powers at township and rural grassroots levels, procedures and rules for working out local regulations, detailed rules for implementation of Law on Election, rules concerning supervisions of local people's congresses over government, court and procuratorial organs at the same levels. The kind of politics and law amounts to 14% of the total local regulations. Their contents mainly involve maintaining of public order, prohibitions of narcotics, gambling and pornography, collection of fees in civil proceedings, protection of lawyers' performing their functions according to law, implementing methods of demonstration, reform through labor and recorrection through labor. The kind of social rights and interests amounts to 11% of the total local laws. Their contents mainly involve family planning, reducing farmer's burdens, protections of minors, the elders, women, disabled persons, returned overseas Chinese, overseas Chinese and protection of rights and interests of consumers. These three kinds cover nearly 47% of the total local laws and regulations. [14] Practice shows that since the reform and opening policy, "...in the past decade and more, the scope of local legislation is increasing significantly. With steps accelerated in the course of reform and opening to the outside world, the scope of local legislation will expand further. "[15] This trend is obvious to all. Moreover, even some legislative matters reserved for central unified legislation according to principles of the Constitution, such as restrictions on basic rights of citizens, and legislation on national defense, military affairs and diplomatic affairs, are not considered as "matters under exclusive legislative powers of the central government". Local legislation may play a role instead.
Why do local legislations have such rapid development? On one hand, it is the result of building up democracy and rule of law in China, and the reflection of strengthening of sense of rights held by ordinary people and sense of running the country according to law and building up a socialist country with rule of law; on the other, it is the effect of utilitarian element, mirromg interests demands of local economic and social development. It is clear that local legislation can bring about certain instrumental and realistic values, and will legalize some acts of local protectionism, unjustified administrative institutions and powers and interest of some departments. For example. "Some local people's congresses and their standing committees, in enacting local laws and regulations, they will give more considerations to concrete conditions and actual needs' of their own administrative regions, while giving few consideration to conformity of their acts with the Constitution, laws and administrative regulations. This is the concentrated expression of local protectionism in legislation". [16] Legislation requires dynamics and "lubricating oil", but if the motive of legislation divorces from the overall interests of the state, thus neglecting the whole situation of rule of law, it may lead to deviation from socialist democracy and rule of law.
C. Principles of "Non-contradiction" and "Non-duplication" in Local Legislation
In practice, both scopes and contents covered by local legislations are very broad, because provisions in the Constitution and laws are not scientifically made and there are too many principled contents. According to the present legislations and under the current political system, it is very difficult to define local legislative powers on the basis of contents of matters. A more feasible legislative choice, therefore, may work in the following way: while providing special legislative powers of central government, restrictions of conditions and procedural requirements shall be made in field of local legislation. Concerning restriction of conditions on local legislation, a generally held position is: local people's congresses and their standing committees having legislative powers can enact laws, so long as they take into account local conditions and actual needs and do not contradict the Constitution, laws and administrative regulations. That is, the principle of "non-contradiction" must be followed. Practice shows the said principle can hardly guarantee quality of local legislations, because first, it cannot avoid a large number of "duplicated legislations" widely existed in local legislation. [17] Next, since local governments have been authorized to legislative powers, no local laws and regulations reported to central government have ever been revoked on the ground of "contradicting" the Constitution, laws or administrative regulations. So this principle exists in name only. And in line with this position, like "...so long as local legislation does not contravene the state law and so long as concrete conditions and actual needs are taken into consideration, local authorities may work out whatever local laws and regulations they want ", [18] the expansion of local legislative powers are only natural. Finally, according to strict interpretationism of legislation, the principle of "non-contradiction" must contain this implication, namely, in matters where central government has not made laws, local governments are not allowed to go ahead of the central government. The principle of "non-contradiction" implies that central laws serve as the basis for local legislation. So under this precondition, central legislation must be given priority. [19] If this interpretation is adopted, local legislation will be undoubtedly limited and thus, unsuitable for China's conditions. However, if a broad interpretation is adopted, it may result in expansion of local legislative powers. I would like to suggest that besides adhering to the principle of "no contradiction" in the field of local legislation, principles of "non-duplication" and "non-overstepping of one's jurisdiction" should also be followed. In recent years, phenomenon of duplication of legislation has been a big drawback in local legislation and now spreads rather quickly. Its harmfulness of waste and low efficiency has become increasingly glaring. Due to overlapping in contents of legislative matters between central and local legislations and between primary and secondary laws, secondary laws will often in part or in great quantities repeat contents of primary laws. Examining from the angle of division of legislative powers between central and local governments, duplication of legislation causes wastes of legislative resources and may also lead to or aggravate confusions among various legislative powers.
In order to define legislative powers between central and local governments under the situation when legislative matters and con- tents overlap, it is extremely necessary to impose that secondary laws shall not repeat or duplicate primary laws.
What constitutes duplication of legislation still lacks standard and final conclusion. Consulting relevant tenets of Copyright Law, it seems that duplication of legislation means unnecessary and unreasonable repeating of contents of primary laws by secondary laws. What is called "necessary and reasonable" refers to: a) quoting relevant articles of primary laws as legislative basis for enacting secondary laws; b) quoting relevant articles of primary laws as the basis of application or applicable articles of secondary laws; and c) contents which must be quoted or provided by secondary laws according to stipulations of primary laws. In terms of quantity, generally, duplication needs to be kept below 20% of the total legal text.
Regarding overlapping of contents, some hold that so long as the contents are not covered by special legislative powers, legislation may be permitted. However, secondary laws must be subject to primary laws. Some others maintain that in defining legislative powers, we must try to avoid stipulations of excessive matters relating to share legislative powers, so to reduce possibilities of overlapping in contents. I would like to suggest that limits be made in procedures, namely, to provide that legislations (meaning both administrative and local legislations) must adhere not only to principle of "non-contradiction", but also to principle of "non-duplication". In terms of same matters, secondary laws should not repeat contents of primary laws. With regard to matters not within scope of special legislative powers, both central and local governments may exercise legislative powers. Where there is no legislation by central government, local regulations may be formulated in advance. Where there have already been legislations by central government, local regulations may be made according to local needs on the premise that they do not contravene or repeat central legislations. Local regulations that contravene or repeat central legislations are invalid.
"Non-overstepping one's legislative power" is a fundamental principle that legislation in a rule-of-law society should be followed. In China, when divisions of legislative powers are clearly defined, it wills not 130 difficult to implement this principle. However, when legislative powers are in a confused situation, it will make no sense to stree this principle. The standard of whether overstepping of one's power has occurred, therefore, is determined by relatively clear stipulations in this respects. Meanwhile, a supervision and judgment system for unconstitutional examination must be established, so to guarantee a timely judgment when the issue of overstepping of one's powers arises.
[1] Zhang Shangong, edit. Principles of Legislation Science, Press of Shanghai Academy of Social Sciences (1991), p. 99.
[2] Wu Dayin, Socialist Legislative Issues in China, Mass Publishing House (1984), p.36andp.241.
[3] Wu Dayin, Ren Yunzhen and Li Lin, Comparison of Systems of Legislation, Mass Publishing House (1992), p. 274.
[4] See generally Compilation of Second Session of the First NPC of the PRC, p. 995.
[5] Selected Works of Mao Zedong, Vol. V. p. 276.
[6] Wu Dayin, Socialist Legislative Issues in China, p. 241.
[7] Compilation of Documents of the 13th Congress of the Chinese Communist Party, People's Publishing House (1987).
[8] Documents of the 5th Plenary Session of the 14th Central Committee of the CCP, People's Publishing House (1995).
[9] Li Yahong , "Reflections on Legislative Relations between Central and Local Authorities During Transitional Period", China Law Science (1996), first issue.
[10] Wang Shuweng, edit. Introduction of Basic Law of Hong Kong Special Administrative Region (revised), Press of Central Party's School of CCP (1997), p.40.
[ll] Liu Qinlin, translated. Comparison of Political Systems, Law Publishing House (1984), p. 305. According to author, French Constitution has clearly narrowed parliament's powers in terms of relations between the government and the parliament, so to enable government to take actions more freely.
[12] Example in this respect is the legislative powers of the Central Military Committee. The 1982 Constitution does not vest in the Military Committee the power to enact military regulations, but the Law on National Defense of the PRC adopted by the NPC explicitly provides that the Central Military Committee has the power "to enact military regulations and issue decisions and orders in accordance with the Constitution and law", On the basis of the principle of rule of law of democratic constitutionalism, this authorization is inappropriate, be- cause, a) the Constitution does not provide that the Central Military Committee has the power to formulate military regulations; b) legislative powers belong to fundamental constitutional powers, and they must be provided by the Constitution instead of by other laws. If this legislative theory is adopted, then the NPC and its Standing Committee may provide by means of law that the Supreme People's Court, the Supreme People's Procuratorate, President of the State, and Premier of the State Council can have the powers to draw up legal documents, and local people's congresses can also have the powers to provide that those local people's congresses and their standing committees that have not been authorized legislative powers yet may have the powers to enact local regulations.
[13] Shen Guancheng, "Reunderstanding of Local Legislative Powers", China Law Science (1996), first issue.
[14] Tang Xiaokui, edit. A Comparative Study of Local Laws and Regulations, Publishing House of China Democracy and Legal System (1992), p. 26.
[15] Shen Guancheng," Reunderstanding of Local Legislative Powers".
[16] Li Cheng and Wan Qigang, "On Problems Existed in Legislation in China", Law Science in China and Abroad (1996), second issue.
[17] According to persons engaged in local legislations, duplications of local laws, "minor laws" repeating "major laws" and "previous laws" repeating "later laws", all amounts to nearly 70%-90% of the total local legislations.
[18] Shen Guancheng, "Reunderstanding of Local Legislative Powers”. China Law Science (1996), first issue.
[19] Of course, matters coming under special legislative powers of central or local authorities do not fall into this category and matters coining under shared special legislative powers by both central and local authorities are not in this category, either. What refers to here be mainly matters within limits of central legislation but are enforced or implemented by local governments?