Local legislation refers to the local organs of state power that make and amend standard legal documents within their own administrative areas, in accordance with relevant laws.
Local legislation is an important aspect of the whole legislative system of the country. At present this includes general local legislation, local legislation in ethnic autonomous areas, and local legislation in the special economic zones and special administrative regions. And within the general local legislation and legislation in ethnic autonomous areas consist of different levels.
So far there are still some misunderstandings as to the meaning of local legislation in China. First, local legislative bodies are either understood in very narrow or loose terms. Some people regard local legislation as the job only of the local organs of state power, while others wrongly understand local legislation bodies to be all local government organs. Second, the local laws are either narrowly understood as activities that introduce or change local regulations or are loosely regarded as all the regulatory documents issued by local state organs. Third, the scope of administrative areas and the scope of law enforcement are either narrowly or loosely understood so that the laws are either wrongly restricted to one province or extended to all counties. These misunderstandings should be overcome in order to better understand the nature of local legislation.
The roles of local legislation in China mainly cover the following:
First, to effectively enforce the Constitution, laws, rules, and regulations, as well as the basic policies and guidelines of the government. On one hand, local legislation can make these laws and regulations more specific to the local situation for effective performance at different places in different situations, with the help of implementing rules or flexible regulations. On the other hand, local legislation can make the above easier to perform or supplement wherever the rules are inadequate.
Second, to settle those issues that legislation at the central level cannot solve independently or for which central legislation temporally does not exist.
Third, to independently solve all issues that should be settled through local legislation. For example, these may include the management of water conservancy in local rivers or lakes, protection of dykes, protection of the natural environment, protection of an urban environment, issues related to ethnic minorities and other local policies, economy, education, science, culture, public health, civil affairs, and other specific issues that should be settled through local legislation.
Fourth, to promote changes in Chinese society governed by traditional local practices into a society ruled by law. China should completely get rid of traditionally backward elements handed down by the former rule of local individuals, which hinder China from moving toward modernization, and turn the country into one that features the rule of law. This requires both the central and local governments to introduce legislation. The reform of the economic structure started in the countryside. When local legislation in China is administered well, no force can change the trend of the whole country in gradually moving toward the rule of law.
During the past ten years or more, legislation in China has been the link in the entire legal system that has developed most rapidly and has produced the most prominent achievements, much of this having a great deal to do with the obvious progress made in local legislation. Local legislation has played an active role in the development of China’s economy, politics, legal system, culture, and other aspects of society, as reflected in the following areas:
(1) Actively readjusting economic relations and standardizing economic life; promoting the development of the economy; guiding, promoting, and guaranteeing the reform due to economic restructuring and opening up to the outside world.
(2) Strengthening local political power, improving the system of the people’s congresses, building up a local legal system, and promoting the development of democratic politics.
(3) Stabilizing the social order, strengthening the management of a safe society, and preventing and eradicating social evils.
(4) Safeguarding the lawful rights and interests of women, children, old people, minors, and all other citizens, as well as protecting consumers’ lawful rights and interests.
(5) Guaranteeing the development of education, science, culture, public health, and civil affairs; setting up the systems of population growth, land management, and environmental protection; pushing forward urban planning, construction, and management.
(6) Carrying out and safeguarding the autonomous system in ethnic areas. Building up systems to safeguard the lawful rights and interests of overseas Chinese residing abroad and returned overseas Chinese.
Basic Principles of Local Legislation
Undoubtedly local legislation has its own characteristics. While the basic principles in the legislation of the whole country need to be carried out, the basic principles of local legislation should be maintained as well. It is important that the local characteristics are reflected in the local legislation.
The “reflection of local characteristics” is mainly a matter of taking into account the characteristics of each local area through local legislation. To be more specific, the following should be reflected: first, local legislation should reflect the degree of legislative readjustments in the local economy, politics, legal system, culture, customs, and conditions of the people, and it should be suitable to the actual local situation; second, local legislation should specifically solve the obvious issues that are not stipulated in the legislation and regulations made at the central level or that are not suitable for the central authorities to settle. The design of local regulatory documents should be combined with the solving of actual local problems.
Just as in other legislation, the principle of a unified legal system in the design of local legislation should be upheld. In other words, the enactment of local legislation should not be in conflict with the Constitution, laws, administrative laws, and statutes of the country.
Local legislation in China has been put on a standard and sound track. Since the Law of Local Organizations was amended in 1986, the development of local legislation in China has gained speed. Progress has been made in the following aspects:
(1) More and more people have gradually understood the significance of local legislation. They have started to pay attention to the development of local legislation, and have begun to have a rational and deeper understanding of local legislation. This is quite necessary for local legislation to develop on a standard and sound track;
(2) The build-up of the legislative organs, especially that of the legislative working bodies, has been strengthened;
(3) The legislative system, especially legislative procedures, has become more standard. Rules and procedures for the work of the legislative organs, special local regulations on legislative procedures and other standard legal documents have been designed at local levels;
(4) In accordance with the authorization of the National People’s Congress and its Standing Committee, authorized local legislation has been further developed; and
(5) A legal basis has been provided to more and more areas to develop local rules and regulations and other standard legal documents. Through the accumulated experience, development of economic restructuring, build-up of a democratic legal system, more and more local rules and regulations and other standard legal documents have come into being that are better, more mature and more standardized than before.
General Local Legislative Power
Designing and amending local rules and regulations is the major legislative power accorded to local authorities.
The rules and regulations made by local authorities are subsidiary to the Constitution and the national laws and regulations, but they have the same force as the rules and regulations provided by the departments under the State Council. The local laws are at the lowest level of the legal system or source for Chinese laws. The number of them is enormous and the scope of readjustment is large. They are standard and specific and play an active role in the implementation of the Constitution, national and administrative laws, and rules and regulations at the provincial levels. They play an important role in the shaping of local legislation. While doing their local administrative job, local governments tend to rely more on local rules and regulations.
In accordance with the Law on Legislation, legislative power is authorized only by the National People’s Congress and its Standing Committee to the State Council, or to the special economic zones. This means that general local legislation usually does not come from legal authorization. Where legislative power is already authorized, the Law on Legislation does not withdraw that power, and the legislative power continues to be effective.
General local legislative power also includes legislative supervisory power. The legislative supervisory power mainly manifests itself in the power of local people’s congresses to amend or annul any unsuitable local laws, rules, and regulations that may be designated by their standing committees and the power of standing committees of local people’s congresses for annulling unsuitable rules and regulations made by local governments of the same level. Provincial and autonomous regional governments have the right to annul any unsuitable rules and regulations designated by local governments one level lower. This means the authorizing organs have the right to annul any laws, rules, and regulations made by the authorized organs that are not in line with the authorized requests. When necessary, authorizing organs have the power to withdraw their authorizations.
Local Legislation in Ethnic Autonomous Areas
The Meaning, Features, and Forms of Legislation in Ethnic Autonomous Areas
Legislation in the ethnic autonomous areas refers to the fact that organs of self-government in the ethnic autonomous areas can make or alter regulations in their own areas in the exercise of their autonomy. This is a special form of local legislation in China.
The main characteristics in legislation in the ethnic autonomous areas include:
First, legislation in the ethnic autonomous areas has its authority only in the specifically referred to areas and exists only in the ethnic self-government areas. All ethnic autonomous areas have the right to enact their own legislation, while other areas at the same level do not have such a right. Laws introduced through the right of legislation in the ethnic autonomous areas are applicable only to the related ethnic autonomous areas.
Second, the special organs of legislation in the ethnic autonomous areas are organs of self-government specified in the Constitution, Law on Local Organizations, and Law on Legislation. Organs of ethnic self-government refer to the people’s congresses and local governments in the autonomous counties, prefectures, and regions.
Third, legislation in the ethnic self-government areas has its own characteristics and is limited to the making and amending of regulations related to the exercise of autonomy or other separate regulations. Besides the right to make regulations relating to the exercise of autonomy and other separate regulations in the ethnic autonomous areas, some of the ethnic autonomous areas, such as the autonomous regions and the capitals of the autonomous governments, can also enact local regulations or local administrative regulations. Corresponding to the creation of local regulations as a form of special local regulation making, this right expresses itself in areas of ethnic self-government in the design and altering of regulations for the exercise of autonomy and other separate regulations.
Fourth, the legislative right in the ethnic autonomous areas is a special one belonging to the power of autonomy in the ethnic autonomous areas. It is an important form of power that ensures the effective exercise of self-government. Since the self-government right is quite extensive, the design of local regulations in the ethnic areas assures that the exercise of self-government covers a more extensive scope than the general local regulation authority in other areas. Many issues covered by local regulations in ethnic self-government areas are not included in local regulations in other areas.
Fifth, the regulations for the exercise of autonomy and other separate regulations made by people’s congresses in the ethnic autonomous areas takes into consideration the characteristics of the local ethnic politics, economy, and culture. The Constitution, and the Law on Legislation do not have restrictive articles stipulating that regulations in local ethnic areas should not contradict the Constitution, laws, and administrative rules and regulations. The regulations for the exercise of autonomy and other separate regulations in the autonomous regions are to be submitted to the Standing Committee of the People’s Congress for approval before they go into effect. Those of the autonomous prefectures and counties are to be submitted to the standing committees of the people’s congresses of provinces or autonomous regions for approval before they go into effect. This process and the relationship between the local and central authorities are different from that of the local regulatory procedures that are in effect elsewhere.
The legislative job in the ethnic autonomous areas is a reflection of China’s specific situation and plays an indispensable role in the legislative system in the nation. China is a unified country with multi-ethnic groups. The level of development in politics, economy, culture, and other aspects of the different ethnic groups are quite imbalanced, especially in relation to the development between the majority Han and the ethnic minorities. To carry out the policies of self-government in the ethnic areas and to protect the interests of the ethnic minority groups is basic to the policies of the country. Self-government in the ethnic areas is self-government within the ethnic minority groups. Local legislation in the ethnic autonomous areas is legislation in the areas in which the ethnic minorities reside. To implement the legislative system in the ethnic autonomous areas is a necessity in the protection of the interests of various ethnic minority groups and in promoting the joint prosperity of all ethnic groups.
The Legislative Right & Scope of Ethnic Autonomous Areas
1. The legislative right in ethnic autonomous areas
From a geographical point of view, the ethnic autonomous areas have the following legislative rights: (1) The right to make and amend local rules and regulations, to be approved by the people’s congresses and their standing committees of autonomous regions and capital cities of the autonomous regions; (2) The right to make and amend rules and regulations of the local governments, to be approved by the municipal governments where the autonomous regional capitals are located; (3) The right to make and amend regulations for the exercise of autonomy and other separate regulations, to be approved by the people’s congresses of the autonomous counties, prefectures, and regions; (4) A certain degree of legislative supervisory rights; and (5) A certain degree of authorized legislative rights.
2. The legislative scope of ethnic autonomous areas
The matters that can be readjusted in the local regulations of the ethnic autonomous areas are the same as they are in other areas. The issues that can be stipulated in regulations for the exercise of autonomy and other separate regulations are based on the scope of autonomous power. In accordance with the Constitution and the Law on Self-government in Ethnic Autonomous Areas, organs of self-government in the ethnic autonomous areas can exercise the following self-governing rights, and within the scope of these autonomous rights, local people’s congresses in the autonomous areas have the right to enact regulations for the exercise of autonomy and other separate regulations:
First, in accordance with the Constitution, the Law on Self-government in Ethnic Autonomous Areas and the Law on Legislation, local people’s congresses in the ethnic autonomous areas have the right to introduce regulations for the exercise of autonomy and other separate regulations. Based on this, the people’s congresses in the ethnic autonomous areas have the right to introduce regulations, within limits stipulated by the Constitution and the Law on Self-government in Ethnic Autonomous Areas, for the purpose of exercising autonomy, as well as other separate regulations, principles, readjustments, procedures, and technical details concerning the introduction of regulations for the purpose of exercising autonomy. If any legislation at the central level affects the legal decisions on these matters, the ethnic autonomous areas may cancel or alter their regulations so as to be in accord with such central legislations, and draw up detailed implementation rules or other specific stipulations in light of actual local conditions.
Second, in accordance with the Law on Self-government in Ethnic Autonomous Areas and the Law on Legislation, the organs of autonomy, with the approval of the state organs above their level, may flexibly execute or stop executing any resolutions, decisions, orders, or instructions implemented by the state organs that are unsuitable to the actual situations in their ethnic autonomous areas; autonomous organs may also design flexible measures with regard to the stipulations of the relevant laws and administrative rules and regulations in accordance with local ethnic characteristics if such measures do not go against the basic principles of the relevant laws, administrative rules, and regulations, and do not constitute flexible stipulations to the Constitution, the Law on Self-government in Ethnic Autonomous Areas, and stipulations in other laws and administrative rules and regulations concerning ethnic autonomous areas. Based on this, the people’s congresses in the ethnic autonomous areas have the right to introduce regulations for the exercise of autonomy or other separate regulations on the conditions, principles, and procedures that constitute flexible stipulations or to stop the execution of the resolutions, decisions, orders, and instructions of state organs above their levels. They also have the right to introduce regulations for the exercise of autonomy or other separate regulations stipulating the conditions, principles, and procedures for flexibly implementing articles in the laws, administrative rules, and regulations.
Third, in accordance with the stipulations in the Constitution and the Law on Self-government in Ethnic Autonomous Areas, organs of autonomy may use one or several languages commonly used in their local areas when performing their duties, in accordance with stipulations in the self-government regulations for the exercise of autonomy; in places where several common languages are applied for performing duties, the organs of autonomy may use the language of the ethnic minority group as the main language. Based on this, the people’s congresses in ethnic autonomous areas have the right to introduce regulations for the exercise of autonomy specifying the conditions, principles, and measures in adopting the language commonly used in the local areas by the organs of autonomy.
Fourth, in accordance with the stipulations of the Law on Self-government in the Ethnic Autonomous Areas, the organs of autonomy have the right to train and use local ethnic cadres, professional people from scientific and technical sectors, and persons from the operational and managerial sectors according to the requirements of economic construction, and to pay attention to training woman cadres and professional people and technicians at different levels; special favorable measures may be adopted to encourage people from different technical sectors to take part in economic construction in the autonomous areas. Ethnic minority groups should be given priority in being enrolled in the enterprises and governmental organs in ethnic autonomous areas. Therefore, the people’s congresses in autonomous areas have the right to introduce regulations for the exercise of autonomy or other separate regulations with regard to the training of cadres and all types of talent.
Fifth, in accordance with the Constitution and the Law on Self-government in the Ethnic Autonomous Areas, the organs of autonomy may, with the approval of the State Council, organize public security forces to maintain local social order according to the country’s military system and actual local conditions. People’s congresses in ethnic autonomous areas have the right to make regulations for the exercise of autonomy or other separate regulations concerning how to organize and employ the service of the public security forces in maintaining local social order.
Sixth, in accordance with the Constitution and the Law on Self-government in the Ethnic Autonomous Areas, the organs of autonomy enjoy the following self-government rights in economic construction, management, and foreign trade activities:
(1) To arrange and manage, under state guidance, their own, local economic construction, guidelines, policies, and plans according to local characteristics and requirements;
(2) According to stipulations in the laws and characteristics of local economic development, to reasonably readjust the productive relations and reform the economic management system;
(3) According to stipulations in the laws, to identify the ownership and the right of use for local pastures and forests, manage and protect local natural resources, protect and cultivate pastures and forests, organize and encourage the planting of trees and grass, prohibit any organizations or individuals from using various means to destroy pastures and forests, and give priority to reasonable development and application of natural resources that can be developed locally in accordance with legal stipulations and the unified planning of the state;
(4) Under state guidance, to arrange local capital construction projects according to local financial capabilities, availability of materials, and other specific conditions;
(5) To manage local enterprises and institutions on their own;
(6) To arrange and make use on their own of the industrial, and agricultural products and other native produce, except for that to be purchased within the state plan and tasks; and
(7) To conduct foreign economic trade according to state stipulations; to open ports for foreign trade with the approval of the State Council, to develop border trade along ethnic autonomous border areas with the approval of the State Council, and to enjoy favorable treatment from the government in retaining foreign currencies from border and foreign economic and trade activities. Based on these principles, the people’s congresses in autonomous areas have the right to introduce regulations for the exercise of autonomy or other separate regulations concerning the exercise of self-governing rights in economic construction, management, and foreign trade activities.
Seventh, in accordance with the Constitution and the Law on Self-government in the Ethnic Autonomous Areas, the organs of autonomy have the self-governing right to manage local finances. They have the right to arrange the financial revenues belonging to ethnic autonomous areas according to the governmental financial system, and the right to arrange the revenues exceeding that specified in the budget and the expenses saved from the budget during the course of implementing the financial budget. In the course of executing government tax laws, the organs of autonomy have the right to reduce the tax rate or apply a zero tax rate in the collection of taxes where local revenues need to be treated favorably, except for the areas where any reduction or exemption of the tax should be approved by the state. Based on these principles, the people’s congresses in ethnic autonomous areas have the right to introduce regulations for the exercise of autonomy or other separate regulations concerning the exercise of the right of self-government in financial matters and use of the right for tax collection. Furthermore, the organs of autonomy have the right to make, according to state principles and actual local conditions, supplementary stipulations and specific measures concerning local expenses, the number of staff, and the amount of expenses.
Eighth, in accordance with the Constitution and the Law on Self-government in the Ethnic Autonomous Areas, the organs of autonomy may enjoy the following self-governing rights in the building of spiritual civilization:
(1) To make local educational plans, according to governmental education guidelines and stipulations of relevant laws, setup of local schools or colleges and universities of various types, and to develop models of running schools or colleges or universities, syllabuses, language teaching, and measures for enrolling students; to develop their own ethnic education, eliminate illiteracy, and train professional people among the ethnic minority groups;
(2) To develop plans based on their own ethnic culture areas such as literature and art, news reports, publishing, broadcasting, films, and television with ethnic features and characteristics; to collect, sort out, translate, and publish ethnic books; to protect ethnic cultural relics, rare cultural relics, and other important historical relics of the culture;
(3) To design their own local development plans for science and technology and to disseminate scientific knowledge; to design their own local development plans for medical care and public health, to develop modern medicines and ethnic traditional medicine, strengthen the prevention of local diseases, plan health care for women and children, and to improve the conditions of public hygiene;
(4) To develop their own ethnic traditional sport activities and to build up the health of people of all ethnic groups;
(5) To protect and improve their living environment and ecological environment and to prevent pollution and other public hazards;
(6) To actively conduct exchanges and co-operation with other areas in education, science and technology, culture and art, public health, and sports; the organs of autonomy in autonomous regions and prefectures may conduct exchanges, according to state regulations, with relevant organizations in foreign countries in the fields of education, science and technology, culture and art, public health, and sports. Based on these principles, the people’s congresses in the ethnic autonomous areas have the right to introduce regulations for the exercise of autonomy or other separate regulations concerning how to exercise the above self-governing rights.
Ninth, in accordance with regulations in the Law on Self-government in the Ethnic Autonomous Areas, the organs of autonomy have the right to introduce, according to relevant laws, measures to manage the floating population. They also have the right to introduce measures for family planning according to relevant laws and the actual local situation. These two measures are reflected in the regulations for the exercise of autonomy or other separate regulations.
Tenth, in accordance with regulations in the Law on Self-government in the Ethnic Autonomous Areas, the ethnic autonomous areas have the right to introduce, according to the Constitution and relevant laws, regulations for the exercise of autonomy and other separate regulations concerning the organization and work of the organs of autonomy in the ethnic autonomous areas.
Legislation in Special Economic Zones and Special Administrative Regions
Legislation in special economic zones
Ever since the country embarked on a program of reform and opening to the outside world, China has set up areas where special policies may be implemented in order to develop foreign trade, economic co-operation and technical exchanges, and introduce foreign investment and technology. Such areas are called special economic zones.
The significance of legislation in special economic zones can be understood in two ways: first, the special significance of the right for each special economic zone to make its own regulations for activities within its own zone that do not extend beyond the boundaries of its zone. Such legislation is introduced by the state organs in the special economic zones as authorized by the National People’s Congress and its Standing Committee. Second, regulation making in the special economic zones has its context in the specific geographical locations. This type of activity involves the design of local regulations and local government measures according to stipulations in the Constitution and constitutional regulations for the special economic zones. Guangdong, Fujian, and Hainan provinces and the capital cities in these provinces have the right to introduce local laws and make local regulations. The following is a description of the process of legislation in the special economic zones, which is a special form of local regulation making in China.
The fundamental difference between regulation making in the special economic zones and regulation making in ordinary local areas, ethnic autonomous areas, and other places is manifested in the following ways: First, the origin of power for such regulation making is different. The power for regulation making in the special economic zones comes from an authorization by the highest organ of state power or its standing committee. The power for regulation making in the ordinary local areas and ethnic autonomous areas comes from stipulations in the Constitution, the Law on Local Organizations, the Law on Legislation, and the Law on Self-government in the Ethnic Autonomous Areas. Second, the levels of effectiveness and scope of readjustments in regulation making are different. The levels of effectiveness in the regulation making for the special economic zones are also different from the regulation making in the local areas and ethnic autonomous areas, as the power for the regulation making in the special economic zones comes from a different source. Generally speaking, the levels of effectiveness and scope of readjustment in regulation making in special economic zones are not as specific as that for the local and ethnic autonomous areas.
In form, the level of effectiveness of the standard legal documents introduced in the special economic zones is generally lower than that introduced by the state organs that have the right of authorization. However, they are higher than the ordinary standard legal documents introduced by local authorities on the same administrative level in the ordinary areas. The scope of regulation making in the special economic zones should not exceed the scope authorized by the state organs, but can and should exceed the scope of organs that are authorized for regulation making in the local and ethnic autonomous areas. However, the scope of readjustments in regulation making in the local areas and ethnic autonomous areas is limited by stipulations in the Constitution, constitutional laws, and especially the Law on Legislation or by the scope of the functions and power authorized.
Third, compared with that in the ordinary areas, regulation making in the special economic zones can be ground breaking, pace setting, and sometimes quite experimental.
Fourth, in terms of legislative procedures and tasks, regulation making in the special economic zones is often unique, filled with uncertainty, and clearly restricted in time and scope. Regulation making in the ordinary areas is, on the other hand, standard, clear, and highly independent. For example, it is not necessary to report local rules and regulations to the Standing Committee of the National People’s Congress for approval. Local regulation making bodies can independently settle, within their function and power, almost all issues to be resolved.
Since 1980, five special economic zones, namely Shenzhen, Zhuhai, Shantou, Xiamen, and Hainan, have been set up at different times. In order to allow for the build-up of the special economic zones to go smoothly and to better adapt the management in the special economic zones to the needs of work, the Standing Committee of the National People’s Congress, in November 1981, passed “The Resolution on Authorizing the People’s Congresses and Their Standing Committees in Guangdong and Fujian Provinces to Make Separate Economic Statutes in Their Respective Special Economic Zones.” This gave the people’s congresses and their standing committees in the two provinces the power to introduce specific economic statutes in their special economic zones and to report these to the Standing Committee of the National People’s Congress and the State Council for the record in accordance with relevant laws, decrees and policies, the specific situations, and actual requirements in their special economic zones.
The 1st Plenary Session of the 7th National People’s Congress in April 1988 adopted “The Resolution on Establishing the Hainan Special Economic Zone,” which authorized the People’s Congress and its Standing Committee in Hainan Province to make, according to the specific situations, actual requirements, and relevant laws in Hainan and the relevant laws in China, decisions made by the National People’s Congress and its Standing Committee, administrative regulations made by the State Council, statutes, rules and regulations for implementation in the special economic zone of Hainan Province and report these to the Standing Committee of the National People’s Congress and the State Council for the record. In July 1992, the Standing Committee of the National People’s Congress passed “The Decision on Authorizing the People’s Congress and Its Standing Committee of Shenzhen and the People’s Government of Shenzhen to Separately Make Laws, Rules and Regulations for Implementation in Shenzhen Special Economic Zone.” The 2nd Plenary Session of the 8th National People’s Congress in March 1994 adopted “The Decision on Authorizing the People’s Congress and Its Standing Committee and the People’s Government in Xiamen to Make Separate Laws and Regulations for implementation in Xiamen Economic Special Zone.” The 4th Plenary Session of the 8th National People’s Congress in March 1996 passed “The Decision on Authorizing the People’s Congresses and Their Standing Committees and People’s Governments in Shantou and Zhuhai to Make Separate Laws and Regulations for Implementation in Their Special Economic Zones.” These decisions authorized the people’s congresses, their standing committees in Shenzhen, Xiamen, Shantou, and Zhuhai, according to their specific situations and actual requirements and in accordance with relevant laws and basic principles of administrative rules, to make statutes, and regulations to execute in special economic zones in Shenzhen, Xiamen, Shantou, and Zhuhai and report them to the Standing Committee of the National People’s Congress and the Standing Committees of their provincial people’s congresses for the record.
Although there had been many decisions and resolutions with authorizations to make regulations before the enactment of the Law on Legislation, there had been no specifications on regulation making for special economic zones. The Law on Legislation has provided the special stipulations for authorized regulation making on the part of the special economic zones.
The legislative right and scope of the special economic zones is manifested in the fact that the people’s congresses, their standing committees, and the governments in the special economic zones conduct legislative tasks specified by the national legislative organs in accordance with the stipulations of authorization made by the national legislative organs and the actual situations in the special economic zones.
The people’s congresses and their standing committees in the special economic zones have the right to make their own local laws to be administered in their special economic zones. On the one hand, local laws here refer to the specific economic laws or regulations that the people’s congresses and their standing committees in Guangdong Province and Fujian Province enact, according to the decision of authorization designated by the Standing Committee of the National People’s Congress in November 1981. On the other hand, the people’s congresses and their standing committees in Hainan, Shenzhen, Zhuhai, Shantou, and Xiamen have the right to make local laws or regulations within their given provincial or municipal special economic zones, in accordance with the decisions made by the National People’s Congress or its Standing Committee since 1988.
There are three aspects in the legislative right and scope of the people’s congresses and their standing committees in special economic zones. First, according to stipulations authorized by the national legislative organs, they may introduce laws or regulations for implementation in the special economic zones relating to matters that should be specified through legislation by the national legislative organs. This means that the people’s congresses and their standing committees in the special economic zones have exercised, according to the authorization accorded to them, a part of the legislative right of the national legislative organs. Of course the exercise of this legislative right has clearly specified restrictions. The content must be in conformity with the basic principles of the Constitution and the relevant administrative rules and regulations. The right does not allow for the making of laws or regulations in the special economic zones where the Constitution and laws have explicitly decided that such laws should be introduced by the national legislative organs.
Second, according to the stipulations of authorization by national legislative organs and the actual situation and requirements in special economic zones, laws or regulations are made to deal with special issues in the special economic zones. Third, according to specific situations and actual requirements in the special economic zones, detailed rules and regulations are made within the scope of authorization in order that the Constitution, relevant laws, administrative rules and regulations are effectively carried out in the local special economic zones. Although these special economic zones are special areas, legislation in these zones must conform to the Constitution, laws, administrative rules and regulations. However, this conformity may require specific jobs and distinguishing features that are different from what they may be in other places.
Legislation in Special Administrative Regions
In China some administrative regions are also called Special Administrative Regions, and these have been placed directly under the Central Government, under the guidance of “one country, two systems” and based on the Constitution so as to reasonably settle the issues of Hong Kong, Macao, and Taiwan. The Special Administrative Regions enjoy a high degree of self-government. They are different from other local administrative regions in China in terms of their basic social system. These regions will maintain a capitalist system for a long period of time.
Hong Kong returned to the motherland on July 1, 1997 and it became a special administrative region. Macao became another special administrative region of China on December 20, 1999. Taiwan will eventually also become a special administrative region through the arrangement of “one country, two systems.”
Legislation in the special administrative region described in this chapter only refers to legislation in the Hong Kong Special Administrative Region (HKSAR).
There is a big difference between legislation in the HKSAR and that of other places in China. The main characteristics are a high degree of self-government, which is fully reflected in the legislative system in the HKSAR.
(1) The legislative body in the HKSAR
The legislative body in the HKSAR is called a legislative organ, whereas in other places it is called a power organ.
The legislative organ in Hong Kong is the Legislative Council of the Hong Kong Special Administrative Region. The Legislative Council consists mainly of Chinese citizens who are permanent residents in the HKSAR, without the right of residence in foreign countries. Permanent foreign residents in Hong Kong without Chinese citizenship and permanent residents in Hong Kong who have the right of residence in foreign countries can be also elected to the Legislative Council, but their proportion cannot exceed 20 percent of the total number of the council members.
The Legislative Council is established through elections. The procedures for forming the Legislative Council are arranged in accordance with “The Procedures of Establishment and Voting for the Legislative Council in the Hong Kong Special Administrative Region” attached to the Basic Law of the Hong Kong Special Administrative Region. “The Procedures of Establishment and Voting” demonstrates the following principle: the establishment of the Legislative Council should follow a principle of taking into consideration actual situations and a step-by-step process that will eventually lead to all council members being elected through general elections.
The term of the Legislative Council is four years, except that the term of the first council is two years. In accordance with the stipulations in the Basic Law of the Hong Kong Special Administrative Region, if the chief executive officer dissolves the Legislative Council, an election will be held within three months. The chairman of the Legislative Council is elected by members of the Legislative Council. The post of chairman shall be held by a permanent Chinese citizen who is over 40 years of age, has lived in Hong Kong for more than 20 years, and who has no right of residence in a foreign country.
(2) The Legislative power of the HKSAR
The legislative power of the HKSAR comes from the special authorization of the basic law made by the National People’s Congress. The Basic Law of the Hong Kong Special Administrative Region clearly specifies that the HKSAR enjoys the right of legislation. No region in China other than Hong Kong has obtained legislative power through this means.
The legislative power in the HKSAR is exercised by the Legislative Council. In accordance with Article 73 of the Basic Law of the Hong Kong Special Administrative Region, the functions and powers of the Legislative Council include the following:
1) To make, amend and abrogate laws in accordance with relevant laws;
2) To examine and approve financial budgets according to proposals of the government;
3) To ratify tax collection and public expenses;
4) To listen to and debate about the working report made by the chief executive office;
5) To raise questions about the work of the government;
6) To debate about any issues related to public interest;
7) To approve the appointment of judge of the Court of Final Appeal and chief judge of the High Court;
8) To accept appeals from Hong Kong residents and to make decisions about these;
9) To put forward requests for impeachment and to request a Central Government decision should the chief executive officer seriously violate the law or engage in misconduct in office, but does not resign; and
10) When necessary, to request that the people concerned be present as witnesses and provide evidence, while exercising the above functions and powers.
The stipulations on the functions and powers of the Legislative Council in the HKSAR regarding the Basic Law cover two aspects. First, the Legislative Council in the HKSAR has the power to make, amend, and abrogate laws, while other regions can only make local rules and regulations and cannot make, amend, or abrogate laws. Second, the scope of the functions of the Legislative Council is the scope of its legislative power. If the Legislative Council wishes to exercise such functions and powers through legislation, then it can make laws on matters enabling it to exercise such functions and powers.
Besides, relevant articles in the Basic Law of the Hong Kong Special Administrative Region explicitly stipulate that the HKSAR has the power to make laws on other matters. For example, Article 23 in the Basic Law stipulates that the HKSAR should make laws on its own to prohibit any activities of treason and separation of the country, instigation of rebellions, subversion of the Central Government, and stealing of state secrets, so as to prohibit any foreign political organizations or groups from engaging in political activities in the HKSAR, and to prohibit political organizations or groups in the HKSAR from establishing contacts with foreign political organizations or groups. For another example, Articles 24-42 stipulate that the HKSAR has the power to make laws on a series of matters concerning the basic rights and obligations of residents in Hong Kong.
Legislative procedures in the HKSAR
The legislative procedures in the HKSAR include the following activities:
1) Motions. The right to put forward motions is exercised by the government and members of the Legislative Council in the HKSAR. In accordance with the Basic Law of the Hong Kong Special Administrative Region, bills are put forward according to established procedures. The government exercises the functions and powers of drafting and putting forward bills, motions, and attached rules and regulations. A council member can individually or together with other members put forward proposals as long as they are not related to public expenses, political systems or government operations. Motions concerning any matters related to governmental policies should be submitted with written approval and be signed by the chief executive officer. Bills put forward by the government enjoy the priority of being put on the agenda.
2) Examinations. Bills are examined by the Legislative Council. The chairman of the Legislative Council presides over meetings of the Legislative Council, decides on the agenda for examination and the convening of the meetings, and can summon urgent meetings when the Legislative Council is not in session. The quorum for the meetings of the Legislative Council should not be less than half of the total number of the council members. Speeches made by members at the meetings of the Legislative Council are not subject to legal investigation and council members should not be arrested at the council meetings or on their way to council meetings.
3) Voting. Bills put forward by the government can be passed if more than half of the votes from council members are in favor. Bills and amendments to governmental bills put forward by individual council members can be passed if more than half of the votes are favorable from each of the following two groups of council members participating in the meetings, namely those elected by functional groups on one hand, and those elected directly from districts and the voting committee on the other.
All bills passed by the Legislative Council in the HKSAR shall come into force after the signing and promulgation by the chief executive officer.
(4) Legislative supervision in the HKSAR
The systems of legislative supervision in the HKSAR consist of the following two types.
The first is the system of supervision by the central legislative body. Legislation in the HKSAR is a type of local legislation with a high degree of self-government, but it is still an important part of the legislative system in China. It is closely related to and supervised by the central legislative body. According to the Basic Law of the Hong Kong Special Administrative Region, the supervision system includes the following:
Any laws made by the legislative body in the HKSAR shall not be in contradiction with the Basic Law of the Hong Kong Special Administrative Region made by the National People’s Congress and should be filed with the Standing Committee of the National People’s Congress. The request for filing does not prevent the law from coming into force.
If after making enquiries to the Basic Law Committee of the Hong Kong Special Administrative Region, the Standing Committee of the National People’s Congress does not think that a law made by the legislative body in the HKSAR is in conformity with articles in the Basic Law concerning matters under the administration of the central authorities or the relationship between the central authorities and the HKSAR, it can return the law without making any amendments. The returned law immediately loses its effect. Except for the fact that the laws in the HKSAR have other stipulations, the nullity of this law cannot be retroactive.
The second is the internal system of legislative supervision in the HKSAR. The HKSAR exercises the system of separation of the legislative, executive, and judicial powers. With regard to the legislative supervision system shaped by the separation of administrative and legislative powers, it mainly consists of the following, in accordance with the Basic Law:
1) Bills passed by the legislative body in the HKSAR will become laws only after being signed and promulgated by the chief executive officer.
2) If the chief executive office does not believe that a particular bill passed by the Legislative Council is in line with the whole interests of the HKSAR, he can send the bill back to the Legislative Council for re-examination within three months. If the Legislative Council then passes the previous bill by no less than two-thirds of the majority of all council members, the chief executive officer must sign it within one month for promulgation. If the chief executive officer refuses to sign the bill passed a second time by the Legislative Council, or the Legislative Council refuses to pass important bills put forward by the executive branch of the government, the chief executive officer can dissolve the Legislative Council when no consensus can be reached after consultation. Before the chief executive officer dissolves the Legislative Council, he must listen to the opinions of the Executive Council. The chief executive officer can dissolve the Legislative Council only once during his one term of office.
3) If the chief executive twice refuses to sign a bill passed by the Legislative Council and dissolves the Legislative Council, or the chief executive refuses to sign a previously disputed bill passed with a two-thirds majority of all council members in the re-elected Legislative Council, or the chief executive dissolves the Legislative Council because it refuses to pass an important bill of the executive branch of the government, or the re-elected Legislative Council continues to refuse to pass the previously disputed bill, the chief executive has to resign.
4) The executive branch of the government has the power to send delegates to sit at meetings of the Legislative Council and make speeches on behalf of the executive branch of the government.
5) The executive branch of the government must obey the laws and be responsible to the Legislative Council.
6) The Legislative Council must be re-elected within three months after being dissolved by the chief executive officer.
(China.org.cn September 28, 2003)