Thursday, November 10, 2011

In Chinese Lawmaking, Draft Disclosure Fosters Democracy

In China’s legislative process, public consultation is a relatively new phenomenon that is neither formalized nor routine. The handling of two recent pieces of important legislation suggests, however, that members of the public may begin to get more of a say in how their laws are written.

This would be a welcome turn of events for law professor Wang Lin. In commentary published by the Economic Observer (translated below), Wang recently wrote about the importance of public access to legislative drafts, in particular the criminal and civil procedure laws, as a means to democratize the legislative process.

The 11th NPC Standing Committee reviewing proposed drafts.  
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Though not nearly as devoid of debate as implied by the caricature of “rubber-stamp parliament,” the National People’s Congress (NPC) nevertheless remains some distance from being a democratic institution. Much of the process of drafting and deliberating legislation takes place behind closed doors. Because NPC deputies are not chosen through broad-based popular election, the national legislative body is a poor reflection of the increasingly complex and fragmented interests in Chinese society.

In the absence of electoral democracy, one way to give citizens more influence over policymaking is to establish institutions for public consultation and a greater role for public opinion. Public debate and discussion over legislation, Wang argues, will contribute to laws that are more easily accepted by society than laws passed without public comment. Citizen input in the drafting of procedural legislation is particularly important, given that these laws have direct relevance to the ways in which citizens’ rights may be exercised.

Wang’s essay was apparently written between the first release of information about proposed changes to the Civil Procedure Law on October 24 and the time the full text of the amended draft was published by the NPC Standing Committee on October 29. Similarly, official release of the draft of the amended Criminal Procedure Law followed initial media reports by a few days. For both pieces of legislation, the days preceding publication of the drafts were filled with a mixture of government propaganda and critical commentary, much of which was based on uncertainties about the specific wording of certain provisions.

In the case of the Criminal Procedure Law, Wang writes that the ultimate decision to publish the full text was a response to criticism of the proposed amendments. However, the gradual release could also be interpreted as a deliberate means for officials to control the grounds of debate and adapt publicity strategies to the public’s initial response. In fact, the gradual release of the less controversial amendments to the Civil Procedure Law demonstrates that delays are not necessarily indicative of strong public pressure.

Wang notes that in 2008 the NPC Standing Committee made a general commitment to publish draft legislation and seek public comment, but this process has yet to be firmly institutionalized. A possible reason is that China’s limited experience with public consultation has not always been easy. After being first published in 2002, a historic and controversial Property Law was forced by public scrutiny to undergo numerous revisions and withdrawn from consideration by the NPC before finally passing in 2007.

The general messiness democracy typically creates poses a challenge to the Chinese government, which has conventionally prized flexibility and efficiency as drivers of development. Wang maintains, however, that the benefits of a more democratic legislative process ultimately outweigh the short-term costs, and thus he advocates the full integration of public consultation into the legislative process.


Publicize Legislative Drafts to Promote a Democratic Legislative Process
Wang Lin, Economic Observer
October 30, 2011

     On October 24, the 23rd meeting of the Standing Committee of the 11th National People’s Congress reviewed the Draft Amendment of the Civil Procedure Law. According to reports, the draft will relax [restrictions on] public-interest litigation, and “relevant organs and mass organizations” will be allowed to act as plaintiffs in public-interest lawsuits filed with people’s courts.

     These reports led to much public discussion, but without additional sources of information, reporters and commentators have been left to play guessing games. Besides China’s ever-elusive “relevant organs,” [the term] mass organizations has also been subject to many different interpretations. In particular, use of the traditional phrase “mass organization” instead of the more broadly defined “social organization” has led the media to worry that the draft excludes the up-and-coming [sector of] non-governmental and nonprofit organizations from [the category of] possible plaintiffs in public-interest litigation.

     It is precisely because of the dearth of publicly available legislative information that public opinion has resorted to so much speculation and the legislative debate cannot properly begin. Two months ago the Draft Amendment to the Criminal Procedure Law was also the subject of heated debate after scholars first revealed [its content], and only after widespread calls from public opinion did the legislative organ publish the draft. In the August 26 edition of the Economic Observer, I called for a “public debate platform for the revision of the Criminal Procedure Law.” Of course, this “platform” is not only for the revision of the Criminal Procedure Law; it should be used for all NPC legislation. Specifically, [the entire process] from legislative planning to drafting, to first reading, final review, and passage should all be made public. Not only should the progress of legislation be made public; the drafts under review and the proposed changes should all be announced promptly.

     Legislative drafts concern the public interest and are a prerequisite for legislative debate. There is absolutely no reason why they should be hidden in black boxes. Law is the art of compromise, a reflection of the opinion of the majority. Article 5 of the Legislation Law stipulates clearly: “Lawmaking shall reflect the will of the people, promote socialist democracy, and ensure that people are able to participate in legislative activities through various channels.” Ensuring citizens’ participation in the legislative process is a responsibility that the legislative organ cannot evade.

     Confined by the limitations of legal statute, the constitution and Legislation Law only set forth a few principles of democratic lawmaking. Saying “ensure that people are able to participate in legislative activities through various channels” still requires the legislative organ to establish detailed regulations to put this into practice. Mere principled provisions without institutional protections mean that, after many years, “various channels” really means “no channels.”

     At a time when it has become almost routine not to publicize legislative drafts, citizens have no room for timely participation in the legislative process. They take no interest in lawmaking, which results in passed legislation that lacks legitimacy. When the legislative organ itself is passive in its implementation of the constitution and the law, how can one expect the government, legal entities, and individual citizens to observe the law in an active way?

     Lenin once said: “It would be absurd to speak of democracy without publicity.” Compared to “democratic lawmaking,” a “draft” inside a black box or “made public within a small circle” also looks rather “absurd.”

     It should be admitted that, in the last few years, the legislative organ has been opening the door wider and wider to accepting public participation in the legislative process. Back in April 2008 the Chairmen’s Council of the NPC Standing Committee decided that legislative drafts being reviewed by the NPC Standing Committee would thenceforth generally be made public, and opinions broadly sought from the public. Based on that decision, on April 20 [of that year], the General Office of the NPC Standing Committee published the full text of the Draft Food Safety Law.

     Without a doubt, the decision by the Chairman’s Council to generally make legislative drafts public has greatly strengthened democratic lawmaking and benefited the legislative debate. In fact, every legislative draft that has been made public and for which opinions have been sought in recent years has attracted positive response and participation from the public. Of course, the deepening of legislative debate means that more legislative resources are needed to collect, balance, and accommodate public opinion. Objectively speaking, it increases the workload of the legislative organ and, in reality, makes it more difficult for drafts to gain passage. The fragmentation of society means that different interest groups will have different expectations with respect to legislation. These conflicts of interest must be discovered and resolved during the legislative stage—this is actually the lowest-cost way to resolve [such] conflicts. If you wait until after a law has been unveiled, [people] don’t accept the new law because they did not participate in the lawmaking [process]. This leads directly to opposition and passive violations, both of which come at much greater cost.

     While the draft revision of the Civil Procedure Law is generating public attention, work is underway on revision of the Administrative Procedure Law. [The policy of] “generally” making drafts public should [instead become] publicity as a matter of principle. Revision of the three major procedural laws does not involve state secrets, and the legislative organ should take the initiative to make [the drafts] public. There is no need to wait for the media to begin exposing [aspects of] the drafts before being forced to act. Public speculation because of the non-disclosure of information is actually a waste of valuable social resources, and the longer legislative debate is put off, the more acute the mutual lack of trust between different interest groups becomes. The earlier you make things public, the earlier you can reap the benefits. I look forward to the day that the publication of legislative drafts becomes institutionalized and hope that two months from now I won’t be writing an article calling for the release of the Draft Amendment to the Administrative Procedure Law.

The author is an assistant professor at the Law School of Hainan University.