The Law-making Law

The Law-making Law: A Solution to the Problems in the Chinese Legislative System?

Yahong LI

(Author's note: this is an excerpt from a same titled article published in Hong Kong Law Journal (HKLJ), Vol. 30, Part 1, 2000. The HKLJ has granted permission for the "Perspectives" to publish this article. Minor revisions have been made to make the present paper more coherent. Please refer to the original article for full citations and notes.)

I. Introduction

The Law-making Law of the People's Republic of China (or Legislative Law, hereinafter, "Law-making Law"), a law aimed at regulating China's disorderly legislative system, was promulgated by the third plenary meeting of the Ninth National People's Congress ("NPC") on March 15, 2000. The legislative process for this new law was lengthy and laborious. It began in 1993 and produced a total of seven or eight drafts during the succeeding seven years.

Perhaps the most significant achievement of the Law-making Law is that for the first time in PRC's legislative history, the legislative powers of the central and local governments are divided, and the center's exclusive legislative powers are specifically listed, or limited. This move demonstrates that China has begun institutionalizing its legislative system and, consciously or unconsciously, incorporating some elements of federalism in restructuring its state powers. However, the Law-making Law also leaves many problems unsolved such as insufficient guarantees for the exercise of local legislative powers, the lack of legislative supervision mechanisms and unclear delegation of the powers to interpret laws. This article argues that these problems, together with the inherent defects of the Chinese political system, will, contrary to the drafters' intention, undermine the ability of the new legislation to achieve its goals.

II. The Significance

It is worth noting that some political ideologies such as the Four Basic Principles and Deng Xiaoping theory are inserted in the Law-making Law, shortly before the Law was formally promulgated. No information is available on who proposed the addition and whether it had been debated. Besides showing the unquestionable authority of the central leadership, the addition is not only practically meaningless but will also cause more confusion over which "road" and "-ism" China should follow.

The insertion of the Four Basic Principles, nevertheless, indicates that the Law-making Law is somewhat different from other laws. According to some Chinese legal scholars and legislators, the Law-making Law is neither a constitutional amendment nor a constitutional document, but rather "an important basic law that has a very close relationship with the Constitution" (Qiao Xiaoyang, Chen Sixi). If so, the question becomes whether a non-constitutional statute can regulate constitutional issues such as decentralization or division of legislative powers. As an American constitutional scholar Samuel Beer put it, "decentralization is constitutional, not merely statutory." The answer to the above question is probably yes because China is a unitary state, rather than a federal state, and "in a unitary system the bodies governing these subdivisions will receive their authority from the ordinary statutory law of the central government" (Beer).

The Law-making Law was enacted to regulate or institutionalize the Chinese legislative system. "Institutionalization is a key indicator of legislative change" (K O'Brien). When an organization becomes more complex, it must develop the capacity, structure, practice, procedures, and so forth to confront those internal demands. Over the years the Chinese legislative system, especially at the central level, has grown into such a complicated bureaucracy that it lost its ability to deal efficiently with the issues such as overlapping of powers, confusion of procedures, inconsistency between laws, etc. There have been reports of cases where a law falling within the NPC's jurisdiction has been passed by the NPC's Standing Committee (NPCSC), and the legislative powers of the NPC and the NPCSC have been usurped by the State Council or local legislatures without authorization. Cases of violation of the Constitution have often been cited. For example, the National Security Law granted legislative power to the Central Military Committee despite the fact that no such power is conferred by the Constitution. And the Criminal Law changed the crime of "anti-revolution" to the crime of "endangering national security" two years before the PRC Constitution (1982) did so.

In addition, since the beginning of the economic reforms that promoted free markets and the rule of law, "Beijing's leaders have lost the leverage over subordinate levels that ideological commitment formerly gave them"(Kenneth Lieberthal). Although the decentralization of legislative powers has greatly increased local autonomy and stimulated the development of local economies, it has, in the meantime, worsened the local protectionism and irregularities and inconsistencies in the law-making system. There have been many reports of cases like the "battle of cars" (qi che da zhan) in which provinces passed local regulations discriminating against car imports from neighboring provinces.

From the discussion above, we can conclude that the driving forces behind the enactment of the Law-making Law are internal demands for legislative changes and external pressures from a rapidly developing Chinese society. The resulting institutionalization represents a step taken by the Chinese legislators to prevent further deterioration and disintegration of the problematic legislative system.

III. Division of Legislative Powers

A pyramid in which the central government grants, delegates or authorizes powers from the top to each tier of the state administration, China has never treated the division of powers as seriously as the federalist states. The inadequate allocation of legislative powers by the Constitution has caused considerable irregularities in China's legislative practice.

1. Division of legislative powers between central and local governments

According to conventional political theory, legislative powers are usually divided between the center and the states in a federal system, but are uniformly exercised by the center in a unitary system. Arguably, China is no longer a typical unitary state. Its central authorities still control state power to a large extent, but this control has been both willingly and unwillingly loosened, originally by the past two decades of decentralization and now by the division of central-local legislative powers in the Law-making Law. According to a senior Chinese legislative official, China now has two types of legislative systems. Within the Mainland, there are "one and one-half systems" because the center and the localities are dividing their powers but not independent from each other. Between the center and the Special Administrative Regions (SARs), there are two legislative systems, which are largely independent of each other.

Possibly under the influence of other countries' constitutions, the Law making Law specifically lists the exclusive legislative powers of the central government. The list covers the following areas: (1) Matters concerning national sovereignty (2) Election, organization and powers of the People's Congresses, People's Governments, People's Courts and People's Procuratorates at various levels (3) Affairs pertaining to autonomous regions, SARs and grass-root self-governance of citizens (ji ceng qun zhong zi zhi) (4) Crime and punishment (5) Restraining and penalizing citizens' political rights and personal freedoms (6) Appropriation of non-state-owned property; (7) The basic civil system (8) The basic economic system and the basic systems of finance, taxation, customs, banking and international trade (9) The systems of litigation and arbitration (10) Other matters that must be legislated by the NPC and its Standing Committee

The listing of the center's exclusive legislative power was not favored at first by some mainland scholars, who saw it as an attempt by the center to further limit local legislative powers. The exclusive powers of the center, as they pointed out, cover not only the basic systems of the state, but also various social and economic issues that should be regulated by local regulations. For example, local officials argued that the power to attach property, freeze assets, appropriate and enforce should not exclusively go to the center since local governments had enjoyed broad powers over such matters under the Administrative Penalty Law and had already imposed countless administrative penalties affecting the economic and political rights of citizens. During the drafting process, civil subjects (ming shi zhu ti), civil servants, labor and social security were dropped from the list under pressure from local legislators. The debates were even more heated over the taxation system. Only the center can legislate on tax matters before the separation of tax systems between the central and local governments several years ago. However, local governments had invented various fees to compensate their disadvantages in competing with the center for tax revenues. An earlier draft of the Law included the so-called "fees of tax nature" (shui shou xing shou fei) in the list of the center's exclusive powers. This was viewed as a move by the center to control the imposition of fees and was opposed by both local governments and some State Council departments. Local governments argued that they should have legislative power over specific tax issues since they had their own separate systems of taxation. The General Bureau of Taxation pointed out that a clear distinction should be made between tax and fees and that the inclusion of the "fees of tax nature" would blur such a distinction. The Bureau suggested that center still hold legislative powers over taxation whilst locals get legislative powers over the fees. As a result, the fees-of-tax-nature power was deleted in the later drafts of the Law.

Another unclear issue arises from the deletion from the list of some matters such as postal services, telecommunications, railway and aviation transport, maritime commerce, accounting and commercial instruments, currency, foreign currency, the space industry, nuclear energy, the calendar and weights and measurements which have been vital to China's central control. This seems to infer that local governments can legislate without obtaining authority from the center in relation to these matters, including issuing local currency.

The Law-making Law did not list specific legislative powers exercisable by local governments. It provides only generally that local legislatives can legislate on (1) implementing laws and administrative regulations; (2) matters that need to be regulated according to the special circumstances of the local area; and (3) matters pertaining to local affairs.

The Law-making Law also formally recognized a long-standing practice of the so-called "advanced legislation"(xian xing li fa). It provides that "except in the areas of exclusive powers reserved to the center, local governments may legislate in advance in the areas which the center has not legislated; the local regulations, however, shall be void to the extent of inconsistency once the center has legislated." The recognition in law of the practice of advanced legislation, in the author's opinion, may cause several legal and practical problems. Firstly, it violates the Constitution, which only permits local regulations to implement an existing national law. Secondly, it may worsen the existing conflicts between national laws and local regulations because, when enacted, every new national law has the potential to contradict existing local regulations. Conversely, every piece of local advanced legislation faces the problem of validity once a national law on the same subject has been enacted. For example some of the clauses in the 1985 Foreign-related Economic Contract Law and Technology Import Contract Regulation contradicted Shenzhen's relevant regulations that had been previously enacted. Thirdly, it may encourage local protectionism, since the local governments now has the legitimate power to legislate irrespective of the interests of the center and other localities.

On the other hand, the recognition of the advanced legislation practice helps to meet the practical needs of local development, since national laws may be untimely, unresponsive or unsuitable to local particularities. It has also been praised for serving as a test-bed so that subsequent national legislation could avoid unnecessary mistakes. Some local legislatures have also passed advanced legislation on the ground that the existing national laws covering the same subject matter are not consistent with international standards.

Arguably the clause on advanced legislation resembles the "concurrent legislative powers" clause in some federalist states, such as Germany. The difference is that the concurrent powers in the German Basic Law are clearly listed, which means both the center and the localities share legislative powers in the areas listed and the center can invalidate inconsistent local legislation only within the list. By contrast, China's Law-making Law does not define the scope of the concurrent powers, thus any inconsistent local legislation may be voided by the center.

A change made to the final version of the Law-making Law may be significant. Previous drafts provided that the center's exclusive legislative power could be delegated to the local legislatures. This clause was, however, deleted when the new law was finally passed. Now, only the State Council and the Special Economic Zones (SEZs) may be authorized to legislate in areas reserved exclusively for the center. This is a strong indication that the center wishes to exercise tighter control over its exclusive legislative powers.

In general, the Law-making Law as enacted seems to be more restrictive as for the exercise of local legislative powers than the previous drafts. For example, under the Law-making Law, regulations by large cities must be reported and approved by the Standing Committees of People's Congresses (SCPC) of provinces and autonomous regions; such a requirement was not imposed in previous drafts. Furthermore, the legislative procedures for regulations of local people's governments (dif ang gui zhang) are to be decided by the State Council, rather than by the SCPC as provided in a previous draft.

Although the Law-making Law did not clearly grant residual legislative powers to either the center or the localities, a number of clauses implied that such powers belong to the center. First, the clause on the advanced legislation indicates that the center has final authority on all matters on which even the localities may legislate before the center does. This is different from the residual clauses of federalist states in that, in those countries residual powers cannot be annulled once they have been granted. Second, the Law-making Law provides that one of the exclusive legislative powers of the NPC and the NPCSC is to legislate on any matter that must be legislated by them. This leaves unlimited discretion to the center because there is no definition of matters that "must be legislated" by them. It appears that this provision resembles the "necessary and proper" clause in the United States Constitution, which provides that "Congress may make all laws which shall be necessary and proper for carrying into Execution." However, the detailed meanings of this "necessary and proper" clause has been interpreted by the U.S. Supreme Court, whereas in China, there is no independent judiciary to resolve any potential conflict between the center and the localities. The residual power may, therefore, be broadly applied with little possibility of challenge.

2. Division of legislative powers between the NPC and the NPCSC

Under the Constitution, the NPC has powers to amend the Constitution and to enact and amend basic laws governing criminal offences, civil affairs, the state organs and other matters. The NPCSC has powers to enact and amend other laws and partially to supplement and amend laws enacted by the NPC when the latter is not in session. The definition and scope of the wording "basic laws" and "other laws" are, however, rather general. This ambiguity has caused much confusion in legislative practice. For example, many basic laws such as the Laws on Demonstration, the Organic Law of the Villagers' Committee and the Organic Law of the Residents' Committee, were actually passed by the NPCSC.

The Lawmaking Law has basically adopted the principle in the Constitution of dividing the legislative powers of the NPC and the NPCSC. The old problem of ambiguities may, therefore, still remain. In practice, any law that is a principal law in one specific area will be treated as a basic law to be enacted by the NPC. Examples include laws on defense, education, and labor unions.

3. Division of legislative powers between the NPC/NPCSC and the State Council

In recent years, administrative regulations have become a major component of China's legislation. They represent more than twice the number of laws enacted by the NPC and the NPCSC, while the legislative proposals by the State Council comprise more than seventy per cent of total proposals. The expansion of the legislative power of the administrative branches has been a driving force behind China's rapid economic growth but, in the meantime, has also caused inconsistencies and conflicts between laws and regulations, and the overlapping of powers among numerous departments of the State Council.

Under the Constitution, the State Council can only make administrative regulations to implement the existing national laws, which cannot contravene the Constitution and laws. This has been confirmed by article 56 of the Law-making Law.

The Law-making Law also allows the NPC and the NPCSC to delegate to the State Council legislative powers on certain matters falling into their exclusive jurisdictions. Areas that cannot be delegated include crime and punishment, restriction and appropriation of citizens' political rights and personal freedoms, and the judicial system. The delegation has to be specific as for the purpose and scope, and has to be not transferable. The delegation expires upon the enactment of relevant national law on the same matter.

The law-making powers of the ministries, commissions, and departments of the State Council are more complicated. Under the Constitution, the ministries and commissions of the State Council may issue orders, directives and regulations within their jurisdictions. However, the Constitution is silent on the rule making power of the Departments (bu) of the State Council. This generated heated debates on whether the Law-making Law should include the Departments. The NPC and the NPCSC wereagainst the inclusion over concerns that the administrative powers may be overly expanded. The State Council argued that stronger legislative powers by the administrative departments would enable the governments to function more effectively. The Law-making Law as enacted confirmed the departments' power to issue regulations (gui zhang) within their respective jurisdictions, so long as these regulations are for the purposes of implementing laws or administrative regulations, decisions and orders of the State Council.

4. Division of Legislative Powers between the Center and the SARs

The Law-making Law covers all legislative bodies in China and defines their respective powers with more or less clarity. However, no reference has been made to the SARs' legislative status, except a provision granting the NPC and the NPCSC exclusive legislative power over "special administrative region systems" (te bie xing zheng qu zhi du). The clause was inserted after the "right of abode" case was brought and decided. There are obvious political implications here, and one can sense the center's concern over the way that the SARs exercise their autonomy. It is not clear, though, whether the clause means that the NPC or the NPCSC has exclusive powers to legislate on matters reserved by the Basic Laws of the SARs, or on any matters concerning SARs' affairs. Conflicts and confusion is inevitable if this is not clarified.

The Law-making Law as a whole indicates that the Chinese legislators have made progress in dividing legislative powers. They have incorporated some federalist elements, such as the enumeration of exclusive legislative powers and designation of concurrent legislative powers. However, the essence of federalism is not about these technicalities, but rather about how the powers of different levels are legally defined and secured. In other words, the legislative powers of all levels should be clearly defined and guaranteed. Without a clear and practical line among the various legislative authorities, the Law-making Law is difficult to enforce, and the ambiguities will lead to conflicts between the central and local legislations.

IV. Legislative supervision and review

Chinese legislators and legal scholars have reached a consensus that inconsistencies among laws are caused not only by unclear division of legislative powers, but also by the lack of a supervision system. Therefore, it is important to establish a supervisory organ to decide the validity of a relevant law when an inconsistency occurs. Some proposed the existing Special Committees of the NPCSC, while others advocated the establishment of an independent Constitution Committee (xian fa wei yuan hui), similar to the Constitutional courts in some western countries. A draft issued in 1994 actually went so far as to devote a hole chapter to legislative supervision, which includes the establishment f a Constitution Committee. Some saw the introduction of the constitution Committee as "one of the most revolutionary and far-reaching reforms ever introduced into the PRC legal system." If this reform were carried out, the power of legislative review would be transferred from the exclusivity of the NPCSC to a quasi-Constitutional Court, which would consist of some relatively independent legal scholars. Although the committee would still be a part of the NPCSC, its formal composition and review procedures and relatively independent status resemble a form of judicial review system. In addition, its experience in adjudicating the conflicts of laws would lay a foundation for the establishment of a judicial review system, and therefore pave the way for the introduction of the separation of powers into the Chinese political system.

However, the drafts of the Legislative Affairs Commission ("LAC") after 1997 abandoned the whole idea of the Constitution Committee. In the Law-making Law, the provisions on legislative supervision are scattered in different chapters and the power of legislative supervision is granted to numerous organs, although "relevant special committees" (you guan zhuan men wei yuan hui) of the NPCSC are the main players and the NPCSC has final authority over the supervision decision. The reviewing powers of different organs are set out as follows.

First, the standing committees of provincial people's congresses can decide the legality of regulations passed by large cities.

Second, the State Council rules on the validity of conflicting regulations of local governments and the State Council departments. The State Council can invalidate a departmental regulation if it deems the application of local regulation as more appropriate, and will apply to the NPCSC for final decision if it decides otherwise. It is also for the State Council to decide whether there are inconsistencies between the departmental regulations, or between the departmental regulations and local government regulations. This seemingly clear-cut scheme, however, may be problematic since the State Council may not be an impartial or qualified arbitrator. In addition, under the Administrative Litigation Law, local regulations have higher authority over departmental regulations because courts are required to apply local regulations, whilst departmental regulations would only be used as "reference" (can zhao). The Law-making Law, however, does not set the ranks between local regulations and department regulations, an omission that is likely to lead to further confusion and uncertainty.

Third, relevant special committees of the NPCSC mainly decide the constitutionality and legality of the following legislation: administrative regulations, local regulations, regulations of autonomous regions and regulations passed under authorized power. The Law-making Law provides a very detailed petition procedure and allows a large variety of organizations and people to report violations. Generally, most of the state organs such as the State Council, the Supreme People's Court and other organizations, enterprises and citizens may petition in writing the NPCSC's investigation. Relevant special committees then may start investigation and may report, in writing, to the NPCSC on their findings. The Law-making Law requires the original organs that drafted the law in question to decide within two months whether to withdraw or amend the offending legislation. Otherwise, the relevant special committees will request the NPCSC to nullify the legislation.

Supervision and review by a variety of authorities at different levels are better than no review at all. However, it is questionable whether these supervisory organs can efficiently exercise their power, since their authority is vested by the NPCSC and lacks the necessary expertise and manpower, as law-drafters rather than adjudicators. In addition, duplication and confusion over their respective responsibilities are certain to occur because the division of their supervisory powers is not clear.

V. Legislative procedures

Unable to establish a Constitution Committee, drafters of the Law-making Law had to focus on procedural and technical aspects of the legislation, hoping that inconsistencies could be eliminated by a well-designed procedure and filing system. It follows that a substantial portion of the Law-making Law has been devoted to this area. The procedures are very detailed, including proposing, drafting, presenting, examination, and consultation, debating, withdrawing, passing, and publication. It is believed that a detailed procedure will make the legislative process more democratic and scientific.

The Law-making Law has incorporated most of the existing procedures. However, the following important changes are noticeable. First, the procedures are more formal, e.g. a bill must be reviewed by the NPCSC three times before voting; and all the bills must be submitted to the Law Committee for final review after several rounds of review by other relevant Special Committees. In reality the Law Committee largely relies on its working commission, LAC, to handle all concrete matters of reviewing a bill. This has caused complaints from the Special Committees, since their proposed modifications were often "destroyed" by the LAC. However, the role of the LAC seems indispensable, and is increased in the Law-making Law. For example, in addition to its power to draft proposals for law interpretation, the LAC has also been authorized to review and answer relevant concrete legal issues, a function equal to interpreting laws.

Second, the procedures are more transparent. Previously, most bills were discussed among small groups (xiao zu tao lun), which usually involved parties with similar interests. Under the Law-making Law, however, joint group meetings or even plenary meetings of the NPCSC should be held if there are important issues to be settled. Public hearings and expert hearings are also required during the review of a bill.

In sum, China already has comprehensive legislative procedural rules governing different legislative bodies. Consolidating these rules into a uniform law seems unnecessary and problematic. Due to the complexity and diversity within the Chinese legislative system, each legislative body has its own unique system that requires special treatment. A single unified law may render law making by different legislative organs more difficult and eventually lead to more conflicts and inconsistencies between the laws. For the Law to be more meaningful in solving the problems we mentioned earlier, the emphasis should be on the division of legislative powers, legislative supervision and law interpretation, rather than on legislative procedures.

VI. Interpretation of laws

The power of interpreting laws belongs to the NPCSC under Article 42 of the Law-making Law. This is a constitutional right, and was taken for granted until recently challenged by the Court of Final Appeal (CFA) of the HKSAR. Although the CFA, in its clarification, has confirmed the unquestionable power of the NPCSC in interpreting laws (including the Basic Law of the HKSAR), the doubts on the efficiency and fairness of this system still weigh on the minds of some legal scholars. They argue that the NPCSC, as a non-judicial organ, might not be able to interpret laws according to the needs of complicated and ever-changing realities, especially when it holds a meeting only once every two months.

According to the Law-making Law, the NPCSC has the power to interpret law in the following situations: (1) when the law is too general; and (2) when a new situation arises after the law has been passed.

As to interpretation procedures, there are four steps: (1) relevant organs request interpretation; (2) the LAC drafts an interpretation proposal; (3) the Law Committee reviews the draft and provides comments and suggests modifications; and (4) a majority of the members of the NPCSC pass (and publish) the interpretation. A new clause was inserted to the law prior to its promulgation stipulating that the interpretation of the NPCSC has the same legal effect as the law.

Unlike most western countries, China has parallel systems for interpreting laws: legislative interpretation by the NPCSC and judicial interpretation by the Supreme People's Court ("SPC"), whose power was delegated to the SPC by an NPCSC decision in 1981. The former is targeted at the validity of the law, while the latter solves problems that may occur during the application of the law. In addition, the SPC also lacks the ability to declare the unconstitutionality of a law.

In previous drafts, the Law-making Law confirmed SPC's power to interpret laws when it confronted issues regarding the application of laws while adjudicating a case. The drafts also stipulated that the Supreme People's Procuracy (the "SPP") may apply to the NPCSC for interpretation if it disagrees with the interpretation of the SPC; and the interpretation of the NPCSC would prevail when it differs from that of the SPC. The Law-making Law as enacted does not have those provisions. It is unlikely, though, that the SPC and the SPP's powers in this regard will be affected.

Since there is no concrete procedure or mechanism designed for the interpretation by the NPCSC, and in reality a majority of interpretations have been made by the SPC, the exercise of this power will be a great challenge for the NPCSC. It is unclear whether provisions on the LAC's power of interpretation imply that the LAC, a working commission of the NPCSC, has assumed powers of interpretation, in addition to its original legislative drafting and reviewing functions.

VII. Conclusion

The promulgation of the Law-making Law is a step forward to greater maturity and sophistication for China's legislative system. It shows Chinese legislators' commitment to solve the problems that have long been troubling its legislative system, and its legal system as a whole. Improvements have been made in the area of the division of legislative powers. For the first time in PRC legislative history, legislative powers are divided between the center and the localities, in that local authorities may share some powers with the center under certain conditions. The necessity of establishing a judicial review system such as a Constitution Committee was emphasized and openly discussed. Although falling a step short of achieving that goal, some measures have been taken to improve the supervisory system within the current system. Legislative procedures have been carefully designed to ensure efficiency and transparency.

However, it would be naive and unrealistic to expect that the new law will achieve all the objectives that many people anticipated. Without constitutional reform in China and without having the status of a Constitutional document, the Law-making Law will not change any Constitutional structure, although some issues it tries to tackle are within the constitutional context. Therefore, it is understandable that the allocation of legislative powers between central and local governments has not been completely settled, e.g. the scope of the center's exclusive powers is uncertain and the legislative power of the localities, though liberally granted, are not specified and guaranteed. Among all the problems discussed in this article, the most unfortunate result of the Law-making Law is that the drafters abandoned their earlier intention to establish an independent and impartial legislative supervision and review organ like the Constitution Committee. Without such an organ, the problem of conflict of laws remains unsolved no matter how well the power is divided and how perfectly the procedure is designed. Finally, judicial interpretation of law is also essential for the healthy development of China's legislative system. It is unfortunate that the law does not specifically grant the power of interpretation to the SPC, as some earlier drafts did. Even if the SPC can still interpret in practice, the system of parallel interpretation by both the NPCSC and the SPC is still problematic. On the one hand, the NPCSC rarely exercised its supreme power of interpretation due to a lack of a concrete interpretation procedure and expertise. On the other hand, the SPC has assumed an active role in law interpretation, but without a legitimate basis provided by the Law-making Law. In addition the SPC is limited to the issues regarding the application of the law, but there is not always a clear line between the issues of the law and the issues of the application of the law. Therefore in practice, the SPC has already interpreted or invalidated some laws. Hence, the conditions for establishing a judicial review system in China do exist and the drafters of the Law-making Law should have taken this factor into account, assuming they have the power to decide.

Thus, it is not too ironic to say, given the wide range of the unsolved problems, that this high profile legislation that has aroused much hope for fundamental change and improvement, may nevertheless achieve only relatively minor success, in consolidating existing lawmaking rules and in institutionalizing the legislative system. However, as Murray Scot Tanner put it, a "greater professionalism and specialization in the staffing of the NPC may provide the basis for a more independent legislature later in the decade." It is hoped that the limited role that the Law-making Law is playing at present will serve as the basis for greater legislative reform in the future.

(The author is a Research Fellow at the Faculty of Law, the University of Hong Kong.)