Public participation and its limits in legislative consultation: a case study on local legislation in China

IF 1.5 Q1 LAW

Theory and Practice of Legislation Pub Date : 2019-01-02 DOI:10.1080/20508840.2019.1665280

Rongxin Li

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引用次数: 1

Abstract

ABSTRACT Broadly defined, public participation, as a part of the legislation process is widely accepted in various political regimes for engaging more citizens into the enactment and amendment of laws, regulations and policies, including the one-party states like China. However, public participation in China’s legislation, often described as ‘authoritarian legislation’, faces various challenges. This includes the lack of mature and institutionalised participation mechanisms and poor quality of participation and discussion per se. This paper, therefore, takes the legislative consultation on ‘Regulations on Protecting Historical and Cultural City of Huizhou (Huizhou regulation) (Huizhou Regulation ranked as local regulation according to its legal effect. Commonly, according to article 100 of China’s Constitution, local legislation refers to the activities that the local legislative bodies (broadly, legislative body in China only refers to the National People’s Congress (NPC) and its Standing Committee. The empowered local legislative bodies refer to the Local People’s Congress (LPC) and its Standing Committee and local government) to enact local regulations and local government regulations.)’ as a case study to explore the role of public participation in China’s emerging municipal-level legislation process. It examines public participation in various innovative formats, such as the conventional form of legislative hearing, in addition to the fixed consultative group and expert discussion team, etc. While these participations aimed to act as a means of improving the quality and legitimacy of the local legislation, they did so within the authoritarian rule setting. Thus, this paper analyses these limits by discussing what the participation and discussion in local legislative consultation in the context of authoritarian legislation looks like, and it argues despite the challenge of authoritarianism, public participation in local legislation contributes, in a non-confrontational manner, to the scientification (Kexuehua 科学化) of legislation in the Chinese context.

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立法协商中的公众参与及其局限性——以中国地方立法为例

广义上讲，公众参与作为立法过程的一部分，在各种政治制度中被广泛接受，以使更多的公民参与法律、法规和政策的制定和修订，包括像中国这样的一党制国家。然而，公众参与中国的立法，通常被称为“威权立法”，面临着各种挑战。这包括缺乏成熟和制度化的参与机制，以及参与和讨论本身的质量较差。因此，本文对《惠州历史文化名城保护条例》(《惠州条例》)(《惠州条例》按其法律效力列为地方性法规)进行立法咨询。通常，根据中国宪法第100条，地方立法是指地方立法机构的活动(广义上，中国的立法机构仅指全国人民代表大会及其常务委员会)。被授权的地方立法机构是指地方人民代表大会(LPC)及其常务委员会和地方政府)制定地方法规和地方政府法规。)作为一个案例研究，探讨公众参与在中国新兴的市级立法过程中的作用。除了固定的谘询小组和专家讨论小组外，它还探讨了各种创新形式的公众参与，例如传统的立法听证会形式。虽然这些参与旨在作为提高地方立法质量和合法性的一种手段，但它们是在威权统治环境下进行的。因此，本文通过讨论威权主义立法背景下的地方立法协商的参与和讨论来分析这些限制，并认为尽管面临威权主义的挑战，公众参与地方立法以一种非对抗性的方式对中国语境下立法的科学化做出了贡献。

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来源期刊

Theory and Practice of Legislation LAW-

CiteScore

4.50

自引率

10.00%

发文量

期刊介绍： The Theory and Practice of Legislation aims to offer an international and interdisciplinary forum for the examination of legislation. The focus of the journal, which succeeds the former title Legisprudence, remains with legislation in its broadest sense. Legislation is seen as both process and product, reflection of theoretical assumptions and a skill. The journal addresses formal legislation, and its alternatives (such as covenants, regulation by non-state actors etc.). The editors welcome articles on systematic (as opposed to historical) issues, including drafting techniques, the introduction of open standards, evidence-based drafting, pre- and post-legislative scrutiny for effectiveness and efficiency, the utility and necessity of codification, IT in legislation, the legitimacy of legislation in view of fundamental principles and rights, law and language, and the link between legislator and judge. Comparative and interdisciplinary approaches are encouraged. But dogmatic descriptions of positive law are outside the scope of the journal. The journal offers a combination of themed issues and general issues. All articles are submitted to double blind review.