"Invisible Legislators" at the Legislative Affairs Commission of China's National Legislature
An institution indispensable to the proper functioning—and to a full understanding—of the National People's Congress
Welcome to a special issue of NPC Observer Monthly, a (mostly) monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC).
On June 25, 2018, about four months before NPC Observer’s second anniversary, we published what I consider one of the most important pieces we’ve ever produced: a profile of the NPCSC Legislative Affairs Commission (LAC) [法制工作委员会]. Today, I’m pleased to announce that we’ve just completed the article’s second major update, the first since 2021. For those unfamiliar with the LAC, here’s how the post now begins:
The Legislative Affairs Commission (LAC) under China’s national legislature, the National People’s Congress (NPC) and its Standing Committee (NPCSC), is such a unique institution that one can hardly find an equivalent in another jurisdiction. Staffed primarily by unelected and unidentified members, the LAC works mostly behind closed doors, although recently it has become much more visible in the public eye. The LAC’s employees outnumber NPCSC members, and unlike the latter, they all work full-time and include more legal experts than the staff of any other NPC body. Their decisions play significant roles throughout the legislative process, from the agenda-setting stage to deliberations—and even after laws are enacted. One Chinese scholar thus aptly dubs the LAC staff “invisible legislators” [隐性立法者]. Some worry that they may have usurped the powers of elected members of the legislature, thus becoming de facto legislators. Below, we provide an overview of the LAC—an essential yet peculiar institution under the Chinese legislature—and its roles in the legislative process.
The piece introduces the LAC’s history, structure, and personnel; discusses its legal status within the NPC and the broader legal system; and finally delves into the multifaceted role it plays in the legislative process, focusing on the following seven functions:
drafting the NPCSC’s legislative plans;
drafting legislation;
proposing amendments to pending legislation;
researching and reviewing the constitutionality of draft laws;
reviewing the validity of sub-statutory legislation;
responding to legal inquiries; and
engaging in public communications.
This update reflects recent statutory changes and other pertinent developments. It draws on new works by Chinese scholars and benefits from several official documents that we obtained during the revision process—documents that, until now, had not been widely publicized. In addition to the constitutional research opinions discussed below, they include:
2015 Guidelines for Releasing Draft Laws for Public Comment [向社会公布法律草案征求意见工作规范];
2016 Guidelines for Gathering and Assessing Legislative Projects [立法项目征集和论证工作规范]; and
2020 Working Rules of the NPCSC Party Group [中共全国人大常委会党组工作规则] (I’m still working on a translation).
In this newsletter, I’ve reproduced three sections of the article that were the most heavily revised in this update.1 They address, respectively, the LAC’s evolving relationship with other state organs; its ex ante constitutional review of draft laws; and its role as the legislature’s spokesperson.
If you’re enjoying the newsletter, I hope you’ll share it widely. —Changhao
Not Just a Legislative Service Agency?
The LAC is a ministerial-level body under the NPCSC. It is commonly characterized as a “working body” [工作机构] of the NPCSC. (The other working bodies are the NPCSC’s Budgetary Affairs Commission, Deputy Affairs Commission, as well as Hong Kong and Macao SAR Basic Law Committees). The late Professor Cai Dingjian [蔡定剑], a leading authority on the NPC, explains:
A working body can be considered a type of semi-functional body [半职能机构]: it can exercise certain statutory authorities, but cannot, in its own name, issue enforceable [执行性的] documents, directives, or orders; its role is to provide services to functional bodies [职能机构] [such as the legislature itself]. Thus, in essence, it is also a kind of service body.
In other words, the LAC is traditionally considered a professional bureaucracy under the NPCSC with only support functions. It has no independent legislative authority and, as Chinese scholars argue, its actions should not have any external legal effect.
But recent developments in the system of “recording and review” (R&R) [备案审查] have begun to challenge that traditional view. R&R, in short, is a process whereby the LAC reviews (on the NPCSC’s behalf) the legislation of other state organs—including the State Council and local legislatures—for inconsistency with the Constitution, national law, or central policy. Since 2015, the Legislation Law [立法法] has authorized it to issue “research opinions” [研究意见] to the relevant organs, urging them to correct problems in their legislation. (In 2023, these opinions were upgraded to the more authoritative-sounding “review opinions” [审查意见].) No one disputes that such opinions do not bind other state organs as a matter of law: If an organ refuses to amend or repeal a problematic document, the LAC by itself cannot order it to do so, but will have to request the NPCSC to annul the document. In practice, however, the LAC’s written opinions have invariably been the final word. Enacting organs have generally chosen to follow them (albeit after some delay in certain cases), whether due to political considerations or the threat of NPCSC action. The effects of the opinions have even “spilled over” beyond specific cases to influence “the exercise of legislative, administrative, and judicial powers” more broadly. For example, a recent empirical study found that, in multiple contract disputes, courts relied on a 2017 LAC opinion rejecting local legislation that had conditioned the final settlement of government-funded construction projects on official audit results.
That said, aside from that (important) aspect of the LAC’s work, the traditional view nonetheless holds today: As we will discuss below, the LAC’s influence on lawmaking is still channeled through the NPC’s internal mechanisms and externalized only via the Council of Chairpersons, the NPC special committees, or the legislature itself.
Reviewing (or Approving?) the Constitutionality of Draft Laws
As part of 2018’s far-reaching state institutional reforms, the former NPC Law Committee was rechristened the Constitution and Law Committee (CLC) [宪法和法律委员会] and assumed new responsibilities over implementing the Constitution, including constitutional interpretation and constitutional review. To help the CLC discharge those duties, the LAC established its newest subdivision—the Office for Constitution [宪法室]—in October 2018. It is now understood that the CLC and the Office for Constitution review the constitutionality of statutes ex ante—that is, before they are enacted—whereas the LAC’s Office for Recording and Reviewing Regulations, as part of R&R, conducts ex post constitutional review of legal instruments other than statutes. (Enacted statutes are not formally subject to constitutional review.)
One of the earliest examples of its ex ante constitutional review concerned the 2019 Foreign Investment Law [外商投资法]. This statute regulates investments by foreign “natural persons, enterprises, or other organizations,” whereas Article 18 of the 1982 Constitution permits only “foreign enterprises and other economic organizations or individuals” to invest in China (our emphasis). In an article published after the Law’s passage, the Office for Constitution endorsed its broader scope. (LAC officials would later describe the article as an “interpretive research opinion” [解释性研究意见], the first publicly available document of this kind.) As it explains, Article 18’s terminology “reflected the social realities and understanding of the time” (i.e., before China’s market-oriented economic reforms), but its underlying “spirit” was clear—that China pursues a policy of opening to the outside world. Indeed, as China embraces foreign investments, the article continues, the meaning of that constitutional provision has “evolved gradually and become more expansive.” Hence, it was “inadvisable” to require the statutory language to match the constitutional text in this case, and the Foreign Investment Law’s “updated” terminology was consistent with the provisions and spirit of the Constitution.
The LAC took another historic step in ex ante review two years later. In July 2021, the State Council proposed amendments to the Population and Family Planning Law [人口与计划生育法] to codify the Party’s earlier decision to adopt a three-child policy and accompanying measures to boost childbirths. Some questioned, however, whether the Law so amended would still comply with China’s constitutional policy of “promoting family planning [计划生育] so that population growth is consistent with economic and social development plans” (PRC Const. art. 25)—for “family planning” undoubtedly referred to the one-child policy in 1982. The LAC defended the proposal’s constitutionality in a research opinion—also subsequently characterized as a “report on constitutional review and research” [合宪性审查研究报告]—that was distributed to lawmakers during deliberations—apparently a first in NPCSC history.2 After reviewing China’s evolving family planning policy, the opinion concludes that the constitutional provisions on “family planning” are “inclusive and adaptable” enough to encompass the birth policies implemented at different periods . The proposed three-child policy and accompanying reforms, too, would “conform to the provisions and spirit of the Constitution.” (Identical language made it into the CLC’s legislative report on the amendments.)
Officials claim to have reviewed the constitutionality of every legislative bill since the start of the 13th NPC in March 2018. In March 2023, the NPC amended the Legislation Law to formalize this process, requiring the CLC to explain “the issues of constitutionality involved” in legislative bills in its reports to the legislature. Later, the Office for Constitution, in its 2023 report on constitutional enforcement, disclosed the following workflow for ex ante constitutional review:
When an LAC executive meeting discusses a draft law, it will hear the Office for Constitution’s “research opinion” on the constitutionality of the draft.
When the CLC meets to conduct unified deliberations on a draft law, it will also hear the LAC’s report on “research opinion on constitutional and Constitution-related issues” in the draft and then explain the relevant issues in the appropriate legislative document.
When the NPC or NPCSC discusses a draft law, some “constitutional review opinions” may be distributed to lawmakers as references.
As of July 2025, the LAC has released twelve research opinions on constitutional and Constitution-related issues—three from 2022 and seven from 2023, in addition to the two just discussed—likely a fraction of what it has produced internally. And unlike the last two, most of the other opinions did not address discernible, specific constitutional disputes. Rather, they tend to “engage in routine examination of the entire draft law’s constitutionality” by explaining how the law specifically implements relevant constitutional provisions and (in some cases) how the Constitution “regulates” or “guides” the particular legislative endeavor.
Those observations echo the following three asymmetries that Professor Huang Mingtao [黄明涛] recently articulated to encapsulate the current state of the LAC’s routine ex ante constitutional review, now seven years in. Mere citations to the Constitution have outnumbered determinations of the constitutionality of specific provisions. Formal assessments of constitutionality (focusing on textual consistency) have been more common than substantive ones (looking beyond the text). And ex ante review has more often facilitated the legislative process than obstructed it (if at all). While Huang did not benefit from the LAC’s 2022 and 2023 research opinions—they were published only in the expensive and hard-to-obtain NPC Yearbooks and did not become widely available until December 20243—those documents, in our view, further corroborate his findings.
Stepping into the Spotlight
In mid-2019, with the Central Propaganda Department’s blessing, the LAC established a new office of the spokespersons within its Research Office to “strengthen ties with the news media and better inform the public about legislative work.” The heads of the Research Office and the Legislative Planning Office have been serving as co-spokespersons. Their office can be reached at +86-10 6309-8334.
Under its current practice, the LAC generally holds a press conference a few days before each regular NPCSC session. The press conferences follow a largely fixed format. A spokesperson first previews the upcoming session, providing short summaries of selected bills on the agenda. He then gives updates on recent public consultations on draft laws, in fulfillment of the legislature’s statutory duty to disclose such information (see Legislation Law art. 40). The spokesperson typically reveals how many people have commented on a draft (online and offline) and the total number of comments received, in addition to offering terse—if not perfunctory—summaries of the comments. Since December 2022, the spokesperson has also made a point of naming specific citizens, NPC delegates, or grassroots legislative outreach offices that have provided valuable input. Finally, the spokesperson answers questions from the media—mostly pre-arranged, it appears—that allow him to discuss the relevant bills in greater detail, especially those that concern hot-button social issues. (Overseas media outlets have not asked a question since October 2019; it is unclear if they still have access.)
These events offer the public their only opportunity to learn about the comments submitted on draft legislation and, occasionally, about authorities’ responses as well. In 2019, for example, the spokespersons twice acknowledged public comments in support of marriage equality. Although they ruled out the possibility of legalizing same-sex marriage in China in the near future—indeed, the 2020 Civil Code [民法典] did not do so—they were among the very few (if not the only) high-level Chinese officials who have publicly addressed the issue.
Compared to the prior practice of revealing a draft’s contents only during or after a legislative session, the LAC’s pressers have brought the disclosure forward by several days. This shift, one scholar argues, has given the public “the time and opportunity” to follow and influence legislative deliberations. On the flip slide, however, the LAC’s pressers have, for the most part, supplanted the NPCSC General Office’s traditional post-session press conferences, where the legislature would routinely disclose vote tallies on newly enacted laws and invite senior officials to discuss them in depth. In their present format, the LAC’s press conferences cannot perform this important function.
Beyond regular pressers, the spokespersons’ office has employed other forms of media engagements to provide updates on enacted legislation, discuss the legislature’s recent work in specific areas, and explain the legal issues raised by current events—all part of its broader effort to “popularize the law.” For instance, after the NPC adopted Hong Kong–related decisions in May 2020 and March 2021, a spokesperson issued separate statements explaining their significance and briefly previewing next steps. On National Security Education Day in 2021, another spokesperson introduced recent national security legislation in an interview with the People’s Daily. And perhaps the best-known media appearances by the spokespersons came in spring 2020, when they gave multiple press interviews to answer legal questions arising from efforts to contain COVID-19. In one interview, a spokesperson emphasized that local governments must employ measures that “maximally” protect the rights and interests of citizens and other private entities and must not “exceed the necessary limits”—a statement that citizens later recirculated online to protest the “hard isolation” imposed during Shanghai’s spring 2022 lockdown.
The spokespersons have also issued ad hoc statements to convey the legislature’s stance on issues of public concern. They most notably did so in November 2019, during the Hong Kong anti–extradition bill protests. After a Hong Kong court struck down part of a local statute that the government had invoked to ban masks during the protests, a spokesperson issued a stern statement criticizing the ruling. He warned that the ruling had intruded on the NPCSC’s exclusive authority to interpret the Hong Kong Basic Law and threatened NPCSC intervention. (None materialized, however, likely because the statute was upheld on appeal.) More recently, on September 11, 2023, the office issued a public statement responding to strong backlash against a proposed change to the Public Security Administration Punishments Law [治安管理处罚法] that would have punished clothing or speech deemed “detrimental to the spirit of the Chinese people or hurtful to the feelings of the Chinese people.” The statement said the LAC “sincerely welcomed” public input on the bill—which, by the end of the monthlong consultation on September 30, had received almost 126,000 comments—and pledged to “carefully sort out and study” the comments and suggest improvements. The controversial language was dropped from subsequent drafts of the bill.
Thanks for reading! If you haven’t already, I encourage you to read the full profile.
As I’ve previously announced, I’ll publish a double issue for June and July 2025 sometime in August. Until then!
Citations and internal cross-references were omitted. Headings have been changed.
Vague official statements have made it difficult to tell which was a first: the LAC’s issuance of such a report or its distribution to the legislature (or perhaps both). Either way, it was billed as a significant development.
We obtained copies of the 2022 opinions from the Kyoto branch of Japan’s National Diet Library through a Xiaohongshu-based service, and bought the 2023 Yearbook ourselves. We then shared the texts with a professor at the Southwest University of Political Science and Law, whose WeChat public account first published the documents online in early December 2024. Coincidentally, the WeChat account of the Peking University Center for Constitution and Administrative Law Studies also posted those documents a week later, though it likely obtained them directly from the publisher.