The formulation process of the labour law of the People's Republic of China : a garbage can model analysis
Student thesis: Doctoral Thesis
|Award date||6 Jan 1999|
This thesis explores the formulation process of the Labour Law of the People's Republic of China, the first labour code in the PRC, which was promulgated in July 1994. Beginning in 1979, the formulation of the Labour Law had followed a twisting and long road spanning a period of 15 years. As a case of policy-making in the labour arena, the formulation process of this law provides an illustrative channel to understand labour politics and changing labour relations in the context of Chinese market transition. As a case of lawmaking, its tortuous formulation process offers a striking example to understand the Chinese lawmaking process in the reform era. This dissertation argues that lawmaking in contemporary China is a complex endeavour, which is affected by various factors, including institutional factors and non-institutional factors. The course of development is usually afflicted with randomness and fluidity. Mainstream literature about the policy and law making process in post-reform China is dominated by either the "power model" or the "fragmented authoritarianism model". The former stresses the cleavage and conflict in top leadership in the policy making process, and the latter highlights the interactions among top leaders and its highly competitive, powerful ministries, bureaus and territorial units. In the case of the Labour Law, the power model tended to demonstrate the activism and importance of the National People's Congress, while the fragmented authoritarianism model tended to view the long period of drafting as a product of jurisdictional dispute among different bureaucratic interests, especially as the result of protracted bargaining between trade unions and other governmental departments responsible for economic affairs. Unlike the power model and the fragmented authoritarianism model, this thesis argues that the formulation process of the Labour Law manifests the fluidity and randomness in the Chinese lawmaking process on the basis of Kingdon's revised "garbage can model". Unlike the power model, the involvement of top leaders in the Labour Law was limited, and the activism of the NPC was rather restricted. Dissimilar to the fragmented authoritarianism model, no strong conflicts among organisational participants occurred in the process. As it turned out, both non-institutional and institutional factors made a great impact on the policy-making process. In particular, the role of policy entrepreneur taken on by the leadership of a commission or a ministry (in this case, the Ministry of Labour) facilitated the advancement of a legislative proposal onto the top decision agenda. It is also found that even though the party organisations penetrated every aspect of the lawmaking process, the Party Centre did not and could not review every single law. Rather, it was the organisational patron, the relevant administrative commission or ministry of the State Council which played an important role in the process of law formulation. This thesis concludes that Kingdon's revised garbage can framework has proved its usefulness in this case. Furthermore, it extends our analysis to go beyond the official structures, which should not be taken as the only referents in politics. Nevertheless, using this model as the basis for analysing the policy process should not obscure us from the fact that the fate of the Labour Law was not entirely determined by luck and chance. The dynamics within the politics, problem and policy streams and the connections among these streams were not fortuitous or random. They came altogether from the special circumstances of China's transition from a planned system to a market economy.
- Interpretation and construction, Law, Legislation, Labor laws and legislation, China