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Rule of Rules: An Inquiry intoAdministrative Rules in China'

作者:王锡锌   点击量:32730



Introduction

In every societyin which the ideas of Rule of Law prevail, an enduring question remains to bewhat kind of law should govern the society. Aristotle once defined the corecomponents of the Rule of Law as (1) all laws must be obeyed by a society, and(2) laws that are observed by the society must be good.Into the core of this idea stands the concept of what Lon. Fuller had termed as“the morality of law.”Legal philosophers have been debating over this issue for thousands of yearswith no agreement shared by different cultures. And that’s one reason whycandid and open dialogues are critically needed between different societies inunderstanding ideas of the Rule of Law and the acceptance of them.

Beyond thedebate over the “morality of law”, we must consider yet another phenomenon inmodern Rule of Law states. Common people, legal scholars and governmentofficials are seeing in modern society that the family of law is surprisinglyexpanding as result of numerous agency made rules come into play in every legalsystem. Today, in China, like in every country sticking to the Rule of Law,agency rules comprise a huge part of family of law, through which individuallife is regulated, and government power exercised. It is in this means that wemust recognize that the Rule of Law in modern society is in reality “Rule ofRules”.

In China, likein any other countries, when we say that individuals are regulated “from thecradle to the grave”, we perceive a reality that so much of our life has cometo be supervised by administrative rules. Accordingto statistics from the Legal Affairs Office of the State Council, till 1998, thelegal system features some 7,000 rules made by Ministries and some 18,000 bylocal governments. The number, however, is not so surprising. Actually, in somecountries, such as the United States, the figure is even bigger. Itis common today that agency-made rules completely dwarf laws enacted bylegislature, either in the West or the East.

Rule-makingpower is an outstanding feature of the modern administrative state andagencies. In present century, agency rule-making powers are the rule ratherthan, as they once were, the exception. When Bentham inveighed againstjudge-made laws, he claimed that law-making power was only for the electedrepresentatives of the people. This theory had its heyday in the 19thCentury, when the enacted law was for the most part produced directly by thelegislature. However, when the twentieth-century administrative state arrived,the legislature itself could not directly perform its vast tasks of regulationand guardianship. Rule making came into its own as a potent weapon in thegovernmental arsenal.

Being confrontedwith the reality that agency rules are served as legal norms inevitablyaffecting individuals rights and the way government exercises its power, wehave good reasons to believe that the success of the Rule of Law to a largeextent depends upon whether and to what degree can we resolve those troubles ofagency rules, as will be sketched out later, which are plaguing agency rulesand the whole legal system today in China.


Administrative RulesDefined: A Constitutional Background

Administrativerule(xingzheng guizhang) as a legalterm in administrative law in China receives its name from the Constitution of1982 with a narrower definition than in some other countries, such as theUnited States. According to the Constitution of 1982, “administrative rule” isone source of law. The family of law in China comprises (1)“basic laws”(jiben falu) made by National People’sCongress(the NPC); (2)laws(falu) madeby the NPC Standing committee; (3)administrative regulations(xingzhong fagui) made by State Council;(4)local regulations(difangxing fagui)made by some authorized People’s Congresses at local levels; (4)administrativerules(xingzhong guizhang) made byMinistries of the State Council and by some authorized local governments. Whenwe use the term “law” in a broad sense, we refer to all these legal norms. And,in the 15th amendment of the Constitution that reads “governing thecountry according to law, and construct the Rule of Law state”, “law” asmentioned thereof undoubtedly includes administrative rules.

Thus defined,administrative rule specifically includes only rules made by thoseconstitutionally authorized ministries and local governments. Rules made by theState Council is not administrative rules but administrative regulations, andrules made by agencies other than those ministries and local governments aretermed as “normative documents”(guifangxingwenjian), which in theory do not bear binding force(But in practice,normative documents very often sever as agency’s “secret weapon” in regulatingsociety, which will be discussed below).


Delegation of Powers inRule Making Context

Although Chinadoes not adopt the “separations of powers” pattern in formulating its powerstructure, it is expressly stated through the Constitution(Article 58) that theNPC and its Standing Committee shall exercise law-making power. Doesthat mean the executive branch, both the State Council and its Ministries atthe central level and governments at local levels, when makes rules, must bedelegated with powers by the legislature? Some scholars believe that delegationof powers is a prerequisite for agency to make rule, because the Constitutionvests the law-making power only in the NPC and its Standing Committee. Othersargue that the Constitution itself does not expressly prohibit administrativeagency from enjoying rule-making power. Actually, they argue, the Constitutionin Article 89 and Article 90 grants the State Council and its Ministries thepower to make administrative regulations and administrative rules respectivelyin a clear way. For localgovernments, the Organic Law of Local People’s Congress and Local Governmentsgrants them powers to make local administrative rules(difangxing guizhang). Based on these constitutional provisions,they argue that Ministries and local governments own inherent power to makerules. Put it more straightforwardly, rule-making power is an inalienable partof executive power.

Is delegation ofpower a prerequisite for agency to make rules? Or what’s the nature of agency’srule-making power? These are questions of crucial importance in rule-makingcontext. Yet it is not easy to give simple answer to them only through a plainread of the Constitution, because the Constitution deals with these essentialissues in a self-conflicting manner and thus very confusing. To analyze thenature of agency’s rule-making power, we must examine the functions ofexecutive organs as designated by the Constitution. Article 89 and Article 105of the Constitution states that Central government and local governments areexecutive organs of the NPC and local PCs respectively. Therefore, if agenciesare expected to fulfill their functions, to administer laws, they have to interpretlaws, to promulgate detailed rules pursuant to laws, and to make proceduralrules for officials in implementing laws. Under such circumstances, agenciesshall have rule-making power with or without delegation from the legislature.This power is thus “inherent”, for it is inherent in agency’ s functions as anexecutive branch. But rule-making based on “inherent” powers must be pursuantto laws agency administers, without any changes of individuals’ rights orobligations. On the other hand, if an agency is to affect individuals’ rightsand obligations substantively through administrative rules, delegation ofrule-making power becomes a prerequisite, for, in such cases, agency virtuallyexercises the law-making power, which it does not have constitutionally.

Types of AdministrativeRules: Where is the Boundary of Rule-making Power?

As analyzedabove, rule-making powers may come to agencies through two channels: theConstitution and delegations of powers. From this perspective, some Chinesescholars try to draw line between rule-making based on agency’s inherent powerand that based on delegations.

· Rule-making based on agency’s inherent power. The Constitutionprovides that Ministries are granted powers to make rules, as well as issueexecutive orders and guidelines “within their own authorities” based on lawsmade by NPC and its Standing Committee and administrative regulations made byState Council. And theOrganic Law of Local People’s Congresses and Local Governments stipulates thatprovincial governments, ……shall make local rules “for purposes of meeting localneeds”.Constitutionally, agency can make rules without delegation from thelegislature. By exercising this inherent rule-making power, agency may makerules that can be sub-categorized as two types:

i) Rules to implement laws. Becauseagency is expected to implement laws, it is logically necessary for agency tomake detailed rules pursuant to laws and for purposes of implementing lawswithin its own jurisdiction. Theoretically, implementing rules should involveonly the administrative filling in of details and must not change the laws itadministers. However, as many provisions of laws are too vague, it is very hardto tell, if not impossible, whether implementing rules are pursuant to laws inpractice.
ii) Rules to interpret laws. Very oftenwhen agency implements laws, it is again logically necessary for it to expressits intended course of action or its view of the meaning of a law.Interpretative rules serve an advisory function, which are statements issued toadvise the public of the agency’s construction of the law it administers.

· Rule-making based on delegated powers. If agency intends to makerules that will substantially create new law, rights, and obligations and thusvirtually exercises a law-making power, expressly delegated power to the agencyis a prerequisite. In practice, the legislature delegates power in two ways,one is delegating powers to agency in a particular law, the other in a specificdecision by NPC Standing Committee. During the period 1979 through 1990, of atotal of 89 laws made by the NPC and its Standing Committee, 63 laws containedprovisions of delegation, among which 11 laws, or 17 per cent, delegated powersto the State Council to make administrative regulations; 44 laws, or 69 percent, delegated powers to Ministries to make supplementary rules; 4 lawsdelegated powers to provincial governments to make local rules; and 4 lawsdelegated powers to Central Military Commission of the CCP or Headquarters ofthe People’s Liberation Army(the PLA).It seems that although the Constitution provides agencies with rule-makingpower, delegation of power through particular laws is still popular. The otherway to delegated powers to agency is through specific decisions by NPC StandingCommittee. Since 1982, when the Constitution was made, the Standing Committeehad made only 3 decisions to delegate powers to agency, all to the StateCouncil.

In practice, byexercising delegated powers, agencies have made rules that can be sub-categorizedas two types:

iii) Rules to supplement laws. Whenever thelegislature stipulates in laws principles and broad criteria, detailed rulesare needed to supplement the laws. Or wherever the legislature fells that aparticular matter falls in an agency’s expertise, it usually leaves room to besupplemented by agency through delegating powers. Supplementary rules can thuscreate rights or obligations within the limits imposed by the legislature.Substantively, this type of rules is similar to “substantive rule” in theUnited States as defined in the Federal Administrative Act(the APA) insofar asit is the result of delegation and can pose substantial impact on the public.
iv) Experimental rules. Experimental rulesis a type of rules with Chinese characteristics. Because China is in a rapidsocial transition phase, it is thought helpful for agency to make rules onexperimental bases, thus providing experiences for later legislation. Whereverexperimental rules are to be promulgated, no laws exist in that field. Consequently,such rules is to create laws, rights and obligations. Arguably, rule-makingpower should not be exercised on experimental bases, for it is to affect thepublic. What if an experimental rule finally proves to be wrong? Legally andmorally, can individuals’ rights and obligations be utilized as resources forgovernmental experiments or political games? Despite these suspicions and evenrejections, agencies, especially those in China’s Special Economic Zones suchas Shengzhen, Zhuhai, Sangtou, and Xiamen, have made many such rules withdelegated powers from the NPC Standing Committee, the State Council, andparticularly local People’s Congresses.

Of the fourcategories of administrative rules, for the first and second one, althoughagency is constitutionally directed to make rules “within its inherentjurisdiction”, in practice, however, it is very hard to tell whether they do ornot, because the Constitution defines functions and authorities of thoseagencies in a very vague and broad manner. What’s worse, although theConstitution demands that agency rules thus made “must not in conflict withlaws and regulations”, no workable criteria to check this test are provided tofacilitate supervisory organs, such as the NPC Standing Committee and the StateCouncil, to review their constitutionality, reasonableness, consistency, orlegality of agency rules. For the delegated rule-making, the most remarkableproblem is that delegations are too broad, sometimes without any limits. Stillanother factor that makes the boundary of agency’s rule-making power open-endedremains that the People’s Court, despite it can exercise judicial review powerover “agency concrete actions” under the Administrative Litigation Law of1989(the ALL), nevertheless can not review agency rules. Therefore, as apractical matter, agency can make rules with no effective limits posed by theConstitution, the legislature, or the People’s Court.

Ultra Vires, Consistencyand Reasonableness: A Quest for the Boundary

Inadministrative law, the ultra vires theory is of fundamental importance in thefield of rulemaking, and the jurisdictional principle the root ofadministrative power. Agency must exercise its power within its jurisdictionand legal boundary, otherwise there would be no Rule of Law. These theories arecentral to the Rule of Law, and no laws needed to expressly establish these; itis inherent in the constitutional positions of agencies.

In China, it is,too, widely believed by scholars that agency must not exercise its power,inherent or delegated, in a way of exceeding boundary of that power, and thatin administrative law, ultra vires and reasonable administration are rootprinciples. This has been demonstrated, though not clearly or completely, bythe ALL, which lays down that courts may review the legality and, under someparticular circumstances, the reasonableness of agency actions.However, agency’s rule-making, termed as “abstract administrative act” isinsular from judicial review.Consequently, institutionalized review over rulemaking by courts is still notavailable.

If courts do nothave the authority to say whether or not agency exercises its rule-making powerwithin boundary or reasonably, who does? The Constitution grants this authorityto the State Council. Section 13 of Article 89 articulates that the StateCouncil “may alter or repeal inappropriate orders, guidelines, or rulespromulgated by its Ministries and its Committees”;Section 14 provides the State Council with authority of altering or repealinginappropriate decisions or orders, including rules, made by local governments.A question immediately rises here: Why should the State Council, but not theNPC or its Standing Committee, be vested with powers to supervise agency’srulemaking? One can argue that the NPC and its Standing Committee, as thesource of all powers, of course have this power. Yet the reality remains thatthey have never exercised such power since 1982. If in reality the StateCouncil is the organ vested with the power, it is puzzling that how can itreview rulemaking based on delegation of powers from the NPC StandingCommittee? For under circumstances where the legislature delegates rulemakingpower to agencies, logically only the legislature, perhaps plus courts, haveauthority to review that rulemaking.

Given theauthority to review rules, what are the criteria for the State Council inreviewing rules? That is perhaps too early to be analyzed, for the StateCouncil rarely had exercised such power during the past two decades, and, as wehave mentioned before, no laws provides any criteria. It is in this situationthat the fundamental principles of administrative law such as ultra vires,reasonableness, are of critical importance.

The ultra viresprinciple directs that agency rulemaking powers, either inherent or delegated,must not exceed the boundaries. For inherent rulemaking power, as we havediscussed, it must be exercised within agency’s “jurisdiction”; for delegatedrulemaking power, agency must not make rules extending further than theauthority given by the relevant law or the legislature. The ultra vires testensures that agency rules have been issued within its power and kept in linewith laws.

It should not beaccurate, however, to assume that a rule is valid simply because it meets theultra vires test. In administrative law, agencies are expected to exercisepowers rationally, and they are not given carte blanche power to promulgate anyrule they wish within their jurisdictions or delegated powers. Therefore, evena rule deals with the subject matter within the agency’s power may be invalidif it is “unreasonable” or “arbitrary”. The reasonableness test at its coredirects that there must be a rational connection between the facts found andthe choice made.

Once theboundary has been established, it remains that who should act as the guard. Canthe State Council, as the Constitution puts it, be the guard? The legal theoryand past experiences suggest it can not, as we have briefly discussed earlier.Then who? The Standing Committee? The Court? Or the Party? This is a seriousquestion that are crying for solution.

Rule of Making Rules: theDeficiency in Openness and Public Participation

If substantivecriteria are absent in limiting agency’s rule-making powers, how about theprocedure? How are agency rules made? In what way can rules and rule-makingprocess attain legality, rationality and legitimacy that are crucial to rule oflaw? And so forth. These questions remind law reformers as well as commonpeople of the matter of rule-making procedures, among other things. Yet in therule-making process, a unitary procedure that is expected to encourage publicparticipation, consensus-building mechanism, rationality, and accountabilityhas yet to appear.

Currently,agency usually makes administrative rules through procedures adopting the “Notice for Making AdministrativeRegulation”(Xingzheng fagui ZhidiangZhangxing Banfa), which was issued by the Secretary Office of the StateCouncil on April 21, 1987. According to this Notice, administrativeregulation-making shall employ following procedural steps:

First, tocompile the five-year legislation plan and annual legislation plan. Thecontents of a five-year plan are strongly influenced by the concurrentfive-year economic and social development plan which is also compiled by theState Council. In this sense, the inclusions of a regulation on five-year planis no guarantee for its being drafted. The annual plan, on the other hand, ismuch more followed by the Legal Affairs Bureau of State Council. If aregulation is to be drafted and to be promulgated, usually it is a prerequisiteto get it on the annual plan. Beginning from the very first stage, law-makinginvites struggles. As a Western scholar observed, Ministries employ varioustactics to get their preferred legislation on the annual plan.

Second, draftingregulation. While the Legal Affairs Bureau of the State Council usually takes aconsiderable bulk of regulation drafting work, not all administrativeregulations are drafted by it. Many regulations were drafted by Ministries towhich the drafted regulations are relevant. Usually, if a ministry wins a placeon the agenda for its proposed draft regulation, the ministry and the LegalAffairs Bureau will establish a drafting group(qicao xiaozu). The group is led by the Bureau and will includerepresentatives of the principal drafting ministry and of other “concerneddepartments” to produce an “opinion-solicitation draft” (zhengqiu yijian gao).

Third,soliciting opinions. When the draft is finished, the Legislative Affairs Bureaucirculates the draft to all other closely concerned ministries or departments,and then later to other departments and provincial governments, and, in recentyears, to selected legal scholars to solicit opinions on the draft. Opinionssuggesting revisions, then, are returned to the Legislative Affairs Bureauwhich shall forward the comments and opinions to the drafting group, togetherwith the Bureau’s comments summarized from solicited opinions. The drafting groupwill then revise the draft. This process is usually repeated several timesbefore the Bureau submit the draft to the Standing Committee of the StateCouncil for discussion and vote.

Forth,coordinating competing opinions among departments and between centraldepartments and local governments. Since regulations are relating to allocationof powers and interests among different agencies, in the drafting andopinion-soliciting process those agencies involved usually struggle to benefitmore from the coming regulation. Thus, the opinions solicited form involvedagencies are sharply contending, which makes the coordination necessary. In essence, the process ofcoordinating competing opinions is a process in which departments and localgovernments bargain and comprise with each other in order to maximize eachinterests, advocated by the Legal Affairs Bureau.

Fifth, reviewingthe revised draft and compiling the explanation and the report of the draftbefore it goes to the Standing committee of the State Council for discussionand ratification. The Legislative Affairs Bureau reviews the revised draft (cao’an) to check its legality andconsistency with laws of the NPC and previous regulations. The bureau then makean explanation (shuoming) of theproposed draft and a detailed report of the draft (shencha baogao), and its own final recommendation (yijian) about the draft.

Sixth,Ratification of the draft. The draft, together with the explanation, report,and final recommendation made by the Legal Affairs Bureau, then goes to theStanding committee of the State Council for discussion and ratification.Usually there is a formal meeting—the executive meeting (changwu huiyi)---presided by the Premier attended by vice-premiers,State councilors, and the Secretary General of the State Council,inwhich the official form the Legislative Affairs Bureau and a representative ofthe drafting departments present the draft, the explanation, the report and therecommendation. The constitution does not state the procedure for the StateCouncil to pass its regulations. In practice, however, the Premier virtuallyhas the power to make finaldecision, since the Constitution of 1982 provides that the Premier assumesoverall responsibility for the work of the State Council,and that the Premier directs the work of the State Council.Andthe pass of a regulation takes the form of that the Premier sign his/her nameto ratify it.

Finally,publication of the ratified regulation. According to a notice concerningadministrative regulation-making procedure issued by the State Council on May31, 1988, all administrative regulations ratified and signed by the Premiershall be published in both the StateCouncil Gazette (guowuyuang gongbao)and the People’s Daily to make thempublic.

Summarized aboveis the procedures for administrative regulation-making. As to the huge andimportant source of Chinese formal law—the administrative rule ( xingzheng guizhang )—there is no unitaryprocedure provided. While some ministries and local governments do haveprocedural requirements for rule-making, they are usually very similar to thatof administrative regulation-making described before.

What can we sayabout the procedural requirements for rule-making in China? If in a society inwhich rules play such a very important role in public and private life, howshould we deal with the “rule of making rules”? In the way of China’s movingtowards a society of rule of law, what rule-making procedures should beestablished and how? These are questions frequently asked by Chinese legalscholars today. Obviously the rule-making procedure is far from desirable. Asit has been rightly pointed out by many Chinese scholars, rule of law does notmean “ruling the country using law”.In my view, if the law comes from the will of the leadership without anyeffective mechanism to restrain the potential arbitrariness and to achieverationality and legitimacy, and nevertheless is backed upon by coercive force,rule of law is no difference from rule of person. Besides, law in this meansconceptually contradicts rule of law. In the rule of law society, however, lawitself needed to be legitimatized, which in modern societies is usually metthrough democratic legislative procedures. In particular, we can argue thatbecause rule-making process directly affect those who are concerned, it is thenimportant for they to participate in the rule-making process, and that because,as a practical matter, rule-making always involves value choices, the procedureshould be more democratic, representative, and more accountable, so that valuechoices in the process can be more rational, arbitrariness can be curbed.What’s more, public participation and the interactions between the governmentand people promotes the public confidence in the government, at least it is thecase from social psychological perspective.

Partly inresponse to criticisms of the rule-making procedures, the NPC in the early1990s initiated the work of making Legislation Law to govern legislativeprocess, especially the rule-making process. The law was drafted in 1992 and1993, and in 1993, two versions of drafts were produced and discussed by boththe Legislative Affairs Committee of the NPC, the Legislative Affairs Bureau ofthe State Council and Chinese legal community. However, the enactment of thislaw proves to be a tough struggle for powers among the NPC, its StandingCommittee, the State Council, ministries and departments, and between thecentral government and local governments. In October this year, a proposeddraft was submitted to and discussed by the NPC Standing Committee andhopefully will be enacted in the near future by the NPC.But those who hope the law will provide a procedural framework for rulemakingwill be very disappointed, for there are very few provisions governingrulemaking procedure in this law. The “rule of making rules” is yet to come.

Legal Effect: An ImminentClash between Agency and Court

More often thannot, we think that agency rules, as a source of law in modern administrativestate, have legal effect. However, what do we mean when we say an agency rulehas legal effect? The consequence is more than mere terminology; it means thatnot only agency will apply the rule to particular cases in the administrativeprocess, just as apply laws, but also courts can act as though the rule hadbeen enacted by the legislature. This means, in turn, that the rule is asbinding as a law. Of course, to maintain this legal effect, a rule mustpre-conditionally meet both ultra vires test and the reasonableness.

In the UnitedStates, the basic principle governing the legal effect of rulemaking is “theblack letter principle that properly enacted regulations have the force oflaw,”meaningthat they have the same force and effect as statues.Although this principle is by now fully accepted by courts, some earlier casesdid deny it, holding that agency rules did not have statutory effect; some wentso far as to rule that courts could not even take judicial notice of rules andregulations. Theprinciple governing the legal effect of rules not only applies toadministrative cases, but even to criminal cases and civil cases as well.

In China,however, legal scholars, the legislature and courts are reluctant to acceptthat agency rules may have the same legal effect as law. Given the reality thatrulemaking process is very problematic, that is not too surprising. Butagencies, as a practical matter, use rules to regulate the society more oftenthan laws in administrative process. The reality is, qualitatively speaking,agency rules play a major part in the legal order, and is of greater practicalimportance to those subject to the agency than are the broad provisions laiddown by laws. If , in such a situation, courts, when review agency actions, donot apply rules to cases, it is just too unrealistic, and a clash betweenagency and court seems inevitable.

While inpractice agencies take actions based mainly on rules, and the AdministrativeReconsideration Law(the ARL), amended in March 1999, recognizes that rules canbe legal bases of agency actions, the Administrative Litigation Law(1989)directs that the People’s Court, when reviewing an agency action, may or maynot take rules as legal bases. Underthe ALL, courts do not have authority to review agency rules, but they canrefuse to apply agency rules to a case in handling, if they believe those rulesare “unlawful”. But hereself-contradictions are presenting themselves: first, if courts do not haveauthority to review rules, how can they hold a rule “lawful” or “unlawful”?Secondly, if courts can determine whether or not a rule is “unlawful” withoutjudicial review, it seems too much discretion is left to judges, who arguablyare not appropriate candidate to perform this duty, provided the striking factsthat the judiciary in this country is not well qualified and does not haveprofessional integrity. Therefore, the treatment by the ALL to agency rules injudicial review process buries seeds from which an imminent clash betweenagency and court is growing up.

Conflicts of Rules: FragmentedChina?

Administrativerules as a source of law, as the Constitution demands, must be in line withother legal documents that are in a higher hierarchy. For instances, theConstitution directs that rules made by Ministries must be in line with lawsand administrative regulations;rules by local governments be in line with laws, administrative regulations andlocal regulations made by local People’s Congress at the same levels. Theconstitutional provisions are purportedly to maintain consistency and harmonyof the whole legal system by eliminating conflicts within the law family. Oncethe hierarchy in the law family established, conflicts may be limited, for ainferior rule conflicting with superior law or regulation will be invalid.

However, if wepay close attention to the hierarchy of laws established by the Constitution,three questions as to agency rules immediately rise: First, since both centralagencies(Ministries of the State Council) and local governments can make rules,which one may be in a higher hierarchy? The Constitution unfortunately keepssilence at this point. In practice, central rules and local ones are deemedequal. A logic conclusion, then, is that local governments can make rulesgoverning a subject without considering how a central rule has put it. With thetacit encouragement of the Constitution, local rules are in serious conflictswith central ones, resulting in what had been called the “local protectionism”. Secondly, since local rules for differentregions are also deemed equal, local rules are competing among each other. Thisis particular the case when local governments using its rulemaking power toprotect it regional interests and to fight against competitors in otherregions. Consequently, conflicts of rules among regions become so serious thatthe country is “fragmented” from this point of view. Finally, localregulations, made by local People’s Congresses, are viewed superior to centraladministrative rules, as implied by Article 53 of the ALL, although without anyconstitutional confirmation. As a result, locales can use its authority to makelocal regulations to resist controls from the central government, which hasmade the central-local relationship even more intensive, both politically andeconomically.

In response tothe serious conflicts, the proposed Legislation Law tries to provide amechanism through which fights among rules may be arbitrated. As the lawproposes, conflicts between local and central rules shall be arbitrated by theState Council; provincial rules in conflicts shall, too, be arbitrated by StateCouncil; with respect to the conflict between local regulations and centralrules, if the State Council believes that the a regulation is unlawful andinappropriate, it shall have no power to repeal it; rather, it shall submit theregulation to the NPC Standing Committee for consideration. This mechanismproposed by the Legislation Law, in essence, reveals the uneasiness of thelegislature about problematic local rules and the intent to re-centralizelegislative power, but whether it will work or not is yet too early to be told.

Normative Documents:Agency’s Secret Weapons?

If rulemakingauthorities are vested in limited agencies, as the Constitution lays down, theauthority to make normative documents(guifangxingwenjian) is virtually shared by all administrative agencies.Any agency may issue orders, staff meues, or guidelines within itsjurisdiction. This has been thought by scholars necessary for agencies to applylaw consistently and with limited discretion. However, these documents shouldnot bind the public. In other words, they have no binding force against thepublic. On the other hand, theoretically, agencies should be abided bydisciplines set forth in their own normative documents.

Do agency’snormative documents have binding force against the public, say, as a matter offact? Experiences tell us they do. What’s more, they are as binding as agencyrules. If this is the case, it is fair to say that normative documents arereally agency’s “secret weapons”. Normative documents are made internally,policy-oriented and rarely are made public. They are “laws” in agency staff’ship pockets. If the public shall be regulated this way, it is to say that weshould obey “secret laws”.

The fact thatagencies themselves treat normative documents as binding rules is demonstratedby the Administrative Reconsideration Regulation issued by the State Council.Originally promulgated in 1991, the ARR laid down that agency, in hearing administrativeappeals, shall use laws, regulations, administrative rules, and normativedocuments as legal bases.This provision is a clear formal confirmation of the binding force of normativedocuments. In March 1999, the ARR was revised by the NPC Standing Committee,and was enacted to be a law(the ARL). The most striking provision in the ARL isthat in hearing administrative appeals, agencies may review the legality andreasonableness of the normative documents that are relevant to the case inhandling. Althoughscholars applaud for the provision, it has not been pointed out that thisprovision actually re-confirms the binding force of normative documents in anindirect manner.

If normativedocuments do bind the public, they are in essence agency rules incharacteristic. Therefore, those substantive and procedural controls overrulemaking, as we have briefly discussed, should also apply to normativedocuments. Currently, the most striking fact with respect to normativedocuments is that they are internal and not public. After all, in a Rule of LawState, individuals should not be required to obey legal rules that are secret.

The LegislationLaw: A Solution or A New Invitation to "Power Struggle"?

Recognizing the problems existing inChina's law-making system, especially in the rule-making context, the 9thNational People's Congress enacted the Legislation Law at its 3rd sessionon March 15, 2000. It has taken about 10 years for this Law to be made, from1992 through 2000, which to some extent reveals the hardness of balancing powerstruggles among various departments and that between the central government andlocales. Nevertheless, both high leaders and distinguished legal scholars seemsto believe that this law will resolve problems plaguing the law making processby calling it as " another mark stone of China's journey toward the Ruleof Law", referring it as the most important Law since the enactment of theAdministrative Litigation Law (1989), which for the first time established the judicial reviewsystem in China.

However, a close inquiry into theLegislation Law raises the question of whether the law presents a solution or anew invitation to the power struggle in law-making process, particularly in therule-making context. As we have observed above, the problems existing inagency's rule-making process are ultimately results of unclear allocation oflegislative powers among various bodies and that between the central and localgovernments in the Constitution. As long as the constitutional allocation ofpowers has not been changed, the Legislation Law could offer few solutions tomaking things better, if not impossible. For the legislature, it has beenalways facing the dilemma while making the Legislation Law: if the law changesconstitutional provisions concerning law-making matters, it will be claimedunconstitutional; if the law follows and even repeats what the Constitutionsays, it simply can not eliminate problems that are results of the constitutionalarrangements. Therefore, if we deem the Constitution as an invitation to powerstruggle in the law-making process, it should not be surprising that theLegislation Law is just a new invitation to power struggle.

In understanding this point, an examinationof the provisions governing the rule-making matters might be helpful:

Article 71 Every ministry, committee, the People'sBank of China, the Auditing Agency, and agencies directly under the StateCouncil exercising regulatory function, may enact administrative rules withinthe scope of its authority in accordance with national law, administrativeregulations, as well as decisions and orders of the State Council.
A matter on which an administrative rule is enactedshall be a matter that is within the scope of implementing national law,administrative regulations, and decisions or orders issued by the StateCouncil.

Article 72 Ifa matter falls within the scope of authority of two or more agenciesunder the State Council, the relevant agencies shall request the State Councilto enact an administrative regulation or the relevant agencies under the StateCouncil shall jointly enact an administrative rule.

Article 73 ThePeople's Government of a province, autonomous region, municipality directlyunder the central government or a major city may enact local rules inaccordance with national law, administrative regulations and local regulationsof the province, autonomous region, or municipality directly under the centralgovernment.

A local rule may provide for the following matters:
(i) Mattersfor which enactment of local rules is necessary in order to implement anational law, administrative regulation or local regulation;
(ii) Matters thatare within the regulatory scope of the local jurisdiction.

Note the key term " within the scopeof authority" in Article 71 and 72, which may be used as base forMinistries and committees to exercise rule-making power. However, "thescope of authority" of a ministry or a committee has never been defined bythe Constitution, the Organic Law of State Council or any national laws orregulations. What's worse, the "scope of authority" of a ministry mayvary from time to time depending upon changes of party policy and otherpolitical needs. This presents a large room of flexibility for a ministry toclaim that a matter "falls into its scope of authority". That's whystruggle for rule-making authority among Ministries and committees so common, and"departmental protectionism" much serious.

As far as local rules are concerned, theprovisions in Article 73 simply repeats the Constitutional vague-worded term as"within the local regulatory scope of the local jurisdiction", which hasalready been proved as the source of power struggle between the central andlocal government in legislative context. As a practical matter, the centralgovernment, through its ministries and committees, usually exercise power to regulateaffairs that locales would claim to be "local affairs". The ambivalenceof such key issue in the Constitution and the Legislation Law will inevitablyinvite power struggles that are already serious in rule-making context.


Conclusion

In anadministrative state where administrative rules play a major part in a legalsystem, the Rule of Law is in practice rule of rules. If this is the cases, weshould modify the enduring question “what is a good law”, which has beenfrequently asked by legal philosophers, to that “what is a good rule”. Thequest for answers to this question is of great importance; it may perhaps wakeus up from a dream about an ideal Rule of Law blue painting, and cautions usabout hurdles in the way toward the Rule of Law.

In reforming therule-making system in order to obtain the legality, reasonableness, andconsistency of agency rules, one solution might be to introduce the system ofjudicial review over administrative rules into China's legal system. Unlike thesupervision mechanisms already provided by the Constitution and the LegislationLaw, judicial review may institutionalize the supervision over agency rules andthus might be more effective.


Aristotle, Politics,1286a. See also Sir Ernest Barker, ThePolitical Thought of Plato and Aristotle(Dover, 1959).

Lon Fuller, The Morality ofLaw, 2nd ed., New Haven: Yale University Press, 1969.

“ For some time now, the sheer amount of Congress madelaw……-----the substantive rules that regulate private conduct……------made bythe agencies has far outunmbered the lawmaking engaged in by Congress throughthe traditional process.” See INS v. Chadha, 462 U. S. 919, 985-86(1983). Forexample, the Federal Register for 1989 contained 53,482 pages, and the Code ofFederal Regulations, with 196 paperback volumes, contains 122,090 pages, 60million words-----about seventy times as many as in the Bible. See B. Schwartz,Administrative Law(1991), p168.

Constitution, Article 58.

Constitution, Article 89and 90.

The proposed Legislation Law, which has submitted to the NPCStanding Committee for final consideration in October 1999, partly adopts thispoint.

Luo Haocai(ed.), AdministrativeLaw, Peking University Press, 1998.

Constitution, Article 90.

The Organic Law of LocalPeople’s Congresses and Local Governments(1986), Article 58.

Luo Haocai, AdministrativeLaw, Peking University Press (1998), pp. 122-25.

The ALL, Article 5 and54.

The ALL, Article 12(2).

Constitution, Article89(13).

Constitution, Article89(14).

The Legislation Law, enacted by the Ninth People's Congress onMarch 15, 2000, also provides some procedural schemes for the State Council tomake administrative regulations. See Article 55, 56, 57,58, 59 and 60 ofLegislation Law. However, these provisions are very general, and are the sameas what have been provided in the Notice of 1987.

Murry Scot Tanner, “ Organizations and Politics in China’s Post-MaoLaw-making System”, in Pitman B. Potter(ed.), Domestic Law Reforms in Post-Mao China”, M. E. Sharpe(1993), p.69.

Constitution, Article 88(2).

Constitution, Article 86.

Constitution, Article 88(1).

See, e. g., LiBuyun, “lun yifa zhiguo”(On theConception of Rule of Law), in Wang Jiafu (ed.), yifa zhiguo jianshe shehui zhuyi fazhi guojia(Ruling the CountryAccording to the Law So As to Establish the Socialist Rule of Law), The LawPublishing House (1997), pp.132-45.

A social psychological study based on empirical analyses ofprocedural justice repeals that participation of parties in a legal processfunctions as a mechanism to meet the psychological need of justice. See, Latour, Houlden, Walker, andThibaut, Procedure: TransnationalPerspective and Preferences, 86 Yale L. J.258 (1976), and Houlden, Latour,Walker, and Thibaut, Preference forModels of Dispute Resolution as a Function of Process and Decision control,14 J. Experimental Soc. Psych. 13 (1978).

With slight modifications, the draft proposal, now the LegislationLaw, was enacted by the NinthNational People's Congress at it 3rd session on March 15, 2000, andwill be effective as of July 1, 2000.

Flores v. Bowen, 790 F. 2d 740(9th Cir. 1986).

Water Quality Assn. v. United States, 795 F. 2d. 1303, 1305(7thCir. 1986).

Smith v. shakopee, 97 F. 974(8th Cir. 1899).

See B. Schwartz, AdministrativeLaw, Little, Brown and Company(3rd ed. 1991), pp.185-86.

The ALL, Article 53.

The ALL, Article 53.

Constitution, Article 5.

The Organic Law of LocalPeople’s Congresses and Local Governments, Article 59.

The AdministrativeReconsideration Regulation(1990), Article 41.

The AdministrativeReconsideration Law(1999), Article 42.