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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. 4Doesthat 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.5 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.6
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.7
·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.8 And theOrganic Law of Local People’s Congresses and Local Governments stipulates thatprovincial governments, ……shall make local rules “for purposes of meeting localneeds”.9Constitutionally, 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.
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