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·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).10It 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.
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