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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.11However, agency’s rule-making, termed as “abstract administrative act” isinsular from judicial review.12Consequently, 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”;13Section 14 provides the State Council with authority of altering or repealinginappropriate decisions or orders, including rules, made by local governments.14A 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 adoptingthe “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:15
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