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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. 27Underthe 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”.28 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;29rules 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.30Any 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.
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