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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.31This 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. 32Althoughscholars 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.
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