The creation of regulations by the State Council, which is the highest administrative organ of the central government of China, involves the drawing up and amending of administrative rules and regulations in accordance with the law.
The creation of regulations by the State Council has the following characteristics:
Regulations enacted by the State Council are subordinate to lawmaking by the National People’s Congress and its Standing Committee. When enacting provisions, measures, rules, and regulations, the State Council must abide by the Constitution, its statutes, and other standard legal documents of the National People’s Congress and its Standing Committee. Regulations of the State Council should be based on the Constitution and its related statutes and should not be contradictory to them. At the same time the State Council, as the highest state administrative organ, is responsible for leading and managing administrative work in China. Therefore, the State Council guides local governments in their formulation of local rules and regulations as well as the enactment of such regulations by local governments. Local ordinances, and local rules and regulations of local governments need to be in line with the rules and regulations administered by the State Council.
As the highest administrative organ in a country with a population of more than 1.2 billion, the scope of administrative management by the State Council is, of course, very large. Correspondingly, the scope of the regulations enacted by the State Council is much larger than spheres of activity in which the National People’s Congress and its Standing Committee make laws. Its tasks in administrative management are therefore enormously great. Meanwhile, when enacting the rules and regulations, the State Council has the mission of implementing the Constitution and its related statutes, submitting drafts of laws to the National People’s Congress and its Standing Committee, and accepting the legislative power authorized by the National People’s Congress and its Standing Committee at any time so as to complete the design of special provisions and to provide local governments with a basis for their regulations. All in all, the State Council has the greatest task in the administration of regulations in China.
First, while developing and amending the administrative rules and regulations, the State Council participates in the state regulation process by submitting drafts of laws to the state legislative body, completing the design of regulations as authorized by the state legislative organ, and supervising the work involved in the administration of rules and regulations. In the legislative system of China, this administrative process is most diversified in nature. Second, when administrating rules and regulations, the State Council to some extent is accumulating experiences and preparing conditions for the design of regulations in future. Third, the administration of regulations by the State Council is obviously restricted. As the executive body with the greatest state power, the State Council is responsible to and restricted by the organ of highest state power, the National People’s Congress and its Standing Committee. Rules and regulations administered by the State Council have to be in line with the Constitution and its related statutes, without which there would be no administrative laws. The State Council has the power to submit drafts of laws to the National People’s Congress and its Standing Committee, but it depends on that body to either pass or reject such drafts. The State Council engages in administrating regulations according to the authorizations of the National People’s Congress and its Standing Committee. Since its power is granted by the National People’s Congress, the State Council is naturally restricted by the National People’s Congress. A major purpose of any regulation designed by the State Council is for the implementation of the Constitution and its related statutes. This is one of the reasons for the restrictions accorded to the State Council.
The Legislative Function of the State Council
At present, the State Council mainly exercises the following legislative functions:
To implement and amend administrative rules and regulations
This is a major legislative function that the State Council often exercises, in accordance with the Constitution and the law. Article 89 of the Constitution stipulates 18 types of power exercised by the State Council, and the first power is to implement administrative rules and regulations in accordance with the Constitution and related statutes. Article 56 of the Law on Legislation of the People’s Republic of China also stipulates the same function.
The legislative function of the State Council in designing administrative rules and regulations is extremely important. In the divisions of the prevailing legislative power in China, the legislative function of the State Council serves as a link between the upper and lower levels of government. In terms of law, administrative regulations are lower in position than the Constitution and other statutes, but higher than local ordinances and regulations and effective for the entire country. The basic purpose in designing administrative provisions through exercising the power of regulation is to implement the Constitution and related statutes. With administrative provisions and regulations in place, the principles of the Constitution and related statutes can be realized in concrete terms and in better and more effective ways. The administrative rules and regulations are important links connecting local government ordinances and regulations with the national Constitution and related statutes. Local laws and ordinances should not be contradictory to the administrative rules and regulations so as to ensure that the Constitution and related statutes can be fully implemented. Moreover, the administrative rules and regulations govern much wider social relations and specify a wider range of matters than those stipulated in the laws of the National People’s Congress and its Standing Committee. The administrative rules and regulations can regulate any matters concerning the economy, politics, education, science, culture, sports, and other social relations as long as they are not so fundamental or important that they must be adjusted by the Constitution and related statutes. During the past several years the number of administrative rules and regulations designed by the State Council are several times more abundant than the laws enacted by the National People’s Congress and its Standing Committee. These administrative rules and regulations have played an important role in the social development in China.
Many laws specify that their implementation should be the responsibility of the State Council. Thus, in studying the legislative function of the State Council, one must take note of whether its ability to implement rules is within the scope of the legislative function of administrative rules and regulations (the authorized legislative function) or whether it is within the scope of the quasi-legislative function. If the implementation of laws are listed in the scope of administrative rules and regulations or those provisions made through authorization, it may be difficult to explain two points: the first is that the legislative function of making administrative rules and regulations is already given by the Constitution to the State Council, and it is therefore unnecessary to delegate legal power again for introducing administrative rules and regulations; the second is that the authorized regulation making function is given by the delegating organ through a decision of authorizing such power rather than through specific stipulations in a given law. Besides, the implementation rules are directly subordinate to the relative laws and are a part of those laws. Therefore it may be better to regard the power to make and change the implementation rules as a quasi-regulation making power. At present when the system in this aspect is yet to be improved, however, it is better to regard this power as a special mode of the legislative function for administrative rules and regulations and to treat the implementation rules as a special mode of administrative rules and regulations.
To submit drafts of laws to the National People’s Congress and its Standing Committee
The State Council has the power to submit drafts for laws to the National People’s Congress and its Standing Committee. This right to put forward motions regarding laws is an indispensable part of the whole system of legislative power and is an important part of the legislative function of the State Council. Nowadays many countries in the world have such a situation: in the law-making process by the national legislative organs, it is the governments, heads of government, and presidents who combine both the functions of head of state and of government, instead of the legislative body and its members, who most often use their right of proposing laws and whose proposals have the greatest chance and are most likely to be adopted. In essence, they play the most important role in the activities of putting forward motions for enacting laws.
In China, the State Council plays a particularly important role in proposing laws. Although in the existing Constitution, the Organic Law and the Law on Legislation have stipulated that many institutions and people can submit motions to the National People’s Congress and its Standing Committee. In practice most of the proposals for new laws are submitted by the committees of the National People’s Congress and the State Council. In making new laws, introducing administrative rules and regulations as laws after they are amended, proposing amendments, and repealing of existing laws, the State Council, since 1979, has submitted a great number of motions to the National People’s Congress and its Standing Committee. These constitute 70 percent of all the laws enacted by the National People’s Congress and its Standing Committee.
To make provisions through authorization
The State Council can exercise its regulation creating function as authorized by the National People’s Congress and its Standing Committee. Except for criminal legislation, the basic political rights of citizens, the rights of personal freedom, and the judicial system, the National People’s Congress and its Standing Committee can, according to actual necessity, authorize the State Council to make administrative rules and regulations in regard to matters that should be stipulated by laws and regulations. To compare these with the other regulation making functions of the State Council, the authorized right for regulation making on the part of the State Council is rather special. The rest of the regulation making functions can be called general or ordinary regulation powers of the State Council. Between the two kinds of functions, there are clear distinctions: first, the delegation of the regulation making power is from the state legislative body and is a derivation of the state legislative power; the general regulation making power comes directly from the relative stipulations of the Constitution and is within the state administrative power. Second, there are strict restrictions in the authorized regulation making power concerning time, items, and other related matters; the general regulation making power as a kind of power given by the Constitution is effective and independent within the validity period of the Constitution. Third, the authorized regulation making power is a kind of power exercised on behalf of the state legislative body and is higher than the State Council’s general regulation making power and, although the latter comes directly from the Constitution, its effectiveness is lower than that of the legislative power of the legislative body.
Regulation making supervision within a certain range
The State Council is also empowered with a certain degree of supervision rights in regulation creation. It has the power to change or cancel any unsuitable decisions and orders made by its subsidiary departments; the power to change or cancel any unsuitable decisions and orders made by local governmental administrative organs at different levels; and the power to change or cancel any unsuitable departmental and local rules and regulations. The making of local rules and regulations should not be contradictory to the Constitution, its statutes and administrative rules, and regulations. The rules and regulations made by the departments concerned should be those for implementing national laws and administrative rules and regulations, decisions, and orders promulgated by the State Council. A major part of the rules and regulations made by local governments should be those for implementing ordinances, administrative rules, and local rules and regulations. A decision should be made by the State Council when differences occur in the stipulations on the same issue in the rules and regulations made by different departments or between those made by departments and local governments. All local rules and regulations, autonomous regulations and single regulations, departmental and local governmental rules and regulations should be reported to the State Council for the record. The terms such as “change,” “cancellation,” “implementation,” “decision,” and “for the record” all indicate that the State Council has the right to supervise regulation making. The State Council’s positions in the state institutional system and the legislative system has determined that the State Council’s supervision right in regulation making is very significant in China in maintaining the uniformity of the legal system, especially uniformity in legislation.
From the above it can be seen that the regulation making function of the State Council has a quite significant position in the existing division of power in China’s legislative system. One needs to be aware of this to clearly understand that this position is an important precondition to doing a better job in the building of the governmental legal system and the promotion of the legal system in the whole country.
The Scope of Regulation Making by the State Council
Before the Law on Legislation was promulgated, the State Council’s regulation making was mainly conducted in accordance with the Constitution and other constitutional statutes. Article 89 of the Constitution specifies that the State Council has 18 types of powers and functions, while the Local Organic Law prescribes the function of supervision on legislation. The State Council has within its power to modify legislative measures through making administrative regulations when necessary. The powers and functions include:
To specify administrative measures, make and change administrative rules and regulations, issue decisions and orders, and to exercise supervisory power over legislation.
To specify the tasks and responsibilities of all ministries and state commissions; lead all ministries, state commissions, and administrative organs of all local governments in their work; exercise leadership over nationwide administrative work; specify the division of responsibilities of the central and provincial administrative organs; examine and approve the size of staff in the administrative organs; and make, according to the law, stipulations on appointments and removal, training, evaluation, rewards, and penalties of administrative personnel.
To draw up and execute plans for national economic and social development and the state budget.
To lead and manage economic work, and urban and rural construction.
To lead and manage the work of education, science, culture, public health, sports, and family planning.
To lead, supervise, and manage the work of civil affairs, public security, administration of justice, etc.
To manage foreign affairs, and conclude treaties and agreements with foreign countries.
To lead and manage the building up of national defense and decide on the enforcement of martial law in certain areas.
To lead and manage ethnic affairs, guarantee the equal rights of minority ethnic groups and the rights of autonomy in autonomous places; protect the legitimate rights and interests of overseas Chinese; and protect the lawful rights and interests of returned overseas Chinese.
To ratify the regional division between the provinces and establish autonomous prefectures, counties and cities, and regional divisions.
To engage in other powers and functions authorized by the National People’s Congress and its Standing Committee.
The Law on Legislation has not only specified the legislative scope of the National People’s Congress and its Standing Committee, but also clearly prescribed the role of regulation making on the part of the State Council. Article 56 of the Law on Legislation stipulates that the State Council makes administrative rules and regulations in accordance with the Constitution and relevant statutes. The below-mentioned matters can be stipulated by administrative regulations: matters requiring administrative regulations in order to implement laws; matters involving the power and function of administrative management stipulated by Article 89 of the Constitution; and, according to stipulation of Article 9 of the Law on Legislation, matters related to laws that should be made by the National People’s Congress and its Standing Committee. If laws are not yet made, the National People’s Congress and its Standing Committee have the power to make the decision to authorize the State Council to make administrative rules and regulations concerning certain matters. “Certain matters” here refers to relevant measures of enforcement and penalties such as depriving citizens of their political rights, and restriction of personal freedoms in criminal and penal cases. It also refers to the judicial system.
Direct and special stipulations of the Law on Legislation clearly designate in explicit terms the scope of regulation making by the State Council. The indirect stipulations of the Constitution and other constitutional laws imply tacit approval of the scope of regulation making by the State Council. The macro and micro combinations of the stipulations on these laws clearly specify the dividing line for regulation making by the State Council.
The Completion of the Legislation of the State Council
From the decisions made by the National People’s Congress and its Standing Committee on the authorization of regulation making by the State Council before the Law on Legislation was promulgated, it can be inferred that there was no unified and fixed system for such authorization except in regard to specific matters. For example, the “Decision to Authorize the State Council to Make Interim Regulations on Economic Restructuring and Opening up to the Outside World” made by the National People’s Congress specified that the State Council should take note of the following when exercising the authorized power of regulation making: to exercise this power only when necessary; to exercise this power on the condition that the exercising of such power would not contradict relevant laws and the basic principles of relevant decisions of the National People’s Congress and its Standing Committee; and to make and promulgate only interim stipulations or regulations and report them to the Standing Committee of the National People’s Congress for the record. In situations where conditions are ripe, interim stipulations or regulations, after being tried out on an experimental basis and examined, should be changed into laws by the National People’s Congress or the Standing Committee of the National People’s Congress. The “Decision to Authorize the State Council to Issue Tentative Drafts of Regulations on Tax Collections in the Reform of Industrial and Commercial Taxes” made by the Standing Committee of the National People’s Congress specifies that the State Council, when exercising this authorized power, should pay attention to the following: to exercise this power in specified times, namely the collecting of state-owned enterprises’ income taxes, and industrial and commercial income taxes instead of profits; and to only draft regulations but not make relevant regulations in exercising this authorized power. These prepared regulations should be issued in the form of drafts for trial execution, rather than in the form of official regulations. They should be amended according to experiences accumulated during trial and then submitted to the Standing Committee of the National People’s Congress for deliberation.
Each regulation introduced with authorized powers has its own issues to be solved and can have its own characteristics, but all such regulations should follow some common stipulations. To improve the State Council’s authorized system, attention should be paid to the building up of a common and unified system that should at least include the following aspects:
Where the State Council’s authorized regulation making power comes from or how
to obtain it;
The level of effectiveness of the regulation made according to the authorization;
The purpose, time limit, and scope of the matters dealt with when the authorized regulation making power is exercised;
The procedures of the authorized regulation making;
The forms that are to be adopted in making a regulation;
The authorized power that cannot be transferred to other organs;
The acceptance of supervision from the National People’s Congress and its Standing Committee when exercising the authorized regulation making power; and
Termination of the authorization.
In such a vast land with a large population, China has very imbalanced situations in different places. The State Council carries out the tasks related to directly leading the construction of modernization, especially in leading the reform of the system. To do a good job, the State Council needs to play a legislative role. Under such situations in China, it is not enough for the State Council to have its authorized regulation making power only from the National People’s Congress and its Standing Committee. It should be also possible for the State Council to request that the National People’s Congress or its Standing Committee authorize its regulation making power so that this authorized power comes from two channels, one delegated by the National People’s Congress and the other obtained by its own request.
There is one big difference in the making of administrative rules and regulations and in the making of laws: the procedures of the former are not so complicated as they are in the latter. It is a type of legislative activity under the system for which the No. 1 administrative head takes the responsibility. This difference means that the drafting of a system of administrative rules and regulations has particular important bearing on the quality of administrative rules and regulations. The Law on Legislation makes the following stipulations in administrative rules and regulations: First, the drafts of administrative rules and regulations are to be organized by the State Council. When the departments concerned under the State Council deem it necessary to make administrative rules and regulations, they should apply to the State Council. Second, opinions should be extensively solicited from the relevant bodies, organizations, and citizens during the course of drafting the administrative rules and regulations. Forums and hearings should be conducted for opinions and comments. Third, after the draft of the administrative rules and regulations is completed, the drafting body should submit that draft, its explanations, different opinions from different aspects on major issues of the draft, and other relevant literature to the legal institution of the State Council for deliberation. The legal institution of the State Council should submit its report to the State Council and amend the draft after deliberation. The report after deliberation should include explanations regarding major issues in the draft. These stipulations of the Law on Legislation have laid the legal foundation and built a basic framework for improving the drafting system of administrative rules and regulations. On this foundation and within this framework, the State Council makes more specific stipulations and promulgates them for execution. A full-fledged and effective drafting system of administrative rules and regulations will thus be enabled to take shape.
On November 16, 2001, the State Council issued “Regulations on the Procedures of Making Administrative Rules and Regulations” in which Chapter 3 specifies the drafting system for administrative rules and regulations. According to this system:
Administrative rules and regulations should be drafted by the State Council. The State Council specifies in its annual regulation making work plan one particular or several departments to be responsible for producing the draft of the administration regulations. It may entrust its legislative institution to write the draft or organize the writing of the draft.
Besides obeying the legislative principles of the Law on Legislation and the stipulations of the Constitution and relevant statutes when drafting administrative rules and regulations, the below-listed requests should be met:
To reflect the spirit of reform, standardize administrative behavior in a scientific way, and change the government functions to economic regulation, social management, and public service;
To follow the principles of simplified administration, unified action, and high efficiency. Similar functions should be performed by one administrative institution, and formalities for administrative management should be simplified;
To make sure to safeguard the lawful rights and interests of citizens, legal persons, and other organizations, and to stipulate their rights and conditions so as to guarantee the realization of their rights while stipulating that they should fulfill their duties; and
To reflect the principle that the power and responsibility of administrative institutions should be unified. While giving the necessary power to relevant administrative institutions, the conditions and procedures should be stipulated for them to exercise the power and their responsibilities.
To draft administrative rules and regulations, thorough investigations, and research for the purpose of summing up experiences and listening to opinions from related institutions, organizations, and citizens should be conducted. Forums and hearings can be held in order to receive comments and opinions.
During the course of drafting, the department should consult and coordinate with concerned departments with regard to the responsibilities of other departments and stipulations closely related to other departments; when no consensus can be reached after consultation, explanations and reasons should be stated in the reports when submitting drafts of administrative rules and regulations.
During the course of drafting, the departments should submit proposals to the State Council for their input with regard to important issues that must be decided by the State Council concerning management systems, guiding policies, etc.
Drafts of administrative rules and regulations prepared by the drafting department for the State Council should be signed by the key responsible person of the drafting department. Drafts of administrative rules and regulations prepared jointly by several drafting departments for the State Council should be signed jointly by the key responsible persons of those several drafting departments.
When submitting the drafts of administrative rules and regulations to the State Council, the departments should append explanations and relevant literature relating to the drafts of the administrative rules and regulations. These explanations should include the necessity for the legislation, major regulations to be specified, different opinions on major issues of the drafts from different sectors, and explanations regarding the opinions from related institutions, organizations, and citizens. The relative literature should include legislative information both in and outside China, research, and observation reports. The establishment of these seven stipulations symbolizes the end of the old status quo and the beginning of a standardization of the drafting of administrative rules and regulations.
Regulation Making by Departments of the State Council
The regulation making by the departments under the State Council is one with Chinese characteristics, and is a collective form of regulation making by different departments under the same organization. The State Council has several dozen ministries, commissions, and other directly affiliated organs. Departmental regulation making is a general term for regulation making by the several dozen bodies under the State Council. The rules and regulations they make have equal validity. They are a part of the legislative process at the central level, but in China’s legislation system they have an obvious subordinate and restricted status. In the central legislative system, consisting of different levels and different types of legislation and regulations, these are a type of regulation made at the lowest level. The State Council has the right to change or cancel them if the rules and regulations made by the departments under the State Council are deemed unsuitable. If the rules and regulations made by all the departments under the State Council are put together, the scope they cover and govern is very extensive. On the other hand, the regulation making by the departments under the State Council is specific.
The power of regulation making by departments under the State Council is mainly seen within their right to make administrative rules and regulations. Article 90 of the Constitution stipulates that “The ministries and commissions issue orders, directives, and regulations within the jurisdiction of their respective departments and in accordance with the law and the administrative rules and regulations, decisions, and orders issued by the State Council.” The Law on Legislation has further developed this stipulation and changed the term of “issue” into “make,” and the term of “ministries and commissions” into “all ministries, commissions, the People’s Bank of China, the National Audit Office, and directly affiliated institutions with administrative functions.” The Law on Legislation clearly stipulates that these departments under the State Council can, in accordance with the law, administrative rules and regulations, decisions, and orders made by the State Council, make rules and regulations within their own respective jurisdiction. And these departmental rules and regulations should be those made to enforce laws or administrative rules and regulations, decisions, and orders of the State Council. The Law on Legislation also stipulates that in regard to matters involving the power and function of more than two departments under the State Council, these should be referred to the State Council for making administrative rules and regulations or for joint efforts by related departments in making rules and regulations. From the theory and practice of legislation, it can be seen that the departmental regulation making is a process of administrative regulation making that should not go beyond the scope of administrative management.
The Law on Legislation specifies that when there is nonconformity on the same issue between the rules and regulations of the departments under the State Council and local laws, and there are ambiguities in application, the State Council should put forward its opinion if it deems that the local laws should be applied, in which case the local laws should be upheld; if it deems that departmental rules and regulations should be applied, it should report the matter to the Standing Committee of the National People’s Congress for arbitration. The law further stipulates that all the rules and regulations by different departments and local governments are equally valid. When there are differences in the stipulations on the same issue, a decision should be made by the State Council. The characteristic of this system in the Law on Legislation is that it places the rules and regulations of the departments, local laws, and rules and regulations made by local governments on a legal as well as a flexible basis. This is an effective and constructive practice.
It should be pointed out that in the Constitution there is no stipulation for organs other than the ministries and commissions of the State Council to have the right to make rules and regulations, but the Law on Legislation stipulates that those organs affiliated to the State Council can make rules and regulations. This is not in conformity with the stipulations of the Constitution. This shows that there are differences between the rules and regulations made by the ministries and commissions under the State Council and its other affiliated organs. The rules and regulations of the ministries and commissions under the State Council are made in accordance with the dual authorizations of the Constitution and the Law on Legislation, while the rules and regulations of other organs under the State Council are made only according to the authorization of the Law on Legislation. Undoubtedly these all belong to the scope of administrative rules and regulations.
Regulation making by the departments of the State Council is a type of special regulation making in the legislative system in China. The departments of the State Council practice a system in which the chief officer takes full responsibility. As a result, their regulation making is different from that of other regulation making. As a component form of China’s legislation and regulation making, departmental regulation making, however, has to be performed according to the general practices of legislation and regulation making. Thus it is necessary to have a full-fledged system of regulation making.
The existing Constitution and Law on Legislation only have macro stipulations with regard to the authority, scope, and procedures in the making of rules and regulations by the departments under the State Council. Therefore, efforts should be made to render these macro stipulations more specific so that there are clear-cut stipulations for the scope and procedures for making rules and regulations, and a division of the regulation making power between the different departments under the State Council. Efforts should also be made to improve and complete, as soon as possible, all related stipulations for regulation making by the departments under the State Council. "Regulations on the Procedure for Making Rules and Regulations" issued by the State Council in 2001 has provided impetus and an extensive basis for improving the efforts in this respect.
(China.org.cn September 28, 2003)
