China’s journey in developing its administrative law has been long and arduous, and the outlook for further development appears mixed despite some bright spots.
This was the general conclusion that the speakers, Neysun Mahboubi, of Penn CSCC and Law School, and Gwenann Manseau, of the Department of Commerce, arrived at during a lunch talk at Penn CSCC.
For those who are unfamiliar with the concept of ‘administrative law’, it refers to a branch of law governing the creation and operation of administrative agencies, including rules on government decisionmaking (for example on public participation in rulemaking), and judicial review of government actions, ideally designed to check government power and protect public interests.
Mahboubi began his remarks by sharing an abbreviated history of the development of Chinese administrative law, highlighting that a largely cohesive group of Chinese administrative law scholars have been advocating for a comprehensive national administrative procedure law since the 1980s. In line with the continental law tradition, this proposed law would delineate different types of government decision-making – such as licensing, meting out punishments, rule-making, etc. – and prescribe standards for each type of activity. Passing such a comprehensive law proved too complex and challenging in the 1980s, and so in 1989 only a portion of the sought-for law, the part allowing citizens to sue the government (i.e. to challenge unlawful government decisions), was passed as China’s Administrative Litigation Law. According to Mahboubi, the theory was that the mechanism of being able to sue the government for unlawful behavior would over time “bootstrap” more detailed standards for lawful behavior in the first place.
Since the passage of the Administrative Litigation Law, pieces of the initially envisioned overall administrative law framework have been passed as individual laws, such as the Law on Administrative Punishment passed in 1996 and the Law on Administrative Licensing passed in 2003. In their ongoing effort to harmonize all these disparate parts into a comprehensive law, the aforementioned group of scholars submitted a draft administrative procedure law to the National People’s Congress Legislative Affairs Working Commission in 2004, but to no avail – indeed, a national administrative procedure law was thereafter downgraded on the NPC’s legislative agenda for some years.
More recently, some local governments have passed local administrative procedure rules (APRs) modeled on the scholars’ draft administrative procedure law. Hunan province was the first locality to pass such an APR, in 2008, which included very specific provisions requiring public input in “major decisionmaking”, and even for agencies to explain why certain public comments may not have been followed. These provisions are reminiscent of “notice and comment” under the US Administrative Procedure Act, legislation which has grown more influential among Chinese administrative law scholars over time. It is possible that if enough local level governments, including at the provincial level, adopt similar APRs, then it might increase pressure for a comprehensive administrative procedure law at the national level.
This is not to say that there has been no progress at all in further developing administrative procedures at the national level. In 2000, China passed the Law on Legislation, which includes provisions on public participation in both the legislative drafting and agency rulemaking processes. Mahboubi noted that somewhat broad language about public participation in the Law on Legislation has been sharpened in subsequent policy documents, at both the national and local levels, and also in the revision to the Law on Legislation that was enacted just last year. Other key signs of progress at the national level include the State Council’s issuance in 2008 of Regulations on Open Government Information, and the National People’s Congress’s revision in 2014 of the Administrative Litigation Law, strengthening and expanding the right of citizens to sue the government. Still, much work remains to be done. For example, Gwenann Manseau, who works for the United States Department of Commerce, highlighted that a recent review found that less than 20% of all Chinese rules and regulations are posted for public comment on the relevant official government website before they are passed.
According to Manseau, Chinese administrative law is highly relevant to the well-being and interests of US companies operating in China insofar as a robust administrative law makes for greater predictability, tends to reduce corruption, open up closed networks, and level the playing field between foreign (US) and domestic (Chinese) companies. She also pointed out that it is US policy to encourage commercial “rule of law” in other countries, and that this is one of the reasons her work involves her in administrative law dialogues between the US and China.
Manseau seemed pessimistic about the prospects for Chinese administrative law to move closer to the specificity of constraint that US administrative law employs to check government power, largely because legal flexibility through vagueness seems to be the prevailing legal philosophy in China, perhaps in order to allow the Party-state to maintain as much discretion as possible. Moreover, Manseau noted that, though China may have certain transparency requirements for legislative drafting and agency rulemaking, there is less transparency required for when government agencies interpret the laws or regulation they are charged with implementing through so-called “normative documents” (guifanxing wenjian). Manseau added that this is why, in the 2015 US-China Joint Commission on Commerce and Trade (JCCT), US Commerce Secretary Penny Pritzker told Chinese Vice Premier Wang Yang that normative documents – which are practically binding even if not, in the most technical sense, legally so – pose crucial problems for US businesses operating in China.
Mahboubi closed the discussion by surmising that, for the development of administrative law in China, there has been space to advance the ball in recent years because of heightened appreciation for the ways in which administrative law can enhance the legitimacy of government decisions. Noting, however, examples like the rarity in which solicited public comments fundamentally change planned government decisions, in China, he warned that administrative law requirements ultimately could backfire on that political goal. Therefore, there are many interests that might support the emergence of a more robust Chinese administrative law in the future.
(This post was edited by Neysun Mahboubi)