Participatory Rulemaking in China Needs Even More Effort

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Recent revisions to China’s administrative regulations will not guarantee effective public participation.

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In new revisions to two administrative regulations, the State Council in China last December added more requirements for participatory rulemaking. These new requirements provide the public with an opportunity for different forms of participation at three main stages of developing a rule.

First, the public may submit their own proposals to rulemakers about what rules should be made in the coming year when the rulemakers prepare an annual rulemaking plan. This change marks the first time that public input must be allowed in the agenda-setting process.

Second, at the stage of drafting a specific rule, the agency, or a unit inside the agency tasked with drafting the rule, may invite relevant enterprises, organizations, or persons to express their concerns at forums, demonstration meetings, or formal hearings. Who gets invited to comment will ultimately depend on the drafting agency or unit. Nevertheless, the major stakeholders and other well-known professionals in particular areas are regularly included on invitation lists. In addition to this traditional practice of invited comment, the new revisions offer the general public the opportunity to submit comments on the published draft of a rule in a notice-and-comment procedure.

Third, after taking into consideration comments received, the drafting agency or unit must make a final draft and submit it for review to the legislative affairs institution within the government or inside a department. At this stage, some enterprises, organizations, or persons may still have the chance to submit comments on the draft if the reviewing legislative affairs institution so decides. With the permission of its superior government or department, the legislative affairs institution may also solicit opinions again through a variety of hearings.

The original versions of the two recently revised administrative regulations were promulgated in 2001, implementing the requirements of the Law on Legislation (lifa fa). The regulations aimed to normalize the development of other administrative regulations (xingzheng fagui) made by the State Council—as well as of rules (guizhang) made by the departments of the State Council and certain local governments. Although the new revisions to the administrative regulations on rulemaking procedure do not apply to every rule made by the executive branches of governments and their departments at all levels of government, the new requirements will promote public participation in making rules that the Law on Legislation deems similar to laws in their format and legally binding effect.

As practical experience with public participation accumulates and the idea of participatory democracy spreads, it is expected that a more participatory process will expand to the making of a large number of other non-legislative rules that do not have legally binding effect, called administrative normative documents (xingzheng guifanxing wenjian).

There remains a problem, however, about whether public comments really play a significant role in helping the governments or departments form the best possible rule. In other words, it remains doubtful whether rulemakers care much about public comments because the new revisions do not require rulemakers to respond to comments. Thus, the scope and extent of the public comments’ influence on the final rules cannot be observed or assessed. Although it would be an overstatement to say that the notice-and-comment procedure is just for show, the lack of a clear responsibility for publicizing and responding to comments leaves rulemakers with broad discretion in deciding which comments to adopt or even whether to adopt comments at all.

In 2004, the State Council issued a very important document called the Outline on Comprehensively Promoting Administration According to Law (Quanmian Tuijin Yifa Xingzheng Shishi Gangyao). This document says that “it is necessary to actively explore a system of explanations for hearing and adopting public opinions” in the rulemaking process. The Outline has no legally binding effect; nevertheless, it has demonstrated great power in recent years in pushing forward government under the rule of law.

Hopefully, the practical operation of the rulemaking procedure will embrace the idea of response and explanation reflected in the Outline. Rulemakers can take additional steps to make public participation more effective. For example, I would suggest that, for rules with only a few comments, the rulemaker should respond to them one by one. For rules where the rulemaker receives hundreds or thousands of comments, the comments can be categorized into several topics, within which the rulemaker gives feedback to the main opinions expressed in the comments. The response and explanation should at least include the summary of comments or the main topics, whether the rulemaker agrees and why or why not, and how specific provisions of the final rule might be affected by the comments with which the rulemaker agrees.

Such procedures could help the general public feel that governments and departments are truly accountable to their concerns. These procedures can also ensure that the public perceives the various forms of hearings to be actually valuable and meaningful and sees rulemakers’ final choices as reasonable.

Another pertinent problem, also involving the issue of accountability, lies in current practices of judicial review, congressional oversight, and superior supervision over rules.

According to the past 27 years of implementation of the Administrative Litigation Law—as well as the 2014 revision of this law—a rule cannot be directly challenged in the courts without a prior application into a specific case. That limitation means any enterprise, organization, or person dissatisfied with a rule cannot challenge it in the courts based solely on its promulgation. Once an administrative agency applies a rule to make a specific decision, only then can an enterprise, organization, or person who thinks the decision has infringed on that entity’s rights and interests bring a lawsuit against the decision. When bringing the suit against the decision, an entity can also request the court to review the legality of the applied rule.

This practice, called “attached review,” is not entirely flawed. Its only problem is that it does not account for the situation in which a rule will imminently and irreversibly damage an individual’s interests even without any application by the agency. For example, a rule might create new requirements for product labels and impose fines on those producing and selling such products without the requisite labels. But if, in response to the new rule, the stores discontinue selling the products made before the new rule, the products’ manufacturers will suffer a significant loss.

The true problem in the context of participatory rulemaking, however, is not attached review but rather the scope of judicial review. The new revision of the Administrative Litigation Law only explicitly authorizes courts to review administrative normative documents (xingzheng guifanxing wenjian), not administrative regulations (xingzheng fagui) and rules (guizhang). But it seems implausible that courts would depart from the past practice of allowing attached review of administrative regulations (xingzheng fagui) or rules (guizhang).

More importantly, the Administrative Litigation Law establishes “illegality” as the criterion by which courts review a rule. “Illegality” usually implies a formalist view of whether a regulation or rule is legal. In other words, courts only look at whether a rule violates or contradicts any superordinate legal norms; they do not ask whether a rule is arbitrary, capricious, or obviously inappropriate, or whether it violates the principles of proportionality or good faith. Despite current efforts to push rulemakers to publicly respond to comments, the limited scope of the illegality criterion seems to make it difficult for courts to review whether rulemakers have considered public comments appropriately, reasonably, or at least without arbitrariness. On the contrary, the illegality criterion would discount the effects of further efforts to make participatory procedure more meaningful and rulemakers more accountable to well-founded comments.

The platforms of congressional oversight and superior supervision of rules also lack an appropriate criterion for review of compliance with participatory procedures. The Law on Legislation stipulates that any enterprise, organization, or person may submit to the Standing Committee of the National People’s Congress a petition of review if an administrative regulation (xingzheng fagui) made by the State Council contravenes the Constitution or any law. New rulemaking procedures also provide any enterprise, organization, or person an opportunity to submit to the State Council or the provincial government a petition of review on a rule (guizhang) made by a department of the State Council or a local government. But the same prerequisite that limits review in the courts applies: The rule (guizhang) must contravene a law, administrative regulation (xingzheng fagui), or other superordinate legal norm. The terms “contravene” or “conflict” by their nature are not an appropriate tool for the petitioner to request that the reviewing institution check the rulemaker’s response to comments and decide whether the rulemaker has arbitrarily disregarded or belittled significant comments.

There is no doubt that the incorporation of more participatory elements into the rulemaking procedure will make governments in China more open to a variety of voices when making major policy decisions. Yet making public administration more accountable to diversified interests will require even more effort to explore or establish other mechanisms to bolster the opportunities for, and the effectiveness of, public participation.

Shen Kui

Shen Kui is a professor at the Peking University Law School, China, and is a 2017-2018 Fulbright visiting research scholar at the University of Pennsylvania Law School.