Recently
I tried to help one of my friends in China to get a passport
by writing to him an invitation letter. Thanks to the
recent reform of China's passport policy, anyone with
an effective overseas invitation may apply for passport
to the local Bureau of Public Security. Unfortunately
my friend failed to get his passport because he did not
apply within 3 months after receipt of my letter and my
invitation was thus deemed void. Though renewing an invitation
is not a burden to me, the deadline policy somehow really
bothered me. Amazingly my friend nonetheless defended
this practice: Our government can and should set up a
deadline. As a student of administrative law, I would
argue: No, not necessarily. We probably can challenge
the legality of such a policy! This is not at all a western-trained
lawyer mentality or American-style litigious mindset,
because we soon can make such a challenge in a Chinese
governmental hall under the newly enacted Administrative
Redress Law (ARL).
In
April the Standing Committee of China's National People's
Congress unanimously adopted a draft ARL which allows
governmental regulations to be challenged all the way
to the State Council. The law has 43 articles under 7
chapters, including the chapters on general provisions,
applications for administrative redress, the scope of
administrative redress, handling of administrative redress,
decisions on administrative redress and legal responsibility.
Effective as of October 1, 1999, this law will permit
foreign citizens, Chinese nationals and social organizations
to appeal administrative rulings and allow them to "seek
shelter from abuse of state power", according to
a report on China Daily of April 30, 1999. Appeal can
be taken to the village head, county government, prefecture
government, provincial government, and finally to the
State Council which would render a final decision. On
the other hand, the rules or orders by provincial governments
or the State Council are nonetheless immune from this
law. Despite such limitations, by exercising inherent
executive control, the ARL will provide another set of
institutional safeguard against administrative abuses
while the already existing Administrative Procedure Law
(APL) supplies ordinary Chinese with judicial control
to check against excessive official power. Along with
the Administrative Penalties Law and the State Compensation
Law, these legislations have helped usher in a basic structure
of modern administrative law to China.
On
the United States Department of Justice building in Washington
DC, there are five words engraved in stone: "Where
Law Ends Tyranny Begins." Such a motto epitomizes
western societies' common conviction in human weakness,
public mistrust over rule of man, and general suspicion
of the role and power of administrative government. From
the perspective of Confucianism, where law ends tyranny
need not begin. Morality and self-reflection, instead
of law and supreme institution, could be the internal
check on government power. However China's history tells
a story of failure and betrayal in public service: there
have been too many hypocrites and tyrants whereas too
few saints or enlightened rulers. Thus in today's China,
few people would dispute or deny the fundamental significance
of rule of law to China's modernization. In this respect,
it is not overstated to say that the ARL becomes another
building block to China's system of rule of law by opening
up a new set of institutions in public law, or particularly
in administrative law, to address the relationship between
state and individuals.
Administrative
law is the law concerning the powers and procedures of
administrative agencies. Other than a court and a legislative
body, an administrative agency is a governmental authority
which affects the rights of private parties through adjudication,
rulemaking, investigation, prosecution, negotiation, settling
or informal acting. Basically administrative law concerns
itself over whether law does all it can and should to
promote sound governance by preventing mistakes and increasing
the likelihood that officials will pursue the commonweal
efficiently and effectively. Its primary focus is on procedure:
how the officials make their decisions rather than what
they decide. Without necessary expertise, full information
or substantive knowledge on a public issue, the public
can maintain their confidence on the substantive justice
of an administrative action only through a guarantee of
procedural justice. In other words, by making sure that
there are some procedural instruments in place through
which the decisions on public affairs are made and get
reviewed, the society can police and discipline the excessive
discretionary power of the state, and check the official
discretion to prevent power abuses. Such institutional
and procedural control of administrative power can be
delivered through legislative, executive or judicial branch.
In the United States, the emphasis of administrative law
is on the institution governing judicial review of administrative
action. So American administrative law is limited to law
concerning powers, procedures and judicial review. It
does not include the mass of substantive law produced
by administrative agencies that are created by statute
or by executive order authorized by statutes. Since 1930,
American administrative law has turned its attention to
procedures for formal adjudication and informal rulemaking
as reflected and culminated in the 1946 Administrative
Procedure Act (APA).
In
contrast, China has no tradition of separation of powers.
Fundamental individual rights have from time to time been
dismissed in the name of collective interests. The Chinese
society has never been really impressed by the doctrine
of procedural justice. In practice, means could often
be simply justified by ends while expediency would be
appreciated just because of its instrumentality. Therefore
the establishment of rule of law and the institutionalization
of administrative law are much more than an introduction
of some specific legislation: it actually requires a transformation
in legal culture, social behavior and political structure.
China's administrative law need not necessarily follow
the American model in focusing on judicial review. The
institutional control of administrative governance can
arise from executive, democratic and judicial process.
At the beginning, China's administrative law may experiment
with all these ways. At least from an analytical perspective,
I would say that China's Administrative Procedural Law
(APL) resorts to judicial process while the ARL actually
relies on a bureaucratic process. Hopefully in the near
future we can see an introduction of democratic process,
mainly through accountable and responsive legislative
actions, into institutional safeguards against administrative
abuses.
Back
to our passport case: in a purely hypothetical scenario,
if the case happened in the United States, we could have
several legal theories in court to articulate our grief
and seek judicial intervention. First, we could simply
challenge the authority of the Bureau of Public Security
by alleging an abuse of power in its setting forth a deadline
policy beyond their authority. We would wave the enabling
statute, which created and delegated the agency, in the
face of judge: your honor, there is no word in the legislative
act whatsoever authorizing this agency to restrict our
passport application. Second, we could attack the 3-month
cut-off line as arbitrary and capricious: why 3-month,
not 4-month, 1-year or some other period of time? The
Bureau of Public Security owes us an explanation or justification!
Third, we might initiate a constitutional challenge by
claiming that such governmental regulation violates the
fundamental constitutional right in freedom of travel.
The court might find that the government had no interest
compelling enough to justify its time restriction on passport
application. Finally, we could also confront the Bureau
with 1946 APA and the American Constitution in hand: the
Bureau of Public Security violated the constitutional
due process established by the APA by making rules without
adequate consultation with the public. Of course, the
court might not buy our arguments, and they might find
that the judiciary had to defer to the agency's discretion,
expertise and experience if the Bureau had undertaken
the proper procedural safeguards set forth by the APA
in its rule-making. But if the court accepted our challenge,
then it could nullify the Bureau's deadline regulation
and order a new process of rule-making.
Unfortunately,
however, our legal strategies would be much more limited
in China. First we cannot try a constitutional challenge.
People's Court will throw our case out because unlike
the United States, it is the National People's Congress,
rather than the court, which can interpret what the law
(including the Constitution) is. More fatally to our case,
the Chinese constitution is not allowed to be relied upon
as a source or cause for legal actions against any specific
behavior of a legal person. Can the Administrative Procedure
Law (APL) give us any help? The answer is: very unlikely.
The scope of judicial review under current APL is so restrictive
that we could only challenge a Bureau official's administrative
misconduct in his carrying out the passport-application
policy while we could not directly challenge the Bureau's
rule of passport application itself. In other words, we
may complain to the People's Court that someone in the
Bureau, or even the Bureau itself, did not follow the
passport policy in good faith when we applied, but we
cannot claim that in the first place this passport policy
is invalid. So the coming Administrative Redress Law (ARL)
seems to be our last hope: can we challenge the Bureau's
deadline rule in a governmental hall? The answer depends
on who set forth this passport-application policy. If
it was promulgated in the name of the State Council or
a provincial governor, then our case is dead. Otherwise,
we could appeal this 3-month deadline to a superior level
of administration in the administrative hierarchy.
Thus
there is a progress in shifting the balance of power between
an administrative agency or its officials and an ordinary
citizen. Despite its principle and practical limitations,
the ARL nevertheless tells and empowers people where and
how they may legally battle abitrary or unfair bureaucratic
acts. The ARL also sends a message to the officials and
the agencies: in your decision-making, do not act like
a tyrant, and your verdict is neither irreversible nor
final. But how strong can the message really be? Will
one day Chinese officials make their rulings and policies
under the shadow of a skeptical judge, an intimidating
legislator and a vigilant supervisor? In this respect,
China definitely has a long march to take. But for the
time being, we can still cheer up for the introduction
of the ARL, no matter how small a step forward it might
represent.
