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Public Participation and Its Limits

作者:王锡锌   点击量:34994


An Observation and Evaluation on PublicHearings as Experimented
In China's Administrative Process



I. INTRODUCTION
The law reform that was initiated in thelate 1970s in China marked the beginning of a long journey towards the rule oflaw. Today, if one could listen far enough to any political or socialconversations, one would find that "legal reform" and "the ruleof law" are words most frequently used. In its earlier stage, however, thelaw reform focused basically on instrumental use of law as a way to pusheconomic reforms and to attract foreign investment. In this sense, it was regulation-oriented, and this is partlywhy the idea of "rule of law" in this country has very often been allegedby many Westerners as "rule by law".Later, particularly since 1989, with the enactment of the AdministrativeLitigation Law of 1989(ALL), little by little, law reform efforts have beengiven to the concern of governing the governors. After the ALL, the AdministrativeReconsideration Regulation (ARR, 1990), the State Compensation Law (SCL, 1994),the Administrative Punishment Law (APL, 1996), the AdministrativeReconsideration Law (ARL, 1999), and the Law on Legislation (2000) reinforcedsuch efforts. Administrative law reforms have gradually become one of the mostremarkable aspects of the law reform outlook.

As a result of more than ten yearscontinuing efforts, the administrative law reforms have entailed a new outlookof China's administrative process, of which public hearing as a proceduralrequirement and a way of public participation in some decision-making andrule-making processes is perhaps the one most remarkable landscape. Forexample, the APL requires in a general way that "in imposing sanction, theaffected parties shall be… given theright to be heard… otherwise, the decision that imposes a sanction shallnot be valid." Furthermore, the APL sets forth a "hearing procedure" to govern someparticular decision-making process through which administrative punishments maybe imposed upon private parties. The uttering of "the right to beheard" was echoed by the "Price Law", enacted by the StandingCommittee of NPC in 1997. Article 22 of this law requires that in price-settingor rate-fixing process, "…government agency shall solicit opinions and comments from related parties."More specifically, Article 23 of this law puts it that " in setting therate of public facilities or services that may affect the public substantially,or setting price for monopolized products or services, a system of public hearing must be established…"

The statutory demands of public hearing inadministrative process as articulated by the APL and the Price Law might bedeemed as important signals for more public participation in administrativeprocess, particularly in decision-making contexts. The years after 1996 havewitnessed an explosion of legislation with respect to requiring public hearingat both central and local levels. At the same time, the consciousness of theright to be heard of both government officials and common people has beenincreasing, resulting in very encouraging practices of hearing, especially atlocal levels.

II. HEARING IN PRACTICE: ANOVERVIEW
Although the APL and the Price Law, as wellas the Legislation Law, set forth the procedural requirements of publichearing, those procedural arrangements are nevertheless too general to beapplied in most situations. Therefore, continuing efforts are needed to makethe hearing requirements more specific and operational. The idea of publicparticipation should not be a "legal slogan" only; rather, there havebeen existing the public urges to institutionalize this desirable idea,especially during the past few years. Thus, since 1996, many administrativerules and local regulations have been adopted by Ministries and Committees ofthe State Council and local governments or local people’s congresses. What’smore, some of those legislation have gone beyond the requirements by the APL orthe Price Law, extending public hearing to other regulatory processes.Currently, these legislative efforts have resulted in different forms of publichearings in following regulatory contexts. As we will see, such experimentshave shown varieties of novelties, to which we now turn.

A. Hearingin sanction-imposing process

Because the APL’s provisions regardinghearing procedure are too general, many central and local agencies haveformulated rules to implement the hearing requirements. For example, theMinistry of Education, Ministry of Labor, National Bureau of Customs, NationalBureau of Taxation, and the Ministry of Public Security all have adopted theirrules to implement the APL within in their jurisdictions respectively. At thesame time, some local governments, including Beijing, Shanghai, Shenzhen,Liaoning Province, Anhui Province, Zhejiang Province, and Shangxi Province,have also adopted rules to implement the APL’s requirement.

The legislative efforts by variousdepartments and local governments, while specifying hearing procedure inparticular regulatory contexts, have also resulted in some serious problems,among which the most notable one is the lack of uniformity. Conflicts betweencentral rules and local rules and conflicts among different local areas withrespect to procedural requirements of public hearing have proved to be very aserious problem, increasing the situation of "fragmentation" of lawenforcement.

B.Hearing in rate-setting/price-fixing process

Although the Price Law of 1997 requiresthat in setting price or rates for public facilities or monopolized products orservices, public hearing shall be conducted by relevant agency to solicitpublic opinions, it says nothing about how should a hearing be proceeded. Inthis sense, the system of public hearing remains inspirational rather thaninstitutional. This has caused the consequence that most hearing experiments inprice-fixing context were very frustrating. The hearing jointly organized byState Committee on Planning and Development and the Ministry of InformationIndustry to set rate for telecommunication is a good example. On September 15,2000, the SCPD and Ministry of Information Industry held a "publichearing" to determine more “reasonable” rates for local and long distancecalls, in which government officials, legal experts and economists, andrepresentatives from China Telecom participated. This hearing was not madepublic, and there are no customer representative permitted to participate.Later interviews with participants and disclosure of the record of the hearingrevealed that opinions and arguments of experts had not been considered at allin making final decision. And no reasons were given for rejection to sucharguments. No wonder that hearing of this kind has been criticized as a“beautiful flower vase”, implying that the procedural requirement of hearing isbasically symbolic and useless except for decoration.

However, this is not to say thatexperiments of public hearing in rate-fixing contexts are completely a failure.As a matter of practice, some local governments have tried to institutionalizehearing in the context of price-fixing or rate setting. For example, in January1999, Shangxi provincial government adopted the “Hearing Procedures for PolicyMaking”, which clarifies key issues of hearing procedure, including situationsin which public hearing procedures must be applied, selection of participantsof hearing, qualifications of hearing officials, and so forth. The rule alsoemphasizes transparency of hearing process by providing that journalists mayobserve hearing process and may report to the public. Other provinces such asZhejiang and Guangdong have adopted similar regulations or rules.

As a response to public criticism and aneffort to institutionalize the hearing procedure in price-fixing orrate-setting contexts, the State Committee on Planning and Development declaredin September 2000 that a Regulation on Hearing Procedures in Price-fixingProcess had been formulating. Later, on July 2, 2001, this rule was issued bythe Committee, and came into force as of August 1, 2001. Therule can be deemed as a giant step forward in terms of institutionalizingpublic hearing. It stipulates that an index of matters requiring public hearingshall be formulated and made public. It also provides specific requirementsconcerning the principles of hearing, the qualifications of hearing officer,the qualifications of participants, and other procedural requirements foroperating a public hearing. More importantly, the rule emphasizes that a recordof hearing must be maintained and in case opinions or arguments held byparticipants of hearing are rejected, reasons must be given. However, the ruledoes not clarify whether judicial review shall be available if participants arenot satisfactory with the process of hearing or the outcome made thereof.

C. Hearing in rule-making process
The Law on Legislation provides that inmaking laws and administrative regulations, legislative bodies should“socialite opinions and comments from the public through symposiums, hearing,or other channels…" However, the law says nothing with respect to how asymposium or a hearing should be organized or conducted. The State Council,soon after the enactment of the Law on Legislation, issued a notice onimplementing the law, but again keeps silence in how a hearing procedure shouldbe constituted. As result, the general promise of public participation inrule-making process to a practical extent remains inspirational.

Nevertheless, soon after the enactment ofLegislation Law, Shenzhen local people’s congress standing committee passed thefirst procedural regulation governing public hearing in rulemaking context, andexperimented with hearing in rulemaking process for the first time on November28, 2000. After the encouraging experiments in Shenzhen, a similar rule wassoon formulated by Guangxi Autonomous Region government on Oct. 11, 2000,providing the scope for application of hearing, qualifications and amounts ofparticipants, and procedures for processing arguments and opinions offered inhearing. The active experiments of public hearing have once again shown anotable fact that, quite contrary to what had been widely believed, the lawreform in China has been to a large extent advanced through a"bottom-up" way.

D. Experiments of hearing in other adjudicatory processes
In addition to punishment-imposing andprice-setting processes, in other administrative decision-making process, suchas regulatory processes relating to license-issuing, government supervisionover individuals, hearing procedures have also been employed. Below are someexamples:

1. In Oct. 1999, the National Committee on Economics and Trade issued arule for hearing procedure in investigating industry damages caused by dumpedor subsided export products. According to the rule, in investigatingantidumping or countervailing cases, hearing procedures shall be followed.
2. In Anhui Province, a local regulation, Hearing Procedure forGovernment Budget Supplementing was adopted in 1999. It requires that if governmentagencies apply for more expenses than its original budget, and if the requestedamount is more than 500, 000 RMB, hearing procedure must be applied todetermine whether or not the requested budget should be permitted.
3. In the City of Huainan, in east China's Anhui Province, a governmentlegislative document issued in 2000 requires that in any decision-makingprocess, agency must ensure the right to be heard of affected parties. Thisrule, named Procedure Rules of Hearing for Non-Sanction-Imposing AdjudicatoryProcess, essentially extends the application of hearing procedure to a muchbroader area.
4. In Shanghai, the local people congress issued a regulation in July2000, requiring that in monitoring contract format, and in adjudicatingdisputes arising from thereof, agency must provide an opportunity to be heardat the request of affected parties.
5. In Beijing, it is interesting to note that hearing has been alsointroduced to the process of imposing disciplinary sanction upon students.According to a report of People’s Daily on April 16, 2001, this has beenpracticed by some high schools, such as Beijing NO. 189 High School.
6. In the City of Wuxi, in east China's Jiangshu Province, a “HearingCommission” has been established, comprising of some 30 members who are localelite. These commissioners may participate in adjudicating disputes betweenagency or state-run public facilities and private parties. For example, theyhave been very often invited to adjudicate medical disputes.
7. In the City of Qingdao, in east China's Shangdong Province, publichearings were held in order to set reasonable tuition fee for high schools anduniversities, which, like in other parts of this country, are run by thecentral or local governemnts.

The practices of public hearing as mentionedabove exemplify the social phenomenon that hearing has become a key word notonly in the legal scholarship, but also in interactions between the governmentand private parties. Although there is no systematic empirical researchregarding the practices of hearing, thus it is impossible to make generalevaluation, these examples may nonetheless very impressive and encouraging.However, a careful examination of the hearing procedures as set forth by lawsand rules may warn against over-optimism. There exist a lot of problems thatare plaguing the current system of public participation through public hearing.

III. WHAT'S WRONG WITH THEPUBLIC HEARING? AN ASSESSMENT
Given the general reality that publichearing as a statutory requirement is very inspirational but not institutional,its practical effectiveness is questionable due to the lack of legal mechanismsto achieve impartiality, fairness, and transparency of a public hearing. Byexamining provisions regarding hearing procedures provided by current laws andregulations, I believe the following problems are most critical and are cryingfor solutions.

1. Procedural requirements of hearing as set forth by centraldepartments and local governments are conflicting with each other. This maycause difficulties in terms of uniform law enforcement, and may raise thequestion of comparative injustice.
2. The qualifications of participants are not specifically clarified,thus, from a practical point of view, it leaves too much discretion for agencyto determine who can participate and who can not.
3. The qualifications of presiding official or hearing officials arenot clarified. Under the current system, hearing officials are usuallyofficials of relevant agency entrusted with administrative enforcement, andtherefore are incompetent in terms of procedural neutrality. An independentbody of hearing examiners needs to be created to achieve proceduralimpartiality and fairness.
4. The scope governing application of hearing procedures needs to beexpanded to cover agency actions that may greatly affect citizen’s liberty.Under the current system, hearing procedure shall not be followed in imposingadministrative detaining or decision of education through labor uponindividuals. This is inconsistent with many international human rightsdocuments, including the International Covenant on Civil and Political Rights.
5. The process of hearing needs to be more open to the public.Arguments and reasons offered in hearing proceedings should be made publicexcept laws clearly put otherwise.
6. Ex parte communications must be prohibited in decision-makinghearings, otherwise a perceived unfairness will destroy public faith in thesystem.
7. The principle of exclusiveness of hearing record must be establishedin decision-making through formal hearing. If agency is permitted to considermaterials not included in the hearing record, the practical effectiveness mayruined to a great extent.

IV. CLOSING REMARKS
The idea and practices of publicparticipation through public hearing in administrative process show ambivalenceof the government. Since it is still in its starting point, public hearing asprocedural requirements to curbing arbitrary exercise of power and to safeguardindividual rights has a long way to go. However, we have reasons to believe thatto improve the system might be easier than to start it. In improving the systemof public participation in administrative process through public hearing, weshould encourage more experiments by local governments. At the same time, auniform Administrative Procedure Act should be made to maintain minimumuniformity of administrative procedures, including procedures for publichearing.






**Wang Xixin, Ph.D., AssociateProfessor of Law, Peking University Law School; Research Fellow, China PublicLaw Center at Peking University.


Some Chinese legal scholars have been criticizing the instrumentaluse of law. Most Western legal scholars who have been observing Chinese legalsystem and the law reforms had also claimed that the rule of law is virtually"rule by law", indicating that the use of law in China isinstrumental.

Chinese versions of corresponding regulations and rules areavailable in Internet. For detailed information, visit http//www.google.com.

The "fragmentation" of China's legal system is indicatedby Professor Stanley B. Lubman. See, Stanley B. Lubman, Bird in Cage, Stanford University Press, 2000.

http://www.cctv.com/special/362/0/32245.html

The detailed material can be found at http//www.google.com.

For a detailed analysis of these problems, see Luo Haocai and WangXixin, Administrative Procedure and the Construction of Rule of Law in China,in 3 China Administrative Law Review,2000; see also Wang Xixin, Administrative Procedure Reforms in China's Rule ofLaw Context, in Columbia Journal of AsianLaw, Vol.12, No. 2, 1998.

The proposed Administrative Procedure Act (APA) has been underintensive research and drafting process since 2000. At present time, theframework of this law is submitted to the NPC Standing Committee Legal AffairsWorking Commission. General principles and detailed procedures have beenproposed in this law to govern the public hearing proceedings.