On The System Of Public Participation In Major Administrative Decision-making

Solid policy background lies behind the research of the system of public participation of major administrative decision-making. In 2004, the procedure of validity argumentation was first put forward in “Enforcement Outline of Completely Advancing Administration according to Law”, pointing that major decisions should “consult the opinions of a wide cross-section of people”. In 2010, “the State Council Opinions about the Strengthening the Government Ruled by Law” specifically put the “public participation” as the necessary procedure of major administrative decision. Particularly, in “Decisions on some Important Issues of Comprehensively Advancing Rule by law” passed by the Fourth Plenary Session of the Eighteenth Central Committee of the CPC, the “public participation” was formally fixed as the first step of the five legal procedures of major administrative decision-making. At the same time, with administrative legislation and practicing echoing these policies, the local governments at all levels have been drafting all kinds of laws, regulations and policy documents about the procedure of public participation in major administrative decision-making, and various forms of public participation like hearings, discussion meetings have been the normal scenery in the procedure of major administrative decision-making.It’s self-evident that the public participation system plays a very important role in the procedure of major administrative decision-making and the consensus has already been reached. While during the practice, the value and function of public participation system have not been fully utilized, even been ignored repeatedly. Why the effectiveness of the public participation system has been reduced greatly? In order to avoid regarding the procedure setting separately, the imperfectness of the system calls for its theoretical basis. The first question is to identify the concept of major administrative decision-making. Despite the fact that the concept of the administrative decision-making itself locates in the edge zone of the science of administrative law, and “importance” is another typical uncertain legal concept, the standard has to be as objective as possible, with specifying the items as far as possible. Secondly, the research of the system of public participation of major administrative decision-making is an interdisciplinary and comprehensive proposition. In conclusion, the fundamental theory mainly includes the theory of due process, popular sovereignty and deliberative democracy, with the principle of democracy, public interest and trust protection. Furthermore, the system of public participation of major administrative decision-making has positive values towards solving the crisis of confidence between the public and government of crisis society and pursuing the attribute of democracy and science. This kind of function could be summarized as the following five functions like citizenship education, democratic training and communication, legalization, community integrating and risk administering.After the concentration on the main points of theoretical basis of major administrative decision-making, the more important research is the categorization analysis of the public participation system of major administrative decision-making. With the development of participatory administration, the participatory subjects, objects and patterns have changed. Firstly, the range of public subjects in the administrative participatory bodies has enlarged. The connotation and extension of “the public” in the “public participation” and the definition of the stakeholders in practice is very complicated. Two kinds of the public including interest groups and NGO should be given special attention if referring to the practice of western countries with advanced public participation system. Secondly, the object of public participation in major administrative decision-making should be a complex object, of which the behavior of participation is the core. What’s more, the practice types of the participation are colorful, which can be categorized into the type of administrative manipulating, expert dominating, authorizing, cooperating and technical assisting.After the type research of the public participation of major administrative decision on the whole, more detailed analyses were needed to probe into the assorted system, such as the system of information disclosure, hearing and expert participation. Firstly, the system of information disclosure is the primary premise. This system provides a field of information exchanging between the public and administrative bodies, and it is beneficial for the public to get related information on time in the participation of major administrative decision by avoiding the information asymmetry between the government and the public, thus playing a positive role in safeguarding the public’s right to know, advancing the high efficiency, democracy and legality, and promoting social equality and harmony. In western countries with more advanced rule of administrative law, the legislation of information disclosure is more perfect, and with more various content and form. By contrast, our legislation of information disclosure has gone through a more tortuous course, and still has a lot of problems in its systematic constitution. In a lot of practice in major administrative decision, the inefficiency of the range, degree and validity in public participation has direct relation with delayed and incomplete issue of information. Therefore, in order to make the system of information disclosure a sustainable power to advance the democratic and legal system construction of major administrative decision-making, the legislation of the system of information disclosure together with a more mature and effective system has to be strengthened to form the interactive and cooperative relation between the government and the public.Secondly, the hearing system is an important way of public participation of major administrative decision. On the broadest level, the hearing system could be understood as a system of listening to the counterpart’s opinions before making administrative decisions, which is one of the most basic way of making the administrative procedure legalized. The hearing system of major administrative decision is a type of administrative hearing system, which has a solid jurisprudence foundation, including the rule of natural justice in England, the principle of due process in America, and the theory of legal state(the principle of law-based administration of government) in countries of civil law system like Deutschland. The positive value function of the hearing has developed from the initial simple function of information collection and fact finding to the function of strengthening the acceptability and transparency of the power of administrative decision, coordinating the parties’ interests, heighten the government credibility and promoting the social basic common view. In the process of major administrative decision, the hearing system should mainly apply two important principles, including exclusionary principle of files and the principle of forbidding unilateral communication. The hearing system of major administrative decision-making in western countries with more advanced rule of law has a more mature operating system, in which the informal hearing process has been widely used in America’s major administrative decisions. By contrast, the history of the hearing system of major administrative decision in our country is rather short, there are some dilemmas in it’s legal regulation, selecting mechanism of the delegates of the hearing, the information of disclosure of the hearings and record system of the hearing etc.. In order to solve these practice dilemmas in major administrative decisions in our country, we should commit ourselves to the construction of the regulations and procedure, including completing the legislation of the hearing system in major administrative decisions, bring the hearing procedure into the open, refining the regulations of the hearing director, optimizing the selection system of the hearing delegates, perfecting the system of the hearing record, and completing the relieving system of the decision hearing.Thirdly, the system of experts’ participation is a special form of the public participation of major administrative decisions. In “Decisions on some Important Issues of Comprehensively Advancing Rule by Law” passed by the Fourth Plenary Session of the Eighteenth Central Committee of the CPC, the “public participation, experts’ argumentation, risk assessment, legitimate review, collective discussion and decision” were formally fixed as the five legal procedures of major administrative decision-making. While the system of “experts’ participation” discussed here is not always the same thing as the procedure of “experts’ argument”. The system of “experts’ participation” is the super-ordinate concept of the “experts’ argument” system, and it refers to all the procedures and links the experts can take part in the process of major administrative decisions. What’s more, considering the fact that experts are the members of the public and the important constitutional part of the objects of the public participation, the expert is a special object with neutrality and double attributes of the public and the administrative bodies. As a result, the system of “experts’ participation” can be seen as an important component part of the system of “public participation” theoretically, and as a significant procedure of the numerous procedures of public participation. In the practice of major administrative decisions, the experts’ participation has characteristics of dynamics and fully involvement. With the help of the expert’s neutral and rational identity, the experts can combine the character of science and democracy of major administrative decisions and act as a bridge of effective communication between the government, interest groups and common people by balancing the interest distribution of all the parties in the major administrative decisions. On the other hand, in practice, the experts may easily lose the public’s trust because of their limitedness of the knowledge, the dispute with the interests of the local government and groups, and experts’ meeting may often become the “show” of the government’s legal construction, thus making the “the experts’ malfunctions” a concern over the fact that the experts’ participation could be carried out effectively. In order to solve the “dual absence” in practice of the system of safeguarding the experts’ independence and suppressing of the knowledge abuse, we need firstly re-interpret the experts’ role in major administrative decisions as a special independent neutral participation object with dual attribute of the public and the administrative bodies. Then we need to have a categorized analysis of the experts’ participation. In the different stages of the development history of major administrative decisions and the different steps of the decision-making, the modes of experts’ participation may present different forms, such as the modes of direct consultation, survey-entrusted, citizen movement and public interest litigation etc.. Furthermore, we need to learn from the western countries’ more advanced system of decision consulting and experts’ participation system, combined with the status quo of the practice of major administrative decision in our country, to construct the system of experts’ participation in major administrative participation in the following ways like encouraging the development of the nongovernmental advisory bodies, establishing the institutional path of the Expert Consultative Committee, fully implementing the system of the government legal advisor and establishing the experts’ accountability system.After the categorized research of public participation of major administrative decision, more microcosmic, detailed research on several typical fields of the public participation of major administrative decision is needed. In recent years, more and more administrative departments have actively introduced public participation system, especially in those fields with close connection with the citizens’ personal rights, including government performance evaluation, urban planning and environmental impact assessment.Firstly, the public participation of urban planning decision is an important field of major administrative decision. The urban planning decision is not only a government function, but also closely linked with the daily life of the public. The development of public participation in urban planning decision with its positive functions is frequently related with the development of democratic policy. In foreign countries like the U.K. and the U.S., the system of urban planning decisions has a longer history, and the related legislation and system has already formed an almost sound and spontaneous systematic project, the effective operation and creative development of which has replaced the idea and system of public participation and pushed the public participation of the urban planning decision into new climax. With the huge gap between the development of the idea and system of urban planning decision in western countries with advanced rule of law and that of our country, we need to strengthen the scope and depth of the system of public participation, and draw up a series of systems and modes of public participation in the decision-making of urban planning with Chinese characteristics, according to the reality of the public and society in our country.Secondly, the public participation in environmental impact assessment(EIA) has its special importance in the process of major administrative decisions. Such importance has stimulated the enthusiasm of scholastic research, yielding most abundant research documents and materials in the research of public participation system. After the Second World War, the western governments have produced environmental policies and laws in succession to tackle the increasingly serious problems. In our countries, with the rapid development of economy, there is an increasingly call for the environmental protection and huge progress of the public participation in the EIA has been made. Nevertheless, the public participation in the EIA has not been given enough attention in many situations. We cannot rely on the government duty alone to protect our environment, and the public also need to actively participate in to produce scientific and democratic environmental decisions. In this respect, the EIA in major project and decisions is exactly the field to exert the maximum efficacy. The government should not only enhance the propaganda to increase the public’s environmental awareness, but also perfecting the legislation and procedural regulations of the public participation in the EIA to construct a scientific, sound and operable system of the public participation in the EIA.Although all the administrative decision-makers have realized the necessity and importance of the public participation system in major administrative decision-making, and governments at all levels are promoting all kinds of ways of public participation such as hearings and forums. Yet researches generally show the system of public participation has not played its desired effects. Aiming at all sorts of the dilemma of the public participation system in the practice of administrative decisions-making, we should work out an ordered, institutionalized way of rule by law of the public participation system in major administrative decision-making, which needs a unified legal regulations from central to local, and a great effort to form an equal, cooperative and interactive relation between the government and citizen based on service-oriented government philosophy, and most of all, to establish the diversified and effective system of public participation in the practice of major administrative decision-making.To sum up, the political practice of public participation in the field of public administrative in our country has been a huge picture scroll which has already spread out, and the public participating major administrative process is an important, splendid chapter of the picture. On the level of the state and local policy, this shining chapter has a lot of positive declarations; on the practice level, various forms of public participation have been introduced into the field of major administrative decisions; and on the level of laws and regulations, many local governments has issued procedural regulations of major administrative decisions. However, the constitutionality of administrative decision has a long way to go with the legal attribute and scope definition still unclear, the system of public participation often performing practically no function, the uniform national legislation still on the agenda. It is in this sense that the research of public participation in major administrative decision has a basic significance for the systematic and democratic development of the procedure of major administrative decisions, and a full practice meaning for the administration according to law and the construction of service-oriented government on the whole.