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3. WE MUST SAFEGUARD CITIZENS’ RIGHT TO KNOW AND EXERCISE ADMIN ISTRATIVE POWE R I N A LEGITIMATE AND REASONABLE MANNER In modern day countries, openness in government affairs and the safeguarding of citizens’ right to know is not only a prerequisite to realizing the inpidual right to life but also a cornerstone of establishing a democratic society and ensuring that citizens are masters in managing the affairs of their own country and that they participate to the greatest extent possible in state affairs. Further, it is a useful remedy against corruption. Sunlight is the best disinfectant; the more transparent a government is, the more incorruptible it is and the better it is able to establish the concept of safeguarding human rights. Open government, government online, as well as the hearing system, informing system, and so forth adopted by some administrative organs this year are all specific measures of openness in government affairs and the safeguarding of citizens’ right to know. With further transformation of government functions such as the establishment and perfection of a series of systems including the administrative examination and approval system and government procurement system, it will gradually become a legal obligation for the government to voluntarily inform the public or provide relevant information and the public’s desire to know will also become a right guaranteed by law. Administrative openness and transparency will provide more favorable conditions for the strengthening and perfection of an administrative supervisory mechanism and lay more solid foundations for the implementation of law-based administration. In other words, there will be a shift from “authoritative administration” to “democratic administration” and the concept of “ultra vires invalid” will be established. Administrative power is the most dynamic and widespread form of state power; it is also the kind of power that has the most direct influence on politics, economy, society, and citizens’ democratic rights and vital interests. These characteristics of administrative power determine that the focus and essence of law-based administration are law-based “administration of the officials” and not “of the people”, law-based “administration of the powers” and not “of affairs”. As a profound revolution in the state’s model of management, law-based administration must first be legitimate in various aspects including subject, range, content, procedure, and mode. However, in a time of continuous economic development and rapid expansion of the scope of administrative discretion, a mere emphasis on administration and legitimacy in law-based administration is not sufficient; what also needs to be stressed is for the administration to be reasonable. For administrative law enforcement agencies in particular, whether it can perform its law enforcement function in a reasonable manner under the premise of legitimacy, particularly whether it can appropriately exercise administrative discretion, is a real test of an agency’s law enforcement proficiency and service consciousness.
4 . P E R F E C T S U P E R V I S O R Y MECHANISMS, ELIMINATE SUPERVISION BLIND SPOTS, ENSURE LEGITIMACY IN LAW ENFORCEMENT ACTIVITIES For internal supervision, we should perfect the accountability system and corresponding operation methods as well as further improve the scope and level of administrative law enforcement responsibilities so as to truly achieve “legalization of law enforcement authority, explicitness of law enforcement responsibilities, openness of law enforcement procedures, standardization of law enforcement activities, and systemization of law enforcement supervision”. In addition, we should pay particular attention to implementation: when problems arise, we need to be serious and conscientious in ascertaining accountability and resolving the matter with zero tolerance; we should use systems as restraints on power and ensure that law enforcement subjects and officials faithfully perform their duties in strict accordance with laws, rules, and regulations. For external supervision, local people’s congresses at all levels should intensify supervision over law enforcement with a focus on difficult points and hot spots, strengthen the working relationships between various operating committees and corresponding law enforcement agencies, follow law enforcement procedures and norms as specified by administrative organs in submission and record keeping, be debriefed by corresponding organs on their law enforcement activities, and intensify daily supervision. They should also actively explore and practice new methods of supervision such as inpidual case supervision as well as intensify supervision over law enforcement activities that have significant impacts. In addition, they should stay in close contact with the general public, intensify supervision by news media and public opinion, and ensure that laws, rules, and regulations are properly implemented. Moreover, in China, in cases of administrative activities in violation of law, the administrative counterpart would make an appeal through administrative litigation to the people’s court for judicial review and determination of the legal responsibility of the administrative subject in violation of law. This is smoother than any other path to effective legal supervision of administrative activities. The administrative litigation system to some extent sets judicial power in opposition to executive power through the form of law. This opposing power is much more effective than any other power in the balancing, checking, and supervision of executive power; it plays a strong supervisory role in the proper execution of administrative power. Therefore, judicial review of administrative activities must be intensified. To start with, we need to perfect and reform the judicial administration system, grant the people’s courts equal status with the governments, and ensure organizational and structural independence of the people’s courts. Moreover, high quality and integrity of the judges should be guaranteed, judicial corruption should be eradicated, and judicial authority should be established; all these require that we establish truly independent, authoritative judicial power and develop means for quality judge selection through the perfection of the Organic Law of the People’s Courts of the People’s Republic of China, the Judges Law of the People’s Republic of China and other relevant laws, thereby practically ensuring law-based administration through the restraints placed by judicial power on executive power.