EDITOR’S note:

Wang Haodong is deputy director of the Administrative Law Research Committee under the Shanghai Bar Association and a partner of law firm Shanghai Huzhong. Shanghai Daily reporter Li Xinran spoke to him recently about administering according to law in the context of the rule of law.

Q: What does administering according to the law mean in the context of the rule of law?

A: The fourth plenary session of the 18th Communist Party of China Central Committee and the amendment of the administrative procedure law in November were concerned with administering according to the rule of law.

In the context of the rule of law, there are two major aspects.

One is that the construction of our legal system is coherent. The rule of law is not a new idea. We have experienced three major phases.

The third plenary session of the 11th Communist Party of China Central Committee in 1978 decided to strengthen the socialist legal system. We have a famous principle established at the time, “There must be laws to go by, the laws must be observed and strictly enforced and lawbreakers must be prosecuted.”

In 1997, during the 15th Communist Party of China Central Committee, we put forward the concept of the rule of law and wrote it in our Constitution amendment in 1999.

The “Comprehensively Moving Forward Ruling the Country According to the Law” document by the fourth plenary session this time is a guideline for our future direction.

The three phases are key stages in the development of our legal system.

The second aspect is that “Comprehensively Moving Forward Ruling the Country According to the Law” is “three-dimensional,” including legislation, law enforcement and justice.

First of all, governments of all levels have to regulate themselves. There must be laws to abide by. That’s why we made 706 administrative regulations and 8,600 local regulations by 2011. Then we published a white paper on judicial reform in 2012. They are a prelude to the fourth plenary session decision.

According to the details of the decision by the fourth plenary session, fairness, openness and justice are among the core values of our judicial reform.

Q: What is the core idea of administering according to law?

A: The major legal base for administration according to law is administrative law. There are two different theories: one is to protect administrative power to better govern our society; the other is to put government power under control to protect fairness of society.

Our country developed an eclectic theory to balance the two perspectives. Our theory is not simply to restrict government power, like the US does, but is also different to the type of administration under command economy of decades ago.

In my opinion, to push forward administration according to the rule of law is more inclined to the restriction of government power.

The idea to limit power was enhanced by the decision by the fourth plenary session and the amendment of administrative procedure law. Aspects include the fulfillment of government duties; decision-making abiding by the law; the reform of the administrative system and law enforcement; restraint and supervision over administrative powers as well — as openness involves restricting and supervising administrative powers.

Almost at the same time, supervision was enhanced through eight aspects. These include supervision by the Party, the People’s Congress, auditors, judicial organs, society and public opinion. The fourth plenary session also set up an accountability system and established life-long responsibility investigation systems and responsibility tracing mechanisms for major policy decisions.

The administrative procedure law, which was amended in November and will take effect in May, has its Article 1 amended.

The provision is usually the purpose of the legislation. It used to be “safeguarding and supervising the exercise of administrative powers,” but according to the latest amendment there is no “safeguarding” anymore. The inclination to limit administrative power is obvious.

Q: Premier Li Keqiang ordered that hundreds of administrative approvals must be cut. What is your appraisal of this policy?

A: The reform to remove hundreds of administrative approval items or hand down power for some approvals to lower government agencies is part of government efforts to cut its own powers.

Government may cut its powers to the minimum and let the market regulate itself, which is reflected in the Law of the People’s Republic of China on Administrative License.

The reform is to ease market access but enhance monitoring during and after a project, especially in some key areas which were mentioned in fourth plenary session, like those involving public security, food safety and environment pollution.

Governments of all levels and their employees will face a process of adjustment to adapt to the transformation of their operating mode, to practice the new model for administration without approvals.

Q: Urban management officials are often criticized for heavy-handed law enforcement operations. What do you think is their future role?

A: The police have a well-established system with an efficient supervision system. But urban management is relatively new and lack mechanisms of this kind.

We have to understand the reasons and the key is how to regulate its authority. Urban management administrative enforcement bureaus nationwide need to regulate and improve their law enforcement.

On the other hand, we have to reform our comprehensive law enforcement system. Some operations involving different agencies could be integrated since on many occasions it is unnecessary for each department to dispatch its personnel to the scene.

Shanghai gained experience in coping with the situation. When we demolish illegal constructions, law enforcement action may involve the urban management authority and housing management and urban planning bodies. We must ensure that each agency does what it is supposed to do, but does not impinge on other agencies’ areas of responsibility so that a sound comprehensive law enforcement system can be established.