Gradual and Experimental Openness --Challenges and experiences in China

1. Gradual and Experimental Openness--Challenges and experiences in China Cheng, Jie Associate Professor of Law Tsinghua University Law School lawcjc@tsinghua.edu.cn

2. 2004 Global Survey

3. Challenges in the Law-making Process • Implementing transparency is challenging in any society. Experiments in many countries proved that most governments are happy to talk about transparency but reluctant to act with transparency. • Although the Chinese Government has publicly endorsed the open government policy ever since 2000, various obstructions and problems had delayed relevant law-making. • The 2005 CCP and the State Council Opinions on Furthering Open Government Affairs pointed out several problems that had rendered the open government policy inadequate for the needs of ‘socialist market economy and socialist democracy”.

4. According to the Opinions, these problems include: • Some members of the leadership are insufficiently aware of open government and thus do not dedicatedly promote it. • Administrative agency staff have very limited knowledge of rule of law and open government, and have limited capacity to follow the rule of law. • Regions and departments still lack open government institutions and procedures for disclosure. Some of the procedures set up are merely for appearance. • Although the Opinions use very moderate words to describe the problems, there is strong implication of the Central Government’s acknowledgment of the challenges.

5. We can divide challenges into two groups: ideological and institutional. • Ideological challenges: • Traditional view about the art of leadership: “Let people do things. Do not let people know things.” Old political wisdom advised keeping people from decision-making process. Due to the closeness tradition, there have been fears of public resentment and public disorder as a result of knowing things against their interests. • Understanding of necessity of transparency: democracy, development, or good governance. • Readiness of the society.

6. Institutional questions raised during the draft of the regulations: • Which legal models to follow: should there be a legal right? Or it could be taken as a new government obligation? • What kind of procedures should be established for disclosure. • What kind of legal enforcement institutions should be used, for example, should there be judicial remedy, administrative remedy, or a semi-judicial independent commission? • Other material conditions, like competent staff, must be satisfied.

7. Actual Experience • Chinese open government law is part of a Government-led administrative reform dominated by the executive branch. This kind of reform requires government agencies to follow orders from above and take actions. The mentality of secrecy is forced to change into a more open mind-set. “Emancipating thoughts, seeking truth from the facts.”

8. Gradual Opening-up • The promulgation of the Regulations is another success of experimental reform. • The 8-year drafting process accompanied the gradual recognition of the openness requirements by the Government: • The original requirements were limited to villages and state-owned enterprises in 1998. • It moved on to county and township in 2000. • After the general government reform in 2004, the pace to open government was accelerated.

9. Experiments moved from lower level to higher level, from narrow to broad, and from local to the central. When the Central Government finally passed the regulations, the former experiments became valuable references. The regulations also leave space for further experiments in the localities.

10. 8 Years’ Efforts, Soft-landing Reform • It took 8 years to tackle various problems and achieve agreements on the major institutions. • The process began in 2000 with an experts’ draft on Open Government Information Law. • After the experts’ draft was submitted to State Council in 2004, it was once listed in the annual legislative plan. • However, it was not after another 3 year that State Council passed the national Regulations in 2007 which will take into force from May 1 2008. • By then, over 30 provincial level government agencies, including both localities and ministries have passed certain type of open government regulations. • More municipal regulations.

11. The gradualism is also reflected in the level of law: the open government regulations are not congress-made law, they are administrative regulations. Thus there is still space for further revision once time is ripe.

12. Rule-making on Transparency • Although the overall open-up process is very slow, some special events marked the steps of progress : • Disclosure requirement regarding public health information after SARS in 2003; • 10-year Rule of Law Executive Reform Plan in 2004. • Local experiments: 2002 Guangzhou, 2004 Shanghai, and then more; • Ministerial experiments: 1999 Ministry of Public Security, 2002 Ministry of Labor & Social Security, Ministry of Land Resources, etc. • National Regulation: 2007 Regulations with one-year period before effectiveness.

13. Prediction of Challenges from Enforcement of the Regulations • Based on the field study in 4 different pioneering cities, the real challenge is making the disclosure regulations effective. • Empirical studies show that all the local regulations had substantial impacts on institutionalization of government work and private rights protection. • However, impacts on anti-corruption and public participation are still very limited.

14. Tentative explanations of the effects: • Structural reasons • Scope and nature of government information is not clear. Many argue that RTI is just political commitment like right to participate and supervision. • As the Regulations are not congress-made law, question of legal inconsistency has been raised in many disputes over disclosure requests. • Absence of congress-made law also makes the judiciary reluctant in supporting right to information in many cases. • Without sufficient protection of freedom of expression, particularly freedom of association and freedom of press, the effect of right to information to public participation and public oversight is very limited. Neither NGOs and journalists are active.

15. Cultural reasons: • Both GZ and SH are business-driven cities. That probably explains the lack of civil society involvement. • SH is considered a more rule-based environment, while GZ is the frontier of various reforms. Consequently, GZ is the pilot city to pass the regulation while SH have more disputes resolved by formal procedures. • While both areas lack political incentives, BJ, as the political and cultural center, may take a leading position in the future after the regulations are effective on Mar 1, 2008.

16. Conclusion • To sum up, the past efforts in establishing a more transparent government are successful in rule-making, but are less so in law enforcement, public participation and public supervision.