Gradual and Experimental
Openness
--Challenges and experiences in
China
Cheng, Jie
Associate Professor of Law
Tsinghua University Law School
lawcjc@tsinghua.edu.cn
2004 Global Survey
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”.
• According to the Opinions, these problems
include:
1) Some members of the leadership are insufficiently
aware of open government and thus do not
dedicatedly promote it.
2) Administrative agency staff have very limited
knowledge of rule of law and open government, and
have limited capacity to follow the rule of law.
3) 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.
•
•
We can divide challenges into two groups:
ideological and institutional.
Ideological challenges:
1) 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.
2) Understanding of necessity of transparency:
democracy, development, or good governance.
3) Readiness of the society.
•
Institutional questions raised during the draft of
the regulations:
1) Which legal models to follow: should there be a
legal right? Or it could be taken as a new
government obligation?
2) What kind of procedures should be established for
disclosure.
3) 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.
Actual Experience
1. 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 mindset. “Emancipating thoughts, seeking
truth from the facts.”
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.
2. 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.
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.
3. 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.
Rule-making on Transparency
•
Although the overall open-up process is very
slow, some special events marked the steps of
progress :
1) Disclosure requirement regarding public health
information after SARS in 2003;
2) 10-year Rule of Law Executive Reform Plan in 2004.
3) Local experiments: 2002 Guangzhou, 2004
Shanghai, and then more;
4) Ministerial experiments: 1999 Ministry of Public
Security, 2002 Ministry of Labor & Social Security,
Ministry of Land Resources, etc.
5) National Regulation: 2007 Regulations with one-year
period before effectiveness.
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.
Tentative explanations of the
effects:
•
Structural reasons
1) Scope and nature of government information is not
clear. Many argue that RTI is just political
commitment like right to participate and supervision.
2) As the Regulations are not congress-made law,
question of legal inconsistency has been raised in
many disputes over disclosure requests.
3) Absence of congress-made law also makes the
judiciary reluctant in supporting right to information
in many cases.
4) 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.
• 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.
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.