Reforming Transparency and Participation in China: Implications for Sino-U.S. Relations
November 11, 2009
When President Obama makes his first visit to China next week, he will meet a Chinese leadership with growing confidence in international affairs and observe an economy that is rapidly recovering from the global recession. At the same time, he will witness a country whose legal and political landscape is replete with contradictory trends and vexing anomalies. While official firewalls continue to impede free access to the Internet, for instance, the government has issued national Open Government Information (OGI) regulations that have enhanced government transparency and increased the information rights of individual citizens. And while China remains a one-party state that consistently ranks at the bottom of international indices on “voice” and political participation, government authorities are taking concrete steps, amidst growing public demand, to enhance opportunities for citizens to participate in the formulation of laws and government decisions that will affect their daily lives.
These reforms reflect broader governance trends that should be of interest to an America that is increasingly engaged with China. The reforms not only have the potential to bolster official responsiveness and legal compliance, including compliance with laws and regulations that are of interest to American business, but also could be an effective means of attacking the stubborn problem of corruption in China. Based on the logic that “sunlight is the best disinfectant,” the OGI reforms in particular should help to constrain the behavior of corrupt officials and allow citizens to better observe and monitor how public finances are being spent.
In May 2008, following several years of local experimentation, the Chinese government began implementing the country’s first national regulations on public disclosure of information. These OGI regulations grant individuals the important new right to request information from the government, and also instruct government agencies at different levels to disclose information of significant interest to the public – such as information related to government budgets, urban planning, food and drug safety, fees for public services, and the results of environmental investigations. The regulations have prompted a groundswell of citizen activity, widely covered by the domestic press, to take advantage of their new information rights. In particular, Chinese citizens and activists have been requesting information on how money collected from highway and bridge tolls is being used by local authorities, how government decisions have been made in cases of urban housing demolition or land requisition, and on how state companies have been sold or restructured in the recent past.
The absence of a clearly-defined demarcation between open government information, on the one hand, and state secrets, on the other, has resulted in official rejections of information requests from citizens. Yet, with mounting pressure from the general public and the media, this situation is beginning to change. Only last month, Guangzhou became the first city to disclose the budgets of individual government departments. The Shanghai government reportedly refused, claiming that the same type of information was a state secret, but has subsequently announced that it plans to release its budget information as well.
One of the most far-reaching efforts to create an open and participatory government system in China is currently unfolding in Hunan, a large and politically-important province in southern China where Mao Zedong was born. Developed by the Legislative Affairs Office of the Hunan provincial government, the Hunan innovations combine open government information initiatives with pioneering administrative procedure reforms that provide new opportunities for Hunanese to participate in local policymaking. In October 2008, for instance, the provincial government enacted the first-ever Administrative Procedure Rule (APR) in China. Patterned on a draft administrative procedure law that was developed between 2000 and 2003 and remains under consideration in Beijing, the Hunan APR encourages open government meetings and requires administrative agencies to seek comment from the public for all major draft decisions. It also includes detailed provisions for public hearings and notice-and-comment proceedings, and calls on agencies to explain which comments were adopted in a final decision, which were left out, and why.
In addition, the Hunan government recently approved implementing measures for the national OGI regulations which expand upon the national regulations and reinforce key provisions of provincial APR. Consistent with the provincial APR, the Hunan OGI measures were drafted through a consultative process that allowed contributions by domestic and international experts, and included a notice-and-comment period which gave local citizens an opportunity to contribute opinions and influence the final result. Meanwhile, the Hunan government has launched capacity-building efforts both to train provincial officials on open government procedures and to build high-tech information portals down to the county level.
As these bold innovations take place at the provincial level, the central government has taken steps to increase public participation in national lawmaking when “important draft laws” are being developed. To this end, the National People’s Congress has released such draft legislation as the 2007 Property Law, which was of particular interest to the emerging middle class, and the 2008 Labor Contract Law, which expanded labor protections for China’s 140 million migrant workers. The draft Labor Contract Law provoked an especially strong public reaction, garnering nearly 200,000 comments from individual citizens. The American Chambers of Commerce in Beijing and Shanghai jointly contributed comments as well.
Public participation is also evident in the environmental sector, where citizen activism has influenced development plans and affected government policymaking. In a 2007 case in Xiamen, an oceanside city located in southern Fujian Province, a public outcry compelled the local authorities to move a planned chemical factory to a sparsely-populated island in another part of the province. The public opposition, initially manifested in text messages and Internet discussions, ultimately forced the government to convene public hearings and modify their original plans. This incident helped to encourage the enactment of the Regulation on Environmental Impact Assessment in Planning. Issued by the State Council in August 2009, the regulation requires the solicitation of public comments when development plans directly involve the environmental interests of local residents.
While these governance reforms and trends are encouraging, they also include important limitations. Public participation continues to be hindered by the discretionary nature of the consultative process: with the exceptions of Guangzhou and Hunan, where participation in rulemaking is now a formal requirement, Chinese officials are expected to release legal documents for public comment only when legislation is deemed to be in the “vital interest” of citizens. Similarly, the national OGI regulations contain wide exemptions on information disclosure pertaining to commercial secrets, individual privacy, or state secrets. These exemptions are vaguely defined and provide substantial leeway and excuses for local officials to avoid or reject information requests from citizens. Finally, Chinese courts lack independence and are not well equipped to handle administrative litigation cases (e.g., when citizens allege that local government agencies are unresponsive to information requests that are allowed under the national OGI regulations).
Yet, despite these problems and limitations, Chinese reforms in the areas of public participation and government transparency have come a long way in a relatively short period of time. In this respect, China appears to be exhibiting tangible change in areas that academics and development professionals identify as key elements of “good governance.” On the eve of President Obama’s visit to China, it is worth considering whether the realm of good governance could serve as a constructive platform for bilateral discussions and exchanges on ostensibly delicate issues. Chinese reformers are interested in many international experiences, and will of course tailor their future reforms to the evolving Chinese context. Through visits and discussions with American counterparts, however, they have already demonstrated a keen interest in U.S. examples of e-rulemaking, notice and comment, and government transparency. Ideally, such exchanges will continue and even be expanded in the future.
Jonathan Stromseth is The Asia Foundation’s Country Representative in China. He can be reached at [email protected]. In China, The Asia Foundation cooperates with a wide range of university and government partners, including the Hunan provincial government, to support administrative procedure reforms promoting public participation and open government information. The Foundation also supports programs that promote environmental protection, disaster preparedness, women’s empowerment, and constructive U.S.-China relations.
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