China is introducing new transparency rules for government—in part, it seems, to curb corruption. But, reports Chang Tianle (常天乐), some progressive localities are ahead of the central government on this issue, and the national rules remain ambiguous as to how much the public has a right to know.
China’s first national regulations on public disclosure of government information have been cautiously welcomed by scholars and NGOs, but most say that China still has a long way to go to achieve transparent government.
The Regulations on Government Disclosure of Information (政府信息公开条例) were approved by the State Council on January 17, 2007 and take effect on May 1, 2008. Article 1 states that they aim to “ensure that citizens, legal persons and other organisations (公民、法人和其他组织) can obtain government information by lawful means, and increase government transparency.”
According to the new rules, all levels of government should take the initiative in making public (公开) “information that concerns the immediate interest”of citizens and organisations or that “requires wide public understanding and participation.” Public finances, social and economic planning, environment, health care, social security, and education are specified in the regulations as areas where open information is required.
The regulations also require government to make public information on issues which have been the source of many local conflicts, such as land use, relocation and compensation, fees for public services, family planning and workplace safety.
All relevant government information should be made public within 20 days of its promulgation or revision, the rules say. The general public can also require government agencies to provide information that has yet to be made public, and a response should be given within 30 days.
The regulations are seen as a landmark in efforts to build a more transparent government. China's Constitution does not grant Chinese citizens a right to information. Previous legislation has emphasized protection of state secrets rather than disclosure.
A political campaign to promote “open government” (政务公开) has been under way for more than a decade but this has left information disclosure at government’s discretion, according to Clement Chen (陈咏熙), a Guangzhou native and University of Hong Kong Phd candidate who is writing a thesis on freedom of information. The new regulations, he says, make disclosure a statutory obligation whose implementation can be overseen by courts.
Zhang Qiong (张穹), deputy director of the Legislative Affairs Office of the State Council, told a press conference in April that the regulations will “facilitate the masses to supervise government departments."
Zhang stressed that the regulations would play a significant role in curbing corruption. “Keeping the government open and transparent in exercising its power will sharply reduce the possibility of corruption,” he said.
Indeed, some experts point out that anti-corruption efforts underpin the regulations. According to a Beijing Morning Post report, the Communist Party's Central Commission for Discipline has been one of the main advocates of change.
Localities lead the centre
This is not the first time that government transparency regulations have been piloted in China. In early 2003, Guangzhou formulated its own government disclosure rules. However, the subsequent SARS outbreak held back their implementation.
A year later, Shanghai launched its own rules and developed a sophisticated approach to ensure the information flow. The municipal government set up an independent website and a committee dedicated to facilitating the work, making the city a leader in information transparency. By the end of 2006 it had made public a total of 205,000 documents, including policy circulars and statements, statistical digests, reports, government schedules, etc. A survey shows that 95% people in Shanghai are aware of the disclosure rules.
Shanghai’s lead has since been followed by many other local governments. Experts estimate that 42% local governments have now issued relevant rules. Seven provinces have developed local laws to govern information transparency.
Huang Chuhui (黄楚惠), a Guangzhou Daily journalist covering the provincial and city People’s Congress, says that the local government and Congress have proved co-operative in providing information to journalists. But, he adds, their attitude largely depends on the sensitivity of the topic and their trust of individual media and reporters. “The new national regulation will reinforce our rights to access government information,” he says.
Clement Chen notes that local rules on disclosure, and their implementation, have varied widely from place to place. So far, only Shanghai and Wuhan (in Hubei Province) publish annul reports on government information transparency, making it difficult for researchers to evaluate the effectiveness and enforcement of the rules.
Chen suggests that, in the absence of unified coordination, scattered, local lawmaking has converged into an ongoing bottom-to-top movement, culminating in the new legislation from the central level.
In his view, however, the national regulations are more conservative than some of the local systems that have been piloted. He suggests that pro-transparency activists should use the time remaining before the national rules take effect to push for maximum disclosure in progressive localities, to set high standards for others to follow.
Falling short of hopes
Chen, who has been studying freedom of information worldwide and recently switched his focus to China, concludes that the national regulations fall short of what freedom of information advocates and researchers hope for.
A common concern is that government information involving “state secrets, confidential commercial information and individual’s privacy” is off the dissemination list, but there is no clear definition of the scope and conditions of the exemptions. The regulations stipulate that government organs should carefully censor (审查) information before making it public to make sure it does not include secret, confidential or private content.
Experts worry that the vague definition will give government agencies a legal pretext for hiding information. In Guangzhou, the authorities initially decided the SARS epidemic should be kept secret. Although the new disclosure rules were in place before SARS, the government did not reveal the outbreak until it attracted international attention.
In Shanghai, where the regulations and enforcement are most advanced, government wins all relevant lawsuits because the information it refuses to reveal is confidential, Chen says.
“Most of the lawsuits focus on whether the information should be made public or not. The government has learned the skills to withhold information by classifying it as non-public,”he adds.
Enforcement will not only depend on government agencies, but also on participation of the general public, whose interest and capacity to work on this issue is yet to be seen. By last May, 18 months after the local rules took effect in Shanghai, there had been less than 40 lawsuits regarding government information, amounting to about 90% of such cases nationwide.
“There is still a lack of awareness among the general public that access to government information is their right, not a favour granted by the authorities. They are not used to challenging the government yet,” says Chen.
He believes that lawyers, legal researchers, media and civil society may have critical roles to play in encouraging full enforcement of the regulations. “They should follow and assess the implementation of the regulations and stimulate the public’s interest in pursuing government transparency,” he says.
In April, Chen established a website (www.chinesefoi.org) to research and report on freedom of information reform in China. He expects the site to attract and stimulate discussion on the issue, and hopes that it might give rise to a new NGO.
Green cutting edge
Three weeks after the new regulations were announced, the State Environment Protection Administration (SEPA) issued its own, Environmental Information Disclosure Schedule (Experimental) (环境信息公开办法（试行）). This instructs not only the government but also waste-emitting enterprises to make environmental information public. Enterprises that disregard the rules can be fined up to CNY 100,000 (USD13,000).
“This is a great leap forward in terms of legislation,” comments Yu Xiaoyong (余晓勇), a journalist and Deputy Secretary General of Friends of Green in Tianjin (天津绿色之友). He says that NGOs will have better legal tools to campaign and request government and polluters to publicise their information. He anticipates more lawsuits against polluters after the provision takes effect in May, 2008.
Chen believes that every line ministry should follow SEPA’s example and issue
its own provision. However, he recognises that attitudes and willingness will vary. “If public participation strengthens its work, the government department will approach information disclosure in a more cooperative manner. But certain departments could be reluctant if such monitoring puts them under more pressure,”he says.
“The same is true worldwide. In Western countries, ministries managing education, health care and traffic are more willing to release information than others,” he adds.
In China, a distinctive feature in information transparency is the lack of independent media. “A regulation is insufficient for transparent government unless media are given more room to monitor and criticise the government. I think the new rules will give media more spaces to work,” Chen says.
Moreover, the national regulations make no provision for a fully dedicated committee—of the kind Shanghai has established—to monitor government performance. “This was actually recommended by all experts involved in the legislative process. It is a pity that their advice was not heeded,” Chen says.
Much better than nothing
Nevertheless, the new rules emerged from a consultation process that involved widespread discussion and revision by many parties.
Finally approved by the State Council in January, the regulations were themselves not made public until three months later, and will not come into effect for another year. Zhang Qiong, of the State Council’s Legislative Affairs Office, says that this will give government agencies at all levels time to design their internal procedures to implement the rules.
Li Yujie (李玉洁) from the Open Constitution Initiative (公盟), a Beijing-based legal research NGO, is encouraged by the new regulations. Her organisation is preparing a “Citizen Watch” (公民观察) project that will survey government public services. With the new disclosure regulations in place, she says, she and her colleagues will have better access to relevant government information.
Yu Xiaoyong says that change will be hard for government, which is long used to monopolising information flows. He does not expect things will change right away as lots of co-ordination needs to be done within the government system before the regulations are fully implemented.
“We have to be patient,” he says. “As long as the central government shows willingness to move towards more transparent government, the public and NGOs will have more space to request information to facilitate our work.”
May 24, 2007