Journal of Comparative Law

VOLUME XII, ISSUE 2

Special Issue
Comparative Legal Reasoning:
Essays in Honour of Geoffrey Samuel
Williams, Toni Preface.......................................................................................... 1
Glanert, Simone Celebrating Many Geoffreys.................................................... 2
Legrand, Pierre Foreign Law As Self-Fashioning.............................................. 6
Ost, François (Re-)Learning to Think About Law From Cases................. 45
Monateri, P G Dominus Mundi: Land, Sea and Global Sovereignty........... 61
Del Mar, Maks Imagination in Legal Thought: Abilities, Devices and
Their Comparative Histories.................................................. 76
Bell, John Consequential Reasoning in France...................................... 94
Werro, Franz The Swiss Federal Tribunal and Its Pragmatic Plural-
istic Method............................................................................ 109
Pichonnaz, Pascal Interpretation in Multilingual States: An Opportunity.... 124
Bottomley, Anne One Pattern of Juridical Migration at the Limits of
Land (and Common) Law.................................................... 142
Muir Watt, Horatia Foreign Life-Forms and Law’s Ethics of Difference
(A View From Private International Law).......................... 161
Samuel, Geoffrey On the Beach: What Can Beaches Reveal About Legal
Reasoning and Legal Categorisation?................................. 187

Special Issue:
Transparency Challenges Facing China
FU Hualing, Palmer, Introduction: Selectively Seeking Transparency in
Michael and ZHANG China........................................................................................ 203
Xianchu
ZHANG Xianchu Transparency Challenge to China’s Socialist Market
Economy.................................................................................. 216
CHEN Yongxi Taming the Right to Information: Motive Screening
and the Public Interest Test under China’s FOI-like
Law........................................................................................... 236
PENG Chun The Shadow of Transparency: Defining, Debating and
Deterring Vexatious OGI Requests in China...................... 268
SUN Ying and Selective Openness: An Evaluation on Open-Door
ZHANG Xiang Legislation in China.............................................................. 293
HUANG Yue Hearing and Public Participation: A Failed Revolution
or a Successful Distraction? .................................................. 307
GAO, Henry The WTO’s Transparency Obligations and China............. 329
CHEN Yongxi and The Transparent Self under Big Data Profiling:
CHEUNG, Anne SY Privacy and Chinese Legislation on the Social Credit
System...................................................................................... 356
LI Ling Transparency, Propaganda and Disinformation:
“Managing” anticorruption information in China ........... 379
HAN Rongbin Supervising Authoritarian Rule Online: Citizen
Participation and State Responses in China....................... 397
ZHU Han and FU Hualing Transparency as an Offence.................................................. 417

Articles
Conner, Alison Courtroom Drama, Chinese Style................................... 437
Husa, Jaakko Global Law and Comparative Law—Allies or
Adversaries?....................................................................... 461
WANG Faye Fangfei Online Dispute Resolution: Best Practices in
Comparative Perspective................................................. 472
XU Ting Towards an Evolutionary Theory of Property?
A Longitudinal Analysis of Property Regime
Transformation in China.................................................. 496

Research Note
Dejean de la Bâtie, Alice Judge-Made Justification and Democratic Legitimacy
and Theuns, Tom in French Criminal Law.................................................. 518

Reviews
Sir Ross Cranston FBA Samuel, Geoffrey A Short Introduction to Judging
and to Legal Reasoning. Edward Elgar, Cheltenham,
2016, 208 pp. ISBN 9781785365911. E-ISBN
9781785365928.................................................................... 537
Simone Glanert Samuel, Geoffrey. An Introduction to Comparative
Law Theory and Method. Oxford, Hart, 2014. xvii,
226 p. ISBN 9781849466431.............................................. 539

Contributors................................................................................................................... 548
 hualing fu michael palmer and xianchu zhang

Introduction: Selectively Seeking

Transparency in China
FU HUALING, MICHAEL PALMER & XIANCHU ZHANG
University of Hong Kong
SOAS, University of London
University of Hong Kong

‘The possession of full knowledge does away with the need of trusting, while
complete absence of knowledge makes trust evidently impossible.’
Georg Simmel.1

PRELIMINARIES

For the past twenty years or so, the concept of transparency has grown exponentially in
importance around the world as a principle of good governance. There is a strong body
of thought that argues for much more openness in the manner in which governments,
social institutions and business corporations conduct themselves, and in particular in the
extent to which they are willing to disclose important information about themselves or
about other actors in which they have an interest. The push for greater transparency is
informed by the confidently held view that more openness will be a transforming and
renovating process: it will encourage not only more effective decision-making but also
greater accountability, and added responsiveness on the part of public and large private
institutions to the forces of civil society.
A commitment to transparency as a legal institution and process may, however, present
difficulties for an authoritarian system’s leadership. Introducing greater transparency
encourages better and probably therefore more critical understanding of governmental
policies and actions. Such reform is therefore likely to lead also to demands for political and
governance change and similarly radical ideas that perhaps create stability problems for
an authoritarian political and legal system. Given that a basic impulse in an authoritarian
regime is to limit the ability of other political forces to challenge the prevailing political
system, and to rule by law rather than to accept the constraints of a meaningful rule of law,
so offering citizens and others greater access to information that would enable civil society
to scrutinize better the conduct of that authoritarian leadership and its institutions—
perhaps even to challenge the existing power structure—is, at least potentially, dangerous.
But at the same time, authoritarian systems which seek some degree of popular support

 Simmel, G (1906) ‘The sociology of secrecy and of secret societies’ (11) American Journal of Sociology 441 at 450.
1

JCL 12:2 203

Introduction

and legitimacy are more likely to look for ways to shape and control the flow of information
about the manner in which they perform than they are to be entirely secret and to impose
blanket censorship. So, even within the broad range of systems that we can label as
‘authoritarian’, interest in restricting transparency is not evenly distributed. In the case of
the People’s Republic of China (‘PRC or ‘China’), economic reform policies and a drive to
gain a stronger place in the global economy have also encouraged a degree of sophistication
in the approach to transparency. In addition, Chinese authoritarianism takes the form
of a ‘fragmented authoritarianism’, with significant divisions within the system which
reflect directly or indirectly China’s enormous size, social complexity and changing class
structure, rapidly changing economy (including the development of a ‘socialist market
economy’), and policies of decentralization. These factors have made it difficult for the
party-state to operate as a monolithic all-embracing system, and therefore also simply to
suppress new developments such as transparency innovations when they emerge.2 But,
over the past twenty years, in what ways and to what extent has greater transparency
governance emerged in the PRC and what has been the impact in terms of accountability,
decision-making processes, and responsiveness in the Chinese governance system and
large social institutions and private sector actors? The papers in this volume have their
origins in a 2016 conference on transparency issues in China held at the University of Hong
Kong’s Faculty of Law under the guidance of the editors, and bringing together scholars
with interests in the emergence of transparency in specific areas of Chinese governance.3
Transparency has a long spectrum and its meaning can be wide-ranging in China as
it is the case elsewhere. While the importance of transparency is globally recognized, its
specific meanings, the shape it may take, and the particular context from which it emerges
may differ significantly. China was an opaque and secret society in multidimensional
ways before the Reform and Open Door Policy was initiated in the late 1970s. In the case
of the PRC, we need to bear in mind that for the first fifty years of socialist rule or so, the
emphasis in the governance system was placed much more on secrecy and censorship
than it was on openness and transparency. China then was repressive politically, stagnant
economically, and suffocating socially. Beyond repetitive political propaganda, there was
a near zero public sphere in which members of the society could engaged in an informed
communication and discussion, either with each other or with the party-state. It was at
that historical junction that the Party under the leadership of Deng Xiaoping decided to
open the hitherto-closed Chinese doors: opening the country to foreigners and opening
the government to its people. Since then, information, side by side with propaganda,
has become a new vocabulary—one which occupies an important place in the Chinese
governance. China before the reform was collapsing under the weight of over-classification,
propaganda and deception.
While the reform is decisively an incremental process, it is one that is not easy to
notice when it is emerging. But when looking back at the slow-paced, yet continuous
reform for four decades, it is not possible to miss the paradigmatic change in China’s
governance structure that touches on virtually every aspect of the Chinese society. A
golden thread that ties the entire reform project is the various attempts to create greater

2
 Mertha, A (2009) ‘“Fragmented Authoritarianism 2.0”: Political Pluralization in the Chinese Policy Process’
(200) The China Quarterly 995­.
3
 Transparency Matters, Faculty of Law & Faculty of Arts, University of Hong Kong, June 24-25, 2016
204 JCL 12:2
 hualing fu michael palmer and xianchu zhang

transparency (some more successful than others), from grass-roots elections, media
liberalization, reform in the justice sectors to anti-corruption campaigns, auditing storm,
open government information, and human flesh search – the list goes on, transparency is
seen as an indispensable ingredient in the China reform process.
Transparency is initially a passive concept, meaning first and foremost the de-
classification of information that should not have been classified, such as information
relating to contagious diseases or those relating to natural disasters and human-caused
incidents such as food and medicine scares. The base-line for reform post-Mao was located
on a very low rung of the ladder of openness (gongkai) and transparency (toumingdu).
Then, if transparency had any meaning it was merely to make available information to the
general or specific members of the public that was otherwise shielded by criminal law. But
broader understandings have emerged. Transparency also now means, for example, the
depoliticization of information, particular news reporting, and the introduction of a degree
of neutrality, objectivity, and professionalism in the gathering and reporting data. And
with de-classification and depoliticization of information, there comes the possibility of,
and the demand for, their disclosure. The initial transparency reform opens up the system
slightly and the opening-up generates further demand. Transparency seems to be able to
develop a life of its own and, gradually, state organs, such as the courts, trade department,
village authorities or legislature, feel the need to disclose their work procedure, rules and
decisions for public to view and consult. Provinces and cities in the frontiers of China’s
economic reform first piloted government disclosure on their own to maintain pace with
social and economic changes. The amount and percentage of document and information
that are subject to the disclosure rules increase gradually and by now, as it is often claimed
officially, disclosure has become the rule, in matters relating to trade, legislation and
judicial process, as some of the chapters in the volume clearly illustrate.
Transparency at this foundational level facilitates the development of a right or ‘quasi
right to know’. The right again could be based on status—the 2007 Regulations on Open
Government Information (‘ROGI’)4 offer an important platform to claim a right to know,
and failure to fulfil the duty may lead to agency and judicial review of the original decisions.
Disclosure can also be based on policy initiatives in which state organs supply information
as part of their public services—the court transparency reform, for example, is largely
driven by the court itself in an attempt to enhance its popular legitimacy and political
credibility. Moving one step further, transparency has a participatory connotation when
aggressively pursued by lawyers and other civil society forces and enforced by particular
mechanisms such as public hearing. In its ideal version, the participatory transparency is a
form of consultative democracy in which people have a procedural right to participate in
part of the decision-making process and a substantive right to have their views considered
on matters affecting people’s livelihood.
Transparency performs a wide range of functions, with many in potential conflict.
It is important to have a closer examination as to who is driving the agenda and for
what purposes.5 Authoritarian states, to various degrees, embrace legality and law in
promoting foreign trade, disciplining bureaucrats, regulating market transaction and in

4
 Currently under reform in China’s State Council.
5
 See also Zhou Ling (2012) ‘The Independent Director System and its Legal Transplant into China’ (6) Journal
of Comparative Law 262.
JCL 12:2 205
Introduction

general enhancing credibility. Transparency is a necessary ingredient and the minimum

requirement in any rule of law reform. No meaningful change can take place without first
shedding lights on an otherwise opaque system. Transparency reform is also politically
permissible. While having the potential to lead to more substantive reform, transparency
itself is, however, limited to procedural matters and touches on fewer political sensitivities.
It is a feasible first step in the reform process.
International demands for transparency, perceived or real, have played (and continue
to play) a crucial role in China’s transparency and disclosure. China’s joining the WTO, the
participation in the UN Convention against Corruption, and its eagerness to cooperation
with the international community on matters relating to mutual legal assistance, in
particular extradition of fugitive offenders, have incentivized the Party state to place
transparency on the top of the reform agenda. However, the forces of resistance to change
were unusually strong given that secrecy and censorship were such an important aspect
of both the political and the legal systems of post-1949 China. Drawing on Georg Simmel’s
ideas about the social functions of secrecy, we might even suggest that the long-standing
emphasis on secrecy in the operation of the political and legal systems encouraged a
strong ‘we group’ feeling within the Chinese Communist Party (CCP) and also stimulated
a loyalty the Party based in the benefits—both material and psychological—from their
CCP membership.6
Moreover, the PRC’s official system of lawmaking, while very important in its own right
and an indicator of progress towards the rule of law, does not eliminate the importance
of other normative rules including, for example, the so-called ‘hidden rules’ or qian guizi
that sometimes make it so difficult for the ordinary citizen to know how best to behave.
One of us has drawn attention to the continuing importance in the culture of governance
in China of the use of norms and institutions that may be best characterized as ‘extra-
legal’ and ‘extra-extra legal’.7 The situation regarding transparency also we think has to
take into account the phenomenon of self-censorship—the fear of Perry Link’s lurking
‘anaconda snake’ of party-state censorship and other aspects of political control, which
means that many people who have reservations about certain issues are reluctant to voice
their discontent and to challenge and demand greater information on a particular matter.8
Lack of transparency and openness also reflects to some degree the social fact that rumours
continue to be a very useful weapon of interpersonal rivalry in a society where the impact
of the Cultural Revolution and its culture of jealousy and false accusations still lingers a

6
 Simmel, G (1906) supra note 1.
7
 ‘Extra-law is a system in which power is neither directly derived from properly constituted authorities
nor subject to independent oversight (judicial or otherwise). In contrast with law, extra-law does not allow
deliberation, representation and decision-making that can be regarded as judicial. It has a strong political
or policy orientation and the whole system is geared to political expediency or convenience,’ while ‘extra-
extra law’ ‘comprises government measures that exist in some dark space, seemingly unrelated to any legal
framework and devoid of any legal authority. Extra-extra law is an informal political institution characterized
by a total lack of legality. It is used to advance some predatory and repressive government policies which
cannot be justified by any law or extra-law. As such, extra-extra law is covered in secrecy and operates with
no legal accountability. Except occasional and indirect admissions, such as the quasi-official admission of the
existence of “black jails” for petitioners, extra-extra law does not officially exist, and, as such, extra-extra law
survives and thrives because it is effective in achieving certain policy goals which cannot otherwise be achieved
through law or extra-law’ (Fu Hualing [2011] ‘The Varieties of Law in China’ Human Rights in China July 18, 2011
at http://www.hrichina.org/en/print/crf/article/5422).
8
 Link, P (2002) ‘China: The anaconda in the chandelier’ (49,6) New York Review of Books 67.
206 JCL 12:2
 hualing fu michael palmer and xianchu zhang

half-century later, so that to have a significantly greater transparency in China’s system of

government and order maintenance would actually also require social as well as political
and legal changes.
There are likely to be significant gaps in any transparency reform in an authoritarian
state. Such reform can be partial, half-hearted and in any event limited. The China
experience shows that judicial transparency, for example, is likely to bottom heavy with
pressure applied mainly on basic courts. The publication of cases may also be selective
without clear standards as to which cases should be published on line. Whatever is
publicized might be marginal and whatever significant may remain hidden. While big
data can be made available from published cases, it may well not only be incomplete but
also potential biased. Similarly, legislative openness may apply mainly to laws that affect
the social and economic rights of citizens, and matters touching on political sensitivity are
often regarded as off-limits. Transparency is partial also in the sense that it is allowed to
apply only in an isolated stage in an ongoing political, legal or policy process. While a law
is open for public consultation, the drafting process before consultation and the debate
and enactment after public consultation are not known. Significantly, it may not be known
how those public inputs are taken into consideration, if at all.
Transparency also has the possibility of setting traps for reformers, thus creating
unforeseen consequences that contradict the original objectives. Transparency may serve
a ‘entrapment’ function in two ways. First, more transparency is not necessarily better in
enhancing productivity or improving government. In the Internet age with its explosion
of information, the quality of information often matters much more than quantity. The
drive for transparency for its own sake may create its own excesses. Floods of information
(even if they contain no ‘disinformation’) may muddle public debate, reduce the level
of rationality in public discourse, and in the end confuse the general public. Moreover,
excessive demand for information, as Peng’s paper in this volume points out, may
create unnecessary burdens on the administration, inviting hostile pushbacks from the
institutions that are not keen to be opened up, and thus has the potential to block the
information mechanism. Secondly, the formality of transparency may have been used
to frustrate genuine participation and heavily controlled transparency will not be able to
trigger more structural transformation. While transparency, when first introduced, may
offer a corrective to political propaganda and government misinformation, it can however
be used proactively by the government to enhance propaganda, reinforce the view that it
supports and shape public opinions. That can be done through monopolizing the sources
of information, selective disclosure, and silencing alternative views, all done in the name
of transparency, so that in effect we end up with ‘untransparent’ transparency.
Broadly speaking, a number of the papers in this Special Issue see the situation in China
as something of a balance between control on the one hand and progress in transparency on
the other. That is, the papers suggest that we can see the glass as half full with transparency
but also in some sense half empty so that we have—to mix the metaphors—in China a
semi-open door of transparency.9 The pressures from the bottom upwards—including

9
 This is also the case in several papers delivered at the Conference but not included in this special Issue.
Thus, a paper delivered at the workshop by Professor Xi Chao explored issues relating to securities regulation.
Little is known about the regulators in China—the China Securities Regulatory Commission, the Shanghai
Stock Exchange, and the Shenzhen Stock Exchange—who oversee the world’s second largest securities
market. The presentation explored disclosed securities enforcement actions, both formal and informal, taken
JCL 12:2 207
Introduction

pressures from netizens—for greater public participation or civil society participation can
be identified in the developments noted by some of the contributions. For example, we
see such bottom-up pressures for greater transparency in the area of tax rights and in the
legislative process, as well of course in the abolition of re-education for labour, the revisions
to the Criminal Procedure Law in 2012 and the revision of the Administrative Litigation
Law in 2014. But at the same time, we can see the glass is half empty in the sense that there
are strict limits placed on transparency in particular areas such as national security, and
the imposition of heavier controls on freedom of the press, blocks on attempts to create
full-time people’s deputies even on an experimental basis and so on. One area where
it is clear that transparency has been a problem is with the practice in China’s system of
administrative litigation or judicial review that developed a practice of pre-trial mediation
behind closed doors. For many years, mediation was in effect used to avoid the rule of law
provisions against use of mediation in administrative litigation cases and in any event,

against securities violations by the Chinese securities regulators during the period from 1998 through 2016.
This exploration showed that, empirically, firms of larger size, firms that are controlled by the state, firms
that are more politically embedded, as well as firms that cooperate with the securities regulators face a lower
probability of being targeted for enforcement and a higher likelihood of lenient enforcement. It also shows that
a closer personal bond with the securities regulators are likely to reduce the severity of enforcement actions,
but are unlikely to minimize the likelihood of being targeted in the first place. At the same time, and contrary
to a widespread belief that the law enforcement is much less transparent in emerging markets than in more
advanced economies, China is one of the few jurisdictions in the world wherein listed firms regularly disclose
information on securities enforcement actions that is generally unavailable in developed securities markets.
Such information includes enforcement actions that are informal and typically confidential in nature, such
as the ‘supervisory talk’ arrangement, under which responsible officers of listed firms are require to attend
private meetings with officials of the securities regulatory authorities to discuss instances of minor violations
of securities laws. Professor Susan Finder’s paper entitled ‘Evaluating China’s Judicial Transparency Reform’
looked at transparency in the PRC’s court system, giving particular attention to the availability of basic
information about the judges and the courts, judicial statistics, and judicial normative documents, and asking
a series of questions: what do these issues say about Chinese judicial transparency in general, what do they
mean for those engaging professionally with the Chinese legal system, and how do they measure up against
the principles in the Istanbul Declaration, a document indicative of international standards in this area. She
observed that it is important that current Supreme People’s Court President Zhou Qiang and other Court
leaders have declared that disclosure should be the rule and non-disclosure should be the exception. Moreover,
various senior judges in the Court have promised that transparency will be further increased in the years to
come. The general strengthening of the institutional protections of litigants and the public’s right to know
about judges and courts appears to be in response to greater societal demand for transparency, and is one part
of efforts to boost public confidence in the courts and to empower the legal community and public so that they
can monitor judicial conduct more effectively. While progress in greater transparency can be observed in most
of the areas examined, as benchmarked by the Istanbul Declaration Principles, the story is more complicated
than it might appear at first sight. There is a legacy from the 1990s and earlier of a broad-brush approach to state
secrecy and judicial work secrecy. For many years the norm has been to keep secret the specifics of the manner
in which Party and state institutions affect the operations of the judiciary as well as other sensitive information
regarding the courts. The broad and ambiguous wording of secrecy regulations appear to be inconsistent
with the Supreme People’s Court’s current governing policy of gradually expanding judicial transparency,
but whatever reforms are introduced in this area, it is very likely that details of how decisions are made in
highly sensitive cases will remain confidential. Judicial disciplinary decisions and criminal judgments related
to judicial misconduct are especially sensitive matters that may, for example, expose the manner in which
seeking personal gain leads to judicial misconduct, or reveal possible links between senior political figures
and the courts. Not surprisingly, transparency in these matters is much more limited. As a result, various
commentators—some inside the judiciary and others outside—advocate the introduction of a comprehensive
legal framework institutionalizing the right to access to judicial information, as well as offering clear principles
indicating firmly where access will be restricted, However, Professor Finder in her presentation considered that
these innovative proposals do not seem to be taken seriously at the moment, and that the current situation in
respect of judicial transparency remains at best ‘mixed’.
208 JCL 12:2
 hualing fu michael palmer and xianchu zhang

was inconsistent with China’s accession to the WTO special protocol provisions regarding
more open judicial review.10

CONTRIBUTIONS

The essays which follow this introductory chapter to the Special Issue analyze a number
of key issues in the promotion of greater transparency that has taken place in mainland
China over the past two decades or so. Contributions are offered on topics such as the
influence of market orientated reforms on transparency, the right to information, open
government information, open-door legislation processes, public hearings, China’s policy
and practice on its WTO’s transparency obligations, the use of big data profiling and
privacy, the management of anticorruption information, the impact of the internet and
of control of the internet on transparency issues, the manner in which rights lawyers in
China have used transparency as a tool to pursue legal activism and social campaigns, and
judicial transparency reforms.
The essay by Professor Zhang Xianchu explores the impact of market orientated
economic reform policies—including the removal of the ‘bamboo curtain’ that enabled
China to engage more with the world and in particular the acceptance to greater
transparency by China in its WTO commitments—on transparency conditions in the PRC.
His examination concludes, however, that the kind of transparency found in the PRC today
remains much less a creature of greater market pressures and global engagement, and
rather more the product of the continuing and predominant influence of the authoritarian
ideology of the CCP and China’s traditional political legal culture. In particular, the
impulse to make government officials accountable to their political superiors rather
than the general public and civil society has resulted in only superficial compliance with
transparency requirements as such requirements are understood outside of the mainland
PRC. Thus, a genuine commitment to institutionalize transparency in China has yet
to emerge. Indeed, so powerful are the forces of resistance that it is only major internal
political reforms which will break this path dependency. Despite the support that they
bring, neither well designed and intended bilateral and multilateral assistance programs,
nor skillfully applied international pressures, are likely to be decisive in securing change
in the direction of more meaningful transparency.
Dr Chen Yongxi’s contribution, entitled ‘Taming the Right to Information’, looks at
the State Council’s 2007 ‘Regulations on Open Government Information’ (ROGI) and the
manner in which courts have applied these regulations. Chinese officials who pushed
through transparency reforms, and jurists working on transparency issues have tended
to regard ROGI 2007 as a key advance in government-citizen relations and ‘democratic
politics’ in China. However, a detailed analysis of nearly 300 cases in this chapter reveals
that the Chinese courts have largely failed to apply their review power to uphold the
pro-accountability goal embodied in the ROGI, and have in particular deviated from
two principles important to the effective protection of freedom of information, i.e. the
‘requester-blind’ principle and that of subjecting exemptions to the public interest test.
Instead, the courts have tended to cooperate with administrative agencies in restricting the

10
 Palmer, M (2014) ‘Mediating State and Society: Social stability and administrative suits’ in Trevaskes, S,
Nesossi, E, Sapio, F, and Biddulph, S. (eds) The Politics of Law and Stability in China Edward Elgar Publishing 107.
JCL 12:2 209
Introduction

potential of an otherwise politically significant right to information and turning it into an

ineffective instrument for public interest assertion.
Contrary to the requester-blind principle by which citizens enjoy a universal right to
information irrespective of their identities or motives in seeking information, the Chinese
courts have endorsed the screening test of requesters’ needs of information which was
invalidly imposed by the General Office of the State Council, and tended to qualify only
the needs related to the requester’s own rights of the person and property. With regard to
the public interest test, the courts have hardly considered any public interest in exposing
abuse of power or facilitating public participation in policymaking, but have recognized,
subject to limitations, the public interest in enabling individuals to seek remedy for
violation of their substantive rights. The combination of these two judicial approaches
favours the ‘defensive transparency’ which attaches information access to the purpose of
securing private interests, but rejects the ‘civic transparency’ which unconditionally allows
every citizen to subject the government to public scrutiny as a matter of political principle.
The essay by Professor Peng Chun entitled ‘The Shadow of Transparency: Defining,
Debating and Deterring Vexatious OGI Requests in China’, offers analysis of the
discourses in the PRC concerning abusive open government information requests. A trend
has increasingly developed since the introduction of the ROGI of so-called ‘abusive OGI
requests’ or ‘abuses of the right to OGI requests’. This characterization itself is negatively
suggestive of the manner in which people have been exercising their rights to request
disclosure of certain types of government information. There is something of a ‘moral
panic’ that has been created in which the right to information is seen as being exercised in
an irresponsible, unreasonable, frivolous or even unlawful manner. Through a detailed
examination of the leading case of Lu Hongxia and its context, Peng Chun’s article argues
that there are significant problems with both the definition of abusive OGI requests,
and solutions applied in response to abusive OGI requests, especially as revealed by the
decision in the Lu Hongxia case. Although in some ways constituting an innovative attempt
in the current restrictive legal and political contexts to deal with abuses of the ‘right to
know’ in China, the definition used and the solutions offered are also deeply problematic,
lacking as they do coherence, consistency and legality (for example, it is argued by many
commentators that the court exceeded its jurisdiction in this case). In the light of these
weaknesses, and recognizing that every transparency regime has flaws which should be
defined accurately and dealt with carefully and proportionately, an alternative approach
is proposed in the essay. In this approach, the numerical and intentional tests currently
in place and which are too broad—and thus susceptible to abuse—would be replaced by
a system focused on proper judicial assessment of the repetitiveness and offensiveness of
the requests. And after an abusive request has thus been properly identified, the preferred
outcome would be to ignore it and also to dismiss any related lawsuits. Ideally, this would
provide a better balance between the public interest involved in disclosure and in non-
disclosure.
The starting point for Professors Sun Ying and Zhang Xiang in their essay ‘Selective
Openness: An Evaluation on Open-Door Legislation in China’ is that the manner in
which an authoritarian state responds to public opinion is an intrinsically interesting
and important issue. In the case of China, there is important published research on how
the Chinese courts are influenced by populist pressures, how the tension in mass-elite
relations escalates in Chinese villages, and how the State Bureau for Letters and Visits
absorbs grievances. What has been inadequately addressed is the system of ‘open door
210 JCL 12:2
 hualing fu michael palmer and xianchu zhang

legislating’ (kaimen lifa)––and how the Chinese Party-state responds to public pressure in
the lawmaking area. Although in the early years of the PRC, the draft 1954 Constitution
was subject to public consultation, as was the current 1982 Constitution, it has mainly been
after the introduction of the 2000 Law on Legislation that a firm principle of ‘open door
legislation’ has been applied in mainland China. It has become a common practice for the
National People’s Congress and its standing committee to give the general public some
opportunity to make suggestions on how proposed reforms should be further drafted.
However, it is unclear to what extent and in what ways the national legislature in reality
acts on such lawmaking assistance from the general public. Indeed, the essay concludes
that the available evidence shows that the transparency and openness in PRC’s national
lawmaking process is at best selective or strategic. On one hand, in the fields of economic
affairs and social welfare, the Party state listens to the general public; on the other hand, in
respect of more political related issues, any public participation has very little if any real
impact. Nevertheless, at the level of doctrine and principle, the commitment is to greater
participation. The current CCP General Secretary, Xi Jinping, emphasized the importance
of ‘scientific and democratic lawmaking’ in his report at the 4th plenary session of 18th
CCP Central Committee. This principle of ‘scientific and democratic lawmaking’ is also a
legal requirement. Article 34 of Legislation Law requires legislators to canvass the opinions
of all the parties concerned by various methods including forums, discussion meetings,
and hearings. The 2015 revision of the Legislation Law heightens the importance of expert
participation by providing that when there is a need for specialized evaluation, then
relevant experts, departments, deputies, and other concerned parties should be involved
(Article 36). But the reality is that not every item of legislation goes through an open
door process, and even when a draft has been released to the public, it is not clear how
much of a difference public opinion thus solicited will have on the lawmaking outcome.
The essay emphasizes the importance of the point made above namely, that in drawing
up legislation on politically-related issues, the degree of genuine public participation is
very limited. The overall reality is one that Sun and Zhang characterize as a ‘managed
participation’ in lawmaking, and one which often has the political function of absorbing
the voices of social discontent. In China’s authoritarian political-legal culture, lacking
genuine elections and tangible electoral linkage between voters and lawmakers, public
participation in lawmaking in non-politically sensitive areas of social life is allowed and
indeed is developing. The party-state thus allows Chinese citizens some incentives and
opportunities to engage in and to influence public life in the form of participation in open
door legislation. However, the door is half open at best. Concern with national security,
the limited democratization offered to the public, and a felt need to protect the core
interests of bureaucratic agencies, all mean that in more sensitive issues, the participation
of ‘outsiders’ is often very limited and not allowed to make a difference. Thus, it is safe
to conclude that any hopes that bottom up participation in legislation will lead China in
the direction of a liberal democracy are unlikely to be realized. Instead, argue Sun and
Zhang, the development of genuinely democratic lawmaking, with meaningful public
involvement, requires first that China becomes more fundamentally more open and liberal.
Professor Huang Yue’s article ‘Hearing and Public Participation’ looks at the
development and practice in the mainland PRC of the public hearing, a consultative
process which is relatively under-researched in the context of an authoritarian regime.
One outcome of the post-Mao reform programme is that China has established a
comprehensive structure of administrative law, largely in the belief that a functionally
JCL 12:2 211
Introduction

effective administrative law system will likely enhance the legitimacy of party-state
control and administration, as well as promote economic growth. Compared with other
east Asian jurisdictions, the only apparent deficiency in the Chinese administrative
law system today is the lack of a comprehensive administrative procedure code. But
the system that has emerged in the PRC, as in many ‘developmental states’, is infused
with overwhelming state discretion in policymaking and limited procedural checks on
government power. Although there are the intensive academic explorations of the public
hearing in jurisdictions with well-developed systems of administrative law, the role of the
public hearing in developing systems of administrative law in non-democratic countries
has hitherto been given limited attention, and China offers a useful context for extending
our understanding. Huang concludes, first, that the Chinese public hearing is distinctive
from a comparative perspective in that it is used more as a transparency mechanism than it
is as a process which examines evidence (its more commonplace function elsewhere in the
world). In addition, there is a wide range of institutional attitudes within mainland China
to the innovation of the public hearing, and this divergence of views reflects differences in
the potential benefits that accrue to differing levels of government and to differing points
in the hierarchical structures within various branches of government and regulatory
agencies. He also suggests that looked at in the context of China’s emergent system of
administrative law, the public hearing, despite many difficulties, has made important
contributions to reform, encouraging acceptance of a better policy-making process, and
also making the issue of policymaking (including policymaking power) a central concern
of administrative procedural law.
A range of factors help to account for the variations within the PRC in the
implementation of the transparency obligation, rendering it difficult to achieve full
transparency. Thus, China’s de-centralized system of law-making system works against
uniformity in compliance with the transparency obligation, especially as the central
government often encourages local governments to experiment with various initiatives.
Even at the central government level, different ministries and agencies have varying
attitudes to the need to comply with WTO obligations. In addition, in the aftermath of
accession to the WTO, officials in relevant parts of government were trained to achieve
better understanding of WTO rules, but with the passage of time this understanding has
not been sustained, especially in government departments with non-trade responsibilities.
Moreover, government departments often fail to prioritize implementation of procedural
obligations such as transparency, as officials take the view that substantive obligations are
more important. There is moreover, a cultural dimension to the problem. Public awareness
and knowledge of laws was traditionally thought to make it more difficult to govern the
people as they could use their understanding strategically to pursue self-interest, and
the political culture of China since 1949 has also tended to emphasize the need for social
order and secrecy rather than transparency. Professor Gao’s essay concludes that, in the
light of China’s experience with WTO transparency obligations, there is a fundamental
contradiction between state determination of which information may or may not be
published and strong transparency rights in which individuals are able to determine the
manner in which they exercise their right to information and seek legal remedies to uphold
such rights.
The study by Dr Chen Yongxi and Professor Anne SY Cheung entitled ‘The Transparent
Self under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System’
explores the implications of big data profiling in relation to the legal framework for the newly
212 JCL 12:2
 hualing fu michael palmer and xianchu zhang

introduced national Social Credit System (2014). The latter seeks, in the context of credit
scoring, to evaluate citizens’ compliance with normative standards and their honouring
of promises by using big data processing of both business organisations and individuals.
But it does so in a legal context that does not define the right to privacy nor offer effective
protection of personal data. The social credit system, with its big data component, thus
has the potential to intrude deeply into the privacy and personal data of Chinese citizens.
The paper takes the view that neither existing nor currently proposed legislation offer
confidence in the adequacy of legal safeguards. In particular, local social credit legislation
does not impose meaningful limits over the collection or use of personal data nor provide
for an adequate right to access and rectify one’s credit records. The explanation for this
problem is to be found in the surveillance aims of the social credit system one the one
hand, and in the extra-legal restrictions derived from the political culture of the pre-1979
era on the other. The overall effect is that the party state is well positioned to use the social
credit system for purposes of social control, and the individuals risk being reduced to
transparent selves before the state in this uneven battle.
In her article ‘Transparency, Propaganda and Disinformation: “Managing”
anticorruption information in China’ Dr Li Ling examines the quality of access to
information—both fact and propaganda orientated—relating to corruption and
anticorruption in China and how that affects understanding about corruption. The essay
shows that the availability of corruption-related information has dramatically increased
since 2012, largely as a result of not only expanded anticorruption efforts but also the
introduction of various social media platforms. There have been improvements in the
release of corruption-related laws and regulations and of information about important
procedural decisions made during the disciplinary and judicial processes of individual
corruption cases. However, provision of detailed information about specific decisions
has been reduced, and limits on the access to the source of information controlled by
governmental authorities makes it difficult for ordinary citizens to take an accurate and
independent view of events. Moreover, while release to the public of accurate factual
information remains limited, propagandistic anticorruption information is produced
in abundance and circulated to the public with much greater intensity and growing
sophistication. In the past five years, great efforts have been made by the Party to improve
the acceptance of anticorruption propaganda and to increase the content diversity of
anticorruption propaganda. The purpose of anticorruption propaganda continues to be
a localization of problems of corruption by characterizing corruption offenders as trust-
breaching and venal opportunists who have deserted the cause of the Party and fallen prey
to beguiling bribers. Thus, the Party is able to portray itself both as a victim of the crimes
of corruption and as a crusader against corruption, legitimately striving to have its moral
image repaired and integrity restored.
Professor Han Rongbin’s essay ‘Supervising Authoritarian Rule Online: Citizen
Participation and State Responses in China’ examines citizen participation in, and state
responses to, the emerging system of online supervision in China. The paper concludes
that an examination of online supervision reveals that the internet has only empowered
Chinese citizens in certain specific ways. In particular, it has facilitated citizen revelations
about individual cases of corruption and official misconduct much more than it has
enabled ordinary people to ‘push against the ceiling’ by seeking systematic change.
Thus, online supervision has secured only limited success, largely serving as a mode
of exposing individual corruption cases rather than as a vehicle for progressive reform.
JCL 12:2 213
Introduction

This ‘selective-empowerment’ that has emerged is important, eliminating as it does more

threatening forms of citizen activism and bringing less threatening forms under control—
indeed, enabling the party-sate actively to use them for political effect. This ‘selective-
empowerment and differentiated-response’ approach goes a long way to explaining why
China’s authoritarian party-state continues to be able to set the agenda, means, and goals of
online supervision despite the potentially empowering effects of the internet for ordinary
citizens. We can also see that while social actors in authoritarian regimes, such as that of
China today, are empowered by new technologies, they are not all empowered equally nor
in exactly the same way, with different digital platforms often catering for different actors
or focusing on specific types of social conduct. Moreover, digital media may well project
explicitly or implicitly different images of authoritarian rule—responsive, repressive, or
fragmented—and our understanding of authoritarianism should take this into account.
The essay entitled ‘Transparency as an Offence’ by Dr. Zhu Han and Fu Hualing looks
at issues of transparency in relation to the important phenomenon of ‘rights lawyering’ that
has been robustly developing in China over the past two decades or so. The promulgation
of the Regulations on Open Government Information in 2007 provided lawyers and
other civic groups with new opportunities for legal and political activism, and with
the development of information technology and enhanced international support rights
lawyers have been able to take a proactive and occasionally even aggressive approach to
exposing abuses and holding public power accountable to the law. Particular attention is
given in the essay to the manner in which rights lawyers in China have used transparency
as a tool to pursue their legal activism and social campaigns: first, by open government
information applications, secondly, by on-line mobilization, and thirdly, by off-line action.
The essay concludes that the formal Open Government Information institutions have
created new legal opportunities and resources for rights lawyering, which has helped to
make government more accountable and also restraining the arbitrary exercise of public
power. At the same time, however, the political weaknesses of legal institutions and their
lack of political will and ability to accommodate the demands of civil society have given
rise to extra-institutional and extra-legal mobilization in a variety of organized street
actions by rights lawyers. This ‘extra-institutional lawyering’ has triggered retaliation by
the state, however, leading in turn to additional limitations on lawyers’ right to know
and further suppression of rights lawyering. While such state repression may deter some
rights lawyers, it nevertheless energizes others to re-group and continue with their legal
and extra-legal resistance. Weak formal institutions create opportunities and incentives
for extra-institutional mobilization and political repression leads to a new round of
escalation. The continuing question is whether or not China’s authoritarian party-state
is willing to allow adequate space in its legal institutions and processes to harness the
political energies of lawyers and other civil society actors, so that transparency becomes
an arena of cooperation rather than competition between the party-state and civil society
institutions and actors.

214 JCL 12:2

 hualing fu michael palmer and xianchu zhang

REFLECTIONS

China’s embrace of the idea of transparency at the turn of the century was accompanied
both inside and outside the country by hopes that enhanced institutional openness and
greater access to public sector data would reveal the workings of the socialist state to a
greater extent, and promote democracy and citizen-state trust. The development of the
internet and the ever-growing possibilities of releasing data online further nourished
these hopes. But much of the data thus put into the public sphere by the authorities in
China provides only a selective visibility. The controlled and targeted approach to the
public release of information that has emerged does not necessarily promote better
understanding of the workings of the party-state, and this essentially top-down approach
has not been helpful in generating greater public trust in the People’s Republic. The kind
of transparency system that has been developed in China over the past nearly twenty years
is consistent with an understanding of the relationship between the socialist system and its
citizens that is both paternalistic and authoritarian. The party-state sees itself as fulfilling
its responsibilities by providing information, but in selective forms that mean that while
information may be received by the public it intended to be received passively and in any
event is not helpful to them in understanding better the workings of the party-state. As
the papers in this Special Issue show: the kind of transparency that has emerged is, quite
simply, still not very transparent.

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

gongkai 公开 openness

kaimen lifa 开门立法 open-door legislating

qian guizi 潜规则 hidden （or unspoken） rules

toumingdu 透明度 transparency

JCL 12:2 215

Transparency Challenge to China’s Socialist Market Economy

Transparency Challenge to China’s

Socialist Market Economy
XIANCHU ZHANG*
University of Hong Kong

Transparency has been recognized as a global norm in both governance of the state and
functioning of the market economy. Some studies have suggested that by 2020 ‘market and
business transparency will be universally accepted across the G20 countries and beyond as
critical to economic resilience and sustainable value creation’.1
Recently, transparency in China has become a focal point in the international controversy
on China’s market economy status following the expiry in November 2016 of the 15-year
transitional period (2001-2016) under Sec. 15 of the Protocol of China’s Accession to the
World Trade Organization (WTO). The United States (US), the European Union (EU)
and Japan announced their decision not to grant China its coveted status as a full market
economy because China’s domestic laws and legal interpretations had not made sufficient
progress towards their understandings of the standards of a ’market economy’. Their
concerns included serious worries about China’s market transparency.2 China responded
by launching a legal action in the WTO to fight for its claims in December 2016.3 As a
result, China’s market status, including its transparency conditions, is going to be judged
in due course within the WTO mechanism.
International concerns with China’s lack of transparency have also been reflected in
the International Monetary Fund (IMF) encouragement that China be more transparent
in its foreign exchange operations;4 a joint expression of deep anxiety by major developed

* The author would like to thank Dr. Jingyi Wang for her valuable comments on the draft and footnote editing
work for the final version of this article.
1
 Global Reporting Initiative (2010) ‘The Transparent Economy: Six Tigers Stalk the Global Recovery—
and How to Tame Them’ available at: <https://www.globalreporting.org/resourcelibrary/Explorations_
TheTransparentEconomy.pdf> accessed 19 July 2017.
2
 See The US—China Business Council (2015) ‘China 2015 Regulatory Transparency Scoreboard’ available
at: <https://www.uschina.org/reports/china-2015-regulatory-transparency-scorecard> accessed 19 July 2017;
Business Europe Position Paper (2015) ‘China Market Economy Status’ December 2015; and Nikkei Asian
Review Report (2016) “Japan won’t Recognize China as WTO ‘Market Economy” December 6, 2016, available at:
<http://asia.nikkei.com/Politics-Economy/Economy/Japan-won-t-recognize-China-as-WTO-market-economy>
accessed 19 July 2017.
3
 Donnan, S; Hornby, L and Beesley, A (2016) ‘China Challenges EU and US over Market Economy Status’
Financial Times, December 12, 2016, available at: <https://www.ft.com/content/6af8da62-bf5d-11e6-9bca-
2b93a6856354?mhq5j=e1> accessed 19 July 2017.
4
 Wei, L (2016) ‘IMF Pressing China to Disclose More Data on Currency Operations’ The Wall Street Journal,
March 21, 2016, available at: < https://www.wsj.com/articles/imf-pressing-china-to-disclose-more-data-on-
currency-operations-1458563063 > accessed 19 July 2017.
216 JCL 12:2
 xianchu zhang

countries with China’s new legislation on anti-terrorism, cybersecurity and foreign charities
for their potential to impede trade and investment;5 expression of disappointment in the
recent Group 20 (G20) meeting for lack of transparency in China top leaders’ explanation
of the country’s economic downturn and related governmental measures;6 doubts
raised about China’s claim to be a leading economy of the world given ‘an alarming
lack of transparency’,7 and the criticism made of China’s autocratic measures without
transparency in dealing with its financial market shocks.8
Transparency has been long identified as one of the crucial benchmarks of a market
economy, and the current paper critically examines the major concerns in this regard given
that China sees itself as a market economy of a special kind— a socialist market economy.
These concerns include China’s WTO commitments, renewed pledges made in recent years
for further reform, and the institutional challenges to be faced in improving conditions
for greater transparency. The paper argues, however, that even after nearly 40 years of
reform, transparency is still defined and practiced in China in a manner that is more in
keeping with the authoritarian ideology of the Communist Party of China (CPC), rather
than in accordance with market demands. As a result, there is a considerable institutional
gap for the Party-State to overcome if China’s economic rise is to be matched by general
recognition of China as a leading economy in the world.

A BRIEF REVIEW OF THE EMERGENCE OF TRANSPARENCY IN CHINA

Following its establishment in 1949, the People’s Republic of China (PRC) was often seen
as a country isolated from much of the rest of the world by a bamboo curtain through to
the late 1970s—that is, essentially during the cold war period—when changes came about
because of introduction of the economic reforms and ‘open-door policy’. In its first three
decades, however, China was indeed under tight political, social and economic control in
the Stalinist style and generally isolated in the world. 9
The historically significant reform and opening policies of the past three decades and
more in due course did come to change some aspects of the traditional political mentality
and governance of the Party-State. As early as 1985, in some provinces ‘village affairs
opening’ （cunwu gongkai) emerged in rural contracting schemes whereby collective
operational income and distribution were publicized at the village notice boards. The
popularity of this local practice led to the enactment (on a trial basis) of the first PRC
Organic Law of Village Committees in 1988 with the clear provision that a system of

5
 Reuters (2016) ‘US, Japan, EU Team up to Warm China of Concerns over New Security Laws’ The Guardian,
March 1, 2016, available at: < https://www.theguardian.com/world/2016/mar/01/us-japan-eu-team-up-to-warn-
china-of-concerns-over-new-security-laws> accessed 19 July 2017.
6
 Bernanke, B and Olson, P (2016) ‘China’s Transparency Challenges’ Brookings Institute, March 8, 2016,
available at: <http://www.brookings.edu/blogs/ben-bernanke/posts/2016/03/08-china-transparency> accessed
19 July 2017.
7
 Moy, E (2016) ‘Chinese Lack of Transparency Casts Doubt on Its Economic Claims’ Newsmax, January
24, 2016, available at: < http://www.newsmax.com/Finance/Ed-Moy/china-economy-claims-title/2016/01/24/
id/710673/> accessed 19 July 2017.
8
 Sheng, A and Geng, X (2016) ‘China Suffering from a Transparency Problem’ Japanese Times, February 8,
2016, available at: < http://www.japantimes.co.jp/opinion/2016/02/08/commentary/world-commentary/china-
suffering-transparency-problem/#.WVyp-jOB1ME > accessed 19 July 2017.
9
 Roberts, P (ed.) (2006) Behind the Bamboo Curtain: China, Vietnam and the World Beyond Asia Stanford University
Press.
JCL 12:2 217
Transparency Challenge to China’s Socialist Market Economy

village affairs opening should be implemented, under which important matters, such as
financial affairs and house site and family planning quota distribution of a village, had
to be publicized every six months and was to be subject to villagers’ supervision.10 Thus,
‘village affairs opening’ was developed into a formal institution during the course of the
reform process. The CPC in 1990s by its circulars in several occasions required villages to
enhance and improve this system as part of democratic management of local affairs.11 The
CPC and the State Council issued their Joint Notice on Comprehensive Implementation
of Rural ‘Village Affairs Opening’ and Democratic Management System on 18 April 1998,
where the important matters were mandated to be publicized within one or two months,
but no more than three months. However, the system apparently aimed more at the
political goal of enhancing and legitimizing Party-State authority at the rural grassroots
level than establishment of a rule based institution. As such, the publication was only
required to be ‘simple and brief’.12
The rapid market development provided further momentum for the opening
movement. The information disclosure system as a crucial legal obligation was initially
introduced into China when the securities market was first established in socialist China
in the early 1990s. Since then, although there remain significant institutional gaps and
systematic weakness, both financial markets and corporate transparency have been
improved with the use of Western-style regulations and standards.13
The establishment of a formal legal institution of transparency with nationwide
implementation was promoted by China’s accession to the WTO in late 2001—a cornerstone
of its entire system. Under its Protocol of Accession, China specifically pledged that only
those laws, regulations and other measures pertaining to or affecting trade activities that
are published and readily available to other WTO Members, individuals and enterprises,
would be enforce. Moreover, upon request, all laws, regulations and other measures
pertaining to or affecting trade activities had to be made available before such measures
are implemented or enforced.14 In addition, China agreed to ‘establish or designate an
official journal dedicated to the publication of all laws, regulations and other measures’
and to provide a reasonable period after publishing such laws, regulations or other
measures for comment to the appropriate authorities before they are implemented, except
for the enactments involving national security, specific measures setting foreign exchange
rates or monetary policy and other measures the publication of which would impede

10
 Art. 22 of the Organic Law of Villagers’ Committee of 1988. An English translation is available at < http://
www.npc.gov.cn/englishnpc/Law/2007-12/11/content_1383542.htm>, accessed 19 August 2017.
11
 CPC (1990) ‘Quanguo Cunji Zuzhi Jianshe Gongzuo Zuotanhui Jiyao’ (The CPC Notice to Circulate the
Important Discussion Notes of the Conference on National Village Organization Construction) 13 December
1990, available at: < http://cpc.people.com.cn/GB/64184/64186/66697/4494939.html> accessed 19 July 2017;
CPC (1994) ‘Guanyu Jiaqiang Nongcun Jiceng Zuzhi Jianshe de Tongzhi’ (The Notice on Enhancement of
Rural Grassroots Organization Construction), 5 November 1994, available at: < http://cpc.people.com.cn/
GB/64184/64186/66686/4494323.html> accessed 19 July 2017.
12
 Sec. 2 of the Notice. CPC and the State Council (1998), ‘Guanyu zai Nongcun Pubian Shixing Cunwu
Gongkai he Minzhu Guanli Zhidu de Tongzhi’(The CPC and the State Council Notice on Comprehensive
Implementation of Rural Village Affairs Opening and Democratic Management System) 18 April 1998, available
at < http://www.pkulaw.cn/fulltext_form.aspx?Gid=20209> accessed 24 September 2017.
13
 Meyers, T and Steckman, L (2014) ‘Financial Transparency and Disclosure’ (7) Journal of International Business
Ethics 3.
14
 WTO, Protocol on the Accession of the People’s Republic of China, WT/L//432, Nov. 23, 2001, Sec. 2 (C),
para. 1 of Part 1.
218 JCL 12:2
 xianchu zhang

law enforcement.15 China also agreed to establish or designate an enquiry point where,
upon request of any individual, enterprise or WTO Member all information relating to
the measures required to be published under its commitment may be obtained in a timely
manner.16 In this regard, China further confirmed that none of the information required
by the WTO Agreements or the Accession Protocol to be disclosed would be withheld on
the ground that it was ‘confidential’ information except for those reasons identified in the
Protocol or unless it would demonstrably prejudice the legitimate commercial interests of
particular enterprises, public or private. 17
Within a relatively short period of time, the unfolding approach to transparency
was further expanded, spreading from rural to urban areas as part of the promotion of
state-owned enterprises (SOEs) reform. On June 3, 2002, the CPC and the State Council
promulgated the Notice on Implementation of ‘Factory Affairs Opening’ in SOEs,
Collective Enterprises and Enterprises under Their Control. According to the Notice, any
decision that was neither publicized nor discussed by the workers assembly should be
rendered as void.18 Within one year, such opened management was expanded to more
than 250,000 enterprises, including both public and private firms.19
Although China’s market reforms did raise strong transparency demands and resulted
in some positive developments, as noted by some experts this progress still leaves China
short of meeting the legal requirements of the WTO, particularly on transparency. In a
very real sense this difficulty reflects a mismatch between international standards and
China’s embedded political, historical and cultural traditions.20 In this regard, it should
be noted that in terms of institutional capacity building in China disclosure (gongkai)
and transparency (toumingdu) are not exactly the same with the former more subject to
internal willingness whereas the latter being more governed by institutional mandates and
accountability. As such China will be tested in the years to come by its painful institutional
modernization not only economically and legally, but also politically, in particular in
respect of adapting the Party-State’s approach to governing an increasingly independent,
informed, and economically diverse society.21
Indeed, transparency has become a crucial measurement of China’s rule of law and
market economy development and a real challenge to the Party-State regime in many
aspects. Although some encouraging progress has been made, this apparently still falls
short of social demands and market expectations, at both domestic and international levels.

15
 Ibid para. 2.
16
 Ibid para. 3.
17
 WTO, Report of the Working Party on the Accession of China, WT/ACC/CHN 49, Oct. 1, 2001, para. 333.
18
 Art. 3 of the Notice. CPC and the State Council (2002), ‘Guanyu zai Guoyou Qiye, Jiti Qiye Jiqi Konggu Qiye
Shenru Shixing Changwu Gongkai Zhidu de Tongzhi’(The CPC and the State Council Notice on Implementation
of Factory Affairs Opening in Soes, Collective Enterprises and Enterprises under Their Control) 3 June 2002,
available at http://www.gov.cn/gongbao/content/2002/content_61564.htm accessed August 18 2017.
19
 Liu, W (2011) ‘Approaching Democracy through Transparency: A Comparative Law Study on Chinese
Open Government Information’ (26) American University International Law Review 983 at 985-6.
20
 Ostry, S (1998) ‘China and the WTO: The Transparency Issue’ (3) Journal of UCLA International Law & Foreign
Affairs 1.
21
 Halverson, K (2004) ‘China’s WTO Accession: Economic, Legal, and Political Implications’ (27) Boston
College International & Comparative Law 319.
JCL 12:2 219
Transparency Challenge to China’s Socialist Market Economy

PARALLEL DEVELOPMENTS

Since China’s accession to the WTO, the processes of transplantation and implementation
of transparency as a legal institution and a governance value into China have posed
in serious challenges to the Party-State regime in many respects and with profound
implications. As a result, parallel developments can be observed in the struggling course
of further reform and the resistance of authoritarian political control.
On the one hand, the Party-State has made serious efforts to improve transparency
within China. In January 2007, the State Council promulgated the Provisions on
Government Information Opening (‘the 2007 Provisions’) which set out the ‘;principle of
openness as the principle with non-disclosure as an exception’ (yi gongkai wei yuanze, bu
gongkai wei liwai yuanze) 22 and mandated governments at all levels to take the initiative and
to make government information known to the public in a timely and accurate manner.
Such information would include material on very important issues including national
economic and social development, financial budgets, government procurement, major
construction projects, emergency situations and their handling, and inspection reports
on environment protection, public health, working safety, and quality of products and
foods.23 The Provisions further permitted citizens, legal persons or other organizations
to obtain information by way of application to the relevant state organs.24 The CPC and
the State Council jointly issued Opinions on Deepening Political Affairs Opening and
Enhancing Government Services on June 8, 2011 (‘the 2011 Opinions’) where ‘openness as
the principle with nondisclosure as an exception’ was explicitly reaffirmed in a push for
transparency improvement.25
The further round of comprehensive reform initiated under the new leadership of
Xi Jinping in late 2012 has included establishment of fair, open and transparent market
rules with ‘negative lists’ which refer to explicitly setting out the legal boundary for the
government non-disclosure exceptions, and a new open economic system in the reform
blueprint.26 Later the CPC further adopted its Decisions on Major Issues Concerning
Comprehensively Moving Governing the Country According to the Law Forward on
October 30, 2014 (‘the 2014 Decisions’) with a clear mandate to comprehensively promote
opening of government affairs under the ‘principle of openness as the normal and non-
disclosure as an exception’ (yi gongkai wei changtai, bu gongkai wei liewai yuanze ).27
As the latest efforts of the Party-State to deal with transparency, the Opinions on
Comprehensively Promoting Government Affairs Opening was adopted in February 2016
(‘2016 Opinions’). The Opinions stated that transparency as a basic feature of a government
under the rule of law was of importance to improve the standards of democratic politics,

22
 ‘Guowuyuan Fazhiban Fuzeren Jiu Zhengfu Xinxi Gongkai Tiaoli Da Jizhewen’ (Statement of the News
Conference of the Legislative Office of the State Council) April 24, 2007, available at: <http://www.gov.cn/
jrzg/2007-04/24/content_594560.htm> accessed 19 July 2017.
23
 Arts. 6 and 10 of the Provisions of 2007.
24
 Ibid Art. 20.
25
 Sec. 2 of the Opinions of 2011.
26
 Secs. 3 and 7 of the CPC Decisions on Certain Major Issues Concerning Comprehensively Deepening
the Reform, China Daily, November 16 2013, available at: < http://www.china.org.cn/china/third_plenary_
session/2013-11/16/content_30620736.htm> accessed 19 July 2017.
27
 Sec. 3 (6) of the Decisions of 2014.
220 JCL 12:2
 xianchu zhang

Party-State governance and its credibility (gongxinli). 28 The State Council further
promulgated Detailed Rules to Implement Opinions on Comprehensively Advancing
Government Openness on November 10, 2016 (‘the 2016 Rules’) with the promise to further
improve government transparency by ‘five openings’, namely openness in governmental
decision-making, execution, administration, service, and results.
On the international level, transparency as a key concern has never moved far away from
monitoring of China’s compliance with its WTO commitments. For example, transparency
has been a focal point since China’s first transitional review in 2002 in the WTO and its
first trade policy review in 2006. The recent two trade policy reviews conducted in the
WTO in 2014 and 2016 continued to identify the need for China to further improve its
transparency in some important trade areas, such as updating its subsidies notification to
the WTO and improving information disclosure on economic measures adopted by the
local governments.29 Moreover, some bilateral platforms have been established to discuss
economic issues between China and its major trade partners, such as the US,30 EU,31 United
Kingdom (UK), 32 France, 33 and Japan,34 and thereby to serve as channels for the parties
to press for more progress. For instance, the 2008 China-US Strategic Economic Dialogue
made China agree to release drafts of all economic laws and regulations for 30-day public
comment periods and in 2011 the Chinese Government further pledged to turn the above
transparency commitments into domestic regulations.35
All the efforts thus far have indeed led to some impressive progress. The Central
Government established a platform for government information opening in 2015 where
the annual reports of the State Council and all the ministries post 2009 have been made
available.36 All the provincial governments have quickly followed suit. According to the
latest domestic assessment on government affairs openness in terms of individual ministries
and provincial governments, almost all these bodies have published their powers exercise
list and budget information and their implementation.37 Other areas considered in the
assessment include information disclosure and transparency on government regulation,
financial affairs, approval procedures, environment protection, and annual reports. As
compared with the standards of earlier reports, notable progress has been made.38

28
 Preface and Sec. 16 of the Opinions of 2016.
29
 WTO (2014) ‘Trade Policy Review: China 2014, Executive Report’ (WT/TPR/S/300.China), available at: <
https://www.wto.org/english/tratop_e/tpr_e/s300_e.pdf> accessed 19 July 2017; and WTO (2016) ‘Trade policy
review - China - Minutes of the Meeting’ (WT/TPR/M/342/Add.1), October 28, 2016.
30
 The US and China Strategic Economic Dialogue.
31
 The EU-China Economic and Financial Dialogue was established
32
 UK- China Economic and Financial Dialogue.
33
 China-France High Level Economic and Financial Dialogue.
34
 China-Japan Finance Dialogue.
35
 Baruffi, F (2011) ‘Transparency in China: A Work in Progress’ China Business Review, July-September 2011,
at 53, available at: < https://law.yale.edu/system/files/documents/pdf/images/IntellectualLife/USCBC_China_
Business_Review_Baruffi_Transparency_in_China_-_A_Work_in_Progress_Jul-Sep_2011.pdf > accessed 19
July 2017.
36
 Available at: <http://www.gov.cn/zhuanti/2015zfxinxigongkaibaogao/index.htm> accessed 19 July 2017.
37
 Some examples of such exercise of powers lists published by the local governments can be found at <
http://www.zjzwfw.gov.cn/col/col52673/index.html> as the list of Zhejiang Province; <http://www.shenyang.
gov.cn/zwgk/zdlyxxgk/xzqlqd/szbmqzqd/index.shtml> as the list of Shenyang City as the Capital of Liaoning
Province; and http://www.bjgtj.gov.cn/col/co11912/index.html> as the list of the Bureau of State Land Resource
of Beijing City. Accessed 29 September 2017.
38
 Law Institute of the Academy of Social Science of China (2016) Zhongguo Zhengfu Toumingdu Zhishu Baogao
(2015) (Report of Transparency Index of the Chinese Governments (2015) Social Science Academy Press.
JCL 12:2 221
Transparency Challenge to China’s Socialist Market Economy

Although these good efforts and the progress made indeed have earned some
appreciation,39 transparency in China as an institution is still in its early, developing
stage. It faces difficult political obstacles. As noted by some experts, thus far virtually all
information disclosure has been made on merely a voluntary basis by the government.
What information should be disclosed at what degree will still be a discretionary exercised
by Party-State officials, rather than a legal duty for promoting accountability. As a result,
many government information platforms have become little more than ‘zombie’ websites
with empty documents and outdated information. On many occasions, information
was not disclosed until pressure was imposed and even then the information was often
inaccurate.40 According to the Blue Paper on Rule of Law in China published by the Social
Sciences Academy of China on an annual basis, in 2014 only one ninth of the government
departments met the basic transparency requirements, with some even offering no
information at all.41 In the latest annual survey of local government financial transparency
by Shanghai Jiaotong University only two of 31 provincial governments were found to
have reached the passing line, with the overall situation being at ‘a low level without any
breakthrough progress’. 42
The Center for Public Participation Studies and Supports (CPPSS) of Peking University
produced the same findings in their annual survey. 43 By 2015, none of the government
organs at either central or local levels scored above 60 points out of 100 in all aspects
surveyed, including infrastructural facilities, opening initiative, disclosure upon enquiries,
supervision and remedies. The survey showed that in general, the lower the level of the
administrative body, the poorer of the general performance. The survey ended with
the conclusion that thus far government openness had not yet become a ‘new normal’
and ‘sunlight as the best disinfectant’ had so far failed to shine into every corner of the
government administration.44
As far as the market economy, particularly as it affects foreign investors, is concerned,
the transparency problems are principally reflected in three areas, namely legislative
transparency, enforcement transparency and policy transparency.
With respect to the area of law making transparency, the publication of trade and
economic regulations, regardless of whether we give these abroad or a narrow definition,
on the website of the Legislative Affairs Office of the State Council has been found to
be inconsistent with what had been promised. Thus, less than one half such regulations
issued in the period April 2010 to March 2011 were posted for public comment and only

39
 Shaw, N (2011) ‘Implementation of China’s 2007 Open Government Information Regulation’ (7) Hastings
Business Law Journal 169.
40
 Cai, E (2016) ‘Zhongguo Zhengwu Gongkai Zuida Zhang’ai Shi Lianquan Qingjie’ (The Biggest Obstacle of
Government Opening Is the Mentality to Long for Power) Lianhe Zaobao (Singapore), May 10, 2016, available at:
<http://news.stnn.cc/hwmtkzg/2016/0510/313769.shtml> accessed 19 July 2017.
41
 Law Institute of the Academy of Social Science of China (2014) Zhongguo Zhengfu Toumingdu Zhishu Baogao
(2014) (Report of Transparency Index of the Chinese Governments 2014) Social Science Academy Press.
42
 Report (2016) ‘2016 Zhongguo Caizheng Toumingdu Paihangbang Jin Liangshengfen Jige’ (The Rank of
China’s Financial Transparency: Only Two Provinces Passed) The Beijing News, November 27 2016, available at:
< http://epaper.bjnews.com.cn/html/2016-11/27/content_661787.htm> accessed 19 July 2017.
43
 The Public Participation, Research and Support Center of Peking University (2015) ‘Zhongguo Xingzheng
Toumingdu Guancha Baogao’ (China Administrative Transparency Observation Report (2014-15), September
2015, available at: <http://ogi.cppss.org/a/gb2312/news/20150930/1404.html> accessed 19 July 2017.
44
 Ibid
222 JCL 12:2
 xianchu zhang

a small number of these were posted for a full 30 days.45 According to the 2015 Report of
the US-China Business Council on China’s regulatory transparency, implementation of
all relevant government provisions and pledges failed to fully meet promised standards
of transparency. In 2014 and 2015 only three of nine national laws were posted for public
comment and the State Council itself posted a mere 30% of its broadly defined regulations
on its website for public comment. All of the government agencies monitored by the US-
China Business Council showed also a poor record of compliance with state provisions on
government affairs opening.46
Even worse, some of the new laws and regulations promulgated in recent years have
not only merely papered over the deep concerns, but also fuelled more controversies. The
amendments to the Law on Guarding State Secrets in 2010 added some standards for
identifying and handling classified information and delineated governmental authority
to determine the secret classification; and at the same time the Law expanded its coverage
to include telecommunication areas and significantly detailed criminal offences. The
amendments and subsequent implementation rules adopted by the State Secrecy Bureau
in 2014, clarify neither the state secrets classifications themselves, nor the broad range of
information that can be covered by the State Secrets Law.
The vagueness and confusion in the legal position have been further intensified by
some of the regulations issued by the lower-level bodies operating under the authority of
the State Council. For instance, the State-owned Assets Supervision and Administration
Commission (SASAC) promulgated the Interim Provisions on Protection of Trade Secrets
of Enterprises Directly Controlled by the Central Government (‘the Central enterprises’)
(Zhong-Yang Qiye Shangye Mimi Baohu Zhanxing Guiding）where it is explicitly
stipulated that ‘operational and technical information shall be protected as state secrets in
accordance with the law if they were classified as state secrets47 and some trade secrets of
these central enterprises may become state secrets if the scope of sate secrets is broadened
by the authorities. 48 Art. 10 of the Provisions set out the scope of trade information subject
to this legal protection to include business operational information, such as strategic
planning, management methods, business model, restructuring and listing, mergers and
reorganizations, property trades, financial information, investment and finance, product
procurement strategy, resources reserves, customer information, bidding information, etc.;
and technical information including designs, procedures, product formulae, production
processes, production methods, technical know-how, etc. Art. 12 further empowers these
central enterprises to introduce their own secrets classifications. As such, the Provisions not
only provide for a more formalized administrative structure for an unlevel playing field in
favour of these enterprises with their internal classification powers, but also significantly
increases the risks facing foreign and private firms while dealing and competing with
these giant SOEs.49

45
 Baruffi, supra note 35, at 54-55.
46
 The US-China Business Council (2015) ‘China 2015 Regulatory Transparency Scorecard (Executive
Summary)’ available at: <https://www.uschina.org/reports/china-2015-regulatory-transparency-scorecard>
accessed 19 July 2017.
47
 Art. 3 of the Interim Provisions.
48
 Ibid Art. 11.
49
 Silk, MA (2010) Testimony before the U.S.- China Economic and Security Review Commission Hearing on
“China’s Information Control Practices and the Implications for the United States” on June 30, 2010, at 5-6,
available at: <http://www.uscc.gov/sites/default/files/6.30.10Silk_0.pdf> accessed 19 July 2017; and Silk, MA and
JCL 12:2 223
Transparency Challenge to China’s Socialist Market Economy

Certain regulations have also triggered international disquiet. For instance, the
Provisions on Enhancing Management of Security and Archives Relating to Overseas
Securities Issuing and Listing jointly issued by China Securities Regulatory Commission
(CSRC), the State Secrecy Bureau and the National Archives and Records Administration
on October 20, 2009 prohibits any working papers in the course of issuing and listing
from being sent to outside China.50 The rule has been relied on by several overseas listed
Chinese companies and their auditing firms to refuse to disclose necessary information
required by the laws of their listing markets on the ground of state secrets leading to
conflict of law litigations thus far in the US,51 Hong Kong52 and Singapore. 53 In all these
legal proceedings, the courts unanimously rejected the defendants’ arguments based on
‘state secrets’ and ordered them to disclose the auditing papers. Eventually the CSRC
reached a deal with the Securities and Exchange Commission of the US (SEC) to allow
mutual assistance and the exchange of information.54 Apparently what was problematic in
this context was not just the securities rules, but also the inconsistencies between China’s
‘socialist market economy’ and ‘market capitalism’. It would seem best to conclude from
the handling of this case that if certain state controlled firms cannot comply with the
disclosure rules of the securities market, then they should not seek public issuing and
listing in the first place, otherwise the game is not fair to market investors.
In terms of enforcement of transparency requirements, China’s inconsistent
enforcement criterion and uneven approach have been long complained about by foreign
investors. In anti-monopoly law enforcement, for example, foreign multinationals have
been targeted disproportionally as compared with the actions taken against domestic
firms, particularly SOEs. 55
The risks of inconsistent enforcement are well illustrated in the 2008 Rio Tinto case,
where four employees of the Australian mining conglomerate were arrested and charged
for stealing state secrets in China—with potential punishment up to the death penalty—
after they obtained some sensitive information during their price negotiations with the
Chinese Iron and Steel Association by way of corruptive measures. The charge was
reduced to the lesser crime of stealing corporate secrets and commercial bribery only after
the accusation had shocked the international community.56 Even after the trial, the Rio
Tinto’s CEO stated that he still did not really understand what constituted a commercial

Ashley JS (2011) ‘Understanding of China State Secrets Laws’ China Business Review, January 1, 2011, available
at: <http://www.chinabusinessreview.com/understanding-chinas-state-secrets-laws/> accessed 19 July 2017.
50
 Art. 6 of the Provisions.
51
 Rapoport, M (2015) ‘SEC, Big Four Accounting Firms in China Settle Dispute: Deal Over Refusal to Turn
Over Audit Documents Lifts Threat of Suspension’ The Wall Street Journal, February 6, 2015 available at: < http://
online.wsj.com/articles/sec-big-four-accounting-firms-in-china-settle-dispute-1423237083?mod=asia_home>
accessed 19 July 2017.
52
 The Securities and Futures Commission v. Ernst & Young, HCMP 1818/2012.
53
 PricewaterhouseCoopers LLP and Others v Celestial Nutrifoods Ltd (in compulsory liquidation), Court of Appeal of
Singapore, [2015] SGCA 20.
54
 Report (2015) ‘Reaching a Deal on China Audits’ GAA Accounting (The Journal of the Global Accounting
Alliance), April 14, 2015.
55
 2017 White Paper of American Chamber of Commerce in China released on April 18, 2017 where lack of
transparency in inconsistent regulation and unclear laws was listed as the top business challenge encountered
by its members for the second year in a row. Available at: https://www.amchamchina.org/policy-advocacy/
white-paper/ accessed 26 July 2017; and Mitchell, Y (2014) ‘China’s Antitrust Fines for Foreign Car Companies
Fail to Stall Growth’ Financial Times, November 3, 2014.
56
 Lynch, E (2010) ‘The Rio Tinto in China: A Miscalculation about Rule of Law?’ Asia Pacific, April 2010.
224 JCL 12:2
 xianchu zhang

secret in China.57 Xue Feng’s conviction for stealing state secrets is another telling example.
Mr Xue, a PhD candidate at Chicago University in geology obtained various information,
including a database of exploratory well sites in China, from his former classmates who
worked for SOEs, for an American company as his employer. In his conviction of stealing
state secrets, the People’s Court rejected his arguments that the information was not
sensitive with some even being located outside China and the information was not treated
as confidential by the petroleum industry anywhere in the world.58 As some scholars have
observed, the Xue case shows that ‘there was no meaningful way to clarify the line between
common commercial information and state secrets’59 and also that ‘the game can change
quickly.’60 These enactments and cases have also been criticized for violation of the spirit
and principles of the WTO in using criminal prosecution to protect the central enterprises
and give the latter unfair advantage in the market.61
In addition to the formal rule-making and enforcement processes, the attacks of
sudden policy change without any warning or consultation have become a very negative
phenomenon in recent years. They are referred to as ‘the cock crows at the midnight,
(banye jijiao)’ characterising various government policies on taxation, real market control,
securities market administration, transportation, and haze handling that are announced
one evening, and then become effective the next day morning. The uncertainties of this
practice have not only led to a great deal of public anger, but negatively impacted on
market stability and confidence. Recently, the Communist Party’s official newspaper,
quoting an authority, in effect admitted the harm caused by this approach and promised
not to continue with it.62

INSTITUTIONAL GAPS

Thus far transparency as a central legitimizing emblem for international trade and
governance has been studied from different aspects, such as the ‘transparency turn’
namely, the proliferation of transparency as a global norm,63 the evolution of transparency
from right to know to government accountability, and pressure from and cooperation with
civil society to enable greater public participation.64 As such, at least two distinct functions

57
 Maiden, M (2010) ‘Just What Is a Chinese Commercial Secret Remains a Secret’ The Sydney Morning Herald,
April 17, 2010.
58
 Herbert Smith Freehills LLP, (2010) ‘The Xue Feng Case: PRC State Secretes, Intelligence and Commercial
Information in Mainland China’ Lexology, September 21, 2010, available at:< https://www.lexology.com/library/
detail.aspx?g=dbf0d35b-a12e-4e6c-a1ee-1c2b15334f24> accessed 18 August 2017; and Areddy, J (2010) ‘China’s
Culture of Secrecy Brands Research as Spying’ The Wall Street Journal, December 1, 2010.
59
 Cohen, JA (2010) ‘How China Handles “State Secrets” Prosecutions: Xue Feng’s Case’ US-Asia Law
Institute, July 19, 2010, available at: <http://www.asasialaw.org/?p=3851> accessed 20 July 2017.
60
 McLean, F (2010) ‘Economic Crimes and Punishment in China’ Escape From America Magazine (EFAM),
August 17, 2010.
61
 Jernudd, SU (2011) ‘China, State Secrets, and the Case of Xue Feng: The Implication for International Trade’
12 Chicago Journal of International Law 209.
62
 ‘Interview with An Authority: No More “the Cock Crows at Midnight” ’ People’s Daily, May 9 (in Chinese).
63
 Peters, A (2013) ‘Towards Transparency as a Global Norm’ in Bianchi, A and Peters, A (eds) (2013) Transparency
in International Law Cambridge University Press 534-607.
64
 Fund, A; Graham, M and Weil, D (2007) Full Disclosure: The Perils and Promises of Transparency Cambridge
University Press.
JCL 12:2 225
Transparency Challenge to China’s Socialist Market Economy

of transparency are identified for its contribution to democracy and better functioning of
the market.65
To a large extent the problems highlighted in China above may be primarily attributed
to the defects of the current regulatory framework. For instance, the 2007 Provisions are
administrative norms rather than a national law and as such have suffered from its low
legal normative rank, vulnerable to refusals and offering only vague legal remedies.66 The
policy and decisions adopted by the Party-State mentioned above, most of them in the
form of Opinions (Yijian) are more of the nature of political pledges than genuine legal
norms with real enforceability. As a result, despite the rapid increase of public requests for
information disclosure in recent years, the governmental disclosure rate has just reached
about 60 percent, leaving many dissatisfied demands.67
Such a situation of the limited willingness of the Party-State to disclose important
information in a general spirit of resistance to governance transparency is also manifested
in judicial practice. Thus far there are a number of studies and reports consistently showing
that since the implementation of the 2007 Provisions the success rate of private parties in
petitioning the court for disclosure of information against defendant government branches
has been low, at just 10 to 20 percent. 68 Moreover, in certain provinces, the government
even won all the cases brought against them.69 The results have been partially attributed
to the defects of the 2007 Provisions, with its narrow understanding of opening, the
restrictions they place on both petition and petitioners, the wide-range of governmental
discretion they permit, and the limited legal remedies which they offer.70
These, however, are basically technical obstacles which are perhaps to be seen as less
fundamentally worrying than the general approach of the Party-State to limit transparency
in order to protect the safety of the entire regime. Art. 8 of the 2007 Provisions stipulates
that government administrative bodies shall not disclose any information that endangers
national, public and economic safety and also social stability, which have been widely

65
 Buijze, A (2013) ‘The Six Faces of Transparency’ (9) Utrecht Law Review 8.
66
 Rana, R (2015) ‘China’s Information Disclosure Initiative: Assessing the Reforms’ (51) China Report 129.
67
 Horsley, JP (2016) ‘China’s FOIA Turns Eight’ The Global Network of Freedom of Information Advocates, 28 April
2016, available at: <http://www.freedominfo.org/2016/04/chinas-foia-turns-eight/> accessed 20 July 2017.
68
 Ni, H (2009) ‘Annual Investigation Report of Petitions for Information Opening through Legal Proceedings’
(No. 4 of 2009) Xingzheng Faxue Yanjiu (Administrative Law Studies) 52 (Among 40 cases collected, the wining
rate of the petitioners was just 20 percent with 11 court dismissals and inactions); Zhao, Z (2013) ‘Human Rights
Protection by way of the Implementation of the Provisions on Government Information Opening’ (June 2013)
Renquan Zazhi (Human Rights) 35 (In 172 information petition cases in 2011 and 2012, the government full
disclosures were less than 18); Shen, C (2014) ‘An Observation of the Current Legal Proceedings for Government
Information Opening’ (No. 2 of 2014) Sichuan Xingzheng Xueyuan Xuebao (Journal of Xichuang Administrative
College) 57 (In 28 petitions collected in 2013 the court ordered information disclosure in only four cases); Report
(2014) ‘Replies Reached More Than 50 Percent to 260000 Information Requests Nationwide’ Zhongguo Qingnian
Bao (China Youth Daily) 1 May 2014 (The petitions were granted in 240 of 3175 cases); and Report (2015) ‘How
High is the Wining Rate of Information Opening Litigations against the Government’ Nanfang Ribao (Southern
Daily) 24 January 2015 (In 2013 and 2014 the wining rate of the petitioners in Guangdong was 10 and 12 percent
respectively); in Horsley, supra note 64 (In Tianjin as a municipality directly under the Central government, the
success rate of disclosure requests was nearly 15 percent.)
69
 Gong, S (2016) ‘China’s Sorrow of “(Government) Zero Loss”’ BBC (Chinese Website) 20 January 2016 (in 2015
Shanghai and Sichuan government were reported to lose no case.)
70
 Tan, Y (2014) ‘Transparency without Democracy: The Unexpected Effects of China’s Environmental
Disclosure Policy’ (27) Governance 37; Fletcher, O (2008) ‘China’s Transparency Is Just Thin’ Asia Times 12
September 2008; and Piotrowski, SJ; Zhang, Y; Lin, W and Yu, W (2009) ‘Key Issues for Implementation of
Chinese Open Government Information Regulations’ (69) Public Administration Review 129.
226 JCL 12:2
 xianchu zhang

referred to as ‘Three Securities and One Stability’ (‘San’an Yiwen’). In judicial practice
when such political sensitivity is involved, the courts may simply dismiss the parties’
petition for information disclosure without any justification or discussion.71 Art. 14 further
mandates all the state organs to establish and improve an examination system with relevant
procedures and liability so to ensure that clearance of any information to be disclosed is
consistent with the provisions of the Law on Guarding State Secrets and is carried out in
coordination with other relevant state authorities. Further, without any clear definitions
and limitations of authority, Art. 21 empowers the government to deny any disclosure
request on the ground of confidentiality and Art. 35 (5) even subjects officials who disclose
information that should not be disclosed to the possibility of criminal penalties. As such,
the 2007 Provisions in fact has been used by the government in numerous occasions
as a legal shield to protect refusal to disclose information. These incidents include the
attempt to reveal or access to the information concerning the poor quality of building
construction in the aftermath of the Sichuan earthquake,72 inferior quality of medical
instruments,73 operation of the compensation fund for the milk diary scandal victims in
2008,74 family planning measures,75 drunk driving by officials,76 amusement park accident
investigation,77 a sexual slavery case,78 land taking decisions,79 national soil pollution
data, the legal basis of the civil aviation development fund,80 marking of college entrance
examinations,81 administrative power division in the area of tobacco controls,82 the grounds

71
 Yu, L (2014) ‘Zhengfu Xinxi Gongkai de Ruogan Wenti—Jiyu 315 Qi Anjian de Fenxi (Certain Issues
Concerning Government Information Opening – An Analysis Based on 315 Cases) 26 Peking University Law
Journal 919.
72
 Report (2009) ‘Jie Doufuzha Gongcheng Pan ‘Feifa Chiyou Guojia Jimizui (Mr. Huang Qi Was Sentenced
for Three Years Imprisonment for Illegally Having National Secret for Revealing Jerry-build Projects)
Pingguo Ribao (Appel Daily), November 24, 2009, available at: < http://hk.apple.nextmedia.com/international/
art/20091124/13452794> accessed 22 July 2017
73
 Cai, H (2010) ‘Guojia Jimi Choulongji’ (The Story of “State Secret”) Southern Weekly, November 19, 2010.
74
 Shu, S (2011) ‘Sanjuqing’an Peichang Jijin Zacheng “Guojia Jimi?”’ (How Could Compensation Fund for
Melamine Diary Case become national secret?) Jinan Ribao (Jinan Daily), May 17, 2011.
75
 Ma, J (2012) ‘Jihua Shengyu Weishenme Shi Guojia Jimi? (Why Is Family Planning A State Secret?)’ China
Video Report, June 11, 2012，available at: <http://videolike.org/view/yt=IhtpIa;iLyv> accessed 22 July 2017.
76
 Report (2012) ‘Shenzhen Guanyuan Zuijia Mian Xingze, Fayuan Cheng’an She Guojia Jimi’ (Drunk Driving
Immune from Criminal Liability with Judicial Decision on State Secret), Zhongguo Qingnian Bao (China Youth
Daily), June 19, 2012.
77
 Report (2011) ‘Jidong Youxi Shangwang Shiwu Diaocha Lie Guojia Jimi (Investigation of Fatal Mobile Game
Accident Is Listed State Secret)’ Ziyou Yazhou Diantai (Radio of Free Asia), December 7, 2011, available at: <http://
www.rfa.org/cantonese/features/hottopic/feature_china_trial-12072011131406.html> accessed 22 July 2017.
78
 Report (2011) ‘Luoyang Xingnu An “Guojia Jimi” Youcheng Dangjianpai (Ina Sexual Slavery Case ‘State
Secret’ again Becomes A Shield)’, Zhongguo Pinglun Xinwenwang (China News Comment), September 25, 2011,
available at: <http://hk.crntt.com/doc/1018/4/7/0/101847033.html?coluid=7&kindid=0&docid=101847033>
accessed 22 July 2017.
79
 Report (2012) ‘Chaiqian Zhengdi Xinxi Shu “Guojia Jimi”? Chengdu Taipingcun Nongmin Zaigao
Quzhengfu’ (Information of Land Taking Became State Secret? Chengdu Farmers Sued the District Government
again) Ziyou Yazhou Diantai (Radio of Free Asia), July 4, 2012, available at: <http://www.rfa.org/mandarin/
yataibaodao/hc-07042012161357.html> accessed 22 July 2017.
80
 Report (2014) ‘Zhengfu Bumen lvju Xinxi Gongkai “Guojia Jimi” Cheng Shangfang Baojian’ (Government
Departments Repeatedly Refused to Information Disclosure with State Secret as An Imperial Sword) Da Kung
Wang (Hong Kong), May 9, 2014, available at: <http://news.takungpao.com.hk/mainland/focus/2014-05/2467099.
html> accessed 22 July 2017.
81
 Report (2016) ‘Hubei Jiuming Kaosheng Shenqing Pingjuan Xinxi Gongkai Zaoju, Zhuanggao Kaoshiyuan’
(Request of Nine Students for Disclosing Marking Information Was Denied and A Lawsuit Has Been Filed
against the Examination Bureau) Wuhan Wanbao (Wuhan Evening News), April 1, 2016.
82
 Report (2015) ‘Zhiyuanzhe Yaoqiu Kongyan Xinxi Gongkai, Kan Gezhengfu Bumen Qipa Dafu’
JCL 12:2 227
Transparency Challenge to China’s Socialist Market Economy

for governmental adjustment of gasoline prices,83 and an internal letter of the Ministry of
Agriculture to the Ministry of Education banning transgenic oil use in schools.84 This list of
issues, which is by no means exhaustive, seems to indicate that in China, with its socialist
market economy—despite certain provisions and promotion of values encouraging
transparency—there is nothing in practice that may not be classified as a state secret. In line
with the priority policy of maintaining political and social stability, it has been observed
that the anti-corruption campaign of recent years has even—somewhat ironically—led to
less, not more, transparency in China’s enforcement and market regulation. 85
Apparently, the current system in China was designed at the very beginning rather
less for empowering and entitling citizens to access to the information with which they
had some concern, but more a means to fashion and legitimate Party-State governance.
According to the definition of transparency adopted by the Organization for Economic
Cooperation and Development (OECD), the notion of transparency includes regulatory
transparency as ‘the capacity of related entities to identify, understand and express
views on their obligations under the rule of law’ and information transparency such as
consultation with interested parties and exercise of controls on regulatory discretion
through transparent procedure. In this approach, transparency is understood in terms
of the relationships between state, market and society and in a more complex and far-
reaching sense than the original conception of it as a central demand by civil society for
promoting the basic value of openness and democratic organization of the state power.
86
In China thus far the issue of transparency has been virtually a one way street of the
exercise of administrative power and extensive use of discretion without either a clear
legal definition of transparency nor sufficient social participation and legal remedies.
Although the continuing efforts of the Party-State to promote greater transparency,
particularly the restriction on government power exercised by way of negative lists, which
specify the current restrictions on foreign investment under the state regulations should be
recognized, the tightening up of information control should also be noted. Since late 2013
President and CCP Party Secretary Xi Jinping has been the leader of the Central Leading
Group of Website Security and Informatization, and under his leadership since 2014
various national security measures have been introduced, such as the promulgation of the
2014 National Security Law, and these have elaborated the concept of ‘national security’
to include people’s security, political security, economic security, military security, culture

(Volunteers’ Request for Disclosure of Tobacco Control Information and the Weird Replies of Various
Government Departments) Jinri Toutiao (Today’s Headings), September 6, 2015, available at: <http://toutiao.com/
i6191361731333423618/> accessed 22 July 2017.
83
 ‘Fagaiwei Huifu: Chengpinyou Jiage Xingcheng Jizhi Shuyu Guojia Jimi (Reply of the State Commission of
the Development and Reform: Formulation of Gasoline Price Classified as National Secrete)’ Aika Qiche (Aika
Automobile Forum)，6 January 2016, available at: <http://www.xcar.com.cn/bbs/viewthread.php?tid=25932797
&showthread=2598015> accessed 22 July 2017.
84
 Report (2017) ‘Jingshan Shimin Su Nongyebu Zhi Jiaoyubu Mihan An Yiyue Jiuri Shangsu Beijing Gaoyuan’
(Residents of Beijing and Shanxi suing the Ministry of Agriculture on its Secret Letter to the Ministry of
Education Will Appeal to the High Court of Beijing on 9 January 2017) Club kdnet.net, 11 January 2017, available
at: <http://club.kdnet.net/dispbbs.asp?id=12067455&boardid=44> accessed 22 July 2017.
85
 Chow, D (2015) ‘How China’s Crackdown on Corruption Has Led to Less Transparency in the Enforcement
of China’s Anti-Bribery Laws’ (49) University of California, Davis 685.
86
 OECD ‘Regulatory Policies in OECD Countries from Investment to Regulatory Governance’, PUMA/RE6
(2001) 10, November 21, 2001, at 65.
228 JCL 12:2
 xianchu zhang

security, social security and international security.87 The enactment of the Cybersecurity
Law in 2016 These developments have not only introduced unclearly defined concepts
such as ‘basic infrastructure of key information’ (guanjian xinxi jichu sheshi) and ‘network
security level protection system’ (wangluo anquan dengji baohu zhidu), but also made foreign
companies responsible for providing the government with sensitive information about
network equipment and software; 88 as well as the creation of a national program to review
all domestic and foreign companies for key information products and services’ before they
are deemed safe to be sold or deployed in China’s market. 89 Moreover, the Party-State
has frozen legislative drafting of the Press Law for more than some twenty years, so that
little progress has been made since the 1980s on such issues as ‘press freedom’ when the
first draft was completed. In a recent news conference of the National People’s Congress
officials even refused to answer any questions about the legislation progress on this Law.90
In such an environment, any information disclosure may have to be subject to political
control to serve the needs of the Party-State, which has led to not only covering-up of
scandals and mass incidents, but also selective disclosure and data falsification. Such
practices have been harshly criticized for its violation of the fundamental legal principles
and procedures of information disclosure, and as manifesting an arbitrary attitude
on the part of the government which fails to respect citizens’ rights of knowledge and
supervision.91
They also have meant that the ‘professional independence’ of information dissemination
is compromised. In terms of economic transparency, the market statistics of the country
have failed to add up for a long time because of exaggerations made for political purposes
and difficulties in central-local relations. For example, despite the long-standing complaints
by many researchers and investors the discrepancies in the official GDP development
figures has continued to worsen—it is suggested that there is likely an overstatement of
GDP which has risen from RMB 1.97 trillion in 2009 to RMB 4.8 trillion in 2014 when
local and central figures are compared.92 As such, ‘Anyone close to China’s statistics-

87
 Art. 3 of the National Security Law 2015.
88
 Haour, G ‘Why China’s New Cybersecurity Law is Bad News to Business’ Fortune, 1 December 2016,
available at: <http://fortune.com/2016/12/01/china-cybersecurity-law-business/> accessed 22 July 2017; and
Wong, S and Martina, M ‘China adopts cyber security law in face of overseas opposition’ Reuters, 7 November
2016, available at: <http://www.reuters.com/article/us-china-parliament-cyber-idUSKBN132049> accessed 22
July 2017.
89
 Report (2016) ‘China Vows to Protect Information Security “Using All Means”’ Bloomberg News, 26 December
2016, available at: <https://www.bloomberg.com/news/articles/2016-12-27/china-vows-to-protect-information-
security-using-all-means> accessed 22 July 2017.
90
 Report (2016) ‘Jizhe Tiwen Xinwenfa Lifa Guanyuan Guzuoyou Eryanta Xuanbu Sanhui’ (Official Dismissed
the News Conference after a Question on the Press Law Was Raised) Ziyou Yazhou Diantai (Radio Free Asia),
11 March 2016, available at: <http://www.rfa.org/mandarin/yataibaodao/zhengzhi/ql1-03112016102744.html>
accessed 22 July 2017.
91
 Hassid, J (2015) ‘China’s Responsiveness to Internet Opinion: A Double-Edged Sword’ 44 Journal of Current
Chinese Affairs 39; Meng, B (2015) ‘Political Scandal at the End of Ideology? The Mediatized Politics of the Bo
Xilai Case’ 38 Media, Culture & Society 822 available at: <http://eprints.lse.ac.uk/64067/>; and Chow, supra note
82;
Pan, H ‘Information Disclosure with “the Cock Crowing at Midnight” Style Should be Stopped’, Beijing
Qingnian Bao (Beijing Youth Daily), April 21, 2016.
92
 Russell, C (2016) ‘Is There a Smart Way to Decipher Official Chinese Statistics?’, CKGSB Knowledge
(China Focused Leadership and Business Analysis), March 28, 2016, available at: <http://knowledge.ckgsb.edu.
cn/2016/03/28/chinese-economy/is-there-a-smart-way-to-decipher-official-china-statistics/> accessed 22 July
2017.
JCL 12:2 229
Transparency Challenge to China’s Socialist Market Economy

issuing process understands that the collection and analysis of data is uncorroborated,
non-transparent, inconsistent, incomplete, and always self-contradictory.’93 Although the
National Bureau of Statistics (NBS) has recently launched a campaign to deal with false
data, characterising it as ‘the most urgent political task’,94 experts point to the fact that the
NBS as a low rank bureau directly under the central leadership has very little independence
and authority over the statistics (and their publication) of provincial governments and
other state ministries. Such institutional defects may easily lead to data falsification95 and
have rendered China’s economic and market information unreliable as compared with
that of many other developed countries.96
A number of high level officials have openly admitted the extensive problems of
falsified economic data and information in government statistics. For instance, the top
statistician of China has explicitly acknowledged that there has been rampant falsification
in violation of the law, primarily for political reasons and also as an effect of the official
system of appraisal officials’ performance.97 Recently the governor of Liaoning Province
openly admitted that a double digit drops in provincial GDP growth in 2016 was in reality
caused by the falsification of data in the previous three years. To him, to report this truth
had to be done in the face of political pressures.98

FURTHER CHALLENGES

The brief discussion above demonstrates the difficulty of transparency practice in China
as a socialist market economy. The Chinese system differs from more conventional
market economies where improving market performance and efficiency is encouraged by
facilitating better informed decisions and public trust with higher quality of government
service and accountability.99 While it is the case that in recent years research has raised
some doubts about the functions and efficiency of transparency as an institution,100 the
majority of observers continue to hold to their firm belief that better transparency as part
of a system of good governance remains an important way to achieve market efficiency .101

93
 Statement of Anne Stevenson-Yang as the Co-Founder and Research Director of J Capital Research Co.
Ltd, cited from Benjamin Robertson, ‘Mainland China growth rates don’t add up’, South China Morning Post,
July 14, 2014, available at: < http://www.scmp.com/business/economy/article/1553600/mainland-china-growth-
rates-dont-add > accessed 22 July 2017.
94
 Report ‘The NBS: Prevention of Data Falsification Is the Most Urgent Political Task’ 21 Shiji Jingji Baodao (21st
Century Economic Herald), June 20, 2016.
95
 Holz, CA (2013) ‘The Quality of China’s GDP Statistics’, November 27, 2013; available at: <http://ssrn.com/
abstract=2362779> accessed 22 July 2017.
96
 Koch-Weser, in ‘The Reliability of China’s Economic Data: An Analysis of National Output’, U.S.-China
Economic and Security Review Commission Staff Research Project, January 28, 2013, available at: <http://www.
uscc.gov/sites/default/files/Research/TheReliabilityofChina’sEconomicData.pdf> accessed 22 July 2017.
97
 Report ‘China’s Statistics Chief Admits Some Economic Data Are False’, Financial Times, 8 December 2016,
available at: < https://www.ft.com/content/0361c1a4-bcfe-11e6-8b45-b8b81dd5d080> accessed 22 July 2017.
98
 Report, ‘The Governor of Liaoning Province: We Corrected Falsified Data under Political Pressure’,
Zhongguo Xinwen Wang (China News), 17 January 2017.
99
 Stiglitz, JE (2009) ‘Information and the Change in Paradigm in Economics’ in Stiglitz, JE (2009) Selected Works
of Joseph E. Stiglitz vol. 1 (Information and Economic Analysis) Oxford University Press 53; and Hancher, L et
al (2003) ‘Principles of Good Market Governance’ 4 Journal of Network Industries 355.
100
 Etzioni, A (2010) ‘Is Transparency the Best Disinfectant?’ 18 The Journal of Political Philosophy 1; and Fenster,
M (2015) ‘Transparency in Search of a Theory’ 8 European Journal of Social Theory 150.
101
 Grovitz, LG ‘Transparency is More Powerful than Regulation’ Wall Street Journal 30 March 2009; Schauer, F
(2011) ‘Transparency in Three Dimensions’ 2011 University of Illinois Law Review 1339.
230 JCL 12:2
 xianchu zhang

According to the Statement of the Asia Pacific Economic Cooperation (APEC) to

Implement its Transparency Standard, transparency is a basic principle underlying trade
liberalization and facilitation with removal of trade barriers. It enables members of the
public know better the laws, regulations and procedures affecting their interests and
participate in their development and request review of their application under domestic
law. The principle also covers the dissemination of macroeconomic policy data, which
encourages the accountability and integrity of financial and fiscal agencies, and provides
the public with necessary information about economic, financial and capital markets, and
also promotes capacity building towards greater economic openness.102
In contrast, the top priority of totalitarian governance in China has remained the
security and stability of the political regime, and this is to be safeguarded even at the cost
of the efficiency of the market and social justice. . This situation is affirmed by a series of
shocking incidents, such as the covering-up of the Sanlu Dairy scandal during the Olympic
Games in Beijing in 2008 despite the death of at least four children and the hospitalization
of more than 20,000 persons,103 the government dealing with the securities market crash
with all kinds of sudden administrative measures in 2015,104 and the manipulation of
economic data in the subsequent market downturn by means of political censorship.105
A recent study has shown that the distinction between the information component and
the political component of transparency is very important in China and that despite the
steady improvement in information supply, very little progress has been made in respect
of political transparency.106
In this regard, it should be noted that the transparency developments that have
been achieved relate mainly to the government/bureaucracy system, and are manifested
little in reaction to the CPC system. The CPC’s ‘party affairs opening up’ that has taken
place reflects a felt need for political and ideological control and in essence is a form of
propaganda intended to gain more consensus and obedience. Information about the
budget, spending, personnel affairs, and decision making of the CPC is still little known to
the public. Recently the heavy-handed campaign to tighten up ideological control in China
has posed further difficulties for transparency development, as the leadership now insists
that ‘the state media as the propaganda front must have the Party as their family name,
love the Party, protect the Party, and closely align themselves with the Party leadership in

102
 Leaders’ Statement to Implement APEC Transparency Standards, 27 October 2002, available at: < https://
www.apec.org/Meeting-Papers/Leaders-Declarations/2002/2002_aelm/statement_to_implement1.aspx>
accessed 24 July 2017.
103
 Veil, SR and Yang, A (2012) ‘Media Manipulation in the Sanlu Milk Contamination Crisis’ 38 Public Relation
Review 935; and Zhao, L and Lim, T (2008) ‘The Tainted Milk Formula Scandal: Another Hard Lesson for China’
East Asia Institute (EAI) Background Brief No. 406, September 2008.
104
 Kim, K (2015) ‘Chinese Securities Markets Do Not Matter’ Forbes ,1 October 2015.
105
 Comment (2016) ‘Why Is There Lack of Transparency in China’s Official Economic Data?’ New York
Times, 27 February 2016; and Xie, Y and Kuntz, P (2016) ‘China’s GDP Data Shows a Very Predictable Pattern’
Bloomberg, 13 April 2016, available at: <https://www.bloomberg.com/news/articles/2016-04-12/amid-chinese-
gdp-suspicions-a-very-predictable-pattern-emerges > accessed 24 July 2017.
106
 Williams, A (2012) ‘A Global Index of Information and Political Transparency’ Discussion Paper 14.07 of
Business School of University of Western Australia, at 32; the paper is available at: <http://www.business.uwa.edu.
au/__data/assets/pdf_file/0004/2478928/14-07-A-Global-Index-of-Information-and-Political-Transparency.pdf >
accessed 24 July 2017.
JCL 12:2 231
Transparency Challenge to China’s Socialist Market Economy

thought, politics and action.’107 Such statements are simply the latest reflection of the CPC’s
drive to control transparency so that it meets CPC defined political needs.
Moreover, the internal politics of the CPC may further complicate transparency
conditions in China. For instance, the internal disagreements of the CPC on how best
to deal with the economic downturn several years ago made economic transparency,
particularly in respect of policy direction and the counter-measures to be taken, the victim
of political uncertainties. After China entered into the phase of the so-called ‘new normal’
with a significant economic decline and potential crisis, so differing, or even contradictory,
messages have been sent out by various Party-State organs. Recently, the official media
has repeatedly published opinions of anonymous ‘persons of authority’ （quanwei reship)
with critical comments on the State Council’s policy on and handling of the economy,
which has inevitably led to significant market confusion. In May 2016, the People’s Daily
as the CPC’s mouthpiece published comments from an unidentified ‘authoritative’ figure
to warn that boosting growth by increasing leverage was like ‘growing a tree in the air’
and would lead to financial crisis, and in fact repudiated central government policy to
pump more credit into the market in order to maintain market stability and growth. This
accusation was quickly characterized as an open criticism of the State Council for the
measures it had taken to deal with economic slowdown.108 Some scholars have criticized
this anonymous practice for its violation of transparency principles and the basic political
need for openness.109
In this context, careful reading of the 2016 Opinions finds an interesting change from
the 2011 Opinions where the word ‘principle’ is used to mandate open government
information – in the 2016 document this is replaced by the word ‘normality’（changtai).
Since it has been long agreed that transparency is a core principle underpinning the rule
of law and good governance,110 such a change may well indicate regression because a
principle should ‘stand like a rock’111 whereas (according to Van Gogh) ‘Normality is
a paved road: It’s comfortable to walk on, but no flowers grow on it.’112 A recent study
convincingly pointed out that China’s turn towards transparency and open decision-
making may not be a stepping stone towards greater democracy but just a response to the
problems facing a regime whose survival is under threat.113
This situation has been very detrimental to the image of China and detracts from
its prestige as the second largest economy and primary destination of foreign direct

107
 Report (2016) ‘Xi Jinping Asks for “Absolute Loyalty” from Chinese State Media’ The Guardian, February
19, 2016.
108
 Xin, Z (2016) ‘China Heading for Big Economic Policy Shift, Says Mystery “Authoritative” Source in People’s
Daily’ South China Morning Post, March 9, 2016.
109
 Shi, J (2016) ‘Quanwei Renshi Yinggai Shuming Shenyan, Niming Bu Qiadang (Influential People Should
Be Cautious about Expressing Their Views, Anonymous Commentary Is Inappropriate)’ Duli Pinglun (The
Independent Review), May 15, 2016 available at: <http://www.duping.net/XHC/show.php?bbs=11&post=1357301>
accessed 24 July 2017.
110
 Fukuyama, F (2004) State-Building: Governance and World Order in the 21st Century Cornell University Press;
and Wolfe, R (2003) ‘Regulatory Transparency, Developing Countries and the WTO’ 2 World Trade Review 157.
111
 Thomas Jefferson, the original quotation is “In matters of principle, stand like a rock”, quoted from Goethal,
GR and Sorenson, GJ (ed) (2004) Encyclopedia of leadership Vol. 1 SAGE Publications at 766.
112
 Quoted from Eleanor Trend (2015) ‘Review: The Van Gogh Museum Amsterdam’ The Oxford Student
Newspaper, 22 January 2015, available at: <http://oxfordstudent.com/2015/01/22/review-the-van-gogh-museum-
amsterdam/> accessed 24 July 2017.
113
 Stromseth, JR; Malesky, EJ and Gueorguier, DD (2017) China Governance Puzzle: Enabling Transparency and
Participation in a Single-Party State Cambridge University Press at 10.
232 JCL 12:2
 xianchu zhang

investment as well as the largest foreign trade country worldwide. As pointed by Mr. Ben
Bernanke, a former Chairman of the Federal Reserve of the US, in both data transparency
and transparency about the rules of the market game, China has so far failed to meet
worldwide expectations for greater protection from interfereence in the economy and
significantly enhanced professional accuracy—expectations generated in large part by
China’s new role as a global financial and economic leader. As a result, improvement
of transparency condition in China has been at the top of the list of necessary reforms
demanded by foreign investors, scholars and government leaders.114
Moreover, transparency has a crucial role to play in the development of China’s
civil society. Transparency is a potentially powerful tool which so far has subjected the
Party-State to more and more pressure of public supervision and political accountability.
It has become an interesting stage for struggle—one where Party-State control and
resistance meet strong market and public demands for more openness, and where lurk
the challenges that will come from greater use of more sophisticated technology. It is the
potential revolutionary impact of the transparency empowerment that makes transparency
development in China so meaningful to the people of China and yet very challenging to
the Party-State.
Behind the transparency conditions in China today lie also the cultural challenges
that come with introducing transparency into China from the outside. As an institution
and value that originated in ‘Western’ notions of the rule of law, fair trade and good
governance, so transparency may not easily find its historical foundations in China—on
the contrary, there is resistance since it clashes with the norms of Chinese totalitarian
cultural and political tradition.115 In particular, governance and administration in that
tradition have been largely based on the notion of the rulers’ dominion, and with
accountability upwards to political superiors, rather than as serving the people and
society.116 This problem is one reason why leading international organizations’ urge China
to reform its approach of over-regulating market activities and failing to allow sufficient
transparency.117 Thus far experience has shown that in China it may be relatively easy
to secure surface compliance, but much more difficult for the concept and its practical
requirements to take root in China. In addition to this hurdle of China’s path dependence
and its difficuties with radical political struggling, it would be likely that real changes in
transparency understanding and practice will depend on broader internal institutional
developments in China, rather than foreign legal assistance programs or pressures. And
effective compliance and capacity-building will likely only be secured through a long
term process of development.118

114
 Bernanke, BS and Olson, P (2016) ‘China’s Transparency Challenges’ Brookings Institution Paper, March 8,
2016.
115
 Ostry, supra note 20; Potter, PB (2003) ‘Globalization and Economic Regulation in China: Selective
Adaptation of Globalized Norms and Practices’ 1 Washington University Global Studies Law Review 119; and
Mayeda, G (2005) ‘A Normative Perspective on Legal Harmonization: China’s Accession to the WTO’ 38
University of British Columbia Law Review 83.
116
 Jacobs, L and Potter,P (2006) ‘Selective Adaptation and Human Rights to Health in China’ 9 Health and
Human Rights 113.
117
 Bath, N (2008) ‘Reducing the Role of Government – The Chinese Experiment’ 3 Asian Journal of Comparative
Law 1.
118
 Clarke, DC (2003) ‘China’s Legal System and the WTO: Prospects for Compliance’ 2 Washington University
Global Studies Law Review 97.
JCL 12:2 233
Transparency Challenge to China’s Socialist Market Economy

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

changtai 常态 normality; the normal

cunwu gongkai 村务公开 village affairs opening

gongxinli 公信力 credibility

guanjian xinxi jichu sheshi 关键信息基础设施 basic infrastructure of key

information

Guanyu zai Nongcun Pubian 关于在农村普遍实行村务 Joint Notice on

Shixing Cunwu Gongkai he 公开和民主管理制度的通知 Comprehensive
Minzhu Guanli Zhidu deImplementation of Rural
Tongzhi ‘Village Affairs Opening’ and
Democratic Management
System

Guanyu zai Guoyou Qiye, 关于在国有企业、 Notice on Implementation

Jiti Qiye ji qi Konggu Qiye 集体企业及其控股企业深 of ‘Factory Affairs Opening’
Shenru Shixing Changwu 入实行厂务公开制度的通知 in SOEs, Collective
Gongkai Zhidu de Enterprises and Enterprises
Tongzhi under Their Control

quanwei renshi 权威人士 person of authority

San’an Yiwen 三安一稳 Three Securities and One

Stability

yi gongkai wei changtai, bu 以公开为常态, principle of ‘openness as

gongkai wei liewai yuanze 不公开为例外原则 the normal and non-
disclosure as an exception’.

yi gongkai wei yuanze, bu ‘以公开为原则，principle of openness as the

gongkai wei liwai yuanze 不公开为例外’原则principle with non-
disclosure as an exception

wangluo anquan dengji 网络安全等级保护制度 network security level

baohu zhidu protection system

Yijian 意见 Opinion

234 JCL 12:2

 xianchu zhang

Zhong-Yang Qiye Shangye 中央企业商业秘密保护 Guiding Interim Provisions

Mimi Baohu Zanxing 暂行规定 on Protection of Trade Secrets
of Enterprises Directly
Controlled by the Central
Government (‘the Central
enterprises’)

JCL 12:2 235

Taming the Right to Information

Taming the Right to Information:

Motive Screening and the Public
Interest Test under China’s
FOI-like Law
YONGXI CHEN *

INTRODUCTION

Promoting government accountability to the public is a core value common to freedom

of information (FOI) laws around the world.1 FOI law is primarily understood as an
empowering tool for the civil society, for it enables citizens to take over the initiative in
making government information available, in particular information necessary for the
public to judge government performance, participate in public policy-making, and call
administrative agencies to account for violations of law, corruption or maladministration.2
That value is often echoed by Chinese officials who push through transparency reforms,
and emphasized by jurists who hail the introduction of the Regulations on Open
Government Information (ROGI) 2007 as a landmark improvement of the government-
citizen relation or a major advance in ‘democratic politics’ in China.3 Persistent denials
of access to information concerning abuse of power and policy-making affecting crucial
public interests, however, casts serious doubt on the adherence to this value in the ROGI’s
implementation.
It is usually through two principles that a FOI law entrench the public accountability
value. The first is the ‘requester-blind’ principle which grants all members of the public a
universal right to information irrespective of their identities and motives in accessing the
information.4 It ensures that all requesters are treated equally without any bias against

1
 See Ackerman, J M & Sandoval-Ballesteros, I E (2006) ‘The global explosion of freedom of information laws’
(58) Administrative Law Review 85, at 87-93.
2
 In this regard, FOI law is a political creature that both consolidates representative democracy (by informing
voters) and advances participatory democracy (by facilitating engaged civic participants). See Id at 121; Cain,
B E, Egan, P, & Fabbrini, S (2003) ‘Towards more open democracies: The expansion of freedom of information
laws’ in Cain, B E, Dalton, R J, & Scarrow S E (eds) Democracy Transformed? Expanding Political Opportunities in
Advanced Industrial Democracies Oxford University Press 115, at 115-118.
3
 See Cao Kangtai & Zhang Qiong (eds) (2009) ‘Zhonghua Renmin Gongheguo zhengfu xinxi gongkai tiaoli’ duben
(Annotations on The Regulations on Open Government Information) (2nd ed) Renmin chubanshe at 25-28; Mo
Yuchuan & Lin Hongchao (eds) (2008) ‘Zhengfu xinxi gongkai tiaoli’ shishi zhinan (Guide to the Implementation
of Regulations on Open Government Information) Zhongguo fazhi chubanshe at xi-x.
4
 See Principle 1 Maximum Disclosure among the principles endorsed by the United Nations Special
236 JCL 12:2
 yongxi chen

those whose motives may not be favoured by officials. It is a corollary of the essence of
FOI law, i.e. government information should be disclosed by default, and should not be
withheld unless it falls within the limited and statutorily prescribed regime of exceptions.5
The second principle is that of subjecting exceptions to the public interest test. This intends
to ensure reducing the areas of secrecy to minimum and releasing information whose
disclosure serves the public interest, including in particular accountability enhancement,
that overrides the secrecy interests protected under the exemptions.6 Although the ROGI is
compatible with these two fundamental principles, its wording creates ambiguities which
have been employed by government agencies to the detriment of this legislation’s function
in making the government accountable to the public. The General Office of the State
Council (Guowuyuan Bangongting, ‘SC General Office’ hereafter) issued interpretations of
the ROGI to introduce a test of the requesters’ needs, which actually screens the motives
for access. Agencies also tend to ignore the public interest associated with disclosure and
shirk the balancing test.
Being the sole external review body that enforces the right to information, the Chinese
courts have a pivotal role to play in scrutinizing government decisions concerning these
two principles. Effective judicial scrutiny is important for the full functioning of the ROGI
and successful outcomes of the transparency reform. The public interest test pertaining to
information disclosure best illustrates the courts’ view on what the values of transparency
are in a society and a polity, and how important such values are when compared to the
secrecy interests in a given circumstance.
This article investigates the extent to which the public accountability value has
been fostered by the ROGI by illustrating and assessing the judicial approaches to the
motives of access and to the public interest test. The section which follows criticises the
problematic judicial responses to the SC General Office’s interpretations, and identifies
the discriminative treatment of three major sets of motive in access to information. The
subsequent section summarizes Chinese judges’ unique understandings of the public
interest test in the FOI context, and examines the major categories of public interest that
the courts have identified under two exemptions respectively. The final section generalizes
from its finding of the convergent results of both tests that there is a prevailing judicial
policy to uphold ‘defensive transparency’ which is attached to the requester’s own rights
of the person and property (‘personal or property right’ hereafter), but to refrain from
supporting ‘civic transparency’—that is, the transparency to be unconditionally enjoyed
by every citizen in respect of public scrutiny of government performance. The Chinese
courts have largely failed to yield their review power to uphold the pro-accountability
value embodied in the ROGI, but have cooperated with administrative agencies in taming
an otherwise politically significant right to information into a mediocre instrument for
private interest assertion.
In basing the investigation on representative cases, this article continues to use the
methodology developed by the author in previous studies of the right to information in

Rapporteur regarding FOI legislation: Hussain, A (2000) ‘Report of the Special Rapporteur on the Promotion
and Protection of the Right to Freedom of Opinion and Expression’ UN Doc. E/CN.4/2000/63 at 15 & 56. For the
absence of requirement for requesters to provide their motives or reasons in various states with FOI law, see
Mendel, T (2008) Freedom of Information: A Comparative Legal Survey (2nd ed) UNESCO at 37 et passim.
5
 Mendel supra note 4 at 32.
6
 See Principle 4 Limited Scope of Exceptions, in Hussain ‘Report’ supra note 4 at 58.
JCL 12:2 237
Taming the Right to Information

China.7 Cases are collected from three sources that complement each other. The first source
is case collections published by the Supreme People’s Court (‘Supreme Court’ hereafter) or
compiled under its supervision. The cases reported in these collections, called ‘referential
cases’, are widely considered by the Chinese legal community to reflect to varying extents
the intentions of the Supreme Court and its departments in guiding local courts on the
adjudication in a particular field of law.8 The second source is mainstream legal databases,
including China Judgement Online, the official portal designated by the Supreme Court to
publish the judgments rendered by courts at all levels, and ChinaLawInfo, the country’s
most comprehensive commercial databank. In consideration of the overrepresentation
of certain regions in the databases and the post-2013 spiralling of number of judgments
on open government information (OGI) litigation, the scope of search is restricted to
the judgements of the second instance in eight provincial units. The selected units are
dispersed across the country with different levels of industrialization.9 Appeal judgements
often involve more detailed examination of important legal issues than judgements of the
first instance, and are more suggestive of mainstream judicial approaches. The third source
is news reports in fifty-nine Chinese media outlets which enjoy either great popularity or
an appreciation of their professional quality, plus the ‘Transparent China Online’, a portal
dedicated to news on OGI. It should be pointed out that OGI cases reported by the media
(‘media-reported cases’ hereafter) are more representative than reports of adjudicative
practice in two senses. First, they encompass cases whose judgments are withheld from
online publication by the courts for various discretionary reasons, including for instance
the political sensitivity or inconvenience of the case. Second, they are more evenly
distributed geographically than those retrieved from the databases and Supreme Court-
managed collections. Searches within the three sources have yielded 289 cases which were
adjudicated before the end of 2015 and which concern the issues discussed in this study.10

7
 For more details on the methodology, see Chen, Y. (2016) ‘Transparency Versus Stability: The New Role of
Chinese Courts in Upholding Freedom of Information’ (9, 1) Tsinghua China Law Review 80, at 84-85.
8
 The Supreme People’s Court have tried different ways in using exemplary cases to unify the application and
interpretation of law and to guide lower courts in the adjudication of cases. These cases were named ‘referential
cases’ (cankaoxing anli) or ‘model cases’ (shifanxing anli). They are not binding but have strong persuasive effects
on judges. See Su Zelin (ed) (2012) Zhongguo anli zhidao zhidu de goujian he yingyong (The Construction and Use
of China’s Case Guidance System) Falü chubanshe at 47-50. It should be noted that after 2010 the Supreme
Court began to issue what are formally titled ‘guiding cases’ (zhidaoxing anli). Different from ‘referential cases’,
‘guiding cases’ are selected and promulgated by the Trial Committee of Supreme People’s Court, and are
required to be referred to by all lower courts when the latter adjudicate similar cases. (See Provisions of the
Supreme People’s Court on the Work of Case Guidance [Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo
de Guiding] (issued on November 26, 2010).) The system of guiding case thereby shares certain features of
precedents in the common law system. There is so far but one guiding case concerning OGI, and it does not
touch on the issues discussed in this paper.
9
 The eight units are Heilongjiang, Beijing, Henan, Shanghai, Guangdong, Xizang (Tibet), Shaanxi and
Xinjiang.
10
 The results include 9 referential cases, 205 judgements retrieved from the databases, and 93 media-reported
cases, with an overlap of 18 cases.
238 JCL 12:2
 yongxi chen

AN IMPOSED TEST OF THE REQUESTER’S NEED

Invalid Administrative Interpretation of the ROGI

The ROGI attaches much importance to proactive publication, and enlists various categories
of information to be proactively released by the governments and their administrative
agencies at different levels in Articles 9 through 12. In addition, it provides for a right to
request disclosure of information implicitly under Article 13, which stipulates that:
In addition to government information disclosed by administrative agencies on
their own initiative provided for in articles 9, 10, 11 and 12, [citizens] may, based
on their own special needs in respect of such matters as their own production,
lives and scientific research, etc., also file requests with [the government] to obtain
relevant information.
The wording seems ambiguous as to whether the ROGI upholds the ‘requester-blind’
principle that every citizen is entitled to request for access as of right and irrespective of
the purpose of access. The ambiguity can nevertheless be clarified with recourse to the
contextual interpretative method. It should be noted that when the ROGI stipulates the form
and content of OGI request under Article 20, it does not require the requesters to describe
their needs, motives or other reasons for seeking the information. If the legislators intend
to authorize administrative agencies to review such needs and reject the ones they deem
inappropriate, they would have included the demonstration of a need in the necessary
elements of request. In addition, the terms ‘in addition to’ and ‘may also’ employed in
Article 13 indicate that the information to be disclosed upon request is not limited to the
information prescribed under Articles 9 through 12 which define the scope of information
to be proactively disclosed. Article 9 provides a general rule that information should be
proactively disclosed if it concerns matters that ‘generally involve the vital interests of
citizens or should be extensively known by the public’. It is hence likely that the legislators
mention the need base of OGI requests in order to stress the diversity in the information
to be disclosed upon request. That is to say, information to be provided to requesters is
not necessarily of concern to the public. Instead, it can be of significance only to a specific
interest to an individual requester irrespective of its importance for the society at large. The
term ‘such matters as their lives, production and scientific research, et cetera’ further shows
that the three enlisted matters are merely examples of the diverse and infinite purposes
that a requester may have. Therefore, the mention of the special need (teshu xuyao) must
not be understood as prescribing a precondition for access.
However, the ambiguity has been widely utilized by agencies to fit their own purposes
and create hurdles for requesters. The General Office of the State Council, which is
designated by the ROGI to oversee the OGI work nationwide, has surprisingly imposed a
test of the need. In its Opinion on the ROGI’s implementation (‘Opinion 2008’ hereafter),
the SC General Office prescribes that:

JCL 12:2 239

Taming the Right to Information

An administrative agency can refuse to provide the information that is irrelevant to

the requester’s special needs such as his or her own production, life and scientific
research, etc.11
By installing an examination of the requester’s need, Opinion 2008 has created an
additional ground for rejecting requests. Information may accordingly be withheld not
only because it is exempt from disclosure by the law but also because the requester does
not have a need approved by the responding agency. This is an obvious restriction on the
scope of disclosure set by the ROGI, and hence contradicts with the latter.12 Norms made
by the SC General Office are by nature ‘normative documents’ (guifanxing wenjian), 13 and
the Opinion in issue is actually an administrative interpretation of a piece of legislation.14
According to the hierarchy of the source of law, the legal force of a normative document
is much inferior to that of the ROGI, an administrative regulation. Given the general rule
that a norm is invalid if it contradicts with a norm at a higher hierarchical level,15 the SC
General Office’s interpretation pertaining to the special need should be invalid. In fact, the
very interpretation was not agreed with by some officials working in the legislative affairs
offices of local governments, claiming that special need is only the reason for the OGI
request, not a limitation on it.16
The SC General Office’s Opinion 2008 turns the general right to information to a need
to know-based privilege, and severely deviates from the ROGI’s legislative intent. What
distinguishes FOI law from other regimes governing access to information is that FOI law

11
 Point 14, Guowuyuan Bangongting guanyu shixing ‘Zhonghua Renmin Gongheguo zhengfu xinxi gongkai
tiaoli’ ruogan wenti de yijian (Opinion of the General Office of the State Council on Several Issues Concerning
the Implementation of the ‘Regulations on Open Government Information’) (issued on 29 April 2008).
12
 By virtue of the rules recognized by the Supreme Court’s in respect of the conflict of norms, ‘a contradiction
can be confirmed if a lower-level norm restricts a right provided for by a higher-level norm’. See Section 2, Point
1, Guanyu yinfa ‘guanyu shenli xingzheng anjian shiyong falü guifan wenti de zuotanhui yijiao’ de tongzhi
(Notice of the Supreme People’s Court on Printing for Distribution The Minutes of the Symposium on the
Application of Legal Norms in the Trial of Administrative Cases) (issued on May 18, 2004) (Minutes on the
Application of Legal Norms).
13
 At the national level, the sources of law in China include, in accordance with the descending order of legal
force, the Constitution, laws enacted by the National People’s Congress, administrative regulations enacted
by the State Council, and administrative rules (guizhang) made by a department of the State Council. The SC
General Office is an internal organ of the central government. It does not have independent legal personality,
and is hence not qualified to issue administrative rules.The term ‘normative document’ refers to a great variety
of norms with binding force that are made by administrative agencies (excluding administrative rules). Such
norms are not sources of law.
14
 Under the Chinese system of interpretation of law, the interpretative power is principally vested in the
Standing Committee of National People’s Congress (whose interpretation is called ‘legislative interpretation’),
and shared by the administrative agencies in relation to the implementation of the law (‘administrative
interpretation’) as well as by the Supreme People’s Court in relation to the adjudication of disputes (‘judicial
interpretation’). The legislative interpretation is superior to the other types of interpretation. This trichotomy of
legal interpretation was formulated by the Resolution of the National People’s Congress Standing Committee
on Improving the Work of Interpretation of Law [Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui
Guanyu Jiaqiang Falü Jieshi Gongzuo de Jueyi] (adopted and effective on June 10, 1981).
15
 The principle lex superior derogat legi inferiori is provided under Art. 96, Lifa Fa (Law on Legislation) (adopted
by National People’s Congress, March 15, 2000, amended and effective March 15, 2015). The article does not
mention normative documents, but the same principle applies in resolving the conflicts between normative
documents and other legal norms.
16
 See Liu Hua (2008) ’Lun zhengfu xinxi gongkai de ruogan falü wenti’ (On some legal issues related to open
government information) (6) faxue (Legal Science) 66, at 67 (the author is an official of the Legislative Affairs
Office of the Shanghai Municipality Government).
240 JCL 12:2
 yongxi chen

changes the basis of information disclosure from the ‘need to know’ to the ‘right to know’.17
The underlying rationale is to bring into full play various roles of access—including
especially promoting public participation and enhancing government accountability. It
ensures that information is withheld for the exclusive purpose of protecting legitimate
secrecy interests which are recognized by the exemption clauses of FOI law, and not
withheld because of factors specific to the requester. Such rationale is consistent with the
ROGI’s legislative intent. Article 1 articulates that the regulation is enacted first to increase
‘transparency in the government’s work’ (zhengfu gongzuo toumingdu) and promote the
‘exercise of administration power in accordance with the law’ (yifa xingzheng)’, and then to
‘let government information fully serve the people’s production, lives and economic-social
activities’. The legislators clearly endorse access for the purposes of both monitoring the
government and serving the requester’s own personal interest, without favouring one over
the other. This stance is incompatible with the SC General Office’s restrictive interpretation
that confines the qualified purpose of access to special needs of one’s production, life and
research.18
Opinion 2008 has had a massive impact. As shown by OGI audits concerning the
handling of the same request by different administrative agencies, a repeated reason for
denial of access is failure to demonstrate a special need for access, whether the requests
pertain to budget openness, public expenditure or equality in social and economic rights
protection.19 Some requests have been considered as unrelated to the private rights of
the requesters and even unrelated to the need of scientific research – simply because the
requesters self-identified as ordinary citizens. Applications for pollution monitoring data,
which had a higher approval rate, were also not immune to such restrictions. Quite a
few authorities insisted that the requesting auditor failed to establish standing to apply
even after confirming he was member of an NGO dedicated to promoting environmental
protection.20 A requester for public expenditure of a city government was even labelled as

17
 For a detailed discussion of the ‘requester-blind’ principle and its significance for FOI law, see McDonagh,
M & Paterson, M (2010) ‘Freedom of information: Taking account of the circumstances of individual applicants’
(July) Public Law 505, at 505-507.
18
 Two years later, the SC General Office issued another opinion to further restrict disclosure pertaining to
requests for research purposes, providing that ‘request for large-scale materials and data needed in research
projects is different from a request generally provided for by the ROGI, and, to some extent, goes beyond the
original legislative intent in establishing the regime of disclosure upon request. […] the requester may file
requests in the manner of “one application per one subject”’. These provisions discriminate against research-
inspired requests and create burdensome formality requirements that are not anticipated by the ROGI. See
Guowuyuan Bangongting guanyu zuohao zhengfu xinxi yi shenqing gongkai gongzuo de yijian (Opinion of
the General Office of the State Council on Undertaking Well the Work of Disclosing Government Information
Upon Request) (issued on 12 January 2010).
19
 See results of consecutive FOI audits conducted by task forces in the Chinese Academy of Social Sciences
(CASS, Shehui Kexue Yuan) and the Shanghai University of Finance and Economics (SUFE) respectively:
Fazhi Guoqing Yanjiusuo (Research Group on National Condition of Rule of Law) (2011) ‘Zhongguo zhengfu
toumingdu baogao (2010)’ (Annual report on Chinese Government Transparency) in Shehui Kexuyuan Faxue
Yanjiusuo (CASS Law Institute) (ed), Zhangguo fazhi fazhan baogao No. 9 (Annual Report on China’s Rule of
Law) Shehui kexue wenxian chubanshe; Shanghai Caijing Daxue Gonggong Zhengce Yanjiu Zhongxin (SUFE
Center for Public Policy Studies) (ed) (2009) 2009 Zhongguo caizheng toumingdu baogao (2009 Report on Fiscal
Transparency in China) Shanghai caijing daxue chubanshe. Subsequent annual audits until 2015 are published
in the same series of reports respectively. See also audits conducted by NGOs focusing on equal protection:
‘Investigative Report on the Recruitment of Personals with Disability by Administrative Agencies’ (Beijing
Yirenping Center, 2012); ‘Zhengfu Xinxi Gongkai Tiaoli zhixing qingkuang minjian guancha baogao’ (Civic
monitoring report of the ROGI’s implementation) (Zhongyixing [ACTogether], 2014).
20
 ‘Access to Environmental Information in China: Evaluation of Local Compliance’ (Article 19 and Center for
JCL 12:2 241
Taming the Right to Information

spy and put under surveillance.21 The need test has become a convenient instrument for
agencies filter out requests which make them uncomfortable.

Problematic Judicial Reponses

Endorsement of the Invalid Test

From a legal point of view, the courts have full power to disregard the SC General Office’s
invalid interpretation when reviewing the legality of a denial of access made pursuant
to Opinion 2008. Although Chinse judges are not empowered to directly invalidate
an enactment that contradicts high-level legal norms, they may refuse to apply the
very enactment, as it is a rule deriving from the Administrative Litigation Law.22 The
Supreme Court has further stressed that the courts should take the initiative to examine
the conformity of a normative document applied by the defendant with high-level legal
norms.23
The judiciary is apparently reluctant to negate the validity of Opinion 2008. Some high-
ranking judges working in local courts believe that ‘special needs’ are indeed restrictions
imposed on the standing of the requester,24 despite that both the contextual and purposive
interpretations of the ROGI show otherwise.25 More judges realize the inconsistency between
the Opinion and the ROGI, but concern about the special role of the SC General Office. The
Office is the secretariat of the central government as well as the main channel for relaying
the latter’s decisions to governments and their agencies at lower levels. Its instructions
and opinions are usually regarded as reflecting the State Council’s will and hence highly
authoritative to state organs. Moreover, the Office is vested with the competence of
‘promoting, guiding, coordinating and supervising’ OGI work nationwide,26 which makes
it more inconvenient to expose impropriety in its guidelines. Some Supreme Court justices
thereby propose a compromise to, on the one hand, implicitly recognize the validity of the

Legal Assistance to Pollution Victims, 2010) at 24.

21
 See ‘Wo bushi jiandian; zhi xiang zhidao nashuiren de qian zhengfu dou hua na le’ I am not a spy; I just
want to know how the government spends taxpayers’ money, Dahe Bao (Grand River Daily), 3 August 2009.
22
 Art. 53, Xingzheng Susong Fa (Administrative Litigation Law 1989) (promulgated by the NPCSC, on April
4, 1989, effective Oct. 1, 1990). The law was amended in 2014 and explicitly provides that when a court finds
a normative document to be illegal, it should preclude the document from the basis on which the legality of
the administrative decision in question is assessed. See Art. 64, Administrative Litigation Law 2014 (amended
November 1, 2014, effective May 1, 2015). Since most of the analysed cases were adjudicated before the
amendment took effect, this article refers only to the Administrative Litigation Law 1989 unless otherwise
stated.
23
 Sections I & II, ‘Minutes on The Application of Legal Norms’ supra note 12.
24
 Yin Yong (2007) ‘Zhengfu xinxi gongkai xingzheng anjian shenli de xin silu’ (New approaches to the trial
of OGI cases) (5) Shanghai Faxue Yanjiu (Shanghai Legal Studies) (the author is the presiding judge of the
administrative litigation division of the High Court of Shanghai Municipality), quoted from Liu ‘On Some
legal issues related to open Government information’ supra note 16 at 67; Zhang Chuanyi (2009) ‘Zhengfu
xinxi gongkai xingzheng xingwei sifa shencha ruogan wenti’ (Several issues concerning judicial review of
administrative activities of OGI) (2) Xingzheng Faxue Yanjiu (Administrative Law Journal) 120, at 121 (the author
is a judge of the High Court of Shandong Province).
25
 According to the Supreme Court, in case of ambiguity in a legal norm, the court should determine the
meaning of the norm according to the context and legislative intent, purpose and principles of the norm. See
Section IV, ‘Minutes on the Application of Legal Norms’ supra note 12.
26
 Art. 3(2), ROGI.
242 JCL 12:2
 yongxi chen

Opinion and, on the other, restrict the need test.27 This tactic was adopted in the cases tried
in the early years after the ROGI came into effect. For instance, when commenting on a
case published in the Reports on the Major Cases Adjudicated in China (Zhongguo Shenpan Anli
Yaolan), the reporting judge criticises the Opinion on the ground that it severely reduces
the scope of disclosure and ignores the supervisory function of access, such as promoting
law-based administration. But he then argues that the court should examine whether the
administrative agency have conclusively proved the inexistence of special need pertaining
to the information at issue, hinting on his acceptance of a need test.28
That tactic was subsequently cemented by the Supreme Court in its judicial
interpretations concerning the trial of OGI cases (‘Judicial Interpretations on OGI’
hereafter). The draft of the Interpretation published for public comment included a ‘failure
to demonstrate a special need’ in the grounds for denial of access, and this aroused fierce
criticisms in the commentators.29 Drafters found such comments sensible, recognizing
that limiting the ‘special needs’ in this manner ran contrary to the common international
practices of FOI law and deviated from the purposes of greater disclosure of government
information.30 Nevertheless, they emphasized that Opinion 2008 was an ‘authoritative
interpretation’ and that ‘it was difficult for the judicial interpretation to disregard the
Opinion’.31 The enacted judicial interpretation thus provides that:
If the defendant refused to provide information on the ground that the information
was unrelated to the requester’s own special needs in respect of matters such as
production, lives and scientific research, etc., the court may require the plaintiff to
explain the special needs concerned.32
The court should reject the plaintiff’s claim […] if he or she cannot reasonably explain the
request for information is based on his or her own special needs […] and the defendant
refused to provide information on this ground. 33
Given the quasi-legislative effect of Supreme Court judicial interpretations,34 the
provisions cited above actually endorse the SC General Office’s Opinion 2008, and give it

27
 Jiang Bixin & Li Guangyu (2009) ‘Zhengfu xinxi gongkai xingzheng susong ruogan wenti tantao’ (Discussions
on administrative litigation concerning open government information) (3) Zhengzhi Yu Falü (Law and Politics)
12, at 25 (Jiang was then Deputy President of the Supreme Court, and Li the Deputy Presiding Justice of the
Supreme Court’s Administrative Litigation Division). According to the authors, articles 13 and 20 of the ROGI
should be ‘generally understood as OGI requests are not based on special needs’, but maintaining a relatively
small scope of disclosure at the early stage ‘conforms with our country’s situation’.
28
 Lü Runjin (2011) ‘Nanjing Huaxia Shiyan Xuexiao (Minban) su Nanjingshi Guotu Ziyuan Ju Jiangning
Fenju bu lüxing xinxi gongkai fading zhize an’ (Nanjing Huaxia Experiment School (Private) v. Jiangning Branch of
Nanjing City Land & Resource Bureau [Re: Failure to Perform Statutory Obligations]) MCAC Reports 329, at 332.
29
 See Li Guangyu (2010) ‘Zhengfu xinxi gongkai sifa jieshi zhengqiu yijian gao ji qi xiugai jianyi shuping’
(Review of the draft judicial interpretations on OGI and relevant public submissions) (39, 1) Reference J.R.
97, at 108-109. Some commentators point out straightforward that the need test runs contrary to the trend of
democratic politics and risks rendering the OGI system meaningless.
30
 Li Guangyu (2011) Zhengfu xinxi gongkai sifa jieshi duben (Annotations on the Judicial Interpretations on
Open Government Information) Falü chubanshe at 185-186.
31
 Id at 186.
32
 Art. 5(6), Zuigao Renmin Fayuan guanyu shenli zhengfu xinxi gongkai xingzheng anjian ruogan wenti de
guiding (Provisions of the Supreme People’s Court on Several Issues Relating to the Trial of Administrative
Cases Concerning Open Government Information) (promulgated on July 29, 2011, effective Aug. 13, 2011).
33
 Art. 12(2)(f), Id.
34
 ‘Judicial interpretations’ in Chinese law usually refers to documents that are formally issued by the
Supreme People’s Court and directly quoted by the courts in their adjudication. A typical category of judicial
JCL 12:2 243
Taming the Right to Information

a binding effect on the courts, even though this is contrary to its status in the hierarchy of
legal norms under Chinese principles of sources of law.
The need test imposed by the Judicial Interpretations on OGI is seriously flawed, not
only because of the reasons elaborated above, but also because it is incompatible with the
evidentiary rule in China’s administrative litigation according to which the defendant,
not the plaintiff, shall bear the major burden of proof pertaining to the legality of a
challenged decision.35 By using the term ‘the court may require the plaintiff to explain’,
the interpretations appear to hint that the major burden remains on the defendant. But
no justification is offered as to why the plaintiff should share a part of the onus of proof
in respect of the need test but not of the application of other exemptions. The asymmetry
in the distribution of burden of proof will make ‘non-existence of (qualified) special need’
the most convenient reason for denying access, and will likely create confusion in judicial
practice.
A few judges seem to realize the risks in the test and propose ways of alleviating the
requester’s obligation. According to one Supreme Court justice, the court should only ask
the plaintiff to provide preliminary evidence and should maintain a lenient standard for
‘reasonable explanation’, but on the other hand should strictly review the defendant’s claim
and require it to be fully substantiated.36 The suggestion is echoed by some judges working
in local-level courts (‘local judges’ hereafter).37 In addition, in regard to the substantial
scrutiny of the need test, the Supreme Court makes it clear that characterisation of the
need for which access is sought is a substantive issue to be dealt with in the trial. It thus
rejects the prevalent practice of local courts in which they routinely deny standing to sue
on the ground that the information at issue is unrelated to the plaintiff’s special needs.38
The Supreme Court also stresses that the court should refrain from undertaking the need
test if the defendant has failed, before making the decision of non-disclosure, to negate
the existence of the special need.39 However, the standard for ‘reasonable explanation’

interpretations is provisions that interpret legislation in abstracto or even create rules in the absence of
legislation, without being limited to issues arising out of specific cases. Such provisions are de facto binding on
lower courts as an established practice, although controversy persists over whether the Supreme People’s Court
has constitutional power to issue them. For the nature of judicial interpretation in China, see generally Chen J.
(2008) Chinese Law: Context and Transformation Martinus Nijhoff Publishers at 200-202.
35
 Art. 32, Administrative Litigation Law 1989.
36
 Li Annotations supra note 30 at 186-87.
37
 Lu Yuan & Chen Ying (2012) ‘Zhengfu xinxi gongkai anjian sifa shencha de zhidao sixiang he jiben yuanze’
(Guiding Ideology and Basic Principles on Judicial Review of OGI Cases) (52) Reference J.R. 33, at 34-35 (the
authors are judges of the Jiangsu Provincial High Court).
38
 Zuigao Renmin Fayuan guanyu qingqiu gongkai yu benren shengchan shenghuo keyan deng teshu xuyao
wuguan zhengfu xinxi de qingqiuren shifou juyou yuangao susong zhuti zige wenti de pifuZuigao Renmin
Fayuan guanyu qingqiu gongkai yu benren shengchan shenghuo keyan deng teshu xuyao wuguan zhengfu
xinxi de qingqiuren shifou juyou yuangao susong zhuti zige wenti de pifu (Reply of the Supreme People’s Court
on the Question Whether A Requester Has Standing to Sue Pertaining to the Information that is Unrelated to
His or Her Own Special Needs of Production, Life or Scientific Research, etc.). See also a referential case in this
regard: Li Guangyu (2013) ‘Zhengfu xinxi gongkai shenqingren shifou bixu juyou zishen shengchan, shenghuo,
keyan ‘san xuyao’: Shen Ge su Guangzhoushi Huaduqu Huashanzhen Remin Zhengfu an pingxi’ (Must OGI
requesters have the needs releated to their productions, lives and research?: Commenting on Shen Ge v. Huashan
Town Government of Guangzhou City) (57, 1) Reference J.R., 88 at 88-93.
39
 See jiang Bixin (ed) (2011) ‘Zuigao Renmin Fayuan Guanyu Shenli Zhengfu Xinxi Gongkai Xingzheng Anjian
Ruogan Wenti de Guiding’ Lijie yu Shiyong (The Understanding and Application of the ‘Provsisions of the Supreme
People’s Court on Several Issues Relating to the Trial of Administrative Cases concerning Open Government
Information’ Zhongguo fazhi chubanshe at 312.
244 JCL 12:2
 yongxi chen

remains obscure under the Judicial Interpretations on OGI, and it is clearly insufficient to
prevent local courts which are reluctant to confront administrative agencies from inflicting
an onerous burden on the requesters.
In fact, the crucial issue about the need test is not so much about the standard of
proof in the abstract, but instead the scope of qualified need. In theory, requirements
for demonstrating a special need can be easily satisfied. ‘Production, life and scientific
research’ are broad categories that cover virtually all needs. One intermediate court
judge has suggested, for example, that ‘the special need of scientific research has little
restricting effect on the [qualification of the] plaintiff, because everyone can engage in
scientific research, and it is hard to find out whether government information is needed in
the research and whether any result could be obtained from the research.’40 Nevertheless, a
much narrower scope of qualified need has been applied in actually litigated cases. Many
courts continue subjecting the issue of the plaintiff’s standing to sue to the need test in
contradiction to the Supreme Court’s instruction.41

Discriminative Treatments of Different Needs

The cases collected for this study show different applications of the need test, but prevailing
trends can be identified pertaining to three broad categories of OGI requests, namely (i)
requests concerning the defence of the requester’s personal or property rights, (ii) those
concerning a public interest in the social and economic sphere, and (iii) those concerning a
politically oriented public interest.

Defence of the requester’s personal or property rights

The need test is easier to meet for OGI requesters who apparently seek information to
defend their own personal or property rights. In all the four referential cases reported in the
Supreme Court-managed publications, the courts approved the needs of such requesters.42
As regards the cases collected from databases and media reports, except for a few early
rulings,43 individuals affected by evictions were confirmed to have a qualified need

40
 Wei Liping & He Shijun. (2009), ‘Zhengfu xinxi gongkai anjian yinan wenti chutan’ (Preliminary study of
puzzling problems concerning open government information suits) available at: <http://hnfy.chinacourt.org/
public/detail.php?id=81031> (the authors are judges of the Intermediate Court of Zhengzhou City).
41
 See for example the commentary of a referential case: Li Yipeng (2014) ‘Bejingshi Fengtaiqu Yuantou
Aihaozhe Hanjing Yanjiusuo bufu Beijingshi Huanjing Baohu Ju zhengfu xinxi gongkai an’ (Source-Lover
Environmental Research Institute v. Beijing Municipal Bureau of Environmental Protection [Re: OGI]) MCAC Reports
375, at 379.
42
 See Zhou Chunwen v. Construction Bureau of Rugao City [Zhou Chunwen su Rugaoshi Jianshe Ju] (Rugao City
Court, 2008) [discussed in Di Bangjian & Zhu Yumin (2009) ‘Bu lüxing zhengfu xinxi gongkai yiwu an zhong de
falü wenti’ (Legal issues in cases concerning failure to perform ogi duties) (2) Judicature (C) 102, at 103-104]; Wu
Hongwen (2010) ‘Di 23 hao anli: remin fayuan youquan shencha fan xinxi gongkai de zhuzhang bing zuochu
xiangyinig panjue – Xu Jianhua su Jiangsusheng Jingjiangshi Renmin Zhengfu xinxi gongkai an’ (Case 23. The
People’s Court Has the Power to Review and Adjudicate on Anti-OGI Claims: Xu Jianhua v. People’s Government
of Jingjiang City, Jiangsu Province [Re: OGI]) (1) J.R. Cases 115, at 115-120; Nanjing Huaxia Experiment School supra
note 28 at 330; and Li ‘Must OGI requesters have the needs releated to their productions, lives and research?’
supra note 38 at 88-97.
43
 Some evictees in Guangdong Province were deemed to have no qualified need for knowing the reserve
auction price for the use right concerning the land under their demolished houses. See ‘Pujunnan chaiqianhu
gao guotuju baisu’ (Evictees in Pujunnan lost their case against the land bureau), Nanfang Dushibao (Southern
JCL 12:2 245
Taming the Right to Information

pertaining to information about relevant decisions of land taking or housing demolition.44

The defendants which negated such a need were required by the courts to bear the onus
to prove otherwise.45
It is noteworthy, however, that some courts have required the requesters to establish
a direct and close relation between the information being sought and their allegedly
affected rights. Requests that would otherwise likely facilitate a claim of property right
have failed this heightened test. Examples include a request for the full text of a financial
policy document, one part of which had been quoted in an administrative review decision
directed at the requester,46 a request for a decision approving the commercial use of a land
that had been previously appropriated from the requesters for the purpose of agricultural
use,47 and a request filed by the wife of an ex-official who had been recently convicted
of embezzlement for information on the Guangdong Procuratorate’s handling of money
confiscated from convicted suspects.48 In addition, many requests that should be subject to
a public interest test under the privacy exemption were in fact surprisingly denied on need
test grounds, as will be discussed in the next section.

Promotion of a public interest in the social and economic sphere

Pressing for disclosure of information on government policies for more informed

public debate on and better citizen participation in policy-making is a crucial element
of FOI. Since the early 2000s, the Chinese government has attempted to present a sense
of democracy in policy-making by opening up channels for public participation in the
governance of certain social and economic affairs, such as holding hearings in public
utility pricing and soliciting public inputs in environmental impact assessment.49 Activists
and NGOs focusing on the public interest have further sought to expand the scope of
civic engagement in improving the policies of public concern, mainly through monitoring
public expenditure and instituting influential public interest litigation.50 In the meantime,
the threshold of access to court has gradually been lowered for ‘public interest litigation’
concerning social and economic rights (the right to environmental protection and right to

Metropolis Daily), 22 October 2009.

44
 See for example Wang Jirong v. Qitai County Government [Wang Jirong su Qitaixian Zhengfu] (High Court of
Xinjiang Uighur Autonomous Region, 14 October 2014).
45
 Jia Guangzeng v. Shunyi District Government of Beijing Municipality [Jia Guangzeng su Beijingshi Shunyiqu
Zhengfu] (Beijing Municipal High Court, 9 July 2012).
46
 Yang Laiwan v. Ministry of Finance [Yang Laiwan su Caizhengbu] (Beijing Municipal High Court, 20 October
2015).
47
 Yu X v. Shunde District Government of Foshan City [Yu moumou su Foshanshi Shundequ Zhengfu]
(Guangdong Provincial High Court, 24 April 2013).
48
 Liang Yanfang v. Guangdong Provincial Department of Finance [Liang Yanfang su Guangdongsheng
Caizhengting] (Intermediate Court of Guangzhou City, 9 May 2014). See also ‘Guangdong nüzi shenqing xinxi
gongkai beiju qisu caizhengting’ (A woman in Guangdong sues the finance bureau which rejected her OGI
request), Southern Metropolis Daily, 3 November 2013.
49
 See Wang Xixin (2007) ‘Zhongguo gongzhong canyu de zhidu shijian: Gailan yu pinggu’ (Institutional
practices of public participation in China: overview and assessment) in Wang Xixin (ed), Gongzhong canyu he
Zhongguo xin gonggong yundong de xingqi (Public Participation and Rise of the New Public Movement in China)
Zhongguo fazhi chubanshe at 1-13.
50
 See Cai Dingjian (2009) ‘Gongzhong canyu ji qi zai Zhongguo de xingqi’ (Public participation and its rise in
China) in Cai Dingjian (ed), Gongzhong canyu: Fenxian shehui de zhidu jianshe (Public Participation: Constructing
a Framework for the Risk Society): Falü Chubanshe at 10-24.
246 JCL 12:2
 yongxi chen

equality in particular).51 Quite inconsistent with this trend, however, a stringent need test
has been applied to OGI requests motivated by the promotion of such rights.
Provided that the administrative agency had not questioned the requester’s need in
the case (but denied access on other grounds), the courts did not impose the need test on
requests pertaining to food safety policy-making,52 pollution data53 and the enforcement
of the family planning policy.54 In contrast, the courts invariably endorsed agency claims
that no qualified need existed in the requests falling within these three fields. For instance,
they rejected a villager’s request for details on the forced collection of ‘social security
fees’ from parents who gave more births than the state quota allows,55 and requests filed
by lawyers56 or non-state-sponsored environmental NGOs57 for records on the pollutant
emission regulation or environmental impact assessment.
In addition, almost all requests concerning the protection of disabled persons and
consumers that do not directly and immediately affect the requester’s own interests have
failed the need test, although safeguarding the rights of persons in socially vulnerable
groupings is an officially championed socialist value. For instance, with regard to the
Employment Guarantee Funds for Persons with Disabilities (canjiren jiuye baozhang jin)58
in several large cities, neither a physically handicapped activist who wished to monitor

51
 For the development in the admission of administrative litigation concerning social and economic rights,
see He Haibo (2016) Xingzheng susong fa (Admininistrative Litigation Law) (2nd ed) Falü chubanshe at 180-183,
190-202.
52
 Zhao Zhengjun v. Ministry of Health [Zhao Zhengju su Weishengbu] (First Intermediate Court of Beijing
Municipality, 17 October 2012).
53
 All-China Environment Federation v. Xiuwen County Environment Protection Bureau of Guiyang City [Zhongghua
Huanbao Lianhehui su Guiyangshi Xiuwenxian Huanjing Baohu Ju] (2013) (1) Sup. People’s Ct. Gaz. (Intermediate
Court of Guiyang City, 12 March 2012).
54
 Wu Youshui v. Guangdong Provincial Commission for Health and Family Planning [Wu Youshui su
Guangdongsheng Weisheng he Renkou Jihua Shengyu Weiyuanhui] (Intermediate Court of Guangzhou City,
27 March 2014). See also ‘Sheng weijiwei yishen baisu, bei zeling chongxin chuli’ (The provincial health and
planning commission defeated in the trial of first instance and ordered to re-handle the request), Southern
Metropolis Daily, 1 April 2014.
55
 Huang X v. X Township Government of Huoshan County [Huang mou su Huoshanxian mou xiangzhengfu]
(Huoshan County Court of Anhui Province, June 2012). See ‘Shenqing xiangzhengfu xinxi gongkai buneng,
zhuang zhi fayuan bei caiding buyu shouli’ (Request for information rejected by the township government;
lawsuit filed to the court ruled not admissible) (Liu’An xinwen wang [Liu’An News Web], 17 June 2012)
available at: <http://www.ogichina.org/print/14248.html>.
56
 Ke Rongming v. Zhejiang Provincial Department of Environment Protection [Ke Rongming su Zhejiangsheng
Huanjing Baohu Ting] (June 2014). See ‘NGO su Hangzhou Huanbaoju xinxi bugongkai zai bai’ (NGO
unsuccessful again in its litigation against the Hangzhou Environmental Protection Bureau on non-disclosure
(Caixin Web, 17 June 2014) available at: <http://china.caixin.com/2014-06-17/100691456.html>; ‘Hangzhou
Yuhang laji fenshao kunju’ (Dilemma over waste incineration in Yuhang, Hangzhou), Zhongguo Jingmao Jujia
(China Commerce Focus), 1 July 2014.
57
 See for example Fatree Consulting Centre v. Qianxi County Environment Protection Bureau of Hebei Province
[Fashu Xinxi Zixun Zhongxin su Hebeisheng Qianxixian Huanjing Baohu Ju] (Qianxi County Court of Hebei
Province, 10 October 2015). The plaintiff sued over a dozen county-level environmental agencies in Hebei
Province for non-disclosure. Two courts refused to admit its cases on the ground that it failed to demonstrate a
qualified need. The plaintiff withdrew the lawsuits against the other agencies.
58
 The funds are collected from state organs and institutions which have not meet the prescribed quota in
employing such persons.
JCL 12:2 247
Taming the Right to Information

the fund use59 nor a blind therapist who planned to move into the city concerned60 was
deemed eligible for access to detained expenditure of the funds. Similarly, the courts have
denied consumer-protection activists access to information on administrative punishment
decisions made by the market regulators. In so doing they explicitly disqualified the civic
needs, as raised by the requesters concerned, to ‘study the laws concerning price regulation
and monitor the handling of the contraventions of these laws’61 and ‘to find out the
effectiveness in law enforcement pertaining to the circulation of commodities’.62 In a rare
case, a Henan court approved access to a decision that punished a hypermarket for setting
misleading prices, recognizing that the decision was relevant to the requester who had
reported the fraud to the defendant authority.63 The certified need was actually directed
at a specific interest of the requester as an affected consumer, not at a general interest
that derives from his or her citizenship in respect of checking the agency’s discharging of
statutory obligation.

Promotion of a political public interest

The test has proved extremely difficult for those requests motivated by—in the court’s
eyes—an attempt to monitor government behaviour that does not affect non-political rights.
The motive is usually associated with exposing corruption or malfeasance and pushing
for holding a certain agency to account, and is hence labelled as ‘to exercise democratic
supervision’ by officials.64 Typically, access was barred to information regarding the use
of public funds that has aroused public discontent, especially the so-called ‘three public
expenditures’, i.e. expenses on official receptions, overseas trips and vehicle services. A
court found a freelance writer in lack of a qualified need for accessing the three public
expenditures of a town government.65 Another court proactively declared that an activist

59
 Li Yang v. Finance Bureau of Guangzhou City [Li Yang su Guangzhoushi Caizheng Ju] (Intermediate Court of
Guangzhou City, December 2014). See ‘Guangzhou canji qingnian yaoqiu gongkai ‘canbao jin’ zhichu mingxi;
ershen panding canlian chongxin dafu’ (A young person with disabilities in Guangzhou requested disclosure of
‘canbaojin’ expenditure; the court of second instance ruled the Disabilities Federation to reissue a reply), Xinhua
Meiri Dianxun (Xinhua Daily Telegraph), 21 December 2014. The plaintiff also sued another agency who failed
to reply a similar request. The court ordered the defendant to reply and did not address the need test.
60
 Yu Xiufu v. Disabled Persons’ Federation of Shenzhen City [Yu Xiufu su Shenzhenshi Canjiren Lianhehui]
(Intermediate Court of Shenzhen City, 19 May 2015). See also ‘Wu “fa” gongkai, canbaojin huifou chengwei
hutujin’ (Without legally being subject to disclosure, would the Employment Guarantee Funds become a
mess?), Xiaoxiang Chenbao (Xiaoxiang Morning Post), 4 June 2014.
61
 Zhao Zhengjun v. Zhongyuan District Price Bureau of Zhengzhou City [Zhao Zhengjun su Zhengzhoushi
Zhongyuanqu Wujia Ju] (Intermediate People’s Court of Zhengzhou City, 2 July 2009).
62
 Xu Dajiang v. Administration for Industry and Commerce of Guangzhou City [Xu Dajiang su Guangzhoushi
Gongshang Xingzheng Guanli Ju] (Intermediate People’s Court of Guangzhou City, 2009). See ‘Shenqing
zhengfuxinxi gongkai zaoju; dajiaren gao shi gongshangju baisu’ (Counterfeit fighter lost his case against
the city commerce and industry bureau which had rejected his OGI request) Xin Kuaibao (New Express), 10
December 2009.
63
 Ren Leliang v. Jianxi Disctrict Reform and Development Commission of Luoyang City [Ren Leliang su Luoyangshi
Jianxiqu Fazhan he Gaige Weiyuanhui] (Intermediate Court of Luoyang City, 21 February 2011).
64
 Requesters engaged in such applications often claim their constitutional right to criticize state organs and
expose violations of the law or derelictions of duty by the personnel of state organs. See Art. 41, Constitution
Xianfa (Constitution) (promulgated by Nationall People’s Congress on 4 December 1982, amended on 14 March
2004).
65
 Liao X v. X Town Government of Xiangtan City [Liao mou su Xiangtanshi mou zhenzhengfu] (Yuhu District
Court of Xiangtan City, 22 August 2012). The plaintiff was compiling an annual for Hunan Province where
the town concerned is located. See ‘Hunan yi gongmin xiang shiyu zhengzhenfu shenqing gongkai sangong
248 JCL 12:2
 yongxi chen

had no special need for knowing a decision that approved the private use of a public
vehicle about which he had exposed to the media, although the defendant had not so
claimed.66 Such a stiff need test has inhibits the civil society’s efforts in pressing for greater
transparency and accountability in public expenditure, and has actually neutralized
the measures taken by the central government’s to disclose the expenditures at various
hierarchical levels.
A rather limited ‘need to monitor’ at the grassroots level has been recognized in
sporadic cases. A Guangdong court rejected a group of villagers’ requests for the audit
reports concerning both the departing head of village committee and secretary of CCP
branch at the village, but admitted that they had a qualified need. According to the court,
‘audit supervision of the collective economic entity is for the purpose of protecting the
lawful rights of [the] entity’s members [and] developing the collective economy in villages.’
The villagers had filed requests ‘to learn about the operation of the collective economy
in their village’ and hence demonstrated a need based on their production and lives.67
Nevertheless, the main basis of the certified need in the case is a concern for concrete
economic interests rather than the villagers’ political rights in relation to their villager
leaders.
The media-reported cases indicates a strong correlation between the judicial rejection
of an OGI requester’s claim and the sign suggesting that the request is primarily motivated
by a wish to monitor the government. Until the end of 2015, 20 out of 63 media-reported
cases were mainly concerned with the purpose of exposing government performance to
public scrutiny.68 Among the 20 cases, the courts refused to admit the litigation (i.e. not
granting leave to apply for judicial review) in 13 (a rate of 65%), and rejected the access
claim in three (15%). Apart from those previously mentioned, cases of this kind includ for
example:
• an NGO researcher applying for details about the income and expenses of the fund
dedicated for the Three Gorges project;69
• a citizen requesting the National Audit Office to release the result of its investigation
into illegal use of land transfer payments in Beijing;70

xiaofei, wuyi huifu’ (A citizen in Hunan requested more than ten town governments to disclose ‘three public
expenditures’ and received no reply) Xin Jing Bao (The Beijing News), 28 August 2012.
66
 Ou Shaokun v. Administration of Industry and Commerce of Guangzhou City [Ou Shaokun su Guangzhoushi
Gongshang Xingzheng Guanli Ju] (Intermediate Court of Guangzhou City, 25 May 2015). The defendant had
not raised the issue of need to know in its non-disclosure decision. The plaintiff was an activist dedicated to
observing and exposing private uses of public vehicles in Guangzhou City for years. See ‘Lingdao pizhun
gongche siyong; Guangzhou “Oubo” su gongshangju’ (Leaders authorized private use of public vehicles;
‘Uncle Ou’ of Guangzhou sued the commerce and industry bureau), The Beijing News, 7 December 2013.
67
 The villagers filed three OGI cases, and the court rejected their claims on different grounds. See for example
Kong Caixian v. Macun Town Government of Dongguan City [Kong Caixian deng su Dongguanshi Macunzhen
Zhengfu] (Intermediate Court of Dongguan City, 9 April 2014).
68
 The motive of an OGI request is identified as of a monitoring nature if, based on prima facie evidence,
information at issue does not directly relate to the requester’s personal or property rights but may help the
requester to know and assess the general performance of an administrative agency in respect of a given duty or
the expenditure of public money.
69
 Ren Xinghui v. Ministry of Finance [Ren Xinghui su Caizheng Bu] (First Intermediate Court of Beijing
Municipality, 14 April 2010). See ‘Gongmin su caizheng bu yaoqiu gongkai sanxia jianshe zijin; fayuan bu
shouli’ (A citizen sued the Finance Ministry for disclosure of the Three Gorges Construction Funds; the court
refused to accept the case) Liaowang Xinwen Zhoukan (Liaowang News Weekly), 12 April 2010.
70
 Zhu Fuxiang v. National Audit Office [Zhu Fuxiang su Guojia Shenji Shu] (The First Intermediate People’s
JCL 12:2 249
Taming the Right to Information

• a lawyer requesting for the audit result concerning the operation of toll roads in 18
provinces and cities;71
• a lawyer asking the Shanghai Government to disclose the amount of public money
paid for the EMBA courses taken by government officials.72
While these reported cases already demonstrate a strong tendency towards disqualifying
the ‘need to monitor the government’, there are more cases which show more clearly the
disapproval of that need but are not covered by legal databases or media outlets in the
mainland. The unreported cases are notably concerning political sensitive matters such
as human rights situation73 or disasters associated with large-scale maladministration. A
typical example is a series of litigation concerning public access to the number of and
causes for deaths of schoolchildren in the Sichuan Earthquake of 2008. An activist-artist,
Ai Weiwei, together with other volunteers filed OGI requests with four ministries for
information concerning the death toll of schoolchildren, the remedies provided to the
bereaved parents, and the quality inspection result of the collapsed schoolhouses.74 Since
these ministries unanimously declared that Ai and his colleagues had no special need to
know, the activists brought them to court respectively, and challenged particularly the
legality of the imposed need test.75 However, the courts refused to admit all the four cases
on the ground that they fell outside the scope of administrative litigation.76

Court of Beijing Municipality, 2008). See ‘Jujue gongkai xinxi, “guojia mimi” cheng dangjianpai? (Refusing
to disclose information and using ‘state secrets’ as a shield?) Zhongguo Qingnian Bao (China Youth Daily), 2
December 2009.
71
 Li Gang v. National Audit Office [Li Gang su Guojia Shenji Shu] (The First Intermediate People’s Court of
Beijing Municipality, 2008). ‘Zhengfu xinxi gongkai de minjian zhutuizhe’ (OGI Champions in the civil society)
Minzhu yu Fazhi Zaozhi (Magazine of Democracy and Legality), 13 February 2009.
72
 Li Gang v. People’s Government of Shanghai Municipality [Li Gang su Shanghaishi Zhengfu] (The Second
Intermediate People’s Court of Shanghai Municipality, 2008). See ‘Shanhaishi zhengfu jujue gongkai
gongwuyuan shang MBA ban xuefei qingkuang bei qisu’ (Shanghai government sued for refusing to disclose
MBA tuitions for civil servants) (Zhongguo gongyi susong wang [China Public Interest Litigation Web], 2009)
available at: <http://www.pil.org.cn/q_news/q_news_page_127.html>.
73
 For instance, local courts in Beijing repeatedly refused to admit OGI litigation instituted by petitioners
against the Ministry of Foreign Affairs for non-disclosure of different reports on China’s compliance with United
Nations human rights instruments that had been submitted to UN organizations. See Shi Hongping v. Ministry
of Foreign Affairs [Shi Hongping su Waijiao Bu] (Second Intermediate Court of Beijing Municipality, 23 August
2012). A photocopy of the ruling was posted on ‘“Chinese Citizens vs. The Government” over Participation
in Universal Periodic Review (8/29-9/5, 2013) (Chinese Human Rights Defenders, 6 September 2013) available
at: <https://www.nchrd.org/2013/09/chrb-chinese-citizens-vs-the-government-over-participation-in-universal-
periodic-review-829-95-2013/>. See also Yin Huimin v. Ministry of Foreign Affairs [Yi Huimin su Waijiao Bu]
(Third Intermediate Court of Beijing Municipality, 30 October 2015). A photocopy of the ruling was posted on
‘Shanghai renquan hanweizhe Yin Huimin jiu kuxing baogao xinxixi gongkai shiyi su waijiaobu; Beijingshi
disan zhongji fayuan jingran buyu li’an’ (Shanghai human rights defender Yin Huimin sued the Ministry of
Foreign Affairs over disclosure of the torture report; Beijing Third Intermediate Court surprisingly refused to
file the case) (Weiquan Wang [Rights Defence Web], 15 November 2015) <http://wqw2010.blogspot.sg/2015/11/
blog-post_43.html>.
74
 The OGI requests were part of the ‘5.12 Citizen Investigation’ that received widespread public attention.
The activists declared their purposes to be recording the true situation of victim students and doing justice to
their families.
75
 See for example Ke Dan v. China Earthquake Administration [Kedan su Zhongguo Dizhen Ju] (The First
Intermediate People’s Court of Beijing Municipality, April 2010) and Ai Weiwei v. Ministry of Construction [Ai
Weiwei su Jianshe Bu] (The First Intermediate People’s Court of Beijing Municipality, April 2010). See also
‘China activist sues government for not revealing Sichuan quake recovery budget, other details’ Associated Press,
3 March 2010.
76
 The indictments and the formal notices of the courts concerning the refusal to register case can be found
at ‘Guidang: Shenqing xinxi gongkai’ (Archives: OGI requests) (Ai Weiwei Blog, 2010) available at: <http://
250 JCL 12:2
 yongxi chen

In summary, the judiciary has endorsed the SC General Office’s Opinion 2008 that
invalidly restricts the qualification of OGI requesters by screening their motives.
Furthermore, they have applied a narrow test that usually approves only the need to
protect the requests’ own personal and property rights. With regard to requests inspired
by the promotion of public interest, the courts have readily upheld the administrative
agencies’ rejections of the needs to promote social and economic public interests, and
actively disqualified the needs to enable public monitoring with political implications.
These approaches to the need test has barred a great proportion of pro bono OGI requests
from reaching the next stage in trial, i.e. the review of substantive issues concerning the
conflict between the public interest in disclosure and the interests in secrecy. That casts a
shadow on the public interest balancing test.

THE PUBLIC INTEREST TEST

Under most FOI laws, public authorities are required to conduct a public interest test
to ensure the necessity of withholding information.77 A common approach to the test is
balancing the public interest in disclosing the requested information against the public
interest in withholding it or the interest that is protected under a given exemption.78 If the
public interest in disclosure outweighs the countervailing interest, the information that
falls within the exemption should be disclosed, which is called a ‘public interest override’.
The ROGI allows administrative agencies to disclose information concerning commercial
secrets or privacy if they ‘believe the non-disclosure may have major impacts on the public
interest’.79 Given the complexity in interest balancing and the discretion therefore required
from the decision-maker, the public interest test is a controversial part of the application
of an exemption.
In most FOI regimes, both the statutory supervisory body (e.g. information
commissioner) and the court are authorized to thoroughly scrutinize and overrule the
result of the public interest test applied by an administrative agency, and even to substitute
the agency’s finding with that of their own.80 In China where the court is the sole external
overseeing body, scrutiny of the public interest test is subject to the limits on the judicial
power to control administrative discretion. Firstly, like ‘special need’, public interest is an
‘indefinite legal concept’ (buqueding falü gainian) about which the administration enjoys
latitude in interpretation. Secondly, the evaluation of major impact on the public interest
is usually understood as a balancing test which entails an exercise of the ‘discretion
pertaining to consequence’ (i.e. the discretion in choosing from various consequences when

www.aiweiweiblog.com/archive.aspx#e794b3e8afb7e694bfe5ba9ce4bfa1e681afe585ace5bc80>. The court did

not explain the specific reasons in the formal notices. According to an applicant’s descriptions, the judge in
charge was of the view that the request at issue did not relate to the applicant’s personal or property rights.
77
 See Mendel Freedom of Information supra note 4 at 34-37; Banisar, D ‘Freedom of Information around the
World 2006: A Global Survey of Access to Government Information Laws’ (Privacy International, 2006) at 23.
78
 For a detailed analysis of the comparative approaches of public interest test in Westminster-style jurisdictions,
see Carter, M & Bouris, A (2006) Freedom of Information: Balancing the Public Interest The Constitution Unit, UCL.
79
 Art. 23, ROGI. Unlike FOI laws that introduce the public interest test to almost all exemptions, the ROGI
provides it only for the exemptions concerning private interests. Exemptions concerning state secrets and the
protection of national security and social stability are free from any balancing test, indicating the primacy of
national interests contained in these categories of secrecy.
80
 Carter & Bouris Balancing the Public Interest supra note 78 at 3. See also Banisar ‘Freedom of Information
around the World 2006’ supra note 77 at 23.
JCL 12:2 251
Taming the Right to Information

a statutorily prescribed condition is satisfied). Concerning the exercise of this discretion,

the grounds of judicial review are ‘abuse of power’ and ‘manifest inappropriateness’ under
the PRC’s Administrative Litigation Law.81 According to the policies expressed by the
Supreme Court through referential cases, abuse of power incorporates several categories
including, inter alia, failure to consider relevant factors in the decision-making, taking
into account of an irrelevant factor, and violation of the principle of proportionality.82 The
intensity of scrutiny of discretion varies according to the subject matter, and the court
should generally not replace an administrative agency’s decision with its own. With
regard to the administrative discretion pertaining to the interpretation of an indefinite
legal concept, the prevalent administrative law doctrine subjects it to more intense judicial
scrutiny than other kinds of discretion.83
Against this backdrop, Chinese courts arguably enjoy greater power in identifying
and defining the public interests concerning an OGI request, but have limited authority
in altering the result of the balancing result. The following subsections first review the
role of public interest in Chinese administrative law and its implications for the public
interest test under the ROGI, then examine the approaches to this test developed under
two exemptions, and discuss their significance for upholding meaningful transparency.

The Role of Public Interest in the FOI Context

Overseas experience

FOI laws often choose not to define the public interest in order to leave the authority to
decide in which aspect and to what extent the public interest is relevant to the requested
information. In common law countries, the concept of public interest is extensively used
in various contexts, and generally understood as ‘classically [imparting] a discretionary
value judgement to be made by reference to undefined facture matters, confined only in
so far as the subject matter and the scope and purpose of the statutory enactments may
enable’.84 The stress of determining public interest according to specific circumstances on
a case by case basis is also echoed in the FOI context.
Scholars have managed to summarize the reoccurring themes of public interest test
by reference to the jurisprudence of mature FOI regimes.85 Many supervisory bodies
have also put forward guiding examples of the public interests in favour of disclosure
under common themes.86 Taking the experience of Westminster-style jurisdictions as an

81
 Art. 70(5) & (6), ALL 2014. The 2014 amendment to the law adds ‘manifest inappropriateness’ as a new
ground of judicial review pertaining to the exercise of administrative discretion.
82
 InWEnt, Zuigao Remin Fayuan Xingzheng Ting (Supreme People’s Court Administrative Division), &
Guojia Fayuan Xueyuan (National Judges College) (eds) (2008) Zhong De xingzhengfa yu xingzheng susongfa shiwu
zhinan – Zhongguo xingzheng faguan shijian shouce (Practices Guide on German and Chinese Administrative Law
and Administrative Litigation: A Handbook for Chinese Administrative Judges) Zhongguo fazhi chubanshe
at116-132.
83
 See Wang Guisong (2016) Xingzheng cailiang de gouzao yu shencha (The Structure and Review of Administrative
Discretion) Zhongguo renmin daxue chubanshe at 63-70.
84
 O’Sullivan v. Farrer (1989) 168 CLR 210, at 216, available at: <http://austlii.edu.au/au/cases/cth/HCA/1989/61.
html>. Referred to in Carter & Bouris Balancing the Public Interest supra note 78 at 5.
85
 See Turle, M. (2007) ‘Freedom of Information And the Public Interest Test’ (23) Computer Law and Security
Report 167, at 171-176; Carter & Bouris Balancing the Public Interest supra note 78 at 11-14.
86
 See, for example, the guidance issued by the UK Information Commissioner and the New Zealand
252 JCL 12:2
 yongxi chen

illustration, several categories of public interest can be found in favour of disclosure,

which include but are not limited to: 87
• informing the public of dangers to public health and safety;
• furthering the understanding of important issues that the public have concerns
over, and facilitating public participation in the debates of them;
• promoting accountability and transparency of public expenditure;
• ensuring accountability in the decision-making of a certain public authority;
• exposing violations of law and misconducts;
• enabling an individual to understand the administrative decision that affects him
or her and helping him or her to seek remedies for the sake of justice and fairness.

The Chinese Approach

The term ‘public interest’ is also extensively used in Chinese legislation. Studies indicate
that this term occurs in 55 laws and 87 administrative regulations in the domain of public
law, but defined by almost none.88 In most cases, public interest is adopted by Chinese
legislators to restrict individual rights. For instance, public interest is used as a valid reason
for expropriation or requisition of private properties,89 and as a condition for withdrawal
of administrative licences.90 Scholars hence stresses the necessity for reining in the broad
discretionary power to define the public interest that is vested with administrative
agencies. Despite continuous debates over the categorization and defining approach of
public interest,91 not much consensus has been reached except for that the public interest
is shared by undetermined beneficiaries and its content changes according to time and
circumstance which entails subjective judgements.92

Ombudsman: ‘Freedom of Information Act Awareness Guidance No. 3’ (UK Information Commissioner’s
Office, 1 March 2007) available at: <http://www.ico.gov.uk/upload/documents/library/freedom_of_information/
detailed_specialist_guides/awareness_guidance_3_public_interest_test.pdf>; ‘Practice Guidelines - Official
Information - Part B: Reasons for Refusing Requests’ (New Zealand Ombudsman, 2011) available at: <http://
www.ombudsmen.govt.nz/index.php?CID=100109#B>.
87
 The categories are encapsulated according to the examples and summaries given by Carter & Bouris
Balancing the Public Interest supra note 78 at 11-14 and Turle ‘Freedom of Information and the Public Interest
Test’ supra note 85 at 169.
88
 Zheng Yongliu (2014) ‘Zhongguo gonfa zhong gongong liyi tiaokuan de wenben miaoshu he jieshi’
(Descriptions and interpretations of the public interest clauses in the Chinese public law) in Zheng Yongliu,
Zhu Yuqing et al (eds) Zhongguo falü zhong de gonggong liyi (The Public Interest in Chinese Law) Beijing daxue
chubanshe at 11-18.
89
 For example, Article 13 of the Constitution provides that ‘the State may, for the public interest, expropriate
or take over private property of citizens in accordance with the law, and pay compensation’. Article 58 of
the Land Administration Law provides that the right to use state-owned land can be withdrawn, subject to
approval of competent governments, if ‘the land needs to be used for the public interest’.
90
 Art. 8, Xingzheng Xuke Fa (Administrative Licensing Law) (adopted by Standing Committee of National
People’s Congress on August 27, 2003, effective July 1, 2004).
91
 See Tao Pan (2004) ‘2004 nian xingzhengfa nianhui “gongong liyi de jieding” zhi yiti yantao zongshu’
(A summary of the seminar on defining public interest in the annual administrative law conference) (4)
Administrative Law Journal 133, at 133-139; Yang Jianshun (2005) ‘Gongong liyi bianxi yu xingzhengfa
zhengcexue’ (Administrative law policies and differentiation of public interests) (1) Zhejiang Xuekan (Zhejiang
Academic Journal) 158, at 162-163.
92
 The focus of academic discussion has shifted to the procedure of defining public interest as well as judicial
review standards concerning the identification of public interest. According to predominant views, when
determining the public interest, administrative agencies should follow due process with respect to the concrete
context, and should adhere to the principle of proportionality. See Zhang Qianfan (2005) ‘Gongong liyi de
JCL 12:2 253
Taming the Right to Information

The ROGI also deliberately leaves the concept of public interest undefined. Different
from most overseas FOI laws guiding public authorities to consider the public interest
which can be served by disclosure, the ROGI requires administrative agencies to focus on the
public interest which can be harmed by non-disclosure.93 While taking an action may promote
a number of interests, not taking it may not necessarily harm each of those interests. And it
is arguably easier to think of an interest promoted by an action than to think of an interest
harmed by not taking the very action. Thus, in a subtle way, the ROGI reduces the scope
of relevant public interests that could be considered.94
Drafters of the ROGI explain that Article 8 (providing that ‘disclosure of information
should not endanger …’) suggests the content of public interest to comprise national
security, public security, economic security and social stability.95 However, these are
interests in favour of non-disclosure. Some Supreme Court justices try to fill the gap
concerning the public interests in favour of disclosure. They contend that the need ‘to be
extensively known or participated by the general public’ as stipulated under Article 9 of
the ROGI (concerning the obligation of proactive release of information) is another public
interest related to disclosure.96 When discussing the public interests which can override
the commercial secrecy interest, they include public health, environment protection, and
also the need to enlarge the public’s right to participate in or monitor administration.97
Some local judges propose to identify a public interest according to the (undefined) scope
of people which the interest in question relates to and necessity in protecting it. They take
public health and environment protection as examples.98
In general, these judges appear to recognize, at least theoretically, the public interests
that are tangible and immediate to the public, and do not exclude the relation between
the public interest and the idea of holding the government accountable to the public.
Nevertheless, since many courts have come to the consensus view that ‘monitoring the
government’ per se is not a qualified need for accessing information, it is doubtful to

goucheng: Dui xingzhengfa de mubiao ji “pingheng” de yiyi zhi tantao’ (The composition of public interest: a
discussion of the objectives of administrative law and the significance of “balancing”’ (5) Bijiaofa Yanjiu (Journal
of Comparative Law [PRC])1, at 6-12; Huang Hui & Mao Yaman (2014) ‘Chengshi fangwu zhengshou Zhong de
“gonggong liyi” gainian ji qi jiediing’ (The concept of public interest and its definition in the appropriation of
urban houses) in Zheng Yongliu et al, The Public Interest in Chinese Law supra note 88 at 104-109.
93
 Art.23, ROGI. On the comparative literature, see Lian Yuqiang (2006) Zhengfu xinxi gongkai zhong de “liwai
guize” yanjiu (On the Exemptions in Open Government Information) (Master of Law Master’s Dissertation),
Huadong zhengfa daxue (East China University of Political Science and Law) at 27-29.
94
 An earlier and non-official draft of the ROGI (submitted by a task force in the Chinese Academy of Social
Science) provides that ‘if there is obvious public interest requiring disclosure […]’. It is unclear why the enacted
ROGI disregards this usual approach of public interest test. See Art. 20, CASS Draft, in Zhou Hanhua (ed) (2003)
Zhengfu xinxi gongkai tiaoli zhuanjia jianyi gao – cao’an, shuoming, liyou (Expert Proposal for the Regulations of
Open Government Information: Draft, Explanation, Considerations and Legislative Pattern) Zhongguo fazhi
chubanshe at 135-136.
95
 Cao & Zhang supra note 3 at 40.
96
 Li Guangyu (2009) Zhengfu xinxi gongkai susong: Linian, fangfa yu anli (Litigation Concerning Open
Government Information: Ideas, Methods and Cases) Falü chubanshe at 140.
97
 Li Annotations supra 30 at 253-54. These interests are summarized by Chinese scholars particularly with
reference to the US case laws about FOI. See also Wang Mingyang, Meiguo xingzhengfa (Administrative Law of
the United States) Zhongguo fazhi chubanshe at 975.
98
 Hou Danhua (2010) ‘Zhengfu xinxi gongkai susong youguan wenti yanjiu’ (Research on problems
concerning OGI litigation) (4) Administrative Law Journal 55, at 59; Wang Xiaobin (2011) ‘Fan xinxi gongkai
susong ruogan yanjiu: Jian ping “Zhengfu Xinxi Gongkai Ruogan Guiding” de xiangguan tiaowen’ (Exploring
the Reverse FOI Litigation: Commenting Relevant Provisions under the Judicial Interpretations on Open
Government Information) (49) Reference J.R. 103, at 103.
254 JCL 12:2
 yongxi chen

what extent the courts would consider the public interests that are commonly recognized
under other FOI regimes but do not relate to the non-political rights of the public, such
as promotion of transparency in public expenditure, or exposure of misconducts which
do not have individual victims. The reported cases analysed below indicate that few
trial judges choose to identify the public interests in increasing transparency for greater
accountability.

Judicial Review of the Public Interest Test

When reviewing administrative decisions affecting individuals’ substantive rights, notably

those about eviction,99 the Chinese courts usually defer to the agencies’ identifications and
interpretations of the public interest. It is thus reasonable to worry that the courts may tend
to blindly support the agencies’ understanding of the public interests relating to disclosing
information. The judiciary nevertheless faces a major difference in the orientation of public
interest: unlike the laws in other realms of administrative law that take public interest
as a limit on substantive rights, Article 28 of the ROGI takes public interest as a promoter
of the right to information. That difference makes the administrative agencies much
less enthusiastic in searching for public interests that entail disclosure obligations. In
this circumstance, the courts should take a more active stance to scrutinize whether the
agencies have considered an obvious public interest in relation to disclosure. They enjoy
sufficient review power in this regard, because the failure to exercise discretionary power
and failure to consider relevant factors are two grounds for quashing administrative
decisions.
Judges agree in academic discussions that the courts should pay close attention to
whether the defendant has taken the public interest test after it had found the information
falling under a certain exemption.100 But the practice shows otherwise. Among the ten
cases retrieved from legal databases that involve the application of the commercial secret
exemption, the courts checked if a balancing test had been undertaken in only five cases
(50%). Similarly, the courts conducted the examination in merely seven out of 18 (39%)
cases that involve the privacy exemption. For those cases that underwent the examination,
the courts adopted different approaches in relation to the private interests at different
fields, as is to be analysed below respectively.

Test Concerning the Commercial Secret Exemption

Calls for weighing commercial secret protection against public interest considerations
often rise when business entities are involved in activities affecting the masses, such as
public utility services, productions with environmental or safety impacts, and in particular
land takings and housing demolitions. The courts have rarely reviewed the identifications
of public interest by administrative agencies, but in their rulings the judges have hinted at
public interest considerations which indicate their perceptions of the test.

99
 See Huang & Mao ‘The Concept of Public Interest and Its Definition in the Appropriation of Urban Houses’
supra note 92 at 110-19.
100
 See Li Annotations supra note 30 at 252.
JCL 12:2 255
Taming the Right to Information

Public utility services

Hearings in the decision-making concerning public utility services is a focal point of

public participation. Numerous OGI requests have been made in respect of such services
to enable informed public debate on the price-setting and effective oversight of the
operation therein. In the Zhao Zhengjun case, the court quashed a refusal to disclose price
hearing materials on several grounds, including that commercial secrets do not cover
all managerial information about the thermal power company submitted to the price
supervision agency.101 It declared that the agency should proactively release information
that involves citizens’ immediate interests or that needs to be extensively known or
participated in by the public, and quoted in particular the ROGI’s provision concerning
the public interest override. A judge responsible for this case explained in an interview
that the company should disclose a part of its internal operation because heating services
involved the interests of all citizens. Thus, the court implied that the defendant should not
have omitted the balancing test and should have considered the public interest related to
the immediate interests of public utility users, which was the reasonableness in the hike of
heating price. In another pending case pertaining to the price hearing of water supply, the
court was also invited to consider the public interest in the accuracy of utility cost, when
it reviewed the disclosability of accounting records in respect of the supply cost calculated
by the water company.102

Eviction

The judicial approach turns evasive in cases concerning eviction. Land appropriation
and housing demolition are almost invariably conducted by property developers, and
documents concerning the developers’ participation in the eviction process have been
frequently requested by affected residents. Disclosure of such documents arguably promote
the public interest in ensuring the legality of eviction and fairness in compensation. In a
reference case adjudicated in Beijing, Wang Jianping, the judge alluded to the public interest
in disclosing an eviction plan and the relevant proofs for the availability of the eviction and
resettlement fund.103 When commenting on the court’s ruling that the plan and proofs
were not commercial secrets, he added that the eviction in the case was conducted by
the government for a municipal project of road modification. In his view, the project was
for the public interest and the use of public funds should be subject to public scrutiny.104
However, in another reference case adjudicated in the costal Jiangsu Province in the same

101
 Zhao Zhengjun v. Zhongyuan District Price Bureau of Zhengzhou City [Zhao Zhengjun su Zhengzhoushi
Zhongyuanqu Wujia Ju] (Intermediate Court of Zhengzhou City, 2 July 2009). See also ‘Zhenghou shimin gao
ying wujiaju; sheji minsheng shangye mimi xu gongkai’ (A Zhengzhou citizen won his litigation against the
price bureau; disclosure ordered of commercial secrets concerning the people’s livelihood), Henan Shanghao
(Henan Business Daily), 27 March 2009.
102
 See ‘Shi fagaiju he shuiwu jituan: Gongshui chengben haishi buneng gongkai’ (City Development &
Reform Bureau and Water Group: Water supply cost cannot be disclosed yet), Southern Metropolis Daily, 29
November 2013.
103
 Zhao Feng (2011) ‘Wang Jianping bufu Beijingshi Zhufang he Chengxiang Jianshe Weiyuanhui zhengfu
xinxi gongkai xingzheng fuyi jueding an’ (Wang Jianping v. Beijing Municipal Housing and Construction
Commission [Re: Administrative appeal decision concerning an OGI decision]) MCAC Reports 340, at 340-342.
104
 Id at 346.
256 JCL 12:2
 yongxi chen

year, Huaxia Experiment School, the court failed to conduct the public interest test after
confirming that commercial secrets were involved in the appendices to the authority’s
decision which had granted the use right of the plaintiff’s land to a third party.105 Instead,
the court persuaded the plaintiff to withdraw the case. The cases retrieved from databases
and media reports show a clear trend that the courts have refrained from reviewing the
public interest test undertaken by administrative agencies. Public interest considerations
in relation to a series of commercial secret claims were have been ignored. These claims,
usually submitted by developers, cover the distribution of eviction compensation for a
commercial project,106 tax payments made by a developer which was engaged in a forced
eviction and in dispute with the evictees over the compensations due,107 a developer’s
application documents for the programme of repairing and demolishing houses affected
by the subway construction,108 and a report commissioned by a water resource agency on
the immigrant resettlement plan resulting from the construction of a hydropower plant.109

Environmental impact assessment

Compared to the public interest of fairness in eviction, environment protection and public
health appear to be the public interests that are more readily accepted by judges—at least,
this is what their academic publications suggest. Yet the courts have not actively recognized
these two public interests. In the Li Xiang case, a prosecutor who worried about the
pollution caused by chemical plants operating in his hometown requested, in his capacity
as a citizen, the environmental agency to disclose the full text of the environmental impact
assessment (EIA) reports regarding major metallurgical projects in Xinjiang.110 Agreeing
with the agency’s application of the commercial secret exemption, the court did not
investigate whether the agency had considered any specific public interest in disclosure.
The court maintained that ‘the result of balancing test rested within the agency’s discretion’,
although it found ‘the result not entirely reasonable’.111 In another case concerning the EIA

105
 Nanjing Huaxia Experiment School supra note 28.
106
 See ‘Fayuan yuanhe chengwei beigao – Sichuan Dazhu xiancheng chaiqian fengbo zhuizong’ (Why is a
court sued: Tracking the eviction incident in Daqian County, Sichuan) Zhongguo Jingji Shibao (China Economic
Times), 10 November 2009.
107
 Ye Liumei et al. v. State Taxation Bureau of Foshan City [Ye Liumei deng su Foshanshi Guojia Shuiwu Ju]
(Intermediate Court of Foshan City, 24 April 2015). See also ‘Dichan kaifashang nashui xinxi shifou gai gongkai?
Chaiqianhu zhuanggao Foshan dishui’ (Should information about a developer’s tax payment be disclosed?
Evictees sued the Foshan local tax bureau), Yangcheng Wanbao (Canton Evening News), 9 December 2014.
108
 Li X v. Huangpu District Development and Reform Commission of Shanghai Municipality [Li Jia su Shanghaishi
Huangpuqu Fazhan he Gaige Weiyuanhui] (Second Intermediate Court of Shanghai Municipality, 9 February
2011).
109
 He Xiaohua v. Guangdong Provincial Department of Water Resources [He Xiaohua su Guangdongsheng Shuili
Ting] (Guangdong Provincial High Court, 9 June 2014). The court of first instance upheld the defendant’s
argument that the report was not the ultimate decision on land taking and resettlement and hence would not
cause major impacts to the public interest. The appellate court overturned the non-disclosure decision on the
ground that the report did not constitute commercial secret.
110
 Li Xiang v. Environment Protection Bureau of Shihezi City [Li Xiang su Shihezishi Huanjing Baohu Ju]
(Shihezi City Court, April 2013). See ‘Shihezi shimin qisu huanbaoju yaoqiu gongkai qiye huanping baogao an
kaiting’ (The court hears the case brought by a Shihezi citizen against the environmental protection bureau for
disclosure of enterprise EIA report) (Yaxin Wang, 27 March 2013) available at: <http://news.ifeng.com/gundong/
detail_2013_03/27/23573293_0.shtml>.
111
 ‘Jianchaguan suqing huanbaoju gongkai huanping baogao bei bohui’ (The prosecutor who sues the
environmental protection bureau for non-disclosure of EIA report has his case rejected), Fazhi Ribao (Legal
JCL 12:2 257
Taming the Right to Information

report on an urban construction project in Shanghai, the court disregarded the plaintiff’s
argument that the project had affected nearby residents’ wellness and hence impacted on
the public interest.112 The courts further refused to consider the public interest in releasing
the full EIA reports concerning incineration plants respectively in the southwestern
Chengdu City113 and eastern Hangzhou City,114 thus frustrating efforts of environmental
activists who were concerned about the carcinogenic effects of urban incinerators and
were attempting to inspect their operators’ compliance with environmental regulations.

Food safety governance

Food safety in China is a public concern that is equally important as, if not more serious
than, environment protection. The concern is epitomised by the continuous public debates
on the desirability of genetically modified (GM) food and other crops since the late
2000s,115 which however was rarely considered in the public interest test. In the Yang Xiaolu
et al. case, the defendant Ministry of Agriculture claimed that commercial secrets were
included in the toxicology test results regarding an herbicide that had been submitted by
its producer, the American chemical giant Monsanto, and that non-disclosure of the results
would have no major impact on the public interest because the herbicide at issue had
been assessed by various authorities and deemed as conforming to legal standards.116 The
court endorsed both claims without addressing any of the public interest considerations
put forward by the plaintiffs, including the grave threats to public health posed by the
herbicide’s carcinogenic element, the possible inaccuracy and falsification in the test
results as raised by agricultural experts, and the herbicide’s damages to non-GM seeds
and to China’s indigenous crops.117 This ruling joins a series of judgements that rejected
activists’ access to information concerning GM crops. Previously, the courts had endorsed
withholding the information on funds distributed by the Ministry of Agriculture to GM

Daily), 11 April 2013.

112
 A v. X Agency [A su Jia Danwei] (First Intermediate Court of Shanghai Municipality, 23 September 2013).
113
 Chen Liwen v. Sichuan Provincial Department of Environment Protection [Chen Liwen su Sichuansheng Huanjing
Baohu Ting] (Intermediate Court of Chengdu City, 2014). The court upheld the non-disclosure decision. See
‘Huanping xinxi gongkai buquan, Sichuan huanbaoting cheng beigao’ (Sichuan environmental protection
department sued for incomplete disclosure of environmental information), Sichuan Fazhibao (Sichuan Legal
News), 20 March 2014; ‘Zhongdian paiwu qiye huanbao xinxi gongkai zaoyu “xinren” zhang’ai’ (‘Mistrust’
clouds disclosure of environmental information concerning closely-monitored polluting enterprises), Gongren
Ribao (Worker Daily), 20 March 2015.
114
 Ke Rongming supra note 56. The court ruled against the plaintiff on the ground that he did not demonstrate
special needs in accessing the information.
115
 ‘Zhuanjinyin kongju’ (The fear of genetic modification), Caixin Zhoukan (Caixin Weekly), 29 March 2010.
116
 Yang Xiaolu et al. v. Ministry of Agriculture [Yang Xiaolu deng su Nongye Bu] (Third Intermediate Court of
Beijing Municipality 2016). The adjudication of the case spanned over two years. See ‘Shenqing gongkai Meiguo
chucaoji duli baogao beiju, Beijing shimin su Nongyebu an kaiting’ (Access denied to the toxicology test report
on a US herbicide, a Beijing citizen appears in court against the Agriculture), Pengpai Xinwen (The Paper News),
17 November 2015.
117
 See ‘Zhuanjiyin guansi shengji kuaguo ban’(An upgraded and internationalised version of litigation over
genetic modification), Changjiang Shangbao (Changjiang Business Daily), 5 April 2015; ‘Sheji shangye mimi de
zhengfu xinxi keyi bu gongkai – Beijing shimin Yangmou deng sanren qisu Nongyebu zhengfu xinxi gongkai
an de jingguo yu qishi’ (Government information concerning commercial secrets may not be disclosable: The
process and implications of the OGI case between Beijing citizens Mr. Yang et al and the Agriculture Ministry)
(Dianfa wang, 13 December 2016) available at: <https://freewechat.com/a/MjM5MTc2OTg4OQ==/2650915409/1>
(accessed 18 July 2017).
258 JCL 12:2
 yongxi chen

biological technologies (on the ground that it involved state secrets),118 the test reports for
the contained experiment and field trial of GM rice (on the ground that they concerned the
deliberation process of biological safety assessment),119 and the plans for commercialisation
of GM food crops and the initiatives undertaken to protect local crops from imported GM
crops (on the ground that they were information yet to be complied by the agency).120 Such
rulings have prevented the public debate on GM food safety from being informed of the
major issues that have been identified in state-sponsored tests and of the corresponding
measures taken by the authorities.

Consumer protection

The only case in which the court has overruled an administrative agency’s application of
the public interest test occurred in the field of market regulation for consumer protection.
In Ren Leliang, the plaintiff requested disclosure of an administrative punishment
decision concerning a hypermarket’s fraud in its promotional activities about which
he had complained to the authority.121 The authority refused on the ground that the
decision involved a third party’s right and that non-disclosure would not cause any major
impact to the public interest, because the punished fraud had not stirred protest of the
affected consumers or other serious consequences. The court rejected the authority’s
narrow understanding of the public interest (which was confined by a social stability’s
perspective), and stressed instead that ‘the promotion activities involved a great number
of consumers and had a considerable impact.’122 The court appeared to have recognized
consumer rights protection as a public interest that can be promoted by making available
the penalties on frauds. By implying a public interest override and ordering disclosure, the
court substituted its own view of where the balance lies for that of the authority, showing
a heightened degree of scrutiny of administrative discretion.

Test concerning the privacy exemption

Compared to the commercial secret exemption, the public interest test under the privacy
exemption is called for in a greater variety of contexts, and is subject to greater judicial
scrutiny. As the author of this article points out in an earlier study, the courts have
made a breakthrough in overruling the balancing test in the field of distribution of social
welfare, and have recognized fairness as a public interest that overrides privacy interests
of the applicants for urban lower-rent public housing and rural homestead lands.123

118
 Yu Liying v. Ministry of Agriculture [Yu Liying su Nongyebu] (Third Intermediate Court of Beijing
Municipality, 10 August 2015).
119
 Ibid It is noteworthy that a lawyer, Wei Rujiu, was denied access to the same information by the Ministry of
Agriculture on state secret grounds, and his challenge to the ministry’s decision was not admitted by the court.
See ‘The fear of genetic modification’, supra note 115.
120
 Huang Leping v. Ministry of Agriculture [Huang Leping su Nongye Bu] (Third Intermediate Court of Beijing
Municipality, 7 April 2015). See also ‘Lüshi su Nongyebu gongkai zhuanjiyin xinxi baisu’ (Lawyer unsuccessfully
sued the Agriculture Ministry for disclosure of GM information), Xin Jing Bao (The Beijing News), 8 April 2015.
121
 Ren Leliang supra note 63.
122
 Ibid. The issue of public interest test was however disregarded in the trial of second instance, for the
appellate court ruled that the information at issue did not involve any commercial secret.
123
 Chen, Y (2015) ‘Privacy and Freedom of Information in China: Review through the Lens of Government
Accountability’ (1, 4) European Data Protection Law Review 265, at 265-276.
JCL 12:2 259
Taming the Right to Information

They nevertheless hesitated to prioritize the fairness in eviction compensation and, more
importantly, refused to undertake the balancing test in relation to information that may
expose corruption or abuse of power, such as incomes of officials who were under public
criticism and records pertaining to allegedly wrong government confiscations of private
housing in the political campaigns.124 The cases collected for the current paper confirm this
observation, and show developments in the requests that directly relate to the requesters’
own substantial rights.

Individuals’ seeking a remedy

Among OGI requests motivated by the need to defence the requester’s own personal or
property rights, the courts used to identify this need as a private interest rather than a
public interest. The public interest consideration in enabling an individual to seek judicial
remedy was explicitly rejected in two cases, which concern a request for the identification
(ID) information of the webmaster of several websites filed by an individual alleging
the websites had infringed his copyrights,125 and a request for the IDs and addresses of
shareholders of a company which had defaulted on obligations due to the requester.126
The refusal to consider private interests may have hindered the court in exploring the
public interests that are associated with such interests. For instance, in Liu Qiuju, a middle
school teacher sought access to records on the merit pay made to all the personnel for the
purpose of justifying her complaint about corruption in school governance.127 In this case,
the requester’s personal interest in finding whether she had been underpaid is arguably
associated with a public interest in redressing maladministration. The court upheld
non-disclosure on privacy grounds without ever addressing the defendant’s failure to
undertake the balancing test.
A change in approach occurred in 2013. Some courts identified the public interests
associated with the requesters’ personal and property rights, and deemed them
outweighing privacy interests, hence remarkably overruling the defendants’ applications
of the balancing test. The identified public interests include protecting children’s health
(which was served by disclosing, to the parents of a student in a kindergarten, the health
examination records complied by the kindergarten on the employed foreign teachers)128
and facilitating evidence collection for resolving a civil dispute (which was served by
disclosing the income of an official who was in litigation with the requester on maintenance

124
 Ibid
125
 Beidou Dingming (Guangzhou) Law Firm v. Guangdong Provincial Bureau of Telecommunication [Beidou
Dingming (Guangzhou) Lüshi Shiwusuo su Guangdongsheng Tongxin Guanli Ju] (Guangdong Provincial
High Court, 6 September 2013).
126
 Beijing Tongbo Youyuan Electro-Mechanical Equipment Company v. Chaoyang Disctrict Sub-Administration
for Industry and Commerce of Beijing Municipality [Beijing Tongbo Youyuan Jidian Shebei Gongsi su Beijingshi
Gongshang Guanli Ju Chaoyang Fenju] (Second Intermediate Court of Beijing Municipality, 12 December 2014).
127
 Liu Qiuju and Qiu Simin v. Yuexiu District Education Bureau of Guangzhou City [Liu Qiuju, Qiu Simin su
Guangzhoushi Yuexiuqu Jiaoyu Ju] (Intermediate Court of Guangzhou City, 16 April 2014). See also ‘“Qiuju”
zai gao Yuexiuqu jiaoyuju’ (‘Qiuju’ sues again the Yuexiu District Education Bureau), Southern Metropolis Daily,
27 September 2013.
128
 Fang Guilai v. Baiyun District Education Bureau of Guangzhou City [Fang Guilai su Guangzhoushi Beiyunqu
Jiaoyu Ju] (Intermediate Court of Guangzhou City, 16 January 2015). See also ‘Bu gongkai you’er jiaoshi jiankang
ziliao, jiaoyuju baisu’ (Failing to disclose health records of kinder garden teachers, the education bureau lost a
lawsuit), New Express, 6 May 2015.
260 JCL 12:2
 yongxi chen

payment).129 The public interest in enabling an individual to pursue remedy has also been
recognized. Administrative agencies were thus ordered to reconsider the balancing test
pertaining to a request for the names and ID number of a resident made by another resident
whose neighbouring rights had been affected by the former,130 and to a request for the names
and addresses of two shareholders of a company in liquidation made by the attorney of the
company’s creditor.131 These rulings suggest a breakthrough in the understanding of the
public interest, according to which public interests encompass not only tangible interests
that are directly shared by the whole community or an undetermined group of people,132
but also an abstract interest of bringing justice and fairness to an individual.

Eviction

Surprisingly, the judicial recognition of the public interest in justice and fairness does not
extend to the field of eviction in which the more important property rights are at stake.
There are five collected cases that similarly concern evictees’ requests for information on
the calculation or payment of compensation offered to other evictees affected by the same
eviction project. Although in one case the court considered that disclosing the information
would promote fairness in eviction,133 the other cases followed the ruling of a referential
case134 and disregarded all public interests that could be involved in this circumstance.135
The overemphasis on privacy interest in eviction compensation is disconnected from the
context of contemporary China. Forced evictions by local governments resorting to unfair
and illegal measures prevail across the country, and frauds have been widely reported
in urban renewal projects and rural land sales. Given the proliferation of incidents of

129
 Shang Yinglin v. Shaoguan City Government [Shang Yinglin su Shaoguanshi Zhengfu] (Guangdong Provincial
High Court, 6 March 2013).
130
 Li Yongfa v. Shunyi District Housing and Construction Commission of Beijing Municipality [Li Yongfa su
Beijingshi Shunyiqu Zhufang he Chengxiao Jianshe Weiyuanhui] (Second Intermediate Court of Beijing
Municipality, 22 March 2013.
131
 Chen X v. Chaoyang Sub-Administration for Industry and Commerce of Beijing Municipality [Chen moumou su
Beijingshi Gongshang Guanli Ju Chaoyang Fenju] (Third Intermediate Court of Beijing Municipality, 20 April
2015).
132
 See Zheng ‘Descriptions and Interpretations of the Public Interest Clauses in the Chinese Public Law’ supra
note 89 at 12.
133
 Liu X v. Guanyinshan Sub-District Office of Nantong City [Liu mou su Nantongshi Guanyinshan Jiedao
Banshichu] (Gangzha District Court of Nantong City, 19 May 2015). See ‘Jiedaoban miaoshi falü bei fayuan
chize wuzhi, baisu hou jubu jiucuo’ (Law-flouting sub-district office denounced by the court as ignorant; it
refuses to right the wrongs despite losing the case), Yangzi Wanbao (Yangtse Evening News), 2 October 2015.
134
 See An Xiaohua (2010) ‘Li Ping su Beijingshi Changpingqu Beiqijiazhen Renmin Zhengfu xinxi gongkai
an’ (Li Ping v. People’s Government of Beiqijia Town of Beijing Municipality [Re: OGI]) MCAC Reports 340, at
340-328.
135
 The four cases are: (1) Yang X v. Chongming County Housing Support and Management Bureau of Shanghai
Municipality [Yang mou su Shanghaishi Chongmingxian Zhufang he Fangwu Guanli Ju] (Second Intermediate
Court of Shanghai Municipality, 8 September 2010); (2) Wang X v. Yongning Town Government of Chengdu City
[Wang mou su Chengdushi Yongningzhen Zhengfu] (Shuangliu County Court, 2013), see ‘Pandian Sichuan
shenqing xinxi gongkai anli: taren chaiqian buchangkuang bu gongkai’ (An inventory of cases on request for
information in Sichuan: Eviction compensation received by others is not subject to disclosure) Chengdu Shangbao
(Chengdu Business Daily), 18 September 2014; (3) Zhang X v. Fangshan Audit Bureau of Beijing Municipality
[Zhang mou su Beijingshi Pangshanqu Shenji Ju] (Second Intermediate Court of Beijing Municipality, 2014), see
‘Sheji geren de xinxi bing bu doushi yinsi’ (Not all personal information amounts to privacy), Dongfang Zaobao
(Oriental Morning Post), 11 February 2014; (4) Guo X v. Jiangtai Township Government of Beijing Municipality [Guo
moumou su Beijingshi Jiangtaixiang Zhengfu] (Third Intermediate Court of Beijing Municipality, 19 June 2015).
JCL 12:2 261
Taming the Right to Information

debased or otherwise unjust compensation, ensuring fairness in calculation and payment

of compensation is a significant public interest in eviction. In fact, a reformative law
governing eviction has provided strong reasons to prioritize this public interest over
privacy considerations.136 In this regard, the courts’ indifference to the public interest in
the fairness of eviction compensation are rather abnormal.
Another surprising trend is that many courts have further utilised the need test to shirk
their duty of interest balancing. In several cases, the courts declared that the requesters
failed to ‘prove disclosure of compensations paid to other evictees relate to [their] special
needs in respect of their production and lives’, ignoring the manifest connection between
such information and the requesters’ need for redressing undercompensation.137 The
problematic tactic was also deployed to requests concerning the right to education.138

CONCLUSION

Based on the categorization and analysis of the sizable sample of cases, a pattern of judicial
preference now emerges in respect of the transparency-related public interests. The
Chinese courts haven’t identified or recognized any public interest that pertains directly
to holding the government accountable to the public, such as exposing abuse of power or
omission, and subjecting public fund use to social scrutiny. They also take little account
of the public interests in facilitating public debate on and citizen participation in policy-
making, particularly in relation to policies that affect crucial societal interests such as food
safety and environmental health, despite that the public inputs concerned will contribute
greatly to the accountability of policymakers. In contrast, the courts tend to recognize,
and sometimes even prioritize, public interests that pertain to the prevention of fraud or
misconduct committed by parties other than the government, particularly in the fields
of social welfare provision, public utility services, and consumer rights protection. They
have come to recognize enabling the requester to pursue remedy as an overriding public
interest. Yet they noticeably turn to disregarding the public interest in brining justice
to an individual in respect of eviction – an issue which often leads to resistance against
government decisions and easily brings about continuous litigation.
The pattern of public interest test is closely linked to that of the need test. The public
interest in exposing malfeasance or corruption hardly stands a chance to be weighed in
the courtroom, because the relevant requests are most likely to have failed the need test.
The same judicial indifference to citizen participation in policy-making underlies both
the public interest test and the need test that allows administrative agencies to disqualify

136
 See Art. 29, Guoyou Tudi Shang Fangwu Zhengshou yu Buchang Tiaoli (Regulations on the Expropriation
of Housing on State-owned Lands and Compensation) (promulgated by the State Council and effective on Jan.
19, 2011). It requires the authorities to release information on the compensation made to households to each
affected household respectively.
137
 See for example Huang Jinquan v. Panyu District Water Resources Bureau of Guangzhou City [Huang Jinquan
deng su Guangzhoushi Panyuqu Shuiwu Ju] (Intermediate Court of Guangzhou City, 15 May 2014), and Guo
Jianshe v. Shangzhou District Government of Shangluo City [Guo Jianshe su Shangluoshi Shangzhouqu Zhengfu]
(Shaanxi Provincial Hight Court, 21 August 2014).
138
 See Bai Yan v. Beijing Language & Culture University [Bai Yan su Beijing Yuyan Daxue] (Haidian District
Court of Beijing Municipality, 11 September 2015) Guan Hanzhen v. Education, Cultural and Sport Bureau of
Zhengzhou City Economic and Technological Development Zone [Guan Hanzhen su Zhengzhou Jingji Jishu Kaifaqu
Jiaoyu Wenhua Tiyu Ju] (Erqi District of Zhengzhou City, 15 August 2016).
262 JCL 12:2
 yongxi chen

activists from filing OGI requests. The growing judicial recognition of the role of disclosure
in helping redress infringements on an individual’s personal or property rights—in the
context of the public interest test—is consistent with the judicial stance towards the need
test that favours the requesters’ ‘real’ need to defend their own substantive rights.
A predominant ‘judicial policy’ results from the combination of the two tests. According
to this policy, the right to information under the ROGI is not a universal right independent
from the right-holder’s substantive rights and, correspondingly, judicial protection should
not extend to the exercise of this right for the purpose of subjecting government behaviours
to public scrutiny. The policy severely inhibits the democratic accountability function of
the ROGI. It blocks political watchdog requests that enable everyone, in their capacity as
citizen, to reveal wrongful exercises of government powers and press the government for
explanation. It also allows administrative agencies to maintain the opacity in the making
of controversial social and economic policies, and thereby hinders activists and other
interested groups in improving such policies. The ROGI is thereby rendered ‘toothless’
and incapable of empowering the civil society. It is a pseudo-FOI law.
The judicial policy has significantly affected the results of transparency reform. By
stressing the function of disclosure in assisting assertion of the requesters’ own personal
and property rights, the courts favour a special kind of transparency that can be named
‘defensive transparency’. Insofar as accountability is also understood as ‘those whose
rights or interests are adversely affected by the actions of someone else having a right
to hold that person to account for the manner in which they have been treated’,139 the
courts maintain a limited connection between transparency and accountability. But this
individualised accountability is different from the public accountability that is based on the
principles of democracy, according to which the government draws its authority from the
people and should report and justify its behaviours to the people.140 Associated with the
individualised accountability, ‘defensive transparency’ is confined by the specific motives
and circumstances of the requester (and taking on an apolitical flavour because it concerns
non-political rights only). It stands in contrast to ‘civic transparency’ that is unconditionally
enjoyed by every citizen who is entitled to calling the government to account as a
matter of political principle. Furthermore, we should not neglect the fact that ‘defensive
transparency’ has been well-established in the administrative law institutions that predate
the ROGI, typically embodied in the obligations for administrative agencies to give
reasons for all their decisions that adversely affected citizens’ rights. By largely rejecting
the dimension of ‘civic transparency’, the courts have tamed the otherwise revolutionary
right to information into an auxiliary means for non-political rights protection.
It should be noticed that even the policy favouring of ‘defensive transparency’ has not
been followed consistently. Although access to eviction-related information contributes
greatly to the defence of property right, many courts are concerned about the political
impacts of disclosure. They worry that the access may enable discontented evictees to
engage multiple litigation that affects the so-called social stability and increases the courts’
caseload,141 or may foster other unwelcomed endeavours to ‘exerting pressure on the
authorities’ for resolving outstanding issues associated with changes in national policies

139
 Mulgan, R (2003) Holding Power to Account: Accountability in Modern Democracies Palgrave MacMillan at 13.
140
 Id at 12.
141
 See Chen ‘Transparency versus Stability’ supra note 7 at 126-133.
JCL 12:2 263
Taming the Right to Information

or for resisting urbanisation plans underscored by local governments.142 These politically

oriented considerations are likely to have inspired the unreasonable handling of the need
test and public interest test in many cases. They further undermine the ROGI’s limited
effects on enhancing ‘defensive accountability’ in the social and economic sphere.
These findings not only further our understanding of the effects of FOI-resembling
law in non-democratic settings, but also shed light on the judicial role in side-tracking
transparency reforms. As far as the two tests are concerned, the courts enjoy considerable
power to scrutinise the government. They have occasionally overruled the agencies’
discretionary decisions on interest balancing, and have made final interpretations of the
qualified needs in accessing information. The courts nevertheless make policy choices
about the qualified needs and public interests in a way not conducive to holding the
government accountable to the public. More importantly, a substantial part of such choices
are in flat contradiction with the law. The Supreme People’s Court has endorsed the
invalid establishment of need test in disregard of the hierarchy of legal norms, and many
local courts have eschewed the obligation to review whether the agencies have undertaken
the statutorily-imposed public interest test. The judges are hence more than inattentive
gatekeepers or passive collaborators with administrative agencies resistant of civic
transparency. They are active policy-makers who eviscerate the ROGI by compromising
the two fundamental principles that uphold the public accountability value of FOI. In this
regard, legislative amendments to the ROGI will not make it a genuine FOI law, unless
actions are taken to address the problem of judicial deviation from the law and, more
generally, the political and institutional environment in which the courts operate.

142
 The dilemma faced by courts in respect of eviction-related OGI cases is a reoccurring point of discussion
among local judges. See for example Lu & Chen ‘Guiding Ideology and Basic Principles on Judicial Review
of OGI Cases’ supra note 37 at 34; Zhejiangsheng Cixishi Renmin Fayuan Ketizu (Task Force of Cixi City
Intermediate Court of Zhejiang Province) (2013) ‘Guanyu zhengfu xinxi gongkai xingzheng susong de diaocha
yu sikao: Yi cixi fayuan 2010 nian yilai de shenli qingkuang wei yangben (Investigation and Thinking on OGI
Administrative Litigation: Based on the Sample of Cases Tried by the Cixi Court since 2010) (61) Reference J.R. 94,
at 96; Jiangsusheng Gaoji Renmin Fayuan (Jiangsu Provincial High People’s Court) (2012) ‘Shenli zhengfu xinxi
gongkai xingzheng anjian ruogan yinan wenti yanjiu’ (On Difficult Issues in the Trial of OGI Administrative
Cases) (54) Reference J.R, 94 at 99.
264 JCL 12:2
 yongxi chen

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin

buqueding falü ganian 不确定法律概念 indefinite legal concept

cankaoxing anli 参考性案例 referential case

guifanxing wenjian 规范性文件 normative documents

Guowuyuan Bangongting 国务院办公厅 General Office of the

State Council (GOSC)

teshu xuyao 特殊需要 special need

toumingdu 透明度 transparency

renshen quan he caichan quan 人身权和财产权 personal and property

rights

xinxi gongkai 信息公开 open government

information (OGI) i.e.
disclosure of government
information
yifa xingzheng 依法行政 administration in accord-
ance with the law

ABBREVIATION OF CASE REPORTS

Abbreviation Title of Case Report
Sup. People’s Ct. Gaz. Zuigao Renmin Fayuan Gongbao (最高人民法院公报) [The
Gazette of the Supreme People’s Court]
Selected Cases Renmin Fayuan Anli Xuan (人民法院案例选) [Selected Cases of
People’s Courts]
Judicature (C) Renmin Sifa - Anli (人民司法·案例) [People’s Judicature
(Case)]
Court News Renmin Fayuan Bao (人民法院报) [People’s Court News]
Reference J.R. Xingzheng Zhifa yu Xingzheng Shenpan (行政执法与行政审
判) [Reference for Administrative Enforcement of Law and
Judicial Review].
J.R. Cases Zhongguo Xingzheng Shenpan Anli (中国行政审判案例) [Chinese
Judicial Review Cases]

JCL 12:2 265

Taming the Right to Information

MCAC Reports Zhongguo Shenpan Anli Yaolan (中国审判案例要览) [Reports on

Major Cases Adjudicated in China]

Please see below detailed explanations of each case report. The details would not be shown
in the article.

Abbreviation Title
Sup. People’s Ct. Gaz. Zuigao Renmin Fayuan Gongbao (最高人民法院公报) [The
Gazette of the Supreme People’s Court]
Published monthly. The section headed “Selected Judgments”
publishes judgments awarded by the SPC, whereas the
section headed “Cases” reports cases adjudicated by local
courts, with each report comprising four parts: abstracts of
the judgments, facts, major issues of the case, and the courts’
reasoning and holdings.
Selected Cases Renmin Fayuan Anli Xuan (人民法院案例选) [Selected Cases of
People’s Courts]
A selection of case reports compiled by the China Institute of
Applied Jurisprudence (affiliated with the SPC) and published
quarterly by the People’s Court Press. Each report has four
segments: facts and arguments of the parties, reasoning and
holdings of the courts, detailed commentaries, and essential
rules extracted from the case.
Judicature (C) Renmin Sifa - Anli (人民司法·案例) [People’s Judicature
(Case)]
A monthly journal published by the SPC with a “Case
Reference” or “Case Study” section, in which each case report
has the same four segments as Selected Cases.
Court News Renmin Fayuan Bao (人民法院报) [People’s Court News]
The daily organ of the SPC, with a “Case Guide” section
reporting on significant cases. Each case report has four brief
segments: facts, holdings, commentaries, and essential rules
extracted from the case.
Reference J.R. Xingzheng Zhifa Yu Xingzheng Shenpan (行政执法与行政审判)
[Reference for Administrative Enforcement of Law and Judicial
Review]
A bimonthly journal compiled by the SPCAD, with a
“Commentaries on Difficult Cases” section, in which each
case report has the same four segments as Selected Cases.

266 JCL 12:2

 yongxi chen

J.R. Cases Zhongguo Xingzheng Shenpan Anli (中国行政审判案例) [Chinese

Judicial Review Cases]
A selection of judicial review case reports compiled by
the SPCAD and published annually by the China Legal
Publishing House. Each report has the same four segments
as Selected Cases.
MCAC Reports Zhongguo Shenpan Anli Yaolan (中国审判案例要览) [Reports on
Major Cases Adjudicated in China]
A selection of cases compiled by the National Judges College
together with the Renmin University of China and published
annually by the China Renmin University Press. Each case
report contains most of the content of judgments and consists
of three parts: facts and arguments of the parties, the court’s
consideration of the evidence and rulings, and commentaries.

JCL 12:2 267

The Shadow of Transparency

The Shadow of Transparency:

Defining, Debating and Deterring
Vexatious OGI Requests in China
CHUN PENG 1
Beijing University

INTRODUCTION

This article examines a burgeoning body of jurisprudence concerning abusive open

government information requests in China, a cause célèbre being the Lu Hongxia case that
is widely considered to be a landmark precedent in this area. Through close reading of the
Lu Hongxia judgment, exploring its doctrinal intricacies and socio-political background,
exposing the deeper-level challenges it demonstrates, and evaluating its position in
a growing body of relevant cases, this article argues that the existing definition of and
solution to abusive OGI requests developed by the Lu Hongxia decision are problematic.
They lack coherence, consistency and even legality in the strict sense, despite constituting
an innovative attempt under present legal and political limitations to deal with abuses
of the right to know in China. So, there is still room for improvement and an alternative
approach is proposed in this essay. It is suggested that adoption of this alternate view
would be more effective in deterring such abuses and, at the same time, more robust in
providing for a citizens’ right to know.
China’s Open Government Information (‘OGI’) regime came into effect by promulgation
of the State Council OGI Regulations on May 1, 2008. Almost a decade on, overall the
system has generated mixed results in terms of achieving its aim of breathing more
transparency into the Chinese state bureaucracy. At the same time, however, citizens’
requests for information have often encountered a less than full-hearted welcome and, also
worryingly, a trend has recently emerged of ‘abusive OGI requests’ or ‘abuses of the right
to OGI requests’.2 The term itself is evocative of how people have been exercising their
rights to request disclosure of certain types of government information in an irresponsible,
unreasonable, frivolous or even unlawful manner. This poses a series of interesting
questions to observers of China’s endeavors towards creating more transparency and
openness in government: has the OGI initiative, still far from being a complete success,

1
 The author would like to thank Yuping Lin for her help in collecting case materials. An earlier version of this
paper appeared in 2016 in Issue 2, Volume 4 of the Peking University Law Journal.
2
 The Chinese term is xinxigongkai shenqingquan lanyong. Other variations include ‘abnormal [OGI] requests’ (fei
zhengchang shenqing), ‘harassment OGI requests’ (jiuchan shenqing) and ‘vexatious OGI requests’ (eyi shenqing).
This article adopts the phrase used most frequently in the literature.
268 JCL 12:2
 chun peng

already reached a critical saturation point which amounts to being ‘too much of a good
thing’? Is the concern in China about abusive OGI requests legitimate and factually based?
Or is it simply a case of the government pointing fingers of blame at Chinese citizens for its
own OGI failures?3 As revision of the 2008 OGI Regulation was formally added to the State
Council’s 2016 legislative working plan,4 the following issue is becoming more relevant,
if not pressing: what is and should be the legal definition of and solution to abusive OGI
requests in China?
This article explores these questions by focusing on the landmark Lu Hongxia case and
its repercussions in three parts. The part which follows introduces and analyzes the first-
instance and second-instance rulings of the Lu Hongxia case to illustrate the standards
to establish abusive OGI requests and the solution thereof formulated by Chinese courts
at three levels right up to the Supreme People’s Court. The next part demonstrates the
impact of the Lu Hongxia ruling on current jurisprudence in China and examines academic
criticism of the judgment, which centers on the court overstepping its proper boundary.
At the same time, it has also been acknowledged by scholars and government officials
that abuses of the right to know are indeed present in China. The third part revisits the
Lu Hongxia case in its contemporary socio-political context and argues that, while the
judgment amounts to a creative first attempt to tentatively resolve the problem within
existing legal and political restraints, there is further room for improvement by means of
an alternative solution identified in this paper.

DEFINING VEXATIOUS OGI REQUESTS IN CHINA:

THE LU HONGXIA CASE

Lu Hongxia has been widely viewed as the first major case in China on abusive OGI
requests, and is regarded as something of a landmark development. On February 27, 2015,
the People’s Court in Gangzha District, Nantong City, Jiangsu Province (the ‘Gangzha
Court’) held a press conference to announce that it had dismissed in total eight OGI-
related lawsuits brought by Lu Hongxia and her father Lu Fuguo to rein in what it defines
a vexatious litigation (lansu).5 Before examining the facts and reasoning underpinning
the ruling, two clarifications should be made. Firstly, it should be noted that there is a
distinction between abusive OGI requests and abusive/vexatious OGI-related litigation.
Briefly stated, the former is a precondition of the latter. For example, whenever the
government turns down vexatious OGI requests and the applicants seek to challenge its
decisions in court, by definition this challenge is considered vexatious/abusive OGI-related
litigation, notwithstanding that it may follow normal OGI applications that are rejected for
the applicants invariably bring up cases that have already been decided in violation of
the principle of res judicata. Given the focus of this paper though, the Lu Hongxia case is
discussed only insofar as it also concerns vexatious OGI requests. Secondly, the Lu Hongxia

3
 Bandurski D, ‘Blaming citizens for OGI failures in China’, available at http://cmp.hku.hk/2015/01/29/38000/,
last visited at June 8, 2016.
4
 2016 State Council’s Legislative Plan, available at http://www.gov.cn/zhengce/content/2016-04/13/
content_5063670.htm, last visited at June 18, 2016.
5
 Wang X, ‘Gangzha Nantong Fayuan Shuaixian Guizhi Zhengfu Xinxi Gongkai Lansu Xingwei,’ (Gangzha
Court in Nantong Pioneers in Regulating Vexatious OGI-related Litigation), available at http://cnews.chinadaily.
com.cn/2015-02/28/content_19675816.htm, last visited at June 12, 2016.
JCL 12:2 269
The Shadow of Transparency

case in fact involved eight separate yet closely connected lawsuits. Lu Hongxia and her
family members each initiated multiple lawsuits between 2013 and 2014. For all of the
eight cases, there is a court ruling to dismiss the action.6 Despite differing facts (such as
the information requested and government departments involved), the dismissals are
basically the same in their legal reasoning and ruling.7 As such these individual lawsuits
have been lumped together in this paper and referred to as the Lu Hongxia case, as they
were also by the Gangzha court at its 2015 press conference.

Facts and First-Instance Ruling of the Lu Hongxia Case

At the 2015 press conference, the Gangzha court reported that it received numerous
complaints from the Lus and in the process of assessing the merits of the complaints, it
conducted investigation ex officio with the city government’s office of legal affairs, a lower
level county court and the city’s intermediate people’s court. They felt it significant that
between 2013 and 2015 Lu and her father Lu Fuguo along with Lu’s aunt, Zhang Lan, asked
the local authorities to disclose information on at least 94 occasions. In many instances, the
three persons sent the same OGI requests separately to the same government agencies.
Their requests covered a wide variety of issues: the government’s budget reports, the
number, brands and licence plate numbers of vehicles owned by the local government, the
standards required for detainees’ meals, information about certain detention decisions,
and information related to several city development projects. After being rejected, the
father-daughter duo went on to file 39 administration reconsideration applications against
local government bodies, followed by another 36 OGI-based lawsuits in court.
The Gangzha court held that the OGI requests of Lu Hongxia and her father should be
regarded as abusive for four reasons. Firstly, the Lus had filed a very large quantity of OGI
requests—94 in total; on January 2, 2014 alone, the Lus sent 10 requests. Secondly, members
of the Lu family had made similar or identical OGI requests to the same government agencies
simultaneously. In other words, the government was receiving basically the same requests
from different Lus. Thirdly, the Lus’ requests were ‘all-encompassing’ (baoluowanxiang)
covering the multitude of issues mentioned above. Moreover, many of their requests were
more of the nature of consultations than they were OGI applications, and therefore should
not have raised under the OGI Regulations. And Lu Hongxia knowingly asked for some
information that fell outside the scope of government information required to be disclosed
by the OGI Regulation. Fourthly, some of the Lus’ requests were apparently inconsistent
with the legitimate purposes of making an application as characterized in the OGI
Regulations. They were made not out of a need to access information, but rather a desire
to express discontent. Indeed, through OGI requests and subsequently administrative and
judicial remedial channels, the Lus intended to maximize their personal interests in land
expropriation by pressurizing the government into raising the compensation for their land
and houses compulsorily resumed by the local government.8

6
 The most famous of these later quoted in the Supreme People’s Court Gazette is available at http://cebbank.
chinalawinfo.com/newlaw2002/slc/slc.asp?db=fnl&gid=125437947, last visited at June 14, 2016.
7
 But there are indeed important nuanced differences that will be discussed later in the paper.
8
 ‘Nantong Intermediate People’s Court Holds Press Conference, Pioneering in Regulating Abusive OGI-
related Litigation’, available at http://www.ntfy.gov.cn/contents/525/6075.html, last visited at June 13, 2016.
270 JCL 12:2
 chun peng

In view of the above, and given that exercise of citizens’ liberties and rights may not
harm national, social and collective interests nor the lawful liberties and rights of other
citizens,9 and must be exercised in a way that is consistent with the form, procedures
and core values of the law, the Gangzha court—as it claimed at the press conference and
formally stated in the court judgment—was correct in lawfully rejected the eight OGI-
related lawsuits lodged by the Lus.
Furthermore, since the existing law has yet to offer clear rules on how to regulate abusive
OGI requests, in order to stop further abuses of the OGI system and to ensure that public
resources are utilized efficiently, in the ‘spirit of the legislation’ (lifa jingshen) the court
ruled that whenever Lu Hongxia makes disclosure applications to government bodies or
files OGI-based administrative litigation at the court in future, her motions must be subject
to strict scrutiny according to the existing provisions of the OGI Regulations. In addition,
Lu Hongxia the plaintiff must supply evidence to demonstrate (juzheng shuoming) that her
OGI application and litigation satisfy her own ‘special needs of production, livelihood and
scientific research’. Otherwise she would face ‘negative consequences’.

Lu Hongxia’s Fight Back

After the press release by the Gangzha court, Lu Hongxia posted an open letter online
in response. The username she adopted was ‘Lu Hongxia the Rights-defending Woman
in Nantong’ and the title of her letter was ‘Statement by Lu Hongxia on Gangzha
Court’s Libeling Litigant’.10 In this letter, Lu refuted the dismissal handed out by the
Gangzha court. Her overall argument was that the court was acting as an accomplice to
the local government and its various departments in violating the OGI Regulation and
undermining her and her father’s legal rights to government information. Specifically,
she identified the eight cases which the Gangzha court labeled as abusive OGI requests
and explained why the court’s decision was nothing short of a scandalous smear against
innocent and law-abiding citizens. Lu Hongxia claimed that in 2013, her father, being a
property expropriatee under Nantong City’s Northern Avenue development project, sent
four requests to the local departments in charge of construction, audit, and land resources,
as well as of development and reform, asking for information about the development
project’s approval documents, audit report, the papers authorizing expropriation and
capital investment. These local government bodies, as suggested by Lu Hongxia, had
withheld the information, provided incomplete information or provided information in
unlawful form. Hence her father followed up, seeking administrative reconsideration by
a superior administrative authority at the next higher level and litigation. As to her own
case, Lu Hongxia explained that in 2012 her house was condemned for a greening project
to the west of Changping Road in Gangzha District. Until the house demolition, she had
never been served with the authorization documents of expropriation. Nor did she sign

9
 Here the Gangzha court was quoting Article 51 of the 1982 Constitution, though it did not explicitly refer to
it as this would have obvious implications for the ‘judicialization’ of the Chinese Constitution, something that
Chinese authorities have been reluctant to encourage.
10
 Hongxia Lu, ‘Lu Hongxia jiu Jiangsu Sheng Nantong Shi Gangzha Renmin Fayuan Wumie Dangshiren
Shijian de Shengming’ (Statement on the Smear Campaign Launched against a Litigant by Gangzha Court in
Nantong of Jiangsu Province), available at http://bbs.tianya.cn/m/post-828-1122593-0.shtml, last visited at June
13, 2016.
JCL 12:2 271
The Shadow of Transparency

any compensation agreement with the district government. She then petitioned against
the expropriation decision through the letters and visits system reconsideration in person,
first locally and ultimately in Beijing. She was taken into custody by the local government
in 2013. Thus, while two of her four OGI requests targeted the authorization documents
of the greening project and expropriation, the other two were indirectly about her own
detention. One was asking for information about the standards of meals for detainees at
the Nantong City detention center in the year 2013; the other was concerned the local
police bureau’s recording of her emergency which she made when she was arrested at a
local train station.
On top of campaigning through the media, Lu Hongxia went on to appeal against the
first-instance ruling of the Gangzha court at Nantong’s Intermediate People’s Court. There
were three lines of argument in her petition for the appellate court to overturn the first-
instance ruling. Firstly, the first-instance court had overstepped its lawful authority by
investigating her father and aunt’s OGI requests and subsequent filing of administrative
reconsideration and litigation, which in Lu Hongxia’s view were irrelevant to her case
before the court. Second, the court wrongfully mixed Lu Hongxia’s requests with those of
her father’s and aunt’s. These three should be treated as independent legal subjects who
are responsible for, and only for, their own actions. Thirdly, the first-instance court had no
authority to impose restrictions upon Lu Hongxia’s future OGI requests or to demand that
the government and other courts place her requests and lawsuits under stricter scrutiny.
Essentially, Lu Hongxia’s appeal centered on the notion of ultra vires, in other words the
Gangzha court had stepped outside its proper boundaries in conducting background
checks on her family members’ activities, clustering the actions of different members of
the Lu family together and labeling them as abusive OGI requests, and in laying down
harsher restraints over her initiating OGI applications in the future.

The Lu Hongxia Case Goes National

On July 6 of 2015, Nantong Intermediate Court handed down its final decision on the Lu
Hongxia case. It dismissed the petition and affirmed the first-instance ruling.11 Compared
with the media attention generated by the press conference earlier in 2015, the appellate
court’s ruling went largely unnoticed. Yet the matter of vexatious OGI requests finally
entered into national consciousness when the Lu Hongxia case was selected late in 2015
to be published in the Gazette of Supreme People’s Court (the ‘GSPC’).12 Since 1985 the
GSPC has been published both at home and overseas. Apart from promulgating judicial
interpretations and instructions, the GSPC has also published cases decided by courts at
different levels across the country. Since 1998, the selection of cases is done through a
three-step procedure: first, the editorial team of the GSPC is responsible to make the initial
choice of cases; then the chosen cases are sent to subordinate divisions of the Supreme
People’s Court (the ‘SPC’) according to the area of law involved for review; finally it is up

11
 The judgment is available at http://www.pkulaw.cn/case/pfnl_1970324853439243.html?match=Exact, last
visited at June 15, 2016.
12
 Lu Hongxia Su Nantongshi Fazhan Gaige Weiyuanhui Zhengfu Xinxi Gongkai Dafu An (Lu Hongxia
v. Nantong Municipal Commission of Development and Reform), (2015) 11 Zuigao Renmin Fayuan Gongbao
(Supreme People’s Court Gazette), available at http://cebbank.chinalawinfo.com/Newlaw2002/SLC/SLC.
asp?Db=cas&Gid=125437947, last visited June 15, 2016.
272 JCL 12:2
 chun peng

to the deputy president of the SPC in charge of the concerned area to decide if the case
should be published in the GSPC.13 This ensures that GSPC cases are at least a correct
application of the law in the eyes of the SPC, which is worthy of promotion at the highest
level of China’s judicial hierarchy. Nevertheless, it should be noted that the GSPC cases
do not have precedential value, nor in the Chinese context are they even ‘guiding cases’
(zhidaoxing Anli). In other words, the cases do not have any binding effect on lower level
courts. That said, empirical research on GSPC administrative litigation cases shows that
they do have a de facto persuasive effect upon courts across the country, which is likely due
to the reason that they go through a relatively rigorous selection and approval process
by the SPC.14 As a matter of fact, the Lu Hongxia ruling did have considerable impact on
subsequent jurisprudence among Chinese courts, which will be discussed later in this
paper.
Irrespective of this, the SPC’s selection of the Lu Hongxia case can be legitimately taken
as an indication of its approving attitude towards the case in particular and its position
on the issue of abusive OGI requests more generally. This is why this case has gained
nationwide attention and is now regarded as the first milestone in this field. Therefore,
the Lu Hongxia case can be used to distill judicial reasoning on abusive OGI requests
supported by the SPC.
Both the first-instance and second-instance rulings of the Lu Hongxia case were
incorporated verbatim into the GSPC report. The former has been presented above—we
now turn to the latter. As already shown, on appeal, Lu Hongxia made a three-pronged
argument based on the principle of ultra vires: the Gangzha court overstepped its lawful
authority in inquiring into and lumping together the actions of different members of the
Lu family when trying the case brought rightfully by Lu Hongxia, and in placing more
stringent barriers for her future OGI requests and OGI-based litigations. The appellate
court’s decision is as follows. Firstly, the first-instance court does have the authority to
conduct investigation into Lu Hongxia’s relatives’ OGI-related activities by consulting
other government agencies and courts. Article 34 of the 1989 Administrative Litigation Law
(now Article 40 of the same law as amended in 2014) provides that people’s courts have
the power to collect evidence from other administrative departments, organizations and
citizens. Article 22 of the SPC’s Provisions on Issues concerning Evidence in Administrative
Litigation stipulate the same.
Secondly, the first-instance court was within its authority to lump together OGI requests
made by the Lu family and to consider them as abusive. The reason is basically the same
as stated by the first-instance court except that the appellate court suggested that although
the three members of the Lu family were making OGI requests under their respective
names, their applications were for a common purpose, which then renders their actions
common (gongtong xingwei). Therefore, Lu Hongxia should also be held responsible for the
actions of her father and aunt.
Thirdly, the appellate court held that it was lawful for the first-instance court to impose
stricter restraints over Lu Hongxia’s future OGI requests. Article 13 of the OGI Regulation

13
 Ding H, 2008, ‘Woguo ‘Anli Gongbu Zhidu’ de Shizheng Kaocha ji Qishi’ (Empirical Examination of China’s
System of Publicizing Judicial Cases and its Lessons), 141 Dangdai Faxue (Modern Legal Science).
14
 Chen Y (2011), ‘Gongbao Anjian dui Xiaji Fayuan Tonglei Anjian Panjue de Keguanyingxiang’ (Objective
Influence of Cases published by Supreme People’s Court Gazette on Similar Cases of Subordinate Courts) (2011,
176) Zhongguo Faxue (China Legal Science).
JCL 12:2 273
The Shadow of Transparency

empowers citizens to file OGI requests with the government based on the special needs
of such matters as their own production, livelihood and scientific research. Article 20 of
the same law requires that citizens shall normally file OGI requests in written form, which
is supposed to include the name and contact details of the applicant, a description of the
government information requested to be disclosed and requirements as to the format
in which the requested government information is to be supplied. The OGI Regulation
does not demand the applicants to explain at the time of filing requests why the disclosed
information is sought after or how it is to be used. Hence the government shall not
arbitrarily add this as an obligation that the applicants must fulfill when submitting OGI
requests. Nevertheless, the appellant’s continuous, trivial, frivolous and even harassing
OGI requests amounted to abusing the right to access government information and crossed
a line in relation to the lawful exercise of one’s rights, which should be prevented from
being repeated. The first-instance court’s imposition of certain restraints over her future
requests was for the sake of upholding the honor of the law and promoting efficient use
of public resources, and most importantly in line with the legislative spirit and purpose of
the OGI Regulation.
To summarize, from the Gangzha court to the Nantong intermediate court and then to
the SPC, the Lu Hongxia case has established a judicial position concerning abusive OGI
requests in China. Despite Lu’s explanation, petition and appeal, courts at three levels,
especially at the top, have all regarded her and her relatives’ actions as abuses of the right
to government information. The following chart summarizes the courts’ thinking and
underlying justification about the methods to identify abusive OGI requests, the criteria of
identification and the preferred solution.

Decision Justification

How to identify The adjudicating court can
abusive OGI collect information not only
requests? about the party to the case in
issue, but also about others who
have sent OGI requests along
with the party.
Various parties send out the OGI
requests for a common purpose,
making it their common action,
for which any one of them is
responsible.

a. Numerous requests Citizens’ exercises of liberties

b. Repetitive requests
c. All-encompassing requests
(including consultation-type
When do requests and requests intended
abusive OGI for information outside the scope
requests of OGI Regulation)
happen? d. Ulterior purpose (not for
the information per se, but for
expressing discontent against
and putting pressure on the
government)
and rights shall not harm the
national, social and collective
interests as well as other citizens’
lawful liberties and rights; rights
must be enjoyed in a way that
is consistent with the forms,
procedures and inner values of
the law.

274 JCL 12:2

 chun peng

Strict scrutiny of the applicant’s Though existing law is yet to

future OGI requests and require
him/her to provide evidence
What to do with to explain the requests are to
abusive OGI satisfy his/her own special
Requests? needs of production, livelihood
and scientific research to avoid
negative consequences.
offer clear rules on abusive
OGI requests, to impose such
restraints is to uphold the honor
of the law, to stop further abuses
of the OGI system and to ensure
that public resources are utilized
efficiently, which is consistent
with the spirit and purpose of the
OGI Regulation.

DEBATING ABUSIVE OGI REQUESTS IN CHINA:

THE LU HONGXIA CASE AND BEYOND

Beyond the Lu Hongxia Case

A year and half has passed since the publication of the Lu Hongxia ruling in the GSPC. As
mentioned, it does not constitute a guiding case and should only have a persuasive effect
upon later cases. But exactly how persuasive has it been? In order to assess the impact of
China’s first landmark case on abusive OGI requests, on January 18, 2017 we conducted
keyword search with ‘abuse’ and ‘rights to file OGI requests’ on the three most popular
and comprehensive databases of Chinese cases, namely lawinfochina.com, itslaw.com and
wenshu.court.gov.cn. The search yielded in total 102 results excluding the Lu Hongxia case
from 2014 to early 2017. Thirty parties were involved in these 102 cases as some brought
multiple (up to 21) lawsuits dealing with different OGI requests submitted and tried at
different tiers of the judicial hierarchy. Given that the rulings are basically the same in all
cases concerning one party and that to treat them separately would give unequal weight
to essentially similar rulings, we aggregate numerous cases filed by the same party and
adjudicated by the same court and count them as one in our analysis. In this light, we have
35 distinct types of court ruling for close examination. The GSPC is a monthly publication
that comes out on the 10th day of every month. As already explained, the Lu Hongxia
ruling was published in Issue 11 of 2015, meaning that it was published on November 10,
2015. With this as the dividing line, we have 8 cases prior to the judgment and 27 cases
afterwards. It is worth noting that two of the 8 cases took place before November 10, 2015
were actually influenced by the initial Lu Hongxia ruling.15 This is because the Xu Houfeng
ruling was almost a verbatim copy of the Lu Hongxia one, listing out four criteria for
identifying abusive OGI requests that look precisely the same line as that which was laid
down subsequently. Although the Xu Houfeng ruling was handed down on 1 July 2015,
prior to the publication of the aforementioned edition of the GSPC, it must have consulted
the first-instance ruling of the Lu Hongxia case that came out on 27 February 2015. It is the
same with the Zhang Zhifa case, which was decided on 9 November 2015.16 These two cases

15
 Xu Houfeng yu Xuanchengshi Xuanzhouqu Renminzhengfu Chexiao Xinxigongkaigaozhishu Yishen
Xingzheng Caidingshu (Houfeng Xu v. People’s Government of Xuancheng District of Xuancheng Municipality).
16
 Zhang Zhifa yu Chongqingshi Fengjiexian Renminzhengfu Bilüxing Xingzhengfuyi Fadingzeren Ershen
Caidingshu (Zhifa Zhang v. People’s Government of Fengjie County of Chongqing Municipality).
JCL 12:2 275
The Shadow of Transparency

should thus be considered as inspired by the Lu Hongxia ruling and shall be added to the
other 27 rulings that were made after the GSPC publication of the Lu Hongxia case and
presumably influenced by it. Therefore, among the 35 distinct judgments between 2014
and early 2017, there are 29 cases which provide a suitable sample for assessing the impact
of the Lu Hongxia ruling. Before further detailed analysis, it is apt to summarize the prior
jurisprudence on abusive OGI requests in China.
Judicial attitude towards abusive OGI requests prior to the Lu Hongxia ruling can be
summarized as cautious and restrained. In three of the six cases, the courts held in favour
of the plaintiffs whose OGI requests were turned down or simply not replied to by the
defending governments, despite the fact in all three cases the governments argued that
abuses of the right to know were present. For instance, in the Tan Changzhong case, the
defendant government claimed that the plaintiff was abusing his right to know by asking
for information unrelated to his special needs of production, livelihood and scientific
research and for information already disclosed to him. Hence the plaintiff’s requests were
treated as petitions submitted under the letters and visits system and not replied at all.17
In the Chen Guangrong et al case, the defending government also treated the plaintiffs’ OGI
requests as letters-and-visits petitions and did not respond, suggesting that the information
requested fell outside the purview of OGI system.18 In both cases, the courts ruled against
the government for not responding to the OGI requests and did not support the defendants’
claim for abusive requests. When the court did acknowledge multiple requests in the
Nantong Hongfeng Lilai Wood Company Limited case, it found that the information sought
was not disclosed previously and that the requests in question were not repetitive.19 In
the other three cases where the courts ruled in favour of the government and held that
repetitive requests and requests unrelated to one’s special needs of production, livelihood
and scientific research amount to being abusive, the legal consequence was just dismissal
of the plaintiff’s action in that particular lawsuit, which is a procedural decision (caiding)
rather than a substantive judgment (panjue). Simply put, jurisprudence on abusive OGI
requests before Lu Hongxia centered around three special needs and repetitiveness; and the
solution advanced was dismissal of action in individual litigations.
As mentioned above, there are 29 cases decided that were presumably influenced by
the Lu Hongxia ruling. Of those, 14 judgments include content similar to the Lu Hongxia
ruling, which can be further divided into two types. On the one hand, 7 cases invoked both
the criteria for establishing abusiveness in OGI requests and the preemptive approach to
deal with future requests first proposed by the Lu Hongxia decision. Two were decided by
Gangzha District Court and Nantong Intermediate Court, i.e. the first and second instance
courts of the Lu Hongxia case.20 Three were decided by the Wenzhou Intermediate Court

17
 Tan Changzhong yu Yuananxian Renminzhengfu Bulüxingfadingzhize Yishenxingzheng Panjueshu.
(Changzhong Tan v. People’s Government of Yuan’an County (Guangrong Chen et al v. People’s Government
of Zhuzhou County).
18
 Cheng Guangrong, Hu Xinqi, Cheng Guangqiang, Chen Sihua yu Zhuzhouxian Renminzhengfu Bu lüxing
Zhengfugongkaifadingzhize Yishen Xingzheng Panjueshu (Guangrong Chen et al v. People’s Government of
Zhuzhou County).
19
 Nantong Hongyelilai Muye Youxiangongsi yu Nantongshi Tongzhouqu Zhangzhishanzhen Renminzhengfu
Yishenxingzhengpanjueshu (Nantong Hongfeng Lilai Wood Company Limited v. People’s Government of
Zhang Zhishan County of Tongzhou District of Nantong Municipality).
20
 Qian Haijun yu Nantongshi Zhufangbaozhang he Fangchanguanliju Xingzhengjiandu
Yishenxingzhengcaidingshu (Haijun Qian v. Burea of Social Housing and Real Estate Administration of Nantong
276 JCL 12:2
 chun peng

and two by two different courts in Changzhou City of Jiangsu Province.21 This means that
only three other courts have strictly followed suit in the immediate wake of Lu Hongxia.
On the other hand, 7 cases adopted the criteria for identifying abusive OGI requests
developed by the Lu Hongxia ruling but not the same solution. More specifically, courts in
these cases stopped at dismissing the abusive plaintiffs’ actions without imposing greater
restraints over future requests. Among the other 15 cases, repetitiveness was the most
common ground for establishing vexatiousness in requests, accounting for 8 rulings where
the courts dismissed action without creating a barrier for future requests. Overall, this
demonstrates that the much-publicized Lu Hongxia case has had only limited influence,
but a pertinent question remains as to why?

Criticism of the Lu Hongxia Ruling

The Lu Hongxia ruling has so far received a mixed reception. Many judges and government
officials have praised it for clarifying the identification of and a solution to the problem
of abusive OGI requests. Thus, this case has been hailed as pioneering important legal
terrain.22 However, it has also been subject to much pointed criticism, which runs mainly
along three lines.
To start with, it has been suggested that it is problematic that the court extended its
power of inquiry beyond the parties to the case in issue and also clustered together the
OGI requests made by different members of the Lu family to consider them as abusive.
This has no statutory basis in Chinese law at all. Lu Hongxia, her father and her aunt all
have their own independent rights to government information and the court has proffered
no reasonable explanation as to why their separate actions should be treated as common.
More importantly, such an expansion of the courts powers of inquiry potentially will lead
it down a slippery fact-finding slope: in the Lu Hongxia case, it is the close relatives of one
family—in other cases, it may well be members of the same village, especially when they
make OGI requests about the land expropriation at the same time.23

Municipality); Qian Haijun yu Nantongshi Guotuziyuanju Chongchuanfenju Ershenxingzhengcaidingshu

(Haijun Qian v. Chongchuan Branch of Burea of Land Resources of Nantong Municipality).
21
 Xu Yinchai yu Ruianshi Renminzhengfu、Wenzhoushi Renminzhengfu Xingzhengfuyi Yishen Xingzheng
Caidingshu (Yinchai Xu v. People’s Governments of Rui’an Municipality and Wenzhou Municipality); Bao
Quandi yu Ruianshi Renminzhengfu Zhengfuxinxigongkai Yishen Xingzheng Caidingshu (Quandi Bao v.
People’s Government of Rui’an Municipality); Cai Shijie yu Ruianshi Renminzhengfu Zhengfuxinxigongkai
Yishen Xingzheng Caidingshu (Shijie Cai v. People’s Government of Rui’an Municipality); Zhou Yanming yu
Jiangsusheng Jintan Jingjikaifaqu Guanliweiyuanhui Bulüxing Xinxigongkai Fadingzhize Yishen Xingzheng
Caidingshu (Yanming Zhou v. Administration Committee of Jintan Economic Development Zone of Jiangsu
Province); Zhou Yanming yu Jiangsusheng Jintan Jingjikaifaqu Guanliweiyuanhui Ershen Xingzheng
Caidingshu (Yanming Zhou v. Administration Committee of Jintan Economic Development Zone of Jiangsu
Province).
22
 Li G, Geng B, Zhou M, 2015, ‘Zhengfu Xinxi Gongkai Feizhengchang Shenqinganjian de Xianzhuang yu
Duice,’ (Current Situation of and the Response to Abnormal OGI Requests), (2015, 4) People’s Judiciary (Renmin
Sifa); Geng B and Long F (2016), ‘’Bijiaofa Shiyexia Qisuquan de Lanyong yu Xianzhi’—Jiantan Lu Hongxia
Su Nantongshi Fazhanhegaigeweiyuanhui Zhengfu Xinxigongkaian de Geanjiazhi (Abuse and Constraint of
Rights to Sue from a Comparative Law Perspective), available at http://www.aiweibang.com/yuedu/74038070.
htm, last visited at June 16, 2016；Hou X, ‘Xinxigongkai Shenqingquanlanyong: Chengyin、Yanpan yu Guizhi,’
(Abuse of OGI Rights: Causes, Analysis and Regulation)’ (2015, 10) Renmin Sifa (People’s Judiciary).
23
 Liang Y, 2016, ‘“Lansu Zhibian: Xinxi Gongkai de Zhidu Yihua Jiqi Jiaozheng,’ (Examining ‘Abusive
Litigation’: Deviation of the OGI System and its Correction) (2016,177) Huadong Zhengfa Daxue Xuebao (Journal
of East China University of Political Science and Law).
JCL 12:2 277
The Shadow of Transparency

The second line of criticism against the Lu Hongxia ruling is that the court’s identification
of abusive requests is problematic. On the one hand, the court’s finding of ulterior or
illegitimate purpose on the part of the Lus is largely an unsupported conjecture. There is
no evidence, at least as demonstrated by the judgment, to support the determination that
the Lus make OGI requests to express anger or harass the government. Their numerous,
repetitive and all-encompassing requests may appear prima facie dubious—yet without
further oral or physical evidence pinning them down as abusive and harassing is difficult.
If the Gangzha court’s corollary is followed through to logical conclusion, whenever
a person makes multiple OGI requests it can always be deemed as abusing their right
to government information.24 On the other hand, the Lus may simply be zealous or
enthusiastic OGI applicants—that does not necessarily make them abusive.25
Lastly but not least, the Lu Hongxia ruling has come under fire for its proposed solution
to the problem of abusive OGI requests. As demonstrated previously, the Gangzha court
required that when filing OGI-based litigation in the future, Lu Hongxia must supply
evidence to prove that her requests are for her personal needs of production, livelihood
or scientific research or her case will be dismissed. This is known as the ‘three needs’
provision of the 2008 OGI Regulation, Article 13 of which states:
In addition to government information disclosed by administrative organs on their
own initiative provided for in Articles 9, 10, 11 and 12, citizens, legal persons or
other organizations can, based on the special needs of such matters as their own
production, livelihood and scientific research, also file requests with departments
of the State Council, local people’s governments at all levels and departments
under local people’s governments at the county level and above to obtain relevant
government information.
On April 29, 2008, two days before the OGI Regulation becoming effective, the General
Office of the State Council, which according to Article 3 of the Regulation is the national
department in charge of OGI work in China, issued a notice instructing lower level
governments on how to implement the Regulation.26 Article 14 of this Notice suggests that
administrative departments may refuse to disclose requested government information
that is unrelated to the applicant’s own special needs of production, livelihood or scientific
research.27 In other words, unless the applicants can successfully demonstrate to the
government that his/her request is indeed to satisfy one or more of his/her ‘three needs’,
the requested government agency has the discretion to refuse disclosure. Over the years,
the ‘three needs’ provision has been used not only by the government28 but also by the
court29 as grounds to dismiss OGI requests and related lawsuits.

24
 According to Professor Yao Jinju at the Law School of Beijing University of Foreign Studies, available at
http://leaders.people.com.cn/n/2015/0313/c58278-26686971.html, last visited at June 17, 2016.
25
 Liang, ‘Abusive Litigation’, supra note 23, at 183-184.
26
 State Council’s Opinions on Implementing the PRC Regulation on Open Government Information.
27
 This provision has been affirmed again in the General Office of State Council’s Opinions on Better Handling OGI
Requests, issued on January 12, 2010.
28
 Wan J, ‘“Sanxuyao” chengwei jubu gongkai xinxi jiekou,’ (Three Needs Became Excuses for Not Disclosing
Information) Fazhi Ribao (Legal Daily), 5 May 2015, available at http://news.ifeng.com/a/20150505/43691129_0.
shtml, last visited at June 16, 2016.
29
 Zhu Hongzhang su Beigao Jinhuashi Caizhengju Caizheng Xinxi Gongkai’an (Zhu Hongzhang v. Financial
Bureau of Jinhua on Disclosure of Fiscal Information), available at http://pkulaw.cn/case/pfnl_1970324854843826.
278 JCL 12:2
 chun peng

However, the above position has since been widely criticized for unduly imposing
a barrier to citizens’ OGI requests. Firstly, the literal reading of Article 13 of the OGI
Regulation does not automatically yield the conclusion that OGI requests must be based
on the ‘three needs’ — all it says is that they can be based on the applicant’s special
needs. Secondly, Article 20 of the same law does not include an explanation of potential
usage of the disclosed information in the materials any OGI applicant must submit to
the government. Thirdly, many Chinese academics have argued that the ‘must’ reading
contradicts both the legislative intent and the global trend of not placing any obstacle with
respect to how disclosed information is going to be used after it has been disclosed.30
Against this background, in 2010 the SPC issued a reply to the question raised by
a subordinate court, in which the SPC clearly stated that whether or not a certain OGI
request is related to the ‘three needs’ of the applicant should be a matter for substantive
judgment and it is improper to be regarded as a prerequisite for the applicant to qualify
as a plaintiff.31 In other words, even without meeting the ‘three needs’ provision the
applicant shall still be able to file his/her case in court, which cannot dismiss the action
outright. Such a position became further solidified and elaborated on in 2011 by the SPC’s
Provisions on Issues concerning the Adjudication of OGI Cases, which contains two clauses
concerning this matter. Article 5 (6) stipulates that in OGI-based administrative litigation
if the defendant, namely the government department, refuses to disclose information
because such information is unrelated to the ‘three needs’ of the applicant, the court can
ask the plaintiff to explain that her or his request is actually for special need(s). Article 12
(6) stipulates that if the applicant fails to explain the connection between the OGI request
and the defending administrative agency refuses to disclose for that reason, as long as the
applicant is notified of or given reasons for the refusal, the court shall reject the petition
of the applicant. Apparently, it is a two-stage theory that the SPC has developed so as to
interpret the ‘three needs’ provision. Stage one is the case-filing phase , at which the SPC
instructs subordinate courts not to dismiss the case in hand if the applicant cannot explain
applicant’s special reasons to request information to the satisfaction of the court. Stage two
is the court deciding on the substance or merits of the case, at which the SPC stated that
courts can overrule the claim of the applicant. The courts should not dismiss the lawsuit
altogether simply because the ‘three needs’ provision is not met. This provision should not
be seen as a prerequisite for filing cases in courts.

html?match=Exact, last visited at June 16, 2016; Xia Chuhui yu Jieyangshi Wujiaju Zhengfu Xinxi Gongkai
Jiufen Shangsu’an (Xia Chuhui v. Price Bureau of Jieyang on Open Government Information), available at http://
pkulaw.cn/case/pfnl_1970324854843826.html?match=Exact, last visited at June 16, 2016.
30
 Liu P, et al, 2013, ‘’Zhengfu Xinxi Gongkai Tiaoli’ Lifa Hou Pinggu Diaoyan Baogao,’ (Report on Post-
legislation Evaluation on OGI Regulation) (2013, 6) Zhengfu Fazhi Yanjiu (Research on Government Rule of
Law)；Yu L, 2014, ‘Zhengfu Xinxi Gongkai de Ruogan Wenti: Jiyu 315 qi An’jian de fenxi,’ (Issues about Open
Government Information: Analysis based on 315 Cases’, 907) 4 Zhongwai Faxue (Peking University Law Journal);
Zhang J, (2008) ‘Zhiqingquan jiqi Baozhang’—yi ‘Zhengfu Xinxi Gongkai Tiaoli’ Weili,’ (Right to Know and its
Protection: Taking the OGI Regulation as Example,145), 4 Zhongguo Faxue (China Legal Science); Jiang H (2012)
‘Cong ‘Zhide Xuyao dao Zhi Quanli’: Zhengfu Xinxi Yi Shenqing Gongkai Zhidu de Kunjing Jiqi Chaoyue ,’
(From the Need to Know to the Right to Know: the Predicament facing the System of OGI Request and Beyond)
(2012, 73) Zhengfa Luntan ( Political-Legal Tribune).
31
 Supreme People’s Court, Guanyu Qingqiu Gongkai yu Benren Shengchan, Shenghuo, Keyan Deng Teshu Xuyao
Wuguan Zhengfu Xinxi de Qingqiuren Shiyou Juyou Yuangao Zige de Dafu (Reply on the Standing as Plaintiff for
the OGI Requesters who Made Requests Unrelated to Special Personal Needs of Production, Livelihood and
Scientific Research), issued on December 14, 2010.
JCL 12:2 279
The Shadow of Transparency

Hence the criticism is that the solution Gangzha court had proposed to Lu Hongxia’s
future OGI-based litigation is exactly what was forbidden by the 2011 SPC judicial
interpretation. It called for more stringent scrutiny over Lu’s prospective OGI requests
by way of the court asking her to furnish evidence about the connection between the
requests in question and her special needs of production, livelihood or scientific research.
Otherwise, the court can decline to hear her case at all. It has been argued that this is
contradictory to the SPC’s position just mentioned. The violation is further exacerbated
by the fact that the SPC only asks for an ‘explanation’ from the applicant to satisfy the
provision whilst the Gangzha court transformed it, quite explicitly, into a burden of proof.
Hence the Gangzha court has been criticized for violating both the OGI Regulation and
the SPC’s judicial interpretation.32 This might help explain why many courts have avoided
adopting such a preemptive approach even when they drew on the Lu Hongxia ruling in
terms of establishing abusiveness in OGI requests.
Overall, one year and half has elapsed since the Lu Hongxia case went national after
being published at the GSPC and its ruling has already been heavily criticized for the
above reasons. Not only is the solution doubted and even considered unlawful, moreover
whether the case for abusive OGI requests can be established at all is to many still an open
question. It seems from Lu’s petition letter and appeal that she does not only have a point
legally in arguing that the Gangzha court overstepped its legal authority—she also has
a point factually, i.e. all eight lawsuits dismissed by the Gangzha court appeared to be
related to her or her father’s own circumstances, be it concerning the development projects
that led to their property being expropriated, or relating to the daughter’s detention
after going to Beijing for the purpose of making a complaint through the letters and visits
systems. The requests were, from an observer’s point of view, made from a genuine desire
for information and based on personal rights and interests. Reading the Lu Hongxia case in
this way then raises the issue: is an abusive OGI request really a legitimate concern after an
eight-year transparency regime in China? Or is it merely the government blaming citizens
for its own OGI failures?

The Rise of Abusive OGI Requests

In recent years, the problem of abusive OGI requests has drawn increasing attention
in China. An official at the Office of Open Government Information under the General
Office of the State Council (the organization in charge of OGI work nationwide) reported
that until 2013, out of all 31 provincial governments in the country 21 had encountered
numerous and repetitive OGI requests from the same individuals, and 8 out of 10 central
departments surveyed had the same experience. In all the OGI requests received by the
general office of one municipal government directly under the central government, 40%
came from a group of individuals who sent requests in large quantity and repetitively.33
In terms of quantity, the head of the administrative litigation division of the Beijing
First Intermediate Court revealed at a press conference that a person with the surname
Zheng had filed thousands of OGI requests at the Ministry of Industry and Information

 Liang, ‘Abusive Litigation’ supra note 23.

32

 Hou, ‘Abuse of OGI Rights’, Supra note 22.

33

280 JCL 12:2

 chun peng

Technology.34 Indeed this dwarfs the 1,436 requests made by the Fan family in Rugao,
Jiangsu.35 It was also reported that in one district of Shanghai between July 2009 and June
2012 there were in total 5,182 OGI requests, 1,929/37.23% of which were actually from only
11 individuals. Among these 11 ‘professional OGI requesters’, one alone had sent 1565
requests, comprising 30.2% of the total.36
Nevertheless, these statistics should of course always be taken with a grain of salt. As
shown by the Lu Hongxia case, it is not clear that whenever a citizen sends a lot of OGI
requests covering a multitude of topics, such requests are necessarily abusive. Yet an essay
posted online in early 2017 by an official working for the office of legal affairs in a district
of Foshan, Guangdong, reveals the predicament the government is facing with respect to
OGI requests.37 The following two excerpts are most telling:
There are requests filed through the online OGI platform, such as ‘Since Uncle Xi [Xi
Jinping] demands strengthening the Party discipline, how does your department
implement this mandate from him? Is there any document issued thereof?’ How
can you reply? You reply that we have not issued any document to implement
the above instruction. Then the applicant accuses you of not listening to Uncle Xi.
Alternatively, if you reply that documents have been issued, the applicant will say
that you are merely paying lip service by implementing documents through issuing
more documents, which contradicts the anti-formalism campaign initiated by the
Central Party. Whatever you say, the applicant is always correct. But you have to
reply, even though what is requested is not government information as provided
by Article 2 of the OGI Regulation! What if you do not reply? Well, the applicant
will start administrative reconsideration and administrative litigation. Along the
way, how much energy you should waste!

There are some expropriatees, after signing the compensation and resettlement
agreement［with the government］… and getting the compensation (moving
into new houses), still think that their neighbors had more compensation or better
resettlement houses. Being resentful, they start making OGI requests on every step
in the procedure leading to the expropriation decision … after a series of requests,
they will then initiate administrative reconsideration and administrative litigation.
［Their］objectives are clear, purposes straightforward … find a procedural
loophole and catch the government in the wrong. And then? I cannot go on. I am
afraid of being accused of libel by them. They have said that money is not the
concern. Rather, it is for helping your government realize the rule of law. What a
noble mission! What conscientious citizen spirit! What superb rule-of-law thinking!

34
 Press Conference on May 11th, 2016, available at http://www.live.chinacourt.org/chat/chat/2016/05/id/44455.
shtml, last visited at June 4, 2016.
35
 Gao H, 2015, ‘Zhengfu Xinxi Zhiqingquan de Lanyong Jiqi Guizhi’ (Abuse of the Right to Know Government
Information and its Regulation) (2015, 73) Renmin Sifa (People’s Judiciary).
36
 Xiao W, 2015, ‘Lun Zhengfu Xinxi Gongkai Shenqingquan Lanyong Xingwei Guizhi’ (On Regulating Abuses
of the Right to Make OGI Requests) (2015, 14) Dangdai Faxue (Contemporary Legal Science).
37
 Wang X, ‘How Much Energy of Offices of Legal Affairs Has Been Wasted by OGI Work’, available at http://
www.aiweibang.com/yuedu/89500025.html, last visited at June 16, 2016.
JCL 12:2 281
The Shadow of Transparency

Clearly the grassroots-level official embittered about having to deal with so many
applicants and OGI requests. To a certain extent, this story does bear similarities to the
Lu Hongxia case: at least in the eyes of the government (or more precisely the officials in
charge of handling the request), some of the numerous requests are targeting information
outside the scope of the OGI Regulation; and the purpose of some requests looks dubious.
To make matters worse, it appears that the official in Guangdong felt completely helpless
and hopeless in dealing with these, in his words, ‘energy-consuming’ OGI requests:
In 2013, courts in Guangdong Province took in 273 OGI-related cases [.] In 2014,
379 such cases were heard. However, according to the Guangdong Higher People’s
Court’s statistics for the recent two years, in 2013, for all the OGI-related cases,
the winning ratio of the applicant was only 10%. In 2014, the ratio is merely 12%.
There was a stark contrast between the applicants’ high ratio of filing litigations
and low winning ratio … Of course, I am not saying that low winning ratio for the
plaintiff is indicative of the excellent rule-of-law performance of the government.
But at least it tells us that the successful ratio of OGI requests is not very high. After
first and second instance hearings, do you have any idea that how much effort the
office of legal affairs has to make? […] Even after winning cases, I have no delight
or pride whatsoever. Do you know how much of our energy is drained by these
matters? ….] I have seen the suggestions made by State Council’s Office of Legal
Affairs with regard to revising the OGI Regulation (unpublicized draft), which does
place certain constraints over these vexatious requests. But will these provisions be
adopted in the end? I doubt it.
The reason that this sardonic, discontented and disillusioned official in Guangdong is
quoted at length above is that it offers us a rare window into what it really feels like when
you are, as it were, on the other side of the table reading and replying to all sorts of OGI
requests on a daily basis. Surely this is not to vindicate blindly every word of his—we all
know how irritable one can be after long hours of tedious and mundane work. However,
this official’s speaking his mind does at minimum remind us that the problem of abusive
OGI requests should not be seen merely as the government trying to blame citizens for its
own OGI failures. There is indeed a grain of truth to the problematization of abusive OGI
requests, which needs to be taken seriously.

DETERRING VEXATIOUS OGI REQUESTS IN CHINA:

REVISITING THE LU HONGXIA CASE

Situating the Lu Hongxia Case

During the annual gathering of the National People’s Congress in 2016, one representative
called for more effective regulation over abuses of the right to government information.38
As revealed by the previous quote, this issue has already been considered and addressed

 Fazhi Ribao (Legal Daily) ‘Bannian Shenqing Xinxi Gongkai Sanqian Yujian, Daibiao Jianyi Guizhi
38

Xingzheng Susong Lansu,’ (Representative of People’s Congress Recommended Regulating Abusive OGI
Requests), 12 March 2016, available at http://www.legaldaily.com.cn/zt/content/2016-03/12/content_6521873.
htm?node=80773, last visited at June 17, 2016.
282 JCL 12:2
 chun peng

in the ongoing revision of the 2008 OGI Regulation. Yet given that the schedule of this
amendment is not specified in the legislative plan, it is unclear when there will be formal
statutory rules governing abusive OGI requests, let alone their effectiveness. In other
words, there is no explicit prescription in the existing OGI regulation to define and deter
abusive OGI requests.
Perhaps the only exception lies in the ‘three needs’ provision of Article 13 of the
Regulation. And the government has wasted no time availing itself of this tool. As
mentioned above, in 2008 and 2010 the General Office of State Council instructed twice
that alongside the more overt exceptions to disclosure such as state secrets, commercial
secrets and personal privacy, the ‘three needs’ provision could be used by the government
as a ground to refuse disclosure. This seems to be a natural choice: the last eight years
have witnessed an exponential increase in the number of OGI requests across the nation.
Take Beijing as an example where there were 3631 requests in 2008. In 2014 and 2015 the
figures were 34766 and 32271 respectively.39 Widespread understaffing and under-funding
of the OGI offices within different levels of governments and across different departments,
especially at the lower levels, have further confounded the practical difficulty with which
the government is responding to the enormous volume of OGI requests. Compared with
other exceptions clearly defined in the OGI Regulation, the ‘three needs’ provision seems to
have the advantage of not requiring the government to consider the details of the requests
to see if the information sought falls within the realms of state secrecy, commercial secrecy
or privacy. Instead it kicks the ball back to the applicant, who will be required to establish
the relevance of the request in relation to their personal needs. This makes the ‘three needs’
provision a particularly ‘user-friendly’ tool for the government to deal with large numbers
of OGI requests in a more efficient way. It is therefore no surprise that the State Council
General Office tends to read Article 13 as providing for a prerequisite to information
disclosure.
Though initiated by the government, treating the ‘three needs’ provision as a
barrier to information disclosure has also been an approach adopted by courts across
the country. For instance, in the Li Xin case the Shangqiu Intermediate Court in Henan
Province refused to accept a case because the plaintiff (applicant) Li Xin was a resident in
Zhengzhou City rather than Yucheng County. His request at the county government of
Yucheng was thus based on the need to supervise the implementation of a national policy
on subsidizing promotion of fine seeds of cotton at the local level, instead of his special
needs of production, livelihood or scientific research.40 This case was settled in 2009, prior
to the 2011 SPC judicial interpretation that bars the courts from using the ‘three needs’
provision to dismiss a case for lack of standing. Afterwards, local courts seem to have
found at least two new ways to bypass the 2011 Interpretation. This is exemplified by the
2015 Li Bingyan case (adjudicated by the Yuhuan County court in Zhejiang),41 the reasoning
and ruling of which is that according to Article 13 of the OGI Regulation, the information

39
 2015 OGI Work Annual Report of Beijing, available at http://zhengwu.beijing.gov.cn/zwzt/2015nb/, last
visited at May 20, 2016.
40
 Li Xin Su Yuchengxian Renmin Zhengfu Xinxi Gongkai Yi’an, Shangqiushi Zhongji Renmin Fayuan (Li Xin
v. People’s Government of Yucheng County) (2009) Shangxingchuzidi 2 hao.
41
 Li Bingyan yu Yuhuanxian Zhufang he Chengxiang Jianshe Guihuaju Bulüxing Fading Zhize Ershen
Xingzheng Caidingshu’, Taizhoushi Zhongji Renmin Fayuan Er’shen (2015) Zhetai Xingzhongzi Di 70 Hao (Li
Bingyan v. Bureau of Housing and Urban-rural Construction of Yuhuan County).
JCL 12:2 283
The Shadow of Transparency

requested by the plaintiff shall be related to her special needs, but the plaintiff was not
able to establish the relevance; and the plaintiff had no interest in law in the house whose
information she was requesting. Therefore, the plaintiff had no interest in law in whether
or not the defending government department had fulfilled its OGI obligation. According
to Article 12 of the SPC’s 2000 judicial interpretation on implementing the Administrative
Litigation Law, one should have an interest in law to a particular administrative action to
have standing to sue against it. Therefore, the case was dismissed. Apparently, the court in
this case had conflated two different things: the legal right to information and the interest
in law in the actual subject of the requested information. Arguendo it would mean that one
must have a legal interest in X before they can ask the government to disclose information
about X. Such a misinterpretation is more likely arrived at by the court consciously and
intentionally: because the SPC interpretation disqualifies the ‘three needs’ provision as a
prerequisite to standing in OGI-related administrative litigation cases, by invoking the
‘interest in law’ requirement, the ‘three needs provision’ can be slipped in through the
backdoor.42
On the other hand, in the 2015 Fan Jianzhen case the Jiangsu High People’s Court ruled
that since the OGI applicant failed to submit valid evidence to prove that his requests
were for his own three needs, his numerous requests should be deemed as illegitimate
exercises of his right to know.43 It is worth noting that the 2011 SPC judicial interpretation
makes it clear that the plaintiff only needs to explain the connection between requests and
needs—the Fan Jianzhen court elevated this to a burden of proof; this is not dissimilar to the
Gangzha court’s solution to stop further abusive OGI requests.
The above analysis shows that the ‘three needs’ provision was first adopted by the
government as a cost-effective way to fend off a flood of OGI requests without delving
into the nature and substance of information requests, even though the OGI Regulation
provides no basis to this effect. Later on the SPC chipped in to somewhat ‘soften’ the
harshness of this limitation upon citizens’ rights to information by stipulating that this
provision cannot be used as a prerequisite for one’s standing to bring OGI-based lawsuits,
though it can be treated as the ground on which courts support government decisions to
refuse disclosure.44 Nevertheless, empirical evidence demonstrates that local courts across
the country have bypassed the SPC instruction one way or another so as to bring back the
‘three needs’ clause by stealth.
This zigzag path of the ‘three needs’ provision taken by the government, the SPC
and the local courts illustrates aptly the dilemma China’s OGI regime now faces: on
the one hand, abusive OGI requests do exist and need an effective response, which is

42
 This is clearly an erroneous interpretation of the OGI Regulation. Even though we concede that the ‘three
needs’ provision can be seen as a necessary condition for standing, it cannot co-exist with the requirement of
legal interest as understood by the court in the Li Bingyan case. For instance, the need of scientific research
often does not entail that the applicant/plaintiff has a legal interest in the subject he/she tries to request
information on. The correct understanding is not that the requirement of legal interest does not apply to OGI-
related administrative litigation, but that whenever one makes an OGI request, he/she has a legal interest in the
information sought, which gives him/her prima facie standing in court.
43
 Fan Jianzhen yu Rugaoshi Renmin Zhengfu Ee’shen Xingzheng Panjueshu,Jiangsusheng Gaoji Renmin Fayuan
(2015) Suxing Zhongzi di 00616 Hao (Fan Jianzhen v. People’s Government of Rugao City, Jiangsu Province High
People’s Court (2015).
44
 This was explicitly mentioned by Justice Li Guangyu in his explanation of the 2011 SPC judicial interpretation,
available at http://blog.sina.com.cn/s/blog_46d026af0102vn8z.html, last visited at June 17, 2016.
284 JCL 12:2
 chun peng

inconveniently not provided by the OGI Regulation. In this situation, the ‘three needs’
provision, the only possible candidate, was quickly latched onto by the government. On
the other hand, unable to find a solid statutory basis for the government’s reading and
unwilling to challenge it openly, the SPC managed to restrict the limitation in two ways:
one was to suggest that the plaintiff needs only explain, not prove, the connection between
his needs and requests; the other was to ask the courts not to invoke the ‘three needs’
clause to dismiss lawsuits at the case-filing stage. This notwithstanding, in reality local
courts have sidelined the SPC’s instruction, making the ‘three needs’ clause effectively a
shield against what is perceived as ‘abusive’ OGI requests.45
It is against this background that the Lu Hongxia case emerged. As vividly expressed
by the official in Foshan, Guangdong, the government’s hands are tied in dealing with
what it sees as abusive requests because there is neither a definition let alone a solution
written into the OGI Regulation. Even if the ‘three needs’ provision is taken up as an extra
ground for the government to refuse disclosure, the government still needs to respond to
each request received according to the OGI Regulation. If not, the applicant has every right
guaranteed by the Regulation to bring action against the government in the courts, which
then must deal with rapidly increasing number of OGI-based lawsuits with equally if not
more inadequate resources. It is at this critical moment that the Lu Hongxia ruling came
into national spotlight via the GSPC. Its significance has been eloquently pointed out by
two judges at the administrative litigation division of the SPC in a paper published early
this month:
Although the OGI Regulation is presently under revision, whether or not and to
what extent the revision will resolve the problem of abusive OGI requests […] is
still largely uncertain. And the [long] process of revision assures that the problem
will not be resolved shortly. Therefore, the judiciary cannot keep itself out of the
endeavor to solve this self-evidently serious problem. Rather, it has to practice an
appropriate amount of activism. The ‘expansion’ of judicial power to an appropriate
amount is also what needs to be done in response to the ‘pan-judicialization’ of
dispute resolution. In recent years, for a variety of reasons […] more and more social
contradictions and all sorts of pressures during a period of social transformation
have already transmitted into the judicial realm. The judiciary […] is now expected
to fulfill a lot of unrealistic functions, bearing different kinds of overwhelming
burdens.46
In this light, the Lu Hongxia case is nothing less than an open exercise of judicial activism
in an attempt to provide a solution to a problem (or in many people’s view a crisis) facing
both the government and the judiciary. Moreover, the judiciary does have a comparative
advantage over the government in terms of dealing with abusive OGI requests, which has
been accurately summarized by Gao Hong, the president of Gangzha court and also the
presiding judge in the Lu Hongxia case:
The absence of definition of abusive OGI requests in the administrative procedures
does not mean that judicial procedure shall not deploy regulatory measures against

45
 To answer whether or not this is so because of pressure from local governments or due to genuine
misunderstanding of the law needs further empirical research.
46
 Geng and Long, ‘Abuse and Constraint,’ supra note 22.
JCL 12:2 285
The Shadow of Transparency

abuses. As a matter of fact, even if there are abuses in practice, it is very normal
that the administrative procedures do not identify as such because OGI requests
may well involve more than one administrative department. When requests are
sent in separately, it is very difficult to ask a certain administrative department
to identify abuses. However, litigation is more concentrated, making it easier to
conduct comprehensive judgment.47
Yet the question remains, namely how good is this solution? We now turn to evaluate
the Lu Hongxia ruling.

The Significance of the Lu Hongxia Ruling48

As a much celebrated landmark judgment that pioneers a solution to a problem long

besetting the government and the judiciary, the Lu Hongxia ruling has at least four points
worthy of further consideration.
Firstly, it invokes the ‘three-needs’ provision in a way that can bypass the SPC’s
restraints on the General Office of State Council’s 2008 instruction. As discussed
previously, the criticism is that in calling for stricter scrutiny over future OGI requests by
Lu Hongxia with the threat of dismissal of litigation and asking her to provide evidence of
the relevance of her requests to her special needs, the Lu Hongxia ruling violates the 2011
SPC judicial interpretation.49 Yet a closer look at the text of the ruling yields a different
answer. On the one hand, it can be reasonably argued that the Lu Hongxia ruling does not
abandon the ‘two-stage theory’ developed by the SPC—it simply creates an exception to
it. For those majority non-abusive OGI applicants, the ‘two-stage theory’ still applies, but
for those minority applicants who are identified as abusive, a different and more stringent
rule applies, i.e. their case may not be heard at all if the ‘three needs’ clause is not satisfied.
On the other hand, although the SPC judicial interpretation makes it very clear that the
plaintiff needs only to explain rather than provide evidence of the relevance of the requests
to their special needs, in a strict sense the Lu Hongxia ruling does not constitute a self-
evident violation for it uses the term ‘provide evidence to explain’. It can be said with
certainty that this is an intentional ambiguity intended to shield the ruling from potential
critique.
Secondly, when Lu Hongxia accused the Gangzha court of stepping out of its lawful
authority in her appeal against the first-instance judgment, she did have a valid point.
As admitted, though implicitly, by the two SPC judges in the above quote there is no
written law at all at this moment to define and deal with abusive OGI requests in China.
Therefore, an ‘appropriate amount of judicial activism’ is needed, and indeed offered
by the Lu Hongxia ruling, which utilized the ‘three needs’ provision in the way this
author has analyzed. That being said, it is undeniable that a, if not the, decisive factor in
distinguishing cases of appropriate judicial activism from inappropriate ones is that of
legality or lawfulness. Nevertheless, there are no readily available legal grounds upon

47
 Gao, ‘Abuse of the Right’, supra note 35.
48
 Since there were two instances of the case and the second-instance judgment was a confirming one with
more detailed justification, without special explanation, the Lu Hongxia ruling in this paper refers to both of
them.
49
 Liang, ‘Abusive Litigation’, supra note 23.
286 JCL 12:2
 chun peng

which the judiciary could rely to come up with a solution to abusive OGI requests. The
Lu Hongxia courts marched on regardless, under the cloak of the ‘spirit’ and ‘purpose’ of
the OGI Regulation, the need to promote efficient use of public resources, and even, in a
covert way, the constitutional mandate that a citizen’s exercise of her or his rights may not
undermine the public interest. All of this serves to mask the reality: a lack of any basis in
established law. The apparent ingenuity of the Gangzha court belies the fact the real source
of its solution is actually US law. This was only revealed by the presiding judge, Judge Gao
Hong, in an article he published in another official journal of the SPC in May 2015.50 And
this ‘confession’ appears as a mere footnote. 51 By citing a 2009 article that in turn cited a
1983 case52 and Rule 11 of the US Federal Rules of Civil Procedure, Judge Gao wrote that
the way in which American judiciary regulates abusive OGI requests is to ask the plaintiff
to acquire leave from court to file litigation. Leaving the aside the issues of the accuracy
of this reading and the transplantability of US law into Chinese legal soil aside, it is very
clear that the US position is firmly grounded in statutory law, which is precisely lacking in
the Lu Hongxia ruling. By concealing the real source of inspiration, the Lu Hongxia ruling
avoids any accusation of blind copying of American law.
Thirdly, the solution to abusive OGI requests introduced by the Lu Hongxia ruling,
particularly the Gangzha court, represents conscious effort to tread a fine legal line:
Whenever Lu Hongxia makes disclosure applications to government bodies or file
OGI-based administrative litigation at the court in the future, her motions must be
subject to strict scrutiny according to the existing provisions of the OGI Regulation.
Lu Hongxia the plaintiff must supply evidence to explain that her OGI application
and litigation are to satisfy her own special needs of production, livelihood and
scientific research. Otherwise she will face negative consequences.
Reading the first sentence of the last paragraph will probably leave an impression
that the court was acting ultra vires in making orders to government bodies outside this
particular case, as was argued in Lu Hongxia’s appeal. Nevertheless, the second sentence
makes up for this by not clarifying to whom Lu Hongxia should explain with evidence or
what kind of negative consequences she will face otherwise. To phrase its solution in this
manner, the court evades issuing orders directly to the government (which would be ultra
vires), but still makes the statement clear enough for the government to take its cue as to
how best to deal with abusive OGI requests.
Fourthly and perhaps most importantly, the Lu Hongxia ruling does not elaborate
much on the four elements of the criteria it suggested for abusive OGI requests. Do the
elements of quantity, repetitiveness, all-encompassing coverage and ulterior purpose
all have to be present before an abusive OGI request is identified as abusive? Are they
exhaustive of all possibilities? Are they mutually connected? How many requests does one
have to send to qualify as ‘numerous’? Can more than one applicant’s requests lumped
together to be counted as abusive? What does it mean by ‘all-encompassing coverage’?
Is ‘all-encompassing’ in the sense that the information requested is not related to one’s

50
 Gao, ‘Abuse of the Right’, supra note 35.
51
 Zhao Z and Gong Y, 2009, ‘Meiguo de Xinxi Gongkai Susong Zhidu Jiqi dui Woguo de Qishi,’(FOIA
Litigation System in the USA and its Lessons to China) (2009, 80) Faxue Pinglun (Law Review).
52
 Crooker v. United States Marshals Service, 577 F. Supp. 1217 (D.D.C. 1983), available at https://casetext.com/
case/crooker-v-united-states-marshals-service, last visited at June 9, 2016.
JCL 12:2 287
The Shadow of Transparency

special needs or in the sense that such information actually falls outside the scope of the
OGI Regulation? What is the test for finding out and verifying an ‘ulterior purpose’ on
the part of the applicant? None of these critical questions have been addressed in the Lu
Hongxia ruling, perhaps for the reason that generally Chinese court rulings contain less
reasoning than the Anglo-American counterparts. But that leaves some scope for further
discussion and debate and more critically a level of flexibility that is even healthy for the
still nascent Chinese jurisprudence on abusive OGI requests.

Transcending the Lu Hongxia Ruling

Ambiguity and flexibility, as argued in the last section, can be seen as the strengths of
the Lu Hongxia ruling. However, this is also a double-edged sword. Without developing
a structured, well-defined and exhaustive set of rules for identification of abusive OGI
requests and suggesting a lawful and practical solution, the Lu Hongxia ruling cannot
has limitations. In essence, for any government openness regime, abusive OGI requests
constitute one of the exceptions, or the shadow of transparency as it were. It has been
argued that any such exception should ideally comply with the following three conditions:
a) that the information falls within the scope of an exception listed in the law; b) that
disclosure would pose a risk of harm to the protected interest; and c) that this harm
outweighs the overall public interest in the disclosure of the information.53 Moreover, as
already explained, a fourth condition can be added that the exception should be defined as
clearly as possible and the discretion to apply such a definition to individual cases be limited
as much as possible so that it will not degenerate into an unjustified excuse for secrecy in
practice. In short, abusive OGI requests as an exception to requirement for openness need
to be enumerated explicitly in statutory law and an abuse of the right to request disclosure
of government information should be established when and only when the public interest
to be protected by non-disclosure outweighs that of disclosure. This effectively requires
both the government and the court to conduct a balancing exercise between competing
considerations. In this light, the Lu Hongxia case as the epitome of China’s fledgling law
on abusive OGI requests remains wanting of further improvement. First, it is yet to be
incorporated into China’s OGI regulation. As pointed out at the beginning of the article,
the amendment of the 2008 Regulation is now formally on the rule-making agenda of the
State Council. Though it is unclear at this moment when and what the revision will be, it
is better that an exception of abusive requests is written into the revised Regulations in
order thereby to establish a statutory ground. In fact, similar provisions can be seen in the
freedom of information legislation in many jurisdictions such as the UK, South Africa and
Mexico. Furthermore, even when such an exception becomes statutorily instituted, it is
still subject to discretionary interpretation when applied to specific circumstances. And a
balance between the interest of disclosure and that of non-disclosure needs to be achieved.
What factors then should or should not be taken into consideration in finding abusiveness
in disclosure requests is another pertinent question. The Lu Hongxia ruling can be used as
a good starting point to help us think through this critical question.
Consider the cases below:

53
 Toby Mendel, Freedom of Information: a Comparative Legal Survey, UNESCO, 2008, p. 149.
288 JCL 12:2
 chun peng

Case 1: Between May and August of 2015, a research team under the names of its three
members sent out more than 1000 requests to over 217 governments from the central to
county levels across China so as to request information on various issues including the
expenses for hosting official guests, maintenance costs of official websites, the number
of medical accidents, and scale of land expropriation etc.54
Case 2: In 2014, a law firm sent in total 17,153 OGI requests to 528 government
departments all over the country relating to information on land expropriation and
house demolition.55
Case 3: On 6 May 2009, an individual citizen sent out seven OGI requests to seven
administrative departments in Guangzhou to ask for information about each of these
department’s records of administrative penalties between 1 January 2008 and 5 May
2009. He has dubbed by the media the ‘professional counterfeit-buster’.56
The four standards formulated in the Lu Hongxia ruling can be examined through the
lens of these real-life cases just listed. To begin with, judging by the number of requests,
cases 1 and 2 seem to be even more serious than that of the Lu family. Even case 3 is
probably no better given the high likelihood that the professional counterfeit-buster
might already have sent out many more requests prior to getting reported. Should they be
considered as examples of abusive requests just because of the number of requests? Which
one of the following measurements shall count: the total number of requests sent, the
average number of requests a particular authority received, or the number of requests sent
within a fixed period? Actually, any numerical standard tends to be intrinsically arbitrary
if used alone as there is nothing abusive or vexatious about a large number of OGI requests
per se. In other words, just looking at the large quantity of requests tells us nothing about
the public interests or merit of these requests. Nor can it be used to establish a prima facie
case that disclosure will harm the public interest simply because it is time and energy-
consuming for the government to deal with a lot of requests. In the aforesaid examples,
the research team was simply interested in many things and the law firm was representing
a lot of clients. Even the individual citizen who was keen on taking on counterfeit goods
was hardly doing the public a disservice. They all have legitimate interests and concerns
to make numerous OGI applications.
Secondly, repetitiveness of requests is not in evidence in any of the above cases.
However, it is probably the most convincing element in the Lu Hongxia ruling. Pursuant
to Article 13 of the 2008 Notice of the General Office of the State Council cited above, if the
same applicant sends repeated OGI requests to the same administrative departments about
the same information, the administrative departments need not reply to all these requests.
To reply to repetitive requests is undoubtedly a waste of government resources, hence
harming the public interest. The government is therefore entitled to ignore such requests.

54
 Li, Y, Yan T and Peng C, 2016 ‘Guojia Zhili Toumingdu Baogao 2015 (2015 Report on Government
Transparency in China)’，Law Press.
55
 Shengyun Law Firm, 2016, ‘2014 Annual Report on Disclosure of Government Information on Land
Expropriation and House Demolition’(2014 Zhengdi Chaiqian Xinxi Gongkai Niandu Baogao), available at
http://www.bjsheng.cn/index.php?m=content&c=index&a=show&catid=117&id=1257, last visited at June 21,
2016.
56
 Hu J and Huang Q, 2009, ‘Is He Entitled to Request Information,’ (ta youquan shenqing xinxi gongkai ma?)
available at http://news.sina.com.cn/o/2009-09-01/134216221263s.shtml, last visited at June 21, 2016.
JCL 12:2 289
The Shadow of Transparency

Article 48 of Mexico’s Federal Law of Transparency and Access to Public Government

Information prescribes that the government has no obligation to process offensive requests
for access to information if they have released information substantially identical in reply
to a request of the same person. This shows that repetitive requests, however small in
number, can legitimately be ignored to avoid wasting public resources.
Two points of clarification are in order here. It is not unusual that an applicant may
not know where exactly the information he is after is located. So, he sends requests to
many administrative agencies for the same information. This is not repetitiveness. But if
he continues to send in the same requests after receiving from government agencies notice
that the requests are addressed to an incorrect requestee, that is vexatious. Moreover, there
may well be conflicting ideas about whether ‘repetitiveness’ takes place. One interesting
factor about the Lu Hongxia case that has missed the eyes of most commentators is that
from the Gangzha court to the SPC, the Lu Hongxia case as reported contains only one-
fourth of the story as told by Lu Hongxia herself. As noted above, in Lu’s open online
petition letter, she claimed that there were totally four requests sent by her and she had
filed four administrative lawsuits on all of them. Yet only one was included in the openly
reported Lu Hongxia case, which was on her request for the approval document of the
greening project to the west of Changping Road in Gangzha District that led to her being
subject to expropriation. The local commission of development and reform sent back the
approval document of the project to the west of Changping Road in Gangzha District.
Lu insisted that the information she requested was not disclosed and continued to ask
for the same information, which according to the local commission of development and
reform was part of the approval document and had already been disclosed to Lu. Without
knowledge of the details of the documents sought and those disclosed, it is impossible
to make any judgment one way or the other here. On the other hand, it is not difficult to
understand why this one case was selected out of the four to be reported.
Thirdly, in relation to all-encompassing coverage Article 1 of the 2008 OGI Regulation
reads:
In order to ensure that citizens, legal persons and other organizations obtain
government information in accordance with the law, enhance transparency of the
work of government, promote administration in accordance with the law, and bring
into full play the role of government information in serving the people’s production
and livelihood and their economic and social activities, these Regulations are
hereby formulated.
It is not an overstatement to say that the objectives of the OGI Regulation are ‘all-
encompassing’. The goals to ‘enhance transparency of the work of government’ and to
‘promote administration in accordance with the law’ seem to have opened up a huge
space for citizens and social organizations to request information about many aspects of
the government’s operations. All the three cases listed above fit with this . It is therefore
strenuous to suggest that simply by covering a wide variety of different topics, one’s OGI
requests are abusive. Moreover, under the category of ‘all-encompassing coverage’, the
Gangzha court has also, to a large extent implicitly, touched upon the content of Lu’s
request. She was accused of making consultation-type requests or requests for information
outside the scope of the OGI Regulation. This should not be taken to be abusive per se,
because surely one can make sincere mistakes about what the law permits and as such
one should not be punished for that, unless one is told that their requests are not based
290 JCL 12:2
 chun peng

on the OGI Regulation but continues to send in the same requests, which evidently
falls into the ‘repetitiveness’ category. That said, the content of requests does matter. As
noted by the official in Foshan, some OGI requests contain unreasonable questions, such
as the one about if any document was issued to implement Uncle Xi’s mandate. In such
circumstances, as recommended by one senior judge in Beijing, if the request involves
insult, libel and provocation, it can be seen as abusive.57 Similarly, the 2000 Promotion
of Access to Information Act of South Africa stipulates in Article 45 (a) that any request
that is manifestly frivolous or vexatious can be lawfully rejected. Obviously, what is
‘frivolous’, ‘vexatious’ or ‘offensive’ requires further clarification, which can only be done
by the government and ultimately in practice by the courts. It takes more time for such
jurisprudence to develop in China, the core of which is the balancing test as previously
explained.
Fourthly and finally, the Lu Hongxia ruling attributed an ulterior purpose to the Lu
family in their OGI requests. As mentioned above, this has been criticized as unfounded.
Article 14 (1) of the 2000 Freedom of Information Act in the UK prescribes that a public
authority is not obliged to comply with a request for information that is vexatious. In
explaining what is vexatiousness, the Information Commissioner’s Office suggests that ‘as
a general rule, you should not take into account the identity or intentions of a requester’.58
This is a commendable position to take, because to establish intentions on the part of one
party is usually the most difficult task in a lawsuit, which is often achieved by examining
in detail the observable actions of the party. Therefore, if one’s requests are repetitive in
large number or contain insult, libel or provocation, abusiveness can be established.
Before concluding, there are two more issues to be addressed. Firstly, can the criteria
of establishing abusiveness be applied to more than one applicant? Is the Lu Hongxia
courts’ finding of common actions among members of the Lu family necessary to establish
abusiveness? The answer should be in the negative. If indeed many people request the
same information at the same time, it is a call for more and better proactive disclosure
rather than a sign of abusiveness. It is certainly possible that many people keep requesting
the same information, but that can be dealt with by repetitiveness.
Second, when abusiveness is established the better approach is to ignore such requests.
It is wisely advised by the United Kingdom’s Information Commissioner’s Office that ‘it is
the request that is considered vexatious, not the requester’. The reason is that to establish
abusiveness in a requester requires looking back at the context and history of one’s
making of requests, which then demands a much more robust yet currently unavailable
information-sharing mechanism across different sections and levels of the government. As
demonstrated by the Lu Hongxia case, the court is admittedly in a better position than the
government to assess such context and history. However, this is still more cumbersome
than the court simply dismissing any lawsuit upfront when it finds abusiveness in the
requests.

57
 Cheng H, 2016, ‘Zhengfu Xinxi Gongkai Tiaoli’ de Xiugai,’ (On the Revision of OGI Regulation), 3 Journal of
National Academy of Prosecutorate 65 (Guojia Jianchaguan Xueyuan Xuebao).
58
 Information Commissioner’s Office, ‘When can we refuse a request for information’, available at https://ico.
org.uk/for-organisations/guide-to-freedom-of-information/refusing-a-request/#5, last visited at June 21, 2016.
JCL 12:2 291
The Shadow of Transparency

CONCLUSION

Thus, against the background of mounting concerns of abusive OGI requests in China, the
Lu Hongxia case pioneers a set of rules for defining the problem and proposing a solution
in response. Yet this paper has argued that the Lu Hongxia ruling is imperfect. The better
approach is to drop the numerical and intentional tests that are too evasive and susceptible
to abuse and to focus on repetitiveness and offensiveness of the requests. Once abusive
requests are identified, the preferred solution is to ignore them and to dismiss any related
lawsuits. Ideally, all of this should better be written into the revised OGI Regulation so that
a statutory ground is provided. Surely this will not extinguish room for interpretation and
it is up to the responsible government departments and the court to apply the statutory
standard of abusiveness in individual cases. However, the bottom line is that in establishing
abusiveness, a balance between the public interest in disclosure and non-disclosure should
be struck. Into the eighth year of China’s OGI system and with its first major adjustment in
sight, it is important to keep in mind that every transparency regime has its shadows, but
they should be defined and dealt with carefully and proportionately.

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

baoluowanxiang 包罗万象 all-encompassing

gongtong xingwei 共同行为 actions in common

eyi shenqing 恶意申请 vexatious requests

fei zhengchang shenqing 非正常申请 abnormal [OGI] requesnts

jiuchan shenqing 纠缠申请 harassment [OGI] requests

juzheng shuoming 举证说明 supply evidence to demonstrate

lanyong 滥用 abuse

lifa jingshen 立法精神 spirit of the legislation

xinxi gongkaishenqing quan 信息公开申请权 rights to file OGI requests

zhiye dajia ren 职业打假人 professional counterfeit-buster

292 JCL 12:2

 sun ying and zhang xiang

Selective Openness: An Evaluation on

Open-Door Legislation in China
SUN YING AND ZHANG XIANG
Sun Yat-sen University; Renmin University1

INTRODUCTION

It is a common practice that the National People’s Congress releases law drafts to the
general public to solicit opinions. This practice is called ‘open door legislation’ (kaimen lifa).
Based on cases and interviews, this paper examines to what extent and how the national
legislature takes lawmaking advice from the general public. It finds that the transparency
and openness in People’s Republic of China (hereafter, ‘PRC’) national lawmaking is best
characterized as ‘selective’ in nature. On one hand, in the field of economic affairs and
social welfare, the Party state listens to the general public; on the other hand, in more
political related issues, the public participation hardly makes any real impact.
How an authoritarian state responds to public opinion is an interesting issue. In the
case of China, there is literature on how the Chinese courts are influenced by populist
pressures,2 how mass-elite relations deteriorate in Chinese villages,3 and how the State
Bureau for Letters and Visits absorbs grievances.4 What has been inadequately addressed
is open door legislation ––how the Chinese party-state responses to the public pressure in
lawmaking area. In the early years of the PRC, the draft of 1954 Constitution was released
to the society to receive feedback. Some 8000 people proposed 5900 suggestions in 81
days of debating. Since then, it has become a practice for draft national legislation to be
circulated within society for wider discussion. The draft of 1982 Constitution was also
opened for soliciting public views. From 1983 to 1997, the National People’s Congress
Standing Committee (‘NPCSC’) released drafts of five important laws to society for
consideration by the general public, namely, 1988 State Owned Industries and Enterprises
Law, 1989 Administrative Litigation Law, 1990 Hong Kong Special Administrative Region
Basic Law, 1993 Macau Special Administrative Region Basic Law and 1989Assembly

1
 Sun Ying, Associate Professor of Sun Yat-sen University School of Law (sunyingsysu@126.com) and Zhang
Xiang, Professor, Renmin University of China Law School (zhangxiang1976@hotmail.com) wish to thank
National Social Science Foundation of China (2015; Grant No. 15CFX014) for funding the research upon which
this essay is based.
2
 Liebman, BL (2011) ‘A Populist Threat to China’s Courts?’ in Woo, MYK and Gallagher, ME (eds ) (2011)
Chinese Justice: Civil Dispute Resolution in Post-Reform China, Cambridge 269.
3
 Li Lianjian and O’Brien, KJ (1996) ‘Villagers and Popular Resistance in Contemporary China’ (22) Modern
China 28.
4
 Thireau, I and Hua, L (2010), Les ruses de la Démocratie. Protester en Chine (Ruses of Democracy: Protest in
China) Seuil, L’Histoire immédiate.
JCL 12:2 293
Selective Openess

and Demonstration Law.5 From 1979 to 2006 the NPCSC released 12 law drafts.6 On 15
April 2008, the 11th NPCSC second chairpersons meeting decided that from then on all
legislation drafts ought to be made known to the public.7 In 2004, the Guangzhou Municipal
People’s Congress Standing Committee decided that after first deliberation all draft laws
should be posted on the People’s Congress website to solicit opinions from the public,
so as to assist in deliberations on the second draft.8 Institutional channels for the public
to participate in lawmaking come in different forms. Both national and local congresses
hold hearings, panel discussions, feasibility study meetings, or allow citizens to sit in on
Congress Standing Committee meetings, or invite a third party to draft legal provisions.
Open door legislation is recognized by the Chinese Communist Party (‘CCP’). At the
17th Party National Congress of the CCP, former Party Secretary Hu Jintao’s report called
for ‘scientific and democratic legislation’. Hu also called for an ‘expansion of channels for
people’s orderly participation in the legislative process’ in his report at the 18th Congress.
The current CCP Party General-Secretary Xi Jinping emphasized ‘scientific lawmaking and
democratic lawmaking’ (kexue lifa, minzhu lifa) in his report at the 4th plenary session of
18th CCP Central Committee. So far, ‘scientific and democratic lawmaking’ has officially
become a top-down Party instruction for legislative work. It is also a legal requirement.
Article 34 of 2000 Legislation Law (Lifa Fa) stipulates that when a bill on the agenda of
the law committee, the relevant specialized committee and the operating divisions of
the Standing Committee must hear the opinions of all the parties concerned in various
forms including forums (zuotanhui), discussion meetings (lunzhenghui), and hearings
(tingzhegnhui). The 2015 revision of Legislation Law accentuates the importance of experts
by saying that when there is a need for specialized feasibility evaluation, and relevant
experts, departments, deputies, and other concerned parties should be involved (Article
36 of 2015 Legislation Law).
Previous literature mainly focuses on the inter-power play among bureaucracy
structures of the Chinese legislative system. While this is a valuable perspective, it tends
to overlook important issues in this bottom up dynamics in lawmaking.9 The phenomenon
of open door legislation cannot simply be taken at face value. It needs closer examination:
To what extent does the party state genuinely open the door to the ruled? Can the general
public in reality influence or shape the law? Can the open-door practice actually bring
transparency into the lawmaking process and constrain the bureaucracy agencies? As
Chart 1 shows, not every item of legislation goes through an open-door process, and even
when a draft has been released to the public, how much difference has public opinion
made upon the lawmaking result?

5
 ‘Quanguo Renda Changweihui Xiang Shehui Gongbu Falü Cao’an Gongzuo De HuiguYu Sikao’ (Reflections
on NPCSC releasing of law drafts to society)<www.npc.gov.cn> visited on 1 May 2016.
6
 Sun Ying (2015) ‘Zhongguo Renda Lifa Guocheng Yanjiu Shuping’ (Review Essay on Studies of Chinese
People’s Congress Lawmaking Process) in Zhong Guo Xian Fa Xue Yan Jiu Hui (eds) Zhong Guo Xian Fa San Shi
Nian: 1985-2015 (30 Years of Chinese Constitution Law Studies:1985-2015) China Law Press 358 at 369.
7
 After all, the Legislation Law makes it clear that the Congress chairmen’s meeting has the authority to decide
whether to release draft law to the public (Article 36 of 2015 Legislation Law revision).
8
 Chen, S (2008) ‘Kexue Minzhu Lifa Shi Da Shijian’ (Ten Events of Scientific and Democratic Legislation) (12)
Hainan Renda (Hainan People’s Congress) 56.
9
 See Tanner, MS (1999) The Politics of Lawmaking in Post-Mao China: Institutions, Processes and Democratic
Prospects Clarendon. Xia Ming (2008) The People’s Congresses and Governance in China: Toward A Network Mode of
Governance Routledge. Cho YN (2009) Local People’s Congresses in China: Development and Transition Cambridge
University Press. Lubman, SB (2006) ‘Looking for Law in China’ (20) Columbia Journal of Asian Law 1.
294 JCL 12:2
 sun ying and zhang xiang

Chart 1: Comparison between Law Enacted and Draft Released by the NPCSC (2007-
2016)

This article argues that the effects of public participation in lawmaking vary according
to the substance of the laws. It concludes that the public participation in law making in
China is de facto a ‘half-opened door’ or ‘selectively-opened door’ in nature. In the area of
economic and social rights and certain aspects of legal development, citizen’s participation
can play a certain role; in the area of national security, democratic development style and
other areas concerning the authoritarian core of the Party-state, the lawmaking is still
tightly controlled.
This article has four parts. The first is this introduction. The part which follows describes
how expert suggestions and populist opinions have been absorbed into law drafting in the
field of rights protection. Part three explains the limits of popular participation in political
lawmaking. The final part concludes the article by examining the implications of the semi-
open-door legislation in China to the larger discussion of China’s political development.

OPEN DOOR LEGISLATION IN RIGHTS PROTECTION

The rise of ‘right consciousness or rule consciousness’ among Chinese citizens are one of the
most intriguing research topics to have evolved in recent years. The response of Chinese
citizens in open door legislation echoes the discussion of right consciousness. According
to Li Lianjiang, rights consciousness is ‘a combination of awareness of the necessity of
having protection from central rule making authorities and a willingness to secure such
protection through direct or indirect participation in rule-making.’10 Law making is the

10
 Li Lianjiang (2010) ‘Rights Consciousness and Rule Consciousness in Contemporary China’ (64) The China
Journal 47.
JCL 12:2 295
Selective Openess

elementary form of rulemaking. The following sections reveal how the Chinese citizens
actively participate in the making of rights-protective statutes.

Tax rights

As China embraces modern standards of the market and adapts itself to globalization,
parts of its legal system look for inspiration from Western models.11 The Constitutional
principles of ‘paying the tax according to law’ or ‘no taxation without law’ (shuishou fading)
are gradually being recognized. Article 56 of 1982 Chinese Constitution stipulates that ‘It
is the duty of citizens of the People’s Republic of China to pay taxes in accordance with the
law.’ Article 8 of the Legislation Law (2000, revised 2015) points out that basic economic
system and basic systems of finance, taxation, customs, banking and foreign trade can
only be governed by laws made by the National People’s Congress (‘NPC’) and NPCSC.12
Article 9 limits the strictness of article 8 by saying that if the NPC and NPCSC have not
yet legislated on an issue, they may delegate the State Council to formulate administrative
regulations dealing with the various matters mentioned in article 8 (but with exceptions
for criminal offences and their punishment, mandatory measures and penalties involving
deprivation of citizens of their political rights or restriction of the freedom of their person,
and the judicial system). Article 9 of Legislation Law creates a dilemma: the Constitution
demands for the rule of law in tax, yet the Legislation Law suggests otherwise. Thus
tax legislative power has been shared among a range of bodies: the NPC, NPCSC, State
Council, Ministry of Finance, State Administration of Taxation, and local government and
congresses. Until 2015, only three kinds of tax have been legalized (in the sense of being
promulgated as ‘laws’), namely, personal income tax, enterprise income tax, and vehicle
and vessel tax. Some 70% of national tax total income comes from taxes which are set by
administrative regulations and documents.13 The inconsistency in the tax law system is
criticized within China in the perspective of both legality of taxation and protection of
taxpayers’ interests.
When the 2000 Legislation Law was undergoing revision in 2014, advocates of taxation
legality saw a window of opportunity. They considered how best to describe the rule of
law in taxation in the revised version of tax system. The second draft of Legislation Law

11
 Potter, PB (2001) The Chinese Legal System: Globalization and Local Legal Culture Oxford.
12
 Article 8 lists basic systems that should be governed by laws only. No other legislative bodies may legislate
for those items. Article8: ‘The following matters shall only be governed by law:
(1) affairs concerning State sovereignty;
(2) formation, organization, and the functions and powers of the people’s congresses, the people’s
governments, the people’s courts and the people’s procuratorates at all levels;
(3) the system of regional national autonomy, the system of special administrative region, the system of
self-government among people at the grassroots level;
(4) criminal offences and their punishment;
(5) mandatory measures and penalties involving deprivation of citizens of their political rights or restriction
of the freedom of their person;
(6) requisition of non-State-owned property;
(7) basic civil system;
(8) basic economic system and basic systems of finance, taxation, customs, banking and foreign trade;
(9) systems of litigation and arbitration; and
(10) other affairs on which laws must be made by the National People’s Congress or its Standing Committee.’
13
 Cao W (2015) ‘Fangquan Yu Quequan: Lifafa Xiugai De Beihou’ (Delegation and Affirmation of Power: The
Background of Legislation Law Revision) (7) Xiaokang (Insight China) 46 at 47.
296 JCL 12:2
 sun ying and zhang xiang

stipulated that in ‘the types of tax, tax payer, objection to taxation, basis of tax assessment,
and tax rate are governed by law’. This detailed and comprehensive description is
considered to be an embodiment of ‘rule of law in taxation’ and therefore an advance in
the Chinese legal system. Surprisingly, however, the third version of revised Legislation
Law draft took out the aforementioned terms, and only maintained the wording ‘the
establishment and abolition of tax category, tax collection administration and other basic
taxation rules ought to be governed by law.’ This change provoked a negative response
from several congress deputies and experts. They expressed their discontent robustly
through the media. The third version of Legislation Law was submitted to NPC deputies
on March 8th, 2015, and at the same night the magazine Caixin’s website published three
interviews with Zhu Zhengfu, the vice-chairmen of National Bar Association and also
a member of National Chinese People’s Political Consultative Committee, Jiang Hong,
a professor of Shanghai University of Finance and Economics who are also a member
of National Chinese People’s Political Consultative Committee, and Liu Jianwen, a law
professor of Peking University, respectively. Zhu Zhengfu said that the so-called ‘paying
tax according to law’ means that whenever the government collected tax it had to secure
consent from the people. To delete the term ’tax rate’ from the Legislation Law means that
the government can take whatever it feels like in tax without asking the people for their
approval. Jiang Hong said the third revision endowed the State Council with an unlimited
power to set the tax rate and that such power is unacceptable from the perspective of
rule of law.14 Jiang believed that the deletion in third draft was an attempt made by the
administrative branch to keep its lucrative tax powers.15 On March 9th, Zhang Shuna, Vice-
Chairperson of the NPC Legislative Affairs Commission explained that the word ‘tax type’
consists of the tax rate and ‘other’ basic elements, there is no need to specify all the basics.16
Experts and deputies were not persuaded. Li Weiguang, a leading scholar at the Tianjin
University of Finance and Economics said in an interview that if the third version of
legality of taxation were adopted officially, that would be ‘a substantial backward step in
the legislation law and an unforgivable mistake’.17 Li insisted that ‘legalization of taxation
must be specific, detailed, precise, and clear, because the tax is directly tied to citizens’
property rights.’18 That same night on his way to a meeting in Nanjing, Professor Liu
Jianwen of Peking University talked to the NPC working staff in WeChat groups saying
that the meaning of the term ‘tax type’ does not necessary cover other elements such as tax
rates, tax payers, objection of taxation, basis of tax assessment, and tax preference. Liu’s
opinion gained sympathy from some other NPC working staff.19 After the event Liu was
informed that his opinion in the WeChat group was forwarded to the very person who is

14
 Feng Y (2015) ‘Lifafa Shuishou Fading Xiuding Nizhuan Beihou’ (The Background of Taxation According to
Law in Legislation Law) Nanfang Zhoumo (Southern Weekend) 19 March 2015.
15
 Li M (2015) ‘Shuishou Fading Xie Ru Lifafa De Si Tian Si Ye’ (Four Days and Four Nights of Adding Taxation
According to Law to the Legislation Law), Minzhu Yu Fazhi (Democracy and Legal System) 13 April 2015.
16
 ‘Zheng Shuna Tan Lifafa Xiuzheng’an Sanshengao Shanchu Shuilü Fading: Yin Biaoshu Bu Gou Kexue’
(Zheng Shuna’s Explanation on Why The Third Draft of Legislation Law Revision Deleted Taxation According
to Law)<http://lianghui.people.com.cn/2015npc/n/2015/0309/c394369-26662811.html>, visited on 1 May 2016.
17
 ‘Li Weiguang, Shuishou Fading Ru Bu Daowei Jiang Bu Ke Yuanliang’ (Li Weiguang: It’s Unforgivable
to Give Up Taxation According to Law) <http://topics.caixin.com/2015-03-09/100789458.html>visited on 1 May
2016.
18
 Feng Y (2015) ‘Lifafa Shuishou Fading Xiuding Nizhuan Beihou’, supra note 14.
 Li M (2015) ‘Shuishou Fading Xie Ru Li fafa De Si Tian Si Ye’, supra note 15.
19

JCL 12:2 297

Selective Openess

in charge of drafting the Legislation Law Revision in the NPC’s legal affairs commission.20
On March 10th, Liu published an article on taxation according to law on a newspaper called
Economic Information Daily. He also managed to send relevant materials to the NPC law
committee, budget committee and legislative affairs commission.21
Trying to reverse the situation, scholars and NPC deputies fought together hand in
hand. Zhao Dongling, a renowned screen writer and NPC deputy had previous experience
in pushing forward ‘legalization’ of taxation in China. In 2013, when Zhao elected as a
NPC deputy, she was approached by some scholars who expected her to submit deputy
proposals in their favor. Zhao cooperated. In 2013, allied with 31 other NPC deputies, Zhao
submitted a proposal on the termination of the authorized power of State Council to make
provisional tax collection rules. It was called the ‘proposal of the year’. And that proposal
was a product of team work involving deputies and scholars. In 2014 Zhao and other 30
NPC deputies submitted a proposal asking the NPC to take back its total legislative power
in taxation, and to provide a route map and time schedule of when and how such take-
over happens.22 On March 10th Zhao spoke out at the NPC delegation meetings and her
speech received positive feedback from peer deputies. Debates on ‘taxation according to
law’ spread over into delegation meetings. NPC working staff members were pressured.
They realized that if they insisted on the third draft they may lose in the final voting.23
March 15th was the last day of 2015 NPC meeting and final voting day on the revision of
Legislation Law. On March 11th the NPC law committee held a meeting to discuss revision
of the Legislation Law. Meanwhile, Beijing-located scholars also held a seminar discussing
the same issue.24 More and more newspapers and websites kept posting follow up reports.
On March 12th Qiao Xiaoyang, the chairman of NPC Law Committee reported to the NPC
presidium that tax rates are added into the law draft based on the collective opinions of
NPC deputies. In less than 96 hours, the term of tax rate is deleted and added back.25‘Such
dramatic turn of events is rare in the legislative history of PRC’ says Jiang Houyi, a law
professor of Nankai University and a NCPPCC member, ‘I attributed this turn of events
to the popular will. This is a vivid experiment in legislative democracy.’26 But in fact this
was not the first time the NPC had yielded to public pressure on the matter of tax. On
2011 the NPCSC deliberated the revision of Individual Income Tax Law (1980, revised
1993, 1999, 2005, 2007,2011). The main aim of that revision was an adjustment to personal
income tax exemption. The current tax exemption threshold at that time was 2000 RMB per
month.27 The first draft law revision suggested adjusting it from 2000 RMB per month to
3000RMB per month. On April 22nd, the first draft of Individual Income Tax Law revision
failed to pass. From April 25th to May 31st the NPCSC posted the law draft on its official

20
 Feng Y (2015) ‘Lifafa Shuishou Fading Xiuding Nizhuan Beihou’, supra note 14.
21
 Ibid
22
 Li M (2015) ‘Shuishou Fading Xie Ru Lifa Fa De Si Tian Si Ye’, supra note 15.
23
 Ibid
24
 Ibid
25
 Xu J (2015) ‘Shuilü Chonghui Fading De Jiu Shi Liu Xiaoshi’ (96 Hours of Putting Taxation According to
Law Back to the Legislation Law) Renmin Ribao (People’s Daily) 14 March 2015.
26
 ‘Lifafa Shuishou Fading Nizhuan Beihou: Duofang Lianming Jianyi’ (The Backgournd of Putting Taxation
According to Law Back to the Legislation Law: Multiple Partisans’ Involvement) Nanfang Zhoumo (Southern
Weekend) 19 March 2015.
27
 The personal income tax threshold is rising as China’s economy develops. Before 2006, it was 800 RMB per
month, after 2006, it became 1600 RMB per month, and in 2008, it was raised to 2000RM per month.
298 JCL 12:2
 sun ying and zhang xiang

website and solicited opinions from the public. During that period, the NPCSC received
237,684 opinions from 82707 netizens, 181 letters, and suggestions from 11 experts and 16
citizens.28 This was a new record in the NPC’s history of pubic legislative participation.29
Only 15% of the respondents approved the 3000 RMB per month threshold. The majority
of public opinions called for a higher standard. A poll showed that 58.7% interviewees
believed the threshold should be 5,000 RMB/month.30 A survey showed that out of 100
economists, 69% believed that 3000RMB per month was too low, and 55% suggested 5000
RMB per month was a better threshold.31 Some called for variation in tax exemption—in
metropolitan areas such as Beijing, Shanghai, and Guangzhou, 3000 RMB is barely enough
to pay for a mortgage on an apartment or a house, and such basic living expenses should
be exempted from tax.32 Beijing, Shanghai, Guangzhou citizens suggested that 6,000 in
Eastern provinces, 4,000 in middle provinces, and 3,000 in western provinces was a fairer set
of tax exemption figures. But other citizens supported retention of a unified tax threshold.
They argued that in a unitary system like China, the tax system should be cohesive. And if
different regions were to have different thresholds, there would likely be a ‘brain drain’ of
talented persons moving from China’s middle and western provinces to areas in the east.33
In a symposium held by the NPC on May 20th, some participants endorsed 3,000 RMB as
the personal income tax exemption point. They argued that if the basic tax standard is too
high, some of the poorer western provinces would be able to collect no personal tax at all.34
A person attending to the symposium observed that if the threshold is pitched too high,
the number of tax payers would inevitably decrease, and the public may even lose their
awareness that citizens should pay tax. The various public opinions thus expressed were
all disclosed on the NPC’s website. On 30th May, the NPCSC passed the revised Personal
Income Tax Law, and the tax threshold was raised to 3,500 RMB. Li Fei, the vice-chairman
of NPCSC Legislative Affairs Commission commented that ‘when the exemption point is
3,000RMB, 48 million Chinese citizens are exempt from paying tax, and when it is 3,500
RMB, 60 million people do not have to pay tax. Please do not underestimate [the impact of]
this 500 RMB [increase].‘35 Ye Qing, a NPC deputy who participated comprehensively in
the personal income tax law revision, attributed the 500 RMB raise in the threshold to the
participation of netizens and determination of NPC deputies. The first law draft received
an 83% negative vote from NPC deputies. In the deliberations which followed, many NPC

28
 ‘Quanguo Renda Yuanzhiyuanwei Gongbu Gongzhong Dui Geggshuifa Xiuzheng’an Cao’an Yijian’ (The
NPC Publicized the Public Opinions on Individual Income Tax Law Revision)<http://news.xinhuanet.com/
legal/2011-06/15/c_121540944.htm> visited on 1 May 2016.
29
 ‘Geshui Tiaozheng Zhengqiu Yijian Jieshu, 23 Wan Tiao Minyi Jujiao Shouru Chaju’(The Consultation on
Personal Income Tax Closed, 230,000 Opinion items Focus On Income Gap) <http://finance.people.com.cn/
GB/14780166.html> visited on 1 May 2016.
30
 Zhang M (2011) ‘Geshui Fang’an Zheng Dao 23.7 Wan T ‘YijJian,Tigao Mianzheng’e Husheng Qianglie’ (The
Individual Income Tax Law Revision Received 23,7000 Opinion items Calling for Increasing Tax Exemption
Threshold),Shanghai Zhengquanbao (Shanghai Securities News) 1 June 2011.
31
 Ibid
32
 ‘Quanguo Renda Yuanzhyuanwei Gongbu Gongzhong Dui GesShuifa Xiuzheng’an Cao’an Yijian’ (The
NPC Publicized the Public Opinions on Individual Income Tax Law Revision)<http://news.xinhuanet.com/
legal/2011-06/15/c_121540944.htm> visited on 1 May 2016.
33
 Ibid
34
 Zhang M (2011) ‘Geshui Fang’an,’ supra note 30.
35
 ‘Renda Changweihui: Mianzheng’e Tigao 500 Yuan, Nashuiren Shao 1200 Wan’ (The NPCSC: to Increase
the Individual Income Tax Exemption threshold by 500RMB means decreasing the number of Tax Payers by
1.2million People) <http://money.163.com/11/0630/17/77QIOQG000254LG5.html> visited on 1 May 2016.
JCL 12:2 299
Selective Openess

deputies and NPCSC members insisted that if in the final draft the threshold was still only
3,000RMB, they would definitely vote against it. After the NPC changed the threshold to
3,500RMB, it took only 20 minutes to pass the final draft, and the draft only suffered 10%
dissenting votes and abstentions. Wu Bangguo, the then Chairman of NPCSC said ‘the
public opinions we received from the internet shows that 83% of people want to increase
the individual income tax exemption threshold. We respect the expectation of the common
men. We took into consideration of such expectations and communicated with the State
Council, and finally we changed the law draft.’36

Environmental and food safety rights

China’s impressive economic growth is a double-edged sword. The GDP oriented

development model has created wealth but also caused environmental degeneration. The
Chinese Environmental Protection Law was passed in 1989. After some twenty years,
it seemed outdated and weak. NPC deputies and the general public urged the NPC to
introduce a new and more effective law. Between 1995 and 2012 a total of 2,474 NPC
deputies submitted no fewer than 78 proposals asking for revising this legislation.37 From
2012 onwards, the Environmental Protection Law was under revision in the NPC. The
revision went through four rounds of deliberation and was finally passed in 2014. Each
round involved publicizing the draft law to the general public and asking for comments.38
Such comments were offered on the following issues: stricter obligations on local
governments and enterprises in respect of pollution prevention and control; re-vision of
the administrative structure for environment management; reorganization and protection
of citizens’ rights to environmental welfare. It is well known that the degenerating
environment situation is largely caused by local government ‘delinquency’, and the 1989
Environmental Protection Law did not give sufficient emphasis on the governments’
responsibilities for maintaining a sound environment. In China as elsewhere, it is generally
understood that the citizens’ rights to environmental welfare includes the right to know,
the right to express, the right to supervise and the right to participate. Cai Shouqiu, a
leading scholar in the field of environment law has pushed the general public’s right to a
sound environment for some two decades, and Lu Zhongmei and Wang Canfa, both also
leading scholars in this field, also believe the revised law should declare Chinese citizens’
right to a sound environment.39 As a people’s deputy in the urged for a better environment
protection legal system more than a decade and declared that it is ‘only when the citizens’
environment rights are clarified in the environmental law, can the citizens’ participation in
environment protection, public interest litigation, and citizens’ supervision of pollution be
given legal recognition.’40 Disappointingly, in the first revised draft of the Environmental
Protection Law the citizens’ rights to environment were not even mentioned; nor did

36
 Chen L (2011) ‘Geshuifa Xiugai Yixiaobu Minzhu Lifa Maidabu’ (A Small Step of Individual Income Tax A
Big Step of Democratic Legislation) Fazhi Ribao (Legal Daily) 5 July 2011.
37
 Wang T (2012) ‘Huanbaofa Xiuding: Yijian Yiluokuang’ (Revision of Environmental Protection Law: Lots of
Suggestions) Nanfang Zhoumo (Southern Weekend) 14 September 2012.
38
 ‘Huanbaofa Xiuding: Jiben Dingwei, Xiugai Yuanyou’ (Revision of Environmental Protection Law: The
Purpose and Reasons)<http://www.calaw.cn/article/default.asp?id=9727> visited on 4 June 2016.
39
 Wang C ‘Huanbaofa Ying Zeng Gongmin Huanjingquan’ (The Environmental Protection Law Should
Specify Citizens’ Rights to Environment) Renmin Ribao (People’s Daily), 14 September 2013.
40
 Ibid
300 JCL 12:2
 sun ying and zhang xiang

the law draft provide any legal procedure by means of which in particular the local
governments could be held accountable. 41 Disappointed but not discouraged, scholars
and the general public kept ‘bargaining’ with law makers. As a result, in the end, the
notion of environment public interest litigation was accepted, and greater liability and
more severe punishments were introduced for offending enterprises, including a ‘daily
penalty’ system for dealing with pollution.42
Food safety has been another public concern. In 2009 the NPCSC passed the Food Safety
Law (2009, revised 2015). Article 55 stipulates that ‘a social group or any other organization
or an individual which recommends food to consumers in any false advertisement
or other false publicity, which cause any damage to the lawful rights and interests of
consumers, shall assume joint liability with the food producer or trader.’ This provision
is too harsh in the eyes of some legal scholars (and entertainment celebrities involved in
product promotion).43 Is it reasonable, they asked, to make an advertising spokesperson
to assume joint liability? Li Yuan the director of NPCSC Legislative Affairs Commission’s
Administrative Law Office and also the principal draftsman of Food Safety Law, explained
that this regulation is a consequence of the infamous ‘tainted-baby-milk scandal’. The 2008
case of sales of melamine tainted infant formula infuriated many consumers, and it was
(and still is) the resulting public view that celebrities who recommend a toxic food to
the public should be punished harshly. Li Yuan recalled that a victim had sued actress
Deng Jie for being part of the advertising for the toxic baby milk product. The court took
the view however that Deng Jie was not liable because the Advertisement Law did not
provide for any such individual liability for those involved in the promotion of a product
without knowledge of its deficiencies. The new Food Safety Law could provide a legal
basis, however, and thus fills the legislative gap, though as we have noted, there remain
many observers who feel that this provision is a step too far.44

Legal procedure privileges

Common wisdom holds that since 1979 legal reform China has done well in social and
economic rights and not so well in the area of political and civil rights. Such observations
undervalue, however, China’s steady progress in protecting civil rights by revisions to
its legal procedures. Important developments include the 2013 abolition of the serious
administrative punishment of Re-education through Labor (Laojiao), revision of Criminal
Procedure Law (1979, revised 1996, 2012), and revision of Administrative Litigation Law
(1989, revised 2014).
Having served the Party-state for over half a century, Laojiao was publicly criticized
as being a form of administrative punishment which was in conflict with both the Chinese
Constitution and the Legislation Law. Since the 1990s, scholars had urged abolition of
the Laojiao institution. From 2003, NPC deputies and National Chinese People’s Political
Consultative Committee members started making yearly proposals on abolishing Laojiao.
In 2005 and 2010 respectively, the NPCSC made legislative plans on reforming the Laojiao

41
 Ibid
42
 Interview with an environmental law professor, Guangzhou, 1 February 2016.
43
 Interview with a civil law professor, Beijing, 1 May 2016.
44
 Zhang Ying and Yu Shuhong ‘Women De Chufa Gou Qing Le’ (The Punishment in This Country is not
Severe) Nanfang Zhoumo (Southern Weekend) 19 March 2009.
JCL 12:2 301
Selective Openess

system, but the proposals were shelved.45 Then, in 2013 the cases of Tang Hui and Ren
Jianyu respectively attracted nationwide attention, showing as they did how easy it was
for injustices to arise under the system, and Laojiao was finally ended. Evidently the
public indignation at the abuses revealed in these two cases were the last straw.
Presumption of innocence, prevention of extortion of confession by torture, exclusion
of illegal obtained evidence, and privileges against self-incrimination are fundamental for
a sound system of criminal justice, and these fundamental principles are established at
various places in Chinese criminal proceedings by revisions of Criminal Procedure Law.
These achievements are built upon reflections on a series of wrongful convictions over
the years.46 Among the most influential of these are the cases of Du Peiwu, Xu Jingxiang,
Teng Xingshan, She Xianglin, Zhao Zuohai, and Nie Shubin respectively. These cases
involved wrongfully convictions and subsequent executions, secured by self-incrimination
under torture. Pressured by public outrage, the 2012 revision of Criminal Procedure
Law provided that ‘it shall be strictly prohibited to extort confessions by torture, gather
evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit
self-incrimination’.47
For several decades after its introduction, the 1989 Administrative Litigation Law
failed to become a legal weapon for the citizens to fight against state power abuse.48 The
1989 Administrative Litigation Law had following flaws: the purpose of the law was not
clear; the scope of cases acceptable to court was too narrow; the costs of administrative
lawsuit were higher than other types of lawsuit; and the court cannot review the legality
of regulatory documents, and so on. From 2009 the NPC Legislative Affairs Commission
started preparing for revision of the law through field trips and forums. The forums were
attended by deputies, judges, prosecutors, government officials, lawyers, entrepreneurs,
association representatives and scholars. Such meetings were held before the first-round
deliberation, after the first draft was drawn up, and also after the second draft had been
prepared. Meanwhile, the NPC also publicized the several drafts on its official website
to solicit social opinions. A major topic was how best to protect citizens’ legal rights in
administrative litigation. Under the 1989 Administrative Litigation Law citizens can only
bring a lawsuit in respect of a ‘concrete administrative action’. Some NPCSC members,
experts and judges suggested that an aggrieved citizen’s options should not be limited to
‘concrete administrative action’. The legislative affairs commission took this suggestion
and changed ‘concrete administrative action’ to ‘administrative action.’ Some NPCSC
members, judges and citizens argued that the law should clarify that the person in charge
of an administrative agency must appear in court. This suggestion was also incorporated
into the revised Administrative Litigation Law. Another breakthrough is an expansion of

45
 For the trajectory of reform of the Laojiao system, see Fu Hualing (2008) ‘Dissolving Laojiao’ China Rights
Forum 54.
46
 For the relations between wrongful convictions and criminal justice reforms, see Jiang N (2015) ‘Problems
and Prospects: China’s response to Wrongful Convictions’ (43) International Journal of Law, Crime and Justice 109.
47
 However, the revised Criminal Procedure Law did not change the provision which specified: ‘the criminal
suspect shall answer the investigators’ questions truthfully’; this requirement undercuts the exclusion of self-
incrimination.
48
 For the failures of 1989 Administrative Litigation Law, see O’Brien, KJ and Li Liangjian (2004) ’Suing the
Local State: Administrative Litigation in Rural China’ (51) The China Journal 75.
302 JCL 12:2
 sun ying and zhang xiang

the types of complaint which can be accepted by the courts, and this breakthrough is also
based on opinions first raised by the experts and citizens.49

LIMITS OF OPEN DOOR LEGISLATION

Openness in legislation is not without limits. As Fu Hualing keenly observes, ‘While the
legal reforms in China since the late 1970s may have witnessed the reemergence of a legal
system which is functioning and effective in civil and commercial matters, the CCP is in
direct control over matters of political significance, especially those concerning the direct
interest of the Party’.50 The limits of open door legislation may reflect the scope of the
Party’s direct or core interests.

National Security

In 2015 the NPCSC passed a National Security Law. As usual, the NPCSC invited scholars
to discuss the law draft and posted the draft law on its official website to solicit opinions
from the public. In discussion panels, there were constitutional law experts who opposed
the idea that the National Security Law should regulate matters in the Hong Kong and the
Macau Special Administrative Regions.51 An important reason for this is that, for example,
according to the Basic Law of the Hong Kong Special Administrative Region (The Basic Law),
national laws may not be applied in the Hong Kong except for those listed in Annex III to
the Basic Law. The experts’ suggestion was, however, rejected52—the central authority’s
resistance came from a fear that they may lose control over Hong Kong. The lack of local
legislation in Hong Kong implementing Basic Law Article 23 on security issues, disputes
over electing Hong Kong’s chief executive, occupation of Central, the rise of ‘localism’ and
even demands for radical separatism made Hong Kong have deeply worried the Central
Authorities. For Beijing, to specify in law the Hong Kong and Macau residents’ obligation
of loyalty to the Chinese state is essential.

Approach to Democratization

How China will democratize is a fascinating issue for China watchers. Speculation
abounds. Some argue that Western liberal democracy is the only way forward for China,
some find that Chinese leaders has their own implicit agenda in mind for China’s political
future, and some conclude that China has become trapped in developmental autocracy.
Whether they have an agenda or not, Chinese top leaders are determined in progressing
reform in China in their own way. Any pressures, from either outside China or inside,
aimed at altering China’s path of political reform are resisted firmly.

49
 Administrative Laws Office of NPCSC Legislative Affairs Commission (2015) Xingzheng Susongfa Lifa Beijing
Yu Guandian Quanji (Legislation Background and Points on the Administrative Procedure Law) Law Press at 5.
50
 Fu HL (2013) ‘The Upward and Downward Spirals in China’s Anti-Corruption Enforcement’ in McConville
M and Pils E (eds.) Comparative Perspectives on Criminal Justice in China Edward Elgar at 390.
51
 Article 11: ‘The sovereignty and territorial integrity of China shall not be infringed upon or partitioned.
Maintaining the sovereignty, unity, and territorial integrity of the state shall be the common obligation of all
Chinese people including Hong Kong and Macao compatriots and Taiwan compatriots’.
52
 Interview with a constitutional law professor, Beijing, 1 December 2015.
JCL 12:2 303
Selective Openess

Freedom of the press is a fundamental pillar in building a liberal democracy. In the

PRC, the media are but ‘one of many competing Party-state institutions’ with ‘traditional
close links to the Communist Party.’53 The media serves as both ‘throat and tongue’ and
‘ears and eyes’ for the Party. A Media Law has to deal with the contradictions between the
politically embedded nature of the Chinese media, and privatization and ideals of freedom
of the press. In 1980, during the 5th NPPCC 3rd plenary session, there were scholars who
urged for the introduction of a Media Law. In 1984 the NPCSC intended to draft such a
Media Law and delegated responsibility of research institutes to draft the law. After the
1989 incident, however, this legislative program was suspended.54
Another pillar for liberal democracy is free, open and competitive elections. The 1979
Election Law (1979, revised 1982, 1986, 1995, 2004, 2010, and 2015) is one of the most
frequently revised laws in PRC history.55 In 2015 the Election Law was revised for the sixth
time. Routinely scholars are asked to submit suggestions for its reform. Law professors
have made many suggestions about the needs for greater transparency in the electoral
process, the independence of election boards, and the rules governing competition in
elections. None of these suggestions have been followed up. And scholars have been told
they could not make suggestions which went beyond officially defined limits.56
The People’s Deputies Law was passed in 1992 and revised respectively in 2010 and
2015. During the 2010 revision a controversy arose as to whether China should have full-
time deputies, instead of its prevailing part-time deputies’ system. The Chinese legislature,
the National People’s Congress, is called a “rubber stamp” for many reasons: the lack of
genuine election, the weak link between deputies and voters, the differences in the nature
of the CCP and Congress, and above all, because congress deputies are part timers who
are not get paid for their congress work.57 In 2010, Luojiang County in Sichuan province
experimentally elected full time deputies and set up individual deputy offices.The 2010
revision of the Deputies Law, however, brought an end to such an experiment. Some
distinguished constitutional scholars have harshly characterized this legal regression as
being like ‘driving backwards’.58 In the 2015 revision the idea of full time deputies and
greater individual activism were kept off the legislative table.

53
 Liebmann, BL (2005) ‘Watchdog or Demagogue? The Media in The Chinese Legal System’ (105) Columbia
Law Review 1at 8.
54
 ‘Xinwen Lifa, Sanshinian Wei Cheng’ (Media Law Legislation, [Still] Not Complete after 30 years), <http://
news.takungpao.com/mainland/yangguang/q/2013/0128/1412170_2.html> visited on 4 June 2016.
55
 For Election Law and election process, see Sun Ying (2013) ‘Independent Candidates in Mainland China:
Origin, Development, and Implications for China’s Democratization’ (53) Asian Survey 245. Sun Ying (2014)
‘Municipal People’s Congress Elections in the PRC: a process of co-option’ (23) Journal of Contemporary China
183.
56
 Interviews with constitutional law professors, Beijing, Wuhan, and Guangzhou, May and August 2015.
57
 For the role of Chinese congress deputies, see O’Brien, KJ (1990) Reform without liberalization: China’s National
People’s Congress and the Politics of Institutional Change Cambridge. Xia M (2008) The People’s Congresses and
Governance in China: Toward A Network Mode of Governance Routledge. Cho YN (2009) Local People’s Congresses
in China: Development and Transition Cambridge. Sun Ying (2010) ‘Constraining or Entrenching the Party-
state?: The Role of Local People’s Congresses in PRC China’ (40)Hong Kong Law Journal 833. Sun Ying (2010)
‘Development of Chinese Local People’s Congresses—Dynamics and Limits’ (17) American Journal of Chinese
Studies,131. Sun Ying (2012) What Drives Reforms in Local People’s Congresses? The Dynamics of Local Congressional
Developments in PRC:1979-2010 Lambert Academic Publishing.
58
 Interview with a constitutional law professor, Beijing, May 2016. Also see Cai D (2010) ‘Daibiaofa Xiugai
Buneng Kai Daoche’ (The Revision of Deputy Law Should not Drive Backwards), (October 2010) Zhongguo
Gaige (China Reform) 58.
304 JCL 12:2
 sun ying and zhang xiang

Entrenched Faction Interests

The China’s policy making process is accurately depicted as a ‘fragmented

authoritarianism’.59 Bureaucratic units are grouped into various clusters and Party elites
formed by different faction or cliques.60 Each cluster of bureaucracy or each faction within
the Party has its own domain. Major interests within their domains are untouchable for
outsiders.
When it comes to the entrenched interests of a bureaucracy cluster, the bureaucracy
usually steers clear of the public and any view it might have on a proposal and invariably
monopolizes the decision making process and outcome. A typical example is the
aforementioned tax management. As noted above, the State Council, Ministry of Finance,
and State Administration of Taxation share the power of tax collection and management.
In November 2014, as approved by the State Council, the Ministry of Finance and State
Administration of Taxation jointly released an official notice to increase fuel tax. Against
the backdrop of oil prices decreasing all around the world, the general public and the
mass media protested against the tax increase. But the protests did not stop the above
two agencies from increasing the fuel tax again and again throughout December 2014
and January 2015. Indeed, several tax increases did not even get approval from the State
Council so that in formal terms they were unlawful. Nevertheless, the general public were
required to pay the taxes thus levied.61 Similarly, in June 2015 the Ministry of Finance and
State Administration of Taxation jointly released an official notice to increase tobacco tax
in a large scale (from 5% to 11%) despite public opposition.

CONCLUSION

The story of a managed participation in lawmaking tells that China follows a road of
authoritarian resilience. Lacking genuine elections and real electoral links between voters
and lawmakers, the open-door practices that have been introduced function primarily to
absorb voice of social discontent. In less politically sensitive spheres, public participation
in lawmaking is developing.62 The state gives Chinese citizens incentives and opportunities
in the form of open door legislation. However, the door is half open at best. Given the
emphasis on national security, the offer of only a limited democratization model, and the
stress the core interests of bureaucracy agencies, the participation of outsiders is often of
little difference in more sensitive areas. Thus, the bottom up participation in legislation
is unlikely to lead China in the direction of a liberal democracy. Substantive ideas on
liberalization and on placing limits on government authority cannot be put forward, and
accepted, via bottom-up channels. Rather, only when the Chinese Party-state itself becomes

59
 Lieberthal, KG and Lampton, DM (1992) (eds) Bureaucracy, Politics, and Decision Making in Post-Mao China
University of California Press.
60
 For China’s faction politics, see Huang J (2006) Factionalism in Chinese Communist Politics Cambridge
University Press; Shih VC (2007) Faction and Finance in China Cambridge .
61
 Nie Riming, ‘Waimei Kanwen Zhiyi Caizhengbu Guoshui Zongju Sanci Tiaozheng Ranyoushui Weifa’
(Foreign Media Questions the Three Raises of Fuel Tax by the Ministry of Finance and State Administration
of Taxation) http://www.guancha.cn/economy/2015_01_21_306959.shtml. <http://www.guancha.cn/econo-
my/2015_01_21_306959.shtml> visited on 4 June 2016.
62
 Law making in the 1990s was mainly a process of inter-agency consensus-building, see Tanner, MS (1999)
The Politics of Lawmaking in China, Oxford.
JCL 12:2 305
Selective Openess

more open and liberal, and more democratic lawmaking processes introduced, can the
public have an impact on more substantive and important issues in China’s unfolding
reforms.

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

kaimen lifa 开门立法 open door legislation

kexue lifa 科学立法 scientific lawmaking
minzhu lifa 民主立法 democratic lawmaking
Lifa Fa 立法法 Legislation Law
zuotanhui 座谈会 discussion forums
lunzhenghui 论证会 discussion meetings,
tingzhegnhui 听证会 hearings
shuishou fading 税收法定 paying the tax according to law
Renda 人大 People’s Congress
Laojiao 劳教 Reform through Re-education

306 JCL 12:2

 yue huang

Public Hearing in China: A Failed

Revolution or a Successful Distraction?
YUE HUANG*
Guangzhou University; Yale Law School

INTRODUCTION

The public hearing (gonggong tingzheng) has been an indispensable institution of modern
governance. In many jurisdictions around the world, the public hearing is a vital
composition of administrative procedural law and is regarded as a crucial element of
modern administrative law. Yet, despite the intensive academic explorations of the public
hearing in ‘Western’ jurisdictions, the role of public hearing in developing administrative
law in non-democratic countries has not been adequately addressed. The difficulties in
exploring this reflects not only rest a scarcity of good non-Western examples in practice,
but also a lack of attention to and interest in the theories of administrative law in the
states beyond the model of ‘western democracy’. But the People’s Republic of China
(PRC) provides at least one available example enabling us to observe both the theories and
practices of public hearing in an authoritarian regime. This article is a theoretical attempt
to examine the emergence of public hearing practice in China.
This article offers two advances to our knowledge. First, unlike the situation in
various Western jurisdictions, the Chinese public hearing is more used as a transparency
mechanism rather than it is used as a process which examines evidence; secondly,
mismatched incentives within China between higher level and lower level governments
and between the head offices of various government and regulatory agencies lead to
differing attitudes to the public hearing.
From 1978 to the end of 1990s, China spent some two decades aiming to rebuild its
legal system and to create a modern administrative regime adapted to the need of a market
economy.1 One outcome of these processes, is that China has established a system that in
many ways mirrors the administrative law system found in ‘developmental states’,2 which

* The author thanks Professors Fu Hualing, Susan Rose-Ackerman and Wang Xixin for their kind advice on
this essay.
1
 Peerenboom, R (2001) ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform
and Rule of Law in the People’s Republic of China’ (19) Berkeley Journal of International Law 161; also see He, H
(2008) ‘The Dawn of the Due Process Principle in China’ (22) Columbia Journal of Asian Law 57. Moore SF (1973)
‘Law and Social Change: the Semi-Autonomous Social Field as an Appropriate Subject of Study’ (7) Law and
Society Review 719.
2
 Ginsburg T (2008) ‘Judicialization of administrative governance: Causes, consequences and limits’ (3) New
York University Law Review 1.
JCL 12:2 307
Public Hearing in China

features overwhelming state discretion in policymaking and limited procedural checks on

government power.3
However, the ‘developmental state’ model does not necessarily exhaust all the
characters of Chinese administrative law. Even though China may not be moving towards
a liberal democratic state with a solid rule of law, Chinese leaders have been persuaded that
establishing a functionally effective administrative law system will be at least a meaningful
attempt to enhance the legitimacy of administration. This situation is evidenced by a large
mass of legislation promulgated since the early 1980s. The 1982 Constitution included
provisions relating to administrative procedures and the right of citizens to make appeals
and complaints against government.4 The Administrative Litigation Law (Xingzheng
Susong Fa) was passed in 1989 and went into effect in 1990 (as revised 2015), providing
a legal basis as well as a general procedure for private parties to challenge governmental
decisions.
The pace of administrative law legislation accelerated between the 1990s and 2000s.
The most important legislation promulgated during this period included Administrative
Supervision Regulations (Xingzheng Jiancha Tiaoli) in 1990, Administrative Reconsideration
Regulations (Xingzheng Fuyi Tiaoli) in 1990, State Civil Servant Provisional Regulation
(Guojia Gongwuuyuan Zanxing Tiaoli) in 1993, State Compensation Law (Guojia Peichang
Fa) in 1994 Administrative Punishment Law（Xingzheng Chufa Fa) in 1996, Administrative
Supervision Law (Xingzheng Jiancha Fa) in 1997, Administrative Reconsideration Law
(Xingzheng Fuyi Fa)in 1999, Law on Legislation (Lifa Fa) 2000, Administrative Licensing
Law (Xingzheng Xueke Fa) in 2003, Civil Servant Law (Gongwuyuan Fa) 2005 and the
Administrative Compulsion Law (Xingzheng Qiangzhi Fa) in 2011. Compared with other
Eastern Asian new democracies, the only apparent deficiency of Chinese administrative
law system is the lack of a comprehensive administrative procedure code.5

THE EMERGENCE OF PUBLIC HEARING: THE TRANSITION OF THE

THEME DURING THE TRANSPLANTATION

The ‘public hearing’ was initially a response, in substantial part, to the growing awareness
of administrative procedure among Chinese law scholars, as well as the need of local
government to reinforce their governance capacity. Under a more liberal political climate
comparing to nowadays, Chinese scholars started to pay attention to the ‘public hearing’
in the late 1980s and had correctly noticed two distinctive categories of public hearing
based on their readings of the ‘adjudicative hearing’ and ‘policymaking hearing’ in United
States administrative law. As early as 1989, before the Tian’anmen Movement, the scholar
Ye Bifeng introduced the idea of a public hearing in an icebreaking article, in which he
defined the public hearing as an executive moderated process for clarifying and verifying

3
 Potter, PB (2004) ‘Legal reform in China: institutions, culture, and selective adaptation’ (29) Law and Social
Inquiry 465.
4
 Chinese Constitutional Law 1982 (as revised, 2004, Article 41).
5
 In East Asia, Japan, South Korea and Taiwanare jurisdictions which have introduced an Administrative
Procedure Law (Code). In general, see Ginsburg T (2009) ‘The Judicialization of Administrative Governance:
Causes, Consequences and Limits” in Ginsburg and Chen AHY (eds.) Administrative Law and Governance in Asia:
Comparative Perspectives Routledge at 1.
308 JCL 12:2
 yue huang

relevant issues.6 According to Ye , the hearing had seven main functions, namely collecting
social opinions and insights, sustaining social justice, enhancing political communication,
improving administrative efficiency, preventing corruption, mitigating decision-makers’
bias and eliminating arbitrariness.7 Ye pointed out that public hearing could be used to
support the legitimacy of policymaking with a broader impact, such as administrative
lawmaking and administrative decision-making with significant social consequences.8
Ye cited the public hearing process in the United States, German and Japan as evidence
to support his arguments. He took the view that in China too policymaking hearings
should be also a compulsory process for all important policymaking to realize the values
of openness (gongkai), scientific (kexue) and democracy (minzhu).9
While the Chinese scholars formulated their theoretical scenarios, Chinese local
governments also had started to experiment with the public hearing in determining
local issues. A central purpose of these experiments was to refrain the abusive manner of
decision-making of officials and enhance the governability under a reformed economic
context. Besides these direct needs, the local officials also had incentives to meet the once
liberal ideology of central leaders by increasing the inclusiveness of public decision-making
process.In the middle of the 1980s, the Shenzhen government had started to hold ‘public
hearings’ in determining government-set prices of public utilities, such as water and
electricity.10 Some local leaders also pledged to adopt public hearings in the policymaking
process. Zhu Linsen, the mayor of Guangzhou City, promoted a ‘three-no principle’,
vowing to reject policies that were passed without ‘study and research’, ‘investigations’
and ‘consulting expert opinions’.11 But for many scholars and governmental officials, the
public hearing was still a useful working method for consulting external opinions and
actors, rather than an independent, institutionalized legal procedure.
The public hearing was formally adopted after the introduction of the Administrative
Punishment Law in 1996. The new Administrative Punishment Law compelled agencies
to conduct hearings as a precondition for imposing any one of three types of punishment.
In order to impose a decision on a firm to discontinue operation or suspend a permit
or impose a large fine,12 decision-making agencies notify the affected parties of rights
of hearing within three days and also informed the parties of the time and place of the
holding of the hearing at least seven days ahead the hearing. To keep the impartiality
of the hearing, the moderating officials should not also be the investigating officials

6
 Ye Bifeng is currently a professor of law at the Law School of Shanghai Jiaotong University. A leading
scholar on Chinese Administrative Law, he is also currently the Vice Chairman of the China Administrative
Law Association. Available at <http://law.sjtu.edu.cn/En/Article110508.aspx>. Ye Bifeng (1989) ‘Xingzheng
chengxuzhong de tingzheng zhidu’ (Public hearing in administrative procedure) (2) Faxue Yanjiu (CASS Journal
of Law) 60.
7
 Ibid, at 60.
8
 Ibid
9
 Ibid, at 61.
10
 Wu J (1996) ‘Bocai zhongyi guangna shanyan—shenzhenshi shixing jiage juece tingzheng zhidu’(collecting
opinions and taking advises—shenzhen city implemented public hearings in price-setting policymaking) (2)
Jiage Lilun yu Shijian (Price Theory & Practice) 42
11
 Ibid Ye, supra note 8, at 61.
12
 Article 42 provides that ‘[a]n administrative organ, before making a decision on administrative penalty
that involves ordering for suspension of production or business, rescission of business permit or license or
imposition of a comparatively large fine, shall notify the party that he has the right to request a hearing; if the
party requests a hearing, the administrative organ shall arrange for the hearing. The party shall not bear the
expenses for the hearing arranged by the administrative organ. The hearing shall be arranged’.
JCL 12:2 309
Public Hearing in China

making the initial decisions. Some local legislation providing for hearings contained
greater procedural detail. For example, the participating parties were entitled to receive
interpretation services and to send their representatives to attend a hearing. Third parties
were also allowed to attend the hearing.13
The 1998 Price Law for the first time established a true ‘public’ hearing procedure
for consideration of policy matters. Compared to the hearing under the APL, the Price
Law’s approach practice indicated a trend towards policymaking beyond the boundaries
of specific contexts. Under the Price Law requirements, price management agencies are
required to solicit views from consumers, business operators and other members of
society before making decisions. 14
In 2003, the Administrative License Law highlighted two situations under which the
public hearing must be used in issuing licenses,15
(1) when the hearing is required by statutes, administrative regulations or rules,
or the licensing matters are of great importance for the public interest , or the
administrative organ considers it necessary to hold a hearing, the administrative
agencies must hold a hearing.
(2) where an administrative license is of direct significance to the interests of the
applicant or others, before the administrative agencies makes a decision about the
administrative license, it shall inform the applicants or the interested parties and
hold hearings upon their request.16
In the same year, the Law on Environmental Impact Assessment (Huanjing
YinxiangPinggu Fa, ‘EIAL’) introduced a compulsory participatory process, including the
public hearing, as the prerequisite step for endorsing an Environmental Impact Assessment
Report. The EIAL, however, marked a completion of an era of extensive legislation on
the public hearing. After 2003, the public hearing became a standard procedure of all
policymaking process conducted in China.

The Four Key Items of Legislation in the Era of Hearing

Year Title Features

1996 Administrative Punishment First hearing law
Law
1998 Price Law First policy hearing
2003 Administrative License Law Binding Policy hearing
Agency’s power to decide whether
to hold hearing
2003 Environmental Impact Hearing became a standard
Assessment Law procedural step

13
 Sifa xingzheng jiguan xingzheng chufa tingzheng chengxu guiding 1998 (The Hearing Procedure of
Administrative Punishment at judicial Administrative Agencies) (1998) Available at <lg.lawyers.org.cn/help/
law-article.jsp?id=13f096735e2ce0682c6f66668ce8eb53>.
14
 Article 23.
15
 Articles 46-47.
16
 Ibid
310 JCL 12:2
 yue huang

INTRODUCING THE AMERICAN MODEL: HOW THE PUBLIC HEARING

BECOME A REFORM AGENDA

A public hearing process depends on how the governing statutes designs them. The
statutes provided regulations on the scope, coordinators, participants, procedures, binding
effects and fees. In general, there are two categories of public hearing design. First, the
public hearing for imposing punishment or offering license is focused on providing the
affected parties of opportunities the opportunity to be informed and responding with
their opinions to the decisions. Secondly, the policy oriented public hearing is concerned
with how to collect important information from the relevant parties.
The request to hold a public hearing under the Administrative Punishment Law must
be made against one of three types of punishment: revocation of a permit or license, order
to suspend production, or imposition of a fine. Agencies must inform the respondent
of the rights to a hearing when they announce punishment. If the respondent requests
a a public hearing, the agency must decide the time, location and form of public hearing
within two days and serve the process within seven days. Coordinators also take the
duty of serving the process, inquiring the facts and reasons of the punishment decision,
demanding evidences and testimony, discipline the public hearing and reviewing the
hearing record. Coordinators may make decisions in writing. During the hearing, the
coordinator will require the decision-making officials to provide the factual and legal
bases, as well as the rationale, of the punishment decision. The evidence provided by the
decision-makers must be examined in front of both parties. The respondent will have the
chance to deliver their opinions and make claims. The record of the public hearing must be
signed by decision-making agencies and respondents before coordinator may file it. The
coordinator, however, is not obligated to base her or his decision on the record of public
hearing.
Another type of public hearing focuses on broader issues of participatory governance.
This type of public hearing is perhaps best exemplified by the public hearing held under
the process of environmental impact assessment. In contrast to the model of administrative
punishment, the purpose of the public hearing for environmental impact assessment
purposes is intended to allow the public directly to engage with the decision-makers
in determining the future polices. Unlike the relatively independent coordinator of the
public hearing, the environmental impact assessment public hearing is coordinated by
the very agencies making assessment. The assessing agencies must inform the public of the
proposed hearing and select participants from voluntary registers. During the hearing, the
assessing agencies will explain their basis of assessment and participants will debate and
challenge the assessment. The assessing agency must record opinions about the assessment
decision. In the process of approving the environmental assessment report by Ministry
of Environmental Protection or local environmental protection agencies 17these recorded
opinions will be considered and used to support or reject the decision. Apparently,
the public hearing in China takes two contrasting forms. The punishment-type public

17
 The distribution of the power of reviewing environmental assessment report between the Ministry of
Environmental Protection and local environmental protection agencies is made primarily by Huanjingbaohubu
Shenpi Huanjing Yingxiang Pingjia Wenjian de Jianshe Xiangmu Mulu (The Index of Construction Project
of which Environmental Impact Assessment are Reviewed by Ministry of Environmental Protection) 2015.
Available at <www.zhb.gov.cn/gkml/hbb/bgg/201503/W020150317552378469245.pdf>.
JCL 12:2 311
Public Hearing in China

hearing is more like an adjudicative hearing, with a quasi-trial procedure. The purpose
of the procedure is to offer the affected party opportunities to be informed of the decision
and its reasons, and to provide the person on whom the decision is imposed a chance
to express her or his opinions. Examination of the public hearing of the environmental
impact assessment type however reveals a model of deliberation, with a political agenda
seeking to secure a compromise outcome from differing public views. The coordinator of
the administrative punishment hearing is broadly similar to the administrative law judge
under US law, while the coordinator of an environmental assessment hearing is more like
an organizer of consensus-orientated conference.
Another issue in the processes of public hearings is who should be included in the
hearings. When Chinese scholars first introduced the idea of injecting a public hearing
procedure into decision-making schemes, they considered which type of procedural
standing would better fit the goals of the reform of enhancing the political legitimacy of
the contemporary Chinese government and refraining the arbitrariness of, in particular,
local officials. Should an adversarial procedure only open for the affected parties be better
than an inclusive procedure enabling different interest groups and parities to lodge their
opinions?18 Most of the Chinese approaches to the public hearing, including administrative
permission, price-setting and environmental impact assessment, have apparently followed
a pattern of US informal rulemaking, under which the hearing is structured as a process for
gaining public opinions rather than as a trial-like process intended to examine the validity
of factual basis of decision.19 The participants in the hearing are not limited to direct
stakeholders, but also include many other parties, such as experts, social activists and
government officials.20 Notwithstanding the broadened scope of participants, however,
the participants’ roles in hearings are limited to providing opinions that do not bind the
policy results. Adversarial debates are not required and, except for a few of statutory
exceptions, the outcome of a hearing is not judicially enforceable. In fact, in choosing a
hearing as a suitable forum, participants invariably fall into the hands of governmental
decision-makers, precisely because the outcome is not justiciable.
The Chinese public hearing is significantly less formal and participatory than the
US informal hearing process,. It could be seen as a mere gesture of an authoritarian
government to embrace certain liberal ideas, rather than a genuine move towards a new
form of policy making process.
Even though governmental bodies still dominate the emerging public hearing process,
Chinese scholars have reached agreement on two minimum procedural requirements as
being necessary for upholding the legitimacy of the hearing procedure in the eyes of the
public. First, the agencies must provide the affected party with opportunities to state their
genuine views and to support their claims with evidence.21 Second, the hearing process

18
 Gao F (2014) ‘The Effectiveness of Citizen Participation in Public Hearing of Current China’ 11 (3) Journal of
US-China Public Administration 193.
19
 Ruan L (1999) ‘Woguo xingzheng lifa tingzheng chengxu wanshan yanjiu’ (A study of improving
administrative rulemaking in China) (2) Huadong Zhengfa Xueyuan Xuebao (Journal of the East China University
of Politics and Law) 16.
20
 Ibid
21
 Wang X (1996) ‘Cailiang zhengyi yu xingzheng zhengyi—yuedu daiweisi ziyoucailiangde zhengyi’
(Discretion and administrative justice—a book review of ‘Discretionary Justice’ by KC Davis) (2) Zhongwai
Faxue (Peking University Journal of Legal Studies) 114.
312 JCL 12:2
 yue huang

must be fair, transparent and relatively independent of the decision-making agency. 22 The
record of the public hearing, too, must at least have potential impact on the final decision.
It is still unclear, however, what the real purposes of the Chinese reformers to
introduce public hearing is. Mashaw’s framework of organizational priniciples for the
public hearing indicates two theoretical scenarios for public hearing, ‘utilitarian’ and
‘intrinsic’. The utilitarian approach maintains that hearing procedures should only be
a legal instrument for enhancing the acceptability of agency’s decision.23 The ‘intrinsic’
argument, however, argues that the public hearing has its independent political value,
in particular, in preserving the ‘dignity’ and ‘self-receptiveness’ of public life.24 It thus
requires more democratic and reflexive factors to inform the hearing process.25
Both models have been noted and advocated by mainland Chinese scholars. In the
early days of experimenting with the public hearing, most scholars and government
officials took a utilitarian approach.26 The public hearing of Administrative Licence Law,
for instance, was defined as a process with two purposes: (1) to let the affected parties to
deliver their opinions and to contest them with other parties; (2) to collect opinions from
the affected parties and the other uninvolved members of the public.27 In other words,
the public hearing is limited to a consultation process of collecting information rather
than a quasi-judicial or quasi-democratic process with binding effect. A growing sense
of frustration at the lack of a binding effect of the hearing, however, became widespread
among the public and in the media, which pushed for a transition from utilitarian
approach to instrinstic value approach. A significant number of Chinese scholars became
to see the public hearing as an form of “democratic decision-making of Chinese style” and
argued the public hearing should be further developed towards a ‘democratizing of the
public hearing’.28 However, , the instrumental approach was still reflected in the norms
and practices of the public hearing. The interactive dynamics of the two forms of public
hearing models continuously impacted on the Chinese government-controlled public
hearing system and also significantly shaped subsequent reform during the early years of
the twenty-first century.
Several important experiments in the public hearing reflected the above legacy,
including the oft-cited price hearings and environmental assessment hearings. These
experiences reflected a confrontation of two contrasting understandings of the purposes
of the public hearing. They also, importantly, highlighted a persistent concern of Chinese
administrative law reformers in increasing public accountability wherever possible and
through various means, including the public hearing. In other words, the thirst of public
support propelled the characteristics of the Chinese public hearing and override other
purposes.

22
 Ibid
23
 Mashaw JL (1981) ‘Administrative due process: The quest for a dignitary theory’ (61) Boston University Law
Review 885.
24
 Ibid
25
 Ibid
26
 Sun X (2002) ‘Liangzhong chengxu xuliexia de chengxu jiben maodun’ (The basic contradiction between
procedures under two value sequences) (8) Faxue Yanjiu (CASS Journal of Law) 38.
27
 Ruan, supra note 19.
28
 Wang, X & Zhang Y (2010) ‘Woguo xingzheng juece moshi zhi zhuanxing—cong guanli zhuyi moshi
dao canyu zhili moshi’ (The transformation of China’s policymaking paradigm—from Managerialism to
participatory governance) (5) Fashang Yanjiu (Studies in Law and Business) 3.
JCL 12:2 313
Public Hearing in China

The hearing for adjusting government-set prices was the earliest practice of the
Chinese public hearing. Since 1993, when Shenzhen became the first city to adopt price
hearings, this type of hearing has been experimented with by 13 provincial and municipal
governments. The 1998 Price Law requires price-setting agencies to establish ‘a system of
evidentiary hearing presided over by the government departments in charge of pricing’.29
And such hearings should address the concerns of consumers, experts, related enterprises
and the other parties.30
It is noticeable that when the Price Law was promulgated, Chinese government still
determined an overwhelming portion of the prices of products and services. These products
and services not only include almost utilities, public services and natural resources, but
also a number of services that are decided by the market nowadays. The Price Law 1998
provided that government may regulate prices of five categories of product and services
law, if necessary, including ‘merchandises that are of great importance to development
of the national economy and the people’s livelihood; merchandises that are in shortage of
resources; merchandises of monopoly in nature; important public utilities; and important
services of public welfare in nature’. 31
The categories of government-regulated prices showed that government primary
focuses on two aspects or questions: whether the supply of products and services had
been marketized, and, secondly, whether the products and services are of great social
impact and economic importance. If the price-setting system had not been adequately
marketized, the government would need to step into avoid the enterprises from gaining
excessive profit from price manipulation. . In other circumstances, if the government is
eager to control the production and supply of the products and services, it will exclude the
market mechanism by centralizing the price-setting power in the hands of governmental
regulators. Particularly public utilities prince-setting involves redistribution of social
welfare and scarce resources, the government tends to see the price-setting process from
a perspective of political prudence, with political factors far outweighing the economic
implications.
A formal hearing is thus considered to be a proper way to resolve political debates.
The purpose of formal hearing process is designed to contest different arguments in-
depth, allow confronting views to be engaged, and examine the contradictory evidence
and testimony. In this way it is hope that the outcome will be an impartial decision.
A model of this formal hearing in determining government-regulated price can also be
found in the United States, where there is a long tradition of using the formal, evidentiary
hearing process to determine the costs of public utilities. In Morgan v. United States, the
Supreme Court required agencies to ‘give the substance of a hearing, which is to making
determination upon evidence’ in making rates.32 Today, many states in the US still require
formal, evidentiary hearing moderated by administrative law judges in determining the
utilities prices.33

29
 Ruan, supra note 18.
30
 Ibid
31
 Article 12.
32
 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288 (1936). Case Brief available at www.casebriefs.com/blog/law/
administrative-law/administrative-law-keyed-to-strauss/the-procedural-categories-in-action-adjudication/
morgan-v-united-states/>
33
 In Arizona, for instance, the Arizona Corporation Commission (‘ACC’ or ‘Commission’) should hold formal
314 JCL 12:2
 yue huang

The Chinese Price Law provided a less formal mechanism than in the equivalent
US system. The decision is not strictly bound by the collected evidence and cross-
examination of witnesses is not required during the hearing.34 Executive officials, rather
than independent administrative law judges, are the final decision-making agencies. Such
arrangements make the process less than neutral, particularly when the interests of the
government are involved. The Chinese system also raises the question of the importance
of transparency in upholding the legitimacy of public hearing and making the results of a
hearing influential in the final outcome.
Chinese officials still resisted holding public hearing even after the promulgation of
the Price law. Through litigation activists promoted the realization of the public hearing in
practice. In April 2001, Qiao Zhanxiang brought a suit against the Ministry of Railways,
challenging the Ministry’s decision to raise the price of train ticket during the Chinese
New Year without holding a public hearing. Before this litigation, the Ministry of Railways
made such adjustment of the train ticket price almost every year without holding any prior
hearings as required by Price Law.35 Both the first instance and appellate court dismissed
Qiao’s challenge, holding that Price Law only required the price-setting agencies to ‘set
up hearing mechanisms’, rather than to take the immediate action of holding a public
hearing.36 The courts also considered the cost to withdraw the decision of Ministry of
Railways, maintaining that withdrawing the previous decisions of raising price would
lead to higher administrative costs and aggravate social instability.37
Although the court refused to impose on the price-setting agencies a compulsory
duty to hold public hearings, the litigation brought by Qiao did greatly promote the
development of public hearing in China. On July 2nd 2001, the State Development Planning
Commission (SDPC) issued a provisional rule, which demanded the price-setting agencies
to hold a hearing before adjusting the price of public utilities closely relating to the social
welfare and important public services.38 This new rule also delegated the power of holding
a public hearing to the “price management agencies” (wujia guanli bumen), normally the
SDPC and local DPCs.39 In October of that year, the SDPC convened the first public
hearing on its price indexing 40 The prices of electricity, telecom train tickets and airfares

hearings after receiving the utility’s application and written summary or testimony on the cost. On the hearing,
the utility, the Commission staff, Residential Utility Consumer Office (RUCO), and other interveners will offer
evidences, testimonies and conduct cross-examination. After the hearing is concluded, the Commission’s
administrative law judge will issues a Recommended Order on how much of a rate increase the utility should
receive based on evidences and arguments. The Commission will then make the decision based on recommended
orders. Pennsylvania also require Public Utility Commission to make decisions based on evidentiary, trial-type
hearing adjudicated by administrative law judges.146 While in some states, such as Missouri, the evidentiary
hearing is not compulsory, it is required to be used when the parties cannot reach an agreement on the rates
of utilities through a public meeting. The utility company then has the burden of proof to show its request is
reasonable in front of administrative law judge.
34
 China’s 1st Step Toward More Participation In Rulemaking, Available at www.law360.com/articles/470082/
china-s-1st-step-toward-more-participation-in-rulemaking.
35
 Wen X (2008) ‘Market Dominance by China’s Public Utility Enterprises’ (75) Antitrust Law Journal 151.
36
 Ren J & Li H (2002) ‘2001nian tielu chunyun piaojia shangfu anli pingxi’ (Reviewing the raising train fare
during the 2001 Spring Festival) (2) Tianjin Xingzheng Xueyuan Xuebao (Journal of Tianjin Administration
Institute) 51.
37
 Ibid
38
 Zhengfu Jiage Juece Tingzheng Zanxing Banfa (Interim Measures on the Hearing of Government Pricing
Policy) (2001)
39
 Ibid
40
 Guojia Jiwei Guanyu Gongbu Jiage Tingzheng Mulu de Tongzhi (SDPC’s Notice on the Index of Price
JCL 12:2 315
Public Hearing in China

were included.41 The SDPC also authorized the provincial DPCs to decide the local hearing
on indexing.42 In response to Qiao’s case, the SDPC also specially issued a circular,
holding it was a mandatory step to conduct a public hearing before adjusting the prices of
train tickets.43 After the first hearing on train fares held in 2002, the Ministry of Railways
adjusted the initial plan by lowering the range of the revised fares of economy-class train
tickets and raising the fare of deluxe-class tickets during the busy period of the Chinese
New Year.44
In 2002, the SDPC promulgated the Measures for Hearing on Government Price
Decisions to replace the provisional measure promulgated in 2001. The 2002 Measures
was further amended by the National Development and Reform Commission (NDRC) in
2008.45 The 2008 Measures confirmed the form and procedure of price hearings. The 2002
and 2008 Measures require the parties proposing adjustments in prices, such as service
providers and their supervising governmental agencies, to hold public meetings. The
2002 Measures also allowed consumers and their representatives to apply for holding
public hearings.46 But the 2008 Measures have abolished this consumer-initiated hearing
mechanism, which means only the price-setting parties may apply for the public hearing
as a compulsory step in adjusting prices.
The 2002 and 2008 Measures were significant efforts for enhance the transparency
of the public hearing. The applicants for adjusting prices must inform the public of the
charges for the regulated products and services. Before adjusting price, they must submit
their pricing plans to supervising agencies, such as the price departments of NDRC or
local DRCs. They also needed to issue analytical reports to explain why the adjustment of
the price is needed as well as possible economic and social impacts. The plans and reports
also must be open to the public’s inspection.
Another way enhancing the transparency of hearing is broadening the scope of hearing
participants. The 2008 Measures extended the pool of the source of hearing delegates.
Consumers, business operators and other interested parties who have voluntarily signed
up to attend public hearing all became possible delegates under this new rule.47 Consumer
protection organizations, social organizations, industries and governmental departments
also could recommend their representatives.48 The 2008 Measures also required that at
least two-fifths of the delegates in public hearing must be selected from consumers.49 In
addition, decision-making agencies may also invite experts, scholars, government officials

Hearing) (2001). Chou BKP (2009) Government and policy-making reform in China: The implications of governing
capacity Routledge at 36.
41
 Ibid
42
 Ibid
43
 Ibid
44
 Guojia Jiweibangongting Guanyu Tielu Bufen Lieche Shixing Zhengfu Zhidaojia Lvxing Jiage Tingzheng
Chengxu Youguan Wenti de Han (SDPC’s Official Letter Regarding to the Hearing of Government Guided Price
of Some Railway) (2001)
45
 The NDRC replaced the SPDC in 2003 and assumed most of the authority of the former SPDC; Zhengfu
Zhiding Jiage Tingzheng Banfa (Measures for Hearing on Government-fixed Prices) (2008)
46
 Yu H (2000) ‘Jiage Tingzheng Renzhong Daoyuan’ (Still a long way ahead for price hearing) (11) Zhongyuan
Shichang Daguan (Journal of Tianjin Administration Institute) 46.
47
 Article 10.
48
 Ibid
49
 Article 9.
316 JCL 12:2
 yue huang

and staff of social organizations to attend the public hearing.50 The public hearing also
opened to auditors, who are also selected randomly, or according to their signing-up
sequence. Although these auditors have no right to speak or raise questions in the public
hearing, they observe the hearing process as external monitors. Finally, the contents of
the hearing should be recorded by a government-appointed recorder.51 The price-setting
agencies must give explanations—along with their decision—on how they considered
and took into account the opinions collected from the hearing participants.52
Criticisms of the price hearing system that thus emerged, centered on several procedural
and substantive deficiencies, such as manipulation of delegates, lack of transparency of
cost information and narrow policy impact. First, the selection of the delegates is still at
the absolute discretion of decision-making agencies. The 2008 Measures still allow the
hearing organizers to hold the authority to determine the list of delegates after considering
the recommendations of consumer organizations or other mass organizations, which
leaves the public hearing organizers the opportunity to manipulate the composition of
the hearing committees and, especially, to exclude delegates who lack ‘connections’ to the
government.53 For instance, in a public hearing held by Beijing government for adjusting
the rate of natural gas in 2010, all twenty-five delegates were recommended by the local
government and (quasi-governmental) social organizations—none of them directly came
from the general public and genuine consumers.54 The 2008 Measures also left great
flexibility for agencies to decide how to characterize ‘consumers’. And there is also lacking
a mandatory requirement to include the ‘most affected’ consumers into the hearing
meeting. In a public hearing held in Pingyao City, Shanxi Province, all 27 delegates came
from local consumers, businessmen, scholars and government officials—none of them are
from non-local consumers, even though the non-local tourists constitute one of groups
most likely to be affected by a change of price.55
Another case of manipulation occurred in Beijing, which was about adjustment of taxi
fare rates. In China, taxi rates were in the index of government regulated prices and the
adjustment of the tax rate had to be made through a hearing process. In 2006, the Beijing
municipal government proposed to increase the taxi’s rate from 1.6 RMB to 2 RMB per
kilometer. The Beijing government claimed such adjustment to be a ‘win-win’ measure—it
would increase both the income of taxi companies and their drivers and the tax revenue of
the government. However, many taxi drivers complained that such an adjustment actually
only benefited government and might discourage customers and thus even reduce drivers’
income. To determine the public preference, a survey of two hundred individuals was
conducted by the China Social Sciences Academy. This showed, perhaps not surprisingly,
that 72% respondents were against the proposal, and that only 6% supported it. According
to another survey conducted online by Xinhuanet.com of 1249 residents, 90% were against
the proposal and only 8% supported it.56 However, when the public hearing was held, a

50
 Ibid
51
 Article 12.
52
 Ibid
53
 Art. 6
54
 Xu C & Cheng X (2012) ‘Gonggong Tingzheng de Lixiang yu Xianshi—Yi Beijingshi de Zhidu Shijian Weili’
(The Ideal and Reality of Public Hearing—An Example of Practice in Beijing) (30) Zhengfa Luntan (Journal of
China University of Political Science and Law) 95.
55
 The news report is available at <finance.sina.com.cn/china/dfjj/20100719/11448319877.shtml>.
56
 The news report is available at <society.people.com.cn/GB/41158/4333564.html>.
JCL 12:2 317
Public Hearing in China

majority of delegates (16 of 25)—including two appointed delegates of drivers—supported

the government’s plan.57 When the result of public hearing was reported, the Beijing
municipal government was widely suspected of having manipulated the selection of the
drivers’ delegates. Many taxi drivers refused to accept the plan. A strike of taxi drivers
occurred afterwards, in protest against the government’s new taxi-rate policy.58
Lack of transparency is an even a bigger problem in the price hearing process,
undermining the legitimacy of the process. This problem is particularly contentious
when the decision-making agency has strong commitment to certain policy preferences.
In many cases, the price-setting agencies have tended to emphasize the necessity of raising
prices while being selectively blind to contradictory factors.59 To seek tighter control
of hearing conclusion and to weaken the participation of non-government-appointed
delegates, policymakers may also choose to hide significant pricing information.60 For
example, in a price-setting hearing on natural gas, the Beijing municipal government only
emphasized the increase of the operation cost but avoided to mention any negative impact
that the raised prices may bring with.61 Controlling the sources of information allowed
policymakers to not only exclude the unfavorable policy choices, but also to manipulate
public opinion on contested social issues.
The 2008 Measures have, however, enhanced the requirement of transparency, in
particular, on the field of public utilities. The public utility providers, for example, must
provide their operational costs while they applied to raise the price. However, even
though 2008 Measures require agencies to inform the participants the ‘pricing cost’ fifteen
days before a hearing was held,62 many hearing organizers still attempted to circumvent
this requirement by various ways. In the case of Zhao Zhengjun v. Zhengzhou Heating
Power, the Price Bureau of Zhengzhou Municipality in Henan Province organized a price
hearing to determine the price of ‘centralized heating system’. Zhengzhou Heating Power,
a company that was operating one of two public utilities maintaining the heating system
of Zhengzhou metropolitan area, applied to hold a public hearing so as to adjust price. In
its report, Zhengzhou Heating Power explained the price hike was a necessary response to
its most worrying losses in the previous few years. This explanation was however widely
challenged. Some observers noticed that compared to the other heating power company,
Zhongyuan Environmental Protection Ltd., Zhengzhou Heating Power’s operational
costs were extremely high.. They thus doubted whether the cost of Zhengzhou Heating
Power supplies were reasonable..63 Some local consumers also doubted why they had to
pay higher heating charges than the residents of Beijing and Shanghai, when the median
income of Zhengzhou was much lower than in those two cities.64

57
 Wang X (2008) ‘Gonggong juecezhong de dazhong, zhuanjia yu zhengfu: yi zhongguo jiage juce tingzheng
wei gean de yanjiu shijiao’ (The Public, Expert, and Government in the Public Decision-Making Process: A
Study of China’s Price-Setting Hearing System and Its Practice) (1) Zhongwai Faxue (Peking University Journal
of Legal Study) 71.
58
 Ibid
59
 The news report is available at <cpc.people.com.cn/n/2013/0718/c78779-22241593.html>.
60
 Ibid
61
 The news report is available at <news.qq.com/a/20101113/000044.htm>.
62
 Article 20.
63
 The news report is available at <news.163.com/08/1029/07/4PDGANR8000120GU.html>.
64
 Ibid
318 JCL 12:2
 yue huang

The Zhengzhou Heating Power was expected to respond to all these doubts, particularly
in regard to all the questions raised about its efficiency, cost control and profitability
potential . Before the public hearing, Zhao Zhengjun, a man who was not selected as a
delegate, requested that Zhengzhou Heating Power disclose the several key information
items regarding its heating services, including costs, revenue and the company’s financial
conditions. The Zhengzhou Heating Power refused to make such a disclosure, arguing that
some contents of operational costing constituted state secrets. The company’s argument
was also supported by the local price regulation agencies. In the subsequent litigation,
the court eventually upheld Zhao Zhengjun’s claim and required the company to disclose
what it characterized as the ‘non-sensitive’ parts of the requested information. Despite
the victory in court, the price hearing was still held as originally scheduled and Zhao
Zhengjun’s demands for information still not met before the hearing.65 With a 17 to 8
vote, the hearing meeting supported the pricing adjustment.66
The third widely mentioned defect of price hearing is the vague connection between the
hearing and the outome. The Price Law does not specify to what extent the hearing result
must bind the agencies’ final policy choices.67 The 2008 Measures, for instance, only require
the ‘pricing authority [to] take the hearing opinions into full consideration before making
a pricing decision.’68 Moreover, , price-setting agencies were also required to consider
other factors beyond the opinions expressed at the hearing, such as the actual costs69
potential social impact ,70 public opinion, situations of market supply, demand and social
acceptability and potential impacts of the changed price on industry and consumers.71
The agencies are given the power to make the final decisions based on their comprehensive
consideration of all such related factors. However, the transparency requirement, at least
currently, does not apply to how agencies are to weigh different considerations.
As might be expected, such a limited impact by the public hearing has lead to distrust
and frustration.72 Although in some local cases, the results of hearing have indeed altered
agencies’ original decisions by ‘putting the decision-making power under the sunshine’,
in most of cases, price hearing were still ironically called as ‘raising price hearing’(zhangjia
hui), a “nick name” describing its real nature—that of legitimating the decision in favour
of raising prices. The price hearing is no doubt losing its original glory and is now more

65
 Ibid Also see. Liu W (2010) ‘Approaching Democracy through Transparency: A Comparative Law Study on
Chinese Open Government Information’ (26) American University International Law Review 983.
66
 Ibid
67
 Ibid
68
 Article 26.
69
 For example, according to NDRC, the price-setting must be made based on the report of the measurement of
the cost of utilities and exclude unrelated or unreasonable cost. In a report analyzing the cost of water supply in
Changchun, the local department of price supervision analysis several aspects of the operation cost, including
personnel and operation cost, depreciation expense, governmental investment and leakage percentage. All
these costs were then calculated, by an official formula, to assess the whole cost of the water supply.
70
 In the 2001 Interim Measures, the SDPC required the price-setting agencies to assess the need for price
increase and to predict the impact of the proposed upward adjustment ofprice
71
 In an amended rule issued in 2006, NDRC required all governmental price-setting agencies to investigate
public opinion, and deliberate on the opinions expressed by different governmental sectors. When setting
prices, pricing organs must carry out an investigation into the situations of market supply and demand as well
as public tolerance, and make an analysis on the impact on relevant industries and consumers.
72
 For online discussion, see <finance.sina.com.cn/review/20060424/09392524203.shtml>.
JCL 12:2 319
Public Hearing in China

thought as a mask which hides governmental grabbing of money. In some regions, local
governments even cannot find enough voluntary delegates to participate in the hearings.73

Environmental Assessment Hearings

The public hearing system of Environmental Impact Assessment was, as we have seen,
another early example of the development of the public hearing.74 The Environmental
Protection Law in 1979 (Huanjing Baohu Fa) held that ‘[a]ll enterprises and institutions
shall … [i]n planning new construction, reconstruction, and extension projects, [submit] a
report on the potential environmental effects … to the environmental protection department
and other relevant departments for examination and approval before designing can be
started’.75 This environmental impact assessment requirement at that time did not include
a public participation or public hearing requirement . The 2003 Environmental Impact
Assessment Law included public participation as a required component of the process. In
2006, the State Environmental Protection Agency (SEPA) promulgated special guidelines
of public hearing during environmental impact assessment process.76
Compared to the price hearing, the hearing for environmental impact assessment is
procedurally less restrictive and is more open. First, the public hearing is only an optional
form of public participation. Environmental agencies may choose to hold a hearing or
use ‘other forms’ to solicit public opinions.77 If a proposed development would likely
cause hazardous environmental impact or directly affects the public interest, the planning
agencies may choose more than one participatory form.78 Secondly, there is no requirement
of minimum ratio of the public delegates in hearing. The organizers of hearing reserve
the full power to select delegates. The only restriction in selecting delegate is the selected
hearing delegates must include the affected parties and the EIA report must respond to all
solicited opinions.
Even though the hearing is not the only compulsory form of participation under
EIA, the public hearing in the EIA process has received a disproportionately high level
of public attention. Promoted by the joint efforts of environmentalists and open-minded
government officials, the EIA hearing has marked the emerging power of the public in
the environmental field. In 2005, the EIA hearing met its first milestone ‘success’, the
environmental impact assessment hearing in regard to Beijing’s Old Summer Palace Park.
Built in 1709 as an imperial retreat consisting of a series of gardens and infamously burned
down in 1860 by French and British soldiers, the Old Summer Palace is sad memory of

73
 News report is available at <big5.xinhuanet.com/gate/big5/news.xinhuanet.com/politics/2011-06/10/c_
121519383.htm>.
74
 In addition to the Environmental Protection Law, China has promulgated two statutes requiring some form
of public participation: the Law on Prevention and Control of Environmental Noise Pollution (1996) and the
Law of Prevention and Control of Water Pollution (1984, amended to include a public participation requirement
in 1996). Also see, Jahiel AR (1997) ‘The contradictory impact of reform on environmental protection in China’
(149) The China Quarterly 81.
75
 Article 6.
76
 Moorman JL & Zhang G (2006) ‘Promoting and Strengthening Public Participation in China’s Environmental
Impact Assessment Process: Comparing China’s EIA Law and US NEPA’ (8) Vermont Journal of Environmental
Law 281.
77
 Article 21, Environmental Impact Assessment Law (2003); Chapter 3, Interim Measures of Public
Participation in the EIA Process (2006).
78
 Ibid
320 JCL 12:2
 yue huang

China’s humiliation at the hands of western countries during the nineteenth century.79
In 2005, a project for covering the lakebed in the park with a so-called ‘plastic’ sheet to
prevent water seepage provoked intensive public and media outrage, although the park
management explained that this covering material consisted of a selectively permeable
membrane which would not bring any significant environmental risk. On 5th April of that
year, SEPA announced it would hold a public hearing on the environmental impact of the
Old Summer Palace’s anti-seepage project and invited the public to register their concerns
by telephone.80
On 13th April, over 120 participants attended a hearing lasting for three and half hours.
The comments and remarks were overwhelmingly against the project. The public preference
was reflected in the subsequent EIA report: the project was announced to be unlawful and
environmentally harmful. Pan Yue, the vice-minister of the State Environmental Protection
Agency (SEPA) also stood up for the meeting participants, noting that ‘insufficient legal
mechanisms for public participation are an important reason why China’s environmental
protection has laws that are not enforced, as well as having laws that are enforced in a lax
manner’.81
The Old Summer Palace hearing greatly encouraged environmental activists to
participate in the EIA process. It showed them a way to extend their possible impact
on policy. After the hearing, environmental organizations and environmentalists began
to press for more use of hearings. During some subsequent social protests concerning
environmental issues, demands to hold a public hearing became a main demand of
protesters. In Xiamen, after citizens’ persistent protests ranging from text-message
campaigns to street demonstrations, the local government decided to hold an EIA public
hearing to evaluate the environmental impact of a Taiwanese-invested paraxylene (PX)
petrochemical project. The project was, as a result, halted and moved to the southern
Fujian city of Zhangzhou.82 In a hydroelectric project in the Nu River in Yunnan Province,
the local government sought to build 13 dams on the River, but the lobbying and protests
of environmental NGOs also eventually forced the government to hold a public hearing
which including a broad range of voices against the project, which finally led to its
suspension.83
The hearings for environmental impact assessment reveal another source of tension
in hearings: that between ‘rationality’ and ‘public opinion’. Compared to the matters
considered in price hearings, environmental issues have wider social impact and often
involve complex scientific matters. The technical EIA standards in themselves are unable
to help to bridge or narrow the gap between competing public preferences. While
environmentalists may hope to adopt the strictest of environmental regulations to reduce
or eliminate risk of environmental harm, the most reasonable decision is not always ‘no
project at all’ and many others with environmental welfare concerns may be prepared

79
 Zhao Y (2010) ‘Public participation in China’s EIA regime: Rhetoric or reality?’ (22) Journal of Environmental
Law 89.
80
 Ibid
81
 Ibid
82
 The news report is available at <www.chinadialogue.net/article/1626-Xiamen-PX-a-turning-point>.
83
 Chan KM & Zhou Y (2014) ‘Political Opportunity and the Anti-dam Movement in China: A Case Study of
Nu River” in Social Issues in China Springer at 36.
JCL 12:2 321
Public Hearing in China

to accept a more efficient, low-cost and economically-friendly alternative.84 The debates

around the environmental goals and means in many cases is in effect an ideological
war and the government have to face the task of making difficult choices diverse moral,
cultural, and aesthetic purposes. The EIA hearings have to respond to these concerns,
which are often politicalized, even if they have adequately responded to technical issues.
The EIA hearing is subject to criticisms similar to those that are made towards the
price-setting hearing. For instance, it has been argued that the Old Summer Palace hearing
should not be viewed as an example of a victory for public hearing reform, because the
information consulted did not actually play an important role in final decision-making and
the public hearing lacked any in-depth, rational discussion on the central issues. In the
Old Summer Palace case, the political sensitivity of the project scared off many potential
environmental assessors from conducting an EIA.85 The final EIA report issued by Tsinghua
University Environmental Impact Assessment Office also did not respond to the opinions
arising from the hearing.86 The Tsinghua’s EIA report avoided the politically controversial
debates on the legality of the project and it limited its evaluation to the situation if the
project were to be continued.87 Given the fact that approximately 90 percent of the project
was already completed, SEPA had to reject the opinion of the majority of hearing delegates
and insisted that the entire project must be completed.88 A director of SEPA criticized some
participants’ speeches as being far too emotional and lacking supportive facts. These
sorts of criticism were also made to other environmental hearings. In the hearing for the
Nu River Hydroelectric Project, environmental activists were censured by environment
scientists for lack of necessary knowledge.89 For critics concerned with the ‘irrationality’
of EIA hearing, a politicized EIA hearing makes difficult rational decisions and may lead
the policy discussion down the path of endless political haggling.

Responsiveness Concern: Dapeng LNG Project

The legitimacy of EIA hearings has also suffered from the problem of lack of responsiveness.
If the opinion reached by a hearing cannot bind the final policy choice, the hearing could
be easily seen as a merly a ‘show of democracy’. Unfortunately, the rather vague linkage
between the hearing and policy-making outomes has been a central problem in preventing
the EIA hearing to gain legitimacy.
A case of the vague role of environmental hearing may be noted from Shenzhen. In
August 2008, the National Energy Administration of NDRC and the Hong Kong Special
Administrative Region government signed an agreement for the joint build of a liquid
natural gas (LNG) receiving station on the mainland side of the border. This plant would
supply LNG to Hong Kong. The original site of the LNG’s receiving station was Dazhandao

84
 Ackerman BA & Stewart RB (1987) ‘Reforming environmental law: The democratic case for market
incentives?’ (13) Columbia Journal of Environmental Law 171.
85
 Ibid
86
 Ibid A report is available at <politics.people.com.cn/GB/1027/3443336.html>.
87
 Ibid
88
 Ibid
89
 The news report is available at <scitech.people.com.cn/GB/7081590.html>.
322 JCL 12:2
 yue huang

Island, near Western Shenzhen Port. The China National Petroleum Corporation (CNPC),
a state-owned energy giant, was chosen as the contractor to build this project.90
Another Chinese SOE—China Merchant Group (CMG)—however challenged this
project. As a company focusing on harbor management, the CMG owned a number of
ports and piers near the proposed site of the LNG project. It saw the LNG plant as a
‘time bomb’ that would threaten the safety of local harbors. CMG successfully lobbied
the National Maritime Bureau and Ministry of Transport to give support its claim. After
a two year “tug-of-war”, CNPC conceded and agreed to relocate the receiving station to
Dapeng Peninsula.91 But the new site caused another problem. The Depeng Peninsula was
a significant ecological preservation area of Shenzhen and had been reserved as an area of
tourism and the leisure industry. The new plant would challenge the local ecology.
The controversial part of the LNG project also included a plan for reclaiming land
from the sea in Dapeng Bay for the construction of a gas storage facility and a wharf for
LNG vessels. 92 Some environmentalists warned of the potential significant environmental
hazards brought by reclamation.93 Local companies and governments also worried about
negative effects on local tourism and public health.
As the leading organization for the administration of sea reclamation, the State Ocean
Administration (SOA) held a public hearing attended by local government officials, local
residents, experts and companies.94 The invited participants included five public delegates
who were selected by lottery from 53 voluntary applicants, three chosen by government
from local communities and 12 from companies and local governments.95 Before the
hearing, the Local Ocean Administration of Shenzhen had rejected the proposal for the
project and required the CNPC to improve its plan. During the hearing, four delegates
from the public also expressed their opposition to this project. The records of the hearing,
as well as the EIA report, were referred to headquarter of SOA for final approval.96
The hearing result, however, was unlikely to overturn the decision of the project.
Before the hearing, the LNG has obtained the approval from almost every approving
agency.97 The reality was that the purpose of hearing was thus limited to considering
possible improvements of the approved proposal in order to further reduce environmental
hazard. The fate of the project, however, has been determined beforehand, regardless the
results of hearing.
In the final decision-making process, the role of the Shenzhen LNG hearing was
eventually limited to an informal consultation process. It is admitted that the hearing
constructed a direct dialogue between the environmentalists and the governments and

90
 See news report available at http://szdaily.sznews.com/html/2014-07/03/content_2928381.
htm.
91
 Ibid
92
 Ibid
93
 A Ms M. Li, a member of a Hong Kong-based, non-profit environmental advocacy group, criticized the
environmental report, saying that it failed to include an evaluation of the potential impact on the area’s coral
reefs. She argued that the seabed of nearly half of Dapeng Bay and Daya Bay are covered with coral reefs that
encompass a large variety of species, including some key protected species, adding that less than 5km from the
project site is a coastal park in Hong Kong that is home to 65 coral species.
94
 See report available at <www.yicai.com/news/2014/04/3717381.html>
95
 see report available at <www.nbd.com.cn/articles/2014-07-02/845649.html>
96
 See news report available at<sz.people.com.cn/n/2014/0702/c202846-21556926.html>
97
 Ibid
JCL 12:2 323
Public Hearing in China

promoted the trust between the two sides. But the public hearing resultdid not play a
significant role in the government’s final consideration.
Both the Price Law hearing and environmental assessment hearing are frequently cited
as successful examples of public hearings in China. But their success had been overstated.
Even though introducing the public hearing has changed the traditional decision-making
paradigm, it still suffers from legitimacy problems caused by authoritarianism legacies.
On the one hand, the decision-making agencies have very strong powers of final decision
making and great flexibility to determine the form of participation. In the Shenzhen LNG
case, the applicants needed to submit twelve assessment reports and get ten governmental
approvals, ranging from planning to military regulation. But none of these agencies
organized any hearings on these matters. Excessive procedure flexibility enables agencies
to avoid hearing procedures that they think do not suit their interests and choose the least
robust participatory forms.
Moroever, the narrow representativeness of the hearing delegates has weakened
the democratic legitimacy of the hearing. For instance, most of the public delegates
attending environmental hearings are environmentalists. They are the target of the
hearing organizers—they are too easily characterized as ’troublemakers’ who stir up
social instability when protesting official policies. However, it is unrealistic to bring
environmentalists on board to support a proposed project in a brief, uninformed public
hearing. . Environmentalists thus, not unsurprisingly, tend to be unwilling to compromise.
Their apparently uncompromising attitude in return further discourages government
from allowing hearing results to have binding effect.

THE CONTRIBUTION OF THE HEARING: MAPPING OUT

POLICYMAKING ACCOUNTABILITY ISSUES

Although a number of defects in the current hearing process have been noticed, and some
early experiences were frustrating, most of scholars observing Chinese administrative law
reform agree that introducing public hearing into China was a significant step in China’s
long match towards more accountable policymaking processes. The public hearing is
widely regarded as a victory of proceduralism against the Chinese authoritarian tradition.
Through the public hearing, a policy door was opened and the individuals started to
obtain opportunities directly to engage in policymaking. Furthermore, the public hearing
is viewed as a new phase of the evolution of Chinese civil society, marking a possible
way towards democratization. Some Chinese scholars even viewed the public hearing as a
‘bottom-up’ process that has reshaped the role of both the public and government on the
Chinese political landscape.98

Legacy One: The Basic Controversy of Policymaking--Democratic or Instrumental?

The above notions, however, still showed distinctions between two understandings of the
role of public hearing in policymaking. Namely, should the public hearing be a procedural
tool for formulating ideal policy results or a democratic forum to deliberate interests and

 Tang X (2008) ‘Gonggong juece tingzheng: xingzheng minzhu de jiazhi he juxianxing’ (Public hearing of
98

Policy: the Limit and Value of Administrative Democracy) (6) Shehui Kexue (Social Science) 40.
324 JCL 12:2
 yue huang

balance differing perspectives. Some scholars and reformers supported the notion that the
purpose of hearing was not to construct a democratic forum and the policymakers should
still should the power to make final policy choices. The distinguished administrative
law expert, Ying Songnian, has argued against the ‘majority rule’ in the public hearing
and maintains that the government should be given freedom to consider factors beyond
the hearing record in making final decisions.99 Liu Wenji has argued that the record of
hearing should be a ‘necessary but not sufficient basis’ for decision-making. If attention
in thehearing is only focused on the voting in a hearing, then the legal and political
accountability of executive decision-makers to make rational, substantive choices will be
harmed. It will also encourage decision-makers to manipulate the delegates to a hearing
and to use the result of ‘voting’ to support the legitimacy of the policymaking.100
A second group of scholars and reformers, however, argue that the public hearing
should be a democratic process. In the words of Wang Xixin, the public hearing should
be ‘a chorus of experts, government and the public’.101 Wang Xixin also argued that even
though it was impossible for the public to vote in a public hearing, the hearing still needs
to insist on a ‘democratic bottom-line’ and the participants should be impartially given the
opportunity to deliver their opinions.102 He Baogang argued that hearing was one of most
hopeful forms for developing deliberative democracy in China and to realize the political
democracy of Chinese Characteristics.103
Some scholars have compared the competition between these two arguments with
the distinction found between formal and informal rulemaking procedures in US
administrative law. The informal rulemaking process, which is considered as similar to the
first Chinese notion, only requires agencies to go through a notice-and-comment process
and the duty of the agency is limited to publicizing a ‘Notice of Proposed Rulemaking’ in
the Federal Register, providing opportunities for the public to submit written comments,
and then for the agency to consider the public’s comments, publicize a final ruling not
less than 30 days before its effective date and issue a statement explaining the purpose of
the rule. The formal procedure, however, requires a ‘trial-type’ hearing and the binding
effect of the record of hearing, which is similar to the second Chinese idea. Some Chinese
scholars have argued that the formal hearing process, featuring the ‘exclusive reliance
on the hearing record’ and ‘binding effect of hearing result’ should also be applied as a
primary model of the public hearing in China.104
However, even though the rulemaking process is originally designed as semi-legislative
process, its purpose is still focused on increasing transparency and responsiveness,
rather than making administrative agencies another legislative institution. The emphasis
on ‘democratization’ and ‘binding records’ are used to overcome the existing problems
in public hearing, not to change the existing nature of the public hearing. One expert,

99
 See interview with Ying Songnian available at <www.cctv.com/special/357/3/32078.html>.
100
 See interview with Liu Wenjiang available at <hnewspaper.jcrb.com/html/2013-06/19/content_134521.htm>.
101
 See online comment of Wang Xixin available at <www.21ccom.net/articles/sxpl/pl/article_2011072240219.
html>.
102
 Ibid
103
 See online comment of He Baogang available at <theory.people.com.cn/n/2015/0728/c112851-27372153.
html>.
104
 Wang W (2005) ‘Woguo zhengfu jiage juece tingzheng zhidu de quexian fenxi’ (The Defects of China’s Price
Setting Hearing) (20) Shanghai Zhengfa Xueyuan Xuebao: Fazhi Luncong (Journal of Shanghai College of Politics
and Law) 72.
JCL 12:2 325
Public Hearing in China

Wang Wanhua, attributes the problems in the price-setting hearings to the governmental
persistence on a managerial approach—a governance attitude of relying on public
hearings as a way to facilitate administrative decisions.105 Provocatively, she argues
that the high cost of the hearing is caused by unwillingness of the public to attend the
‘useless’ hearing. According to her, if the public hearing would more effectively address
the ‘democratic voices’ of the public, then the public would be more apt to share the
cost of the public hearing.106 Wang Xixin also argued that the democratized process will
enhance the rationality of decision-making by requiring agencies to adequately respond to
the concerns of different participants.107
The two notions reflecting ‘instrumental rationality’ (gongju lixing) and ‘democratic
value’ (minzhu jiazhi) are still being debated. But almost all Chinese scholars have agreed on
two observations regarding the public hearing in policymaking. First, seeking the optimal
policy or decision is still a purpose of the policymaking process and the policy deliberation
must root on market and technical norms, rather than on political compromise. The role of
public participation should be limited and not replace the expertise of executive agencies
in decision-making. In fact, both the EIA process and price-setting process included a large
number of technical norms, guiding the agencies in their analysis of the substance of
the proposed policies. Neither technical expertise nor market forces are perfect, but they
constituted reasonable bases for agencies to make decisions. Before reaching the question
of ‘democratic legitimacy’, many non-political alternatives may also address problems of
‘policy failure’. When market failure happens, regulators normally either infuse impetus
to the competition or set up the weighted prices. Neither of the two measures calls for a
‘democratized’ process. Some observers are seriously concerned with the problem of lack
of ‘rationality’ in Chinese policymaking, as a problem at least as significant as the ‘lack
of democracy’.108 They pointed out that, without the intensive participation of experts
and adequate scientific studies, the design of policymaking cannot resolve ‘hard’ policy
deadlocks and at best provides a ‘face of legitimacy’ for the governmental policies.109
Secondly, increasing democracy in public hearings could be a risky choice of road.
An over-politicalized process would likely not only lead to higher costs and cause
procrastination, but also may adversely encourage greater resistance from executive
branch. For example, the Nanjing government encountered strong opposition to its re-
planning project for the old city in Nanjing, particularly the city wall. Although Nanjing
was a pilot city in China on public participation experiments, the local officials still
hesitated to use the public hearing to review the re-planning project. In the view of local
officials, holding public hearing might eventually create more ‘trouble-makers’ and cause
resistance to the governmental proposal. It has been a common worry shared by many
Chinese officials that holding public hearings will eventually trap the policymaking into

105
 Ibid
106
 Ibid
107
 Supra note 118.
108
 Ibid Also see, Li T (2011) ‘Jiakuai woguo xingzheng juece minzhuhua yu kexuehua jincheng de sikao’
(Accelerating the Administrative Policymaking Reform towards Democracy and Science) (12) Xingzheng Guanli
Gaige (Forum of Administrative Management) 59.
109
 Ibid, Li.
326 JCL 12:2
 yue huang

an endless circle of accountable debates and force the government to compromise with
‘selfish interests’ on irrational grounds.110

Legacy Two: The Basic Compromises of Policymaking

Based on the two notions of the role of public hearing, Chinese administrative scholarship
has also considered three general points of administrative policymaking. First, the executive
branch should be understood as a policymaker. For a long time, and especially before the
emergence of the public hearing practice, it was a widely shared notion among Chinese
scholars that one purpose of the administrative law is to limit the role of the executive
branch to ‘law enforcement’. That is why Chinese administrative agencies frequently
describe themselves as ‘law enforcement department’ （zhifa bumen). But the discussions
of the public hearing show that Chinese scholars have acknowledged that the government
has a broader administrative policymaking power as both a reality and necessity. The
administrative agencies, including price-setting agencies and environmental agencies, in
reality exercise broad policy discretions, and scholars do not question that government
agencies have policymaking power.
Secondly, there are complicated tensions between accountability norms. Should
the conclusions of the public hearing be more respected than (say) the experts’ inputs?
Should the public hearing be used to seek the most efficient plan or the plan reflecting the
broadest interests? These tensions between accountability norms reflects the complexity
of the administrative policymaking process in modern states. Scholars must consider
these institutional aspects in their design of administrative procedure, so as to make the
procedures they propose responsive to differing accountability concerns.

CONCLUSIONS

The Chinese experience has been that early cases of public hearings showed that even
though democratization has not happened in China, the newly introduced procedures for
public hearings that better responded to the public’s preferences generally gained higher
level of public acceptance than those which did not. Public criticism has followed where
the public was not properly included into the policymaking process or their participation
merely used as ‘sham’ or ‘decoration’. It is thus crucial to determine a proper role of the
public in the administrative policymaking and established a widely acceptable public
participation process so as to uphold the democratic legitimacy of policymaking.
It is noted that the public hearing reform had the end of the 1990s triggered a larger
reform in Chinese public decision-making mechanism. Encouraged by the practice of
practice hearings, Chinese administrative law scholars began to seek additional checks
to policymaking process. To overcome the difficulties encountered in public hearing,
there is a need to consolidate the participatory rights of the public and to require greater
responsiveness. More importantly, based on the experience of public participation gained
from public hearings, Chinese reformers have attempted to standardize the practice of
administrative policymaking by instituting a unified policymaking framework into
Chinese political system—one that covers all categories of administrative policymaking.

110
 Ibid
JCL 12:2 327
Public Hearing in China

After 2005, China initialed another round of public decision-making reform, which was
named as “Major Policy Making Reform” (zhongda xingzheng juece gaige). The purpose of
this Major Policymaking reform not only broadened the scope of procedural control to the
steps of public policymaking, from agenda-setting to post-policymaking-review, but also
established a standard mechanism for all public institutions, including the Communist
Party as well as the governments as executive bodies, to follow. The public hearing,
though no longer the single controlling mechanism, is still at the center of this new
mechanism. And the scholarship legacies of the public hearing have reshaped the map of
the Chinese administrative procedural law discourses by bringing the policymaking into
the center of administrative procedural law and reinterpreting the elements of legitimacy
of policymaking power.
China has been entering a new era of public governance after the 19th Party Congress
of the Communist Party. But the contribution of public hearing reform should not
be forgotten. By reinforcing the role of the public in decision-making and requiring
higher responsiveness and transparency, Chinese administrative law scholars and
reformers successful developed the first policymaking accountability model in Chinese
administrative law, which had the potential to be extended to other policymaking
aspects. The problems encountered during the reform, however, also indicated the special
difficulties of reforming policymaking procedure in a political context lacking democracy
and checks-and-balances. In sum, the public hearing reform in China has infused liberal
elements into Chinese administrative policymaking, but it remains uncertain to what
extent authoritarianism and its political structure will eventually hamper the procedural
reform and make liberal procedural steps, like the public hearing, unsustainable.

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

gonggong tingzheng 公共听证 public hearing

gongkai 公开 openness
guojia gongwuyuan 国家公务员 state civil servant
guojia peichang 国家赔偿 state compensation
xingzheng jiancha 行政监察 administrative supervision
xingzheng fuyi 行政复议 administrative reconsideration
xingzheng qiangzhi 行政强制 administrative compulsion
xinzheng susong 行政诉讼 administrative litigation
xingzheng xuke 行政许可 administrative licensing
tingzhenghui 听证会 hearing
wujia guanli bumen 物价管理部门 price management agencies
zanxing tiao li 暂行条例 provisional administrative
regulation
zhangjia hui 涨价会 raising price hearing
zhifa bumen 执法部门 law enforcement department
zhongda xingzheng juce 重大行政决策 important policymaking

328 JCL 12:2

 henry gao

The WTO’s Transparency Obligations

and China
HENRY GAO
Singapore Management University

INTRODUCTION

When it acceded to the WTO in 2001, China accepted comprehensive transparency

obligations as well as substantive commitments covering both market access and rules
issues. Initially designed to deal with its opaque trade law regime, the transparency
obligations were also expected to help democratize the legislative process and promote
the development of the rule of law in China. Now that more than 15 years have passed,
an important question is: have the transparency obligations delivered on their original
promise? This article answers the question by reviewing how the transparency obligations
have worked in practice. It notes that, while transparency has improved in some areas,
it is still lacking in other areas. The essay discusses the reasons for the uneven progress,
and concludes with some tentative suggestions as to how transparency may be further
enhanced.

THE WTO’S TRANSPARENCY OBLIGATION

A History of Transparency in the Multilateral Trading System

Transparency has long been one of the most fundamental principles of the multilateral
trading system. The original 1947 General Agreement on Tariffs and Trade (GATT), for
example, includes Article X: Publication and Administration of Trade Regulation, which
sets the basic transparency obligation for GATT contracting parties. Steve Charnovitz has
pointed out that the origin of the provision can be traced back to the 1923 International
Convention Relating to the Simplification of Customs Formalities,1 but Padideh Ala’i
argues that as the US proposed the language in the Article so it was heavily influenced by
the US Administrative Procedure Act (APA), which was passed in June 1946.2 According to
Ala’i, since the APA had made US administrative processes more transparent for foreign
traders conduct business in the US, the US proposed Article X in the GATT to level the

1
 Charnovitz S (2004) ‘Transparency and Participation in the World Trade Organization’ 56 Rutgers Law Review
927 at 929.
2
 Ala’i P & D’Orsi M (2014) ‘Transparency in International Economic Relations and the Role of the WTO,’ in
Vaughn RG (ed) Research Handbook on Transparency Edward Elgar368 at 370.
JCL 12:2 329
The WTO’s Transparency Obligations and China

playing field for US traders who often faced opaque and informal administrative structures
in foreign markets.3
The US draft initially entitled ‘Publication and Administration of Trade Regulations-
Advance Notice of Restrictive Regulations’, was first incorporated as Article 38 of the
Havana Charter for the International Trade Organization (the ‘ITO’).4 When the ITO failed
to come into being, it was inherited by the GATT as Article X under a slightly different
title, namely ‘Publication and Administration of Trade Regulations’.5 Notwithstanding
this minor change in title, the substantive content of the article remained the same.6
However, the provision was rarely used in the GATT era. As noted by Charnovitz in the
history of the GATT, the only instance where a trade measure was challenged under Article
X and found illegal was the 1989 case of European Economic Community—Restrictions on
Imports of Apples (‘EEC-Apples’), a complaint brought by the United States.7 Moreover,
even in that case, transparency was not the central claim and was instead only incidental
to the main claims on quantitative restrictions under Articles XI and XIII.8 According to
Ala’i, the reason for this low usage during the GATT period was because the focus of
trade negotiations in GATT for its first two decades was mainly on reduction of tariffs.9
As tariff is a relatively transparent trade measure, there was not much need to invoke the
transparency obligation. Interestingly, this also explains why Article X was invoked in the
EEC-Apples case as it was mainly concerned with import quota, which by its nature is
among the most opaque and non-transparent type of trade measures.
With the establishment of the WTO, there have been significant changes. The trade
negotiations conducted under the auspices of the GATT were so successful that by
1994 the average tariff for industrial countries had been drastically reduced from 20-
30% in 1947 to less than 4%.10 Instead of focusing on tariff reductions alone, the WTO
has greatly expanded its scope to include many non-tariff barriers such as trade remedy
measures, technical barriers, sanitary and phytosanitary measures, services regulations,
and intellectual property rights. Because most of these measures concern behind-the-
border barriers that are difficult to police, transparency has become ‘an indispensable
element of the multilateral trading system’, as noted by the WTO in its official publication
commemorating the 20th Anniversary of the WTO.11
Transparency is not only important for existing issues already covered by the WTO
legal framework, but also for new issues yet to be incorporated into the multilateral trading
system. For example, in the Doha Declaration the WTO Members repeatedly emphasized

3
 Ibid
4
 Ostry S (1998-1999) ‘China and the WTO: Transparency Issue’ 3 UCLA Journal of International Law & Foreign
Affairs 1 at 3.
5
 Ibid
6
 Ibid at 3-4.
7
 Charnovitz supra note 1 at 933-934.
8
 GATT Panel Report, European Economic Community – Restrictions on Imports of Apples – Complaint
by the United States, L/6513, adopted 22 June 1989, BISD 36S/135, available at https://www.wto.org/english/
tratop_e/dispu_e/88appleu.pdf.
9
 Ala’i & D’Orsi supra note 2 at 368.
10
 World Trade Organization (2007) World Trade Report: Six Decades of Multilateral Cooperation, What Have we
Learnt? WTO, at 207-209.
11
 WTO (2015) The WTO at Twenty: Challenges and Achievements WTO at 51.
330 JCL 12:2
 henry gao

the important role played by transparency in addressing new issues such as investment,
competition and government procurement.12

Defining Transparency

While the growing interest in transparency in recent years is a welcome development, it

has also generated confusion as this concept has been expanded to cover an ever-wider
range of issues. As Sylvia Ostry quipped, the word transparency is the ‘most opaque in the
trade policy lexicon.’13 Thus, for the purpose of our discussion, it is important to clarify its
meaning and differentiate the different types of transparency.
Broadly speaking, the modern literature on transparency in the WTO can be divided
into two categories, the first of which is domestic or regulatory transparency, which
covers the transparency of domestic trade-related laws and regulations of WTO members.
This is the classical concept of transparency as embodied in Article X and the focus of
the discussion in this paper. In recent years, however, more and more commentators
started to focus on a second type of transparency, namely that of the WTO itself as an
international institution. Commentators have criticized the decision-making mechanism
of the WTO as being too secretive and there have been calls for more transparency in the
WTO negotiations and dispute settlement process.14 I would classify this as international
or institutional transparency, which is beyond the scope of this paper.
The obligations on regulatory transparency under the WTO framework in turn can be
further divided into the following two categories:
A. General obligations that are universally applicable across many different sectors
and measures. The primary example of this is Art. X of the GATT, which covers
all trade measures affecting goods. Similarly, GATS Art. III and TRIPS Art. 63 set
out the transparency obligations for trade in services and trade-related intellectual
property rights respectively. As these two provisions are modelled after Art. X, we
will concentrate on Art. X in our discussions.
Entitled ‘Publication and Administration of Trade Regulations’, Art. X includes
three paragraphs, two of which are relevant to the transparency obligation. Under
the first paragraph, WTO Members are required to publish promptly all trade-
related ‘laws, regulations, judicial decisions and administrative rulings of general
application’ and international trade agreements. Under the second paragraph,
WTO Members may not enforce measures ‘effecting an advance in a rate of duty
or other charge on imports under an established and uniform practice, or imposing
a new or more burdensome requirement, restriction or prohibition on imports, or

12
 WTO Ministerial Conference, Fourth Session, Doha, 9 - 14 November 2001, Ministerial Declaration, Adopted
on 14 November 2001, WT/MIN(01)/DEC/1, 20 November 2001, at paras. 20, 22, 25 and 26.
13
 Ostry supra note 4 at 1.
14
 Many non-governmental organizations such as Greenpeace, Public Citizen and Third World Network
have criticized the WTO for being too secretive and undemocratic. See e.g. Wallach L & Woodall P (2004),
Whose Trade Organization? A Comprehensive Guide to the WTO New Press; Greenpeace (2003), Why is the WTO
a Problem? available at http://www.greenpeace.org/international/en/publications/reports/why-is-the-wto-a-
problem/; Khor M, Developing Countries Decry WTO’s Secretive Talks, Third World Network, available at http://
www.twn.my/title/1972.htm. For a good academic discussion of these criticisms, see Charnovitz supra note 1.
JCL 12:2 331
The WTO’s Transparency Obligations and China

on the transfer of payments therefor … before such measure has been officially
published’.

B. Agreement-specific obligations that set out transparency obligations in various

sectors or measure-specific agreements. These obligations mainly focus on due
process and notification requirements. For example, under Art. 6 of the Anti-
dumping Agreement and Art. 12 of the Subsidies and Countervailing Measures
(SCM) Agreement, the investigating authorities are required not only to provide
public notices on the key stages in the investigation process but also to give
interested parties an opportunity to supply information and participate in the
investigation process. As noted by the WTO, these requirements are ‘intended to
increase the transparency of determinations, with the hope that this will increase
the extent to which determinations are based on fact and solid reasoning’.15 As to
the notification requirements, they can be found in almost every agreement ranging
from Technical Barriers to Trade (TBT)16 and Sanitary and Phytosanitary (SPS)
measures Agreements17 to the Agreement on Trade-Related Investment Measures
(TRIMS).18
As these transparency obligations differ in nature and effect, we can also divide them
into the following two further categories:
First, passive or paper transparency, which is mainly about the obligation to provide
information so as to help traders to understand the various government regulations
affecting trade. This includes the publication and notification obligations mentioned
above.
Secondly, positive or participatory transparency, which requires the authorities
to provide information to various stakeholders to enable these actors to assess
the implications of such information and even to influence policy making.
Such provisions go beyond the narrow one-way publication and notification
requirements under the previous category, and instead prescribe a two-way process
whereby the authorities would provide the information to the stakeholders first,
then the stakeholders are given an opportunity to comment on the information,
and the authorities will then make the decision on the basis of the feedback from
the stakeholders. Such requirements apply not only to the drafting of trade-related
laws and regulations,19 but also to the decision-making process in administrative
proceedings such as anti-dumping and subsidy investigations.

15
 WTO Technical Information on Anti-dumping available at https://www.wto.org/english/tratop_e/adp_e/adp_
info_e.htm.
16
 TBT Agreement Art. 10.
17
 SPS Agreement Art. 7.
18
 TRIMS Agreement Art. 6.
19
 See e.g., SPS Agreement, Annex B, para5; TBT Agreement, Art. 2.9.2 and Annex 3, para L.
332 JCL 12:2
 henry gao

CHINA-SPECIFIC TRANSPARENCY OBLIGATIONS

In China’s accession process, transparency was regarded as one of the most problematic
areas. As summarized in the Working Party Report:
Some members noted the difficulty in finding and obtaining copies of regulations
and other measures undertaken by various ministries as well as those taken by
provincial and other local authorities. Transparency of regulations and other
measures, particularly of sub-national authorities, was essential since these
authorities often provided the details on how the more general laws, regulations
and other measures of the central government would be implemented and often
differed among various jurisdictions. Those members emphasized the need to
receive such information in a timely fashion so that governments and traders
could be prepared to comply with such provisions and could exercise their
rights in respect of implementation and enforcement of such measures. The same
members emphasized the importance of such pre-publication to enhancing secure,
predictable trading relations.20

To address these concerns, China agreed to a series of China-specific obligations

in addition to the general transparency obligations already contained in the existing
agreements of the WTO: publication of relevant rules and other relative normative
documents, provision of an official journal and opportunities for comment prior to
implementation of such rules, ensure that there is an enquiry point providing access to
relevant information on the rules and related measures prior to their introduction, make
available to WTO Members translations into one or more of the official languages of the
WTO all relevant rules in good time prior to their introduction, and to allow a transitional
review conducted by the General Council and subsidiary bodies of the WTO mandated
to oversee China’s commitments under the WTO Agreement or the Accession Protocol.
These specific obligations are considered below.

Publication obligation

This is contained in section 2. (C).1. of the Accession Protocol, which provides for the
following:
China undertakes that only those laws, regulations and other measures pertaining
to or affecting trade in goods, services, TRIPS or the control of foreign exchange
that are published and readily available to other WTO Members, individuals and
enterprises, shall be enforced. In addition, China shall make available to WTO
Members, upon request, all laws, regulations and other measures pertaining
to or affecting trade in goods, services, TRIPS or the control of foreign exchange
before such measures are implemented or enforced. In emergency situations, laws,

20
 WTO Ministerial Conference Fourth Session, Report of the Working Party on the Accession of China, WT/
MIN(01)/3, 10 November 2001, at para 324.
JCL 12:2 333
The WTO’s Transparency Obligations and China

regulations and other measures shall be made available at the latest when they are
implemented or enforced.
This obligation goes beyond the normal publication obligation under GATT Art. X by
adding a number of elements. Firstly, GATT Art. X.1 only requires the trade regulations to
be ‘published promptly in such a manner as to enable governments and traders to become
acquainted with them’ and does not set a specific deadline. In contrast, by stating that
only trade regulations ‘that are published and readily available to other WTO Members,
individuals and enterprises, shall be enforced’, Section 2.(C).1 essentially requires the
publication to take place before the entry into force of the regulation.
Secondly, while GATT Art. X.2 also requires certain trade regulations to be officially
published before they are enforced, such an obligation only applies to a very small set
of trade regulations, specifically those ‘effecting an advance in a rate of duty or other
charge on imports under an established and uniform practice, or imposing a new or
more burdensome requirement, restriction or prohibition on imports, or on the transfer
of payments therefor’. Section 2.(C).1, however, greatly expands the scope of application
by applying it to all ‘laws, regulations and other measures pertaining to or affecting trade
in goods, services, TRIPS or the control of foreign exchange’. This is even stricter than the
transparency obligation under GATS Art. III.1 which, despite requiring the publication of
GATS regulations ‘by the time of their entry into force’, still provides for an exemption in
emergency situations.
Thirdly, under GATT Art. X a WTO Member is only required to publish the trade
regulations and the burden of finding such information is still on the foreign governments
or traders. In contrast, Section 2(C).1 requires the Chinese government to make such
information available to WTO Members upon request from other Members. In other
words, once the other WTO Members make a request, the burden of providing the
information shifts to China. Under GATS Art.III.4, a WTO Member is also required to
‘respond promptly to all requests by any other Member for specific information’ on
services regulations. However, the obligation to respond is more procedural in nature and
not as substantive as making available such regulations. Among the general publication
obligations in WTO Agreements, the closest to the Chinese obligation is probably TRIPS
Art. 63.3, which requires a WTO Member to supply TRIPS-related regulations to another
Member. Yet even the TRIPS provision here falls short of the Chinese obligation in two
important aspects. Firstly, under the TRIPS the obligation is only triggered by a written
request, while the Chinese obligation does not require this, which means that at least in
theory even informal oral requests need to be actioned. Secondly, Section 2.(C).1 requires
the regulations to be provided before such measures are implemented or enforced, or in
emergency situations, at the time they are implemented or enforced. Again, such stringent
pre-implementation requirements are not present under the corresponding provisions in
the GATT, GATS or TRIPS.
While such a detailed publication obligation is viewed by some commentators as
discriminatory, it is acutely needed for a country like China, which has been plagued by the
widespread use of normative documents applied beneath the surface of the formal system
of laws and administrative regulations.21 While their legality is questionable, these hidden

21
 Ostry supra note 4 at 13.
334 JCL 12:2
 henry gao

rules have been used extensively by administrative bodies, especially at the local level.22
As most of them are not published, they are especially problematic for foreign traders
and firms. This problem was even recognized by the then Chinese President Jiang Zemin,
when he exhorted officials to use published and uniform laws and regulations rather
than unpublished internal documents to exercise the government’s function to manage
the economy.23 By casting a wide net with the publication obligation under Section 2.(C).1.
other WTO Members finally have a way of pinning down these apparently minor yet in
reality important documents and examining them.

Official journal & comment

Under Section 2.(C).2. of the Accession Protocol, China is required to:

Establish or designate an official journal dedicated to the publication of all laws,
regulations and other measures pertaining to or affecting trade in goods, services,
TRIPS or the control of foreign exchange and, after publication of its laws,
regulations or other measures in such journal, shall provide a reasonable period
for comment to the appropriate authorities before such measures are implemented,
except for those laws, regulations and other measures involving national security,
specific measures setting foreign exchange rates or monetary policy and other
measures the publication of which would impede law enforcement. China shall
publish this journal on a regular basis and make copies of all issues of this journal
readily available to individuals and enterprises.
Again, these two obligations cannot be found in the general transparency provisions
in the GATT, GATS and TRIPS. While they all require the publication of trade regulations,
none of them require that publication must be made in a specific official journal or that an
opportunity to comment is provided before the implementation of the regulations. Instead,
the right to comment obligation most likely draw inspiration from specialized agreements
such as the TBT & Anti-dumping Agreements, which provides the right to comment in
the formulation of technical standards,24 conformity assessment procedures,25 standards,26
adoption of provisional anti-dumping measures,27 and consideration of acceptance of
price undertakings.28
The obligation to establish an official journal specifically addresses the difficulty
experienced by some WTO Members in ‘finding and obtaining copies of regulations and
other measures undertaken by various ministries as well as those taken by provincial and
other local authorities’ as noted in the Working Party Report.29 While the Ministry of Trade
and Economic Cooperation (MOFTEC) earlier tried to solve the problem by establishing

22
 Ibid
23
 Jiang Zemin (2006) ‘Zai Jilie de Guoji Jingzheng zhong Zhangwo Zhudong’ (Seize the Initiative amidst
Intense International Competition), in Jiang Zemin Wenxuan (Selected Works of Jiang Zemin), Vol. III, People’s
Publishing House at 454.
24
 TBT Agreement Art. 2.9.
25
 Ibid Art. 5.6.
26
 Ibid Annex 3, para L.
27
 Anti-dumping Agreement Art. 7.1.
28
 Ibid Art. 8.3.
29
 Working Party Report on the Accession of China supra note 20 at para 324.
JCL 12:2 335
The WTO’s Transparency Obligations and China

its own gazette for publication of all laws, regulations and administrative rules related
to foreign trade and investments in October 1993, the gazette does not include state
and local laws, nor various kinds of normative document.30 This was confirmed by the
response to the Working Party by the representative of China, who acknowledged that
such regulations have to be found instead in a motley collection of publications: ‘Almanac
of Foreign Economic Relations and Trade’ and ‘The Bulletin of MOFTEC’ published by
MOFTEC; ‘Statistical Yearbook of China’ published by the State Statistical Bureau; ‘China’s
Customs Statistics (Quarterly)’ edited and published by the Customs; the ‘Collection of the
Laws and Regulations of the People’s Republic of China’; ‘The Treaty Series of the PRC’;
the ‘Directory of China’s Foreign Economic Relations and Trade Enterprises’; ‘China’s
Foreign Trade Corporations and Organizations’; the ‘Gazette of the Standing Committee
of the National People’s Congress of the People’s Republic of China’; the ‘Gazette of the
State Council of the People’s Republic of China’; the ‘Collection of the Laws of the People’s
Republic of China’; the ‘Collection of the Laws and Regulations of the People’s Republic
of China’; the ‘Gazette of MOFTEC of the People’s Republic of China’; ‘Proclamations of
the People’s Bank of the People’s Republic of China’; and ‘Proclamations of the Ministry
of Finance of the People’s Republic of China’.31 This jungle of publications was difficult
to traverse even for native Chinese; hence, it was a relief for both foreign governments
and traders to have China finally agree to produce one single Official Publication for all
regulations.

Enquiry point

Under Section 2.(C).2. of the Accession Protocol, China pledged to:

[E]stablish or designate an enquiry point where, upon request of any individual,
enterprise or WTO Member all information relating to the measures required to
be published under paragraph 2(C)1 of this Protocol may be obtained. Replies to
requests for information shall generally be provided within 30 days after receipt
of a request. In exceptional cases, replies may be provided within 45 days after
receipt of a request. Notice of the delay and the reasons therefor shall be provided
in writing to the interested party. Replies to WTO Members shall be complete and
shall represent the authoritative view of the Chinese government. Accurate and
reliable information shall be provided to individuals and enterprises.
While the establishment of one Official Journal solves the problem of having to weed
through the thicket of publications produced by different agencies, it is still difficult for
a foreign party to sift through the Journal as they are unlikely to know which volume or
issue of the Journal best to consult to find the specific regulation that addresses a problem.
This explains the rationale for the obligation to establish an enquiry point, which provides
a much more efficient way for foreign parties to obtain information on specific measures,
and avoid what often amounted to a wild goose chase in conducting a search on their
own.

30
 Ostry supra note 4 at 13.
31
 Working Party Report on the Accession of China, supra note 20, at paras. 325-330.
336 JCL 12:2
 henry gao

Again, this obligation cannot be found in the original Art. X of the GATT. Instead, its
origin may be traced back to Art. III.4 of the GATS as well as similar articles under the
TBT and SPS Agreements.32 At the same time, the provision also made a number of further
refinements. The first refinement is the expansion of the scope of beneficiaries. Under both
the GATS and SPS agreement, a Member is only obliged to provide information to other
WTO Members. Even though the TBT agreement expands the coverage to ‘interested
parties in other Members’, one may argue that this only covers parties in other Members
and does not include parties which are present in the Member with the enquiry point.
In other words, foreign investors might not benefit from this clause as they are already
in the host country and thus are not ‘interested parties in other Members’. In contrast,
such ambiguity would not arise under Section 2.(C).2, as it explicitly grants the right to
request information to any individual or enterprise, without limitation on the location
of the parties. Taken literally, this could even include purely domestic persons and firms
from China.
The second refinement is the strict time limit. Under Section 2.(C).2 China shall provide
a reply to information requests within 30 days after receipt of the request. In exceptional
cases, this could be extended to 45 days, but notice of the delay and the reasons must be
provided in writing to the interested party. Such a strict time limit cannot be found in any
of the WTO Agreements and is another innovation in the Accession Protocol. It ensures
that the purpose of establishing the enquiry point would not be defeated by the kind of
delay tactics often resorted to by bureaucrats. Even in cases of delay, the need to provide
written notice and reasons also put pressure on the agency to provide a response in due
course.
The third feature is perhaps the most ambitious as it tries to specify the quality of
the information provided. While the strict time limit mentioned above ensures that a
reply will be provided in time, it alone cannot prevent the bureaucrats from providing
information that is incomplete, inaccurate or ambiguous. To solve this problem, the
Accession Protocol took the bold step of including a substantive safeguard that focuses
on the quality of information. Depending on the party making the request, the quality
required may also vary. For requests made by the government of a WTO Member, the
reply must be ‘complete’ and ‘represent the authoritative view of the Chinese government’.
This prevents the problem created by standard disclaimers such as ‘this only reflects the
personal view of the official and does not represent the official view of the government’. A
lower standard of quality applies to replies to requests by individuals and firms, but such
replies should still be ‘accurate and reliable’.

Translation

Unlike the other obligations, the translation obligation is contained in paragraph 334 of the
Working Party Report, which provides that:
The representative of China confirmed that China would make available to WTO
Members translations into one or more of the official languages of the WTO all laws,
regulations and other measures pertaining to or affecting trade in goods, services,

 See TBT Agreement, Art. 10.1; SPS Agreement, Annex, para 3.

32

JCL 12:2 337

The WTO’s Transparency Obligations and China

TRIPS or the control of forex, and to the maximum extent possible would make these
laws, regulations and other measures available before they were implemented or
enforced, but in no case later than 90 days after they were implemented or enforced.
This obligation is noted in paragraph 342 of the Working Party Report, which
incorporates it as part of paragraph 1.2 of the Accession Protocol. It addresses the absence
of translations of trade regulations, which is a long-standing problem faced by foreign
governments and traders dealing with China. Without this obligation, the above-mentioned
transparency obligations would be largely worthless as the Chinese government could
simply provide the Chinese version of the regulations. When foreign parties tried to
translate these regulations, they were often told that their translations were inaccurate and
did not correctly convey the original Chinese meaning. With the addition of the translation
obligation, foreign parties now have access to an official translation made by the Chinese
government itself. Moreover, the translation is to be provided on a timely basis, normally
before the implementation and at the latest no more than 90 days after its implementation.

Transitional Review Mechanism

The final obligation is the transitional review mechanism established by Section 18 of the
Accession Protocol. This obligation applies in addition to the normal Trade Policy Review
Mechanism (TPRM) with a number of important features. Firstly, the bodies conducting
the reviews are different. The normal TPRM is conducted by the Trade Policy Review
Body, which is established as a separate body according to the TPRM Agreement33 but
in practice the General Council usually exercises the function of trade policy review.34 In
contrast, the transitional review is conducted by the General Council and the ‘subsidiary
bodies of the WTO which have a mandate covering China’s commitments under the WTO
Agreement or [the Accession] Protocol’.35 To avoid confusion, the Accession Protocol
further list the bodies as including the three main councils, i.e., Council for Trade in
Goods (CTG), Council for Trade-Related Aspects of Intellectual Property Rights, Council
for Trade in Services (CTS); and 13 committees, which include the Committee on the
Balance-of-Payments Restrictions under the General Council, the Committee on Trade in
Financial Services under the CTS, and all of the 11 committees under the CTG; that is the
Committees on Market Access (covering also ITA), Agriculture, Sanitary and Phytosanitary
Measures, Technical Barriers to Trade, Subsidies and Countervailing Measures, Anti-
Dumping Measures, Customs Valuation, Rules of Origin, Import Licensing, Trade-Related
Investment Measures, and Safeguards. As these various councils and committees each
specialize in a separate agreement, they are more likely to have subject-matter expertise
and the discussions accordingly more productive.
Secondly, the scope of review is also different. The TPRM reviews ‘individual Members’
trade policies and practices and their impact on the functioning of the multilateral trading
system’. The Transitional Review Mechanism (TRM), on the other hand, covers not
only China’s commitments under the WTO Agreements but also those in the Accession

33
 TPRM Agreement, Art. C.(i).
34
 Agreement Establishing the World Trade Organization, Art. IV.4.
35
 WTO, Protocol on the Accession of the People’s Republic of China, WT/L/432, 23 November 2001, Section
18.1.
338 JCL 12:2
 henry gao

Protocol. In other words, even if a matter is not covered by the WTO Agreements but has
been included in China’s Accession Protocol, it will form part of the Transitional Review;
the latter extends to, for example, China’s commitments to liberalize trading rights36 and
to remove export taxes.37
The third difference lies in the formats and procedures of the reviews. The TPRM
has well established procedures, which begin with the preparation of a policy statement
by the country under review and a report by the Secretariat which are both distributed
before the review meeting.38 The Members also submit written questions to the Member
under review, which often provides written answers. At the review meeting, the Member
under review will start with an opening statement, followed by the initial remarks by a
discussant, and then the floor is open for discussions. After the meeting, the Secretariat’s
report and the policy statement are released, and the minutes of the meeting are also
posted online. In contrast, the Transitional Review Mechanism does not specify any
procedure. All it requires is for China to provide relevant information to the subsidiary
bodies mentioned above prior to the review, and for the subsidiary bodies to report the
result of the review to the relevant Council and General Council.39 The only exception is
a review conducted by the General Council, which, pursuant to Annex 1B shall follow
the usual Rules of Procedure of the General Council. Annex 1A of the Accession Protocol
lays down a very detailed list of information that China must provide, divided into of
seven categories and 56 sub-categories. However, this seemingly onerous requirement is
watered down by a footnote therein, which states that China may use the information it
has already provided under the general notification requirements. Overall, compared to
the normal TPRM, the Transitional Review Mechanism is more of an ad hoc mechanism to
address specific problems encountered by WTO Members rather than an institutionalized
mechanism to review China’s trade policy in a systemic manner.
Fourthly, the frequencies of review are also different. Under the TPRM, the frequency
of review is determined by the share of world trade of the Member under review.40 The
four largest traders are reviewed once every two years, the next four every four years, and
the remaining members every six years, with additional allowance for LDCs.41 When China
joined the WTO, it ranked number six in world trade, which means it should be reviewed
once every four years under the normal TPRM. Under the TRM, however, China agreed
to be reviewed every year for the first eight years, with a final review on the tenth year of
its accession.42 This arrangement apparently reflected the concerns of WTO Members as to
whether China could smoothly implement its WTO obligations, especially in the first few
years of the post-accession period.
The fifth difference is the relationship between the review mechanism and the dispute
settlement mechanism. As the objective of the TPRM is to provide an opportunity to
improve the transparency and understanding of the trade regimes of WTO Members,

36
 Ibid Section 5.
37
 Ibid Section 11.3.
38
 WTO Trade Policy Review Body, Rules of Procedure for Meetings of the Trade Policy Review Body, WT/
TPR/6/Rev.3, 31 January 2012.
39
 Protocol on the Accession of the People’s Republic of China, supra note 35, Section 18.1.
40
 TPRM Agreement, Article C(ii).
41
 Ibid
42
 Protocol on the Accession of the People’s Republic of China, supra note 35, Section 18.4.
JCL 12:2 339
The WTO’s Transparency Obligations and China

the TPRM Agreement explicitly states that the review is not ‘intended to serve as a
basis for the enforcement of specific obligations under the Agreements or for dispute
settlement procedures’.43 In contrast, the TRM takes the a different approach stating that
‘[c]onsideration of issues [under the TRM] shall be without prejudice to the rights and
obligations of any Member, including China, under the WTO Agreement or any Plurilateral
Trade Agreement, and shall not preclude or be a precondition to recourse to consultation
or other provisions of the WTO Agreement or this Protocol’.44 In other words, the TRM
could well provide an opportunity for WTO Members to collect information they might
need to launch a complaint against China under the WTO dispute settlement system.
As discussed above, these obligations go beyond the normal requirements of WTO
Agreements. Moreover, many of the transparency obligations in China’s Accession Protocol
are highly intrusive. Such an approach is in marked contrast to the rather cautious methods
adopted in the WTO Agreements, which are summed up well by an acknowledgment in
the TPRM Agreement that ‘the implementation of domestic transparency must be on a
voluntary basis and take account of each Member’s legal and political systems’.45 Why
then, did WTO Members choose to adopt such a robust approach towards China? Some
commentators argued that there was no reason at all.46 However, in the view of the author
such stringent obligations reflect the deep concerns of WTO Members over China’s lack of
transparency. By including these lengthy and meticulous obligations, the Members hoped
to beef up the transparency obligations with specific guidelines on their implementation.
If implemented well, the transparency obligations could benefit China itself too. However,
as we will see in the next Section, these optimistic expectations have not always matched
up with reality.

CHINA’S IMPLEMENTATION RECORD

Upon its accession to the WTO, the most urgent task facing China was the implementation
of the substantive obligations, including reducing goods tariffs, removing non-tariff
barriers, and opening services markets.47 To implement these obligations, the Chinese
government also conducted a comprehensive review and revision of trade related laws
and regulations. The work is coordinated by the WTO Legal Affairs Leading Group, which
was established in early 2000 and led by then MOFTEC Minister Shi Guangsheng.48 The
detailed work was conducted by the WTO Legal Affairs Team, which was established in
late 2000 and composed of lower-level officials. There were two phases in the work: the
first phase was mapping the existing laws and regulations, which totalled 1,413 regulatory
documents and included 6 laws, 164 administrative regulations (including 110 internal

43
 TPRM Agreement, Article A(i).
44
 Protocol on the Accession of the People’s Republic of China, supra note 35 Section 18.3.
45
 TPRM Agreement, Article B.
46
 See e.g., Qin JY (2003) ‘WTO-Plus’ Obligations and Their Implications for the World Trade Organization
Legal System - An Appraisal of the China Accession Protocol’ (37) Journal of World Trade 483 at 510; Chen
S (2012), ‘China’s Compliance with WTO Transparency Requirement: Institution-Related Impediments 4 (2)
Amsterdam Law Forum 25 at 37.
47
 See Shi M (2005), ‘China’s Participation in the Doha Negotiations and Implementation of its Accession
Commitments,’ in Gao H & Lewis D (eds.), China’s Participation in the WTO Cameron May at 28-33.
48
 Yang G (2015) Shijie Maoyi Zuzhi Yu Zhongguo (World Trade Organization and China), Qinghua Daxue
Chubanshe (Tsinghua University Press) at 133.
340 JCL 12:2
 henry gao

regulations), 887 departmental rules (including 195 internal documents), 191 bilateral trade
agreements, 72 bilateral investment agreements, and 93 double taxation treaties.49 In the
second phase, these regulatory documents were reviewed by the Team, which decided to
repeal, revise, retain them or enact new legislation. When the Team completed its work in
August 2002, it had revised 210 regulatory documents, while 559 and 450 such documents
had been repealed and retained respectively.50
Similar work was also conducted at the local government level pursuant to the Advice
on Adapting to WTO Accession Process and Clean Up Local Regulations, Rules and Other
Policy Instruments issued by the General Office of the Central Committee of the CCP and
the General Office of the State Council.51 The work was completed in June 2002 with more
than 190,000 local regulations, rules and other policy instruments revised or repealed.52
In contrast, the implementation of procedural commitments such as the transparency
obligation took a back seat. While it is undeniable that the transparency of its trade regime
has been gradually improving since accession, most of the progress were achieved due to
persistent nudging and even complaining by other WTO Members, led by the US and the
EU. Overall, 15 years after China’s accession, it is fair to say that China is now largely in
compliance with its transparency obligations, but problems remain in certain areas. In this
section, we will examine in detail the implementation of the individual obligations.

The Official Journal and Publication

As mentioned earlier, at the time of accession, China did not have an official journal
dedicated to trade laws and regulations. Instead, information on trade laws and regulations
was scattered through newspapers, websites and journals published by many different
agencies.
To implement the obligation, MOFTEC could either establish a new journal, or use the
existing MOFTEC Gazette, as mentioned earlier. MOFTEC decided to choose the latter
option. However, there was a problem with this approach: as the MOFTEC Gazette is a
publication by MOFTEC, it would not have the power to collect and publish the laws and
regulations made by other agencies and local governments, which co-exist with MOFTEC
in the PRC administrative hierarchy. To resolve the problem, MOFTEC proposed to the
State Council to rename the ‘MOFTEC Gazette’ as ‘China Foreign Trade and Economic
Cooperation Gazette’. On June 3, 2002, the State Council approved the renaming request
by MOFTEC and designated the Gazette as the Official Journal.53 This was not just
a simple change of name. Instead, as the establishment of the Gazette is sanctioned by
the State Council and the name now starts with ‘China’, the Gazette has been elevated
from the publication of a Ministry into an official publication of the Chinese government.
While the Gazette is still edited and distributed by MOFTEC,54 it now has the power to

49
 Ibid
50
 Ibid
51
 Ibid at 155.
52
 Ibid at 156.
53
 Guowuyuan Bangongting (State Council General Office) (2002) Guanyu Luxing Woguo Jiaru Shjie Maoyi
Zuzhi Yidingshu Toumingdu Tiaokuan Youguan Wenti de Fuhan (Reply on Issues concerning the Implementation
of the Transparency Provision in China’s WTO Accession Protocol), Guobanhan [2002] No. 42, June 3, 2002,
available at http://www.gov.cn/gongbao/content/2002/content_61584.htm.
54
 Ibid para1.
JCL 12:2 341
The WTO’s Transparency Obligations and China

request information on trade-related laws and regulations from other Ministries and local
governments—which have been urged by the State Council to ‘provide positive support
and cooperation’.55
On October 18, 2002, the first trial issue of the China Foreign Trade and Economic
Cooperation Gazette was published.56 After 12 trial issues in 2002, the Gazette became a
formal publication in 2003.57 Since then, the Gazette has been regularly published with
80 issues every year. However, as late as 2005, foreign governments and lawyers still
complained about the failure of China to implement the obligation to establish the Official
Journal as many of them were not aware of the existence of the Gazette.58 According to
some studies, the problem is that the Gazette doesn’t include the laws and regulations
of local governments and foreigners still have to scour many different sources for this
information.59
To address the issue the State Council issued a Notice on Further Improving the
Relevant Work on the Implementation of the Transparency Provisions in China’s WTO
Accession Protocol on 30 March 2006.60 The first paragraph of the Notice reaffirmed the
status of the Gazette as the Official Journal of the Chinese government in publishing
trade-related laws and regulations. The second paragraph further clarifies the ambiguous
language of providing ‘positive support and cooperation’ in the 2002 reply by explicitly
requiring that all central government agencies and local governments shall ‘forward to
MOFCOM copies of trade-related laws and regulations either at the time of publication of
such regulations or when the drafts are released for public comments so that they can be
published in a timely manner in the Gazette.’ In the last paragraph, MOFCOM is also asked
to ‘actively coordinate and cooperate with relevant parties to implement the transparency
commitments fully and timely.’
Notwithstanding this high-level exhortation from the State Council, the implementation
of the Official Journal and Publication obligations have remained uneven until today. The
first problem is the lack of coverage of sub-central governmental measures.61 For example,
of the 80 volumes of the Gazette published in 2016 only two mention local regulations.62
On the other hand, at the Central Government level the Gazette usually covers only the

55
 Ibid para 2.
56
 MOFTEC (2003) Zhongguo Duiwai Jingji Maoyi Wengao Shikanhao Jinri Chuban Faxing (Trial Issue of China
Foreign Trade and Economic Cooperation Gazette Recently Published), October 18, 2002, available at http://
www.mofcom.gov.cn/article/ae/ai/200210/20021000043894.shtml.
57
 Ibid
58
 Farah PD (2006) ‘Five Years of China WTO Membership: EU and US Perspectives About China’s Compliance
With Transparency Commitments and the Transitional Review Mechanism. Legal Issues of Economic
Integration’ 33 Kluwer Law International 263 at 281.
59
 Ibid 281-282.
60
 State Council General Office (2006) Guowuyuan Bangongting Guanyu Jinyibu Zuohao Luxing Woguo Jiaru Shijie
Maoyi Zuzhi Yidingshu Toumingdu Tiaokuan Xiangguan Gongzuo de Tongzhi (Notice on Further Improving the
Relevant Work on the Implementation of the Transparency Provision in China’s WTO Accession Protocol)
Guobanfa [2006] No. 23., March 30, 2006, available at http://www.gov.cn/gongbao/content/2006/content_283942.
htm.
61
 United States Trade Representative (USTR) (2017) 2016 Report to Congress on China’s WTO Compliance,
January 2017 at 163.
62
 MOFCOM General Office, 2016 Nian Zhongguo Duiwai Jingji Maoyi Wengao Zongmulu (Master Table of
Contents for the 2016 China Foreign Trade and Economic Cooperation Gazette), available at http://www.
mofcom.gov.cn/article/b/g/201601/20160101244294.shtml. The two which mention local regulation are Volumes
43 and 45.
342 JCL 12:2
 henry gao

regulations made by agencies with a close working relationship with MOFCOM, such
as the Customs Administration, the National Development and Reform Commission
(NDRC), the Ministry of Finance, the General Administration of Quality Supervision and
the Inspection and Quarantine and State Food and Drug Administrations. Moreover, in
relation to the trade-related measures by the relevant agencies, the Gazette usually only
publishes regulations and departmental rules, and rarely publishes other legal instruments
such as opinions, circulars, orders, directives and notices.63

Public comment

China’s efforts to implement the obligation on public comment started even before its
accession to the WTO. The Law on Legislation (LL) enacted in March 2000, for example,
includes several provisions on the collecting of public comments through various means.64
Closer examination reveals, however, that the provisions in the Law fall short of meeting
China’s WTO commitment in several ways. Firstly, the LL only provides for a public
comment process for laws made by the NPCSC and the Administrative Regulations of the
State Council. Secondly, under the LL, public comment is not mandatory in the legislative
process. Thirdly, under the LL, public comment process is not a pre-condition for the
implementation of the relevant laws and regulations. Therefore, the public comment
process has rarely been invoked. In the eight years following the enactment of the LL,
public comments have only been sought on the drafts of five laws.65
To address these problems, the State Council issued two administrative regulations on
16 November 2001, 5 days after China signed its Protocol of Accession. The first regulation,
Regulations on the Procedures for the Formulation of Administrative Regulations,66
specifies the legislative procedure for administrative regulations made by the State Council.
The second regulation entitled Regulations on Procedures for the Formulation of Rules67
applies to departmental rules made by Ministerial-level agencies under the State Council,
or local rules made by local governments at the provincial-level or major municipal level.
Of the two, the second regulation is more interesting as it expands the scope of the public
comment process to departmental and local rules. It also provides more specific guidelines
on the organization of public hearings in Article 15. However, the two regulations share the
same weakness as the LL, namely that the public comment process is still not mandatory
and not a pre-condition for the implementation of the relevant regulations. Thus, it is
not surprising that little has changed with the introduction of these two regulations. As
noted by the USTR, the relevant agencies usually would only consult with other agencies,

63
 USTR supra note 61 at 163.
64
 Law on Legislation, enacted by the third meeting of the Ninth People’s Congress and promulgated by the
No. 31 Order by the President on March 15, 2000, Arts. 34, 58.
65
 They are Law on Marriage (Amendments), Law on Property, Law on Labour Contracts, Law on Promotion
of Employment, Law on Prevention of Water Pollution. See Li S, Guanyu Quanguo Renda Changweihui de Lifa
Gongzuo (On the Legislative Work of the NPC Standing Committee), available at http://www.npc.gov.cn/npc/
xinwen/2013-06/25/content_1798343.htm.
66
 State Council, Xingzheng Fagui Zhiding Chengxu Tiaoli (Regulations on the Procedures for the Formulation of
Administrative Regulations), State Council Order No. 321, November 16, 2001.
67
 State Council, Guizhang Zhiding Chengxu Tiaoli (Regulations on Procedures for the Formulation of Rules),
State Council Order No. 322, November 16, 2001.
JCL 12:2 343
The WTO’s Transparency Obligations and China

Chinese firms and experts.68 Occasionally, selected foreign firms might be consulted, but
the drafts would not be shared with them.69
In November 2003, MOFCOM issued Interim Measures on Administrative Transparency
in the MOFCOM.70 Article II states that, in principle, draft regulations of MOFCOM must
be published so that they are available to the public. Article IV(i)(3) further provides that,
if any MOFCOM draft regulations or rules directly affect the substantive interests of
citizens, legal persons or other organizations, and relevant citizens, legal persons or other
organizations have major disagreements over certain provisions of the draft, the MOFCOM
is required to publish the draft through its governmental website and collect comments
and suggestions from the individuals and organizations involved. This provision could be
a major step forward in the implementation of the public comment obligation, for arguably
all trade regulations can be said to directly affect the substantive interests of individuals or
firms. However, as the provision also requires major disagreements over the draft by such
individuals or firms, it falls short of complying with the public comment obligation, which
requires the comment process for all regulations without any pre-condition.
On 15 April 2008, the Standing Committee of the 11th NPC decided at the 2nd
Chairman’s Meeting that in order to further promote scientific and democratic legislation,
all drafts of laws to be reviewed by the NPCSC ordinarily would be published in order to
collect public comments.71 Starting from the draft Food Safety Law, which was published
on 20 April 2008, all drafts of such laws have since been published on the website of
the NPC and some of the more important laws have also been published in the major
news media.72 With this decision and the subsequent publication of draft laws for public
comments, China has essentially implemented its public comment obligation with regard
to national laws.
In October 2010, the State Council issued Opinions on Strengthening the Building
of a Government Ruling by Law,73 which provides that except those made confidential
by law the drafts of all administrative regulations and departmental and local rules
shall be published for public comment; and feedback on whether such comments are
adopted shall be provided through appropriate means. In July 2011, the State Council
Legislative Affairs Office (SCLAO) published its Interim Measures on Solicitation of Public
Comment on Draft Laws and Regulations and the Notice on Related Issues Regarding
Solicitation of Public Comments on Draft Departmental Rules,74 and further refined the
details of the public comment process. According to the Interim Measures, the draft

68
 USTR supra note 61 at 165.
69
 Ibid
70
 MOFCOM, Shangwubu Guanyu Yinfa “Shangwubu Zhengwu Gongkai Zanxing Banfa” de Tongzhi (MOFCOM
Notice on the Issuance of Interim Measures on Administrative Transparency), Shangbanfa [2003] No. 444,
November 25, 2003.
71
 Ai Z (2014) Quanguo Renda Changweihui xiang Shehui Gongbu Falu Caoan Gongzuo de Huigu yu Sikao (Reflections
on the Work on Publishing Legislative Drafts to the Public by the NPC Standing Committee), March 27, 2014,
available at http://www.npc.gov.cn/npc/xinwen/rdlt/rdjs/2014-03/27/content_1857231.htm.
72
 Ibid
73
 State Council, Guowuyuan Guanyu Jiaqiang Fazhi Zhengfu Jianshe de Yijian (Opinions on Strengthening the
Building of a Government Ruling by Law), Guofa [2010] No. 33, October 20, 2010.
74
 State Council Legislative Affairs Office, Guowuyuan Fazhi Bangongshi Falu Fagui Caoan Gongkai Zhengqiu
Yijian Zanxing Banfa (Interim Measures on Solicitation of Public Comment on Draft Laws and Regulations and
the Notice on Related Issues Regarding Solicitation of Public Comments on Draft Departmental Rules), July
22, 2011.
344 JCL 12:2
 henry gao

laws, administrative legislation and departmental rules must be published on the China
Government Law Information website, which is maintained by SCLAO.75 It also provides
that the commenting period for draft administrative regulations shall normally be no less
than 30 days except in cases of emergency.
The introduction of these detailed rules has gradually established the public comment
procedure. Nowadays, the system seems to be working well for the public comment
process on laws and regulations. However, problems still remain for departmental rules.
For example, during the public comment process for the draft Internet Domain Name
Administration Rules made by the MIIT in 2016, many netizens reported that they either
could not vote at all, or even if they could vote the results and number of votes did not
change after they click the vote button.76 This episode illustrates how hard it is to change
the old habits of the bureaucrats and fully to implement the public comment obligation.
Another problem is that of normative documents, which are regulatory documents that
do not fall into the category of administrative regulations or departmental rules. While
their legality is dubious as they do not follow the normal legislative procedure, they can
have a major effect on individuals and firms.77 While a relic from the pre-reform era, they
are still widely used today, especially at the local government level. The US has repeatedly
pushed for the use of public comment procedure for these documents, but China is still
reluctant or unable to implement it.78
Also, at the local government level the implementation of the public comment
obligation varies as between different regions. In general, the more developed coastal
regions tend to have better track records than the relatively backward inland areas. For
example, Guangzhou and Beijing have specifically introduced transparency requirements
for normative documents.79 Another example is Shenzhen, which in November 2000
became the first city in China to hold a hearing on a draft local regulation in accordance
with a detailed hearing procedure.80 In May 2016 Shenzhen went even further by holding
China’s first legislative hearing through WeChat, the most popular social messaging
App in China.81 Moreover, to ensure compliance of local regulations with the substantive
obligations of the WTO, Shenzhen also issued Rules on the Review of the Consistency of
the Trade Policies of Shenzhen City with WTO Rules in 2012.82 According to the Rules, the
Shenzhen government is required to submit draft trade-related regulations for review by
the Shenzhen WTO Affairs Centre.83 The Shenzhen Rules was the first provision of this

75
 Article 2.
76
 Cao G (1930) “Hulianwang Yuming Guanli Banfa” Zhengqiu Yijian Wangye bei Dongshoujiao Buxu Fandui
(Commenting Page on “Internet Domain Name Administration Rules” Compromised and No Objections
Allowed), Radio France Internationale, March 30, 2016.
77
 For a good discussion of the problem of normative documents, see Chen S, supra note 46, at 44-47..
78
 USTR supra note 61 at 167.
79
 Chen supra note 46at 46-47.
80
 Li Guiru (2000) ‘Shenzhen Shoukai Lifa Tingzhenghui,’ (Shenzhen became the First City in China to hold
a Legislative Hearing) China Youth Daily November 30, 2000, available at http://www.people.com.cn/GB/
channel1/11/20001130/332147.html..
81
 Zhang Wei (2016) ‘Shenzhen jiang Juxing Weixin Lifa Tingzheng, Ciju wei Guonei Shoushi’ (Shenzhen to
hold Legislative Hearing Through Wechat, The First of Its Kind in China) Southern Daily May 5, 2016, available
at http://www.fzgd.org/fzcj/sz/201605/t20160505_768384.htm.
82
 MOFCOM Special Commissioner’s Office in Shenzhen (2015) Shenzhen Maoyi Zhengce Hegui Gongzuo de
Shijian Tansuo (Experiments in the Trade Policy Compliance Work of Shenzhen), November 23, 2015, available
at http://sms.mofcom.gov.cn/article/zt_myzchggz/lanmufive/201511/20151101192419.shtml.
83
 Shenzhen Municipal Government General Office (2012) Guanyu Yinfa “Shenzhenshi Maoyi Zhengce Fuhe Shijie
JCL 12:2 345
The WTO’s Transparency Obligations and China

kind within China, and their example also inspired the State Council and MOFCOM to
issue nationwide Trade Policy Compliance Rules in 2014.84

Enquiry points

Compared to the other commitments, the obligation to establish enquiry points is

significantly easier to implement, as it is a one-off exercise and does not involve substantive
issues. On 1 November 2001, MOFTEC announced the establishment of a China WTO
Notification and Enquiry Centre, a Departmental level agency along with the Department
of WTO Affairs and the Department of Fair Trade.85 On 1 January 2002, MOFTEC published
its Interim Measures on Enquiries to the China WTO Enquiry Centre and specified the
objectives, scope, method and response time for the enquiries.86 According to the Interim
Measures, the enquiry must be submitted in written form, and a written response given
within 30 working days. To ensure the accuracy and authoritativeness of the enquiry
response, MOFTEC also formed an Expert Group for the Enquiry Work composed of
WTO experts and scholars from MOFTEC, other governmental agencies and relevant
research institutes.87 On 14 January, the Enquiry Centre started its operations.88 To further
facilitate the submission of enquiries, on 12 September 2002, MOFCOM also established
a dedicated website: the MOFTEC WTO Enquiry Website (www.chinawto.gov.cn).89 In
2006 the website also added the function of enquiries on China’s Free Trade Agreements
(FTAs) and was renamed WTO/FTA Enquiry Website, with the URL also changed to http://
chinawto.mofcom.gov.cn.90
In addition to this, other ministries and agencies have established enquiry points for
issues within their respective jurisdiction. The works of these enquiry points are generally
regarded as satisfactory. For example, in its 2016 Report the USTR noted that ‘since the
creation of these various enquiry points, U.S. companies have generally found these
various enquiry points to be responsive and helpful, and they have generally received
timely replies.’91 However, problems remain in particular issue areas, especially those that

Maoyi Zuzhi Guize Shencha Banfa” de Tongzhi (Notice on the Issuance of “Rules on the Review of the Consistency
of the Trade Policies of Shenzhen City with WTO Rules”) Shenfuban [2012] No. 42, July 25, 2012, Article 5.
84
 See State Council General Office (2014) Guowuyuan Bangongting Guanyu Jinyibu Jiaqiang Maoyi Zhengce Hegui
Gongzuo de Tongzhi (Notice on Further Improving the Trade Policy Compliance Work), Guobanfa [2014] No.
29, June 9, 2014, available at http://www.gov.cn/zhengce/content/2014-06/17/content_8887.htm; MOFCOM,
Maoyi Zhengce Hegui Gongzuo Shishi Banfa [Shixing] (Implementing Rules on Trade Policy Compliance Work
[Interim]), December 12, 2012, available at http://www.mofcom.gov.cn/article/b/c/201412/20141200833105.
shtml.
85
 Xinhua News Agency (2002) ‘Zhongguo Jiaru WTO Yizhounian Dashiji,’ (Major Events During China’s
First Year in the WTO), December 10, 2002, available at http://news.xinhuanet.com/fortune/2002-12/10/
content_655140.htm.
86
 MOFCOM (2002) Zhongguo Zhengfu WTO Zixundian Zixun Banfa [Shixing] (Interim Measures on Enquiries
to the China WTO Enquiry Centre), January 1, 2002.
87
 Zhongguo Jiji Luxing Jiaru Shimao Zuzhi Chengnuo (China has Diligently Implemented its WTO Accession
Commitments), October 31, 2005, available http://www.gov.cn/ztzl/content_87694.htm.
88
 Ibid
89
 MOFTEC (2002) “Duiwai Maoyi Jingji Hezuobu WTO Zixun Wang” 9 yue 13 ri Kaitong (“MOFTEC WTO
Enquiry Website” established on September 13), September 16, 2002, available at http://sms.mofcom.gov.cn/
aarticle/zcfb/200209/20020900040388.html.
90
 WTO/FTA Enquiry Website, Guanyu Women (About Us), available at http://chinawto.mofcom.gov.cn/gywm.
shtml.
91
 USTR supra note 61 at 167.
346 JCL 12:2
 henry gao

fall under the jurisdiction of different agencies. One example is TBT notifications. The main
agency in charge here is the State Administration of Quality Supervision, Inspection and
Quarantine (AQSIQ), which has a TBT enquiry point. According to the USTR, the enquiry
point performs well in notifying measures by AQSIQ, as well as those by the National
Certification and Accreditation Administration and Standardization Administration
of China.92 However, the notification is lacking for measures by other agencies such as
the Ministry of Health, Ministry of Industry and Information Technology, the State
Environmental Protection Administration and State Food and Drug Administration.93

Translations

Among all transparency-related obligations, translation is one of the hardest to implement

as it is a continuous obligation involving sustained efforts. Moreover, unlike other
obligations such as publication, public comment and enquiry points, the translation
obligation by its nature only benefits foreigners. Thus, it is prone to be put on the back-
burner by bureaucrats who see little relevance to their domestic constituencies.
For these reasons, it is small wonder that the translation obligation has a poor
implementation record. Until 2015 China only translated on a regular basis the trade-
related laws and administrative regulations, but not numerous relevant departmental or
local rules.94 Moreover, China has been ‘years behind’ in publishing the translations, which
are typically only made available after implementation rather than before.95 After repeated
complaints from the US, the State Council issued the Notice on Improving the Translation
Work of Trade-related Departmental Rules on 16 March 2015.96 The Notice requires all
ministries and agencies to publish in principle official English translations of the relevant
departmental rules through their websites or by other means before implementation. In
exceptional cases, the English translation shall be published no later than 90 days after
implementation. While this Notice partly solved the problem for departmental rules, no
similar requirements have been made for laws, administrative regulations and local rules.
In response to pressures from the US, China agreed in 2016 to find ways to comply with
its obligation.97
In several WTO disputes, translation became an issue. The first was the China—
Publications and Audiovisual Products case, which was brought by the US in 2007. While
the US did not make a formal claim for the violation of the translation obligation in the
case, translation did become a key issue. The problem arose because the US and China
each provided different translations of certain key terms of the Chinese measures.98 At the
request of the panel, they were able to agree on the translation of some but not all the terms

92
 Ibid at 91.
93
 Ibid
94
 USTR supra note 61, at p. 164.
95
 Ibid
96
 State Council General Office, Guowuyuan Bangongting Guanyu Zuohao yu Maoyi Xiangguan Bumen Guizhang
Yingwen Fanyi Gongzuo de Tongzhi (Notice on Improving the Translation Work of Trade-related Departmental
Rules), Guobanhan [2015] No. 22, March 16, 2015.
97
 USTR supra note 61 at p. 165.
98
 Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications
and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261, at para2.4.
JCL 12:2 347
The WTO’s Transparency Obligations and China

in question.99 In October 2008, the panel proposed to engage the UN Office at Geneva
(UNOG) as a neutral independent translator.100 However, in November 2008 the parties
were informed that, due to the current workload and resource constraints, the UNOG
might not be able to complete the translation in time.101 The US proposed to use a private
translation company instead but China did not like this alternative.102 In December 2008,
the issue was finally resolved when the United Nations Office at Nairobi (UNON) agreed
to provide a timely translation, which was submitted in February 2009.103
While there are three different translations of many key terms, the Panel used the
translation prepared by the US in most cases. In a footnote in the Panel Report, the Panel
explained the rationale for its approach:
Because the United States is the complaining party and bears the burden of providing
evidence of the content of the Chinese measures being challenged, as a general
rule, when referring to one of China’s laws, regulations or documents the Panel
will utilize the US translation, unless the specific provision is one which the parties
agreed to utilize China’s translation or if based on the advice of the independent
translator the Panel finds that the US translation is inappropriate. However, we
have reviewed both translations and may refer to China’s versions to confirm our
understanding of the measures. Our citation to the US translation should not be
construed as necessarily implying that it is an authoritative translation of China’s
measures or that we believe the United States is in a better position to provide an
English translation of China’s internal measures.104
Altogether, the Panel identified ten key terms where the Parties disagreed on the
translations.105 Among these ten, the Panel used the US translation for five terms, which
includes three terms that China claimed to be ‘unique terms that can find no English
word matching its exact meaning’ and thus did not provide translation.106 The Chinese
translation was only adopted for one term.107 As for the remaining four terms, the Panel
did not choose a specific translation as it found that the translation differences would not
affect its ruling.108
Probably learning from its experience in the China—Publications and Audiovisual
Products case, the US has included among its claims China’s alleged failure to implement
the translation commitment in several subsequent disputes. For example, on 22 December
2010 the United States requested consultations with China concerning certain measures
providing grants, funds, or awards to enterprises manufacturing wind power equipment.
In the Request for Consultation, the US alleged that China violated its translation
commitment by failing to provide the translation of the Notice of the Ministry of Finance on
Issuing the Provisional Measure on Administration of Special Fund for Industrialization of

99
 Ibid at paras. 2.5-2.6.
100
 Ibid at para 2.7.
101
 Ibid
102
 Ibid
103
 Ibid at para2.8.
104
 Ibid at footnote 84 to para7.34.
105
 Ibid Annex A-1 Translation Differences in the Report—Summary Table.
106
 Ibid at paras. 7.928-7.931.
107
 Ibid at paras. 7.368-7.369.
108
 Ibid at paras. 7.928-7.931, 7.1365-7.1375, and 7.1382-7.1387.
348 JCL 12:2
 henry gao

Wind Power Equipment, including the Annex on Provisional Measures on Administration

of Special Fund for Industrialization of Wind Power Equipment.109 Similarly, in the 2012
case of China — Certain Measures Affecting the Automobile and Automobile-Parts Industries110
and the case of China — Tax Measures Concerning Certain Domestically Produced Aircraft111 in
2015, the US also alleged failure to provide translation of 73 and 4 measures respectively.
As these cases have not lead to panel reports, it is still unclear how a panel will rule on the
issues.
For a continuous obligation like translation, the best way to implement is establish an
institutional mechanism. However, China has yet to establish such a mechanism and all
translations are done on an ad hoc basis. In the 2016 USTR Report to Congress on China’s
WTO Compliance, the US suggested China follow the example of the EU. However, this
is not a feasible solution as China is not a multi-racial and multi-lingual country, and
therefore has not had to face the same need to develop a powerful translation capacity.
Indeed, due to its special nature, the EU is an anomaly among WTO Members and is akin
to an international organization in many aspects.
Instead the author suggests that China could learn from the China—Publications and
Audiovisual Products case by outsourcing the translation work. The MOFCOM has been
outsourcing its work since February 2015 when the Department of WTO Affairs issued a
call for tender for the translation of the documents used in China’s WTO notification and
review process.112 In March 2015, two contractors won the bid with the top choice being
Zhonglun, a leading Chinese law firm.113 While the scope of this tender covers only the
documents used in China’s WTO notification and review processes,114 there is no reason
why the same approach could not be adopted for the translation obligation as well.

Transitional Review Mechanism

As the transitional review mechanism does not involve any substantive obligation, one
may assume that it is rather easy to implement. However, it transpires that this has become
one of the most contentious areas of implementation, primarily due to the lack of detailed
procedural rules in the Accession Protocol.

109
 China—Measures concerning wind power equipment, Request for Consultations by the United State, WT/
DS419/1, G/L/950, G/SCM/D86/1, 6 January 2011.
110
 China—Certain Measures Affecting the Automobile and Automobile-Parts Industries, Request for
Consultations by the United State, WT/DS450/1, G/L/1002, G/SCM/D93/1, 20 September 2012.
111
 China—Tax Measures Concerning Certain Domestically Produced Aircraft, Request for Consultations by
the United States, WT/DS501/1, G/L/1141, 10 December 2015.
112
 Guoxin Tendering Group, Zhongguo Zhengfu Shimao Zuzhi Tongbao Shenyi Fanyi Gongzuo [Baokuo
Biyi he Jiaochuan Kouyi] Zhaobiao Gonggao (Call for Tenders for the Translation Work [including Written
Translation and Oral Interpretation] of WTO Notification and Review by the Chinese Government),
February 13, 2015, available at http://www.mof.gov.cn/xinxi/zhongyangbiaoxun/zhaobiaogonggao/201502/
t20150213_1192744.html.
113
 Guoxin Tendering Group, Zhongguo Zhengfu Shimao Zuzhi Tongbao Shenyi Fanyi Gongzuo Zhongbiao
Gonggao (Notice on Contract Award on the Translation Work of WTO Notification and Review by the Chinese
Government), March 16, 2015, available at http://www.ccgp.gov.cn/cggg/zygg/zbgg/201503/t20150316_5096384.
htm.
114
 MOFCOM Department of WTO Affairs, Shangwubu Shimaosi Fabu Zhongguo Zhengfu Shimao Zuzhi
Tongbao Shenyi Fanyi Xiangmu Zhaobiao Gonggao (Publication of the Call for Tenders for the Translation
Work of WTO Notification and Review by the Chinese Government), December 29, 2015, available at http://sms.
mofcom.gov.cn/article/u/aa/201512/20151201222432.shtml.
JCL 12:2 349
The WTO’s Transparency Obligations and China

The first problem concerns the timing of the review. Section 18.1 only states that
the WTO subsidiary bodies ‘shall, within one year after accession… review […]
the implementation by China’. The US interpreted this to mean that the review is a
continuous process with ‘WTO Members […] rais[ing] their concerns regarding China’s
implementation throughout the course of the year within the relevant WTO bodies and
Committees’.115 China, however, argued that the review is a one-off annual exercise with
‘only one annual review’.116 Thus, when the US tried to start the review process soon after
China’s accession by putting China’s implementation of its services commitments on the
agenda of the regular meeting of Council for Trade in Services on 27 March 2002, China
refused to discuss them on the ground that they are too complicated and should be raised
in the formal review process instead.117 After some haggling between China and the other
WTO Members, they finally agreed that the first TRM review would be held at the last
regular meetings of the respective subsidiary bodies in 2002.118
After the timing issue was resolved, another battle was fought over the timetable for
the submission of the information required in the review. The Accession Protocol only
specifies the timetable for the review by the General Council by noting, in Annex 1B, that
China ‘shall submit any information and the documentation relating to the review no later
than 30 days prior to the date of the review’. As to the reviews by the subsidiary bodies,
there is no such explicit requirement and China is only obligated to ‘provide relevant
information, including information specified in Annex 1A, to each subsidiary body in
advance of the review.’ The US again took an expansive interpretation by proposing firstly
that China should submit the relevant information set out in Annex 1A 90 days before the
respective meetings; and secondly that other Members shall submit their specific questions
to China 60 days before the meeting; and thirdly that China should submit its responses
to Members’ questions 30 days before the meeting.119 This proposal was again rejected by
China, which insisted that no specific time-frame or procedure may be imposed as they
go beyond the stipulated obligation under Section 18.120 In the end, China only submitted
the relevant information on average three days before the scheduled meeting.121 Such late
submission made it very hard for the other Members to react to China’s submissions.122
Another contentious issue was whether China should provide written replies to
Members’ questions during the review. Section 18 is again silent on the issue, as it doesn’t
even explicitly state that other Members may raise questions. The US took the view that
there may be an exchange of written questions and answers before the review meeting.123

115
 Council for Trade in Services, Report of the Meeting held on 19 March 2002: Note by the Secretariat,
S/C/M/59, 14 May 2002 at para 55.
116
 Ibid at para 70.
117
 Stewart TP (2004) China’s Compliance with World Trade Organization Obligations: A Review of
China’s 1st Two Years of Membership, A Report Prepared for the U.S.-China Security and Economic Review
Commission, March 19, 2004, at p. 72, available at https://www.uscc.gov/Research/chinas-compliance-world-
trade-organization-obligations-review-chinas-1st-two-years.
118
 Ibid at 74.
119
 Committee on Market Access, Minutes of the Meeting Held in the Centre William Rappard on 12 June 2002,
G/MA/M/32, 11 September 2002, at para 12.1.
120
 Ibid, at para 12.2.
121
 Stewart, supra note 117at 79.
122
 Ibid at 78-79.
123
 Committee on Market Access, supra note 119, at para12.1. See also Committee on Market Access, Minutes
of the Meeting Held on 23 September 2002, G/MA/M/33, 19 November 2002, at para8.31.
350 JCL 12:2
 henry gao

Based on this understanding some Members submitted written questions from as early as
August 2002.124 China, however, insisted that it was under no obligation to provide written
replies under the TRM.125 When the US complained that the lack of written response made
it difficult to conduct the review,126 China proposed to ‘convene an informal meeting
outside of the transitional review mechanism process’ so that the ‘Chinese experts could
provide more information to the questions raised by any interested Members’.127 However,
the US rejected the proposal as they preferred ‘to have a formal record of the discussions
including China’s responses.’128 As the other Members were also not receptive, China
withdrew the proposal.129
A related issue is whether Members may submit follow-up questions to China after
the review meeting. This issue was first raised by Chinese Taipei during the first review130
and was echoed by the US131 and Japan.132 China refused to accept written questions post-
meeting on the ground that the review takes place only once a year at the designated
meeting.133
As mentioned above, Section 18.1 requires the subsidiary bodies to report the results
of the review to the relevant Councils, which shall in turn report to the General Council.
However, it does not specify the nature or content of such reports. Under Section 18.2
the General Council shall conduct the review in light of the reviews conducted by the
subsidiary bodies, and ‘may make recommendations to China’. Reading the two parts
together, one might argue that, to help the General Council to make such recommendations,
the reports by the subsidiary bodies shall include more substantive analysis on whether
China has implemented its commitments. This was indeed the view taken by Japan.134
However, this view was rejected by the committee Chairman on practical grounds as the
adoption of such a report would require a consensus, which would be impossible to obtain
given the differences between China and other Members.135 For the same reason, even the
final report by the General Council did not include any specific recommendations.136
In summary, it seems that China has largely won the battle on the TRM by insisting
on a strict textualist and minimalist interpretation of its obligations under the Accession
Protocol. While Members like the US, the EU, and Japan were unhappy, they had little
choice but quietly accepted this and simply used the TRM to request more information from
China on the various issues they were concerned with, mostly concerning transparency
and procedural issues in various Chinese trade measures.137 In 2006, however, China

124
 Stewart, supra note 117, at 74.
125
 Committee on Market Access, supra note 123, at para 8.21.
126
 Ibid at para 8.31.
127
 Ibid at para 8.52.
128
 Ibid at para 8.54.
129
 Ibid at para 8.56.
130
 Ibid at para 8.45.
131
 Ibid at para 8.60.
132
 Ibid at para 8.58.
133
 Ibid at para 8.47.
134
 Stewart supra note 117 at 83-84.
135
 Committee on Market Access supra note 123 at para 8.65.
136
 Stewart supra note 117 at 84-85.
137
 For a summary of the issues raised, see US Government Accountability Office, U.S.-China Trade: Summary
of 2003 World Trade Organization Transitional Review Mechanism for China, GAO-05-209R, January 25, 2005,
available at http://www.gao.gov/products/GAO-05-209R.
JCL 12:2 351
The WTO’s Transparency Obligations and China

became even more impatient with the TRM, when it also had to deal with the Trade Policy
Review Mechanism for the first time. The TPRM was held in April 2006. When the TRM
was conducted later that year, China raised several issues. Firstly, some Members used
the TRM to request answers for questions raised during the TPRM.138 China regarded
this as inappropriate as the two are separate processes and it thus refused to answer
these questions. However, when the US pressed further by asking if this were the official
position of China,139 China backed off and agreed to provide oral replies.140 Secondly, some
questions were raised repeatedly in several committees. For example, the same question
concerning the Chinese Compulsory Certification (CCC) regulation was raised in the
Market Access Committee, the TBT Committee and the CTG.141 China was concerned
that this would turn the TRM from a once-per-year event into a multiple-times-per-year
exercise.142 This led to a spirited retort from the EU that they not only had to raise the
same questions in different committees, but notably had been putting the same questions
for five years because they were not getting answers.143 In response, China accused the
EU of applying double standards by asking China to reduce its exports on products such
as textiles while complaining that China should not restrict its exports on certain raw
materials.144 However, eventually, China also softened its stance by agreeing to address
issues even if they are raised in several committees.145
While this episode did not significantly change China’s practice in the TRM, it did
provide some interesting insights into China’s perception of the TRM. Instead of viewing
it as a useful exercise to help China to implement its WTO obligations, as suggested by the
US and the EU, China regarded it more as a source of burden and humiliation. As noted
by China’s first WTO Ambassador, from the outset the TRM was viewed as an additional
burden and discriminatory measure from China’s perspective.146 However, prior to 2006
China largely kept such views private and did not publicly express them. Then, when
China went through the TPRM in 2006, it received more than one thousand questions,
while the US received less than one thousand questions in its last TPR.147 Moreover,
China noted that it took the US nine months to provide answers, while Members pressed
China for answers after less than six months.148 That is why China denounced the TRM as
discriminatory.149
In a way China’s confrontational behaviour in the TRM can be explained by the fact
that the TRM, unlike the TPRM, may be used by WTO Members to collect information
that is then used in WTO dispute settlement proceedings. To avoid self-incrimination, it is
understandable that China took an ultra-cautious approach by refusing to provide written

138
 Committee on Market Access, Minutes of the Meeting Held on 4 October 2006, G/MA/M/42, 14 November
2006, at para7.2.
139
 Ibid at para 7.11.
140
 Ibid at para 7.13.
141
 Ibid at para 7.2.
142
 Ibid
143
 Ibid at para 7.7.
144
 Ibid at para 7.9.
145
 Ibid
146
 Sun Z (2011) Rineiwa Kongzong Suiyue (Busy Days in Geneva) People’s Publishing House at 17-18.
147
 Committee on Market Access supra note 138 at para 7.3.
148
 Ibid
149
 Ibid at para 7.9.
352 JCL 12:2
 henry gao

answers. Had the TRM been designed more like the TPRM it might, paradoxically, have
been more effective in coaxing China to improve its implementation of WTO commitments.

CONCLUSION

From the discussion above, we can make a number of general observations regarding China’s
implementation of the transparency obligation. Firstly, the record of implementation
at the Central Government level is better than at the local government level. Secondly,
among the Central Government ministries, MOFCOM has a better implementation record
than the other ministries. Furthermore, those agencies with a primary or significant remit
relating to international trade-related issues such as General Administration of Customs
and AQSIQ tend to have higher transparency. Thirdly, the implementation record of the
local governments is uneven with coastal provinces boasting better record compared to
their inland counterparts. On some issues, some coastal cities such as Shenzhen have
actually provided a model for the central government. Fourthly, transparency has been
greatly improved in respect of formal laws and regulations, while many problems remain
with informal rules. Lastly, the implementation of the transparency obligation generally
has taken place on an ad hoc basis, and currently there still is no institutional mechanism to
address the transparency issue as a whole.

Explanation

In a way, China’s less-than-satisfactory implementation record of the transparency

obligation is not really surprising, as it reflects deeper problems in the Chinese system. In
particular, the reasons can be grouped into the following three categories.

Political reasons

The first is the de-centralized law-making system, which is necessary because China is
a vast country with differing conditions across many different regions. Moreover, as the
reform process is an unprecedented exercise with no pre-defined blueprint, the central
government often encourages local governments to experiment with various initiatives.
This criss-crossing network of legislative frameworks makes it difficult for the central
government to comply with the transparency obligation, as even the central government
itself might not always be aware of what is happening at the local level.
At the central government level, turf wars among the different ministries and agencies
also make it hard to achieve full transparency. While MOFCOM claims that its requests for
information from other agencies is justified by the need to comply with WTO obligations,
the other agencies might regard such requests more as attempts by MOFCOM to usurp
their power and thus are unwilling to capitulate. This is especially the case for the agencies
which are higher-ranking than MOFCOM in the bureaucratic hierarchy, such as the
NDRC and Ministry of Finance (MOF). For example, the first WTO case that China had to
defend before the Panel and the AB - the China - Auto Parts case - concerns policies made
by the NDRC and MOF.150 While other WTO Members had been raising questions about

150
 See Panel Reports, China—Measures Affecting Imports of Automobile Parts, WT/DS339/R, Add.1 and Add.2
JCL 12:2 353
The WTO’s Transparency Obligations and China

the policies since the first TRM,151 MOFCOM was unable to provide solutions as it did
not have the power to overrule the decisions of the two agencies. This also illustrates the
limitations of the transparency obligations.

Practical reasons

In addition to political reasons, China also has practical difficulties in complying with the
transparency obligations. Firstly, many government officials lack familiarity with WTO
obligations and might not be aware of the need to comply with such obligations. This is
especially the case at the local government level. When it first acceded to the WTO, China
launched extensive campaigns to educate officials with respect to WTO rules. As time
went by, however, many officials either moved on or simply forgot the WTO rules as they
were rarely used in everyday work.152 Even at the central government level, the officials
in the non-trade related agencies are often not aware of the trade implications of their
proposed regulations. The combination of these two factors renders compliance with the
transparency obligation a major challenge.
On the other hand, while the officials in the trade-related ministries such as MOFCOM
have higher levels of sensitivity in relation to WTO obligations, they are often too busy
to focus on their transparency obligations. For them, the key priority is often to ensure
consistency with the substantive obligations of the WTO. Thus, the implementation of
procedural obligations such as transparency is often pushed to bottom of the to-do list.
Moreover, as obligations such as translations and TRM only benefit foreigners, they are
frequently side-lined by officials who give priority to serving their domestic constituencies.

Cultural reasons

Lastly, in Chinese culture there is a long-standing aversion to legal transparency. For

example, in 513 BC the publication of the Penal Code by the Kingdom of Jin met with
heavy criticism from Confucius, who argued that its publication would disrupt the
established social order and make it more difficult to govern the people as they could
henceforth rely on the law instead, and use it to pursue self-interest.153 Even today, this
idea remains popular among Chinese officials. A lot of seemingly harmless information is
still regarded as classified and state secrecy laws are widely used to persecute people who
demand more transparency. Thus, it is unsurprising that transparency is regarded as an
inconvenient obligation that is only reluctantly implemented.

/ WT/DS340/R, Add.1 and Add.2 / WT/DS342/R, Add.1 and Add.2, adopted 12 January 2009, upheld (WT/
DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R / WT/
DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119.
151
 See e.g., Committee on Market Access, supra note 123, at para 8.22.
152
 MOFCOM News Office, Shangwubu Zhaokai “Maoyi Zhengce Hegui Gongzuo” Zhuanti Xinwen Fabuhui “
(MOFCOM Held Press Conference Dedicated to “Trade Policy Compliance Work”), July 18, 2014, available at
http://www.mofcom.gov.cn/article/zhengcejd/bl/201407/20140700667570.shtml.
153
 Zuozhuan, Zhaogong Ershijiu Nian (the 29th Year Under the Reign of Duke Zhao), available at http://ctext.org/
chun-qiu-zuo-zhuan/zhao-gong-er-shi-jiu-nian/ens.
354 JCL 12:2
 henry gao

Summary

This paper has presented a case study of how to enhance the transparency of a domestic
legal regime through international agreements. As we can see from the foregoing
discussions, external pressure can help to improve the transparency of trade law to a
certain extent, mainly through the imposition of certain guidelines and establishment of
relevant institutions. The successful experiences in the trade law system can also provide
a model for other areas of law. However, in the long term, it is difficult to achieve full
transparency without systemic reform in the domestic legal system as a whole. As noted
by William Alford,
A system of state determination of which ideas may or may not be disseminated
is fundamentally incompatible with one of strong intellectual property rights in
which individuals have the authority to determine how expressions of their ideas
may be used and ready access to private legal remedies to vindicate such rights.154
To paraphrase Alford, a system of state determination of which information may or
may not be published is fundamentally incompatible with one of strong transparency
rights in which individuals have the authority to determine how their right to information
may be exercised and ready access to private legal remedies to vindicate such rights.

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

fanyi 翻译 translation

gongkai zhengqiu yijian 公开征求意见 public comment

guoduqi shenyi 过渡期审议 transitional review

Shangwubu 商务部 Ministry of Commerce

Shijie Maoyi Zuzhi 世界贸易组织 World Trade Organisation

Tongbao 通报 notification

touming du 透明度 transparency

Ziyou Maoyi Xieding 自由贸易协定 Free Trade Agreement

zixun dian 咨询点 enquiry point

 Alford WP (1995) To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization, Stanford
154

at 119.

JCL 12:2 355

The Transparent Self under Big Data Profiling

The Transparent Self under Big

Data Profiling: Privacy and Chinese
Legislation on the Social Credit System
YONGXI CHEN AND ANNE SY CHEUNG
The University of Hong Kong

INTRODUCTION

Big data is one of the buzz phrases of the 21st century, concerning not only the digitalisation
of data on billions of individuals, but also what those in power are able to do with that
data. The defining characteristic of big data is the capacity to search, aggregate and cross-
reference large datasets for analysis to identify previously undetectable patterns,1 as
well as the power to profile individuals, calculate risks, and monitor and even predict
behaviour.2 When big data is harvested by governments, the worry is that the totality of
individuals’ lives will be captured, that citizens will be monitored and that the Orwellian
state will become a reality.
In China, such a worry seems far from unfounded given the Chinese Communist Party’s
(CCP) roll-out of its powerful Social Credit System (SCS). Launched at the national level
in 2014, the system’s aim is to assess the trustworthiness of Chinese citizens in keeping
their promises and complying with legal rules, moral norms, and professional and ethical
standards.3 It is essentially an all-encompassing, penetrative system of personal data
processing, manifested by the comprehensive collection and expansive use of personal
data with the explicit intention on the Chinese government’s part of harnessing the
ambition and power of big data technology.4 The SCS rates both business entities and
individuals. According to its blueprint, the records that are collected can be extensively

1
 Boyd D and Crawford K (2012) ‘Critical Questions for Big Data’ (15) Information, Communication & Society
662.
2
 Alexander von Humboldt Institut Für Internet und Gesellschaft (2015) ‘Big Data: Big Power Shifts?’, available
at: <http://www.hiig.de/big-data-big-power-shifts/>.
3
 See ‘Shehui xinyong tixi jianshe guihua gangyao’ (Planning Outline for the Construction of the Social Credit
System, 2014-2020) (adopted by the State Council and effective on June 14, 2014) (‘SCS Outline’ hereafter). For
the public concerns related to the social credit system, see
Clover C, ‘China: When Big Data Meets Big Brother’ Financial Times, January 20, 2016, available at: <https://next.
ft.com/content/b5b13a5e-b847-11e5-b151-8e15c9a029fb>.
4
 One year following the issuance of SCS Outline, the State Council adopted an outline for big data
development in which the Social Credit System is a stressed field for the application of big data technology. See
‘Cujin dashuju fazhan xingdong wangyao’ (Action Outline for Big Data Development) (adopted by St. Council
and effective on Aug. 31, 2015) (‘Big Data Outline’ hereafter).
356 JCL 12:2
 yongxi chen and anne sy cheung

used by the authorities and business entities alike for a variety of purposes broadly related
to ‘encouraging trustworthiness and punishing untrustworthiness’.5
Whilst the use of big data analytics in the context of credit scoring and the rating
of individuals is not unique to China, in other jurisdictions it is usually confined to the
financial arena and regulated by law.6 What differentiates China is the scale of the data
collected, the scope of its use and, particularly important for the purposes of this article,
the apparent lack of a comprehensive legal system to protect personal data. Despite the
introduction of the Cyber Security Law in 2016 in relation to online data,7 the extension
of civil law protection to consumer data in 2013, and the criminalisation of the unlawful
gathering, receipt and sale of personal data in 2009, personal data as a general subject has
yet to be clearly defined and effectively protected under Chinese law.8 The rights that data
subjects are entitled to under a personal data protection regime are rarely mentioned in
China and are, at best, provided for under scattered sector-specific laws.9
Given the inadequate protection afforded to personal data in China, the country is
an ideal social laboratory for big data experimentation, data intelligence and mass
surveillance. Individuals risk being reduced to transparent selves before the state in this
uneven battle.10 They are uncertain about what contributes to their social credit scores,
how those scores are combined with the state system, and how their data is interpreted
and used. In short, the big data-driven SCS is confronting Chinese citizens with major
challenges to their privacy and personal data.
Although the State Council’s Planning Outline for the Construction of the Social
Credit System (‘SCS Outline’ hereafter) sketches out an ambitious blueprint, it is the pilot
legislation implemented at the local level since 2014 that has institutionalised the collection
and use of social credit-related data. To analyse China’s emerging SCS under existing

5
 ‘Guowuyuan guanyu jianli wanshan shouxin lianhe jili he shixin lianhe chengjie zhidu jiakuai tuijin
shehui chengxin jianshe de zhidao yijian’ (Guidelines of the State Council on Establishing and Improving the
System of Joint Rewarding for Trustworthiness and Joint Punishment for Untrustworthiness and Accelerating
the Construction of Trustworthiness in the Society) (issued by the State Council on May 30, 2016). See also
‘Guanyu yinfa dui shixin beizhixingren shishi lianhe chengjie de hezuo beiwanglu de tongzhi’ (Notice of the
National Development and Reform Commission, the Supreme People’s Court, the People’s Bank of China,
and Other Departments on Issuing the Memorandum of Understanding on Imposing Joint Punishments on
Untrustworthy Persons Subject to Judicial Enforcement) (issued on Jan. 20, 2016).
6
 See for example the case of the US and the EU: US Federal Trade Commission (2016), Big Data: A Tool for
Inclusion or Exclusion? Understanding the Issues; US White House (2016) , Big Data: A Report on Algorithmic Systems,
Opportunity and Civil Rights (2016). Article 4 of the EU General Data Protection Regulation (2018) regulates the
use of automated processing of personal data for profiling.
7
 ‘Wangluo Anquanfa’ (Cyber Security Law) (adopted by the National People’s Congress, November 7, 2016,
effective June 1, 2017).
8
 Article 253, Criminal Law (Xingfa) (adopted by the National People’s Congress on July 1, 1979, amended
March 14, 1997, effective July 1, 1997), as amended by the Amendment to the Criminal Law (VII) (Xingfa
xiuzhengan (qi)) (adopted by the Standing Committee of the National People’s Congress and effective on
February 28, 2009). Art. 29, Consumer Rights and Interests Protection Law (Xiao feizhe quanyi baohufa)
(promulgated on October 31, 1993, amended October 15, 2013, effective March 15, 2014). Neither of the laws
defines personal data.
9
 The personal data principles in the OECD guideline. OECD (2013) ‘OECD Guidelines on the Protection
of Privacy and Transborder Flows of Personal Data’, available at: <http://www.oecd.org/sti/ieconomy/
oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm#theproblems>.
10
 Brin D (1999) The Transparent Society: Will Technology Force Us to Choose Between Privacy And Freedom? Basic
Books. Brin mentions in his book that technology will bring towards a transparent society. Here we argue that
only the powerless individuals have become transparent but the state and commercial conglomerates have
remained opaque.
JCL 12:2 357
The Transparent Self under Big Data Profiling

international legal principles concerning personal data protection,11 this article identifies
and compares typical examples of relevant legislation at the local level and discusses their
implications for personal data protection. It argues that existing legislation and proposed
regulations require substantial revisions to mitigate the impact of the SCS on data privacy
and other interests critical to individual citizens.
The article begins by mapping out the background to the construction of China’s
big data social laboratory and the SCS. The next section examines the system’s social
management aim and comprehensive sanction system, as well as its nature as a
collaborative project between the authorities and the business sector. The section which
follows then summarises the legislative history and evolving concept of social credit
and analyses the nature of individuals’ rights to personal data protection under China’s
uncoordinated legal framework. The article then reviews local social credit legislation with
reference to the three cardinal principles of personal data protection most closely related
to data subjects’ control over the processing of their data: (1) the data collection principle,12
(2) the data usage principle,13 and (3) data subjects’ right to access and correct their own
data.14 The final section concludes that although local legislation provides nominal rights
of access to, and a few restrictions on, the collection and use of data, it has largely failed
to secure meaningful control over personal data for individuals. These legislative defects
relate to the very purpose of the SCS and to extra-legal restrictions inherited from the pre-
reform party-state regime. As the term ‘personal information’ is used in Chinese legislative
enactments and policy documents, ‘data’ and ‘information’ are used interchangeably
throughout the article.

THE UNFOLDING SOCIAL CREDIT SYSTEM

The stated vision of the SCS rolled out in 2014 is to foster trustworthiness in society,
enhance market efficiency, strengthen social governance and build a harmonious society
within the socialist state.15 Whilst that may sound like CCP rhetoric, the distinctive, and
most controversial, feature of the SCS is its rating of the trustworthiness of each and every
business entity and citizen. According to the SCS Outline, the authorities may use financial,
law enforcement, and other data to evaluate all enterprises and citizens and hold them
accountable for any misbehaviour.16 The goal is to build a comprehensive, nationwide
platform aggregating all related data by 2020. Accordingly, every citizen’s and business
entity’s scores in the political-administrative, commercial, social and judicial arenas will
be compiled.17

11
 ‘OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data’ supra note 9.
12
 OECD Guidelines, the Collection Limitation Principle stipulates that ‘the collection of personal data should
be by lawful and fair means and, where appropriate, with the knowledge or consent of the data subjects.’
13
 OECD Guideline, the Use Limitation Principle stipulates that ‘personal data should not be disclosed, made
available or otherwise used for purposes other than those specified [at the time of collection] except with the
consent of the data subject; or by the authority of law.’
14
 This is governed under the OECD Guidelines, the Individual Participation Principle.
15
 SCS Outline, supra note 3, Introduction.
16
 Ibid, at Parts I & II; see also Florcruz M, ‘China To Use Big Data To Rate Citizens In New ‘Social Credit
System’ International Business Times, April 28, 2015, available at: <http://www.ibtimes.com/china-use-big-data-
rate-citizens-new-social-credit-system-1898711>.
17
 SCS Outline, Introduction, para. 3.
358 JCL 12:2
 yongxi chen and anne sy cheung

The idea of ‘social credit’ was originally introduced in the early 2000s to steer
economic reforms that increase the financial creditworthiness (xinyong) of businesses
and individuals.18 It gradually expanded to encompass their integrity or trustworthiness
(chengxin) with respect to fulfilling contractual and legal commitments.19 Since 2011, CCP
directives and central government policies have used ‘social credit’ as a comprehensive
concept that is closely related to both market regulation and social governance.20 In addition,
governments at the local level have harboured the idea of building a multidimensional
social credit system to restore trust in society.21 In 2010, Suining County in Jiangsu Province
(north of Shanghai) launched a pilot programme that awarded points for good behaviour
and deducted points for bad behaviour such as traffic violations and illegally petitioning
the higher authorities for help.22 Rewards included the fast-tracking of promotions at
work or of public housing applications. Although the programme was heavily criticised,23
it provided an early glimpse of a social scoring system. Another attempt at a social credit
system was made by the Shanghai municipal government, which published a catalogue of
more than 1200 items that would be awarded points for entry into a credit system.24 About
1000 of the items related to business entities, with the remainder concerning individual
citizens. In 2016, the Shanghai government suggested that filial piety be entered into the
scoring system, assessed, for example, by the frequency with which an individual visited
his or her parents and by whether an individual’s parents had enough food.25 Regardless of
the controversy surrounding such suggestions, more than 35 local governments across the
country had joined the SCS by 2016, gathering digital records on the social and financial
behaviour of their citizens.26 Two outstanding questions remain: Where does all of this
data come from, and what happens to those with a low social credit score?

18
 For the evolution of the understanding of social credit in national policies, see Liu Xiaoyuan et al (2016)
Woguo shehui xinyong tixi jianshe yanjiu (On Constructing the Social Credit System in China) Zhishi chanquan
chubanshe at 85-91. For an account of the historical development of social credit system in national policies
from 2003 to 2011, see Liu Y et al (2014) ‘An Overview of Big Data Industry in China’ (December) China
Communications 2, at 2.
19
 See Lei Yanfeng (2014) ‘Chaoyue fazhi: shehui chengxin tixi de guize zhili’ (Beyond the Rule of Law:
Rule-based Regulation under the Social Trustworthiness System) (4) Zhongnan Daxue Xuebao (Shehui Kexue
Ban) (Journal of Central South University [Social Science Edition]) 65, at 65-72. Lei and other scholars object
confounding the ‘social credit system’ (understood by them as essentially a financial credit system) with the
‘social trustworthiness system’ (shehui chengxin tixi). Nevertheless, ‘social credit system’ is now predominantly
used in both official and academic discourses to denote the comprehensive networked system of behaviour
rating and responsibility placing.
20
 Liu et al, supra note 18, at 88.
21
 Ibid, at 4.
22
 ‘Creating a Digital Totalitarian State’ The Economist, December 17, 2016, at 20.
23
 Ibid. According to the Economist, it was criticized by China Youth Daily and Beijing Times.
24
 ‘Shanghai yanfa xinyong fenzhu jingzhun shizheng’ (R&D on Credit Scoring Facilitates Accurate
Governance in Shanghai) Wenhui News, August 4, 2016, 3. See also Creemers R et al., ‘What Could China’s
‘Social Credit System’ Mean for Its Citizens?’ Foreign Policy, August 15, 2016, available at: <http://foreignpolicy.
com/2016/08/15/what-could-chinas-social-credit-system-mean-for-its-citizens/>.
25
 Chin J, ‘China’s New Tool for Social Control: A Credit Rating for Everything’ Wall Street Journal, November
28, 2016, available at: <http://www.wsj.com/articles/chinas-new-tool-for-social-control-a-credit-rating-for-
everything-1480351590>.
26
 Ibid
JCL 12:2 359
The Transparent Self under Big Data Profiling

Big Data: Where Does all the Data Come from?

Although government officials can easily retrieve information concerning business entities
and individuals from the courts and state departments, that information is insufficient
to generate a comprehensive profile of individuals. To do so, the government has to
capture their nonfinancial activities. Eyeing the capture of more extensive Internet data
that can reveal a person’s social media use, online shopping activity and everyday habits,
the central authorities are keen to utilise big data technology. Big data sources include
administrative, transactional, sensor, tracking, behavioural and opinion data.27 In 2016,
as part of the 13th five-year plan (2016-2020), the CCP announced that the SCS would go
hand in hand with a series of social and economic initiatives utilising big data technology,
including a national big data strategy focusing on the opening up and sharing of data
resources.28 In other words, the SCS is intertwined with both government and society-
generated big data applications, both online and offline. As noted, China provides an
ideal big data and social laboratory. It has 1.3 billion citizens, and had 731 million Internet
users by the end of June 2016. The country’s internet penetration rate was 53.2%.29 Equally
impressive is China’s more than 695 million mobile phone users, nearly a quarter of whom
use their mobile phones only to go online.30 Furthermore, the authorities are armed with
a real name registration system that records the users of telecommunications services in
China,31 and such data can be easily and accurately matched with users’ identities.

Partnerships

The authorities are partnering with various Internet titans and private entities to unlock the
power of big data. As early as 2014, China boasted more than 50% of the world’s big data
enterprises32 specialising in the collection, aggregation, analysis and mining of data, the
building of cross-platform infrastructure, and the design of various big data applications.33
In 2013, China’s National Bureau of Statistics signed a series of agreements with 11 major
Chinese companies for long-term collaboration on the use of big data,34 including Baidu,

27
 Administrative data include electronic medical, insurance, bank and school records; transactional
data include credit card and online transactions; sensor data include satellite imaging, climate sensors and
air pollution measurement devices; tracking devices include GPS and tracking data from mobile phones;
behavioural data include online searches; and opinion data include comments on social media. Cheng JHW,
‘Big Data for Development in China’ (UNDP, November 2014) at 3, available at: <http://www.cn.undp.org/
content/dam/china/docs/Publications/UNDP%20Working%20Paper_Big%20Data%20for%20Development%20
in%20China_Nov%202014.pdf>.
28
 ‘Zhonghua renmin gongheguo guomin jingji he shehui fazhan di shisan ge wu nian guihua gangyao’
(Outline of the 13th Five-Year Plan for the National Economic and Social Development of the PRC) (approved
by National People’s Congress, March 16, 2016).
29
 China Internet Network Information Center, ‘Di 39 ci zhongguo hulianwang fazhan zhuangkuang tongji’
(No. 39 Statistical Report on China Internet Network Development), January 2017, 33.
30
 China Internet Network Information Center, ‘Di 38 ci zhongguo hulianwang fazhuan zhuangkuang tongji
(No. 38 Statistical Report on China Internet Network Development), August 2016, 12.
31
 ‘Quanguo renmin daibiao dahui changwu weiyuanhui guanyu jiaqiang wangluo xinxi baohu de jueding’
(National People’s Congress Standing Committee Decision Concerning Strengthening Network Information
Protection) (adopted by Standing Committee National People’s Congress on 28 December 2012, effective 28
December 2012).
32
 Liu et al., supra note 18. at 4.
33
 Ibid
34
 National Bureau of Statistics of China, ‘Big Data and Official Statistics in China: Working Paper’ (United
360 JCL 12:2
 yongxi chen and anne sy cheung

Alibaba and China Unicom.35 The country’s three Internet giants have all tapped into the
big data market. Baidu, the Chinese equivalent of Google’s search engine, for example,
operates its own Big Data Lab in Beijing,36 which has developed predictive programmes
for disease monitoring.37 Alibaba, China’s largest e-commerce company, makes use of
a wealth of financial information gleaned from its Taobao and Alipay programmes to
determine which businesses are worthy of loans.38 Tencent, the tech mobile giant that runs
WeChat, is using social data to identify the trendsetters within social groups to target them
in marketing so as to influence the spending habits of the other members of those groups.39
What is potentially worrying is that these companies share data with the government for
the SCS.40
China’s central bank once considered issuing licences to such companies as Tencent,
Alibaba and Ping An Insurance to develop experimental credit ratings for use in assessing
applicants for small business loans or consumer credit.41 In determining whether applicants
are creditworthy, these companies rely on such non-traditional indicators as Internet
search histories, mobile phone purchases and social media activity. By 2015, Tencent alone
had rated the creditworthiness of 50 million Chinese consumers using social networking
and computer gaming data.42
Beyond the lending and borrowing arena, Alibaba introduced Sesame Credit in 2015
as an internal rating system based on the spending habits of Alipay users.43 Credit scores
range from 350 to 950 points, with users scoring above 600 considered to be creditworthy.44
What is worrying is that individuals’ credit scores are based not only on their own lending
and spending habits but also on what the money in question is going towards and also
on the lending and spending habits of their friends.45 Although it is unclear whether the
Sesame Credit scoring system accurately predicts credit defaults, the system’s impact is
clearly being felt in the daily lives of Chinese citizens. For example, individuals’ Sesame
score affects the level of screening they are subjected to at airport security,46 the insurance

Nations Economic and Social Commission for Asia and the Pacific, February 2014), available at: <http://www.
unescap.org/sites/default/files/1-Big%20Data%20and%20Official%20Statistics%20in%20China.pdf>.
35
 Cheng ‘Big Data for Development in China’ supra note 27 at 9.
36
 Swanson A, ‘The Power of Big Data in China’ (CKGSB Knowledge, July 26, 2015) available at: <http://
knowledge.ckgsb.edu.cn/2015/07/28/technology/the-power-of-big-data-in-china/>.
37
 Ibid
38
 Ibid
39
 Ibid
40
 See SCS Outline. For the public concerns raised by this system, see Clover ‘China: When Big Data Meets Big
Brother’ supra note 3.
41
 ‘Yanghang yaoqiu ba jia jigou zuohao geren zhengxin yewu zhunbei gongzuo’ (The Central Bank Instructs
Eight Entities to Prepare for the Service of Credit Investigation Pertaining to Individuals) (Sina Finance, January
5, 2015), available at: <http://finance.sina.com.cn/money/bank/bank_hydt/20150105/172921227406.shtml>. Two
years later, the central bank nevertheless decided not to issue the licenses in view of the abuse in some applicants’
collection and use of personal credit information among other regulatory concerns. See ‘Geren zhengxin buke
xianluanhouzhi’ (Credit Investigations Pertaining to Individuals Should be Subject to Regulation Before Sliding
into Chaos) Caixin Weekly, May 1, 2017.
42
 Clover C, ‘China P2P Lender Banks on Social Media Usage’ Financial Times, August 30, 2015, available at:
<https://www.ft.com/content/673d9608-4d83-11e5-b558-8a9722977189>.
43
 Florcruz, supra note 16.
44
 Ibid
45
 Clover ‘China: When Big Data Meets Big Brother’ supra note 3.
46
 Since September 2015, Beijing International Airport has offered fast security screening to Sesame Credit
customers with credit scores of 750 or above. Luxembourg and Singapore airport are believed to soon follow
suit. Ibid
JCL 12:2 361
The Transparent Self under Big Data Profiling

premium they have to pay,47 their chances of adopting a pet from an animal shelter48
and even their placement on online dating services.49 Although some citizens enjoy the
convenience offered by the Sesame Credit scoring system,50 the other side of the coin is
that many can ill afford to remain outside the system regardless of what they think of it.
Furthermore, benefits and convenience to some mean sanctions and exclusion for others.

Sanctions

Despite the extensive reach of the Sesame scoring system, it is voluntary in nature.
The national SCS, in contrast, is mandatory, and the possible sanctions against the
untrustworthy are wide-ranging.51 For example, a low social credit rating can affect one’s
ability to travel, with reports suggesting that judgment defaulters (i.e. those defying a
court order) had been blocked from buying an airline ticket on approximately 5 million
occasions as of August 2016.52 This type of sanction is commonly used by the courts against
judgment defaulters, with such individuals also stopped from travelling on high-speed
trains.53 There are also reputational sanctions, with information on untrustworthy persons
or businesses disclosed on the national Credit China website54 or similar provincial
websites and on major news websites.55 Furthermore, a poor SCS score can also diminish
one’s employment prospects, with those deemed untrustworthy being barred from
the civil service and employment in public institutions.56 Even worse, not only are the
untrustworthy themselves punished, but the education of their children is affected, as the
latter are disqualified from studying in private schools.57
At the time of writing, both the official SCS and private credit scoring systems such
as the aforementioned Sesame system are only just beginning to flex their muscles. Many
pieces of information on the SCS, which seems to have been hatched by a dystopian
imagination, remain missing from the literature. Despite publication of the SCS Outline
and its implementing documents, a great deal of obscurity surrounds the issues of the
types of data likely to enter the system and the possible sanctions it entails. In addition,
the extent of the data sharing between the state and private sector remains unknown,58
and it is also unclear how data is being used, whether any algorithm is involved in ratings

47
 Ibid
48
 Ibid
49
 Hatton C, ‘China ‘Social Credit’: Beijing Sets up Huge System’ BBC News, October 26, 2015, available at:
<http://www.bbc.com/news/world-asia-china-34592186>.
50
 Ibid
51
 See ‘Memorandum of Understanding on Imposing Joint Punishments’ supra note 5.
52
 ‘Creating a Digital Totalitarian State’ supra note 22 at 22.
53
 Ibid, at para. 19.
54
 Supra note 51, para. 15. Also see the official portal of ‘Credit China’, available at: <http://www.creditchina.
gov.cn>.
55
 Ibid, at para. 16.
56
 Ibid, at para. 17.
57
 Ibid, at para. 22.
58
 In 2016, Jack Ma, the co-founder and CEO of Alibaba Group Holding LTD encouraged 1.5 million political
and legal officials to embrace internet data in their fight against crime and terrorism in a public speech. This
raises concerns about whether data held by Internet companies would be shared easily with the authorities.
Yang J and Abkowitz A (2016) ‘Alibaba’s Jack Ma Supports Internet Data Use in Fighting Crime’ Wall Street
Journal, October 25, 2016, available at: <http://www.wsj.com/articles/alibabas-jack-ma-supports-internet-data-
use-in-fighting-crime-1477314916>.
362 JCL 12:2
 yongxi chen and anne sy cheung

and what can be done about inaccurate data. Now is thus an opportune time to survey the
pilot legislation emerging in various regions of the country to make sense of the national
framework. The adequacy of such legislation for protecting personal data privacy is an
important starting point for an inquiry into ways of addressing the various challenges the
SCS poses to the fundamental interests of individuals.

EVOLVING LEGISLATION ON CREDIT DATA

Corresponding to the changing concept of social credit, legislation regulating social credit
data has evolved along with, and sometimes despite, the uncoordinated legal framework
governing the processing of various kinds of personal data held by various authorities.
The distinction between public law and private law bears heavily on China’s personal data
protection regime. That distinction is of even greater importance under the SCS, which
encourages the flow of big data on individuals amongst public authorities and private
entities.
Before the introduction of the comprehensive SCS, the central authorities promoted
a credit investigation system (zheng xin siting) as a pioneering project to improve the
credit environment of the market and encourage sincerity amongst business entities and
individuals.59 Individuals’ rights with respect to the collection and processing of their
own financial credit information were gradually recognised. Those rights were provided
primarily under the administrative rules issued by the People’s Bank of China in 200560 and
subsequently under the 2013 Regulations on the Administration of The Credit Investigation
Industry (RACII).61 The regulatory approach within RACII is inspired to some degree by
the US Fair Credit Reporting Act.62 Insofar as the credit investigation institutions and
entities providing credit data (e.g. commercial banks) are both private bodies, individuals
enjoy civil rights with regard to the protection of personal credit information. Such rights
include, among others, consent must be sought of the use of one’s credit records and
individuals have a right to access and rectify those records.63
However, with the central authorities’ moves to construct the SCS that we see today,
more complicated issues have arisen over the nature and scope of the rights pertaining to
personal credit records. As specified in the SCS Outline, government agencies collect—
and put to various uses—‘social credit information’, and such information extends
beyond the credit records used in economic transactions to encompass a great variety
of records pertaining to compliance with laws, administrative norms, moral standards

59
 Although the State Council put forward the idea of social credit system in 2007, the policy thrust at that time
was to build a system of financial credit investigation. See ‘Guowuyuan bangongting guanyu shehui xinyong
tixi jianshe de ruogan yijian’ (Several Opinions on the Construction of the Social Credit System) (issued by the
General Office of State Council on March 23, 2007, Part I). Cf. SCS Outline of 2014, Part I, Sections (1) and (2).
60
 The most comprehensive rule is the Interim Measures on the ‘geren xinyong xinxi jichu shujuku guanli
zanxing banfa’ (Basic Databases of Personal Credit Information) (issued by the People’s Central Bank of China
on August 18, 2005, effective October 1, 2005).
61
 ‘Chenxinye guanli tiaoli’ (Regulations on the Administration of Credit Investigation Industry). This
regulation uses the term ‘personal credit information’ to refer to personal information on loans and transactions
and other information that may reflect an individual’s credit situation.
62
 See Su Zhiwei et al. (2014) Shijie zhuyao guojia he diqu zhengxin tixi fazhan moshi yu shijian: dui zhong zhengxin
tixi jianshe de fansi (Development Model and Practice of the Credit Investigation Systems in Major Jurisdictions:
Reflections on Building the Credit Investigation System in China) Jingji kexue chubanshe.
63
 Arts 17 & 25, RACII.
JCL 12:2 363
The Transparent Self under Big Data Profiling

and contractual terms. The rights of individuals concerning this broader range of credit
data held by government agencies belong to the realm of public law, and their legal basis
must be sought from laws other than the aforementioned RACII. The legislative and
administrative enactments concerning social credit data resulting from local pilot schemes
and the 2007 Regulations on Open Government Information (ROGI) have become the most
important sources of law on information rights.
Furthermore, a number of regions began experimenting with the construction of social
credit systems in the late 2000s, and introduced pioneering local legislation on the collection
and use of social credit data, including both local regulations and administrative rules.64
Such regulations and rules generally use the term ‘public credit information’ (gonggong
xinyong xinxi, PCI) to refer to information indicating an individual’s trustworthiness that
is generated or collected by the authorities in the course of exercising their public powers
(i.e. government agencies, judicial authorities, organs that exercise administrative power
under the authorisation of laws and regulations) or by public service providers. PCI is
thus distinct from financial credit information, which is processed by credit investigation
bodies, and is in essence equivalent to ‘social credit information’ referred to in the SCS
Outline. This article uses PCI to refer to credit information regulated by local enactments.
After promulgation of the national SCS Outline, local legislation accelerated in the
developed coastal cities of China. Most focuses on elaborating the categories of PCI subject
to sharing amongst government agencies and the purposes for which such information
can be used, as well as the rights of ‘information subjects’ to processed information.65 The
following sections of the article review typical examples of local legislation enacted since
2014.

COLLECTION OF CREDIT DATA

Local legislation invariably allows the extensive collection and use of PCI, a situation that
derives from the holistic approach adopted by the SCS to curtail rampant fraud in economic
transactions and evasions of basic social obligations. This holistic approach focuses on

64
 Local regulations made by People’s Congresses at the provincial or prefectural level and capable of creating
actionable rights. Administrative rules are enactments made by provincial and prefectural governments that
have general binding effect. See for example ‘Shanxisheng gonggong xinyong xinxi tiaoli’ (Shaanxi Provincial
Regulations on Public Credit Information) (promulgated by Shaanxi Provincial People’s Congress on November
1, 2011). Administrative rule is a source of law but is not capable of creating actionable rights. See for example
‘Hangzhoushi gonggong xinyong xinxi guiji he shiyong zanxing banfa’ (Interim Measures of Hangzhou City
on the Collection and Use of Public Credit Information) (issued by the Hangzhou City Government on Oct. 1,
2009).
65
 Typical local regulations include ‘Wuxishi gonggong xinyong xinxi tiaoli’ (Regulations of Wuxi City
on Public Credit Information) (promulgated by Wuxi City People’s Congress on December 4, 2015) (Wuxi
Regulations hereafter); ‘Hubeisheng shehui xinyong xinxi guanli tiaoli’ (Hubei Provincial Social Credit
Information Regulations) (promulgated by Hubei Provincial People’s Congress on May 30, 2017, effective July
1, 2017) (Hubei Regulations hereafter).
Typical local administrative rules include: ‘Shanghaishi gonggong xinyong xinxi guiji he shiyong’ (Shanghai
Municipal Provisions on the Collection and Use of Public Credit Information) (issued by Shanghai Municipal
Government on December 30, 2015) (Shanghai Rules hereafter); ‘Wuhanshi gonggong xinyong xinxi guanli
banfa’ (Provisions of Wuhan City on Public Credit Information) (issued by Wuhan City Government on July 20,
2016) (Wuhan Rules hereafter); Hangzhoushi gonggong xinyong xinxi guanli banfa’ (Provisions of Hangzhou
City on Public Credit Information) (issued by Hangzhou City Government on August 28, 2016) (Hangzhou Rules
hereafter).
364 JCL 12:2
 yongxi chen and anne sy cheung

introducing incentive schemes for ‘faith keeping’ across government departments,

industries and societal sectors. The most prominent such scheme is a joint punishment/
reward mechanism that amplifies the consequences of particular behaviour beyond the
original context into other spheres of the wrongdoer’s life, thereby markedly raising
the cost of misbehaviour. The system relies not only on a combination of mechanisms
implemented by state agencies, market participants, and individuals, but also on the
smooth flow of credit records, i.e. on the sharing of knowledge about the behaviour
concerned amongst those agencies/participants/individuals. Although the collection and
use of credit records serve the general purpose of credit-based decision-making, that
purpose is highly malleable and may differ from the purposes for which those records
were originally generated by a particular government department or collected from a
particular entity of an industry or a sector. As revealed by the analysis below, purpose
limitation as an essential component of data protection is largely ineffective under the
policy documents and local legislation on social credit.
SCS operation begins with the collection of social credit records by the agencies in charge
of social credit (‘SC authorities’ hereafter). The major form of collection is transferring
the records that are generated by various responsible agencies to dedicated information
systems at given levels (‘PCI platforms’ hereafter). The scope and categories of the collected
records, a considerable portion of which is personal information,66 are determined by local
governments rather than local legislatures, primarily by SC authorities.67 Following the
RACII approach, local PCI legislation forbids the collection of certain sensitive personal
information, including genetic data, blood types, fingerprints, and information on diseases
and religious beliefs.68 Unlike the collection of financial credit information under RACII,
however, government agencies do not need to obtain the consent of data subjects to collect
PCI, nor do they need to satisfy any purpose limitation rule.69 In addition, most local
legislation does not vest individuals with the right to be notified about the transfer of
discrediting records from agencies to PCI platforms.70
Under current local legislation, PCI generally consists of two major categories: (1)
identity information on individuals, e.g. ID numbers or social security registration, and
(2) credit records generated or acquired by government agencies in the exercise of their
administrative powers or in the course of providing public services.71 Credit records
encompass both positive assessments received by an individual (e.g. recognition and

66
 Another part of information is records concerning enterprises which are regulated by a special system of
enterprise.
67
 The reform and development department, one of the most powerful government branches, is usually
designated as the SC authority at local levels. See Wuxi Regulations, Wuhan Rules, and Hangzhou Rules. Hubei
Regulations require the provincial government to approve the collection scope.
68
 Cf. Art. 14, RACII.
69
 Article 13 of the RACII stipulate that collection of personal information should obtain the consent of the
subject of the information, unless for information which should be disclosed pursuant to or administrative
regulations.
70
 The only exception is the most recent Hubei Regulations. See Art. 23. The same article provides nevertheless
that laws and other regulations can mandate the transfer without notifying the information subjects. In contrast,
Article 15 of the RACII stipulates that provision of bad [financial] credit information about an individual to a
credit investigation institution should be conducted only after the individual concerned is informed, except for
information that is disclosed pursuant to laws and regulations.
71
 These two categories are common to all local legislation and normative documents on SCI reviewed in this
article.
JCL 12:2 365
The Transparent Self under Big Data Profiling

rewards) and ‘discrediting information’, e.g. information on the violation of or failure

to comply with legal, contractual or even ethical requirements. The common types of
misbehaviour logged in discrediting information correspond to those prescribed under
the SCS Outline, including tax evasion, the non-payment of administrative fees, failure
to perform the obligations prescribed in court judgments, being subject to administrative
penalties or coercive measures, being held liable for accidents that affect public, food or
work safety or environmental protection, being prohibited by the regulatory authorities
from entering certain industries, and fraud in business transactions, state-held exams
or social security applications. Disruptive behaviour while using public services is also
included. Such behaviour common in China includes ticket evasion on public transport
and disturbances in hospitals by patients dissatisfied with medical treatment.
In addition to agency-submitted records, the SC authorities in some regions are
allowed to gather records from non-state credit service providers, industry associations
or the media.72 They may also receive discrediting information on individuals from
members of the public after confirmation with both the individuals concerned and the
agency with jurisdiction over the activity in question. The SC authorities may then record
that information in the PCI platforms.73 Compared with the credit records generated by
government agencies following statutory procedures, those generated by other parties
may be of questionable reliability. Possibly because of this concern, the most recent PCI
legislation, Hubei Provincial Social Credit Information, imposes an obligation to seek
consent for the collection of credit records from non-state organisations,74 although other
legislation lacks any such obligation. The earlier experience of Shanghai demonstrated
that the mere mention of a consent obligation in legislation fails to ensure that consent is
indeed sought before the government extends PCI collection to any records it sees fit.75

USE OF CREDIT DATA

Breaking the geographical and jurisdictional barriers to PCI use is the major rationale
for the SCS. The integration of PCI into unified platforms enables its exploitation by
various parties, as called for by the SCS Outline. In addition, as a government information
resource, massive PCI datasets in China are concurrently governed by the Action Outline
for Big Data Development (‘Big Data Outline’ hereafter), which actively promotes the
cross-departmental sharing of government data to enhance governance capacity and
opens data for social applications to facilitate a data-driven economy.76 Based on the two

72
 Art. 16, Wuxi Regulations; Art. 15, Hubei Regulations.
73
 Art. 30, Hangzhou Rules.
74
 Art. 17, Hubei Regulations.
75
 Under an earlier local pilot scheme which combined financial credit information and PCI, Shanghai
government had once stressed that collection of PCI generated by entities other than public authorities should
be based on consent. See Art. 7, ‘Shanghaishi geren xinyong zhengxin guanli shixing banfa’ (Shanghai Interim
Provisions on the Investigation of Personal Credit) (issued by the Shanghai Municipal Government on December
28, 2003, effective February 1, 2004). However, until the interim provisions were substituted for by the Shanghai
Rules 2015, the Shanghai government had included into the PCI platform a great variety of non-government
information without consent of the data subjects, such as vehicle renting records, overdue notices on books
borrowed from municipal libraries, and payment logs for electricity. See ‘Shanghai mairu “shehui xinyong
guanli” shidai’ (Shanghai Enters the Era of ‘Social Credit Management’) Liberation Daily, August 17, 2008; ‘Bei
wudu de xinyong jilu’ (Credit Records Being Misunderstood) Jingshen wenming bao, October 10, 2014, 1.
76
 See Big Data Outline, supra note 4.
366 JCL 12:2
 yongxi chen and anne sy cheung

national policy frameworks, PCI users can be divided into three groups: government
agencies, whose access to PCI is via inter-agency sharing; non-state entities providing
credit services, whose access is via authorisation; and businesses and individuals, whose
access is primarily via the SC authorities’ proactive publication of PCI.

Inter-Agency Sharing

Under local legislation, government agencies can access the credit records stored in local
PCI platforms in the course of discharging their responsibilities.77 The Interim Measures
on the Sharing of Government Information Resources, a policy document implementing
the Big Data Outline, explicitly mandates the sharing of credit information within the
overall government apparatus.78 The recent guidelines issued by the General Office of
the State Council further emphasise the necessity of unified standards for PCI collection,
categorisation, and sharing and of enhancing the interconnection and interoperability
of PCI platforms across the country.79 In addition, a comprehensive credit information
sharing system is under construction on the basis of the national data exchange platform,
which by December 2016 had aggregated PCI submitted by 37 departments of the State
Council and government agencies from 31 provincial-level regions.80 It is expected that in
the near future most government agencies will be allowed to access all PCI generated or
acquired by their counterparts across the country.
Furthermore, government agencies are required to request and use PCI under
prescribed circumstances, most of which relate to the joint punishment or reward
scheme. The scheme mainly covers the exercise of regulatory powers (such as licensing
and punishment), government procurement, the granting of financial subsidies and the
management of civil servants.81 The scope of ‘mandatory PCI use’ is determined by local
governments or their agencies.82 Those agencies are thus allowed, and even encouraged,
to perform the automatic matching of the personal information contained in various PCI
databases for any purpose related to the exercise of their administrative powers.

77
 See for example Art.18, Hangzhou Rules; Art. 21, para. 1, Hubei Regulations.
78
 Art. 10(3), ‘Zhengwu xinxi ziyuan gongxiang guanli zanxing banfa’ (Interim Measures on the Sharing
of Government Information Resources) (issued by State Council on September 5, 2016). According to the
Measures, information resources generated or collected by government agencies in the course of discharging
their responsibilities should generally be subject to sharing with other agencies. Exempting information from
sharing is only warranted by ‘laws, administrative regulations or policies made by the Central Committee of the
Chinese Communist Party or the State Council.’(Art. 10 (1)). In particular, ‘information resources concerning the
same theme of economic and social development and generated by various agencies together’ should be shared
inter-departmentally through the sharing platforms at different levels. Credit information is a highlighted
example of such resources. (Art.10 (3)).
79
 Part V, Section 1, ‘Guowuyuan Bangongting Guanyu jiaqiang geren chengxin tixi jianshe de zhidao yijian’
(Guiding Opinions of the General Office of State Council on Strengthening the Construction of the System for
Individual Integrity) (issued on December 23, 2016) (hereinafter Guidelines on Individual Integrity).
80
 Yuandian Credit, ‘2016 zhongguo shehui xinyong tixi quanjing baogao’ (Annual Report on China’s Social
Credit System Construction) (Yuandian Xinyong Wang, January 2017) at 7, available at: <http://yuandiancredit.
com/h-nd-1312-2_347.html>; ‘Wowei youguan fuzeren jiu “cujin shuju fazhan xingdong gangyao” da jizhe wen’
(Officials in the National Development and Reform Commission Receives Interview on The Action Outline for
Big Data Development) (The SDPC’s Website, September 2015), available at: <http://www.sdpc.gov.cn/zcfb/
jd/201509/t20150925_752279.html>; The Big Data Outline set the target of installing a unified data exchange
platform by 2018 to cover all government departments at the central level. See Part III, Section I(1) of the Outline.
81
 See for example Art. 18, Shanghai Rules; Art. 27, Wuxi Regulations; Art. 24, Hubei Regulations.
82
 Ibid
JCL 12:2 367
The Transparent Self under Big Data Profiling

As in the case of PCI collection, local legislation does not confer individuals with
the right to object to the inter-agency sharing of PCI, and neither does it provide any
mechanism for an agency sharing PCI to set limits on the purposes for which other agencies
can use that information, despite such limits being permitted in the Interim Measures on
the Sharing of Government Information Resources.83 However, in an attempt to inhibit PCI
abuses, some local legislation requires agencies and PCI platform operators to keep logs
of the collection, alteration, and deletion of PCI and access to such information,84 whilst
other such legislation instructs agencies to specify the procedures for authorising internal
personnel access to PCI.85

Use by Non-State Parties upon ‘Authorisation’

Compared with government agencies, non-state parties are subject to greater restrictions
on their access to PCI. All current local legislation provides a general rule specifying that
private parties should obtain authorisation from the individuals concerned before seeking
access to PCI on them that has not been published by the government.86 Although that
rule seemingly increases individuals’ degree of control over their PCI, its enforcement is
challenged by the government’s strong inclination to facilitate the access of credit service
providers.87
Local legislation notably stresses that SC authorities should encourage and support
credit service providers to access and use PCI in developing credit products,88 echoing
the provisions of both the SCS Outline89 and Big Data Outline.90 In some regions, SC
authorities are instructed to afford credit service providers bulk access to the records
held by PCI platforms if certain information security requirements are met.91 However,
concerns may be raised about whether those authorities sometimes discretionarily grant
access to providers that have not obtained the consent of all individuals concerned. A case

83
 Article 14 of the Interim Measures provide that ‘the user shall only use the information obtained from the
sharing platform for the performance of its functions according to the specified use purpose, [and] shall not
directly or indirectly use the information for any other purpose.’
84
 See for example Art. 29, Wuxi Regulations.
85
 See for example Art. 19, Shanghai Rules; Arts. 19 & 33, Hangzhou Rules.
86
 Art.16, Shanghai Rules; Art. 23, Wuxi Regulations; Art. 21, Hangzhou Rules (which further requires written
consent of information subjects); Art. 19, Hubei Regulations. The imposition of authorization by the subject of
credit information may be inspired by the similar requirements under the financial credit investigation. See
Art. 13, RACII.
87
 Credit service providers mainly refer to for-profit intermediary organizations that are engaged in credit
investigation, credit rating, credit consulting and other credit-related service. See Zhejiang Provincial Interim
Measures on Credit Service Organizations (issued by Zhejiang Provincial Commission for Development and
Reform on August 21, 2007).
88
 See Art. 25, Shanghai Rules; Art. 28, Wuxi Regulations; Art. 24, Wuhan Rules; Art. 20, Hangzhou Rules; Art.
25, Hubei Regulations.
89
 See SCS Outline, Part IV entitled ‘Accelerating the Construction and Application of Credit Information
System’.
90
 See Big Data Outline, Part III, Section 1.2 entitled ‘Steadily Advancing the Openness of Public Data
Resources’.
91
 Art. 20, para. 3, Shanghai Rules; Art.22, Hangzhou Rules; Art. 23, para. 3, Wuhan Rules.
It is noteworthy that no equivalent stipulation is available under the RACII whose approaches to the collection
and processing of financial credit information are followed by most local SCI legislation. Article 18 of the RACII
provides unequivocally that credit information holders should not allow access by the third parties which have
not obtained consent from information subjects, unless otherwise prescribed by the laws.
368 JCL 12:2
 yongxi chen and anne sy cheung

in point is the problematic operation of the aforementioned Sesame Credit scoring system
offered by a branch of Internet giant Alibaba, which operates China’s largest e-commerce
platform Taobao.92 Sesame Credit offers credit scoring for tens of millions of Taobao users
based on diverse sources, including the records held by such government PCI platforms as
those of Shanghai and Hangzhou.93 The company claims that credit scores will be available
to Taobao users who subscribe to Sesame Credit services and authorise the company to
access their personal credit information.94 However, personal credit information on every
Taobao user is likely to have been collected and processed before any such authorisation
has been granted, as Sesame Score is readily available to subscribers as soon as they
accept the service agreement.95 The so-called ‘retrospective authorisation’ obtained by the
company is by no means proper authorisation under the Shanghai Municipal Provisions
on the Collection and Use of Public Credit Information and Provisions of Hangzhou City
on Public Credit Information . The apparent failure to obtain consent from data subjects
in this case adversely affects the reliability of the whole system for PCI sharing between
the government and private market entities, particularly given the massive coverage of
Alibaba users and growing market influence of Sesame Credit.96
In addition, the outsourcing of PCI processing may also open the door for further
circumvention of the requirement to obtain consent from data subjects. In several regions,
including Shanghai and Shenzhen, it was non-state organisations that assumed the role of
collecting both financial credit information and PCI in the 2000s.97 Later, the non-financial
credit system has been separated from the financial credit investigation system and
integrated into government-owned PCI platforms. Platform operators that find themselves
short of technological capacity tend to entrust market-based organisations with PCI
processing and the provision of credit services to PCI users. For instance, the Shanghai SC
authority has commissioned a leading credit rating company to develop comprehensive
credit scores for 24 million residents based on their PCI. The scoring results are allegedly
the largest big data application in the field of social credit, and will likely constitute an
important component of the Shanghai government’s joint punishment scheme.98 Given
that the company is concurrently offering credit ratings and consulting services to local
consumers,99 there is a risk that the entrusted PCI may be exploited for the company’s
self-enrichment without the knowledge of the data subjects. Unfortunately, no current
legislation mentions the regulation of PCI outsourcing.

92
 See discussion in Part IB of this article.
93
 See Sesame Service Agreements as of December 25, 2015, available at: <https://xy.alipay.com/auth/
agreement.htm>.
94
 Ibid
95
 See ‘Zhima xinyong mo shitou guohe’ (Sesame Credit Crosses the River by Touching Stones) Caixin Weekly,
No.7, February 16, 2015.
96
 Sesame Credit is among the first eight credit service providers which are being considered by the Chinese
People’s Bank for granting license for financial credit investigation, which means that it can be an important
role player in combining nationwide the services on PCI and financial credit information. See ‘The Central Bank
Instructs Eight Entities to Prepare for the Service of Credit Investigation Pertaining to Individuals’, supra note
41.
97
 See Cao X, ‘Gonggong guanli shijiao xia de shanghai xinyong zhidu jianshe’ (Credit System Construction in
Shanghai: From the Perspective of Public Administration) (unpublished Master’s Dissertation of Shanghai Jiao
Tong University, 2010) at 26.
98
 ‘R&D on Credit Scoring Facilitates Accurate Governance in Shanghai’, supra note 24.
99
 See the company’s ‘Self-introduction’, available at: <http://www.foison-credit.com/foison-credit/columns?c
olumnId=6&pageSize=15>.
JCL 12:2 369
The Transparent Self under Big Data Profiling

Proactive Disclosure

Individuals’ control over PCI is further weakened by the government’s proactive

disclosure of selected records. Whilst the inter-agency sharing of PCI is aimed primarily
at enabling government-imposed joint punishments,100 the public disclosure of PCI serves
as a collaborative disciplinary tool exercised by business entities and individuals. The SCS
Outline and its implementing measures highlight the publication of records on ‘serious
discrediting behaviours’ (often labelled as blacklist items) to effectuate ‘social discipline’,
which places the record subjects under public criticism and moral pressure, as well as
‘market discipline’, which includes restrictive measures imposed by industry associations
and discriminative treatment by business operators.101 The Guidelines on Joint Rewarding
and Joint Punishment explicitly endorse the reuse of disclosed PCI by third parties,
encouraging the inclusion of such records in financial credit reports and their analysis in
commercial reputation rankings.102
Local PCI legislation regulates ‘open PCI’ differently. Some such legislation stipulates
that PCI concerning individuals is generally not publicly available,103 whereas some
permits the SC authorities to define the scope of PCI subject to proactive disclosure.104
The 2017 Hubei Regulations even provides that all PCI should be published unless laws
and regulations prescribe otherwise.105 These divergent approaches reflect the uncertain
attitudes amongst agencies towards government transparency.
Open PCI is governed primarily by the 2007 ROGI, which requires government
agencies to proactively disclose information that ‘involves the vital interests of citizens
or organizations’ or matters ‘that need to be extensively known or participated in by the
general public’.106 ROGI generally exempts information concerning privacy from disclosure,
but allows agencies to release such information if they consider that non-disclosure would
exert a major negative impact on the public interest.107 Great discretion is thus vested in
government agencies. Research shows that local agencies tend to deny activists’ access
to administrative penalty decisions despite the fact that the disclosure of anonymised
decisions would enable the public to monitor the exercise of administrative power.108 In
the SCS context, however, the central authorities have undergone a remarkable attitudinal
shift, actively mandating the publication of administrative penalty decisions that name the
individuals being penalised.109 That shift is associated with the SCS policy to expose what
is considered to be ‘serious discrediting behaviour’.

100
 Joint punishment of this kind is usually called ‘administrative/regulatory discipline’ in policy documents
on SCS.
101
 See Part V, Section 1, SCS Outline; Part VI, Sections 2 & 3, Guidelines on Individual Integrity.
102
 Points 11 through 13, 26, Guidelines on Joint Rewarding and Joint Punishment.
103
 Art. 24, Shaanxi Regulations; Art. 21, Wuxi Regulations; Art. 19, Wuhan Rules.
104
 Art. 16, Shanghai Rules; Art. 17, Hangzhou Rules.
105
 Art. 19, Hubei Regulations.
106
 Art. 9, ‘Zhengfu xinxi gongkai tiaoli’ (Regulations on Open Government Information) (promulgated by the
State Council on April 5, 2007, effective May 1, 2008).
107
 Art. 14, para 4, ROGI.
108
 Chen Y (2015) “Privacy and Freedom of Information in China: Review through the Lens of Government
Accountability” 1 European Data Protection Law Review 265 at 274-275.
109
 These instructions sought to implement the State Council’s calls. See ‘2015 nian zhengfu xinxi gongkai
gongzuo yaodian’ (2015 Key Initiatives of Open Government Information) (issued by the General Office of the
370 JCL 12:2
 yongxi chen and anne sy cheung

A similar extensive list of serious discrediting behaviour is provided in all local

legislation. Yet the disclosure of such behaviour does not serve the same purpose. Some
of the enumerated behaviour indeed involve the vital interests of citizens, as referred to in
ROGI, such as ‘activities severely endangering the health and safety of the public’ in the
areas of food and drug safety, environmental protection, construction quality, production
safety and fire prevention.110 Some conduct may not directly affect livelihoods, but their
disclosure is considered essential for some compelling public interest. For instance, the
public naming of judgement defaulters is acknowledged to be necessary for inhibiting the
prevalent circumvention of obligations imposed by effective judicial rulings.111 There is
another sweeping category of behaviour whose disclosure serves obscure interests, that
is, ‘deliberative refusals to perform legal obligations and hence seriously jeopardizing
the credibility of judicial authorities and administrative authorities’.112 All evasions of
administrative penalty decisions fall within this category. Their indiscriminate disclosure
raises concerns about disproportionality and fairness. Substantial differences exist in
the social impact of such behaviour, as well as in individuals’ faults in engaging in it.
Subjecting individuals punished on various grounds to the same level of exposure does
not correspond to the gravity of their contraventions, nor to the normal understanding
of ‘serious’ discrediting behaviour. The correctness or appropriateness of administrative
penalties also varies. Administrative decisions may be reached in accordance with
government-issued rules that are not necessarily consistent with the law. Such decisions
are inferior to judicial rulings in terms of the openness and fairness of the decision-making
process, impartiality of the decision-maker and rigorousness of the evidential rules. They
are also not necessarily final or legally binding because their legality can be reviewed by
the courts. Accordingly, public trust in administrative decisions is weaker than public
trust in judgements.
It is doubtful whether the indiscriminate publication of ‘serious discrediting records’,
those on administrative penalty decisions in particular, creates positive incentives for
‘keeping faith’ or being ‘sincere citizens’. It does, however, raise privacy concerns. For
example, it enables the profiling of an individual based exclusively on sanctions imposed
upon him or her by the government, information on which used to be scattered and not
readily accessible. Legislative attempts to make such publication mandatory have indeed
been criticised by some mainland lawyers.113 According to these critics, citizens’ privacy
rights are inevitably compromised by the publication of certain contraventions occurring

State Council on April 3, 2015).

110
 Point 9, Guidelines on Joint Rewarding and Joint Punishment.
111
 ‘Zuigao renmin fayuan guanyu gongbu shixin bei zhixing ren mingdan xinxi de ruogan guiding’
(Several Provisions on Publishing the Name List of Untrustworthy Personals Subject to Judicial Enforcement)
(promulgated by the Supreme People’s Court on July 16, 2013, effective October 1, 2013). The Provisions
were amended on 16 January 2017. The name list can be found at the online portal, ‘Zhongguo zhixing xinxi
gongkai wang’ (Open Information of Judgement Enforcement in China), available at: <http://shixin.court.gov.
cn/>. On its necessity, see Chen J (2008) Chinese Law Context and Transformation, Brill, at 665-666; Hu Shouyong
(2013) ‘Gongbu shixin bei zhixing ren mingdan zhidu de shehui xiaoying’ (The Social Effects of the System
of Publishing the List of Untrustworthy Judgment Defaulters), (9) Chongqing shehui kexue (Chongqing Social
Sciences) 30, at 30-36.
112
 Point 9, Guidelines on Joint Rewarding and Joint Punishment; Part VI, Sections 2, Guidelines on Individual
Integrity. The records of this category of behavior are also subject to publication under the Hubei Regulations
(Art. 29) and the draft Shanghai Regulations (Art. 26).
113
 See Arts. 20 & 26 of the Draft Shanghai SCS Regulations.
JCL 12:2 371
The Transparent Self under Big Data Profiling

in the private domain, including, for example, the concealment of disease in contraction of
marriage or of infidelity to a spouse.114 Such criticism is broadly consistent with the rationale
for introducing privacy exceptions to public trials and the publication of judgments. All
three Chinese laws governing litigation proceedings allow for the exemption of cases
concerning privacy from open trial.115 The Supreme People’s Court (SPC) also forbids the
online publication of ‘information concerning privacy’ in rulings on familial disputes and
personality rights and also of the full names of parties to marriage and succession cases.116
In this regard, secrecy in at least some part of family life is protected by the law. However,
there is no Chinese legislation defining the content of the right to privacy. According to
dominant civil law doctrine, as an element of the right to privacy, ‘private information
protected from disclosure’ refers to information that is irrelevant to the public interest
or to the interests of other persons.117 The implication is that information on a violation
of the law may not amount to ‘private information’ if that violation implicates the public
interest.118 Furthermore, civil law doctrine does not cover the right to privacy against the
intrusion of public authorities. In this regard, the scope of privacy is far from clear in the
public law context, and is hardly an operable defence for citizens looking to restrict the
proactive release of PCI by the government.
The only restriction on such disclosure imposed by local legislation is the setting of
an expiry date for access to all discrediting records: five years after commission of the
recorded behaviour119 or five years after generation of the record120 unless otherwise
prescribed by the state. Expired records are to be neither disclosed nor used. Although this
‘sunset clause’ to the accessibility of PCI arguably reduces the perpetuation of negative
track records, it affords data subjects no role in, let alone any control over, the selection of
PCI for disclosure. Furthermore, no local legislation has ever sought to regulate the reuse
of disclosed PCI by third parties, a perilous omission given the strong possibility of an
individual’s discreditable past being exploited to his or her detriment.121 Prevention of
the storage and use of expired records by third parties has received little attention to date.

114
 See ‘Shi renda “weitingzhenghui” shouci zoujin shequ, dang shehui xinyong yushang geren yinsi’
(Municipal Congress Holds ‘Mini Hearing’ in the Community for the First Time; When Social Credit Meets
Privacy), Wenhui News, 30 August 2016; ‘Shanghaishi shehui xinyong tiaoli zhengqiu yijian, 12 wei daibiao
ming yu yijian’ (Shanghai Social Credit Regulation Draft Seeking Public Comments, 12 Representatives from
the Community Airing Their Views) (Eastern Radio Online, August 30, 2016), available at: <http://sh.sina.com.
cn/news/m/2016-08-30/detail-ifxvixeq0688442.shtml>.
115
 See Art. 183, Criminal Procedure Law (amended 2012); Art. 134, Civil Procedure Law (amended 2012); Art.
54, Administrative Litigation Law (amended 2015).
116
 Arts. 8 & 10, ‘Zuigao renmin fayuan guanyu renmin fayuan zai hulianwang gongbu caipan wenshu de
guiding’ (Provisions on Publishing Judgments onto the Internet by the People’s Courts) (issued by the Supreme
People’s Court on July 25, 2016, effective October 1, 2016).
117
 See Zhang Xinbao (2004) Yinsiquan de falü baohu (di er ban) (Legal Protection of the Right of Privacy [Second
Edition]) Qunzhong chubanshe at 6-7; Wang Liming (2005) Rengequan fa yanjiu (On the Right of Personality)
Zhongguo remin daxue chubanshe at 561-564.
118
 The implication can be found in Wang On the Right of Personality, supra note 117 at 563. For doctrinal
development until the enactment of Tort Liability Law, see Gao Shengping (2010) Zhonghua Renmin Gongheguo
Qinquan Zeren Fa: Lifa zhengdian, lifali ji jingdian anli (PRC Tort Liability Law: Issues, Legislative Pattern, and
Cases) Beijing daxue chubanshe at 648-649. For the judicial understanding of privacy in the context of FOI, see
Chen, supra note 108, at 269-270.
119
 Art. 27, Shanghai Rules; Art. 20, Wuhan Rules; Art. 24, Hangzhou Rules; Art. 30, Draft Shanghai Regulations.
Their inspiration is likely to be the provision on expiry of financial credit record under Article 15 of the RACII.
120
 Art.5, Wuhan Rules.
121
 Even the ‘good records’ of individuals may be abused by third parties to seek profits. Alibaba had
372 JCL 12:2
 yongxi chen and anne sy cheung

Overall, local PCI legislation does not allow individuals to exert effective control over
the collection and use of their personal credit data. It remains to see whether it enables
individuals to ensure the accuracy of such data.

ACCESS AND CORRECTION RIGHTS

Weak Legal Basis for Rights

A converging trend that has emerged in local legislation is the recognition that individuals
have certain interests as data subjects. Accordingly, individuals are entitled to access their
own PCI after providing proof of identity to the authorities concerned or to the credit portal
operators holding the information.122 Furthermore, individuals are permitted to dispute
PCI that they deem inaccurate. The authorities generating, or credit portal operators
holding, the information must then verify its accuracy and rectify or delete any erroneous
records.123 PCI legislation closely resembles RACII and its implementing measures with
respect to the procedures and standards for access to and the correction of financial credit
information. Policy makers seem to be extending the regulatory approach from financial
credit information to PCI, which is a commendable move.
Nevertheless, stipulating or implying a channel for access to and the rectification
of PCI in administrative rules or policy documents does not confer legally enforceable
rights. Under Chinese public law, judicial remedies are available primarily for violations
of rights of the person and property rights (right to privacy not included). Individuals
cannot sue the administrative agencies for activities affecting any other rights or interests
unless a specific law or regulation so prescribes.124 Thus, in legal terms, individuals can
enforce their rights to access and rectify their PCI only as far as the information concerned
is generated or held by a government agency in a jurisdiction in which local regulations
recognise such rights. To date, only Shaanxi Province and two cities in Jiangsu Province,
namely, Wuxi and Taizhou,125 have adopted local regulations of this kind. The Shanghai
Municipal People’s Congress is deliberating on a draft regulation which explicitly provides
for the right to both access and rectification.126 The disparity in the legal enforcement of
PCI policies in different regions not only causes unfairness in data protection, but also

included its users with high Sesame Credit scores into a new social networking platform as an attempt to
increase Alibaba’s influence in the social networking market. The platform was reported to involve indecency
and was closed by Alibaba with apology. As mentioned above, Sesame Credit scores are based on PCI and other
factors. See ‘Zhifubao “quanzi fengbo” houxu: zhima xinyong fansi zheng xin shiyong bianjie’ (Aftermath of
the Controversy over Alipay’s ‘Circle’: Sesame Credit Rethinks the Confines of the Use of Credit Investigation,
21 Shiji Jingji Baodao (21st Century Business Herald), December 9, 2016, available at: <http://news.21so.
com/2016/21cbhnews_129/321892.html>.
122
 See, for example, Art.16, Shanghai Rules; Art. 23, Wuxi Regulations; Art. 21, Hangzhou Rules.
123
 Arts. 28 through 30, Shanghai Rules; Arts. 31 & 32, Wuxi Regulations; Arts. 26 through 28, Hangzhou Rules.
124
 See Art. 12, Administrative Litigation Law (promulgated by the Standing Committee National People’s
Congress, April 4, 1989, amended November 1, 2014, effective May 1, 2015).
125
 See Wuxi Regulations, supra note 65, and ‘Taizhoushi gonggong xinyong xinxi tiaoli’ (Taizhou’s Municipal
Regulations on Public Credit Information) (adopted by the Taizhou City People’s Congress on July 29, 2016,
effective October 1, 2016).
126
 Arts 29 & 31, ‘Shanghaishi shehui xinyong tiaoli (caoan)’ (Shanghai Municipal Social Credit Regulations
(Draft), published for public comments on December 31, 2016). See Shanghai Government Portal, available at:
<http://www.shanghai.gov.cn/nw2/nw2314/nw2315/nw4411/u21aw1187561.html>.
JCL 12:2 373
The Transparent Self under Big Data Profiling

weakens the accuracy of a data system that purports to overcome jurisdictional limits on
the flow of data.

Limits Imposed by Personal Archive Regime

It is noteworthy that the national regulation on freedom of information (FOI) have bearing
on information rights related to PCI, which also constitutes government information.
ROGI, which entered into effect in 2008, creates a general right to request the disclosure
of information held by government agencies, subject to certain exemptions.127 In the
absence of specific legislation on personal information protection, ROGI further confers
a specific right on the subjects of government-held personal information. Article 25 of
ROGI guarantees individuals access to ‘government information about themselves such as
tax and [administrative] fee payments, social security and medical care information’ and
allows them to request the correction of such information if it is not recorded accurately.128
Ambiguity arises, however, concerning how far the scope of ‘information about themselves’
extends beyond the categories enumerated by the article. Nevertheless, social credit
records pertaining to social security or the payment of taxes and administrative fees—
the typical records specified in most local PCI legislation—arguably fall neatly within the
ambit of this ‘subject access right’.
Although ROGI appears to provide extra guarantees affording citizens control over
their own PCI, its utility is reduced by the party-state legacy of ‘personal archives’ (geren
dangan), a point that is best illustrated by a judicial review case concerning Article 25:
Xie v. Education Bureau of Rugao City.129 The plaintiff in the case was a primary school
teacher who had been dismissed by the education authority in 1983 based on allegations
that he had violated family planning policies. Resorting to ROGI, he requested access
to his personal archives, which were held by the defendant, to determine the decision-
making process leading to his dismissal. The defendant refused, citing a provision in the
Cadre Archives Regulations of 1991 stipulating that ‘no one shall be allowed to consult or
borrow the personal archives about himself or his intermediate relatives’.130 In upholding
the nondisclosure decision, the court held that the requested information constituted
‘personal archives’, and thus fell outside the scope of government information prescribed
by ROGI.131 In fact, however, ROGI defines government information as information made
or obtained by the administrative agencies in the course of exercising their powers and
recorded and stored in a given form,132 which obviously covers all government-held
personal archives. ROGI is at a higher level in the hierarchy of sources of law than the Cadre
Archives Regulations (which, despite its title, is actually an administrative rule issued by a

127
 Art. 13, ROGI.
128
 Art, 25, ROGI.
129
 ‘Xiemou su rugaoshi jiaoyuju’ (Xie v. Education Bureau of Rugao City), People’s Court of Rugao City, October
2011). See ‘Minban jiaoshi zaowu bei chuming yaoqiu chayue dangan bei bohui’ (Private Teacher Dismissed
Decades Ago Sued for Denial of Access to His Personal Archives; His Claim Was Rejected) (Jiangsu Online,
October 11, 2011), available at: <http://www.chinanews.com/edu/2011/10-11/3381403.shtml>.
130
 Art. 31(5), ‘Ganbu dangan gongzuo tiaoli’ (Cadre Archives Regulations) (adopted by the Organization
Department of CCP Central Committee & State Archives Administration on April 2, 1991, effective April 2,
1991).
131
 See note 129 above.
132
 Art. 2, ROGI.
374 JCL 12:2
 yongxi chen and anne sy cheung

department of the State Council together with a central organ of the ruling party), and was
enacted more recently. Hence, in the event of any inconsistency between the two, ROGI
should prevail according to the constitutional principles for resolving conflicts amongst
legal norms.133 The ruling in Xie obviously misapplied the law. Unfortunately, it set the
tone, with subsequent cases following suit in blocking access to personal archives with
reference to the Cadre Archives Regulations.134
These problematic rulings demonstrate the predicament in which the legal protection
of personal data finds itself in a political system that prioritises the control of personal
data considered critical to the party-state. The personal archive regime was established in
1956 by the CCP, and primarily covers students and the employees of state-run entities.135
A personal archive is a dossier on an individual that is compiled throughout his or her
life by the institutions directly supervising him or her (e.g. his or her schools and/or state-
owned employers). It comprises materials indicating the most important merits of an
individual, such as his or her diplomas and degrees, academic transcripts, professional
qualifications, work appraisals, political affiliations and major political activities, any
awards and disciplinary sanctions received, and his or her history of employment,
promotions, transfers, dismissals and retirement.136 As declared in the SPC case comment
on Xie, personal archives are not merely records of an individual’s life trajectory, but are
also closely correlated with his or her remuneration, social security benefits and political
party membership.137 In view of the importance of those archives, the SPC comment argues
that the personal archive regime represents a significant feature of China’s personnel
management system, and involves secret matters of the party and state.138 This argument
actually restates the orthodox CCP principle that personal archives, particularly those
concerning cadres (e.g. officials of state authorities and party organs), serve as the crucial
basis upon which the party selects cadres and appraises the merits of individuals.139 Such
personal information is thus necessarily of a political nature and deserving of secrecy.140

133
 See Arts 88 & 92, ‘Lifa fa’ (Law on Legislation) (adopted by National People’s Congress, March 15, 2000,
amended and effective March 15, 2015).
134
 See for example three recent cases adjudicated respectively in Jiangsu Province, Shandong Province and
Inner Mongolia Autonomous Region: ‘Chen xiaohui su danyangshi shichang jiandu guanliju’ (Chen Xiaohui v.
Market Supervision Bureau of Danyang City), Intermediate Court of Zhenjiang City, June 8, 2016; ‘Li xingong su
jinanshi lichengqu jiaoyuju’ (Li Xin v. Licheng District Education Bureau of Jinan City), Shandong Provincial High
Court, June 12, 2016; ‘Songmou deng su hangjinhou qi renli ziyuan he shehui baozhangju’ (Song X v. Human
Resource and Social Security Bureau of Hangjinhou Banner) Intermediate Court of Bayannao’er City, September 30,
2016).
135
 Laodong Renshi Bu Renshi Jiaoyu Ju (Education Department of the Ministry of Labor and Personnel)
& Anhuisheng Renshi Ju (Anhui Provincial Personnel Bureau) (1987) Renshi dang’an guanli (Management of
Personnel Archives) Laodong renshi chubanshe at 19-22.
136
 Art. 10, Cadre Archives Regulations.
137
 The judicial comment is published on the official portal for judicial news, and authored by a staff member
of the same court that rendered the judgement. See ‘Dangshiren bu ke yaoqiu chaoyue benren renshi dangan’
(The Party Concerned Shall Not Have Access to His or Her Own Personnel Archives), (China Court Online, June
13, 2014), available at: <http://www.chinacourt.org/article/detail/2014/06/id/1315016.shtml>.
138
 Ibid In explaining justifications for the ruling, the judge writing the judicial comment adds that personal
archives constitute ‘classified information of the Party and the State,’ and are hence covered by the exemption
of state secrets. However, no law or regulation generally identifies personal archives as classified information
or state secrets. The author’s argument is untenable.
139
 See the description of the nature of personal archives in a textbook compiled by the central authority:
Management of Personnel Archives supra note 135 at 23-24.
140
 Ibid, at 6-7. See also (2009)‘Dangdai zhongguo de renshi guanli’ (Personnel Administration in Contemporary
China) Dangdai zhongguo chubanshe, 222-223.
JCL 12:2 375
The Transparent Self under Big Data Profiling

For the same reason, the imperative to withhold personal archives from their subjects
extends to the archives on non-cadres working in state or CCP organs and state-run
institutions,141 as well as individuals working in the private sector.142 All these rules that
were issued jointly by the CCP and the state organs sustain a party-state regime that
governs the most important types of personal information and one-sidedly stresses the
utility of such information to the ruling party. The unfortunate reality, as confirmed by the
courts in a variety of FOI cases, is that the party-state regime overrides national legislation
that purports to protect data subjects’ access right and safeguard individuals’ intermediate
interests.
The dominance of the personal archive regime may extend from the FOI context to
the SCS. There is similarity between personal archives and social credit records: both
include appraisals of individuals’ performance of their societal roles, particularly their
compliance with state-sanctioned rules. In fact, the SCS Outline calls for the establishment
of ‘integrity archives’ for various focal groups, such as civil servants, members of the
judiciary, experts and agents working in the statistics, advertising and environmental
impact assessment sectors, and the creation of ‘credit archives’ for all citizens in relation
to certain types of behaviour, such as online activities and violations of traffic codes.143
The personal information contained in the aforementioned integrity archives may
well fall within the ambit of ‘personal archives’. In particular, the General Office of the
State Council advocates for the compilation of student honesty archives by universities
to include records on academic cheating, failure to repay loans and the falsification of
materials for job applications.144 Such records overlap in full with what is collected in the
personal archives of university students under the Cadre Archives Regulations. More
importantly, part of the rationale for the SCS, i.e. the need to select individuals who satisfy
certain state-approved standards, fits precisely with the political functions of the personal
archive regime. Although it is unclear whether the SCS will operate independently from
the personal archive regime, we should not ignore the impacts of the party-state’s secrecy
imperatives on the officials who design and operate the SCS, which is refreshed system of
citizen profiling. Even if more localities adopt legislation that recognises the subject access
right, the subordination of that legislation to CCP rules may reoccur in practice.
Given the weak legal force of most local PCI legislation and the extra-legal restraints
on ROGI, the protection of access and correction rights in relation to PCI is at a rather
primitive stage, although the initiatives undertaken by local pilot schemes are broadly
consistent with the regulatory trends of big data profiling in some pioneering jurisdictions
such the EU and the US.

141
 See Art. 17(4), ‘Qiye zhigong dangan guanli gongzuo guiding’ (Provisions on Personal Archives of
Enterprise Staff) (issued by the Ministry of Labor & State Archives Administration on June 9, 1992). State
Archives Administration is concurrently a department of the State Council and a department under the CCP
Central Committee. In practice, however, its operation, funding and personnel management is carried out
within the CCP system.
142
 See Art. 14(4), ‘Liudong renyuan renshi dangan guanli zanxing guiding’ (Provisional Provisions on
Personal Archives of Footloose Persons) (issued by the Organization Department of the CCP Central Committee
& Ministry of Personnel on December 18, 1996).
143
 See SCS Outline.
144
 See Guidelines on Individual Integrity, supra note 79, Part II, Section 4.
376 JCL 12:2
 yongxi chen and anne sy cheung

CONCLUSION

Law-making on public credit information at the local level is the first step taken by the
Chinese state to standardize the practices in constructing the ambitious Social Credit System.
It deserves close examination for those who are concerned with the privacy impact and
other profound implications of the SCS, a big data-empowered system that is potentially
capable of tracking and profiling each individual and rating him or her according to state-
imposed criteria with legal and social consequences. Distinct from the regimes common
to most jurisdictions that regulate private bodies’ handling of financial credit data, PCI
legislation focuses on government agencies and adopts a highly fluid concept of credit
data. In the absence of general legal framework for personal data protection, it is such
legislation that sets the basic albeit interim rules for the “jungle of big credit data”.
However, PCI legislation largely fails to live up to the tenets of personal data protection,
as demonstrated by the foregoing analysis in this paper. This regulatory approach gives
virtually free rein to secondary use of and big data analytics concerning records on
misbehaviours, including those records that many individuals regard as sensitive and
should be kept private. Automatic matching of credit data databases and profiling about
individuals are hence permissible, entailing threats to a series of privacy-related interests
including rehabilitation, personal autonomy, and non-discrimination.
From a legal perspective, the existing Chinese legislation at both national and local
levels does not effectively prevent the party-state from expanding and intensifying its
control over each citizen by generating, aggregating and exploiting personal data on their
social behaviours. While law-making concerning the SCS may evolve, the party-state’s
governance strategy is one of the most important factors to consider when we try to
understand the effectiveness of legislation in mitigating the privacy impacts of the SCS.
A natural response to the flaws of current PCI legislation is to call for substantial revision
of existing provisions and making of new and, ideally, national law which incorporate
the cardinal principles of data protection. For instance, the public may demand the law
to explicitly grant data subjects’ with a right to access and correct their credit data, and a
right to object to third parties’ access to and use of their credit data. However, if the SCS
develops truly according to the blueprint prescribed by the SCS Outline and Big Data
Outline, there may be growing gaps between the system and wishful suggestions on legal
reform towards more stringent protection of personal data. Throughout the construction of
the SCS, tension persists between the state’s ambition of big data profiling and the societal
call for privacy preservation. Our current study is meant to be an invitation for follow-up
studies of the interaction between the law and practices concerning the SCS.

JCL 12:2 377

The Transparent Self under Big Data Profiling

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

geren chengxin 个人诚信 individual integrity

geren xinyong xinxi 个人信用信息 personal (financial) credit
information
gonggong xinyong xinxi 公共信用信息 public credit information, i.e. PCI
shehui chengxin 社会诚信 trustworthiness in the society
shehui xinyong tixi 社会信用体系 social credit system
shixin beizhixing ren 失信被执行人 untrustworthy person subject to
judicial enforcement
xinyong 信用 financial creditworthiness, or
trustworthiness (in a broader
sense)
zhengxin 征信 (financial) credit investigation

378 JCL 12:2

 ling li

Transparency, Propaganda and

Disinformation: ‘Managing’
Anticorruption Information in China
LING LI
Institute for Human Sciences, Vienna

INTRODUCTION

In corruption studies, transparency is often discussed as a quality of public services or

public administration, a quality that helps to reduce corruption. This is not what this
article focuses on, however. Instead, the focus of this article is the quality of the access to
information related to corruption and anticorruption in China and how that affects our
understanding about corruption. In this article, such information includes both factual
and propagandistic information, the two of which are very often intermeshed and lumped
together for presentation. For this reason, it is even more important for us to be aware of
this distinction in the discussion.
This article is organized as follows. The first part examines definitional and other
general issues surrounding the concept of transparency. This is followed by an examination
of the specific types of information that are used in China’s anti-corruption activities. The
essay then offers a brief introduction of the various anticorruption institutions in China.
The next part looks at the mass media institutions and the censorship regime in China, and
is followed by an examination of the distribution of factual anticorruption information and
the production of China’s anticorruption propaganda and disinformation.

CONCEPTUALIZATION OF TRANSPARENCY

In current discourses, transparency is almost always associated with good governance

and accountability.1 However, few advocates of transparency have taken the trouble to
provide a definition of this popular term. In this article, transparency is treated as the
quality of the environment where information related to the delivery of public services is
provided. More specifically, it involves the following conceptual issues.
Firstly, transparency concerns the access to information about actions that take place
in a space which is, unless a certain privilege is granted, usually cordoned off from people

1
 Weiss, F. and Steiner, S (2006) ‘Transparency as an Element of Good Governance in the Practice of the EU
and the WTO: Overview and Comparison’ (30) Fordham International Law Journal 1545. Johnston, M (2006) Good
Governance: rule of law, transparency, and accountability United Nations Public Administration Network.
JCL 12:2 379
Transparency, Propaganda and Disinformation

who are not directly involved in carrying out those actions. Such access, in its fullest form,
allows the information seekers to enter the space where actions take place. For example,
in military actions, journalists may be allowed to ‘embed’ in the task force that carries out
a mission so that they can observe the actions as they take place. When it is impractical
for the observers to be physically present in places where actions of interest take place or
for the event organizer to accommodate a disproportionally large number of attendees in
a limited space, direct access can also be granted to observers remotely, for example, by
televising or webcasting the events. Such access to live events might be deemed the height
of transparency.
Secondly, the degree of transparency is to be assessed by the quality of autonomy
granted to the information seeker, i.e. their degree of freedom to choose the focus of their
attention. Therefore, the direct entrance type of access mentioned above such as physical
access to live events offers the highest autonomy to the information seeker, unless these
live events are staged. Access to written, audio and/or video records of past events is less
transparent because they reduce the autonomy of information seekers by confining the
range of their focus of attention only to the archival materials provided. It also gives the
information provider the opportunity to omit unfavorable information or even, in extreme
cases, to doctor information. This record-only type of access generally indicates a lower
degree of transparency compared with access to live events. Total absence of access
equates to complete opacity.
Thirdly, the degree of transparency should also be assessed by the tangible and
intangible obstacles that one must overcome in order to obtain the information. Tangible
obstacles included, for example, limiting the number of seats in the public gallery of a
court room, setting up a pay wall for online information and releasing the information
only upon approval of a formal request. Intangible obstacles refer to the amount of mental
efforts or costs entailed in seeking the information, for example, presenting the information
with unexplained jargons and in complex sentence structures, which effectively renders
the information incomprehensible to non-expert readers, even when physical access to the
information is not barred.
Fourthly, questions can be raised as to the limit of transparency. Just the same as the
fact that transparency does not always make the strongest social skill for an individual
person, it might be counterproductive in some circumstances for public institutions to
conduct their business in a completely transparent manner. For example, in the context of
an anticorruption investigation, especially when covert actions are involved, it might be
self-defeating if all investigative information is immediately made available to the public
since it could inform the suspect who might then destroy evidence or abscond before being
arrested. Therefore, it is not uncommon that investigative information is withheld from
the public while the investigation is ongoing and only published partially at a later stage.
In short, transparency is more about the how than the what. Specifically, transparency
concerns whether certain actions are taken by public institutions so that any interested
parties can observe the operation of these institutions as their actions take place in real time
or examine them based on well documented records. Transparency, therefore, as a value,
is different from other values that are essential for good governance, such as equality,
efficiency and fairness, which are defined and can be assessed only by looking into what
exactly the actions are. Not only is transparency a different value, it is also a prerequisite
to the realization of other values, including those mentioned above, since without access
to information about the actions concerned, it is impossible to evaluate other qualities of
380 JCL 12:2
 ling li

these actions. Having laid out the theoretical foundation, in the next section of this article,
I will discuss the meaning of transparency in the context of anticorruption activities in the
People’s Republic of China (hereafter China).

TYPES OF ANTICORRUPTION INFORMATION

As mentioned above, transparency is a precondition for the actualization and assessment

of other values which are fundamental for public services. It is also the first step to
establishing credibility of public policies. Credibility means, according to the Oxford
Dictionary, ‘the quality of being trusted and believed in’, which, in colloquial terms, means
that one’s words match his or her deeds. A policy or decision is credible when its targeted
groups believe that the authority will carry out what it sets out to carry out. It is important
for policy-makers to establish such credibility of their policies because when a policy is
seen to be credible, that in turn will generate voluntary compliance and hence reduce the
cost of enforcement.
Nothing is more important than keeping the decision-making process transparent for
the establishment of credibility of a public policy. This is because if the process of decision-
making is kept opaque, speculation and conspiracy theories will grow, which can cultivate
distrust and cynicism towards the integrity of the public institutions. For example, when
anticorruption activities are conducted in secrecy, people may speculate about possible
ulterior motives of the anticorruption institutions and withdraw their cooperation or
support for their activities. More specifically, transparency in anticorruption activities
concerns access to the following types of information:

Laws and regulations

Anticorruption institutions should provide information regarding both the substantive

and procedural rules governing their anticorruption activities. The substantive rules
should include the standards that they apply to determine what kind of conduct is deemed
to be ‘corrupt’ and consequently subject to punishment. It should also provide information
about the factors that will determine the severity of punishment. Procedural rules include
the procedures and protocols that are followed by anticorruption institutions in the
investigation, examination, prosecution and adjudication of any allegation of corrupt
conduct. It will also boost the credibility of the anticorruption institutions if information
regarding their organizational structures, personnel information and modus operandi are
made available to the public.

Individual cases

In addition to general rules, it is equally important for anticorruption institutions to be

transparent about their handling of individual cases in order to enhance the credibility
of their anticorruption efforts. Barring circumstances involving covert investigative
operations, information regarding the investigation, prosecution and adjudication of
individual cases should be made available first to the suspects under investigation and
their legal representatives in order to protect the individual rights of suspects and to
prevent anticorruption institutions from abusing their power. If an investigation has led to
a trial, trial records should be made available not only to the parties to the case but also to
JCL 12:2 381
Transparency, Propaganda and Disinformation

the public, detailing ‘what is being done, how and why actions take place, who is involved,
and by what standards decisions are made’.2

Statistics

In this article, statistics refers to the collection, presentation, analysis and interpretation of
masses of original data relating to corrupt conduct and alleged culprits. Such data includes
corruption-related complaints, biographical information of the offenders, specifics of
corrupt conduct as well as other circumstantial information such as the political, economic
and cultural environment of the place where corruption is committed. Collecting and
analyzing such data helps to identify patterns of corrupt conduct, its attributing factors,
to assess the effectiveness of anticorruption policies and to evaluate and improve the
performance of anticorruption institutions. Since this data is controlled by anticorruption
institutions, it is in the public interest for these institutions to make such information
available to the public.

ANTICORRUPTION INSTITUTIONS IN CHINA

In China, a number of institutions are responsible for carrying out anticorruption activities
and hence ‘produce’ and ‘possess’ information directly related to anticorruption activities.
The Organization for Economic Co-operation and Development (OECD) reviewed
specialized anti-corruption institutions in various countries and identified three models:
specialized anticorruption institutions in law enforcement, specialized institutions on
preventive measures, policy development and co-ordination, and specialized institutions
with all above functions.3 The Chinese ‘model’ is so complex that it defies such
categorization. Firstly, unlike most other countries, China has a single-party or party-state
political system, which means that the Chinese Communist Party (the ‘Party’), with its
political monopoly, can extend its pervasive influence to all state institutions, including
those that are responsible for anticorruption activities.4 Therefore, the Party can monitor
and interfere in decision making of state anticorruption institutions.5 Secondly, the Party
also creates its own institutions that are directly involved in anticorruption activities,
especially regarding anticorruption policy-making and investigation. Thirdly, the Party
also formulates anticorruption policies, which state anticorruption institutions are required
to follow. In short, both Party and state institutions participate in anticorruption activities
in China separately and jointly.

2
 Johnston Good Governance.
3
 United Nations Development Program (2008) Corruption and Anticorruption Agencies in Eastern Europe and the
CIS: a Practitioners’ Experience UNDP Bratislava Regional Centre at 7-15; Organisation for Economic Cooperation
and Development (2006) Specialised Anti-corruption Institutions - Review of models OECD Anticorruption Division
at 5-8.
4
 For more detailed explanation on the party-state structure, see Li Ling (2015) ‘ “Rule of Law” in a Party-
State: A Conceptual Interpretive Framework of the Constitutional Reality of China’ (2) Asian Journal of Law and
Society 93.
5
 For example, to see how the Party can influence judicial decision making in courts, see Li Ling (2016) ‘The
Chinese Communist Party and People’s Courts - Judicial Dependence in China’ (64) The American Journal of
Comparative Law 37.
382 JCL 12:2
 ling li

Party institutions

Firstly, a brief introduction to the institutional structure of the Party is needed. At local
levels, Party standing committees are factually the highest governing body of the Party in
their respective regions. They are generalist institutions and responsible for monitoring
and supervising the work of state institutions in all sectors by sending instructions to and/
or approving decisions proposed by state institutions on all important public affairs within
their geographic boundaries. Under a highly centralized structure, a local Party standing
committee answers to the Party standing committee at the next superior administrative
level, i.e. from the country, prefectural, provincial to the national/central level, in ascending
order. At the national/central level, the highest governing body is further divided into two
layers: Politburo and the Politburo Standing Committee.
As generalist institutions, each of these Party standing committees has an all-inclusive
mandate, including to direct, oversee and supervise anticorruption work conducted by
specialized anticorruption institutions either in the Party or the state. Specifically, such
a mandate consists of the formulation of anticorruption policies and the supervision
of their implementation, including investigating, examining and making decisions
regarding individual corruption-related violations. However, as generalist institutions,
these governing bodies only have limited amount of attention that can be extended to
anticorruption activities and hence their role in this area is more selective. Routine
anticorruption work is instead carried out by the specialized Party anticorruption
institutions: the Chinese Communist Party central and local discipline and inspection
commissions (the ‘CCDI’ and ‘local CDIs’).
The CCDI works under the Politburo and the Politburo Standing Committee. Under the
CCDI, local CDIs are subject to the dual leadership of the CDI at the next higher level and
the Party standing committee at the same level. According to the Party Charter, the current
main focus of the CCDI and CDIs is to collect information from the public, to conduct pre-
prosecution investigation of corrupt conduct of party members and to coordinate amongst
various anti-corruption agencies.6 Since the CDIs can only exercise jurisdiction over party-
members, the People’s Inspection Committee was established in 1949 at both the national
and local levels to scrutinize disciplinary violation of civil servants, who were not Party
members.7 The committee was dismantled in 1959 and then restored in the form of the
Ministry of Inspection (the ‘MOI’) in 1986.8 In 1993 the MOI was merged into the CCDI,
the two of which share the same personnel and facilities but carry out activities under their
respective offices.9 In general, the CCDI and CDIs currently exercise preemptive power
to determine, when the suspect is a ranked official, whether an investigation should be
initiated and then whether a prosecution should be pursued.

6
 CCP Charter (2002), Ch. 8.
7
 Propaganda Office of the CCDI (2002) A brief course of the institutional development of Discipline Inspection
Commissions Beijing at 4.
8
 Ibid 5.
9
 Ibid 6.
JCL 12:2 383
Transparency, Propaganda and Disinformation

State institutions

At present, state institutions responsible for anticorruption activities are the People’s
Procuratorates and People’s Courts. The People’s Procuratorates have the mandate to
both investigate and prosecute corruption-related crimes. More specifically, a specialized
branch of the procuratorates, the Anti-Embezzlement and Bribery Bureau (Fantanwuhuilu
Ju) (the ‘AEBB’), carries out routine investigations of corruption-related crimes. Evidently,
the AEBB and the CDIs overlap in their corruption investigation jurisdiction. In practice,
these two institutions often work collaboratively, although the CDIs generally outrank the
procuratorates and enjoy higher authority. Depending on the rank of the suspect, when
a lead is first acquired by the procuratorate, the procuratorate is required to inform and
seek for instructions from the CDI or the Party Standing Committee at the same level if the
lead implicates an official of a rank equal or higher than that of the procuratorate. On the
other hand, the CDIs are generally understaffed and their personnel lack proper training,
so they often borrow investigators from the procuratorates to conduct investigations on a
case by case basis.
Other than the AEBB, the White-collar Crime Prevention Bureau (the ‘WCPB’), was
also established as a department within the procuratorates. Its function mainly concerns
prevention-oriented corruption-related research, consultation and training. Apart from
the WCPB, the National Bureau of Corruption Prevention (the ‘NBCP’), established in 2007
under the directorship of the Minister of Inspection, is also responsible for the prevention
of corruption.10 There is no clear division of labour between the two institutions.11

New institutional development

In 2016, the Party launched a pilot program to create a new party-state joint institution
in the name of National Supervision Commission (NSC).12 Under this new institution
corruption-related investigative activities of both the CDIs and the procuratorates will be
merged. At the time of writing, pilot programs are authorized in three locations, namely
the Beijing municipality, Shaanxi Province and Zhejiang Province. By the end of 2017, the
program is expected to be extended nationwide.13 Full implementation of this program will
certainly impact upon the methods and approaches used in anticorruption investigations,
but will change little regarding the regulatory regime of corruption-related information,
which is the focus of the next section.

10
 Official website of the Bureau, http://politics.people.com.cn/GB/8198/114315/114316/6763150.html
11
 Annual Report of the Supreme People’s Procuratorate for 2003. See Han Yubing (2003) ‘Zuigao renmin
jianchayuan gongzuo baogao’ (Report of the Supreme People’s Procuratorate) Xinhua March 11, 2003, http://
news.qq.com/a/20090310/001269.htm (accessed 6 October 2017).
12
 See Wu Xuefeng and Yang Lei (2016) ‘Guojia jianchawei shidian beihou xuanji: zhongyang chongquan
gaige de xinhao’ (The Truth Behind the National Discipline Inspection Commission’s Trials: a sign of Hard
Hitting Reforms), Souhu News November 10, 2016 http://news.sohu.com/20161110/n472770223.shtml (accessed
6 October 2017).
13
 See (2017) ‘Zhong jiwei: jinnian choubei zujian guojia jiancha weiyuanhui’ (Central Commission for
Disciplinary Inspection: this year’s provisions for forming the National Inspection Committee) Sina January 9,
2017, http://news.sina.com.cn/o/2017-01-09/doc-ifxzkfuk2920322.shtml (accessed 6 October 2017).
384 JCL 12:2
 ling li

MASS MEDIA AND INFORMATION CENSORSHIP REGIME

China has an expansive centrally controlled censorship regime that monitors and filters
information before public circulation. Censoring institutions monitor and examine
the contents of information carried by any forms of mass media outlets, including the
print, broadcast and digital media. The most important censorship organ is the Central
Propaganda Department of the Party (the ‘CPD’). The CPD is a functional division of the
Central Party Committee that specializes in censorship and propaganda. Together with a
number of state regulatory bodies, it has the mandate not only to formulate and implement
nationwide censorship and propaganda policies but also to issue direct instructions on
what to report, what not to report and how to report specific public events to editorial
teams of media institutions.14 This superior-subordinate relationship between the Party
propaganda departments and media institutions is safeguarded by the subjection of
all mass media institutions to the supervision of the Party through a number of means,
including ownership, licensing requirements, and legal measures.
The CPD and its branches conduct day-to-day censorship activities via two main
approaches: ex-ante and ex-post supervision. The ex-ante supervision is conducted by
the CPD censors who send specific instructions to editors on reporting policies regarding
specific events as they unfold or by in-house censors stationed within media institutions
who examine the news items before they are published or aired. Ex-post supervision is to
apply sanctions to media institutions or individual editors and/or reporters for violations
that have slipped through the net of ex-ante supervision.15
Since the rapid marketization of media institutions in the 1990s, the censorship regime
has become more intricately layered. Large-sized media conglomerates were established
which host both daily newspapers that are solely owned and directly run by the Party and
market-oriented metropolitan newspapers or business magazines, which are allowed to
have more relaxed editorial polices. While the former remains the mouthpiece of the Party,
the latter are allowed to have a more autonomous editorial team, covering a wider spectrum
of social and economic issues that are of interest to readers. Some of these magazines,
enjoying a pocket of air of oxygen to report freely, became the incubators of investigative
journalism, for instance the Southern Weekend, Caijing and Caixin magazines, which have
pioneered in-depth reporting on corruption-related affairs.

FACTUAL ANTICORRUPTION INFORMATION

In this article, the term ‘factual information’ is used in contrast to ‘propagandistic

information’. Factual information refers to information concerning the facts of corruption
and anticorruption conduct and practices, whilst propagandistic information intimates
a more subjective characterization of such conduct and practices. A typical example of
the former is the actual texts of corruption-related laws and regulations whilst a typical

14
 For an archival record of such instructions, see www.chinadigitaltime.net under the column of the ‘Ministry
of Truth’.
15
 For more details, Brady, AM (2006) ‘Guiding hand: The role of the CCP Central Propaganda Department
in the current era’ (3) Westminster Papers in Communication and Culture 58, and Shambaugh, D (2007) ‘China’s
Propaganda System: Institutions, Processes and Efficacy’ (57) The China Journal 25.

JCL 12:2 385

Transparency, Propaganda and Disinformation

example of the latter is an editorial opinion on the political significance of the making
of such laws and regulations. This is not to suggest that propagandistic information is
necessarily false. In fact, propagandistic information is often weaved together with edited
factual information and the distinction between the two is becoming more blurred.
In China, most of the factual anticorruption information is released by anticorruption
institutions themselves and distributed by official mass media.

Laws and regulations

China is no longer a state of lawless totalitarianism where people are punished without
any reference to laws and regulatory rules. Since legal reforms started in the 1980s,
significant improvement has been made, historically speaking, in terms of the timely
release of legislative information. All corruption-related laws and by-laws are published
simultaneously on the websites of all anticorruption institutions and announced in various
news outlets. Access to Party regulations was more restricted. During the past decades,
more efforts have been made to increase transparency in Party affairs. The main area that
has benefited from this transparency initiative concerns the publication and dissemination
of Party rules and regulations, including those related to anticorruption activities.
Such rules and regulations are usually first published on the website of the CCDI and
simultaneously announced as news items by the official mass media.

Individual cases

Unlike the reporting of laws and regulations, reporting of the investigation of individual
corruption scandals is heavily censored. Of all content disseminated in the mass media,
news items related to corruption are the most censored. And journalistic reports implicating
unlawful conduct of Party leaders are the most sensitive of all subjects. Although the degree
of intensity of censorship may vary at different times and under different administrations,
news media institutions are generally forbidden to conduct independent investigative
reporting of corruption scandals regarding ranked public officials who are still in office.
It means that only after an official investigation has been concluded and disciplinary
action been taken by the Party can stories on the case be published. This in turn means
that coverage of corruption scandals in the mass media always goes hand in hand with
the coverage of anticorruption activities. This is because as a general editorial principle
negative news is not to be reported unless the issue concerned has been previously
resolved internally.
Amongst various types of media, the official newspapers are the main conduit of
corruption-related news, especially those newspapers or magazines run by the various
anticorruption institutions. For example, the CCDI publishes the China Discipline and
Inspection Newspaper (Zhongguo Jijian Jiancha Bao), Discipline and Inspection Magazine (Ji
Jiancha Zazhi); the Supreme People’s Procuratorate publishes the Procuratorate’s Daily
(Jiancha Ribao), Democracy and Rule by Law (Minzhu yu Fazhi) magazine and the Supreme
People’s Court the People’s Court Daily (Renmin Fayuan Bao). Once an investigation of a
corruption case is completed, anticorruption institutions may invite reporters from trusted
newspapers or magazines, typically, the above affiliated media, to cover the story, granting
them access to case files, investigators and/or the offender.

386 JCL 12:2

 ling li

In addition to the official newspapers, a number of commercial newspapers and

news magazines have become known for their more independent investigative reporting
on business misdeeds and official corruption. Apart from Caijing and Caixin magazines
mentioned above, News Weekly and Xinjingbao are also among the more well-known.
Although these newspapers and magazines are also subject to heavy censorship, their
editorial management enjoys more autonomy and their practice of journalism is more
professional, compared with the official daily newspapers run directly by the Party. This
means, on the other hand, that they do not normally enjoy the same privileged access to
the information withheld by anticorruption institutions as official media institutions have.
Nevertheless, they can produce insightful exposé pieces based on publicly available data,
interviews with witnesses and expert analysis,16 except that the space of their autonomy
is quite precarious and can be taken away any time if and when they lose their political
patronage.
With all the obstacles considered, the investigative reporting by Caijing and later
Caixin magazines in many ways is remarkable. Both magazines have published numerous
exclusive stories on corruption scandals over the years. For example, when the CCDI
announced its decision to detain Zhou Yongkang (a former Politburo Standing Committee
member, so far the Party leader of the highest ranking who was disgraced for corruption-
related charges) for investigation, Caixin magazine published an exclusive profile of the
family of Zhou Yongkang on the very day that the decision was announced.17
It was believed that Caixin enjoys privileged access to anticorruption information
because of the good personal relationship between its editor-in-chief Hu Shuli and the
head of the CCDI, Wang Qishan as well as the PRC President and CCP Secretary-General,
Xi Jinping.18 For example, in its most recent exclusive story on Xi Xiaoming, a former
vice-president of the Supreme People’s Court convicted for corruption, Caixin was able
to obtain the court judgement of the case that seems not made available to other media
outlets and certainly not to the public. Nevertheless, even with such privileged connection
with anticorruption institutions, the extent of information that a reporter from Caixin can
obtain and report is still limited for a number of reasons. To start with, corruption trials
are dominated by the prosecution and the defence is restricted in their freedom to conduct
independent investigations and to contest the evidence presented by the prosecution.
Secondly, the court judgment does not provide sufficient reasoning to explain how facts
are established, characterized and how laws are applied on a level that can be deemed
as adequate in other legal systems under the principle of the rule of law. Lastly, court
judgement reveals little information regarding the process through which a decision is
reached. Most of the process information is included in a separate court dossier (fujuan),
which is classified and unavailable even to the parties of a litigation.19

16
 The exposé on Wen Jiabao’s family members published by the New York Times is one good example.
17
 (2014) ‘“Zhou yongkong de hong yu hei san” yin fu zhi ming – zhoushi jue cai lu’ (‘Zhou Yongkang No.
3 Red and Black’ – using his father’s name to seize financial assets) Caixin July 29, 2014 http://china.caixin.
com/2014-07-29/100710329.html (accessed October 6, 2017).
18
 (2015) ‘Hu shuli yu wang qishan guanxi feiqian? hezhao baoguang (Hu Shuli and Wang Qishan’s
Personal Relationship: Photo Together Exposed Wenxue cheng April 1, 2015 http://www.wenxuecity.com/
news/2015/04/01/4151073.html (October 6, 2017); Guo Hui (2013) ‘ “Zhongguo zui weixian nüren” de beihou
zhanzhe liang ge zui youquanshi de nanren’ Epoch Times October 6, 2013, http://www.epochtimes.com/
gb/13/10/5/n3979684.htm (accessed October 6, 2017).
19
 Li Ling (2012) ‘The “Production” of Corruption in China’s Courts: Judicial Politics and Decision Making in
JCL 12:2 387
Transparency, Propaganda and Disinformation

Therefore, the process of anticorruption decision making is by and large kept opaque,
especially regarding the investigative phase taken place in the CDIs. Currently, the CDIs
only announce summary information of its disciplinary actions, such as the date when an
investigation is launched or when a disciplinary sanction is applied. Internal reports that
are used as the basis of the disciplinary decisions, such as the investigative report, the case-
examination report and the final recommendation report, are never disclosed. The often-
used subterfuge for conducting its business in such secrecy is that the CDIs are not state
institutions and their activities only concern internal affairs of the Party. This argument is
deeply problematic considering the scope and the magnitude of the Party’s involvement
in the decision making of all state affairs in the country.
Transparency improves, albeit with great limitations, after a case has been transferred
by the CDIs to the state legal institutions for prosecution and trial. At this stage, the
accused would enjoy the right to counsel and more information related to the charges will
be disclosed to the defense. However, when a corruption cases goes to trial, the court room
is generally cordoned off from the public and mass media. Hence, it was unprecedented
when the Jinan Intermediate Court decided to live-broadcast the trial of Bo Xilai, a former
Politburo member accused of corruption. The transcripts of the trial were ‘tweeted’ out to
the public live, albeit with a few minutes of delay, through Weibo, a Chinese Twitter-like
social media platform. During the week of Bo’s trial, millions of Weibo users were glued to
their computer monitors or mobile phones to get updated of the court proceedings. Later
when the court convicted Bo, a full-length court decision was also disseminated to the
public. At that time, many thought that the ‘Weibo-cast’ of Bo Xilai’s case would mark the
beginning of an era of judicial transparency. Many are left disappointed.
Since the new administration took office in late 2012, an anticorruption campaign
of unprecedented scale and scope was launched. More corruption investigations were
conducted in the last five years than the previous forty years combined. At the same time,
courts launched a ‘Sunshine Justice’ initiative, which consists of a series of measures to
increase the transparency and accessibility of judicial services, including making more
court decisions available to the public. However, information concerning corruption-
related court activities has become opaquer instead of more transparent. First, after the
trial of Bo Xilai, no trials of ranked public officials have been made open to the public in
any shape or form. Live streaming of court activities has been made possible for certain
types of cases but never for cases of corruption. Instead, only snippets of video clips or still
images taken from the trial will be released through official media, just enough to show
the confession of guilt of the accused and the rendering of conviction. The trial of Bo Xilai
became the first and the last (semi)-open trial on corruption that an observer can only
hope to have. Second, contrary to what the ‘Sunshine Justice’ initiative suggests, judicial
activities concerning high-ranking public officials become a blind spot that is exempted
from relevant transparency measures and are kept in the shadow despite the high level of
public interest involved in these cases. Based on a search at the national court judgements
database (http://wenshu.court.gov.cn), no court decision of the 65 court trials of corrupt
public officials at and above the deputy ministerial rank taken place after 201220 has been

a One‐Party State’ (37) Law & Social Inquiry 848.

20
 (2015) ‘Meiti tongji shibada hou 130 ge shengbu junji guanyuan luoma mingdan’ (Media Calculates that 130
Provincial Level Military Officers on Retirement List after the 18th Party Congress), Sina, November 19, 2015,
388 JCL 12:2
 ling li

made available to the public at the time of writing. Third, after 2012, courts have tightened
the regulation of lawyers’ activities in and out of courts, barring them from disclosing
information of court activities on sensitive cases to the public. This measure has effectively
cut off the last remaining however ad hoc non-official access to anticorruption information,
which was tolerated before the new regulation. Therefore, the transparency of judicial
activities regarding individual corruption cases, especially those involving high ranking
officials, has clearly reduced compared with the situation before 2012.

Statistics

As mentioned earlier, statistics regarding anticorruption activities can help identify

patterns of corrupt conduct, its attributing factors, to assess the effectiveness of
anticorruption policies and to evaluate and improve the performance of anticorruption
institutions. In China, anticorruption institutions are best positioned to conduct such
statistical compilation and analysis since they collect and hold the original data. It is also
reasonable to believe that these institutions have the technical capacity to perform these
tasks.21 Currently, statistics on anticorruption activities are released mostly by the CCDI
and the Supreme People’s Procuratorates. Even though the scope of such information
is disproportionate to the richness of the raw data that these institutions can collect,
considerable improvement has been made. For a long time, what we could find in the press
release was only the simple aggregation of the cases that had been opened and closed in
the previous year and the general historical trend. Since 2012, the CCDI has been releasing
notices of anticorruption decisions of individual cases in a much more regular and timely
fashion, which has provided a pool of meta-data that can be used by commercial media
and researchers for further statistical analysis.22

ANTICORRUPTION PROPAGANDA AND DISINFORMATION

In contrast to the reticence of anticorruption institutions regarding the disclosure of factual

information on anticorruption activities, the propagation of information that is collected
and compiled for propagandistic purposes is proactive and its methods have become more
refined and sophisticated. In this case, propaganda is defined as ‘a systematic form of
purposeful persuasion that attempts to influence the emotions, attitudes, opinions, and
actions of specified target audiences for ideological, political or commercial purposes
through the controlled transmission of one-sided messages (which may or may not be
factual) via mass and direct media channels.’23
Propagandistic anticorruption information is different from factual anticorruption
information in two main aspects. Firstly, anticorruption propaganda is used to influence
its readers and audience whilst factual presentation of anticorruption information is to

http://news.sina.com.cn/c/sz/2015-11-19/doc-ifxkwuwy6977243.shtml (accessed October 6, 2017).

21
 The Supreme People’s Procuratorate website, ‘Zuigaojian: 2017nian quanmian tuijin guojia jiancha da shuju
zhongxin jianshe’ (Supreme People’s Procuratorate: 2017 to see the nationwide rolling out of national inspection
Big Data centres), http://www.spp.gov.cn/zdgz/201701/t20170114_178549.shtml (accessed October 6, 2017).
22
 For example, see the special column on corruption at http://news.sina.com.cn/z/zgfanfu2012/.
23
 Nelson, RA (1996) A Chronology and Glossary of Propaganda in the United States Greenwood Publishing Group
at 232-233.
JCL 12:2 389
Transparency, Propaganda and Disinformation

inform. Secondly, propagandistic information is not grounded on facts. Instead, a large

portion of its contents consists of a repetition of doctrinal information, personal opinions
and expressions of self-reflecting thoughts. Therefore, the costs and efforts required to
produce such information is much cheaper compared with the costs of production of news
items grounded in fact-finding. Consequently, propagandistic information is produced in
much greater volume and disseminated with greater intensity in comparison to factual
information.
Corruption-related propagandistic information can be divided into two categories. The
first is information compiled by the official anticorruption institutions. Such information
includes coverage of anticorruption activities, journalistic-style reports on corruption
scandals, anticorruption editorials and other supportive information such as repentant
statements provided by corruption offenders. Most of this category of information is
created by professional reporters or writers. The second category is comprised of the large
volume of fragmented and brief online commentary remarks in support of the official
anticorruption policies or decision. Such information is mostly created and disseminated
by propagandistic workers recruited by the Party propaganda department and its branches
as well as the Communist Youth League, who are nicknamed as ‘little pink (xiao fenhhong)’
or ‘fifty cents party (wu mao dang)’,.24 Among the two categories of propaganda, the role of
the first is primary and will be the focus of the analysis below.

The logic of the propagandistic anticorruption narrative

The main function of corruption-related propaganda is to establish in the mind of its

readers a specific narrative of corruption, in other words, why corruption happens, how it
happens and what role the Party plays in corruption-related activities. Such narratives are
used to isolate the exposed corrupt conduct from the rest of Party affairs and subsequently
insulate the Party from the misdeeds of its corrupt members. Typically, these narratives
emphasize the ill temperament or moral flaws of the corrupt official, in particular,
distancing oneself from the masses, being blinded by the power of public offices, and
betrayal of the trust of the Party and the people. For example, in a report tracing the corrupt
career of Liu Tienan, a senior official at the powerful National Committee of Reform and
Development, Liu’s conviction was described as ‘self-sought shame (jiuyouziqu)’ and Liu’s
corrupt conduct was ascribed, through the words of an interviewee, as the inevitable result
of his ill dispositions to his growing arrogance and dictatorialness.25
Anticorruption narratives also emphasize the role of certain external factors that compel
officials to commit corruption. Such influence comes mainly from two sources: greedy
family members and scheming bribers. For example, the corrupt conduct of Xi Xiaoming,
former vice-president of the Supreme People’s Court, is explained as the result of his bad
parenting, which, according to the report, had led him to fall victim to the greediness of his
son, who was found to have served as the intermediary of most of the corrupt transactions

24
 For further reading on this topic, see Rongbin Han (2015) ‘Manufacturing consents in Cyberspace: China’s
Fifty Cents Army’ (44) Journal of Current Chinese Affairs 105.
25
 Similar narratives can be found in the reports on the cases of Liu Tienan, Deng Qilin, Tan Qiwei. See the
documentary series: Zhong J. (2016) ‘Yongyuan zai lushang’ (Always on the Road) produced by the CCDI and
CCTV in 2016.
390 JCL 12:2
 ling li

that Xi was accused of.26 Similarly, former deputy Chairman of the National People’s
Conference of Political Consultancy and governor of Jiangxi, Su Rong also attributed his
crime to bad parenting in his own repentant statement.27 Apart from family members,
bribers are also blamed for the corrupt conduct of officials. For example, in explaining
pervasive corruption in Shanxi Province, an anticorruption investigator used the phrase
‘encircled and ensnared (wei lie)’ to describe the environment in which officials conducted
their business and were ‘compelled’ to take bribes from business-owners. 28 Such
narratives highlight the instrumentality of the bribers whose deception is, apparently, so
difficult for officials to discern until such corrupt engagement is caught and punished
by anticorruption institutions.29 Furthermore, as far as the narratives go, the vulnerability
of these corrupt officials towards greed and temptation is characterized as the outcome
of their abandonment of communist ideology, their failure to follow Party instructions
and to adhere to Party disciplines. By deserting the communist cause and leadership, as
explained in these narratives, these officials strayed from the flock and subsequently fell
victim to self-inflicted wrongs becoming susceptible to the corrupting (external) elements.
Therefore, the explanation of why and how corruption takes place provided by
official narratives associates corruption with the dispositional characteristics of individual
offenders. They assign the cause of corruption to the corrupt officials themselves or
external factors, such as bad influence from their family members and/or scheming
bribers. At the same time, this explanation dissociates the parasitic conduct of corrupt
officials from their host, the Party. As the narrator stated in a CCDI documentary series
Always on the Road: ‘Implementation of rules eventually relies on the [individual] person
[in office] … If everyone strictly complies with the regulations and the rules, then there
will be no corruption’.30 This line of explanation is repeatedly addressed in the remorse
statements (chanhui shu) of officials convicted for corruption, in which they would claim
full responsibility for the crime that they have committed and repent for the damage
that they have caused to the Party and the people.31 Occasionally systemic factors are
also mentioned in the propagandistic narratives, for example, when collusive corruption
is involved. However, such systemic factors that are now popularly termed as ‘political
ecological environment (zhengzhi shengtai huanjing)’ must be presented as a localized issue,
i.e. confined within the geographic/sectorial jurisdiction of the officials involved.32 Once
localized, even systemic factors can be isolated from the Party and keep the integrity of
the latter intact.
As mentioned above, in anticorruption propaganda the report of corruption scandals
always goes hand in hand with the coverage of anticorruption activities. The narratives
applied in the reporting of corruption scandals not only dissociate the Party from the
corrupt offenders but also portray the Party as a wise victim who is able to discern the
betrayal of their trust by the corrupted official. Now enlightened, the Party turns itself

26
 See http://china.caixin.com/2017-01-12/101042911.html.
27
 Zhong Always on the Road supra note 25 episode 4.
28
 Ibid episodes 3 & 4.
29
 Ibid episodes 5 & 8.
30
 Zhong Always on the Road Always on the Road supra note 25 episode 8.
31
 This line of discourse was used by almost every convicted official who was interviewed in the documentary-
series.
32
 Zhong Always on the Road supra note 25 episodes 5 and 8
JCL 12:2 391
Transparency, Propaganda and Disinformation

from a victim to a crusader and becomes the only force that can be relied upon to right
the wrong. Next, the propaganda narrative focuses on the salvation of the Party, who
as the guardian of the interests of the people, is ready to take all actions necessary to
fight corruption. Specifically, party-state propaganda will demonstrate anticorruption
policy-makers’ belief in the value of honesty of public offices and their recognition of the
severity of the political and social harm of corruption to public interest. Any suspicion or
speculation, if it exists, about ulterior motives behind the anticorruption polices will also
be dispelled. Anticorruption propaganda also highlights the urgency of the problem of
corruption, famously framed as an issue of the life and death, which justifies the relevant
anticorruption policies, measures and practices.
The last strand of the anticorruption propagandistic narrative is to show the robustness
of the implementation of anticorruption measures and the efficacy of enforcement by
anticorruption institutions. All corruption cases that have been exposed are presented
not only as evidence of the misdeeds of individual offenders but also as evidence of the
achievement of the Party’s anticorruption efforts. These cases exemplify the compelling
force of anticorruption polices, the relentlessness of implementation efforts and the potency
of the disciplinary capacity of the Party, all of which are proofs of the indispensability of
the Party as the most reliable force to fight corruption.

Re-styling anticorruption propaganda

Since 2012, there has been a surge, in terms of volume and intensity, of dissemination of
anticorruption propaganda. In early 2014, soon after President Xi Jinping took office, an
important institutional change was made to promote the effectiveness of anticorruption
propaganda. The CCDI, the most important anticorruption institution in China, set up
its own propaganda department. This means that the CCDI is granted the power to
disseminate anticorruption information directly to the public, presumably bypassing
censorship examination by the Central Propaganda Department, hence avoiding delay
and stalling caused by intricate inter-departmental politics. At the same time, the Party
appointed Xiao Pei to head the new CCDI Propaganda Department, an appointee who has
had a long track record as an editor-in-chief at both Party and metropolitan newspapers,
notably including the Beijing Youth Daily and Beijing Evening Newspaper.33
Thus empowered, the CCDI first launched an anticorruption propaganda campaign
to ‘demystify’ its anticorruption work,34 announcing anticorruption policies, decisions,
work procedures and regularly and timely updates on the progress of individual case
investigations.35 In September 2013 the CCDI and the MOS jointly opened their stand-
alone website www.ccdi.gov.cn. On 1 January, 2015, the CCDI ushered the New Year with
a brand-new template on their website, adopting a refreshing sans-serif style. At the same

33
 Haitao Wang, ‘Zhongjiwei de xuanchuan gongzuo zenme zheme niu’ (Why is the Propaganda Work of
the CCDI So Brilliant) Sina December 16, 2014 http://news.sina.com.cn/zl/zatan/2014-12-16/09052824.shtml
(accessed October 6, 2017).
34
 Shu Wang, ‘Zhongjiwei guanwang deng “2014 wangluo yu qingredian shou bao meiti paihangbang”
(CCDI Official Website Reporting the Ranking of the Most Discussed Public Opinion Hot Topics in 2014)’ Sohu
December 25, 2014, http://news.sohu.com/20141225/n407284936.shtml (accessed October 6, 2017).
35
 Yuliang Wu (2015) ‘Zhongyang jiwei zuzhibu, xuanchuanbu de zujian beijing, lishi yange he zhuyao
zhineng’ (Background, History and Main Functions of the CCDI Organizational Department and Propaganda
Department) (2015) CCDI Press Release.
392 JCL 12:2
 ling li

time, the CCDI hired more staff for its propaganda division to ensure that the website’s
homepage is updated on a daily basis.36 Six months later, the website launched a platform
for the public to report disciplinary violations online. A further six months later, the CCDI/
MOS opened their official account on the popular social media platform Wechat and
launched a mobile App.
This ‘demystification initiative’ has significantly raised public awareness of the
anticorruption activities of the Party. Since its launch the CCDI website has become the
most important window to the anticorruption work conducted by the most important
anticorruption institutions in the country. Having the privilege to be the first to report on
anticorruption investigations involving high-ranking public officials, the CCDI website
attracted daily traffic of more than 1 million hits and ranked as the most visited official
websites of any public institution in 2014.37
At present, the website has eight columns: Leaders’ Activities, Party Disciplines and
Regulations, Disciplinary Examination, Inspection Work, Open Information, Monitoring
and Exposure, Online Interview, Online Exhibition. The website releases a considerable
amount of anticorruption-related factual information. It collects, compiles and releases
information regarding the latest anticorruption activities of the CCDI and all provincial
CDIs. It outlines and provides the full text of important anticorruption regulations.
Needless to say, the website is also a propaganda platform, hosting special editions where
the profiles of model anticorruption agents are published and the confessions of convicted
officials are displayed in multi-media forms.
Perhaps most important of all, the jewel of the crown of anticorruption propaganda
work is a two-part documentary-series that the CCDI produced together with the national
state television network CCTV in 2016. The first series Always on the Road addresses the
question of how corruption takes place. The series covers eight slightly different themes
in eight episodes. Each episode addresses one anticorruption policy issue, which is
exemplified by specific case stories. The entire series covers more than 40 corruption cases,
including those of ‘big tigers’, that is the Party officials of and above the rank of deputy
minister. The second series has three episodes, reporting on the internal investigations
of corruption committed by anticorruption agents. It addresses the classic question of
who monitors the monitors and underlines the political mission and ethical obligations
of anticorruption institutions and their agents. Both series were broadcast at primetime
on CCTV and are available for streaming on the CCDI website as well as other major
commercial video-streaming websites.
In the past, anticorruption propagandistic multimedia materials were old fashioned,
adopting a heavy-handed, outmoded propagandistic style that can be traced back to the
early time of the PRC. The materials were monotonous and would overwhelm the audience
with dry texts of anticorruption policies and propagandistic commentaries delivered by
a high-pitched narrator. The interviews were noticeably staged and confessions were
unconvincing.

 Wang Charting Public Opinion supra note 34.

36

 Ibid
37

Holland, M (2006) ‘The Propagation and Power of Communist Security Services Dezinformatsiya’ (19)
International Journal of Intelligence and Counterintelligence 1. Herman, ES and Chomsky, N (2010) Manufacturing
consent: The political economy of the mass media Random House.
JCL 12:2 393
Transparency, Propaganda and Disinformation

The two latest CCDI documentary-series mark a major contrast to the above. They
followed the Western style of ‘current affairs’ broadcast journalism format with a greater
sense of journalistic realism. Interviews with corruption offenders and anticorruption
agents constitute the backbone of the series, in addition to footages of past and recent
activities of Party leaders and interviews of incumbent Party leaders and experts. The
series does not have a presenter. The interviewer’s face and voice are also cut from the
scenes. Therefore, from the audience’ viewpoint, all stories are told by the corruption
offenders themselves and anticorruption agents who are involved in the cases. The scenes
are cut frequently between the shots of street views of the location where the crime took
place, the prison where the offenders are kept and the office where the anticorruption
agents are interviewed. In between the stories, current practices are related to past
practices in the earlier period of the PRC and imperial China, punctuated with ancient
anticorruption aphorisms. All these various fragments, including interviews, archival
footages, figures and charts, are connected through the voice-over of a mature baritone,
who provides coherence to the story and elevates its moral significance with important
editorial messages. Without conducting a well-designed survey, it is difficult to precisely
evaluate the effect of this new-style propaganda on its viewers’ perception of corruption
and anticorruption activities, but there is no doubt that this new realistic reporting style
blurs the line between factual and propagandistic information more than ever.

Disinformation

Disinformation is one of many propagandistic techniques that existed long before the
arrival of the ‘post-truth’ era where ‘fake news’ can make a difference.38 Disinformation
works most effectively where access to the source of information is monopolized and
strictly controlled by the government. In the context of anticorruption activities in China,
disinformation may be used during smearing campaigns which usually company the fall of
corrupt high-ranking officials. Stories produced during such campaigns aim to demoralize
and discredit officials, who are prohibited to voice their points of view and to challenge
the official narratives themselves or through their attorneys, or their family members.
Such monopolistic control of access to the source of information makes the public more
receptive to disinformation produced and circulated by the government.
However, disinformation does not only take place in authoritarian regimes where
information is heavily censored. Societies with free access to information are also
vulnerable to disinformation. For example, overseas Chinese news outlets are flooded
with unexamined accusations against public officials except that their targets are officials
who are still in power. These outlets are often hosted by dissidents of the Chinese
government, who establish their own broadcasting channels, empowered by the user-
generated information-sharing platforms, most notably Youtube. These ‘self-media’ outlets
broadcast not only dissenting political opinions but also serve as platforms through which
individuals can air news-worthy corruption allegations of Chinese government leaders
who are still in power, which is a taboo topic in the media within China.

 Holland, Max (2006) ‘The Propagation and Power of Communist Security Services Dezinformatsiya’ 19
38

International Journal of Intelligence and CounterIntelligence 1. Herman ES , Chomsky, N (1994) Manufacturing

Consent--The political economy of the mass media. Vintage
394 JCL 12:2
 ling li

The story that has received the widest public exposure involved recent allegations
made by Guo Wengui, a New York-based business tycoon, who accused several members
of the Politburo of the Party of various offenses, including embezzlement, solicitation and
taking of bribes. The allegations were broadcast in the form of interviews first through
Youtube Channel of Mingjing TV and later Guo Wengui’s own Youtube channel and
Twitter account. The participation of such ‘independent’ media outlets adds an additional
dimension to the corruption-related information landscape. At the same time, in the
absence of institutionalized journalistic ethics rules, these ‘independent’ news outlets
are easy platforms for disinformation as much as the authorized propaganda platforms.
Consequently, despite that more information is produced, it is however mixed with
disinformation that is difficult for average reader/audience to ascertain and hence does
not necessarily bring us closer to truth.

CONCLUSION

This article has assessed the quality of transparency of anticorruption activities in China
by examining the availability of anticorruption information in the public domain and the
quality of the access to such information. Given the role of censorship and propaganda in
information dissemination and media practices in China, I made an important distinction
between factual information and propaganda and examined both.
In general, the volume of corruption-related information has drastically increased
since 2012 thanks to the introduction of various social media platforms and the increased
anticorruption efforts. There has been some steady improvement in the release of corruption-
related laws and regulations as well as of the announcement of main procedural decisions
during the disciplinary and/or judicial processes of individual corruption cases. However,
the control over detailed information that may explain how and why a specific decision has
been made was significantly tightened. More importantly, recipients of corruption-related
information enjoy no autonomy in their choice of the information received because of the
limit on the access to the source of information controlled by governmental authorities.
While the provision of factual information remains limited, propagandistic
anticorruption information is produced in abundance and circulated to the public with
much greater intensity and growing sophistication. In the past five years, great efforts
have been made by the Party to improve the popularity of anticorruption propaganda
and to increase the diversity of anticorruption propagandistic contents. The purpose of
anticorruption propaganda remains the same, which is to localize problems of corruption
by characterizing corruption offenders as trust-breaching and venal opportunists who
have deserted the cause of the Party and fall prey to beguiling bribers. Thus, the Party is
able to portray itself both as a victim of the crimes of corruption and as a crusader against
corruption, while striving to have its moral image repaired and integrity restored.

JCL 12:2 395

Transparency, Propaganda and Disinformation

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

chanhui shu 忏悔书 remorse statements

Fantanwuhuilu Ju 反贪污贿赂局 Anti-Embezzlement and
Bribery Bureau (AEBB)
Guojia Jiancha Weiyuanhui 国家监察委员会 National Supervision
Commission (NSC)
Jilü Jiancha Zazhi 纪律监察杂志 Discipline and Inspection
Magazine
Jiancha Ribao 检察日报 Procuratorate’s Daily
touming 透明 transparency
weilie 围猎 encircled and ensnared
wumao dang 五毛党 fifty cents party
xiao fenhong 小粉红 little pink
yangguang zhengyi 阳光正义 sunshine justice
zhengzhi shengtai huanjing 政治生态环境 political ecological
environment
Zhongguo Jijian Jiancha Bao 中国纪检监察报 Discipline and Inspection
Magazine (of China)
Zhongyang Jilü Jiancha 中央纪律检查委员会 Central Commission for
Weiyuanhui Discipline and Inspection
(CCD)

396 JCL 12:2

 rongbin han

Supervising Authoritarian Rule Online:

Citizen Participation and State
Responses in China
RONGBIN HAN*
University of Georgia

INTRODUCTION

Without competitive elections and other institutions to foster accountability, officials

in authoritarian regimes have ample opportunities to engage in corruption or other
misconduct. Autocratic leaders are often not incentivized to discipline their agents.1 Instead
they may use corruption as a mechanism to secure patronage from the governing coalition
whose loyalty is essential for their political survival.2 However, rampant corruption and
official misconduct can be detrimental to authoritarian rule as it may chip away at the
regime’s legitimacy and weaken its capacity to rule.3 This is why authoritarian regimes
such as former Soviet Union, Cuba, Vietnam, and China have all installed anti-corruption
institutions and enforced various measures to punish deviant officials.4 To curtail
corruption and check corrupt officials more effectively, authoritarian states may tolerate
or even encourage citizen participation. However, public participation is a ‘double-edged

* Earlier versions of the article were presented at the 2015 American Political Science Association Annual
Conference in San Francisco and 2016 conference of Transparency Matters in Hong Kong. The author would
like to thank the panel participants for their constructive feedback. The author is especially grateful for the
valuable input from Daniela Stockmann, Hualing Fu, Maria Repnikova, the anonymous reviewers and the
editors. Readers wishing to contact the author should write to: hanr@uga.edu, at the Department of International
Affairs, Athens, GA 30602
1
 See Montinola GR and Jackman RW (2002) ‘Sources of Corruption: A Cross-Country Study’ (32) British Journal
of Political Science 147; Hollyer JR, Rosendorff BP and Vreeland, J (2011) ‘Democracy and Transparency’(73) The
Journal of Politics 1191.
2
 de Mesquita, BB et al. (2003) The Logic of Political Survival Cambridge.
3
 Seligson, MA (2002) ‘The Impact of Corruption on Regime Legitimacy: A Comparative Study of Four Latin
American Countries’ (64) Journal of Politics 408.
4
 Clark, WA (1993) Crime and Punishment in Soviet Officialdom: Combating Corruption in the Political Elite, 1965-
1990 ME Sharpe; Díaz-Briquets, S and Pérez-López J (2010) Corruption in Cuba: Castro and Beyond; World Bank
(2013, originally 2012) Corruption from the Perspective of Citizens, Firms, and Public Officials - Results of Sociological
Surveys Working Paper 73807 National Political Publishing House, Second Edition, http://documents.
worldbank.org/curated/en/home (accessed October 13, 2017); Wedeman, A (2012) Double Paradox: Rapid Growth
and Rising Corruption in China Cornell University Press; Manion, M (2009). Corruption by Design: Building Clean
Government in Mainland China and Hong Kong Harvard University Press. For cases in North Africa and Middle
East, see Gillespie, K and Okruhlik, G (1991) ‘The Political Dimensions of Corruption Cleanups: A Framework
for Analysis’ (24) Comparative Politics 77.
JCL 12:2 397
Supervising Authoritarian Rule Online

sword’ for an authoritarian state: on the one hand, it may benefit the regime by increasing
citizens’ political efficacy and enhancing their trust in the state as well as by more effectively
controlling corruption, thus boosting state performance; on the other hand, it may erode
regime legitimacy as the process per se can be frustrating for citizens while at the same
time campaigns run the risk of exposing the pervasiveness of governmental corruption
and misbehavior to the public.
The expansion of new information and communication technologies (ICTs) such as
the internet has further complicated the dilemma authoritarian regimes face as they now
essentially have no choice but to tolerate and accommodate citizen participation. Studies
reveal that ICTs have expanded both official channels to engage the public and the space
for citizen-driven participation initiatives,5 thereby empowering citizens in authoritarian
regimes that lack effective institutions for policy input and feedback.6 However, such
idealized image of technological empowerment is far from the complete picture. With the
help of sophisticated censorship measures, innovative propaganda strategies, and a strong
repressive apparatus, authoritarian states such as China and Putin’s Russia have achieved
a considerable level of control over online information flow.7 Such cases of authoritarian
adaptability confirm the resilient authoritarianism thesis.8
A number of pertinent questions remain such as has the expansion of the internet
rendered authoritarian states more tolerant or restrictive towards citizen participation?
How do state responses shape citizen participation online? This essay tackles these
questions by exploring citizen-driven online supervision efforts through non-state digital
platforms and the state responses in China. The China case is particularly revealing given
that the authoritarian regime is considered one of the strongest in the world and that it
has been undergoing a state-sponsored anti-corruption campaign that has brought down
thousands of officials. Examining online supervision in such a context and against such a
background thus allows a more nuanced understanding of technological empowerment
and state responses.
The article contends that the internet has empowered Chinese citizens, but only in
selective ways as they are enabled more to expose individual cases of corruption and official
misconduct than to pursue systematic changes. Such ‘selective-empowerment’ happens to
play into the hands of the party-state, allowing it to eliminate more threatening forms of
citizen participation and to tolerate less threatening ones. Such a ‘selective-empowerment’

5
 Elbahnasawy, NG (2014) ‘E-Government, Internet Adoption, and Corruption: An Empirical Investigation,’
57 World Developmet 114; Andersen TB (2009), ‘E-Government as an Anti-Corruption Strategy,’ 21 Information
Economics and Policy 201; Kim S, Kim HJ and Lee H (2009), ‘An Institutional Analysis of an E-Government
System for Anti-Corruption: The Case of OPEN,’ 26 Government Information Quarterly 42; Kim CK (2013), ‘Anti-
Corruption Initiatives and E-Government: A Cross-National Study,’ 14 Public Organization Review 385.
6
 Healy PM and Ramanna K (2013), ‘When the Crowd Fights Corruption,’ 92 Harvard Business Review 122;
Zinnbauer D (2015), ‘Crowdsourced Corruption Reporting: What Petrified Forests, Street Music, Bath Towels,
and the Taxman Can Tell Us About the Prospects for Its Future,’ 7 Policy and Internet 1.
7
 King G, Pan J and Roberts ME (2013), ‘How Censorship in China Allows Government Criticism but Silences
Collective Expression,’ 107 American Political Science Review 327; MacKinnon R (2011), ‘China’s ‘Networked
Authoritarianism’,’ 22 Journal of Democracy 32; Toepfl E, (2011) ‘Managing Public Outrage: Power, Scandal, and
New Media in Contemporary Russia,’ 13 New Media and Society 1301; Deibert R et al. (2008), Access Denied: The
Practice and Policy of Global Internet Filtering Cambridge; Deibert R et al. (2010), Access Controlled: The Shaping of
Power, Rights, and Rule in Cyberspace Cambridge; Kalathil S and Boas TC (2003), Open Networks, Closed Regimes:
The Impact of the Internet on Authoritarian Rule Carnegie Endowment for International Peace.
8
 Nathan, A (2003), ‘Authoritarian Resilience,’ 14 Journal of Democracy 6; Shambaugh DL (2008), China’s
Communist Party: Atrophy and Adaptation Berkeley.
398 JCL 12:2
 rongbin han

explains how authoritarian regimes may optimize citizen participation despite the impact
of the new technology.
The analysis draws on a wide-range of sources. Firstly, the project combines ‘guerilla
ethnography’ across the Web9 and long-term observation of China’s most popular
internet forum, Tianya Club (Tianya Luntan, Tianya.cn), to gather data. Tianya.cn is an
ideal site to observe online supervision because it offers channels for citizens to complain
and has served as the base for many online supervision cases. Secondly, the project uses
the case library compiled by People’s Daily Online Public Opinion Monitoring Center
(PDOPOMC). The library contains 525 relevant cases of ‘public opinion events’ between
2008 and 2015, of which 57 relate to governmental or official misbehavior. These cases are
further analyzed to identify how they are exposed online. Third, to show the evolution of
online supervision, the project also draws on studies by Chinese scholars who collected
hundreds of online supervision cases over the years. Their findings are also used to
triangulate the PDOPOMC data. Lastly, media reports and official documents also serve
as important sources to decipher the state’s perception and behavior. Drawing on multiple
sources rather one specific dataset is necessary as the goal of this project is to provide a
big-picture view of online supervision and state responses in China.

CITIZEN PARTICIPATION AND ONLINE PUBLIC SUPERVISION

Citizen participation has historically been an important part of contemporary Chinese

politics. The mass line (qunzhong luxian), as an organizational principle of the Chinese
Communist Party (CCP), prescribes that party cadres must consult the masses, incorporate
their opinions and suggestions in policy making, and solicit their input when enforcing the
resulting policies. During the Maoist era, citizens were mobilized in mass campaigns to
check party-officials’ misconduct and ideological deviances.10 In the post-Mao reform era,
although the party-state resorts to mass campaigns less frequently,11 it has continued its
emphasis on the ‘mass line,’ at least rhetorically, as a means to supervise the state apparatus
and governmental officials. To achieve the goal, the state has restored and established
various institutions for public participation, including the letters and visits system (xinfang
zhidu) and administrative litigation (xingzheng susong).12 Paramount leaders such as Deng
Xiaoping, Jiang Zemin, Hu Jintao and Xi Jinping have all stressed that the Party and its
cadres should be subject to ‘mass supervision’ (qunzhong jiandu).13 In effect, the latest

9
 Yang G (2003), ‘The Internet and the Rise of a Transnational Chinese Cultural Sphere,’ 24 Media, Culture and
Society 469.
10
 Wedeman, supra Note 5.
11
 Quade EA (2007), ‘The Logic of Anticorruption Enforcement Campaigns in Contemporary China,’ 16 Journal
of Contemporary China 65; Zengke He, ‘Corruption and Anti-Corruption in Reform China,’ 33 Communist and
Post-Communist Studies 243.
12
 Chen X (2008), ‘Collective Petitioning and Institutional Conversion,’ in Popular Protest in China, O’Brien KJ,
(2008) ed, Cambridge at 54; Minzner CF (2006), ‘Xinfang: An Alternative to Formal Chinese Legal Institutions,’
(42) Stanford Journal of International Law 103; O’Brien KJ and Li L (2004), ‘Suing the Local State: Administrative
Litigation in Rural China,’ (51) The China Journal 75; Pei M (1997), ‘Citizens v. Mandarins: Administrative
Litigation in China,’ (152) The China Quarterly 832.
13
 Deng X, ‘Dang he Guojia Lingdao Zhidu de Gaige’ (Reforming the System of the Party and State
Leadership), Feb. 4, 2005, http://news.xinhuanet.com/ziliao/2005-02/04/content_2547080.htm; Jiang Z, ‘Zuo Yige
Xinshiqi Hege de Lingdao Ganbu’ (On Being A Qualified Cadre in the New Era), in Lun Dang de Jianshe (On
Party Building) (Zhongyang wenxian chubanshe, Beijing, 2001); Hu J, ‘Zai Qingzhu Zhongguo Gongchandang
JCL 12:2 399
Supervising Authoritarian Rule Online

Chinese Constitution (1982, revised 2004) explicitly stipulates that citizens ‘have the right
to criticize and make suggestions regarding any State organ or functionary,’ and ‘to make
to relevant State organs complaints or charges against, or exposures of, any State organ or
functionary for violation of law or dereliction of duty.’14
Moreover, the state has encouraged ‘public opinion supervision’ (yulun jiandu) and
‘media supervision.’ First coined by then Party General Secretary Zhao Ziyang at the
Party’s 13th Congress,15 the term repeatedly appeared in subsequent CCP political reports.
At the 14th National Congress, Jiang Zemin stressed the necessity to ‘take public opinion
supervision by the media seriously.’16 At the 15th Party Congress, Jiang Zemin called to
‘integrate intra-party, legal, and mass supervision, and give scope to the role of public
opinion supervision.’17 The 16th and 17th Party Congresses reiterated the importance to
‘strengthen democratic supervision’ and to ‘allow public opinion supervision.’18 The
18th CCP Congress juxtaposes ‘intra-party supervision, democratic supervision, legal
supervision, and public opinion supervision’ as critical means to enable the people to
‘oversee the exercise of power’ and to ensure that power is exercised transparently.’19
Beyond rhetoric, the state has also allowed investigative journalism to flourish despite
continued censorship and other forms of political constraint.20 It should, however, be
noted that the regime lacks the political will to completely unleash the full potential media
supervision. After all, for the party-state, fighting corruption is a ‘double-edged sword’
because ‘though the anti-corruption campaign hits cadres and party members that violate
party disciplines and laws, it hurts the organization and damages the image of the party.’21

Chengli 90 Zhounian Dahui shang de Jianghua’ [Speech at the 90th Anniversary Ceremony of the Chinese
Communist Party] Jul. 1, 2011, http://news.xinhuanet.com/politics/2011-07/01/c_121612030_6.htm; Xi Jinping,
‘Zai Dang de Qunzhong Lunxian Jiaoyu Shijian Huodong Zongjie Dahui shang de Jianghua’ (Speech at the
General Assembly Concluding the Party’s Mass Line Education and Practice Campaign), People’s Daily, October
9, 2014.
14
 See Constitution of the People’s Republic of China (182, as revised 2004), Article 41.
15
 Zhao Z, ‘Zai Zhongguo Gongchandang Di 13 Ci Quanguo Daibiao Dahui shang de Baogao’ (Political
Report at the CCP 13th National Congress) October 25, 1987, http://news.xinhuanet.com/ziliao/2003-01/20/
content_697069.htm.
16
 Jiang Z, ‘Zai Zhongguo Gongchandang Di 14 Ci Quanguo Daibiao Dahui shang de Baogao’ (Political
Report at the CCP 14th National Congress) October 12, 1992, http://news.xinhuanet.com/ziliao/2003-01/20/
content_697148.htm.
17
 Jiang Z, ‘Zai Zhongguo Gongchandang Di 15 Ci Quanguo Daibiao Dahui shang de Baogao’ (Political
Report at the CCP 15th National Congress) September 12, 1997, http://news.xinhuanet.com/ziliao/2003-01/20/
content_697207.htm.
18
 Jiang Z, ‘Zai Zhongguo Gongchandang Di 16 Ci Quanguo Daibiao Dahui shang de Baogao’ (Political Report
at the CCP 16th National Congress) November 17, 2002, http://news.xinhuanet.com/newscenter/2002-11/17/
content_632278.htm; Hu Jintao, ‘Zai Zhongguo Gongchandang Di 17 Ci Quanguo Daibiao Dahui shang de
Baogao’ (Political Report at the CCP 17th National Congress) October 24, 2007, http://news.xinhuanet.com/
newscenter/2007-10/24/content_6938568_5.htm.
19
 Hu J, ‘Zai Zhongguo Gongchandang Di 18 Ci Quanguo Daibiao Dahui shang de Baogao’ (Political
Report at the CCP 18th National Congress) November 17, 2012, http://news.xinhuanet.com/18cpcnc/2012-
11/17/c_113711665_6.htm.
20
 Zhou Y (2000), ‘Watchdogs on Party Leashes? Contexts and Implications of Investigative Journalism in Post-
Deng China,’ 1 Journalism Studies 577; Liebman BL, (2012) ‘The Media and the Courts: Towards Competitive
Supervision?,’ 208 The China Quarterly 833; Li X (2002), ‘Focus’ ( Jiaodian Fangtan ) and the Changes in the
Chinese Television Industry,’ 11 Journal of Contemporary China 17; Stockmann D (2013), Media Commercialization
and Authoritarian Rule in China Cambridge; Bandurski D and Hala M, eds. (2010), Investigative Journalism in
China: Eight Cases in Chinese Watchdog Journalism Hong Kong; Repnikova M (2014), Limited Political Openings
under Authoritarianism: Critical Journalists and the State in China (Ph.D. Dissertation, Oxford University).
21
 CCDI, ‘Tuchu Jijian Tese’ (Highlight the Features of Discipline Enforcement), June 1, 2015, http://www.ccdi.
400 JCL 12:2
 rongbin han

Both ‘mass supervision’ and ‘public opinion supervision’ imply only citizen participation
under the auspices of the party-state in official discourse, and as such are narrower than
‘public supervision.’ However, as contentious politics scholars find, Chinese citizens in
the reform era have resorted to popular contention to lodge complaints and check corrupt
officials. In particular, they often exploit the internal fragmentation of the regime and
employ boundary-spanning strategies to maximize effectiveness and to avoid risks.22 As
such “rightful resistance” focuses on specific localized goals rather than seeking regime
transition, it provides the regime with necessary policy input and helps it discipline local
agents, serving as what has been described as ‘constructive noncompliance.’23
Evidently, existing literature on citizen participation and popular contention in China
suggests an image of benevolent authoritarian regime that at least is partially responsive
and accountable. While this is a little counterintuitive, it can be rational for the regime: so
far as it can keep popular protests and critical reporting local, and targeting only lower
levels of authorities and officials, the party-state can reap the benefits of popular contention
without risking being overthrown.24
The arrival of the internet may have changed the dynamics of public participation
and supervision by opening both formal and informal channels for citizen engagement.
For instance, the state has promoted e-government to improve administrative capacity,
provide public services, and interact with citizens.25 By the end of 2014, the state had set up
57,024 government websites,26 most of which incorporate petition channels.27 The internet
has also increased the amount of uncontrollable information by creating a nascent public
sphere, promoting civil society, and facilitating citizen mobilization and even dissident
activism.28 In effect, Chinese internet users often call themselves ‘netizens’ because the
term implies a sense of citizenship absent in the offline world. Undoubtedly, the party-

gov.cn/xsjw/series8/201505/t20150531_57143.html.
22
 Chen X, ‘Between Defiance and Obedience: Protest Opportunism in China,’ in Perry EJ and Goldman
M, eds (2009)., Grassroots Political Reform in Contemporary China Harvard; at, 253; O’Brien KJ and Li L (2006),
Rightful Resistance in Rural China Cambridge; Cai Y (2008), ‘Local Governments and the Suppression of Popular
Resistance in China,’ (193) The China Quarterly 24; Lee CK and Zhang Y (2013), ‘The Power of Instability:
Unraveling the Microfoundations of Bargained Authoritarianism in China,’ (118) American Journal of Sociology
1475.
23
 Tsai LL (2015), ‘Constructive Noncompliance,’ (47) Comparative Politics 253.
24
 Lorentzen P (2014), ‘China’s Strategic Censorship,’ 58 American Journal of Political Science 402; Lorentzen
P (2013), ‘Regularizing Rioting: Permitting Public Protest in an Authoritarian Regime,’ (8) Quarterly Journal of
Political Science 127.
25
 Schlaeger J and Jiang M (2014), ‘Official Microblogging and Social Management by Local Governments
in China,’ (28) China Information 189; Schlæger J (2013), E-Government in China: Technology, Power and Local
Government Reform Routledge; Qiang CZW (2007), ‘China’s Information Revolution: Managing the Economic
and Social Transformation,’ Working Paper 39975, World Bank. https://openknowledge.worldbank.org/
bitstream/handle/10986/6606/399750REPLACEM101OFFICIAL0USE0ONLY1.pdf?sequence=1&isAllowed=y
(accessed October 13, 2017).
26
 CNNIC, ‘Di 35 Ci Zhongguo Hulianwang Fazhan Zhuangkuang Tongji Baogao’ (The 35th Survey Report on
the Development of China’s Internet) February 2015, http://www.cnnic.cn.
27
 Hartford, K (2005) ‘Dear Mayor: Online Communications with Local Governments in Hangzhou and
Nanjing’ (19) China Information 217.
28
 Yang G (2007), ‘How Do Chinese Civic Associations Respond to the Internet? Findings from a Survey,’
(189) The China Quarterly 122; Zheng Y (2008), Technological Empowerment: The Internet, State, and Society in China
Stanford; Lagerkvist J (2007), The Internet in China: Unlocking and Containing the Public Sphere Lund; Yang G
(2009), The Power of the Internet in China: Citizen Activism Online Columbia; Chase MS and Mulvenon JC (2002),
You’ve Got Dissent Rand; Esarey A and Xiao Q (2008), ‘Political Expression in the Chinese Blogosphere’ (48)
Asian Survey 752.
JCL 12:2 401
Supervising Authoritarian Rule Online

state has responded with strict censorship29 and innovative propaganda strategies such as
‘ideotainment’—the juxtaposition of popular cyber culture and ideological constructs—
and astroturfing—the deployment of state agents to fabricate pro-regime voices.30 But
there is no doubt that the internet has empowered citizens to oversee state apparatus and
officials beyond state authorized channels.
Notwithstanding this rich discourse on the state-society struggle over the control of
online information flow, only a few studies have looked into how the internet has expanded
the scope of public supervision. Among them, Gao and Stanyer explore how netizens
hunt down corrupt officials through ‘human flesh search’ (renshou sousuo)—the man-hunt
practice that relies on netizens’ collective participation to dig out information about the
target.31 Ang studies the Chinese spin-offs of I-Paid-A-Bribe platform (ipaidabribe.com,
IPAB hereafter) and argues that they fail not only due to state repression, but also because
long-term authoritarian rule has resulted in the lack of citizens’ self-organizing ability
and constructive civic engagement experience.32 These studies are inspiring, but limited
in quantity and narrow in focus, thus cannot provide the big picture of public supervision
online and state responses. In particular, in what ways has the internet altered the
dynamics of public supervision? Why does one type of participation thrive while the other
fails? How to best understand the intriguing relationship between ‘digital empowerment’
and ‘resilient authoritarianism’ in the realm of public supervision? The following sections
attempt to bridge the gap through examination of the struggle over online supervision,
arguing that the Chinese state has demonstrated a control-freak tendency, intending to
limit participation outside controlled channels regardless of its nature. However, the
internet has selectively empowered different forms of online supervision, rendering some
types of citizen participation more successful than others.

ONLINE PUBLIC SUPERVISION REFLECTED IN ANTI-CORRUPTION

Online anti-corruption supervision here is defined as any form of citizen participation

through non-state online platforms to disclose and criticize official corruption and
government misconduct such as bribery, misuse of public funds, an extravagant lifestyle,
fabricating credentials, nepotism, and so forth. Given the complexity of the concept itself
and the vastness and fluidity of online participation, it is impossible to definitively identify
the entire population of online anti-corruption supervision cases. That said, measuring the
trend of citizen activism in this sphere over the time is still a doable task. Chinese scholars
have used corruption cases that are first exposed online as an indicator. They have either
found such cases from a pool of online public opinion events33 or searched keywords

29
 King, Pan and Roberts, supra note 8; MacKinnon, supra note 8.
30
 Lagerkvist, J (2008) ‘Internet Ideotainment in the PRC: National Responses to Cultural Globalization’ 17
Journal of Contemporary China 121; Han R (2015), ‘Manufacturing Consent in Cyberspace: China’s ‘Fifty-Cent
Army’,’ 44 Journal of Current Chinese Affairs 105; Hung CF (2010), ‘China’s Propaganda in the Information Age:
Internet Commentators and Wen’an Incident’ (46) Issues and Studies 149.
31
 Gao L and Stanyer J (2014), ‘Hunting Corrupt Officials Online: The Human Flesh Search Engine and the
Search for Justice in China’ (17) Information, Communication, and Society 814.
32
 Ang YY (2014), ‘Authoritarian Restraints on Online Activism Revisited: Why ‘I-Paid-A-Bribe’ Worked in
India but Failed in China’ (47) Comparative Politics 21.
33
 Du Zhizhou and Li Xin, ‘Woguo Wangluo Fanfu de Zhuyao Tezheng: Jiyu 217 Ge Anli de Shizheng Fenxi’
(The Characteristics of Internet Anti-corruption: An Empirical Analysis of 217 cases), 4; Zhongguo Xingzheng
402 JCL 12:2
 rongbin han

about corrupt behaviors before separating out those first exposed online.34 Despite the
discrepancies and methodological problems,35 these studies reveal a general trend, which
is also confirmed by analysis of the PDOPOMC dataset: online anti-corruption activism
first became noticeable around 2004, gathered momentum in 2008, peaking in 2013 and
then declined (see Table 1).

Table 1: Number of Online Anti-Corruption Cases Annually (2004-2015)

Sources 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
A 1 2 3 7 17 43 42 112 182 228
B 3 1 0 4 13 17 47 55 67
C 174 229 54
D 5 6 6 6 16 7 8 3
(%) 2.94 6.32 15 12.24 28.07 17.07 14.55 16.67

Sources: A= XIE, ‘Wangluo Fanfu Fazhan Qushi’ supra note 35; B=DU & Li, ‘Woguo
Wangluo Fanfu de Zhuyao Tezheng’ supra note 34; C= Li, ‘Zhongguo Kaishi Jinru
Hulianwang Xinchangtai’ supra note 34; D= counts of anti-corruption cases and the
percentage to the total number of online events collected by PDOPOMC.

Categorizing Anti-Corruption Supervision

An examination of anti-corruption cases—both those identified by Chinese scholars and

the 57 cases in the PDOPOMC dataset—reveals three major types, namely citizen journalism,
insider reporting, and the man-hunt. In the citizen journalism type, citizen journalists play the
central role in evidence gathering, issue framing, and exposure of corruption. The internet
serves largely as a loudspeaker to hail public attention. Citizen journalists often have
their personal anti-graft websites (See Table 2 for some examples), but rely increasingly
on popular social media platforms. Typical cases in the category include the exposure of
Li Xin and Lei Zhengfu. Li Xin, then Deputy Mayor of Jining, Shandong Province, was
ousted in June 2004 after his corruption story went viral online, with a picture of him
kneeling before his mistress pleading with her not to report him to the authorities. The case
was first exposed by a citizen journalist Li Xinde on his anti-graft website Public Opinion
Monitor Network (Zhongguo Yulun Jiandu Wang).36 Likewise, Lei Zhengfu, party chief of
Beibei District, was the first of the 21 Chongqing officials brought down by the exposure

Guanli (2014): 35; Li Weining, ‘Zhongguo Kaishi Jinru Hulianwang Xinchangtai’ (China Enters Internet New
Normality), December 25, 2014, http://news.xinhuanet.com/newmedia/2014-12/25/c_1113781011.htm.
34
 Xie J (2014), ‘Wangluo Fanfu Fazhan Qushi, Tedian ji Duice Yanjiu: Jiyu 2004-2013 Nian Dashuju de Fenxi’
(The Trend, Features and Coping Strategies to Online Anti-corruption: An Analysis based on Big-data between
2004 and 2013) (2 )Beijing Xingzheng Xueyuan Xuebao 39.
35
 The samples are likely biased as less successful cases as well as other forms of online anti-corruption
activism are not included.
36
 Dai D, ‘Fushizhang Guixiang Shenyuan’ (Deputy Mayor kneeling down to abyss), Nanfang Zhoumo, July
22, 2014. The report shows that traditional media outlets received the materials earlier—Southern Weekend in
February and Beijing Youth Daily in April—but did not publish anything until it exploded online.
JCL 12:2 403
Supervising Authoritarian Rule Online

of a series of sex tapes in late 2012.37 The tapes were first exposed by citizen journalist, Zhu
Ruifeng.

Table 2: Selected Personal Anti-Graft Websites

Owner Website Year

Li Xandie Public Opinion Monitor Network 2003-10

(former reporter) (Zhongguo Yuling Jiandu Wang)
(http://www.cnyulun1.com/)
XU Xiang I Want Justice Network 2003
(former reporter) (Wo Yao Zhengyi Wang)
(http://www.zyw51.com/)
JIANG Huanwen China Tipping-off Network 2004-5
(professional whistleblower) (Zhongguo Jubao Wang)
(no longer available)
Cheng Kangming Righteous Anti-Corruption Network 2004
(trained as media professional) (Zhongguo Zhengyi Fanfu Wang)
(http://blog.51.ca/u-252860/)
Lin Yu（aka Lu Ningping） The Masses’ Mouthpiece Network 2004-11
(Zhongguo Baixing Houshe Wang)
(http://web1826412.m1.jjisp.com/)
Zhu Ruifeng People’s Supervision Network 2006
(reporter) (Renmin Jiandu Wang)
(http://www.rmjdw.com/)
Zhu Yishan（aka Lu Zhou Public Opinion Network 2006-12
(businessman; forced eviction (Minyi Wang)
victim) (http://www.zys110.net/)

Ge Shuchun Anti-Corruption and Rights Defense 2007

(writer; professional Network
whistleblower) (Zhongguo Fanfu Weiquan Wang)
(http://www.fanfu10.com/)

Insider reporting cases are often initiated by insiders who are close to corrupt officials—
their disgruntled mistresses, angry wives, or competitors—and thus have direct compelling
evidence. For instance, in June 2013 then deputy director of the State Administration
of Archives Fan Yue was exposed by his mistress for being corrupt and engaging in
extramarital affairs. Fan resigned before everything was put online, apparently under the
pressure of imminent exposure.38

37
 Tian W, ‘Chongqing Chuli 21 Ming She Buya Shipin Dangyuan Ganbu’ (Chongqing Punished 21 Officials
Involved in the Sex Tape Scandal), Zhongguo Qingnianbao, May 8, 2013; Jacobs A, ‘Chinese Officials Find
Misbehavior Now Carries Cost,’ New York Times, December 26, 2012.
38
 Friedman T, ‘Revenge of the Mistresses,’ New York Times, July 31, 2013.
404 JCL 12:2
 rongbin han

The man-hunt type refers to cases in which netizens take advantage of social media and
utilize collective intelligence to dig out evidence and attract public attention ultimately for
the state to punish corrupt officials.39 The ‘human-flesh search’ of Zhou Jiugeng and Yang
Dacai are typical examples. Zhou, director of a District Housing Administration in Nanjing,
Jiangsu, threatened to punish ‘developers that sell apartments below costs’ in December
2008, amidst nationwide anger at skyrocketing housing prices. Irritated netizens launched
a massive ‘human flesh search,’ finding pictures of him wearing a 100,000-yuan (16,000
USD) watch and smoking 150-yuan-a-packet (25 USD) cigarettes.40 He was soon dismissed.
Yang Dacai, then deputy chief of the Work Safety Administration of Shanxi Province, was
fired in August 2012 after netizens, especially those from Tianya.cn, exposed the fact that
he owned dozens of expensive wristwatches.41 Yang became a target of netizens only by
virtue of the fact that he displayed a suspicious smile at the scene of a traffic incident with
36 deaths.
The above are similar to sporadic forms of citizen vigilantism exposing isolated
corrupt officials. Existing studies and the author’s observations suggest several other
types of online anti-corruption activism, notably everyday complaints, the IPAB type, and
the civil/political movement type. Chinese netizens complain about corruption on various
platforms such as blogs, forums, and micro-blogs on a daily basis. Such everyday complaints
are abundant in number, but often attract little attention for various reasons—either they
are not sensational enough, too common, or too trivial—therefore these cases only serve
as candidates for ‘public opinion events’ (yulun shijian) that become online spectacles.
Tianya.cn attracts numerous complaints of this sort. Its two special boards, Grassroots
Voices (Baixing Shengyin) and Exposure (Baoguang), together produced over 84,000
threads between April 2014 and July 2015, mostly about different types of government
misconduct.42
The IPAB type refers to the efforts by Chinese citizens to replicate the Indian I-Paid-
A-Bribe platform (ipaidabribe.com), which allows citizens to report corruption cases they
witness.43 Inspired by the success of I-Paid-A-Bribe, dozens of Chinese replicas popped up
in the middle of 2011 and immediately went viral. One of such sites, www.fanxinghui.
com, received over 1000 tip-offs within five days, and its servers crashed within three
days after its launch as a result of the heavy volume of traffic.44 Unlike personal anti-graft
websites run by citizen journalists, the IPAB-like platforms are specialized anti-corruption
forums where the administrators play no role in verifying the case or framing the issue.
These platforms were short-lived, with virtually all of them being shut down by August
2011.

39
 Gao and Stanyer, supra note 32.
40
 Cui J, Xiao S and Shu J, ‘Zhou Jiugeng An de Qianqian Houhou Shishi Feifei’ (Ins and Outs of the Zhou
Jiugeng Case), Jiancha Ribao, December 10, 2009.
41
 Kaiman J, ‘China’s ‘Brother Wristwatch’ Yang Dacai Jailed for 14 Years for Corruption,’ The Guardian,
September 5, 2013, http://www.theguardian.com/world/2013/sep/05/china-brother-wristwatch-yang-dacai-
sentenced.
42
 Data were collected on July 28th, 2015. The starting date April 9, 2014 was when the Exposure board started
to have regular number of postings. Threads less than a week old are excluded.
43
 Ang, supra note 33.
44
 Li Y, ‘Shanzhaiban ‘Woxinghuile’ Wangzhan Chuanhong Zhongguo’ (I-Paid-a-Bribe Clones Went Viral in
China), Guangzhou Ribao, June 16, 2011.
JCL 12:2 405
Supervising Authoritarian Rule Online

The civil/political movement type situates anti-corruption as part of broader social/

political movements, which more often than not seek to instigate more fundamental
changes to the regime, including a more systematic cure to corruption. For instance,
the New Citizens Movement, which advocates constitutionalism and political reforms,
also calls for wealth disclosure of government officials. Though not targeting individual
officials, introducing such a policy could certainly prevent corruption more effectively.
The above categorization is devised primarily for analytical purposes. In reality,
many cases demonstrate mixed features and can transform from one type to another. An
everyday complaint may catch public attention and go viral. Insiders may approach media
professionals or muckraking journalists to avoid risk and improve efficacy. In effect, Zhu
Ruifeng, the citizen journalist who first exposed the Lei Zhengfu case, claimed that over
90 per cent of the tips-offs he received were from within the officialdom, often entwined
with internal power struggles.45 Nevertheless, this categorization allows more nuanced
examination of the impact of technological empowerment and state adaption as will be
shown in the following two sub-sections.

STATE RESPONSES: INTENTION AND PRACTICE

In response to the rise of public supervision online, the state in theory can either
collaborate with netizens by accommodating citizen activism or suppress them. Between
2008 and 2015, the Party’s mouth-piece People’s Daily published 83 articles that referenced
‘online anti-corruption.’ Though many of these articles regarded online anti-corruption
as having ‘limitations and negative effects’ and ‘should be institutionalized,’ not a single
item denied its positive impact.46 By allowing and responding to public participation in
anti-corruption, the state can turn the internet into a safety valve which releases political
pressures.47 In addition, popular participation can also bring to the state’s attention the
need to resolve more detrimental complaints because sensational, severe, and/or with
hard-to-deny cases are more likely to stand out than less severe cases. Alternatively, the
state can impose constraints on and suppress netizens’ participation. It may censor online
expression, penalize platforms that host deviating expression, and punish regime critics.
As human rights watchers have documented, the state has harassed, detained, and jailed
hundreds of outspoken netizens, opinion leaders, and dissident activists because of their
online activities.48
Evidently, both options—accommodation or suppression—have advantages and
limitations. Accommodation can help pacify aggrieved citizens and reinforce regime
legitimacy, but may ultimately result in escalating the targets to higher authorities, exposing
the pervasiveness of corruption, or overloading the state’s accommodation capacity. The
suppression option, confirming the state’s capacity and will to suppress may deter spread
and escalation of citizen activism, but it is costly and alienating—this is why the state often
utilizes softer means such as bureaucratic absorption, buying-off, and mobilization of

45
 Lin S, ‘Zhongguoshi Fanfu’ (Chinese Style Anti-corruption), Nanfang Renwu Zhoukan, November 30, 2012,
78.
46
 Data obtained through the built-in search engine of www.people.com.cn.
47
 Hassid J (2012), ‘Safety Valve or Pressure Cooker? Blogs in Chinese Political Life,’ 62 Journal of Communication
212.
48
 For instance, see Zheng, supra note 29.
406 JCL 12:2
 rongbin han

social ties rather than direct suppression to demobilize social unrest.49 Given the pros and
cons, it is rational for the state to employ a mixed approach and differentiate its responses
to different forms of public supervision.
This raises the interesting question how the state decides which cases to suppress and
which ones to tolerate. Studies suggest that the state has two major priorities. Firstly, it is
concerned with ‘stability maintenance,’ thus prioritizing control of collective mobilization
expression over general criticism.50 Secondly, it attaches importance to its ‘general
legitimacy,’ lending more attention to cases reflecting negatively on the top leadership
than charges against lower-level officials.51 Bearing such concerns in mind, civil/political
movements are clearly most threatening because they not only actively mobilize collective
action, but also often seek systematic changes to the regime. All other types are less
threatening as they mostly are unorganized, seek specific remedies,52 target lower-level
officials,53 and involve limited online mobilization rather than offline action. Among these
types, citizen journalism may be slightly more threatening because of the persistence and
activist nature of citizen journalists. The IPAB type is in effect not that threatening because
it is highly susceptible to state control and can only operate within state-prescribed
boundaries—owners of those sites often attempt to register their sites. Everyday complaints
are the least threatening for lacking impact. In this sense, if the state optimizes its strategy
to the threat level, civil/political movements are most likely to be suppressed, followed by
citizen journalism, IPAB spinoffs, man-hunt, and insider-reporting types. Moreover, the state
shall try to accommodate all forms of participation other than civil/political movements, and
perhaps ignore most everyday complaints.
However, the state’s reaction only partially conforms with such a ‘threat-driven’
hypothesis. Firstly, it has indeed tolerated everyday complaints to a certain extent. Despite
censorship, complaints targeting official misconduct are observed on all major online
platforms. Tianya.cn, as we have noted above, even hosts boards—Grassroots Voices and
Exposure—that are specifically designed for netizens to air grievances. And as expected,
since such complaints often lack publicity, the state can conveniently ignore them: of a
total 300,000 plus postings from Grassroots Voices, 91 per cent attracted less than ten
comments and 41 per cent attracted none. As a result, state tolerance of everyday complaints
works just like its petition system: it is instrumental to regime stability, but ineffective for
petitioners.54 In contrast, the PDOPOMC cases, all of which received some state attention,

49
 Lee and Zhang, supra note 23; Chuang J (2014) ‘China’s Rural Land Politics: Bureaucratic Absorption and
the Muting of Rightful Resistance,’( 219) The China Quarterly 649; Kevin J. O’Brien KJ and Deng Y (2015), ‘The
Reach of the State: Work Units, Family Ties and ‘Harmonious Demolition’ ’ (74) The China Journal 1; Deng Y and
O’Brien KJ (2013), ‘Relational Repression in China: Using Social Ties to Demobilize Protesters’ (21) The China
Quarterly 533.
50
 King, Pan and Roberts, supra note 8.
51
 Lorentzen, supra note 25.
52
 Xie Jinlin reported 647 online anti-corruption cases between 2004 and 2013, which is the highest among all.
See Xie, ‘Wangluo Fanfu Fazhan Qushi,’ supra note 35. In comparison, the state itself investigated over 16,044
officials at or above the county level between 2008 and 2013. See Cao Jianming, ‘Zuigao Renmin Jianchayuan
Gongzuo Baogao (Zhaiyao)’ (Report on the Work of the Supreme People’s Procuratorate (Summary), Jiancha
Ribao, March 11, 2013; Cao Jianming, ‘Zuigao Renmin Jianchayuan Gongzuo Baogao’ (Report on the Work of
the Supreme People’s Procuratorate), Jiancha Ribao, March 18, 2014.
53
 High-ranking officials often only become targets due to fights within officialdom or between corrupt officials
and their mistresses. See Xie, ‘Wangluo Fanfu Fazhan Qushi,’ supra note 35.
54
 Li L, Liu M and O’Brien, KJ (2012) ‘Petitioning Beijing: The High Tide of 2003–2006’ (210) The China Quarterly
313; Cai Y (2008) ‘Disruptive Collective Action in the Reform Era,’ in O’Brien KJ, ed., Popular Protest in China
JCL 12:2 407
Supervising Authoritarian Rule Online

are mostly sensational cases attracting huge publicity: of 57 cases, 18 related to sexual
scandals, 14 were about extravagant lifestyle or misuse of public funds, and four pertained
to improper public behavior.55
Secondly, the state has harshly suppressed citizen/political movements as might be
expected. Take the New Citizens Movement as an example. Led by law professor and
activist Xu Zhiyong, the relatively moderate movement does not openly call for regime
change. Nonetheless, it advocates constitutionalism and political reforms, with one of
its specific goals being institutionalizing the wealth disclosure of officials. To push this
agenda, several demonstrations were staged in Shenzhen, Beijing and Jiangxi in 2012 and
2013. Harsh repression followed, leading to at least 24 arrests.56 Meanwhile, information
related to the movement has been constantly censored, making it hard for the group to
spread their ideas and push for their agenda online.
However, state responses also contradict the ‘threat-driven’ hypothesis to a significant
extent in that the party-state has proved to be much more repressive than expected. Instead
of tolerating and coopting citizen journalists, the state has constantly suppressed them
and routinely crushed their anti-graft websites, forcing them to move the sites to overseas
servers. For instance, Zhu Ruifeng’s personal anti-graft website, People’s Supervision
Network (rmjdw.com), is based in Hong Kong. Yet, it has been constantly blocked by the
Great Firewall and attacked. Moreover, his social media accounts have been suspended
quite a few times and Zhu himself was harassed by the authorities.57 The state has also
suppressed the IPAB spinoffs ruthlessly. Inspired by the Indian example, IPAB replicas
started to flourish in June 2011. Despite their willingness to cooperate with the authorities,
the state decided to put an end to all such sites within only two months—by then there
were over sixty of them attracting more than 300,000 visitors daily.58 And this was not the
last wave of suppression. In the first seven months of 2013, the state banned another 89
such ‘illegal’ anti-corruption websites.59

Harvard at 163.
55
 Du and Li find the state responding to 85% of their cases, excluding false alarms. In their sample, 35% are
about sexual scandals, 26% are about extravagant lifestyle, 20% are about abuse of power, and 5% are about
fabricating credentials. See Du and Li, ‘Woguo Wangluo Fanfu de Zhuyao Tezheng,’ supra note 34.
56
 See the report to Office of the United Nations High Commissioner for Human Rights (September 8, 2013),
https://spdb.ohchr.org/hrdb/24th/public_-_UA_China_09.08.13_%288.2013%29.pdf. The Chinese Human
Rights Defenders provides a list of 70 activists arrested between March 2013 and April 2015. See Chinese Human
Rights Defenders, ‘Individuals Detained in Crackdown on Peaceful Assembly, Association and Expression’
(October 12, 2016), http://www.chrdnet.com/2013/07/individuals-detained-in-crackdown-on-assembly-and-
association/.
57
 Ye B, ‘Renmin Jiandu Wang Jizhe Zhu Ruifeng Tan Wangluo Fanfu’ (People’s Supervision Network
Reporter Zhu Ruifeng Talks about Online Anti-corruption), December 21, 2012, http://www.voachinese.com/
content/citizen-watchdog-web-anti-corruption-20121221/1569810.html; VOA, ‘Beijing Minjian Fanfu Renshi
Mianlin Jingfang Yidi Zhuabu’ (Citizen Anti-Corruption Activist Facing Possible Arrest) September 7, 2011,
http://www.voachinese.com/content/article-20110907-anti-corruption-activist-129362328/787335.html; BBC,
‘Renmin Jiandu Wang Beifeng, Chuangbanren Zhu Ruifeng Xiaoshi’ (People’s Supervision Network Forced
Shutdown and Its Founder Zhu Ruifeng Went Missing), July 16, 2013, http://www.bbc.com/zhongwen/simp/
china/2013/07/130716_china_zhushuifeng_site.
58
 Xiao H, ‘‘Woxinghuile’ Yongjiu Guanbi, Minjian Fanfu Wangzhan Tanhua Yixian?’ (‘Woxinghuile’
Permanently Shut Down, Private Anti-Corruption Websites Short-lived?), Guangzhou Ribao August 11, 2011;
Shang Xi, ‘Duojia Minjian Fanfu Wangzhan Guanbi’ (Multiple Private Anti-Corruption Websites Closed Down),
Jinghua Shibao, August 12, 2011.
59
 Gao Y, ‘Fanfu Wangzhan de Jianghu’ (The Rivers and Lakes of Anti-Corruption Websites), Fazhi Zhoumo,
July 18, 2012.
408 JCL 12:2
 rongbin han

The state has also suppressed insider-reporting and man-hunt (and citizen journalism)
by punishing outspoken netizens and opinion leaders.60 In 2013, the state launched a
massive anti-rumor campaign in which many online supervision activists were punished.
Zhou Lubao, who was active in exposing Yang Dacai, was arrested in August on charges
of ‘blackmailing and extortion.’61 Dong Rubin, who participated in the instigation of an
inmate’s suspicious death in Kunming in 2009, was detained in September.62 The state also
jailed Charles Xue, an American Chinese investor and outspoken Weibo celebrity with
over 12 million followers,63 for buying sex. However, Xue’s confession on state media was
all about his improper online behavior as an opinion leader.64 The campaign created the
intended chilling effects: Weibo opinion leaders reduced their activities by 40 per cent
compared to the previous year,65 and started to play safe in online supervision. As Zhu
Ruifeng puts it, ‘The arrests of Big-Vs (opinion leaders) shut everyone up.’ 66
Suppression also applies to everyday complaints. For instance, state censorship often
escalates to eliminate online expression relevant to collective mobilization or top leaders
as in the case of Wukan Incident (Wukan Shijian)67 and the hidden wealth of Premier
Wen Jiabao’s family scandal respectively.68 In 2009, Tianya.cn was forced to shut down the
entire Grassroots Voices board for five weeks for the 60th Anniversary of the foundation of
the People’s Republic of China (PRC).69
In general, the party-state demonstrates a ‘control-freak’ tendency, attempting to
suppress every form of online supervision. Yet, the effectiveness of state suppression
varies—besides social/political movements, which are most aggressively suppressed, all
other types are also suppressed albeit less harshly. However, four of them except the IPAB
type survive and continue to function. This outcome requires an explanation, which leads
to the next section on the nature of digital empowerment.

60
 For repression of average netizens, see Zhang Y, ‘39 Ming Wangshang Zaoyao Chuanyao Zhe Bei Chengchu’
(39 Online Rumor Mongers Punished), People’s Daily Overseas Edition, July 21, 2014.
61
 Yuan G, ‘Zhiming Wangluo Baoliaoren Zhou Lubao Bei Pibu’ (Well-known Online Muckraker Zhou Lubao
Arrested), Jinghua Shibao (August 25, 2013).
62
 Yuan Guoli, ‘Wangluo Mingren ‘Bianmin’ She Sanzongzui Bei Pibu’ (Internet Celebrity Bianmin Arrested
for Three Crimes), Jinghua Shibao (October 17, 2013).
63
 Chris Buckley, ‘Crackdown on Bloggers Is Mounted By China,’ New York Times, September 11, 2013.
64
 Xinhua News Agency, ‘Gaoqiang Nei de ‘Xue Manzi’ Tan Lianggao Sifa Jieshi ji Wangluo Da Xinlu’ (Charles
Xue Talk about Judicial Interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate
and His Road towards an Internet Opinion Leader), September 15, 2013, http://www.mps.gov.cn/n16/n983040/
n3874062/n3874077/3902456.html.
65
 Cheng Shuwen, ‘Woguo Wangluo Fanfu Xian ‘Duanyashi Jiangwen’’ (Online Anti-corruption Cools Down
Dramatically), Nanfang Dushibao, December 26, 2014.
66
 Mingpao, ‘Jieguan Kaifang Zao Qisu Minjian Fanfu Xian Handong’ (Disclosure of an Official’s Hotel Staying
Record Leads to Lawsuit, Civil Anti-Corruption Enters Cold Winter), January 23, 2015, http://news.mingpao.
com/pns1501231421949603128.
67
 Wukan is a village in Guandong province, which is well known for its prolonged protest against illicit land
grabbing by the government and its confrontation with the police with the protest. Cai Y, (2015) State and Agents
in China: Disciplining Government Officials Stanford.
68
 See Qiao L, ‘Wukancun Cunmin Xu yu Gongan Duizhi, Wangluo Quanmian Fengsha Xiangguan Taolun’
(Villagers in Wukan Continue to Confront the Police, Relevant Discussion Completely Banned Online)
December, 13, 2011, http://www.rfa.org/mandarin/yataibaodao/wk-12132011104143.html; Bradsher K, ‘China
Blocks Web Access to Times after Article,’ New York Times, October 26, 2012.
69
 See ‘Baixing Shengyin Chongxin Kaiban le’ (Grassroots Voices Re-Opens), October 13, 2009, http://bbs.
tianya.cn/post-828-11410-1.shtml.
JCL 12:2 409
Supervising Authoritarian Rule Online

A Story of Selective Empowerment

As an inherently participatory process, public supervision online bears clear features of

technological empowerment. Using the number of ‘corruption cases first exposed online’
as the indicator, the rise and fall of online supervision correlates with changes in the
internet population, particularly that of social media (see Figure 1 below). This suggests
that the interactivity among netizens enabled by social media clearly facilitates collective
collaboration in hunting down corrupt officials.

Figure 1: Internet & Social Media and Online Anti-Corruption Activism (2000-2015)

Notes: Data of internet and social media population are from China Internet Network
Information Centre (http://www.cnnic.net.cn/). Social media includes only internet forums
and micro-blogs. Annual counts of online corruption cases between 2004 and 2013 are
from Xie, ‘Wangluo fanfu fazhan qushi’ supra note 35. The number for 2014 is from Li,
‘Zhongguo kaishi jinru hulianwang xinchangtai’ supra note 34. Though Xie and Li used
different methods, they reported similar counts for overlapping years. Moreover, since
the decline in 2014 is a confirmed trend, adding Li’s number shall not affect the findings.

Technological developments also shape the forms of online anti-corruption supervision.

Early online anti-corruption cases such as the exposure of Li Xin in June 2004 (see the
citizen journalism example above) featured a combination of citizen journalists and personal
anti-graft websites. Netizens contributed primarily by turning the scandals into public
spectacles, forcing the state to respond. Such a pattern emerged because around 2004 only
less than 10 per cent of the Chinese population was online and popular social media were
largely absent. Citizen journalism was a viable option as it relies primarily on individuals
while personal websites allow full control by owners, are good for branding, and more
importantly can be quickly rebuilt after state repression, which has happened to most of
these websites.
410 JCL 12:2
 rongbin han

The rise of more interactive and interconnected social media has made it easier for
citizens to provide corruption tip-offs, to crowd-source evidence gathering, and to increase
publicity. Internet forums and Twitter-like Weibo accounts are the most important social
media platforms for anti-corruption. The PDOPOMC data shows that among the 57 cases,
internet forums and Weibo users accounted for 30 and 23 cases respectively with the
remaining four exposed on video sharing sites, blogs, and the instant messaging platform
WeChat. Similarly, two studies by Chinese scholars respectively reported 59 and 52 per
cent of their cases being first exposed on internet forums and 24 and 15 per cent on Weibo.70
Even citizen journalists now rely more on social media: the Lei Zhengfu scandal, though
first exposed by Zhu Ruifeng on his personal site, did not mushroom until it was posted
on Weibo by another journalist.71
The indicator of ‘corruption cases first exposed online’ represents the more successful
forms of online supervision—namely citizen journalism, man-hunt, and insider reporting.
These types are deemed as more successful because they are longer lasting, have
achieved anti-corruption goals, and have demonstrated a stronger ability to survive state
suppression. Admittedly, these forms are less threatening to the regime than the social/
political movements, hence they are less harshly suppressed, but their relative success
should also be attributed to the fact that they are much better empowered by the internet
and social media, which provides fertile ground for them to flourish, including open access,
large active user pools, and convenient information exchange tools. These types are also
much more difficult to suppress. Firstly, due to their sporadic and unpredictable nature
the state finds it hard to target a specific individual or group. Secondly, utilizing popular
social media platforms have insulated them from state suppression because shutting such
platforms down would be extremely costly to the business interests involved and with
respect to the risk of irritating non-political netizens.72
In contrast, the other three types—everyday complaints, IPAB-spinoffs, and the civil/political
movement type, benefit differently from the expansion of the internet and social media and
they fail to leverage the internet’s growing and anarchical strength. Everyday complaints
may take place on any platform that allows online expression and have flourished on
internet forums and micro-blogs. However, as there are too many of them, they suffer
from a scarcity of attention. The IPAB type requires independent platforms, which are
technologically feasible, but at the same time easy targets of state repression. Though
anti-graft websites by citizen journalists are also easy targets, they rely less on netizen
participation and more on individual efforts and the persistence of citizen journalists; in
addition, they can be easily resurrected after repression. Crucially, citizen journalists are
increasingly relying on social media as their primary platform, making it harder for the
state to suppress. The civil/political movement type, closely watched and suppressed by the
state, does not benefit from the expansion of social media to the same extent compared to

70
 Du and Li, supra note 34; Xie, supra note 35.
71
 Zhu W and Li S, ‘Wangpu Chongqing Beibei Quwei Shuji Lei Zhengfu Buya Shipin Shijian Diaocha’
(Investigating the Online Exposure of the Sex Tape of Chongqing Beibei District Party Chief Lei Zhengfu)
November 23, 2012, http://politics.people.com.cn/n/2012/1123/c1001-19681439.html.
72
 Ethan Zuckerman (2015) ‘Cute Cats to the Rescue? Participatory Media and Political Expression,’ in Allen,
D and Light, JS eds., From Voice to Influence: Understanding Citizenship in a Digital Age. University of Chicago
Press, 131.
JCL 12:2 411
Supervising Authoritarian Rule Online

the other types because they cannot openly act online. Table 2 summarizes the selective
empowerment model and its impact on each form of participation discussed here.

Table 3: The Selective Empowerment of Public Participation Online

Types Technological Empowerment State Responses Outcome

Accommodated and
Everyday Flourish on social media but censored; platforms
Surviving
complaints lack publicity in general more tightly
controlled

Anti-graft websites
Modest success;
Citizen journalists as key; repressed, citizen
declining but
Citizen personal anti-graft websites, journalists harassed;
surviving; relying
journalism social media to attract social media
more on social
attention platforms more tightly
media
controlled

Netizen collective
Social media Modest success;
intelligence via social media
Man-hunt platforms more tightly declining but
to identify clues, dig out
controlled surviving
evidence, and gain publicity

Social media Modest success;

Insider- Insiders use social media to
platforms more tightly declining but
reporting gain publicity
controlled surviving

IPAB spin- Specialized anti-corruption

Websites shut down Suppressed
offs platforms

Civil/
No specified public
Political Ruthless suppressed Suppressed
platform
movements

A further comparison between citizen journalism and the IPAB type is also telling about
the selective empowerment effects. Admittedly, citizen journalism was more a product of
the Web 1.0 era that survived into the Web 2.0 era while the IPAB type is entirely a creation

412 JCL 12:2

 rongbin han

of Web 2.0. For citizen journalism, individual citizen journalists are crucial and they are
strongly self-motivated in public supervision and the internet—notably personal anti-
graft websites and increasingly social media platforms—provides a tool to gain publicity
and amplify their voices. In contrast, IPAB spinoffs are essentially Web 2.0 platforms that
serve as specialized hubs for netizen participation. Though they can enhance netizen
interactivity and thus make online supervision more effective, the platforms per se are
vulnerable to state suppression. Moreover, as their owners are much less committed
compared to citizen journalists and they do not ‘own’ the anti-corruption information per
se, shutting down the platforms is sufficient to eliminate them from the game.

THE STATE LOGIC OF PUBLIC SUPERVISION

The evolution of online anti-corruption supervision reveals a momentum of ‘state

advances and citizens retreat,’ broadly mirroring what has happened in China’s economic
sector since 2008. The trend is particularly evident in the Xi Jinping era.73 Such a trend
reflects the tensions between the state and technologic dynamics of public supervision.
Technologically, the internet has enabled citizens to participate in public supervision
in both broader and more in-depth ways. More importantly, it allows average citizens
to compete with the state to set the agenda, making the ground rules, and designating
goals and limits of supervision. Although like popular contention in China, most forms of
netizen participation in online supervision are not aimed at fundamental regime changes,
the state is on high alert with regard to the potential of citizen-driven activism, particularly
when it is outside the prescribed channels. In effect, though the Xi administration has
made anti-corruption its signature project, the party-state has also tightened its control
over citizen participation online. Such intention is on full display in the following quote
from Global Times, a subsidiary of the People’s Daily,
Anti-corruption is a significant and sensitive issue. To effectively fight corruption
and avoid complicated negative implications, it is essential for the whole society to
trust the CCP Central Committee, use the Center’s information and attitude as the
sole ruler, and consciously align with the Center in the process.74
This rationale drives the state to suppress even relatively unthreatening forms of online
supervision. It also explains why the state has escalated its efforts to co-opt netizens by
channeling them through official reporting and petitioning platforms set up by various
state agencies. Through co-optation, the state goes beyond passively reacting, and more
effectively brings online supervision under its control.
Various online official reporting platforms have long been in place. At the central
level, the Supreme People’s Procuratorate set up its online reporting platform as early
as in 2003. In late 2005, the party’s Central Commission for Discipline Inspection (CCDI)
and the Ministry of Supervision (MOS) publicized a joint online outlet for their offline
reporting offices (CCDI’s letters and visit office and MOS’ reporting center).75 In 2009, the

73
 Yang DL and Jiang JY (2012) ‘Guijin Mintui: The Global Recession and Changing State-Economy Relations
in China,’ in Yang DL, ed The Global Recession and China’s Political Economy Palgrave Macmillan at 33.
74
 ‘Sheping: Chuanyan Zhenjia Nanbian, Dajia Zhixin Zhongyang’ (Editorial: It Is Hard to Distinguish Truth
from Lies in Rumors and People only Trust the Center), Global Times, December 24, 2014.
75
 Li Y, ‘Wei Jiaqiang Jiandu Zhongjiwei Jiancabu Gongbu Fanfu Jubao Wangzhan’ (To Strengthen Supervision,
JCL 12:2 413
Supervising Authoritarian Rule Online

MOS set up a unified reporting website for the state supervision system (www.12388.gov.
cn).76 However the Xi era marks a new chapter in the state’s co-option efforts. On 19 April
2013 under the order of CCDI and MOS, all major online portals, including state media
outlets and popular gateways, set up an ‘Internet Reporting and Supervision Special Zone’
on their sites. These special zones provide a unified interface together with guidelines and
links to state agencies for netizens to tip-off corruption.77 In addition, the state has turned to
popular social media platforms. By 2014 disciplinary and supervision agencies had set up
792 official accounts on major micro-blogs and over 130 accounts on the instant messaging
platform WeChat. Netizens were invited to take snapshots of misbehaving officials and
report to supervising agencies.78 On Tianya.cn over 500 government agencies have set up
official accounts and in 2013 alone they have responded over 2200 complaints.79 The state
has also further integrated its online reporting system. In September 2013, CCDI and MOS
took a major step by integrating all existing central-level official reporting platforms into
one joint portal, www.ccdi.gov.cn, which allows citizens to report corruption and follow
up on their reports. This portal allegedly has increased citizen participation in the state-led
anti-corruption campaign. According to an official report, since the site was launched tip-
offs skyrocketed from around 200 to over 800 every day.80
It is likely that cooptation and suppression efforts by the state have effectively reduced
the number of citizen-driven anti-corruption cases (Figure 3), establishing a ‘state-dominant
mode’ in online supervision. As a media scholar puts it, now online anti-corruption has
changed from ‘online exposure leading to disciplinary investigation’ to ‘public discussion
following official announcements of corruption cases by disciplinary commissions.’81

the Central Commission for Discipline Inspection and the Ministry of Supervision Publicized Reporting
Website), People’s Daily, December 29, 2005.
76
 Xinhua News Agency, ‘Zhongyang Jiwei Jianchabu Tongyi Kaitong Quanguo Jijian Jiancha Jubao
Wangzhan’ (The Central Commission for Discipline Inspection and the Ministry of Supervision Publicized
Unified National Discipline and Supervision Reporting Website) October 28, 2009, http://news.xinhuanet.com/
politics/2009-10/28/content_12349280.htm.
77
 Jiang L, ‘Fanfu Xinpingtai, Zhitong Zhongjiwei’ (The New Anti-Corruption Platform directly links to the
Central Commission for Discipline Inspection), Huanqiu Renwu, May 6, 2013, 40.
78
 Li Q, Zhang Y, Sun Z, Wang X and Wu H, eds (2014) Zhongguo Fanfu Changlian Jianshe Baogao No. 4 (No. 4
Report on Combating Corruption and Upholding Integrity in China.
79
 Wang Y and Han R, ‘Paying Lip Service or Taking it Seriously? How the Chinese Government Responds to
Online Complaints,’ paper presented at the 13th China Internet Research Conference, Edmonton, Canada, May
27-28, 2015.
80
 Wang S, ‘Shubiao Zhitong Zhongjiwei Shi Ruhe Liancheng de?’ (How Linking to CCDI through a Click Is
Made Possible?), Xinjingbao (September 3, 2014).
81
 Zhang Y, ‘‘Liangge Yulunchang’ Gongshidu Zengqiang’ (The Common Ground between ‘Two Public
Opinion Spheres’ Expands), Renmin Ribao (December 26, 2014).
414 JCL 12:2
 rongbin han

Figure 3: State Repression & Co-optation and Online Anti-Corruption (2008-2012)82

Note: The counts of online anti-corruption cases are from Li Weining, ‘Zhongguo kaishi
jinru hulianwang xinchangtai.’

CONCLUSION

The expansion of the internet has challenged authoritarian regimes’ agenda setting power
in public supervision, forcing them to balance between benefits and harms from increased
citizen participation. Yet, some authoritarian regimes have adapted quite successfully
to the digital challenges. The China case manifests well the dichotomy between the
technological empowerment and authoritarian resilience. This article shows that the
internet has empowered Chinese citizens to hunt down corrupt officials and to some
extent enhanced government accountability. However, online supervision has achieved
only limited success, largely serving as a way to expose individual corruption cases
rather than as a vehicle for systematic changes.83 This is a result of both state response and
technological empowerment. Evidently, the party-state has considerable despotic power
and is ready to exercise it: it has not only ruthlessly suppressed civil/political movements,
but also crushed other less threatening types such as IPAB spinoffs, citizen journalism, man-
hunt, insider reporting, and everyday complaints. However, state suppression has resulted
in differentiated outcomes, showing that not all forms of citizen activism are equally
empowered, with the IPAB spin-offs most vulnerable to state suppression.
The state-society interaction over online supervision in China highlights a need to
further disaggregate the broad concepts of technological empowerment and authoritarian
adaptation in the digital age. Though social actors in authoritarian regimes are empowered
by new technologies, they are not all empowered equally nor in exactly the same way as

82
 The dip in 2012 may have reflected the tight state control triggered by the political crisis in which the Party
Chief of Chongqing, Bo Xilai, was removed dramatically and the 18th National Congress of CCP in November.
83
 See Sullivan J (2014), ‘China’s Weibo: Is Faster Different?’ 16 New Media and Society 24.
JCL 12:2 415
Supervising Authoritarian Rule Online

different digital platforms may cater to different actors or specific types of social activities.
Correspondingly, state adaptation is oftentimes multi-faceted as the state may differentiate
its responses to various forms of citizen activism according to will and capacity as well
as the specific technological empowering effects. Observable outcomes, therefore, may
project different images of authoritarian rule—responsive, repressive, or fragmented—and
an understanding of authoritarianism should not be confined to either of these depictions.

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)
Baixing Shengyin 百姓声音 Grassroots Voices
Baoguang 曝光 Exposure
qunzhong jiandu 群众监督 mass supervision
qunzhong luxian 群众路线 mass line
renrou sousuo 人肉搜索 human flesh search
Tianya Luntan 天涯论坛 Tianya Club
Wukan Shijian 乌坎事件 Wukan Incident
Xin Gongmin Yundong 新公民运动 New Citizens Movement
Xinfang Zhidu 信访制度 Letters and Visits system
yulun jiandu 舆论监督 public opinion supervision
yulun shijian 舆论事件 public opinion events

416 JCL 12:2

 zhu han and fu hualing

Transparency as an Offence:
Rights Lawyering for Open
Government Information in China
ZHU HAN
FU HUALING
University of Hong Kong

INTRODUCTION

Rights lawyering has been developing in China over the past two decades or so. From
spontaneous reaction to proactive organization, from litigation to civil society networking,
from using law as a shield to using it as a sword and from individual cases to policy change,
Chinese rights lawyers through social-legal activism have been a formidable social force
in holding the state accountable to its rhetoric.1 This article examines three ways rights
lawyers in China have used transparency as a tool to pursue legal activism and social
campaigns: open government information (OGI) applications, on-line mobilization, and
off-line action. For rights lawyers, transparency is both an end and a means to address a
wide range of social-political issues. The chapter finds that the formal OGI institutions have
created new legal opportunities and resources for rights lawyering, which has proved to
be resilient in promoting government accountability and restraining the arbitrary exercise
of public powers. However, the political vulnerability of legal institutions and their lack
of political will and ability to accommodate the demands of civil society have given rise to
extra-institutional and extra-legal mobilization in a variety of organized street actions by
rights lawyers. The extra-institutional lawyering has provoked retaliation from the state,
however, leading to further restrictions on lawyers’ right to know and crackdowns on
rights lawyering.
Operating in an authoritarian system with a compliant judiciary, limited rule of law,
and little meaningful political participation, Chinese lawyers have few options with which
to seek remedies when their rights and interests and those of their clients are adversely
affected. Over the past two decades, Chinese lawyers, mostly rights lawyers, have through
activist lawyering exploited all available opportunities within the current legal framework
by using the existing legal procedures to promote accountability and restrain the arbitrary
exercise of powers.

1
 Fu, HL and Cullen, R (2010) ‘The development of public interest litigation in China’ in Yap, PJ and Lau, H
(eds) (2010) Public Interest Litigation in Asia Routledge 9 at 10.
JCL 12:2 417
Transparency as an Offence

The promulgation of the Regulations on Open Government Information (the ‘ROGI’)

in 2008 provided a new legal opportunity which lawyers together with other civic groups
have readily grasped. However, while formal OGI institutions have largely failed to satisfy
rights lawyers’ demands, the institutionalization of rights lawyering and the coming into
maturity of a community of rights lawyering, coupled with the development of information
technology and enhanced international support, have enabled rights lawyers to take a
proactive and occasionally aggressive approach to exposing abuses and in holding public
power accountable to the law. Since the promotion of the ROGI, there has been a shield-
to-sword shift in the way in which law is used as an offensive weapon in the hands of
rights lawyers and activist citizens, with some assertive rights lawyers having moved from
online mobilization to off-line action including gathering in courtrooms and protesting on
the streets. Online mobilization and direct actions have primarily served the purpose of
publicizing abuses, real and perceived, and making the legal process visible for all to see
and to judge. It is part of a larger strategy of naming and shaming government offenders.
Facing extensive abuse of power in both the political, administrative and the judiciary
sectors, transparency has become a weapon for the weak, whose grievances are rarely
addressed through institutional channels.
This article examines how Chinese lawyers, primarily rights lawyers, have used both
institutional and extra-institutional means to demand transparency and government
accountability. Here, the authors adopt a broad definition of rights lawyers, as ‘lawyers or
quasi-lawyers who consistently use legal rule and institutions, as well as other platforms,
to promote a specific social campaign or the rule-of-law development.’2 This definition
includes human rights lawyers (renquan lüshi) who devote their work to politically
sensitive causes, public-interest lawyers (gongyi lüshi), and the newly-emerged so-called
‘die-hard’ lawyers (sike lüshi), mostly criminal defense lawyers(xingshi bianhu lüshi). The
discussion on lawyering for OGI also encompasses ordinary lawyers who have submitted
OGI disclosure requests (hereinafter OGI requests).
The empirical material on which this article is based, in large part is drawn from a
variety of data and materials, including 105 OGI requests made by lawyers between 2008
and 2015,3 official records and judicial decisions, comprehensive reviews of media reports
and documentaries, monitoring of rights lawyers’ social media activities, and open-
ended interviews with rights lawyers and activists. The essay examines three ways of
transparency-based lawyering: OGI application, online mobilization, and offline activism,
and explores also state responses to each method of activism. The article concludes that
ROGI has resulted in new legal opportunities and resources for rights lawyering, which
create certain systematic improvements within the formal legal framework possible.
However, facing extensive abuses of power and a fragile legal system, rights lawyers as
well as other activist groups have turned to extra-institutional, extra-legal means and
used transparency as a sword for a wide range of social agenda. Extra-institutional efforts

2
 See Zhu, Han (2016) Social Movements and the Law in Contemporary China: A Comparative Approach PhD
dissertation University of Hong Kong at 120-1.
3
 Here, the authors would like to thank Dr. Yongxi Chen for sharing his data on OGI disclosure requests during
the period from 2008 to 2011. In this article, OGI disclosure requests regarding the same issue by one lawyer to
several government departments at the same time are counted as one request. For example, on February 6, 2009,
lawyer Li Jinsong sent five OGI disclosure requests to five state-owned railway companies for information on
the real-name system for rail tickets.
418 JCL 12:2
 zhu han and fu hualing

have been successful primarily in attracting publicity, raising public consciousness, and
enhancing the mobilization capacities of rights lawyers and their allies. Like the OGI
application, online mobilization has rarely achieved dramatic social-legal changes. At the
same time, street action for transparency has incurred greater legal and political risks

LEGAL MOBILIZATION: RIGHTS LAWYERS AND OGI INSTITUTIONS

ROGI: New Legal Opportunities for Rights Lawyering

The ROGI not only provides a new institutional channel for rights lawyering in China (i.e.
OGI disclosure request), but also expands the opportunities for lawyers to use two other
existing legal institutions: administrative review and administrative litigation. We have
collected 105 OGI disclosure requests that are either initiated or supported by lawyers.
Among them 33.7% of the requests are followed by the further legal action of administrative
review and/or litigation. In many circumstances, as analyzed, lawyers intentionally used
the OGI request as a steppingstone to access the judiciary process.
Lawyers usually initiate an OGI disclosure request in one of the following three ways:
1) as ordinary citizens in their personal capacity (most rights lawyers initiate OGI requests
this way); 2) as representatives of their clients (several lawyers in a collective legal action
initiate OGI requests to facilitate the cases they represent); or 3) as rights defenders to offer
assistance to other citizens and NGO activists. Of the 105 OGI disclosure requests, 81%
are made by lawyers on their own, 15.2% by lawyers on behalf of their clients and 3.8% by
activist citizens with the assistance of lawyers.
Unlike ordinary lawyers and citizens, rights lawyers are more proactive in using this
new institution to address a wide range of social issues. The ROGI has not only opened
new legal opportunities for lawyering, but has also expanded their access to potential
allies in public-interest causes, including journalists, citizen activists, and other lawyers.
The ROGI has created a new tool that encourages public participation with little social
and economic cost and a lower level of political risk. Our data show that of all the OGI
requests 64.8 % are initiated by rights lawyers, 24.7 % are initiated by ordinary lawyers
and 10.5% are jointly initiated by rights lawyers, ordinary lawyers, and other parties such
as journalists and citizen activists.
In addition to these 105 OGI requests, there are well-coordinated efforts between rights
lawyers and their comrades in other fields. These separated but essentially coordinated
OGI-requests are conducive to developing relatively sustained campaigns and at the
same time the seemingly spontaneous nature and low-level organization allow applicants
to escape government surveillance and repression. For instance, in the campaign for
equal rights to education, two groups of rights lawyers, individual activists and a rights
advocacy NGO all submitted OGI requests for information about adjusting the sex ratio in
university admissions which engendered wide public concern.4
Table 1 shows the subject matter of OGI applications made by lawyers from 2008 to
2015, which contrasts with the most common subject matters of OGI requests made by
ordinary citizens (including lawyers in their personal capacity). According to Chen’s

4
 See Ip, Iam-Chong (2013), Feminist Counter-publics and the Internet in China paper presented at the 2013
IAMCR Conference in Dublin, Ireland.
JCL 12:2 419
Transparency as an Offence

survey, land-taking, housing demolition, and urban planning are the three most common
subjects of the overall OGI requests made by ordinary citizens.5 In contrast, among the
OGI requests made by lawyers, lawyers’ rights (20%), finance (20%), and civil and political
rights (13.3%) are the most common subjects. However, rights lawyers and ordinary
citizens share common concerns on some social-economic issues, such as food safety
and consumer rights, however, civil and political rights are much less salient in ordinary
applications. In addition, the use of OGI as an evidence-gathering tool in an ongoing legal
process is another characteristic of rights lawyers’ OGI requests. For instance, the goal of
rights lawyers in their OGI application for information on land-taking and demolition is
mostly to obtain evidence for ongoing/further legal proceedings. The striking differences
between the focus of the OGI requests of ordinary citizens versus those of rights lawyers
illustrates that the latter are more inclined to use OGI applications to address wider social
issues beyond individual cases. In doing so, rights lawyers generally have a broader social
agenda in promoting systematic improvement and fundamental rights.

Table 1 Major Subjects of OGI Requests Initiated by Lawyers (2008-2015)

Subject Matter Number of Per-

Requests centage
Lawyers’ Rights and the Autonomy of Lawyers Associations 21 20%
Lawyers’ rights 18
Autonomy of lawyers’ associations 1
Annual review system of licensing 2
Finance (e.g. government budget, public expenses) 21 20%
Budget 4
Public expenses 5
Other 12
Civil and Political Rights 14 13.3%
Speech of freedom 4
Freedom of movement 1
Re-education through labor and illegal detention centers 4
Equal rights 2
Family planning 2
Criminal rights 1
Food safety and consumer rights (including public health) 13 12.4%
Food safety 3
Consumer rights 8
Public health 2
Monopoly of State-owned Enterprises 10 9.5%
Telecommunication industry 4
Railways 6

5
 See Chen Yongxi (2013) An Empty Promise of Freedom of Information? Assessing the Legislative and Judicial
Protection of the Right of Access to Government Information in China PhD dissertation University of Hong Kong at
130-1.
420 JCL 12:2
 zhu han and fu hualing

Evidence Gathering for Individual Cases 7 6.7%

Environmental Protection 6 5.7%
Government Accountability in High-profile Events 5 4.8%
Land taking and Housing demolition 4 3.8%
(including urban planning)
Land taking & demolition 2
Urban planning 2
Administrative Supervision and Approval 3 2.9%
Anti-corruption 1 1%

Lawyers’ Use of OGI Institutions: Three Dynamics OGI as an Entry Point into the Legal
System

An OGI application may serve multiple functions in facilitating access to court. Firstly,
OGI helps overcome some legal and practical hurdles for a case to go to court. Due to a
weak judiciary and the legal constraints embedded in the administrative litigation law,
Chinese courts are reluctant to accept administrative litigation, especially cases involving
complex issues or higher-level departments as defendants. To frame a case as an OGI
matter helps transform a substantial dispute into a technical issue in which the court
can intervene without substantive scrutiny. Unlike other branches of the administrative
law, the ROGI allows little discretion for the court to reject a judicial review application.
Therefore, OGI requests can serve as a convenient key to open a door to the court for
lawyers, especially rights lawyers who are more inclined to take complex sensitive cases.
As shown, 30.5% of the OGI disclosure requests initiated by lawyers were followed by
administrative litigation, 81.3% of which sued the government at the provincial level or
higher. Most cases were concerned with systemic issues or collective action rather than
individual grievances. These issues include the monopoly power of the SOEs (especially
those in the public transportation and telecommunication sectors), government budgets
and fees and expenses, government accountability in high-profile accidents, food safety
and consumer rights. Without the OGI, many of these cases would not be able to find their
way into court.
Secondly, the OGI helps transform some sensitive issues into legal and technical cases,
hence giving rights lawyers access to the court. In China, numerous issues are deemed
too politically sensitive to be brought forward in any formal institutional or public
forum. However, the OGI gives lawyers the opportunity to reframe these sensitive issues
technically and then to ‘pursue them more assertively’.6 Examples of such issues include
the one-child policy, anti-corruption initiatives, weiwen (maintaining stability) mechanism,
and major health and safety scandals. By employing the OGI instrument, rights lawyers
successfully transform sensitive matters into issues of transparency and push them into
the courts for a public deliberation.
Challenges to the family planning policy case provide a typical example of how
rights lawyers use the OGI request to bring issues into courts, and then into the public
domain. Family planning policy has long been a political taboo in China. Rights lawyers

 Distelhorst, Greg (2017) ‘The Power of Empty Promises: Quasi-Democratic Institutions and Activism in
6

China’ (4) Comparative Political Studies 464 at 476.

JCL 12:2 421
Transparency as an Offence

and activists, such as Chen Guangcheng, have been imprisoned for their weiquan activism
against abuses of power in enforcing family planning.7 What cannot be done through
litigation can be achieved indirectly through OGI applications. In 2013 the lawyer Wu
Youshui submitted OGI requests to 31 provincial governments for information on fines in
relation to the one-child policy (called ‘social fostering fees’).8 The OGI requests attracted
wide media coverage and made the matter a mainstream public concern for the first time.
When some provincial governments failed to disclose the information, Wu applied for
administrative review and sued two provincial governments. Since then, the issue of
the social fostering fee, which is closely related to China’s one-child policy, has become
less sensitive. This case has encouraged other rights lawyers and activists to initiate legal
actions to challenge the social fostering fee and violations of law in the implementation of
family planning policies.9

The use of OGI in Evidence Gathering

OGI application also serves an evidence-gathering function before or during legal

proceedings. OGI has frequently been used for that function in complex and controversial
cases, such as high-profile criminal cases, housing demolition and land-taking cases,
collective lawsuits, environmental pollution and administrative cases. In these cases,
lawyers have used OGI to demand disclosure of: 1) relevant government internal
investigation reports, such as the 2011 report on pollution in the Bohai sea and the fire in
a high-rise apartment building in Shanghai; 2) internal ‘red-head’ normative documents
relevant to disputed issues, such as documents that approve or stipulate the procedures
for land-taking and house demolition (e.g., the 2011 ‘nail household’ Yang Youde case); 3)
abuses of power by public officials (e.g. the 2008 Yang Jia case,10 the 2013 Beijing Airport
Bomber Yi Zhongxin case11); and 4) investigations of corruption by public officials who

7
 Chen Guangcheng (2016) The Barefoot Lawyer: A Blind Man’s Fight for Justice and Freedom in China Picador.
8
 See The Economist (2014) Right to Know. Available at: http://www.economist.com/news/china/
21601564-leaders-discover-some-transparency-can-help-make-society-more-stable-right-know.
9
 E.g., Xia Runying v. Jiangxi Dayu Xian Renkou He Jihua Shengyu Weiyuanhui, Dayu Xian Huanglong Zhen Renmin
Zhengfu Ji Dayu Xian Jihua Shengyu Fuwu Zhan (Xia Runying v. Dayu County Population and Family Planning
Committee of Dayu County Government and Dayu Country Family-planning Service Station) (2015)；also see
Wang, Chen(2014), ‘Wu Youshui: shenqing shehui fuyangfei xinxi gongkai zhihou’ (Wu Youshui: After OGI
Disclosure Requests for Social Fostering Fee) (2) Zhongguo Xinwen Zhoukan (China Newsweek) 60-2.
10
 The 2008 Yang Jia case, which has been widely reported by both the international and domestic media,
attracted substantial public attention. Yang murdered six policemen in Shanghai as revenge for being allegedly
illegally detained and beaten by the police. Yang was sentenced to death. During his trial, Hao Jinsong, an
eminent public interest lawyer, made a request to four government agencies for disclosure of relevant
information, including the allegedly illegal detention and beating of Yang, disappearance of Yang’s mother
who was the only defense witness, and whether the officially appointed defense attorney for Yang was also a
government counselor. The full text of the application was publicized on a local official media website named
Huashangwang. See Huashangwang (Huashang Net)(2008) Zhiming lüshi Haojingsong Shenqing Yangjia An Xinxi
Gongkai (Renowned Lawyer Hao Jinsong Requests Disclosure of Information on the Yang Jia Case). Available
at: http://news.jcrb.com/
lüshi/200810/t20081020_84260.html.
11
 Ji Zhongxing, a long-time petitioner, set off a bomb at the Beijing Capital International Airport in 2013 and
was sentenced to six years of imprisonment. Ji claimed that he was brutally beaten in 2005 by local security
guards in Dongguan city which left him paralyzed. Both the court and petition system had failed to address
his grievances. During Ji’s trial, his defense attorney Liu Xiaoyuan requested the police to disclose information
related to the investigation of alleged assaults against Ji and after the OGI application was denied, Liu brought
administrative litigation against the government. For a general introduction to the Ji Zhongxing incident, see
422 JCL 12:2
 zhu han and fu hualing

might have conflicts of interests in certain cases (e.g. the 2014 Wu Ying illegal fundraising
case12). In those cases, lawyers and their clients, having failed to obtain relevant information,
used the OGI procedure coupled with media report to expose defects in the ongoing
legal proceedings and the unaddressed grievances and injustices underlying the current
lawsuits. The Yang Jia and Yi Zhongxin cases are the best examples of this usage.
In addition to using the OGI to collect evidence in individual cases, criminal defense
lawyers have also used it to target the systematic defects in evidence gathering in criminal
cases. Under the Chinese criminal process, prosecuting witnesses seldom testify at
trials and defense lawyers rarely have the opportunity to cross-examine a prosecution
witness. Since there is an absence of any other effective institutional means to challenge
this practice and criminal lawyers also face risks when they directly confront the police
and procuratorates, the OGI serves as an indirect means to address the issue. According
to Article 63 of the 1979 Criminal Procedure Law (as revised, 2012), witnesses are to be
reimbursed for their expenses when carrying out their duty of testifying in court. Based on
this article, a criminal lawyer made a request in 2014 to the Zhejiang provincial government
for disclosure of the financial expenses for paying witnesses present in criminal cases,
aiming to compel the government to reveal the number of witnesses who had appeared
in court.13

Using OGI to Make a Political Statement and to Mobilize Rights Campaigns

Rights lawyers fully understand that some OGI requests invariably fail to receive any
response from the government, yet they intentionally use the institutional channel of OGI
to publicly expose a sensitive issue, mobilize rights campaigns, or in some circumstances
to make a political statement.
The most well-known political statement made through OGI might be the disclosure
requests surrounding China’s aid to North Korea, which were not initiated by rights
lawyers but by a citizen petitioner in 2012 and 2013. As expected, the government rejected
these disclosure requests, citing state secret as grounds for refusing to disclose, but the
applications attracted great publicity because they vented widespread grievances against
North Korea’s nuclear tests near China’s border and expressed criticisms of China’s failed
foreign policy.
Rights lawyers have adopted the same strategy to use OGI requests to denounce
unlawful activities of the government. For sensitive issues that cannot be raised on a
public platform, the OGI provides a limited rallying point for mobilizing resistance and
energizing rights defense activism. The most recent case involved twenty OGI disclosure
requests related to rights lawyers and activists detained in the ‘709 crackdown.’14 Lawyers

Chan, R (2014) ‘Police Powers and Accountability in China and Hong Kong: A Comparative Perspective’ (3)
Asian Education and Development Studies 243 at 248-249; also see Ji Zhongxin v. Dongguanshi Renmin Zhengfu (Ji
Zhongxin v. People’s Government of Dongguan Municipality) (2014). The full text of the judgement is on file
with the authors.
12
 A detailed introduction on the Wu Yin case, see Cheng Hongming (2016) Financial Crime in China:
Developments, Sanctions, and the Systemic Spread of Corruption Palgrave Macmillan at 92-4.
13
 Xue, H (2014) ‘Lüshi shenqing gongkai zhengren chuting fei’ (Lawyer Applied for Disclosure of Witnesses
Fees) Fazhi Ribao (Legal Daily) 13 October 2014, at A10.
14
 The ‘709 crackdown’ refers to 9 July 2015, when the first lawyer, Wang Yu, disappeared, followed a
nationwide crackdown and harassment of rights lawyers and activists. A detailed introduction on the ‘709
JCL 12:2 423
Transparency as an Offence

and wives of those detained lawyers required the relevant authorities to disclose the
location of their detention, personal information of the officials in charge, and internal
documents regarding the smear campaign against the detained rights lawyers and their
law firms. Of course, the authorities declined to disclose the relevant information and
contested the subsequent administrative litigation seeking to file the case in court, on the
ground that the information requested did not exist or fall under the scope of government
information. It is fair to say that rights advocacy attorneys in the ‘709 crackdown’ used
OGI requests primarily as an instrument to expose and denounce the authorities who
manipulate the law to persecute rights lawyers and to some extent to generate external
pressure on the authorities in charge of the investigation.
Besides such extraordinary incidents as the 709 crackdown, rights lawyers have used
OGI requests to mobilize more sustainable rights campaigns in other sensitive areas. For
instance, rights lawyers have challenged the weiwen system by using the OGI to target
separate aspects of the system such as illegal detention centers, the re-education through
labor (RTL) system, financial expenses of weiwen and the real-name system of train tickets
which helped police to monitor petitioners and activists. Rights lawyers also used OGI to
mobilize campaigns for basic political and civil rights, such as freedom of speech (e.g. OGI
requests on the ‘Green Dam (lüba) Project’ in 2009) and the right to association, particularly
the autonomy of lawyers’ associations.

State Response: Systematic Changes and Counter Attacks

Although Chinese authorities have often reported high disclosure rates, independent
audits and civil society reveal a different picture.15 According to an audit conducted by
Distelhorst, national government institutions disclosed information in response to only
14% of OGI requests. Compared to OGI requests by ordinary citizens, based on our
current data the disclosure rate for lawyers’ OGI requests is approximately 40% (including
8 OGI requests to which government institutions responded indirectly by disclosing
relevant information online), while the overall response rate is as high as 75.2%.16 It is also
worth noting that the audit conducted by Distelhorst focuses on three apolitical fields
(transportation safety, education equality, and consumer rights),17 while the OGI requests
made by lawyers involve much more sensitive issues and higher-level government
agencies.
Rights lawyering for OGI has contributed to systematic changes in certain fields, such as
increased government budgetary transparency in a wide range of fields18, the disclosure of
the deposit management of public transportation cards in several megacities, the abolition
of the RTL system, and the exposure and abolition of some ‘black jails’ (e.g. the abolition
of the illegal detention center for petitioners in the Henan province). In high-profile public
incidents, lawyer-led OGI campaigns have also contributed to improved government

crackdown’, see China Human Rights Lawyers Concern Group (2016) Report on the 709 Crackdown. Available at:
http://www.chrlawyers.hk/sites/default/files/booklet-b-content-english-output.pdf.
15
 Chen, Yongxi (2015) ‘Freedom of Information in China? The Paradox of Access to Information in a Closed
Regime’ in Felle, T and Mair, J (eds) FOI 10 Years on: Freedom Fighting or Lazy Journalism? Abramis 272 at 275.
16
 In twelve of the 105 OGI requests, it is unknown whether the government responded or not.
17
 Distelhorst, ‘The Power of Empty Promises’ supra note 6 at 471.
18
 Id at 484.
424 JCL 12:2
 zhu han and fu hualing

accountability, and in such cases as the 2009 Green Dam project, OGI campaigns and
netizens’ mobilization forced the government to abandon disputed policies.
Nevertheless, more likely than not, rights lawyering has failed to make progress
through the OGI institution, particularly civil and political rights and crackdowns on
rights lawyers. However, in contrast to online mobilization and direct action demanding
transparency (analyzed below), rights lawyers have suffered limited repression from the
authorities for the use of the OGI, except in a few highly sensitive cases. Even among all the
rights lawyers who initiated the OGI requests in the ‘709 crackdown’ , only Yu Wensheng
was detained by the police after he submitted an OGI request to ascertain the whereabouts
of his client, Wang Yu the first rights lawyer who disappeared in the crackdown.19
This ‘light touch’ by the authorities with respect to the institutional mobilization
through OGI is largely due to the legal technicalities of this process that serve rights
lawyering. However, these legal technicalities are a double-edged sword for rights
lawyers’ campaigns. On one hand, the OGI provides new opportunities and formal
platforms for lawyers to take up complex and sensitive issues. On the other hand, the
government can take advantage of the same technical aspects to conveniently evade the
substantive issues underlying those OGI requests. The OGI regulation provides several
circumstances in which the responding authorities can deny an OGI request, such as the
requested information ‘does not exist’, ‘should be disclosed by other agencies’, or ‘does not
fall within the scope of the government information’. These three legal grounds have been
convenient buffers used by the authorities to defeat OGI requests. In some circumstances,
the responding institutions did not reject OGI requests but simply provided a vague
response that cited ambiguous legal regulations to circumvent the substantial issue. For
instance, rights lawyer Chen Jinxue submitted an OGI application in 2017, asking for the
legal basis under which the official media was allowed to interview rights lawyer Jiang
Tianyong who was arrested in the aftermath of the ‘709 crackdown.’ The police authorities
simply cited the 1995 PRC Police Law (as revised, 2012) as the legal basis for the interview
while avoiding the underlying question of why a suspect who was deprived of the right to
an attorney was nevertheless accessible to official journalists and ‘tried by the media’ prior
to formal criminal procedures.20 The administrative review or litigation filed after the denial
of disclosure seldom successfully overturns the decision by the responding institutions.
The predicament encountered by rights lawyers with OGI echoes the argument made
by Chen that ‘open government stresses the supply side of information and places the
initiative in government hands …. [because] the government can decide which perspective
on its activities should be ‘open’ to the public, open government can imply weaker legal
protection for access to information’.21
Consequently, without the media as an ally, the interaction between requesters and
the government in the OGI processes remains a relatively secretive one. Consequently, to
reach out to the wider public and mobilize more external pressure, rights lawyers often go

19
 Phillips, T(2015) ‘The Case of Wang Yu, Emblem of China’s Human Rights Crackdown’ The Guardian 2
September 2015. Available at: https://www.theguardian.com/world/2015/sep/02/the-case-of-wang-yu-emblem-
of-chinas-human-rights-crackdown.
20
 ChinaAid.net (2017) Changsha gongan guanyu huanqiu shibao jizhe caifang de falü yiju de dafu (Changsha Police’s
Reply on Legal Basis for Allowing Interview by Global Times Journalists). Available at: http://www.chinaaid.
net/2017/03/blog-post_64.html.
21
 Chen, ‘An Empty Promise of Freedom of Information?’ supra note 5 at 8.
JCL 12:2 425
Transparency as an Offence

outside formal institutions and turn to online mobilization to expose problems that cannot
be addressed or highlighted by the formal OGI institution.

ONLINE MOBILIZATION: RIGHTS LAWYERS AS NETIZEN JOURNALISTS

Comparing lawyers’ use of the OGI for information, online mobilization serves as a
more aggressive tactic to expose abuses of power, demand government accountability
and counteract false information released by authorities. Other civic groups, particularly
journalists and rights activists, have also widely used the Internet as a platform for
enhancing transparency. Generally, rights lawyers use the Internet in different ways
to journalists and other activists as the former are still more inclined to challenge the
government through institutional means with the aid of online mobilization. Lawyers, even
right lawyers, have engaged in a long-term debate over online mobilization, particularly
whether lawyers should actively use social media for lawyering. Nevertheless, in the face
of legal and political barriers to accessing information they need and amidst the rapid
development of social media in China, many rights lawyers have increasingly acted as
netizen journalists and frequently used online mobilization to demand and enhance
transparency in the decision-making process.
Lawyers’ online mobilization operates as either complementary actions that facilitate
ongoing legal proceedings or an independent channel for promoting various issues and
government accountability in high-profile public incidents. In many cases, the line between
these two types is blurred. For example, once the Lei Yang case was reported online,
rights lawyers such as Chen Youxi promptly published legal opinions on social media.
Ultimately, Lei’s family hired Chen Youxi as their lawyer, while other rights lawyers and
legal professionals continued their online efforts and released a report online from their
own investigation, pushing the government to publicly release more information on the
event.22 In rights lawyering for OGI, legal mobilization often goes hand in hand with
online mobilization.

Four Major Modes of Online Mobilization

Online mobilization serves four functions: publicizing abuses of power, naming and
shaming individual officials and judges involved, distributing case information online and
networking.

Publicizing Abuses by Authorities

In the absence of external pressure, along with the limited scope of the OGI stipulated
by the law, the institutional OGI channel has often failed to address abuses of power
by individual officials. Consequently, to publicize abuses by authorities, rights lawyers,
especially ‘die-hard’ lawyers, have frequently turned to social media, for example writing

 See Tong Zongjin (2016) ‘Leiyang shijian changping jingfang liangfen tongbao bijiao tuchu de wenti’
22

(Problems Highlighted by Comparing the two Notifications Issued by Changping Police) Caixin.com 12 May 2016.
Available at: http://opinion.caixin.com/2016-05-12/100942789.html.
426 JCL 12:2
 zhu han and fu hualing

blogs, uploading videos, and even making short documentary films (e.g. a series cases on
RTL in Chongqing).23
Rights lawyers’ efforts to publicize abuses of power can be traced back to the work of
the pioneering rights lawyer Gao Zhisheng, who posted three public letters to the National
People’s Congress online and disclosed the pervasive and brutal repression of Falun Gong
practitioners.24 As rights lawyers have increasingly used Internet platforms to publicize
abuses of power, they no longer limit themselves to exposure of abuses of power in certain
fields such as religious persecution or lack of access to files or detainees, but also shift the
focus from systematic issues to individual accountability of specific officials and judges
(e.g. the Li Zhuang case), procedural defects in individual cases (e.g. the Nie Shubin case),
and the individual harassment and physical assault of rights lawyers (e.g. the 2014 Jian
Sanjiang case).
Compared to the institutional OGI channel, online mobilization is a more direct and
effective way to attract broader publicity, sympathy and support. It can generate forceful
external pressure by exposing abuses and defects. Because of the perceived and real impact,
publicizing or even threatening to publicize abuses has indeed resulted in compromises
and concessions on the part of local governments. The power of threatening to publicize
abuses by authorities was vividly illustrated in the 2014 case of a house church case in
the town of Yayang in Wenzhou city of Zhejiang province. When a rights lawyer filed a
complaint with the local procuratorate with a video showing the local party secretary and
town mayor leading plainclothes officers to illegally arrest one of the lawyer’s clients, the
local government immediately entered into negotiations and ultimately released all the
house church members.25
As rights lawyers have continued to publicize abuses by authorities, it has inevitably
led to counter attacks from the government. Lawyers and judges have increasingly clashed
over whether lawyers should be allowed to use electronic facilities in court for instance.
The restrictions imposed by local courts mostly contravene the relevant regulations issued
by the Supreme People’s Court. Most recently, the ‘trousergate’ incident was sparked by a
clash between lawyer Wu Liangshu and court martials when Wu refused to hand over his
mobile phone for inspection after his request to file a case was rejected. Wu was allegedly
beaten by a court martial, who ripped his trousers into tatters. Wu immediately took a
photograph of himself half-naked in front of the courthouse and posted it online. The
picture went viral and triggered widespread publicity, leading to a prompt reply by the
court. The online mobilization also quickly organized lawyers and the legal community to
defend lawyers’ rights. The online exposure led to a petition denouncing the attack signed
by approximately 1,000 lawyers,26 and legal actions challenging a directive issued by the

23
 E.g., ‘Yiju gentie yinfa de laojiao an’ (A Reeducation through Labour Case Caused by an Online Comment) 24
October 2012. Available at: https://www.youtube.com/watch?v=OcbgVqk2ggo; ‘Chongqing mengyuan laojiao
an: nüer siwang an wei xunqiu zhenxiang wuren bei laojiao’ (Chongqing Grievance Cases of Reeducation
through Labour: Five were sentenced to RTL for Seeking Truth of a Daughter’s Death) 14 October 2013.
Available at: https://www.youtube.com/results?search_query=重庆劳教案.
24
 A detailed introduction on the three public letters, see Pils, E (2009), ‘Rights Activism in China: The Case of
Lawyer Gao Zhisheng’ in Balme S and Dowdle MW (eds) Building Constitutionalism in China Palgrave Macmillan
243 at 248-51.
25
 Interview with the rights lawyer who represented the case, in Hong Kong (2 December, 2015). Note on file
with the authors.
26
 See Lau, M (2016) ‘Trousergate: Chinese Lawyer Left Half naked after Police Ripped His Clothes in Court
JCL 12:2 427
Transparency as an Offence

SPC forbidding recording in the Xinfang (Letters and Visits) office.27 The incident and
subsequent online mobilization provided a rare opportunity for rights lawyers to mobilize
in the generally repressive climate since the ‘709 crackdown.’

‘Human flesh search’: Naming and Shaming Officials and Judges Involved

‘Human flesh search’ (the ‘HFS’) is a literal translation of Chinese term renrou sousuo
which emerged with the popularization of the Internet and social media in the early 2000s
in China. HFS has a wide range of meanings that vary depending on the context. In a
relatively narrow sense, the term mainly refers to the phenomenon of online vigilantism
in which netizens use the internet or off-line resources to track down individuals, mine
their personal information, and expose them to public humiliation for their wrongdoings.
In many circumstances, the backlash from public pressure generated by the online
exposure leads to actual punishment or censure of the targeted individuals, particularly
government officials.28 There are both non-government/official-focused and government/
official-focused HFS.29 Rights activists and lawyers have taken the political dimensions of
the latter to challenge the government. Falun Gong groups were probably the first civil
group that routinely used HFS to identify and disclose individual officials and judges
involved in cases of Falun Gong prosecution. During or after a trial of a practitioner, Falun
Gong groups always published online the names and their personal contact information
of each Party or government official, police officer, prosecutor, and judge involved in the
prosecution.30
Rights lawyers have adopted similar tactics, particularly the die-hard lawyers in
criminal defense cases. Through HFS, lawyers target officials and judges who appear to
have performed their duties according to the law but actually undermine the legal process.
An article published by the People’s Daily, which initiated a propaganda smear campaign
against rights lawyers as part of the 709 crackdown, criticized rights lawyers for frequently
using HFS to target judges and officials. It also mentioned that in the ‘Qing’an Incident’, the
triggering event of the 709 crackdown, some lawyers proposed to HFS local government
leaders to mobilize external pressure.31
The strategy of targeting individuals online, in some ways, pierces the veil of the
impersonal nature of bureaucratic authoritarianism by identifying and highlighting the

Rejects Official Apology’ South China Morning Post 10June 2016. Available at: http://www.
scmp.com/news/china/policies-politics/article/1971629/trousergate-chinese-lawyer-left-half-naked-after-police.
27
 Opinions of the Supreme People’s Court on Maintaining the Order of Xinfang and Complaints in People’s
Courts were promulgated by the Supreme People’s Court in 2014.
28
 In a broader sense, the HFS has also been used in some other circumstances, including for fact-checking
and identifying missing persons, or for more entertainment-related purposes, such as identifying people seen
in online pictures. For a detailed introduction of the definition and types of the HFS, generally see, Gao, L and
Stanyer, J (2014) ‘Hunting Corrupt Officials Online: the Human Flesh Search and the Search for Justice in China’
(17, 7) Information, Communication & Society 814-29; Wang, FY et al. (2010) ‘A Study of the human Flesh Search
Engine: Grown-Powered Expansion of Online Knowledge’ (43) Computer 45-53.
29
 Gao and Stanyer, ‘Hunting Corrupt Officials Online’ supra note 28 at 818.
30
 E.g., Falun Gong activists have established the ‘World Organization to Investigate the Persecution of Falun
Gong.’ On its website, detailed information on public and judicial officials who are/were involved in the
persecution of Falun Gong practitioners is disclosed, see https://
www.zhuichaguoji.org.
31
 Zou, W and Huang, QC (2017) ‘Jiekai weiquan shijian de heimu’ (Exposing the Inside Story of ‘Rights
Defense’ Incident) Renmin Ribao (People’s Daily) 12 July 2017 at A2.
428 JCL 12:2
 zhu han and fu hualing

personal responsibility of individual officials and judges who had been faceless hiding
behind ‘a ritually anonymous mask.’ 32 This technique is consistent with many rights
lawyers’ idea that weiquan campaigns should aim to achieve the goal of ‘living-in-truth.’
However, such human flesh search could also violate the law by invading privacy and
can also lead to a witch-hunt fueled by false accusations.33 Moreover, targeting individual
officials and judges online also incurs greater political risk than using the institutional
OGI channel. The boldest online exposure of public officials has to be the real name report
by rights lawyer Pu Zhiqiang who accused Zhou Yongkang, the former security chief,
of violating human rights through his weiwen mechanism. Pu was soon detained for
unlawfully collecting personal information and after a year’s detention convicted of other
offences and given a three years’ suspended sentence.
It is worth noting that citizen activists and NGO activists have played the most active
roles in disclosing abuses of power and corruption among officials. Lawyers are more
concerned with their professionalism, and consequently, some rights lawyers believe that
there could be better coordination and cooperation between lawyers and their clients or
other civic groups. Rights lawyers could focus on legal and systematic issues while non-
legal groups do more in reaching out to the wider public through online mobilization and
other direct actions. However, such tacit coordination could hardly escape government
attention and repression. In the eyes of the Party state, information coordination or
organizing without organization sets alarm bells ringing amongst cross-professions and
cross-region associations. Such risk is well illustrated by the ‘709 crackdown,’ as the state-
controlled media accused rights lawyers of acting as a ‘black hand’ (heishou) to mobilize
(chuanlian) petitioners and activists.

Releasing Court Proceedings and Case Information

Unlike other civic groups, lawyers enjoy privileged access to materials and information
in legal proceedings. In highly sensitive cases such as those involving religious offences
and political dissent, families of many victims have turned to rights lawyers for assistance.
While they may have little expectation of winning their cases, they are anxious to know
what happened to their loved ones. The very nature of lawyering during legal proceedings
provides valuable opportunities to access internal government documents and case
information, which would otherwise be kept closed to outsiders.34 Rights lawyers often
exercise this right to publicize court proceedings and case information, the disclosure of
which is not explicitly forbidden by the law. However, the sensitivity surrounding those
cases makes their disclosure politically risky. Such information usually includes indictment,
defense statements, defendants’ closing statements, petitions and court judgments. Such
online disclosures are most commonly seen in dissident and religious cases, in which trials
are rarely open, and, the state-controlled media are often mobilized to frame the case in
ways unfavorable to the defendant.

32
 See Havel, V (1985) ‘The Power of the Powerless’ in Havel, V and Keane, J (eds) The Power of the Powerless:
Citizens against the State in Central-Eastern Europe Routledge 23 at 33-38.
33
 In the Zhao Wei incident, calls to disclose the personal information of police officers and their families were
not initiated by rights lawyers but forwarded by some of them. Some rights lawyer expressed opposition to the
calls for disclosure of the personal information of officials’ families (interview with the author, 13 June 2016).
34
 Interview with relatives of defendants in religious cases Hong Kong (3 December 2015).
JCL 12:2 429
Transparency as an Offence

In addition to disclosing relevant documents and case information, rights lawyers have
written blogs to document the details of legal proceedings and analyze their substantial
and procedural defects. Indeed, a key strategy of human rights lawyering is to expand the
sphere of advocacy from the courtroom to the court of public opinion. Through publicity
of inside information, lawyers aim to create favorable public opinions in support of
their agenda which may ultimately lead to a favorable political outcome. For instance,
the indictment of rights lawyer Pu Zhiqiang was distributed widely on social media and
attracted wide sympathy for Pu and ridicule of the legal process because the prosecution
was based on seven weibo postings no less critical or radical than those by many ordinary,
liberal-minded weibo users.35 Die-hard criminal defense lawyers are well known for the
wide use of social media to share their activities in real time. Since a series of high-profile
die-hard cases, including the 2010 Li Zhuang, 2011 Beihai and 2012 Guizhou Xiaohe cases,
the die-hard lawyers have almost routinely broadcast nearly every step of the litigation
process, highlighting flawed legal procedures, and mobilizing more lawyers and citizen
activists to join their legal activism.
Through the online release of court proceedings and case information, rights lawyers
do not aim merely to enhance transparency of legal proceedings and mobilize public
support, but also to make political statements and to denounce state policies. The cyber
space is a forum for lawyers to make political statements which cannot be made in the
courtroom. The defense’s speeches often touch on core political issues that rarely enter the
realm of public debate and deliberation. Defense speeches in religious and dissident cases,
almost without exception, insist on the innocence of the defendants and the illegality of
state persecution. In religious cases, the publicized defense speeches promote the idea of
religious freedom and challenge the state’s nebulous definition of ‘evil cults’(xiejiao).36 This
particular strategy was unknown even to many rights lawyers before the online release
of a defense speech by six rights lawyers in 2007. It has subsequently become a standard
strategy and is agreed upon by rights lawyers and the religious communities they
represent. In dissident cases, defense speeches released online also justify and endorse
dissidents’ courage and determination to advocate for human rights and democracy.37

Networking

According to the data of this study, 73% of rights lawyers have known social media accounts
and among those lawyers and most of them are active and pay particular attention to
high-profile public affairs. It is well-known that many influential rights lawyers have had
their accounts closed by the authorities. Online activism by rights lawyers shows that they
are more inclined to extend their activism beyond the court of law and to actively reach
out to influence public opinions. Compared to lawyers in general, rights lawyers more
actively distribute online information related to their cases and clients and post comments
on broader social issues. Rights lawyers’ online activities also help them build up and

35
 ‘Indictment of Pu Zhiqiang by the Beijing Municipal No.2 People’s Procuratorate No. 48’ (15 May 2016). The
full text of the indictment is available at: http://wqw2010.blogspot.hk/2015/05/blog-post_696.html.
36
 E.g., rights lawyer Zhang Hongpei’s defense speech for Pastor Huang Yizi (29 March 2015). The full text is
available at: http://wzchurch.blogspot.hk/2015/03/blog-post_16.html.
37
 E.g., rights lawyer Zhang Hongpei’s defense for activist Zhao Canqing (10 April 2014), the full text is
available at http://www.chinaaid.net/2014/04/blog-post_5532.html.
430 JCL 12:2
 zhu han and fu hualing

enhance their connections with each other and other civic groups, including legal scholars,
petitioners, citizen activists and rights advocate NGOs.
In the face of strict constraints on the right to association, the Internet enhances
rights lawyers’ capability to organize and to mobilize. Interviews with young rights
lawyers show that they decided to pursue a path of human rights activism after reading
pioneering rights lawyers’ online posts, subsequently making connections through on-line
communications and finally joining the human rights practice. At present, when lawyers’
rights and interests are violated hundreds or even thousands of lawyers commonly issue
collective statements online to expose and denounce the illegal conduct of authorities,
which reinforces their collective identity as rights lawyers and legal practitioners.
In recent years, online mobilization has become both a shield and a sword for rights
lawyers to counteract the propaganda state in its effort to stigmatize rights lawyers and
other activist groups. Since 2005, the Chinese government has taken a hostile attitude
toward weiquan,38and smear campaigns against rights lawyers have intensified since 2013.
Since the state mobilized state mass media that defamed rights lawyers during the ‘709
crackdown,’ on-line mobilization by rights lawyers has become a crucial channel to tell
the other side of the story and restore public trust in them. Through social media, rights
lawyers have distributed information about the personal life telling the human stories of
the lawyers detained and targeted during the ‘709 crackdown’ and their cases defending
public interests and disadvantaged groups.

State Response and Effects

Given the fluidity of online mobilization by rights lawyers, it is difficult to evaluate the
impact of rights lawyers’ online activism. The effect of online mobilization is generally
intangible and hard to measure such as increasing public awareness of certain issues, raising
public consciousness of defects in the legal system, and more external support resources
for rights lawyering. Compared to the use of the institutional OGI channel, rights lawyers’
online mobilization focuses more on specific, concrete issues rather than systematical
changes. Without media allies, institutional OGI requests could rarely enter public forums.
In this respect, online mobilization enables rights lawyers to bypass legal constraints and
reach a wider audience to create public sympathy and support. In most circumstances,
increasing publicity and public awareness of the transparency problem is more important
than winning or losing a single case. In a few cases, online mobilization has, to some
extent, forced government institutions to respond to demands for transparency (e.g. the
Lei Yang case or the ‘trousergate’ incident). Even when those responses were partial and
largely unsatisfactory, the cases often had a cascade effect triggering follow-up actions by
civil society forces. As Distelhorst has observed, even weak institutions allow activists to
‘engineer institutional failures that in turn fuel legal and media-based campaigns.’39
So far, online mobilization has achieved few systematic improvements in government
transparency. However, lawyer’s limited success has also invited counter measures to
curb their activism. In August 2015, the Ninth Amendment of the Criminal Law of the

38
 Fu, Q (2005) Hujintao yaoti ziji de yanse geming (Hu Jintao Put Forward His Idea of Color Revolution) (7)
Dongxiang 20-1; also see Benney, J (2013) Defending Rights in Contemporary China Routledge at 25-27.
39
 Distelhorst, ‘The Power of Empty Promises’ supra note 6 at 464.
JCL 12:2 431
Transparency as an Offence

PRC promulgated by the NPC Standing Committee added new articles that explicitly
prohibit disclosure of case information and give authorities broader powers to criminalize
lawyers’ speech in court.40 In response to the active online exposure of legal proceedings by
rights lawyers, many local jurisdictions have further restricted lawyers’ use of electronic
facilities and increased security checks on lawyers entering court buildings. In 2015 the
central government passed new provisions forbidding discriminative security checks of
lawyers who are entering the court buildings,41which can be regarded as positive progress
resulting from the persistent online and off-line protesting of rights lawyers. However,
in practice, lawyers continued to face a pervasive abuse of power in the judiciary and
detention centers. The conflicts between lawyers and the judicial authorities over the online
disclosure of case information has seemingly led to an inevitable vicious cycle: lawyers’
online activism invites further restrictions, which in turn fuel more vigorous resistance.42
In addition to greater systematic constraints on lawyers’ disclosure of case information,
online mobilization poses greater political and legal risks than the use of the institutional
OGI channel. While lawyers’ OGI requests may contribute to the legality and legitimacy
of the party-state, online mobilization, as well as direct actions, threatens and undermines
the party-state’s ability to maintain stability. In addition to stricter legal regulation, the
government has also used various legal and extra-legal methods to limit lawyers’ ability
to access and disclose information. The state has tightened monitoring of social media
especially since 2013. Rights lawyers’ postings have quickly been deleted and the social
media accounts of many influential rights lawyers, such as Si Weijiang, Teng Biao, and
Pu Zhiqiang, have been permanently revoked. Moreover, professional regulators, courts
and security forces have frequently harassed rights lawyers for posting case information
online, pressuring rights lawyers or their law firms to have their postings deleted. In
extreme cases, rights lawyers have been prosecuted for online criticism of authorities as in
the Pu Zhiqiang and Xie Yang cases.43

DEMANDING TRANSPARENCY FROM THE STREETS

Frustrated with the limited impact of OGI applications and on-line mobilization, a small
group of rights lawyers has taken to the streets to promote policy changes.44 Direct actions
to promote government transparency is another weapon to address sensitive or complex
issues that cannot be effectively raised in legal institutions or through social media. The
most representative case of street action for transparency is the New Citizen Movement

40
 Articles 36 and 37 of the Ninth Amendment of the Criminal Law. Available at: http://www.npc.gov.
cn/npc/xinwen/2015-08/31/content_1945587.htm.
41
 Article 8, Provisions on Ensuring the Practice Rights of Lawyers in Accordance with Law, promulgated
by Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State
Security and Ministry of Justice in 2015.
42
 The monthly ‘Zhongguo lüshi Quanyi Dongtai Xinxi’ (Brief on the Developments in Rights & Interests
of Chinese Lawyers) has well documented cases where lawyers have faced unlawful security checks and
restrictions on the use of electronic devices. Available at: http://wqw2010.blogspot.hk/
search/label/律师权益动态信息.
43
 See ‘Indictment of Xie Yang by the Changsha Municipal People’s Procuratorate No. 85’ (16 December 2016).
The full text of the indictment is available at: https://wqw2010.blogspot.hk/2017/
01/709_31.html.
44
 Fu, HL and Cullen, R (2011) ‘Climbing the Weiquan Latter: A Radicalizing Process for Rights-Protection
Lawyers’ (205) China Quarterly 40-59.
432 JCL 12:2
 zhu han and fu hualing

(Zhongguo Xingongmin Yundong) led by a handful of rights lawyers such as Xu Zhiyong,

Jiang Tianyong and Ding Jiaxi to demand the disclosure of officials’ assets.
Rights lawyers mainly use four direct action methods to expose abuse of power or
demand transparency:
First, visits to detention centers, ‘black jails’, police stations, or other official buildings
to demand the right to meet clients in detention. For instance, in the Jian Sanjiang incident
and the 709 crackdown, rights lawyers, along with the citizen activists and the victims’
families, repeatedly visited detention centers to pressure authorities to disclose the
whereabouts and the conditions of detainees.
Second, ‘popular spectators’ surveillance’ (weiguan), attending court hearings or
gathering outside courts if access is denied. In the recent trial of rights lawyer Xia Lin,
the court only used a 7-seat courtroom to conduct the trial, and as a result several rights
lawyers and activists were denied access to a supposedly public hearing. Those lawyers
gathered outside the court to protest and later posted detailed reports on what happened
outside the court to expose the ‘fake open trial.’
Third, ‘performance art’ in the streets or outside courtrooms and other buildings as
an attention-grabbing strategy. For example, in the 2013 Nanle house church case rights
lawyer Xia Jun was denied access to his client, so he held a lamp outside the court in
protest. In another case in Fuzhou city, rights lawyer Yang Jinzhu sent sweet potatoes to
the court president to protest being prohibited from meeting with his client, symbolizing
his contempt for officials who abuse their power. Generally, performance art or flash mobs
are relatively effective, low cost and can have a widespread and long-lasting influence on
the public through social media broadcasting. In the ‘trousergate’, the lawyer’s half-naked
photograph in front of the courthouse could also be regarded as a form of performance art
that successfully attracted wide attention and pressured the court to explain the assault.
Although performance art has been generally deemed to be low risk, a handful of lawyers
and activists have also suffered suppression from the authorities as a result of their actions.
For instance, the three wives of lawyers detained in the ‘709 crackdown’ who staged
performance arts in front of the detention center were also detained, together with their
attorneys and the photographer. However, they were released after a new wave of protest
by lawyers.45
Fourth, street demonstrations as mentioned above are used by human rights lawyers
in an attempt to demand greater transparency in certain areas. With the coordination of
Xu Zhiyong, the New Citizens Movement organized a series of street demonstration in
2014 to 2015 in different parts of China to demand disclosure of officials’ assets. Those
demonstrations were high-profile, well-coordinated and attracted wide public attention,
indicating a significant shift in the rights movement from a rule-based and court-centric
approach to a rights-based and political-oriented approach. With street action to demand
political change, law fades into the background.
Not surprisingly, these actions have resulted in immediate and severe crackdowns
from the authorities. Almost all the rights lawyers and citizen activists who participated

45
 Hong Kong Free Press (2016) Reluctant Human Rights Defenders: The Wives of Those Detained in China’s Lawyer
Crackdown. Available at: https://www.frontlinedefenders.org/en/news/reluctant-human-rights-defenders-
wives-those-detained-china’s-lawyer-crackdown.
JCL 12:2 433
Transparency as an Offence

in street campaigns demanding disclosure of officials’ assets have either been jailed for
‘disturbing public order’ and subverting state power or forced into exile.

CONCLUSION

Since the promulgation of the ROGI, Chinese lawyers, especially rights lawyers, have
proactively used both institutional and extra-institutional means to demand government
transparency. Lawyering for transparency is to a great extent different from ordinary
citizens’ use of the OGI institution because lawyers are more inclined to use transparency
as an instrument to promote certain structural changes. While there have been successful
OGI applications, the formal OGI institution has largely failed to address the transparency
concerns of rights lawyers and other sectors of civil society. The fallout of the inability
of formal OGI institutions to accommodate demands for transparency, as well as the
widespread abuse of power in both the administrative and legal systems, has been to force
rights lawyers to resort to extra-legal and online mobilization and even direct street actions.
While extra-institutional mobilization generally has not been effective at promoting
systemic reforms, it has been instrumental in publicizing individual cases or events,
mobilizing public pressure on authorities, and promoting government accountability.
Compared with institutional OGI requests extra-institutional mobilization for
transparency, particularly street actions by lawyers, attracts greater legal and political risks
for rights lawyers and other activists. The increasing usage of transparency as a weapon to
address abuses of power and the inability of the legal institutions to accommodate demands
for accountability have given rise to a vicious cycle: fearing the publicity and subsequent
political pressure generated by extra-institutional mobilization, the government further
suppresses information, restricts freedom and punishes the lawyers involved. That
repressive action, in turn, curbs lawyers’ ability to access the necessary information and
decreases the effectiveness of institutional channels in addressing the transparency deficit.
While state repression may deter some rights lawyers, it energizes others to re-group and
continue with their legal and extra-legal resistance. In sum, weak formal institutions create
opportunities and incentives for extra-institutional mobilization and political repression
leads to a new round of escalation. The enduring question is whether China’s authoritarian
state can create adequate space in legal institutions to absorb the political energies of
lawyers and other civil society actors.

434 JCL 12:2

 zhu han and fu hualing

GLOSSARY OF CHINESE TERMS

Romanisation Chinese Characters English Translation

(Hanyu Pinyin)

Beihai 北海

Bohai 渤海
Caixinwang 财新网 Caixin.com
Chen Guangcheng 陈光诚
Chen Jinxue 陈进学
Chen Youxi 陈有西
Chuanlian 串联 mobilise
Ding Jiaxi 丁家喜
Dongxiang 动向
Fazhi Ribao 法制日报 Legal Daily
Gao Zhisheng 高智晟
Gongyi lüshi 公益律师 Public-interest lawyers
Guizhou Xiaohe 贵州，小河

Heishou 黑手 “Black hand”, referring

to someone who is an evil
backstage manipulator
Huang Yizi (Pastor) 黄益梓

Huashangwang 华商网 Huashang.net

Ji Zhongxin 冀中星
Jian Sanjiang 建三江 A city in Heilongjiang
province
Jiang Tianyong 江天勇
Lei Yang 雷洋
Li Jinsong 李劲松
Li Zhuang 李庄
Lüba 绿坝 An internet filtering software
for Windows developed in
China
Nanle 南乐
Nie Shubin 聂树斌
Pu Zhiqiang 浦志强
Qing’an Incident 庆安事件
Renmin Ribao 人民日报 People’s Daily
Renquan lüshi 人权律师 Human rights lawyers
renrou sousuo 人肉搜索 human flesh search
sike lüshi 死磕律师 Die-hard lawyers
Si Weijiang 斯伟江
Teng Biao 滕彪

JCL 12:2 435

Transparency as an Offence

Tong Zongjin 仝宗锦

Wang Yu 王宇
Weibo 微博 China’s Twitter-like
microblogging site
weiguan 围观 popular spectators
surveillance
weiquan (lüshi) 维权 (律师) ‘rights protecting’ (lawyers)
Weiwen 维稳 Maintaining stability
Wu Liangshu 吴良述
Wu Ying 吴英
Wu Youshui 吴有水
Xia Jun 夏钧
Xia Lin 夏霖
Xiejiao 邪教 Evil cults
Xie Yang 谢阳
Xinfang 信访 Letters and Visits
xingshi bianhu lüshi 刑事辩护律师 criminal defense lawyers
Xu Zhiyong 许志勇
Yayang 雅阳 Yayang, a town in Wenzhou
city of Zhejiang province
Yang Jinzhu 杨金柱
Yang Jia 杨佳
Yang Youde 杨友德
Yi Zhongxin 冀中星
Yu Wensheng 余文生
Zhao Canqing 赵常青
Zhao Wei 赵威
Zhang Hongpei 张鸿培
Zhongguo Xingongmin 中国新公民运动 New Citizens Movement
Yundong
Zhongguo lüshi Quanyi 中国律师权益动态 Brief on the Developments in
Dongtai Xinxi 信息 Rights & Interests of Chinese
Lawyers
Zhou Yongkang 周永康

436 JCL 12:2