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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, Michael and ZHANG

Introduction: Selectively Seeking Transparency in 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 ZHANG Xiang

Selective Openness: An Evaluation on Open-Door Legislation in China

293

HUANG Yue

Hearing and Public Participation: A Failed Revolution

Privacy and Chinese Legislation on the Social Credit

or a Successful Distraction?

307

GAO, Henry

The WTO’s Transparency Obligations and China

329

CHEN Yongxi and CHEUNG, Anne SY

The Transparent Self under Big Data Profiling:

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?

Research Note

A Longitudinal Analysis of Property Regime Transformation in China

496

Dejean de la Bâtie, Alice and Theuns, Tom

Judge-Made Justification and Democratic Legitimacy 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

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

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

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

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.

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.

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

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’.

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.

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

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

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

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.

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.

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 unspokenrules

toumingdu

透明度

transparency

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.

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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.

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.

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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.

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.

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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.

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

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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 Guidingwhere 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 secrets 47 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

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 Kong 52 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.

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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.

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.

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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, 2012available 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’

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.

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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.

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 falsification 95 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 (21 st 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.

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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

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

of the efficiency of the market and social

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/

accessed 24 July 2017.

data/assets/pdf_file/0004/2478928/14-07-A-Global-Index-of-Information-and-Political-Transparency.pdf

>

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 21 st 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.

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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.

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 Shixing Cunwu Gongkai he Minzhu Guanli Zhidu Tongzhi

Guanyu zai Guoyou Qiye, Jiti Qiye ji qi Konggu Qiye Shenru Shixing Changwu Gongkai Zhidu de Tongzhi

关于在农村普遍实行村务

公开和民主管理制度的通知 Comprehensive deImplementation of Rural ‘Village Affairs Opening’ and Democratic Management System

Joint Notice on

关于在国有企业、

集体企业及其控股企业深

入实行厂务公开制度的通知 in SOEs, Collective Enterprises and Enterprises under Their Control

Notice on Implementation of ‘Factory Affairs Opening’

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 baohu zhidu

Yijian

网络安全等级保护制度

意见

network security level protection system

Opinion

Zhong-Yang Qiye Shangye Mimi Baohu Zanxing

中央企业商业秘密保护

暂行规定

xianchu zhang

Guiding Interim Provisions on Protection of Trade Secrets of Enterprises Directly Controlled by the Central Government (‘the Central enterprises’)

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

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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.

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.

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:

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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).

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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

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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.

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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

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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.

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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

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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.

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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 data 53 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 lawyers 56 or non-state-sponsored environmental NGOs 57 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.

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the fund use 59 nor a blind therapist who planned to move into the city concerned 60 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

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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

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 situation 73 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://

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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.

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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

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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

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.

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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.

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.

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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

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 City 113 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).

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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.

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.

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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 case 134 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