Zhao Zhengqun
Introduction
2013 saw the sixth anniversary of the formulation of Regulations of the People’s Republic of China on Disclosure of Government Information (hereinafter referred to as the Regulations) and thefifth anniversary of theirbeing put into effect. As the Regulations were stipulated and put into force, people from all walks of life have increasingly recognized that the Regulationsare important regulations that promote the overall development of China’s economy, politics, society, culture and ecological environment as well as construction of its fundamental system. They advance the continual development of a group of basic human rights, which are represented by our right to know and also include the rights to participate, express, supervise, and so forth. The Regulations have already become the most effective regulation in contemporary China, and also one of the highlights in the thorough implementation of the constitutional principle that “the state respects and protects human rights.” They are one of the valuable political legacies passed down by the former leaders of the CPC Central Committee and State Council as part of China’s great undertakings of reform and opening-up and human rights protection. Of course, the Regulationsare far from enough so they should be promoted to become the basic law of the PRC. This essay originally focused on the topic of a long article with the same title. However, as is required by the forum, here I’d like to conduct basic research on the Regulations’ enforcement from two perspectives, namely, the government’s obligation to release its annual report on information disclosure and the public’s legal right to require the government to disclose information, thus to prove that a group of important human rights is continually growing during the interaction of these two sectors.[page]
I. An inspection on how the government observes its obligation to release its annual report on information disclosure
The Regulations are definitely a latecomer in the socialist legal system ofcontemporary China, which has at least 240 effective laws, 706 administrative regulations and over 8,600 local regulations.2 However, they are sending out more and more remarkable “positive energy” in our great undertaking of advancing the rule of law and building a socialist country under the rule of law. Hence, the writer, who has been paying attention to its formulation and enforcement, can’t help but refer to it as “one of the most effective laws and regulations” of the contemporary Chinese legal system.
The effectiveness of implementation of the Regulations is first reflected in their enforcement mechanism. They exclusively set apart a whole chapter (Chapter 3) for Methods and Procedures of Disclosure, which stipulates that administrative agencies should disclose government information on their own initiative or as requested by the public. The Regulations thus have an enforcement mechanism based on interaction between our officials and citizens with these two basic methods. In the next chapter Supervision and Safeguards (Chapter 4), they assign administrative agencies at all levels an obligation to release their annual report on government information disclosure before March 31 every year. Apart from Article 13, Chapter 2, which stipulates that citizens, legal persons or other organizations can apply for government information from the ministries of the State Council, local governments at all levels, as well as departments of local governments above the county level according to their special needs for production, livelihood and scientific research, the Regulations entitle citizens, legal persons or other organizations a right of relief to apply for administrative reconsideration or file an administrative lawsuit if they believe a specific administrative action of an administrative agency in its government information disclosure has infringed their legitimate rights and interests specified in the second provision of Article 33, Chapter 4. This thus creates a strong supervision and safeguard mechanism for the Regulations. Therefore, a double supervision and safeguard mechanism, which consists of the government’s obligation to make an official annual report and the individuals’ or organizations’ rights to administrative reconsideration and judicial relief, has been formed in one administrative regulation. Such a mechanism is unprecedented in any of China’s current laws and regulations, including the Constitution. That’s why the Regulations are the most effective administrative regulation in today’s China.[page]
First of all, I would like to give a brief review of how the 31 provinces, autonomous regions and directly governed municipalities in Mainland China and the 25 existing ministries of the State Council released their annual reports on government information disclosure according to the Regulations during the five-year period from May 1, 2008, when the Regulations became effective, until May 2013. Based on documents and statistics, the 31 provinces, autonomous regions and directly governed municipalities in Mainland China have all released their own annual reports every year from 2009 to 2013 as demanded by the Regulations. Among the 25 existing State Council ministries, 23 have done so. Hence it’s safe to conclude that the annual report system stipulated by the Regulations has already been implemented on the provincial level. Nonetheless, its enforcement is better in provincial administrative regions than in State Council ministries by comparison. That is because two important ministries in the Council, the Ministry of National Defense and the Ministry of State Security, which have attracted a lot of attention, have not published their annual reports yet. They have never given any formal explanation or statement regarding not releasing the annual reports. It is commonly believed that the national defense and social security information possessed by these two ministries has something to do with national secrets and social security. According to the Regulations, any information concerning national secrets or that is harmful to national, public, or economic security or social stability cannot be disclosed. Yet it is still short of specifications about the exemption of the two important ministries from releasing their annual reports. Thus it has become a key problem to be solved in the enforcement process.
The next is a review of how the public exercises its right to apply to the government for information disclosure and how the administrative agencies respond. According to the annual reports published by the 31 provinces, autonomous regions, directly governed municipalities and 25 ministries of the State Council, we can see that more and more individuals and organizations have exercised their right, conferred by the Regulations, on their own initiative, requiring administrative agencies to release relevant needed information, while the government has also actively performed its duty to give a reply according to law, thus creating a benign interaction of active application and careful reply. Take Beijing as an example. The situation of how the public has applied for government information disclosure to different departments of the Beijing Municipal Government and the governments of its districts and counties as well as how these agencies replied is shown below:[page]
A Table of the Public’s Application for Government Information Disclosure to Beijing Administrative Agencies and Their Replies from 2008 to 20123
Taking Beijing as an example, according to the study of relevant statistics in the annual reports of the Beijing Municipal Government, we can see a remarkable achievement in China’s government information disclosure and notable effects of the thorough enforcement of the Regulations. In the first five years of its implementation, Beijing has done a great job in giving replies on time to all of the applications submitted. It defined its treatment unit as “case” for the three years from 2008 to 2010 and “item” beginning in 2011 in handling these applications, and went from “free of charge” due to lack of charging standards at the beginning to “charging according to set standards” beginning in 2010. The government only charged RMB 61,794.8for its replies to 44,761 cases or items in total during the five years, merely RMB 1.38 for each on average. Furthermore, Beijing has done a lot of work in its voluntary government information disclosure and dealt with many controversies over this issue. Of course, Beijing has always been among the best in China in this field, and is clearly better than the average level of other places. More universal and detailed research should be conducted if we want to get a comprehensive and concrete understanding of how different provinces, municipalities, and autonomous regions enforce the Regulations.[page]
II. Cases of the public applying for government information disclosure or filing a lawsuit as reflected in media coverage
While analyzing and sorting out the official data in government reports, the writer also collected information on major cases of thepublic applying for government information disclosure or filing a lawsuit that were reported in 2011-2012 by the media on the Internet. Thus we can have a further understanding of the status quo of the public’s participation in the construction of the Chinese government information disclosure system through these major cases from the perspective of the media and public opinion.
By sorting out and analyzing media coverage in 2011, the writer has discovered that among the 41 applications proposed by members of the general public or by a group, there were only two cases approved for disclosure, two cases where applications were required to be transferred to other agencies, and another one that was not duly answered but was approved for partial disclosure. There are 15 cases that have not beenresponded to yet, 12 where disclosure has been refused, and nine with no available results. Among the 18 applications and lawsuit cases put forward by professionals and social organizations, though only two were not answered and four received relatively positive responses from administrative agencies, we can’t see a single case with full disclosure as required by the application.5Among the 113 major application cases in 2012, the writer found that there were 16 cases in total where the relevant government agency approved of disclosure or partial disclosure after the application was submitted. The rate of approval was merely about 14%, much less than 52.56%, the rate of approval of disclosure for the total number of replies calculated in the 2008-2012 annual reports of the Beijing Municipal Government on government information disclosure.
Among the cases in which disclosure was refused or which were not duly answered as stipulated by the Regulations, the reasons for refusal were mainly that “the information being sought involves business secrets and personal privacy,” “the information is not under our control,” or “it is proceduralinformation.” Obviously, the reasons can be mainly classified into two categories: one related to prohibition by law, and the other related to operational issues.6The administrative agencies may not disclose government information that involves state secrets, business secrets or personal privacy, as stated in Article 14 of the Regulations, which constitute the reasons under “prohibition by law.” According to Provisions 3 and 4 of Article 21, administrative agencies may not disclose information if it is not controlled by them, or if it is nonexistent or not clearly required, which constitute the reasons under “operational issues.” Among the 2012 cases, there were sixwhere disclosure was refused due to alleged involvement of business secrets or personal privacy, and nine cases where the government disapproved due to reasons such as “the information is not in our control,” “it is unavailable for disclosure” or “it is nongovernmental information.” Among these cases, the civil environmental protection organization, Green Beagle Environment Institute, applied to the Ministry of Environmental Protection to disclose research results about a list of PCB electrical equipment and their disposal in the nonpower sectors in eight major provinces, which was completed in 2010. Wu Chongbiao, a villager from Nenbei Village, Dali Town, applied to the Department of Land and Resources of Guangdong Province to disclose the approval documents and examination materials related to land requisition atDahao Lake. The government agencies’ repliesin both cases said that “as procedural information, the information applied for is not available for information disclosure, and thus cannot be disclosed.”[page]
Though the results of those specific application cases covered by the media were far from satisfactory, there has been an obvious increase in cases where the applicant won the lawsuit filed because of dissatisfaction with such administrative decisions made by the agencies as “not for disclosure” since the Provisions of the Supreme People’s Court on Some Issues Concerning the Trial of Administrative Cases of Government Information Disclosure, which was issued on July 29, 2010, became effective on August 13, 2011. Of the 26 lawsuits lodged by the general public in 2011, among which 12 cases still have no available verdicts, the plaintiff’s side only lost three cases but won eight and obtained information by other means in the rest of the three cases that were withdrawn. That means the applicant, as the plaintiff, had more possibility of winning or achieved a larger number of successes than defeats in such lawsuits, indicating that in judicial adjudication, more importance has been attached to the protection of the rights and interests of individuals and organizations during their active participation in the construction of the information disclosure system.
III. Brief review
The writer would like to give a brief review as follows, after examining the status quo of how the government fulfills its obligation to release the annual report on information disclosure and how the public exercisesits right to apply for information disclosure from the government.
1. The interaction between our officials and citizens in their respective efforts to fulfill their obligations and exercise their rights during the process of enforcing the Regulations is promoting the continual development of the political rights of Chinese citizens. The government information disclosure system, which is now under construction and development, not only guarantees our right to know, but also advances the practice and growth of other related civil and political rights, including the right to participate, the right to express and the right to supervise. Rights may not be “naturally endowed,” nor totally depend on laws or regulations judging by empirical experience. Rights are organismsthat continually grow in the soil of social practice. If we compare the external conditions for the growth of our right to know, namely the government’s fulfillment of its information disclosure obligation, to earth and sunshine, then the basis of our right to know, namely individuals and organizations’ exercise of their right to obtain such information can be compared to the seed of human rights. These two aspects must be interdependent and form a benign interaction so as to form a sound environment and complete conditions for the growth of the right to know. It is precisely the interaction between Chinese officials and citizens during the construction of the government information disclosure system that enables the popularization and rapid development of the right to know.[page]
2. It is not enough to just have an institutional interaction as stipulated in laws and regulations. We should transform the institutional interaction into one in the implementation mechanism, and elevate the interaction in a general sense to a benign one. It’s no secret that there have been problems in enforcement of the Regulations. For example, administrative agencies usually put more emphasis on the voluntary disclosure of government-oriented information, while there is still much room for them to improve in answering those applications in a more concrete and accurate manner, and especially with a better service attitude. As for the public, itis not concerned about, or is even indifferent to or distrustful about government-initiated disclosure, and instead focuses on the disclosure of public and personal information it cares about. Therefore, this essay suggests that our administrative agencies should continue improving the quality of their disclosure in an all-round way, do their best to overcome the rigidity and formality that “all departments voice the same reply and all officials show the same attitude” shown in the annual reports. Moreover, they should try their utmost to fulfill the annual report obligation as stipulated in Article 31 and 32 of the Regulations in a more comprehensive, real, sincere and objective manner instead, and improve their work of replying to the public’s applications in the mean time.
IV. Conclusion
Though the Regulations have already pioneered thoroughly implementing the constitutional principle that “the state respects and protects human rights,” and are the most effective regulations in contemporary China, with an unprecedented double supervision and safeguard mechanism of great strength, they still need to be promoted as the law of the PRC due to theirextraordinary function related toinnovating the institution and protection of basic human rights. This will help promote the development of the Chinese socialist rule of law and human rights through its deserved status and power as a Chinese law.
The formulation of the Regulations is not enough. During their implementation process, we should promote a benign interaction between the Chinese government and the public in the respective efforts to fulfill the obligation to publish the annual reports and exerciseits right to apply for information disclosure, which is conducive to advancing the process of promoting the Regulations to become a law.
The author Zhao Zhengqun is professor of law and director of the Office of Human Rights Legal System Research of the Human Rights Research Center, Nankai University.[page]
1.This paper is one of the mid-term results of the Research on the Human Rights Development Path with Chinese Characteristics, an important project supported by the National Social Science Foundation (Project No. 11&ZD072), and of the Process of Building a Government Information Disclosure System and Its Protection of Chinese Citizens' Rights to Know, Participate, Express, and Supervise, a legal subject construction project that is part of the “985 Project” of Nankai University (NKFX0016).
2.They originated from the White Paper on the Socialist Legal System with Chinese Characteristics issued by the Information Office of the State Council in October 2011.
3.The basic annual statistics in this table come from the 2008-2012 annual reports of the Beijing Municipal Government on government information disclosure. The five-year total and some of the percentageshave been calculated by the writer.
4.The approach toward counting replies was adjusted in the Beijing 2012 annual report. It was changed to 16,468 cases duly answered, among them: 1) the request was clear and the reply for disclosure could be given in 9,052 application cases, which accounted for 54.97% of the total. The information involved in 8,631 of them was disclosed, including 8,037 items approved for disclosure, 120 for partial disclosure, and 474 already disclosed. 2) the items that belong to six other reply types totaled 7,416, which included those items with unclear requestsor notifications for revision or addition, nonexistent information, lack of control over relevant information, nongovernmental information, as well as information transferred to archives. Exact numbers have been listed in this table, but the proportion of the total number of that year’s replies was calculated by the writer based on the year-on-year rate of 2008-2011 to make a better comparison.
5.See also p. 246 of the Proceedings of the 5th Beijing Forum on Human Rights in an article entitled “Review of the Public’s Participation in Building China Government Information Disclosure System,” by Zhao Zhengqun.
6.Xiao Ming,“Research on the Operation of the Government Information Disclosure System – Based on 245 Annual Reports of Government Information Disclosure Work from 2008 to 2010,”Legal Science Monthly, 2011(10).
