ZHAO  Zhengqun*

 

Abstract: Since 2007, with its duty as a competent authority, the State Council has issued about ten official documents to guide and supervise government information publicity around the whole country. These documents, pursuant to Government Information Publicity Regulations of the PRC, have transformed a steady and prudent disclosure into a more focused and comprehensive one. The awareness of the value of human rights protection embodied in those documents has also evolved from an evasive attitude into one that acknowledges the significant role of the publicity in promoting citizens’ rights to know, to participate in and to supervise the process of decision making, as well as in contributing to building a government which is innovative, impartial and ruled by law. Meanwhile, these documents have, theoretically and practically, exceeded the instructions regulated in Government Information Publicity Regulations of the PRC, a challenge on further construction and development of Chinese government information publicity system under the guidance of the Third Plenary Session of the Eighteenth CPC Central Committee.

 

Keywords:  government information disclosure      human rights protection       China

 

In accordance with the Regulation of the People’s Republic of China on the Disclosure of Government Information (hereinafter referred to as the Regulation) and hands-on experience in carrying out the Regulation over six years, and with an array of documents as clues, which have been released since 2007 by the competent department designated by the General Office of the State Council (hereinafter referred to as the General Office) to be in charge of advancing, guiding, coordinating and supervising the countrywide government information disclosure work,¹ this paper deals with the continuous enrichment and widening of the scope of Chinese government information disclosure in recent years, as well as deals with the constant improvement of human rights protective functions, for the deliberation of people of all walks of life who pay close attention to the construction and development of the government information disclosure system and the government human rights guarantee system in China.

 

 

Experience and logic both prove that determining the scope of disclosure in an appropriate way is a top priority to be achieved for the successful establishment and effective implementation of the government information disclosure system. Through the study of nearly 10 documents released by the General Office for guiding and supervising government information disclosure work after the Regulation was formulated in April 2007, it is not difficult to find that the General Office has gradually enriched and even expanded the scope of government information disclosure in accordance with the implementation procedures encompassed in the Regulation. Firstly, this paper tries to call all three documents released by the General Office during 2007-2010 the initial period for implementing the Regulation, or the period for prudently advancing government information disclosure work, because seven work tasks laid down in the Circular on Doing Good Preparatory Work for the Implementation of the Regulation of the People’s Republic of China on the Disclosure of Government Information, known as the GUOBANFA [2007] No. 54 Document, are all fundamental work tasks for the implementation of the Regulation, touching hardly on the scope of government information disclosure. Nevertheless, among tge seven main work tasks mapped out in the Views of the General Office of the State Council on Issues Concerning the Implementation of the Regulation of the People’s Republic of China on the Disclosure of Government Information, known as the GUOBANFA [2008] No. 36 Document, at least four have given rigorous or limited explanation of the scope of government information disclosure.[page]

 

As regards the scope of disclosure, it is first reiterated in the Views of the General Office of the State Council on Doing a Good Job of the Application-Based Disclosure of Government Information, which was formulated as early as Jan. 12, 2010 yet was published on the website of the central government on Sept. 13, 2013, known as the GUOBANFA [2010] No. 5 Document, that “to standardize the application-based disclosure work, Article 14 of the Views of the General Office of the State Council on Issues Concerning the Implementation of the Regulation of the People’s Republic of China on the Disclosure of Government Information (GUOBANFA [2008] No. 36 Document) prescribes that government information applied for by the applicant for disclosure shall not be provided to the applicant if such information has nothing to do with his production, life and scientific research; if government information applied for by the applicant, may jeopardize the national security, public security, economic security and social stability once they are disclosed, they shall not be provided as per the regulation, and the applicant can be informed of the scope other than the government information disclosure.” Second, it is stressed in the Views of the General Office of the State Council on Doing a Good Job of the Application-Based Disclosure of Government Information that the scope of application of government information should be grasped accurately. The government information provided by administrative organs to the applicant should be formal, accurate and integral and can be formally used by the applicant in his production, life and scientific research work, and can also be used as documentary evidence in legal proceedings or administrative procedures. Therefore, the restricted administration information made or acquired by administrative organs in their day-to-day work, and the procedural information in discussions, study or examination, are generally not government information that should be disclosed as prescribed by the Regulation. “Government information provided by administrative organs to the applicant should be available at hand and should not be gathered, literally treated or reproduced (except the treatment for differentiation) by administrative organs. According to the Regulation, administrative organs generally do not undertake the obligation to gather, treat or reproduce government information for the applicant, or to collect information for other administrative organs, citizens, juridical persons and other organizations.” For this reason, this paper views the three documents released by the General Office during 2007-2010 as the initial period for carrying out the Regulation, or the period for prudently advancing government information disclosure work, or the period for restricting the scope of government information disclosure in a comparatively strict way.

 

The year 2011 can be called the period of policy readjustment for government information disclosure work, including the scope of government information disclosure. From 2012 onwards, the information disclosure work of the Chinese government has entered a period in which disclosure of major information that was emphasized for long has developed into the comprehensive disclosure of government information. One of the important landmarks is that the General Office has, ever since 2012, started to adopt a new work pattern of publishing documents on work arrangements for the disclosure of government information on a yearly basis to perform the responsibility of advancing, guiding, coordinating and supervising countrywide government information disclosure work. Among others, Arrangement of the Major Government Information Disclosure Work 2012 promulgated in May 2012 and the Arrangement of the Current Major Government Information Disclosure Work promulgated in July 2013 (hereinafter referred to as the “major work arrangement 2012 or 2013”) are all characterized by the theme of “disclosure of major information,” specifically enriching the disclosure of major government information during those years. However, it can be seen that in the Major Government Information Disclosure Work Tasks of 2014 (hereinafter referred to as “major work tasks of 2014”) promulgated in March 2014, the words ”disclosure of information on major fields” are no more used in both document titles and style, but prominence is given to the content and style of facilitating government information disclosure work in an all-around way. Moreover, emphasis is placed on the guideline that “all localities and departments should take the active disclosure of government information as an important means for boosting administrative work according to law, constantly expand the scope of disclosure and elaborate the disclosed content. Government information acquired and produced by administrative organs, if such information relates to the public interest, public rights and interests and are of public concern or need to be made known to the public, should all be disclosed pursuant to law, and in a comprehensive, accurate and timely way.” From Part II to Part VI of the “major work tasks of 2014” the scope of government information that should be publicized actively has been reintegrated and redivided into five aspects that are more general and with more specific content, and have been meticulously matched to the guideline of “conscientiously doing a good job of the application-based disclosure of government information” in Part VII and to the tenet of “strengthening institutional construction and base construction” in Part VIII, thus forming a new pattern of boosting government information disclosure work in China in an all-round way from the active advancement of the disclosure work to the advancement of the application-based disclosure work and from doing a good job in specific fields to strengthening the institutional construction and base construction, marking a new stage in which construction of the Chinese government information disclosure system has advanced from the disclosure of information on major fields to the disclosure of information in an all-round way. Thus it can be seen that the scope of Chinese government information disclosure has been constantly enriched.[page]

 

 

The government information disclosure system that has been under continuous and forceful construction across the globe from the 1960s till now has been undoubtedly one of the prominent developments achieved in the field of contemporary human rights protection since the entry of human society into the Information Age. There is no doubt that this system comprises clear-cut human rights protection value and function. Nevertheless, the system has witnessed a special development history in China, bringing about experiences with Chinese characteristics. It can be seen that the formulating organ of the Regulation deliberately avoided the “citizens’ right to know” or “the right to government information by law” that had then been universally recognized by all walks of life in China but had not been officially established with state legislation, and such a situation continued till 2010. In 2011, the General Office of the CPC Central Committee and the General Office of the State Council jointly promulgated the Views on Deepening the Publicity of Government Affairs and Strengthening the Service Work in Government Administration, proposing for the first time that “we should persevere in defending people’s right to know and their right of supervision, reinforce the effort to step up the publicity of government affairs, carry open and transparent demands through all links of the service work in government administration to publicly boost the improvement of the level of the service work in government administration, and create conditions to ensure that the masses can better understand and supervise the government work.” In this way, the civil rights and human rights protection value and function of disclosing the government information to “guarantee the masses’ right to know and their right of supervision” and to “create conditions to ensure that the masses can better understand and supervise the government work” have been officially established in the working document of the competent departments under the government information disclosure system. 

 

Subsequently, in September 2011, the General Office transmitted the Views on Relying on Electronic Platform of Government Affairs to Strengthen the Experimental Work of Publicizing Government Affairs and Offering Services in Government Administration Among County Governments issued by the National Leading Group for the Publicity of Government Affairs, pointing out that “deepening the publicity of government affairs and strengthening the service work in government administration is of vital importance to advancing the administrative reform, tightening the supervision and restriction of administrative powers, guarding against corruption at source and building a service-oriented government.” It was pointed out in the “major work arrangement” rolled out in 2012 that “since the implementation of the Regulation, . . . rights and interests of the public to gain access to government information according to law have been protected efficaciously.” It was also pointed out in the “major work arrangement” rolled out in 2013 that “special needs of citizens, judicial persons or other organizations for government information should be met in a better way”; that “public participation should be increased, and the information disclosure work should be gradually realized in key fields in a scientific, standardized and normalized way.” It was pointed out in the beginning of the Views on Further Strengthening the Publicity of Government Information, Responding to Social Concerns and Enhancing Government Credibility published in October 2013 that: “Implementing the disclosure of government information according to law is an intrinsic requirement for people’s governments to maintain close ties with the masses and to transform their ideological and work styles, and is also an important move for building a modern government, enhancing government credibility, stabilizing market expectations and protecting people’s right to know, their participation rights and right of supervision.” It was deeply expounded in the beginning of the “major work tasks of 2014” released in March 2014 that [page]

 

      “the year of 2014 is an important year for carrying out the essence of the Third Plenary Session of the 18th CPC Central Committee and for deepening the reform in an all-around way. The overall requirements for doing a good job of the disclosure of government information this year are: persistently take openness and transparency as the basic principle of the government work with the focus placed on the central tasks of the Party and government and on people’s expectations; by taking the guarantee of people’s right to know, their participation rights and right of supervision as the goal, thoroughly carry out the Regulation of the People’s Republic of China on the Disclosure of Government Information, advance the government information disclosure work in a comprehensive way, strengthen the information release work, information interpretation work and information response work, enhance the construction of systems and mechanisms, constantly improve the efficacy of government information disclosure, further step up government credibility, and give better play to the role of information disclosure in facilitating the construction of law-based government, innovation-oriented government and clean government.”

 

It would not be difficult to see that the competent departments’ exposition and recognition of human rights’ protective and value function under the government information disclosure system has evidently undergone a process from deliberate avoidance to official appellation of “gaining access to government information” as a civil right and to the official recognition of the government information disclosure system being characterized by the value function of “safeguarding people’s right to know and their right of supervision.” In the decision of deepening the reform in an all-round way made at the Third Plenary Session of the 18th CPC Central Committee, and under the guidance of the route map of making a comprehensive plan for the continuous development of the Chinese information disclosure system, in the “major work tasks of 2014,” provisions have been set forth as to the successful implementation of government information disclosure work this year, which demands that not only should “openness and transparency be persistently viewed as the basic system for government work and the guarantee of people’s right to know, with their participation rights and right of supervision as the goal,” but should, “by thoroughly carrying out the Regulation, government credibility be further enhanced and better play be given to the role of information disclosure in facilitating the construction of law-based government, innovation-oriented government and clean government.” Thus, we can sum up the constitutional principles for present-day China to realize the fact that “the state respects and safeguards human rights” and, when China advances its human rights protection cause conscientiously and steadily, the atmosphere of “speaking prudently but acting rigorously” has come into being through accumulation, without chanting high-sounding words and throwing the hatchet; while in practice, we should constantly enhance our understanding of the value and significance of specific systems safeguarding human rights, so as to earnestly realize the fundamental rights of citizens and popularize the experiences for safeguarding the rising fundamental human rights.[page]

 

 

The Regulation and guiding documents released by the General Office have played a remarkable role in facilitating the development of China’s government information disclosure system and in advancing the human rights protection cause in China. The role played by the Regulation and guiding documents has even surpassed the statutory position of the Regulation itself in relation to government information disclosure, highlighting that the competent departments’ understanding of democracy, rule of law, human rights value and function embodied by government information disclosure has reached an unprecedented high. Particularly, the ever-increasing and continually developing government information disclosure practice in China, the scope of government information disclosure being continuously expanded by the guiding documents issued by the General Office, the profound exposition of human rights protection value and function, of law-based government, and of the significance of  building a law-based country, all have surpassed the interpretation of the Regulation, and posed challenges to the Regulation in terms of theoretical and practical development.

 

For instance, the new measure listed in the “major work tasks of 2014” and aiming at expanding the scope of government information disclosure and innovating market governance modes, which embodies China’s “flexible use” of the government information disclosure system or China’s latest development, and which reads as “disclosure of information on administrative penalties should be expedited and efforts should be intensified to publicize the information on administrative penalty cases concerning the manufacturing and selling of sham and shoddy commodities and infringement of intellectual property rights,” originates from the “Circular of the National Leading Group for Fighting Against the Infringement of Intellectual Property Rights and Against the Manufacturing and Selling of Sham and Shoddy Commodities with Regard to the Views on Disclosing the Information of Administrative Penalty Cases Concerning the Manufacturing and Selling of Sham and Shoddy Commodities and Infringement of Intellectual Property Rights in Accordance with the Law (for trial implementation)” approved and forwarded by the State Council on Feb. 4, 2014 as GUOFA [2014] No. 6 Document. Putting the provision of “disclosure of information on administrative penalties should be expedited and efforts should be intensified to publicize the information on administrative penalty cases concerning the manufacturing and selling of sham and shoddy commodities and infringement of intellectual property rights” in the “major work tasks of 2014” is the implementation of the State Council’s important policy as well as an important supplement to government information disclosure content this year. It shows that disclosure of government information not only has the value of safeguarding citizens’ legitimate rights and interests and restricting and supervising the abuse of administrative powers, but has the value and function of protecting fair competition, maintaining market and economic order and boosting the modernization of national governance systems and governance capacities. Meanwhile, it also means the basic function of China’s government information disclosure system has expanded from stressing the protection of civil rights and human rights and supervising and preventing the abuse of public powers to a wider national governance area, opening up a new channel for facilitating the modernization of national governance capacities, favoring the enhancement of the modernization level of national governance capacities.[page]

 

Another example is that, since 2011, the concept of defending the human right to government information disclosure prescribed in the documents released recently by the General Office has sublimed from the concept of “government responsibility” defined in the Regulation, namely, access to government information is not prescribed positively as a legal right of citizens but the public demand for the “reflected interests” are satisfied only through the establishment of the responsibility for publicizing government information, to the concept of protecting the fundamental rights or human rights of citizens represented by the maintenance of people’s right to know, including participation rights and right of supervision, etc. This has provided a new opportunity and a new power for defining the ever-growing fundamental human rights and right to know in the Information Age as legal rights of citizens, posing a new challenge to the Regulation and to the guiding documents of the General Office in giving new scientific and systematic interpretations with regard to the establishment of a standardized system. On this basis, challenges also include whether the legislation on government information disclosure or legislation on disclosure of government affairs, which had been called for earlier and expected for years by all walks of life as a result of the new theoretical and practical developments in the disclosure of government information in China, should be started on time, and whether the public’s right to know, their participation rights and right of supervision, which have been defined as the legal basis for the government information disclosure system, should be defined as constitutional rights.

 

Overall, ice has been broken and the route has been opened up. Under the guidance of the spirit of the Third Plenary Session of the 18th CPC Central Committee, and on the basis of the scope of 2007-2014 government information disclosure being continuously enriched and the human rights protective function being constantly enhanced, the construction of the government information disclosure system in China is ushering in a new era that is developing more steadily and rapidly. We expect that the disclosure system will continue to make still greater contributions to building a law-based government in China and building China into a law-based country as well as to the development of China’s human rights protection cause.  

 

* ZHAO Zhengqun(赵正群)，professor at the Law School, and director of the Office of Human Rights Legal System Research, Center for Human Rights Studies, Nankai University, Tianjin, China.

 

1.Titles of the documents on guiding and supervising the government information disclosure work, which have been published by the General Office of the State Council since 2007 and have been cited in this paper.