Home > China > Setting the stage: rise of FOI regime

Setting the stage: rise of FOI regime

China has been widely criticized of its formidable secrecy in government and administrative affairs. However, with the deepening of reform since 1978, Chinese people are crying out for an accountable bureaucracy through effective public oversight. With the strong advocates of scholars, the ruling party realized that moderate openness could help to legitimize its rule. From the late 1990s, the central government has introduced a series of tentative “open administration” reform at local levels (Zhou 2003). Subsequently there has emerged a wave of FOI rule-making since 2002 at provincial and municipal level, which was driven by local government’s need to establish their images of openness and to attract foreign investment. Such rule-makings, under the name of “Open Government Information” (OGI) and regarded as a kind of local legislation by virtue of the Legislation Act 2000, impose certain degree of obligation on administrative agencies to disclose a range of information to citizens. By December 2006, 31 provinces and municipals have issued legal provisions on government openness, among which 11 are local regulations enacted by local People’s Congress, and 20 are local rules issued by local governments. Meanwhile, 36 departments or bureaux under the State Council have issued departmental rules or measures on the same subject (Xinhua News Agency, 2006). Partly driven by the obligation under World Trade Organization’s transparency requirements[1], and partly stimulated by the disastrous consequences of information cover-up in the outbreak of SARS, the central government acquiesced in the blooming of local legislations. After 8 years of hesitation, a right of ATI that can be enforced by judiciary was finally vested in citizens by the Regulation of Open Government Information (OGIR) in April 2007[2]. It is an administrative regulation made by the State Council, which has the secondary highest authority in China’s legal hierarchy. Along side with these OGI rules, various laws prescribe disclosure requirements as well, such as the Administrative Licensing Act 2003[3], Prevention and Treatment of Infectious Diseases Act 2004[4]. A subsequently passed law in August, the Emergency Response Act 2007, also literally expands the citizen and the press’ right of access to information about government’s measures during the time of emergency. But again, it leaves uncertain exemptions (Xinahua, 2007).

 

With all these measured steps in legislation, China has formulated a new transparency regime and, in this sense, joined the global FOI community, notwithstanding the absence of a general FOI law. The regime is not an easy breakthrough, given China’s weary history of secretive governance and its rigid bureaucratic apparatus. Undoubtedly, it will have a far-reaching political and legal impact through empowering the citizens with a legal right to know. However, doubts remain: will such legal construction works? Does it act as a window transparent enough to allow public scrutiny of government apparatus? Or virtually, it is no more than a window shutter that simply permits public inspection from limited aspects and the range of vision is easily controlled by officials?

 

If the absence of high-ranked norms and shortage of data concerning legal implementation has impeded the comprehensive study of China’s FOI regime in the past, it is opportune, from now on, to review the legal structure of FOI provisions and evaluate their effectiveness in guaranteeing the ATI right. The thesis wishes to produce an analytical framework for a comprehensive understanding of China’s FOI regime, and provide empirical data concerning its implication with reference to monitoring methods in other FOI jurisdictions.


[1] Transparency principle is prescribed in the chief treatments that constitute the legal framework of WTO and accepted in the commitment of China in its accession to WTO. See Article 10 of GATT, Article 3 of GATS and Article 63 of TRIPS. The principle mainly requires that the contracting party should regularly and timely publish its policies, laws, regulations, decrees, rules, regulative measures and statistic data concerning the trade as well as the trade-related treaties it has been engaged in, and that the undisclosed internal provisions governing the trades should be reduced to minimum.

[2] Article 33.

[3] Article 5, Article 33 and Article 59.

[4] Article 38.

“The State establishes the system for announcing information on epidemic situation of infectious diseases.

The health administration department under the State Council shall regularly announce information on the national epidemic situation of infectious diseases. Health administration departments under the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall regularly announce information on the epidemic situation of infectious diseases in their own administrative areas.

When an infectious disease breaks out and prevails, the health administration department under the State Council shall be responsible for announcing to the public information on the epidemic situation of the infectious disease, and may authorize the health administration departments under the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government to announce to the public information on the epidemic situation of the infectious disease in their own administrative areas.

Information on epidemic situation of infectious diseases shall be announced without delay and accurately.”

[5] Article 10 and Article 44.

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