Monday, May 28, 2018

Fu, Palmer and Zhang on Selectively Seeking Transparency in China (J of Comp Law)

"Introduction; Selectively Seeking Transparency in China"
Fu Hualing, Michael Palmer and Zhang XianChu
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 203-215
Introduction: 'The possession of full knowledge does away with the need of trusting, while complete absence of knowledge makes trust evidently impossible.' George Simmel
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 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.  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.   
     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 many 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 be 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 leadrship 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 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 declassification 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 depoliticisation 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') 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.  Authoritarian states, to various degrees, embrace legality and law in promoting foreign trade, disciplining bureaucrats, regulating market transaction and in 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 George 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.
     Moreoever, 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'.   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.  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 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 potentially 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-limit.  Transparency is partial also in the sense 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 shapes 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 an 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.   The pressures from the bottom upwards - including pressures from netizens - for greater public participation or civil society participation can be identified in the developments noted by some of the contributions.  Fir 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 may 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, was inconsistent with China's accession to the WTO special protocol provisions regarding more open judicial review.     

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