Throwing an Egg against a Stone? An Empirical Study of Opening Government Information Litigation in China (2008-2018)
DescriptionAdministrative litigation in China has invited heated debates for decades, given that the changes in such litigation reflect the evolving state-society relations and the changing ideology in authoritarian governance (O’Brien and Li, 2004). Right after China passed the nationalRegulation on Open Government Informationin 2007 (Chinese version of Freedom-of-Information Law), a new wave of administrative litigation occurred with governments being sued to release classified information. Instances of such administrative litigation jumped from 308 in 2008 to 17,174 in 2017.The Regulationhas now become one of the most popular legal citations in China’s courts. Some scholars regard suchOpen-Government-Information(OGI) legislation as a milestone in “administrative openness legal construction” (Mo and Lin, 2008, p.113), and view the litigation as a significant step in China’s transparency reform (Ji and Zhang, 2013; Li, 2011; Zhou and Liao, 2014). Others however, have cast doubt on the impact of the OGI regulation and litigation. They argue that such seemingly-democratic measures do not “signal a fundamental shift towards liberal democracy, nor necessarily entail a reduction in state power” (Lorentzen, Landry and Yasuda, 2014, P.182). Instead, they are more likely to be a strategy employed by the central government to rein in local government (Lorentzen et. al., 2014) and to control its people and maintain power (Chen and Xu, 2017). This contradictory interpretation of OGI litigation demands further empirical study. The soaring amount of OGI litigation does not imply that it is easy to sue the state, one which has a long history of controlling and manipulating information that could be exposed to the public. Its weak compliance and enforcement of the Administrative Litigation Law indicates that it is a tiger without teeth (He, 2012). Plaintiffs have had difficulty convincing the courts to accept administrative cases; and the courts have faced external political pressure when judging such cases (O’Brien and Li, 2004). Even if a case goes to court, the likelihood of a victory against the leviathan remains low (He, 2013; He and Zhang, 2016; Li, 2013; Pei, 1997). With the common belief that “bureaucrats shield each other,” most people believe that suing the Chinese government is still “like throwing an egg against a stone” (Finder 1989, p. 1). This begs the question, why do Chinese citizens sue the government? What is the likelihood of common individuals and organizations winning OGI suits against the governments? Why are citizens more successful in some provinces than in others? To what extent is the Leviathan held accountable and what impacts do these litigation cases have on the authoritarian information regime? What does this reveal about the evolving dynamics of state-society relations in China and the nature of authoritarian accountability? Most existing studies of OGI regulation have retrieved information from official government websites (Ji and Zhang, 2013; Zheng, 2007), and selective archives such as the annual government report on the disclosure of government information (Fu and Wu, 2014; Li, 2011). With recent legal transparency reform, many courts have begun to release their adjudication decisions (DADs or decision assessment documents, 裁判文书) to the public. These documents form a systematic data source that reveals the logic behind court decisions and offers a neutral lens through which to observe the effect of societal and political forces on the courts (Liebman, Roberts, Stern and Wang, 2017). Recent OGI studies have begun to use selective court decisions (Dong, 2016; He and Zhang 2016; Zhao and Dong, 2009). Unfortunately, these studies often focus on describing administrative litigation with a small number of cases, and without analyzing or articulating what factors influence the results of lawsuits. Thus, this project will adopt a “big data” approach to collect DADs of OGI litigation cases from 2008 to 2018 to investigate the general patterns behind such litigation. We first take advantage of machine learning to analyze these legal texts to explore the legal rationale in each individual cases. We then link individual cases with social structural factors to examine why and how Chinese citizens and organizations sue the government, and to examine the regional variation in such litigation. We then contextualize our understanding on the patterns of OGI litigation with in-depth interviews and case studies. And we further scrutinize the dynamics between the state, the courts and the media and to discuss the impact of such litigation on the authoritarian information regime and the nature of authoritarian accountability.
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