Promoting Governance by the Realization of Government Transparency in China: An Argument from Legal Norms to Institutional Facts

Abstract

With the development of modern democratic systems and an information-led society over the past half-century, the concept of ‘government transparency’ has swept the globe and become a basic indicator of a country’s political and legal status. However, when faced with a government’s secret impulse and caprice, which approach should people take to develop a proper and comprehensive view of their government’s transparency? It is accepted that normative recognition of a public’s right to know and the actual progress towards an open government information legal system (the OGI Institution) represent two separate aspects of potential government transparency reform. Thus, the theoretical paradigm ‘from legal norms of the right to know to the OGI institutional facts’ has been made by this thesis as an important route to learn more about the government transparency of a country.

The global impact of government transparency is virtually irreversible, and China cannot avoid its impact and opt out. The Regulations of the PRC on the Disclosure of Government (the OGI Regulations), which came into force in May 2008, is not only considered as the Chinese government’s ‘third self-revolution’, it is also believed to be the official beginning of the country’s transparency reforms. However, as a specialised legislation of government transparency reform, the OGI Regulations has not offer any clear declaration concerning the public’s ‘right to know’ or the general ‘freedom of information’. Moreover, this OGI Regulations has not yet stipulated a series of universally-accepted principles, such as the presumption of disclosure. At the level of implementation, chaos happened in the concrete practice, such as the limits towards the qualifications of applicants (requester), or the ineffectiveness of the judicial relief mechanism has made the OGI Regulation as ‘China’s sham information disclosure law’ which was nothing more than a scrap of paper. As for the dilemmas faced in the government transparency reform in China (including those defects of the OGI Regulations text and chaos in implementation), how can we provide accurate interpretation and evaluate comprehensively? Undoubtedly, This ‘Chinese-style’ approach to an open government will offer considerations to observers and researchers of government transparency reform. In this sense, a series of essential questions about the OGI institution of China are worth clarifying as follows: (1) What reasons are there for the adoption of OGI legislation in China? (2) What corresponding legislative process has been occurred in China? (3) What form (category) of OGI legislation has been adopted in China? (4) What are the prospects for the enforcement of China’s government transparency legislative reforms? (5) To what extent have expectations of the OGI legislation been met? (6) Which factors are influencing (or promoting or hindering) the practice of the OGI institution in China? (7) What are the latest developments in the OGI institution at the macro, medium or micro levels? (8) Are there any better promotional instruments? Therefore, it is also necessary to address the government transparency reform relative to China’s institutional circumstances, particularly the practical context in which the OGI Regulations were adopted and have been implemented for 10 years. In short, the aim of this thesis is to seek a more comprehensive, accurate and original interpretation of China’s government-transparency reforms.

Chapter 2 and Chapter 3 present a comprehensive overview of China’s positive law concerning the right to know (including the constitutional text, the OGI Regulations, and related policy documents). This normative analysis is complemented with an evaluation of the two possibilities of the right to know as recognised in the Constitution. Especially for Chapter 3, passive manifestations in the text of the OGI Regulations, including clauses whose legislative purpose intentionally avoids a passive attitude towards the right to know, the limitations on and shrinkage of government information and legislative considerations for the OGI exceptions (of which Article 14 of the OGI Regulations is representative) once again support the argument that: legislators had no intention of making a sump-sup undertaking with respect to the right to know or access to government information in a broad sense. Chapter 4 then considers the OGI litigation and its role in recognising and promoting the right to know. The reasons for the current administrative case acceptance dilemma with regard to certain OGI-related disputes will also be considered.

Likewise, the ‘institutional facts’ represents a research idea concerning the sociology of law; in other words, viewing the actual legal institution within an interdisciplinary discourse or through a series of external sociological observations (e.g., political and ideological studies, economic analysis etc.) rather than merely the text of statute law. Chapter 5 then discusses the current macro-political environment of the OGI institution in China. From the perspective of politics, it is revealed that the government transparency reform, under Chinese authoritarian political regime, shall be considered as a legal instrument for authoritarian control.

From a doctrinal perspective of the predictive science of economics, a cost-benefit analysis will be utilised in Chapter 6, in order to measure the costs and benefits of the OGI institution of China. This chapter further clarifying the internal relations between secrecy and information rent-seeking. Based on these, a benefit compensation mechanism for the OGI institution has been lastly estimated.

Finally, the various perspectives considered in this thesis will be consolidated with reference to a practical example, the ‘Internet Plus governmental affairs’, as represented by the WeChat-based Governmental Service. Chapter 7 of this thesis originates from the authors’ working experiences in a Chinese Internet company. Despite governmental transparency reforms in China suffering from various institutional difficulties - from the macro level political environment to the meso level legal system, and from legal norms to institutional facts - the ‘Internet Plus’ paradigm, as represented by the WeChat-based Governmental Service, has already built a new and efficient scenario for the practice of the OGI institution in China.

All in all, it must be acknowledged that the OGI institution as the government transparency legal reform of China gives people only an approach to accessing government information from the top down on the basis of “the need to know” rather than a true right to know in the sense of democracy and the rule of law, and represents neither the legislative reform of the right to know and the freedom of information nor the paramount aim of balancing the interests of all parties to facilitate positive public administration and good governance.

Date of Award	30 Nov 2017
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Guobin ZHU (Supervisor)