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Home / Issues / Volume 9, Number 1 / Transparency versus Stability: The New Role of Chinese Courts in Upholding Freedom of Information
VOLUME 9, NUMBER 1
Transparency versus Stability: The New Role of Chinese Courts in Upholding Freedom of Information
By CHEN Yongxi | Article | 9 Tsinghua China L. Rev. 79 (2016) | Download Full Article PDF

Abstract
This paper explores the inconspicuous but increasingly important role of Chinese courts in handling the often conflicting goals of promoting government transparency and maintaining social stability within the Party-state context. The Regulation on Open Government Information created an unprecedented right of access to information with the potential for improving administrative accountability, but established a peculiar exemption of social stability. “Stability maintenance” has long been an overwhelming political task for Chinese state organs, and has profoundly affected legal practices, posing a challenge to judicial control of abuse of the aforementioned discretionary exemption. Added to the challenge is the obscurity in the standards for judicial review of discretion.

The paper reviews how the courts respond to this challenge by focusing on representative cases concerning government claims that disclosure would endanger social stability. It finds that in referential cases adopted in official publications, the courts have developed creative approaches to scrutiny. However, other sources indicate that meaningful review is largely absent from cases involving appropriations of private properties and those concerning large-scale maladministration. It argues that the judicial inaction can be attributed to two concerns underlying the common practice of the stability maintenance system, i.e. containing collective mobilization and inhibiting expression of public mistrust in governance. The courts demonstrate their ability in judicializing the political concept of social stability in the context of right to information, and thus assume more than a deferential role in the politics of stability maintenance. Nevetheless, they remain captive to the imperative of securing core regime interests. The liberalization implications of transparency reform are hence minimized through the judicial process.



I. Introduction

The enactment of the Regulation on Open Government Information (ROGI) in China is a milestone for a country with an ingrained history of secrecy, and is also a significant event in the global expansion of Freedom of Information (FOI) laws that now extend to over 100 countries. The Regulation implicitly confers upon citizens a right of access to information held by governments at all levels and, furthermore, allows citizens to enforce that right through the courts. It is this general and enforceable right that renders the new transparency regime remarkably different from the incremental reforms of open government that have been introduced since 1978, the beginning of China’s reform and opening up policy. Ostensibly, this new regime resembles a FOI regime that is commonly understood as an institutional innovation to consolidate democratic and responsive government and, in particular, as a legal tool to hold the expanding administrative state accountable to the public.

Noteworthy as the ROGI is, doubts remain over its effects, and particularly over the enforceability of the right of access to government information (hereinafter referred to as right to information). FOI laws usually develop on the basis of, and in turn seek to enhance, representative democracy and press freedom. The ROGI, the Chinese version of FOI law, grew out of a special Party-state context. In particular, the ruling Chinese Communist Party (CCP) has instructed the state apparatus under its control to adhere firmly to the principle of maintaining social stability. Long before and along with implementation of the ROGI, local governments have resorted to the mechanism of “social stability maintenance” (维稳, usually shortened as stability maintenance in official discourse), a key component of which being information control, when facing growing social discontent or public protests. The pursuit of absolute stability has often resulted in excessive measures that deviated from the law and further impinged on individual rights, counteracting the Party’s efforts in promoting law-based administration to improve the state-citizen relationship. Against this backdrop, the ROGI has the potential for empowering citizens to break the monopoly of information by government agencies and to realize values that underpin FOI laws, such as upholding individuals’ substantive rights, strengthening government accountability, and enhancing public participation in the governance. At the same time, however, resistance against public access to information is strong under the existing governance structure which tends to prioritize political goals other than transparency. The intractable tension between transparency and social stability is highlighted by the creation, and problematic agency applications, of a peculiar exemption under the ROGI that disclosure of information should not endanger social stability (hereinafter referred to as the social stability exemption).

Given the prevalent inclinations among agencies toward opacity and misusing exemptions from disclosure, enforcement of the right to information by the judiciary — the only external review body — becomes the key to fulfilling the ROGI’s potential. Through judicial review of non-disclosure decisions, the courts theoretically play a pivotal role in directing the application of exemptions toward fostering meaningful transparency. Yet Chinese courts’ review power is far from consolidated, especially in respect of administrative discretion. Furthermore, they are susceptible to extra-legal pressures when handling cases that, according to local governments and Party committees, involve collective protests or otherwise threaten social stability. These invite inquiries into the actual judicial control of exemptions, in particular the social stability exemption, and the effectiveness of the control. Despite the growing body of literature on government transparency in China, the important role of the courts in shaping the transparency regime remains insufficiently researched.

In addition, existing studies on the relation between China’s judicial system and the extra-legal system of stability maintenance emphasize on the latter’s impacts on the former, but pay scant attention to the courts’ assessments or critiques of government claims about stability maintenance. A major reason is that these studies focus on lawsuits in which social stability concerns are external or merely incidental to the disputed issues (such as cases concerning land appropriations, housing demolitions, environmental pollution, and labor claims ), and hence are not directly addressed in judicial decisions. It is noteworthy that in open government information cases (hereinafter OGI cases) involving the social stability exemption, the courts confront head-on government claims on social stability, and have the opportunity to scrutinize their legality and even reasonableness. By developing grounds of judicial review with respect to agency use of this exemption, the courts can not only determine the legal confines of the right to information, but also intervene in the “politics of stability maintenance.” A study of the courts’ performance in this regard will shed new light on the interaction between judicial review and the political imperative of stability maintenance, and more generally between the courts and the Party-state’s shifting reform agenda.

This paper thus explores the new role of Chinese courts in handling the seemingly conflicting goals of promoting government transparency and maintaining social stability. It analyzes the approaches taken by the courts in reviewing agency use of the social stability exemption, and assesses whether the courts have effectively exercised their power to control administrative discretion so that the abuse of stability maintenance claims are restricted and the progressive objectives of transparency are supported. Considering the characteristics of China’s judicial system, this study combines doctrinal legal analysis with empirical investigation, the latter focusing on representative samples of OGI cases adjudicated in the 2008-2015 period.

After a description of data sources and sampling methodology that follows this introduction, Section II of the article analyzes the characteristics of the ROGI and its special social stability-based exemption, discussing the relevant challenges posed to government transparency and judicial remedy. Identifying administrative discretion as the linchpin in using this exemption with open meaning and undefined conditions, Section III summarizes the grounds of judicial review of discretion that are either stipulated by law or endorsed by the Supreme People’s Court (SPC) in referential cases, and uses them as benchmarks for assessing the courts’ performance. Section IV investigates, from a realist perspective, the courts’ handling of the exemption with reference to three samples, namely, referential cases, judgments retrieved from databases, and cases covered by the media. It further examines the courts’ approaches in the various cases. Section V further reflects on the positive but limited role of the courts in improving the approaches of judicial review and supporting the values of freedom of information, and highlights the persistent constraints that the courts face within the politics of stability maintenance. Finally, Section VI concludes the findings and discusses the legal and political implications.

Sources of Cases and Sampling Methods
To reveal the true picture of the judicial review of administrative acts in China, we should first analyze carefully the sources of cases. One attempt to analyze landmark cases, the usual approach in comparative FOI research, is ill-suited to our purposes here. Because of the statutory principle that “the court of second instance is the court of final instance,” neither the SPC nor any provincial-level high people’s court acts as the appellate court for all litigation in a given region. Therefore, there are hardly any landmark cases in the sense of such cases establishing a new principle or creating an interpretation of the law for the courts to abide by in future cases. The only exception is the “Guiding Cases” that are prescribed under the SPC’s 2010 Provisions Concerning the Work of Case Guidance (hereinafter Case Guidance Provisions). Such cases are selected and promulgated by the SPC’s Trial Committee, and shall be referred to by local courts when the latter adjudicate similar cases, thereby establishing a system that shares certain features of precedents in the common law system. Nevertheless, only nine Guiding Cases concerning judicial review have currently been published. Among them, merely one case concerns the right to information, and provides no information on the court’s stance toward the exemption under discussion. Similarly, the anecdotal accounts of high-profile cases - that one can find in sporadic media outlets are unable to reflect the vast and still increasing number of OGI cases.

To acquire meaningful and representative samples of OGI cases, this study collected cases from three categories of sources. This source diversity corresponds to the fact that the observable population of judicial opinions (judgments and decisions) is scattered among different publications rather than included in a unitary repository or comprehensive indices.

The first source is seven case collections that are published by the SPC or compiled under its supervision. Their characteristics are briefly described in Appendix I of this article. Cases adopted in these collections are generally called “referential cases” that have persuasive authority (as opposed to the aforementioned Guiding Cases, which bear binding force to a certain extent according to the Case Guidance Provisions). Referential cases are widely considered by the Chinese legal community to reflect (to varying extents) the intent of the SPC and its departments to guide local courts on the adjudication of a particular type of case or application of law in a certain field. A search through the collections yields three referential cases that pertain to the social stability exemption.

The second source is taken from two mainstream legal databases, including the official portal designated by the SPC to publish judgments rendered by courts at various local levels, chinacourt.org and its successor, China Judgments Online, and a popular commercial legal databank, ChinaLawInfo. Although judgments adopted in these databases partially overlap with one another, together they account for the largest proportion of all judgments handed down by the Chinese courts that can be practically retrieved by researchers. In consideration of the overrepresentation of certain regions in the OGI judgments retrieved from the two database, and the soaring of annual volume of judgment after 2013, a sampling method was applied to this source to secure a more balanced and manageable sample for analysis. The scope of searching is restricted to the judgments of the second instance rendered in eight provincial units: Heilongjiang, Beijing, Henan, Shanghai, Guangdong, Shaanxi, Xinjiang and Xizang. The selected regions include provinces across the nation, at various level of industrialization, and with different composition of ethnic groups. Compared to judgments of the first instance, appeal judgments usually involve more detailed examinations of legal issues, and hence may better reflect judicial polices regarding the exemption concerned. Within the defined scope, searches with the keywords “政府信息公开” (open government information) and “社会稳定” (social stability) yielded 92 judicial opinions, nine of which concern substantive challenges against the use of the social stability exemption. One of the cases therein overlaps with a case reported in the SPC publication.

In addition to the aforementioned primary sources, the third source consists out of news reports about OGI cases published in 170+ media outlets. An introduction to the categories of these outlets is given in Appendix II. It is noteworthy that the OGI cases reported by the media (hereinafter media-reported cases) are more representative of the status of adjudication across the country than those covered by the other two sources. Besides its skewed geographic distribution, the official portal for judgments has omitted cases that are deemed as “unsuitable for publication” by local courts. Some omitted cases are likely to have touched on sensitive issues which the defendant authorities found inconvenient, and by the same token may well include the problematic applications of the social stability exemption. ChinaLawInfo shares this critique. For example, it does not indicate the sources of their judgment collections, and their search results exhibit a similar geographic bias to that noted in the case of chinacort.org. The official standards for keeping judgments offline also apply to commercial databases. News reports, in contrast, cover government transparency-related disputes in each provincial-level region, and have recorded OGI cases in 16 regions. They also discuss cases concerning sensitive issues which often become subject matters of OGI requests filed by activists. Media-reported cases can therefore reveal more about local courts’ attitudes toward exemptions in cases often labeled as sensitive by local authorities, and in greater depth than the judgments retrieved from databases can. An initial search of news reports for all OGI cases yielded more than 2000 news stories covering 343 cases, in 245 of which the court decisions are reported. Of these 245 cases, five were identified that concern a review of the target exemption. However, two of these cases overlap with cases retrieved from the first and second sources.

Before the case samples are analyzed, it is key to first put our focus onto the legislative framework that sets basic, however vague, standards for resolving OGI disputes.
 
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