Transparency versus Stability: The New Role of Chinese Courts in Upholding Freedom of Information

AuthorChen Yongxi
Pages80-138
80 TSINGHUA CHINA LAW REVIEW [Vol. 9:79
TRANSPARENCY VERSUS STABILITY:
THE NEW ROLE OF CHINESE COURTS IN UPHOLDING
FREEDOM OF INFORMATION
CHEN Yongxi
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 unprecede nted right of access to in formation
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 represe ntative cases concern ing government claim s that
disclosure would endanger social stability. It finds that in referential
cases adopted in official p ublications, the courts have developed
creative approaches to scrutiny. However, other sources indicate
that meaningful review is larg ely absent from case s 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 com mon 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 im perative of securing core regime interests. The liberalization
implications of transparency reform are he nce 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.1 The Regulation implicitly confers
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1 FOI law refers to a law that confers on individuals or interested parties a general right of access to
government information, which is presumptively disclosed unless exempt by the same law. See TOBY
MENDEL, FREEDOM OF INFORMATION: A COMPARATIVE LEGAL SURVEY 31-32 (2d ed. 2008). For a
comprehensive review of FOI law’s rapid g lobal expansion, see John M. Ackerman & Irma E.
2016] TRANSPARENCY VERSUS STABILITY 81
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.2
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.3 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.4
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
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Sandoval-Ballesteros, The Global Explosion of Freedom of Information Laws, 58 ADMIN. L. REV. 85,
87 (2006). For the latest list of countries with FOI laws or regulations, see Access to Information
Provisions Update, RIGHT2INFO (Sept. 30 2016), http://www.right2info.org/resources/publications/
countrieswithatiprovisions113Sept2016.pdf.
2 Ackerman & Sandoval-Ballesteros, supra note 1, at 88-93.
3 For the role of social stability maintenance in the CCP’s political agenda, see Xie Yue (谢岳),
Weiwen de Zhengzhi Luoji (维稳的政治逻辑) [The Political Logic of Stability Maintenance] 246-76
(2013).
4 For the routinization of stability maintenance and relevant institutional building outside the formal
framework of governance, see Xiao Tangbiao (肖唐镖), Dangdai Zhongguo de “Weiwen Zhengzhi” :
Yange yu Tedian - yi Kangzheng Zhengzhi zhong de Zhengfu Huiying wei Shijiao (当代中国的维稳
政治:沿革与特点——以抗争政治中的政府回应为视角) [The “Politics of Stability
Maintenance” in Contemporary China: From the Perspective of Government Response in Contentious
Politics], 1 XUEHAI (学海) [ACADEMIA BIMESTRIS] 138, 140-45 (2015).
82 TSINGHUA CHINA LAW REVIEW [Vol. 9:79
accountability, and enhancing public participation in the
governance.5 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. 6 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.7 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.8
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,9 but pay scant
attention to the courts’ assessments or critiques of government
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5 For values and functions of FOI law, see Ackerman & Sandoval-Ballesteros, supra note 1, at
85-93; Mendel, supra note 1, at 4-5. These values are broadly consistent with the ROGI’s legislative
intent, which is provided under art. 1: “[to] enhance transparency of the work of government, to
promote administration in accordance with the law, and to bring into full play the role of g overnment
information in serving the people’s production, livelihood and economic and social activities.”
6 See Björn Ahl, Problems in the Judicial Review of Administrative Acts in China, in
ADMINISTRATIVE LAW AND PRACTICE FROM SOUTH TO EAST ASIA 233, 233-47 (Clauspeter H ill &
Jochen Hoerth eds., 2008).
7 See Wang Qinghua (汪庆华), Zhengzhi zhong de Sifa: Zhongguo Xingzheng Susong de Falü
Shehuixue Kaocha (政治中的司法: 中国行政诉讼的法律社会学考察) [Judiciary in Politics: A
Sociology of Law Study of China’s Administrative Litigation] 71-161 (2011).
8 The current literature focuses primarily on two themes: (1) accessibility of a certain category of
information, such as financial expenses or environmental information, and (2) factors that may have
affected the bureaucracy’s compliance with transparency regulations.
9 For recent research on the impacts of stability maintenance on justice and security practices, see
THE POLITICS OF LAW AND STABILITY IN CHINA (Susan Trevaskes et al. eds., 2014). For that
concentrated on the impacts on state protection of individual rights, see SARAH BIDDULPH, THE
STABILITY IMPERATIVE: HUMAN RIGHTS AND LAW IN CHINA (2015).

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