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

• Author: Chen Yongxi
• Pages: 80-138

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).