Accountability and Participation without Democracy? Public Law and Governance in China

On February 20, the Center for the Study of Contemporary China convened a special roundtable on government accountability and public participation, with a focus on administrative law and public law in China. Jacques deLisle, professor of law and Deputy Director of CSCC, moderated the panel, which included four of Penn’s premier voices on Chinese law. The discussion addressed  the potential for reforms to administrative procedure, legislative oversight, public participation in rulemaking and law making, open government information initiatives and suing the state to enhance  government transparency and accountability.

Wang Xixin, professor of constitutional and administrative law at Peking University, Director of that university’s Center for Public Participation (CPP) and a visiting professor at Penn, sounded a relatively optimistic note. He outlined the development of administrative legal institutions since the early 1980s, when the Communist Party launched widespread legal reform in the aftermath of the Cultural Revolution. Since then, the regime has stressed “openness about the process and result of exercising power,” and has made it easier for disciplinary committees to monitor the behavior of lower-level officials and have given ordinary citizens more pathways for seeking redress. Those pathways are critically important in China, where local and provincial officials abuse their citizens with too little fear of legal action by the aggrieved or punishment from Beijing.  Professor Wang also mentioned the contributions the CPP has made in promoting transparency, releasing annual indicators to assess regulations and their implementation.  China’s new open government information rules have helped increase transparency as well.  Wang cited the wisdom of the aphorism “Sunlight is the best disinfectant.”  Reforms at the sub-national level that increase opportunities for public participation in rulemaking represent important progress as well.

Yuhua Wang, professor of political science at Penn, offered a more negative view, emphasizing that no matter what progress has been made, political connections (guanxi) still matter much more in China than does the formal legal system. “If one of your shareholders is Wen Jiabao’s mother, you’re not going to care about rule of law!” he joked. The ones who care most about reforming administrative law are those investors who lack the political connections needed to survive or thrive in the business world, where the relationship between government and corporations is, as the Chinese say, “as close as lips and teeth.” Foreign investors often are in this category and have been key sources of demand for higher quality courts and justice. Transparency and accountability are less appealing for the well-connected because they would level the playing field that is now tilted against those who lack connections and informal access to power. By contrast, Professor Wang said, ordinary people see litigation as expensive and inefficient, and therefore don’t care much about the system’s fairness.

Neysun Mahboubi, research fellow at the University of Connecticut and visiting scholar at CSCC, elaborated on the modern history of China’s administrative law. After the 1980s reform process began, liberals had hoped to enact systematic changes that would have fundamentally changed the administrative legal framework. That ended up being politically untenable, so they settled for a smaller batch of reforms that was approved by the government in 1989. Mr. Mahboubi noted the close shave that the initial reforms faced – just two months after the Administrative Litigation Law was passed, China was rocked by the Tiananmen Square protests and their violent suppression and its aftermath, stalling the reform process.  Since the early 1990s, much of the basic framework of administrative laws that reformers had envisioned in the 1980s were put in place.  Today, proponents of reform tend to focus on strengthening and expanding the role of China’s judiciary in administrative law suits against the state. The courts now have the power to review specific government actions but they cannot strike down rules or laws that authorize those actions. Seeking to give judges teeth, reformers have convinced several provincial governments to adopt administrative procedure rules that resemble what reformers want at the national level, including requirements for greater regularity, transparency and public input. But Mr. Mahboubi noted there’s a hidden problem with that kind of strategy. “What if the local experiments don’t go well?” he asked. In that case, activists would have nothing to bolster their case for national administrative law reform.

Questions of administrative and constitutional law at the national level were further explored by analyzing the role of the National People’s Congress (NPC), China’s legislature, in relation. Lin Yan, associate professor of constitutional law at Shanghai Jiaotong University and visiting scholar at Penn Law, explained the complicated place of the NPC, which formally exercises expansive powers of legislation and constitutional review but which has historically been much weaker than the State Council, the thirty-five person cabinet-like group that heads China’s executive branch. Both the NPC and its standing committee have become much stronger than they were thirty years ago, when they mostly were “rubber-stamps.” The NPC and its standing committee have not become institutions for constitutional review (although it does informally consider the constitutionality of laws, said Prof. Lin.  The NPC has expanded its oversight of the implementation of laws. But the NPC remains in practice a relatively weak legislature, with very limited power over government personnel decisions, budgets and the content of much legislation. As China’s leadership becomes ever more collective, the allocation of powers among state institutions will surely need to be clarified in the coming years.

The panel ended with conflicting views from the two Professors Wang on whether courts would come to play a greater role in encouraging transparency and mediating social conflict. Yuhua Wang was pessimistic, arguing that stronger courts were not seen as greatly  advancing  the Chinese Communist Party’s two main goals: economic growth and social stability: “Can courts help guarantee these things? Not so much.” Wang Xixin responded that there are signs that the regime is changing its views of courts and government transparency. “The past five years,” he said, “have warned China’s leaders that politicized social conflict will be costly.” Courts and law, including administrative law and public law more generally, offer potentially powerful tools to address and avoid social conflict. The recently released Eighteenth Party Congress Political Report, for example, called for “legal methodology to be applied to social conflict,” and mandated that court decisions be made publicly accessible. “So from a macro-perspective, there’s a case for modest optimism!” he said.

Recent events make it clear that public participation and government accountability are not just the province of legal intellectuals. Just two weeks ago, Xi Jinping, China’s Party General Secretary and President- in-waiting, gave a public vindication of the right of Chinese to criticize their officials and seek redress, saying that the Party “should be able to put up with sharp criticism, correct mistakes if it has committed them, and avoid them if it has not.” Some saw his message as a harbinger of greater tolerance for China’s growing civil society, while others dismissed it as so much rhetoric, similar in style and substance to what every one of China’s leaders has said before.

As China marches towards its future as a world power, the subjects the professors tackled – accountability and transparency, administration and execution, law and democracy – will continue to be important and controversial issues. The panel’s discussion, then, while an eloquent first word, was certainly not the last.


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