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Curtain rose yet uncertainess remains: FOI Regulation came into force

On 1st May 2008 finally came into force China?s ?Regulation on the disclosure of government information?, after more than 12 months? preparation.

It is a long-awaited and exciting date for most FOI-advocates as well as common people in great need of government information closely related to their vital interest. From this moment on, with the curtain raised and the stage set, the mechanism of transparency operates, bringing the government under public supervision of its determination to keep the promise.

The regulation undoubtedly seeks to reorient a bulky bureaucracy ruling vast territory and huge population to open its information for inspection. The task is no doubt arduous in terms of workload, given the weary history of secretive governance, and complex in terms of organizational transformation, given the rigidness of bureaucratic apparatus. Clear about the difficulty, the General Office of the State Council, the organ legally responsible to oversee the nationwide operation of the regulation, issued pointed directions to local governments emphasizing the establishment of tunnels for information dissemination and organs in charge of implementation. After the ?Notice of Good Preparation for the Implementation of the Regulation [?]? circulated on 4 August 2007, it issued ?Opinions on Issues concerning the application of the Regulation [?]? on 30 April 2008, which implies policy priority and deserves further study.

Since the promulgation of the Regulation, departments or bureaux under the central government, as well as local governments, have taken steps in passing new legal norms and amending existing provisions to promote transparency. By now, 6 central organs have issued or revised departmental measurements on implementing information disclosure (Ministry of Commerce, State Power Regulatory Commission, State Administration of Environmental Protection, General Administration of Customs, State Administration of Intellectual Property, State Administration of Taxation). 11 provincial-level government have issued local rules on government openness (Liaoning, Heilongjiang, Shanghai, Fujian, Henan, Hubei, Hainan, Guangxi, Chongqing, Sichuan, Shaanxi) and the people?s congress of Guangdong province enacted similar legislation. More than 40 municipal-level governments promulgated rules of the same kind.

Alongside with the rules exclusively dedicated to government openness, various laws prescribe disclosure requirements as well, such as the Administrative Licensing Act 2003 and Prevention and Treatment of Infectious Diseases Act 2004. A subsequently passed law in August 2007, the Emergency Response Act 2007, also literally expands the citizen and the press? right of access to information about government?s measures during the time of emergency.

The State Council is also preparing to resolve the immediate conflicts brought by old laws on new rules. It is said that the Archive Act 1996 is under review, as a respond to the wide critics of its over-lengthy period of shielding archived government information.

In view of the constructing of supportive normative environment in favor of information disclosure, China has formulated a new transparency regime, notwithstanding the absence of a general FOI law and the remaining conflicts between pro-secrecy norms and pro-transparency requirements. It could be reasonably expected that the new regime will evolve into a higher level along with the continuous review and amendment of laws

The regime is not an easy breakthrough, Undoubtedly, it will have a far-reaching political and legal impact through empowering the citizens with a legal right to know. However, doubts remain: how well could this new born mechanism work in a relatively inactive public law system? It may take considerable time before for prudent observers to explore whether the Regulation act as a window transparent enough to allow public scrutiny of government apparatus or, virtually, just as a window shutter that simply permits public inspection from limited aspects and the range of vision is easily controlled by officials. If the absence of high-ranked norms and shortage of data concerning legal implementation has impeded the comprehensive study of China?s FOI regime in the past, it is opportune, from now on, to review the legal structure of FOI provisions and evaluate their effectiveness in guaranteeing the ATI right. (To be continued)

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