August 15, 2006
Is China’s Government Becoming More Open?
An interview with Jamie Horsley, deputy director of The China Law Center at Yale Law School
China’s blazing economic growth continues to grab headlines as the world’s fastest-growing country races headlong toward the 2008 Beijing Olympics. Yet despite the stunning social transformation of the past two decades, to many observers China’s policymaking process remains opaque. Is this beginning to change? The China Law Center held workshops in late July in Guangzhou and Beijing to discuss recent innovations to open up the decision making process. The following Q&A with Deputy Director Jamie Horsley highlights the most recent developments in the Center’s work with scholars and officials in China to bring "notice and comment"-style public participation to China’s administrative rulemaking system.
YLS: What does "public participation" mean in China’s political context?
JH: China’s government has traditionally been closed and secretive, and in many respects this hasn’t changed. But in recent years China’s central government and the ruling Communist Party have endorsed greater public participation in legislation, rulemaking and policymaking as a mechanism to help better manage social change by making government more efficient, transparent and accountable to China’s citizens. This policy shift has generated numerous experiments with various forms of public participation, including limited public hearings and the publication of drafts of proposed laws and regulations for public comment. These forms of public participation, while now sanctioned as a general principle in law, have not yet been made a standard practice in decision making throughout China—which remains largely shrouded in secrecy. In a country that does not provide for the direct election of government officials (the only direct elections are for people’s congress deputies at the township and county level and for villager committees in villages and urban community counterparts in the cities, which are not considered part of the official government structure), the introduction of this new channel for direct citizen participation in government decision making is proceeding cautiously.
YLS: How is The China Law Center involved?
JH: The Center has been working since 2003 with Chinese counterparts in the central government and local governments in Beijing, Guangzhou, and Shanghai to help further develop and standardize these new mechanisms for public participation, particularly in the administrative rulemaking context. We have been especially interested in helping China develop what in the United States we call “notice and comment” procedures that provide avenues for widespread public comment on draft regulations and require government responses to those comments, as well as procedures to make public hearings more effective.
In the last three years, we have worked closely with Professor Wang Xixin of Peking University Law School, one of China’s top law schools. We helped Professor Wang, a leading administrative law scholar who is also a Center fellow, establish China’s first academic and advocacy center focused on public participation.
We have also involved a number of U.S. experts in our work. Visiting Chinese officials and scholars like Professor Wang have explored issues of public participation with YLS professors such as Susan Rose-Ackerman. In addition, we have recruited other scholars and practitioners engaged in this field such as Neil Eisner, Assistant General Counsel for Regulation and Enforcement at the U.S. Department of Transportation, and Professor Jeffrey Lubbers of Washington College of Law at American University to assist with our public participation projects. Both Eisner and Lubbers attended our workshops in late July.
YLS: What were the goals of the recent workshops hosted by the Center?
JH: The first workshop, convened July 18-19 in Guangzhou (Canton), in China’s southern manufacturing base, considered lessons learned in a novel experimental rulemaking that Guangzhou officials carried out in the last year in cooperation with the Center. This experimental rulemaking incorporated both open information and public participation mechanisms adapted in part from U.S. practice. Guangzhou officials tried new mechanisms, including publishing an initial rulemaking proposal for public comment, releasing the full text of the draft rule, holding press conferences and informal meetings to solicit comments, conducting site visits and public surveys, and posting all comments received—with the government’s response—on the web. Based on the successful experiment, the Guangzhou Municipal Government Office of Legislative Affairs, working in cooperation with the Center and its U.S. expert group as well as Professor Wang, crafted China’s first detailed local government measures mandating public participation in government agency rulemakings. These Measures will go into effect January 1, 2007.
For the workshop, Guangzhou invited local scholars, journalists and colleagues from the municipal governments of Beijing, Shanghai and Shenzhen to take part in the discussion of Guangzhou’s experiment and the new Public Participation Measures, as well as to share problems encountered in introducing public participation in their respective jurisdictions.
YLS: What kind of public participation do the Guangzhou Public Participation Measures call for? Is the government bound to respond to the public's comments?
JH: The Guangzhou Measures break new ground for China in several important respects. They will make the entire rulemaking process much more transparent (by requiring mandatory posting on the government website of all comments received and of the records of any hearings or public meetings), requiring public participation in all rulemakings and in each phase of the rulemaking process, and granting the right to participate to everyone, not limited to Guangzhou residents or Chinese citizens. While the Measures set forth a variety of mechanisms that can be used to elicit public participation, including the unprecedented introduction of informal public meetings, the Measures make the written comment procedure—rather than the more common but highly selective and much criticized public hearing—the heart of the public participation process. They also require a public response by government to the comments received at various stages of the rulemaking process, thereby helping to ensure that government officials actually read and consider the public input they receive.
YLS: What did participants find most interesting or educational about the conference?
JH: Since most Chinese citizens are not accustomed to participating actively in the rulemaking process, Chinese participants were particularly interested in mechanisms to encourage the public to provide input. The U.S. side explained the important role of non-governmental organizations in channeling input to government and the use of tools like listserves, informal meetings and a variety of other flexible mechanisms that have been developed in the United States. They also discussed at some length the importance of establishing publicly accessible rulemaking dockets, which in many U.S. agencies can now be accessed electronically. Since Chinese government agencies are not accustomed to explaining their rulemaking decisions to the public, another lively discussion revolved around practical ideas on how to analyze comments and prepare the required agency response that explains why certain comments were accepted and others rejected in finalizing the rule.
YLS: What about the workshop in Beijing?
JH: On July 20, we held a day-long workshop in Beijing to further promote public participation in rulemaking—this time focused on the role of China’s central government. The meeting was hosted at the China National School of Administration, an official government training facility, by Ying Songnian, one of China’s most respected administrative law scholars. We co-sponsored the workshop with Professor Ying’s Administrative Law Research Center and Professor Wang’s Peking University Center for Public Participation Studies and Support. Center staff and the two American experts engaged officials from China’s State Council Office of Legislative Affairs, legal staff from the National People’s Congress, some of the same local officials from Guangzhou, Beijing and Shanghai who had taken part in the Guangzhou workshop, and Chinese legal scholars. The Beijing workshop included wide-ranging discussion of public participation practices in China and also served as a platform to promote Guangzhou’s experiments. One purpose of this seminar was to encourage the central government and other localities to broaden and gradually standardize their experiments with public participation methods and procedures. In this respect, the Guangzhou Public Participation Measures set a high and unprecedented standard.
Jamie P. Horsley, Deputy Director of The China Law Center and Lecturer in Law at Yale Law School, was formerly the managing partner of the China offices of Paul, Weiss, Rifkind, Wharton & Garrison; Commercial Attache in the U.S. Embassies in Beijing and Manila; Vice President of Motorola International, Inc. and Director of Government Relations for China for Motorola, Inc.; and a consultant to The Carter Center on village elections in China. She is the author, most recently, of Toward a More Transparent China. She is a graduate of Harvard Law School and has an M.A. degree in Chinese studies from the University of Michigan.