From Comments, page 16, Issue no. 367, May 12, 2008
Translated by Liu Peng
Original article: [Chinese]

Editor's note: Since the Sichuan earthquake hit on May 12, the Chinese public has been deluged with rumors and misinformation. Chinese authorities have on several occasions stepped forward to discredit the latter and appeal for the public to access information from authoritative (a.k.a. official) sources. The phenomenon underscores how only when information in China is more transparent will the public have the confidence to turn away from rumors.

The Chinese version of an information disclosure law has been in effect since May 1, but questions remain as to its efficacy. Legal scholar Xu Zhiyong, a representative of the People's Congress of Haidian district of Beijing, provided a comparative study between China and India on the subject:

Both China and India have laws concerning the public's right to information in order to boost transparency in governance.

India published The Right to Information Act (hereafter as the Act) on June 21, 2005, which came into effect the same year. China subsequently promulgated Regulation on Information Publishing of People's Republic of China (hereafter as the Regulation) in January 2007, effective from May 1, 2008.

The two governments share the common motives in enacting the laws, which are aimed to keep the public informed and create checks against corruption. The two laws share much common ground but differ in terms of legal status, scope, exclusion areas, and information openness guarantee mechanism.

From the legal status perspective, India's Act has a higher standing than China's because it is a law enacted by the country's National Congress. China's, on the other hand, is a regulation put forth by the Chinese State Council, who's regulations are less powerful than those framed by the Chinese government's legislative organs – the National People's Congress and its Standing Committee.

Under the Chinese legislative system, the State Council has certain legislative power to draft regulations, especially when it is premature for a new law to be introduced yet there is a need for it.

The scope of application under the Chinese Regulation is more limited than the one in India.

The second article of the Chinese Regulation defines government information as those produced, acquired and recorded by administrative organs in the process of carrying out their duties.

As such, the term government has been narrowly defined here as administrative arms of the state organs, thus excluding information disclosure from higher power such as all levels of the people's congresses, judiciary organs, the ruling party and other public management institutions.

India's Act covers all public institutions, including administrative, legislative and judiciary organs as well as political parties and associations linked to the government.

Another major difference between China and India is that the latter has detailed criterions on information unfit for publication; whereas China relies on vague concepts.

India, for example, has spelt out clearly what information could be deemed as unfit for disclosure:

i. information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

ii. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

iii. information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

iv. information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party;

v. information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

vi. information received in confidence from foreign Government;

vii. information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

viii. information which would impede the process of investigation or apprehension or prosecution of offenders;

ix. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers.

China, on the other hand, has given a one-liner to conclude the issue: administrative organs must not make public information related to national, commercial and private secrets.

In addition, the Regulation prescribes that before publishing the information, the administrative organ concerned should review the draft in accordance with the Guarding State's Secret Law and other relevant acts and regulations.

As to what is the scope of secrets, the 10th article of the Secret Law prescribes that the State Secret-Guarding Department coordinates with the Ministry of Foreign Affairs, Public Security, National Security and other central government organs to make the decisions. In other words, the scope of non-public information is finally determined by these institutions.

China and India also diverge greatly on the mechanism to guarantee information disclosure.

The 33rd article of the Chinese Regulation prescribes that citizens, legal persons and organizations may lodge a report against failure in information disclosure to higher monitoring authorities. Upon receiving the complaint, higher authorities should investigate immediately.

If the citizens, legal persons and organizations feel that the conduct of administrative organs with regard to information disclosure has infringed upon their legal rights, they may apply for review or file a law suit.

On paper, the public has the right to bring administrative organs to the court. However, China's Administrative Procedural Law only stipulates misconduct of administrative organs against individuals, but silent on the misconduct arising from regulatory frameworks and against non-specific public interest. As a result, judicial redress is not always applicable.

In India, the Act requires all public administrative organs, be it central or local governments level, to appoint public information officers to handle public requests within 100 days after the Act took effect.

More importantly, the Act prescribes the establishment of information commissions at central and the local levels. Three out of the six chapters of the Act are dedicated to explaining the formation of the commissions at central and local levels, its election procedures, tenure of appointment, personnel qualification, wage, scope of power and public request handling procedures.

These articles guarantee the commissions enjoy similar independence to that of the special court. The Commission has the power like the civil court to hear complaints and appeals from the public, and dish out punishment for administrative organs that failed in meeting their obligations.

Overall, the Indian Act appears to have a higher status, wider applicable scope and feasibility in enforcement than the Chinese Regulation, especially in monitoring and guaranteeing the public's access to information due to the independent Information Commission.

In the two years that the Indian Act has been in practice, it has received positive reviews and enhanced transparency in public institutions. As to the impact of the Chinese Regulation, it will need the test of time.