Is China opening up?

The consultations are only one ray of light shone into what human rights researcher Joshua Rosenzweig calls the “black box” of Chinese lawmaking before and after the 30 day comments period.

But there are signs, he says, that in the constellation of stakeholders consulted over the Criminal Procedure Law – the police, the prosecutor’s office, the courts, trusted legal scholars, and defense lawyers – some were happy to use public opinion to buttress their views.

Potential leverage

Reformists, Mr. Rosenzweig suggests, “could show that public opinion was against a particular provision in the law that the police held dear and use that as leverage to get them to back down. The consultative process had the advantage of adding weight to their position against the most entrenched stakeholders who were the most resistant to change.”

“It might be that the government turns to public consultations when decision makers are not agreed on an issue,” agrees Professor Balla. “In the Chinese context, they could be a way of settling disputes.”

There are limits to the consultations’ value, however, points out Wang Lin, an advocate of more open government who teaches law at Hainan University. “It’s all part of democratizing lawmaking,” he says, “but the consultations are not institutionalized yet, and there is no guarantee that lawmakers will adopt any of the opinions that the public expresses.”

Those who commented on a health reform bill in 2008, Balla found in his research, “overall had pretty modest expectations” about the impact their ideas would have.

The consultation system works differently on different topics. The NPC published comments on the health reform bill in full on its website, stimulating debate. It did not publish comments submitted on the more politically sensitive Criminal Procedure Law.

“That would have brought a lot of pressure to bear on law enforcement agencies,” points out Professor Wang.

But many lawyers posted the comments they had submitted to the NPC on their own microblog accounts, or in the press, leading to “a pretty open back and forth” on the contentious aspects of the proposed law, says Rosenzweig. “The government could not always control what the public had to say.”

A lot of what it said “concerned the limits on citizens’ rights,” points out Professor Chen. “The NPC seriously considered this and then canceled the provision” on secret detention that had sparked such an outcry.

“The consultations make a difference,” Rosenzweig believes. “More could be done to have them make more of a difference … but the opportunity for people to speak their minds creates valuable input that legislators generally appreciate. It’s not just window dressing.

“It’s a first step,” he adds. “Whether it is just a first step, or the only step the authorities are willing to take, remains an open question.” 

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