Open government in Chongqing?

Environmental information is tightly controlled in China despite the existence of access to information regulations, writes Sam Geall.

In March 2012, as the Chinese city of Chongqing reeled from the ouster of its charismatic party secretary Bo Xilai, the Three Gorges Corporation began preliminary construction work on the $4.75bn Xiaonanhai Dam – a project upriver of the city, which Bo had strongly advocated in the face of environmental opposition – and the last in a series of 12 dams along the Yangtze River.

Green campaigners were dismayed. Although some still hold out hope that the construction can be halted, many fear that the dam will ruin a crucial reserve for rare and endangered fish species, including the Chinese paddlefish and the Yangtze sturgeon, a “living fossil”’ that has survived since the time of the dinosaurs.

“The Xiaonanhai Dam will ruin the reserve,” wrote Fan Xiao, an outspoken geologist and chief engineer of a state geological survey, in an open letter. “Removing the dam site and nearby stretches of the river from the protected area is a decision to wreck a nature reserve to suit the hydropower industry, and to disregard national laws on environmental protection.” It “basically means a death sentence for these endangered species”, said Chang Cheng, a campaigner for Friends of Nature (FON), China’s oldest NGO.

But the preliminary work on the dam not only sounded a possible death knell for the ancient Yangtze sturgeon, it was also a bad portent for access to information in China.

Four years ago today, on May 1, 2008, China’s Regulations on Open Government Information became effective. A year earlier at the 17th National Congress of the Chinese Communist Party, President Hu Jintao publicly endorsed greater government transparency, saying, “Power must be exercised in the sunshine to ensure that it is exercised correctly.”

Hu’s statement may seem surprising when contrasted with the recent crackdown on free expression after Bo’s downfall – censors have deleted online “rumours” about the country’s leaders and Bo-supporting websites have closed – but Article 1 is true to the spirit of his words: it states that the purpose of the regulations is to “ensure that citizens, legal persons and other organisations obtain government information in accordance with the law, enhance transparency of the work of government, promote administration in accordance with the law, and bring into full play the role of government information in serving the people’s production and livelihood and their economic and social activities”.

The regulations – which were introduced after a number of local pilots and international consultations on other “sunshine laws”, such as the UK’s Freedom of Information Act – establish two basic types of open government information in China: that which should be proactively disseminated by government agencies; and that which should be disclosed in response to requests from the public.

However, environmental information is still tightly controlled in China. Last year it took the State Oceanic Administration an entire month before it confirmed an oil leak in the Bohai Sea, off the north-eastern coast of China, which polluted around 4,250 square kilometres of sea. The previous year, a mining company managed to suppress media reports for nine days about a massive leak from a copper mine into the Ting River in Fujian Province, south-eastern China, which caused the death of more than 1,500 tonnes of fish.

How can this still be the case? First, as with open information laws in other countries, there are clauses in the regulations that provide exemptions from transparency. One stipulates exemptions from disclosure if the information endangers “state security”, “economic security” or “social stability”; the other allows other laws or regulations, such as the state secrets law, to trump open government information regulations. Second, and probably more importantly, there are many problems with the implementation and enforcement of the regulations.

The first government department to implement the national regulations as a specific decree was the ministry of environmental protection (MEP), a relatively weak department that has for a long time supported civil-society and media oversight of environmental regulation to make up for lax enforcement by local governments that frequently prioritise rapid economic growth over curbing pollution – as was the case in Chongqing under Bo.

Article 19, an NGO that campaigns for freedom of expression, investigated the implementation of the MEP’s Environmental Information Disclosure Decree and found that despite good progress on proactive data disclosure, local environmental protection bureaus were poor at responding to requests for information from the public. More sensitive information, often the most critical for campaigners – say, on environmental impact assessments or the disposal of hazardous waste – is still very difficult to obtain.

Moreover, the campaigners found that some officials rejected disclosure requests simply because it was “inconvenient to disclose” or because the information was “liable to be sensationalised by the media”. In other words, many rejections had no legal basis whatsoever. As with much regulation in China, the existence of the legislation didn’t mean that it was being properly enforced.

In the case of Chongqing’s Xiaonanhai Dam, green campaigners at FON used open government information laws to ask the ministry of agriculture to release the government’s on-site investigation report and the declaration of the boundary change at the endangered fish reserve.

They were not the only activists in recent years to use the transparency regulations to demand more information about China’s large hydropower projects, which are now enjoying a renewed push under the 12th five-year plan. In 2009, law graduate Ren Xinghui submitted a disclosure request to the ministry of finance for information on the Three Gorges Project Construction Fund, a major source of finance for the world’s largest hydroelectric project, which has displaced at least 1.3 million people.

“The Three Gorges Project is not only one of the key construction projects in this country, but it involves government revenue and expenditure,” Ren told a Chinese newspaper. “The project is nearing completion, so it is time for the authority to give us the information on how the money raised for the project was spent.” Ren said the ministry initially asked to see his “research plan”, but he refused, since it is not a requirement in the open government information regulations. His request was eventually rejected on the grounds that the information did not “directly affect” his “production, domestic, or research activities”. Crucially, he said that the addition of the word “directly” in their rejection had no basis in the law.

The Chongqing case was a little different: the ministry of agriculture refused the requests on the grounds that “procedural” data was not covered by transparency legislation. Chang told me in an email: “This is like a ‘Catch-22’ situation for the public who wish to supervise and participate in the government’s decision-making.”

Chang has a good point: if the government isn’t willing to disclose how its decisions are made, and if its procedures aren’t being correctly followed, it’s difficult to see how freedom of information laws can be used to hold the government to account at any time other than after the event. It won’t be much help to find out that procedures were carried out incorrectly after the Yangtze sturgeon is declared extinct.

Together with the China University of Political Science and Law, FON tried to demand an administrative review that would challenge the legality of this “Catch-22” situation. But they are still awaiting the result. Chang told me that a number of NGOs now face the same hurdle. In short, he said, it means the OGI regulations have “little use for many citizens who want to get involved in government decision making”.

Four years after the introduction of this breakthrough legislation, particularly for those campaigners caught in a thicket of censorship and obfuscation, sunshine governance still seems a long way off in China.

Perhaps the only glimmer of light is that being shone by environment and transparency activists like Chang and Ren. Said Ren in 2010 of his information request: “I feel I am doing a small thing, but that it is something I should do. If every citizen fulfills his or her own small obligations, then together we will make society much better.”

Sam Geall is deputy editor of chinadialogue, a bilingual news and discussion website on environmental issues, with a special focus on China. He is a PhD candidate in social anthropology at Manchester University, author of Climate-Change Journalism in China: Opportunities for International Cooperation and editor of a forthcoming book on grassroots environmental activism in China, published by Zed Books. 

This article was republished on the Guardian Comment Network.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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