On April 24th, Xinhua News Agency authorized the promulgation of the Regulations on Information Openness in People's Republic of China (PRC) (hereinafter referred to as the Regulations). According to the regulations, the regulations shall come into force on May 1 2008. Since then, China's government information disclosure has entered an era of "laws to follow".
In the process of promoting the construction of democracy and rule of law in China, how to evaluate the promulgation of the Regulations? What possibilities do the regulations provide for changing the social life of the government and the public? How to prevent administrative organs from evading the provisions of the Regulations and unfairly releasing information that should be made public? How to amend the secrecy law to make its legislative spirit coordinate with the regulations? Is it possible for the "Regulations" to rise to national legislation in the near future?
Jiang Mingan, Professor of Peking University Law School, Director of Public Law Research Center and Vice President of china law society Administrative Law Research Association.
Professor of Wang Yukai National School of Administration, member of National Informationization Expert Advisory Committee, and member of the State Council E-government Demonstration Project Expert Group.
Mo Yuchuan, Professor and Doctoral Supervisor of Law School of Renmin University of China, Executive Director of china law society Administrative Law Research Association, participated in information disclosure legislation.
The Regulations provide a legal basis for protecting the right to know.
Background: At the end of 2006, the relevant person in charge of the Office of the National Leading Group for Openness of Government Affairs said that it was actively drafting the Regulations on Openness of Government Information. However, in the following months, there has been no following, which has aroused great concern from public opinion. Now, the "Regulations" have been officially promulgated, and our government information disclosure has entered an era of "laws to follow".
Beijing News: What possibilities do the regulations provide for changing the social life of the government and the public?
Wang Yukai: First of all, there is a legal basis for making government affairs public. In the past, the openness of government affairs was driven by administrative forces, lacking legal basis, and some government information that should be made public was not made public; The explicit provisions of the law will constrain the government's behavior, and some unreasonable public powers will be restrained to a certain extent. In fact, the abuse of public power in some places is largely caused by the information asymmetry between the government and the public; After the information asymmetry is broken, the public's right to know is respected and can be freely expressed, thus restricting the irrationality of the exercise of government power.
The second is to provide legal protection for the public's right to know. If the public information is not made public, the public can hold the relevant departments accountable. In the past, the public was completely passive, and if the government did not disclose relevant information, there was nothing the public could do. This regulation provides a legal basis for protecting the public's right to know, participate and even interact.
Third, the implementation of the "Regulations" has provided an important foundation for building a sunshine government. With this foundation, the government keeps releasing information, and the public's right to know, participate and interact is constantly guaranteed, which is helpful to change the corruption caused by black-box operation and excessive exercise of discretion in the past.
Of course, there will be many difficulties and obstacles in the implementation of the regulations. For example, "power departmentalization, departmental interests and interests legalization": the government takes the information it has as a means to obtain resources and tries its best to maintain the inertia of the old system. Therefore, with the implementation of the regulations, there will be a process of game between all parties.
Prevent the scope of exceptions from expanding at will.
Background: Article 8 of the Regulations stipulates: "The disclosure of government information by administrative organs shall not endanger national security, public security, economic security and social stability."
The Beijing News: Some people worry that Article 8 will become an undisclosed reason and threaten the realization of citizens' right to know. How to treat this kind of worry?
Wang Yukai: This may be a key issue in implementing the regulations. Any modern country has problems of national security, national sovereignty, information security and public order, and the secret exception refers to this one. What we are worried about is the improper expansion of the scope of "exception", and we should formulate supporting specific institutional measures to refine the contents stipulated in the Regulations. In terms of non-disclosure, what information is not public? In particular, undisclosed information should be classified and refined so that various government agencies can have operational basis. This can also stand the test of the public, ensure the security and sovereignty of national information, prevent the scope of exceptions from expanding, and eliminate people's concerns.
Jiang Mingan: The interpretation of these regulations must conform to the basic spirit and legislative purpose of the regulations, and follow the modern administrative requirements of "openness is the principle, confidentiality is the exception". The so-called "exception" means that there must be clear and specific laws and regulations, and disputes will ultimately be decided by judicial organs.
The Secrecy Law and the Archives Law should be amended as soon as possible.
Background: Article 14 of the Regulations stipulates that the administrative organ shall establish and improve the confidentiality review mechanism of government information release, and clarify the review procedures and responsibilities. Before disclosing government information, the administrative organ shall review the government information to be disclosed in accordance with the People's Republic of China (PRC) Law on Guarding State Secrets (hereinafter referred to as the "Secrecy Law") and other laws, regulations and relevant provisions of the state. When the administrative organ is not sure whether the government information can be made public, it shall, in accordance with laws, regulations and relevant provisions of the state, report to the relevant competent department or the secrecy department at the same level for determination.
The Beijing News: Some people think that this is "clearly stipulating the terms of the confidentiality review mechanism before information disclosure" and "the contradiction between information disclosure and confidentiality terms". What do you think of this?
Mo Yuchuan: It should be noted that the secrecy system stipulated in the Secrecy Law mainly determines the secrecy level through classification and consciously abides by it. Only some special cases need to be reviewed, but many cases seem to be understood as the assistance of the secret service. The provisions of Article 14 of the Regulations officially promulgated this time are actually consistent with the secrecy law: firstly, the administrative organs are required to conduct self-examination, but when encountering difficult problems and are uncertain whether they can be made public, they should report to relevant departments including the secrecy department for confirmation according to law. This situation can also be understood as an administrative assistance mechanism to help administrative organs do a good job in publicity, and it is not necessary to understand it as a confidentiality review mechanism.
Beijing News: What should be the basic idea of amending the secrecy law? How to coordinate with the legislative spirit of the regulations?
Mo Yuchuan: On the basis of adhering to a certain bottom line, we should be more democratic and open. The bottom line here is to keep state secrets and security, commercial secrets and security, private rights and security. Anyone who violates this principle will lose balance, cause damage, increase social costs and affect social harmony. It is possible to supplement it with new legislation or amend existing laws. In the face of the formulation, revision and abolition of legal documents, it is still necessary to emphasize that subordinate laws obey superior laws, special laws are superior to ordinary laws, and new laws are superior to old laws.
Jiang Mingan: The effective realization of citizens' right to know depends on amending the Secrecy Law, Archives Law and other relevant laws and regulations, and formulating relevant supporting laws and regulations. Regulations belong to the category of administrative regulations, and their level is lower than the secrecy law and the archives law. Both the Secrecy Law and the Archives Law were enacted in the last century, and some provisions conflict with the principle of government information disclosure. If this legislative spirit and the relevant provisions embodying this legislative spirit are not revised and amended, the implementation of the regulations may encounter insurmountable obstacles. In addition, in order to ensure the full implementation of the regulations in various departments and fields, it is necessary to formulate relevant supporting regulations, such as the "Measures for the Disclosure of Environmental Information (Trial)" promulgated not long ago.
Administrative litigation is the key to effective implementation of laws and regulations.
Background: As early as shortly after the implementation of the Administrative Licensing Law, some scholars wrote articles pointing to the phenomenon of non-compliance with the law in the implementation of the law, fearing that good laws would be successfully circumvented and legislators' wisdom would never catch up with law enforcers. The same problem also exists in the implementation of the regulations.
Beijing News: How to avoid the problem of non-compliance with laws in the implementation of regulations?
Jiang Mingan: The Regulations have clear and specific provisions on the scope, methods and procedures of government information disclosure. To strictly implement these regulations, the government must carry out its work seriously and solidly: it is necessary to set up a special information disclosure work organization; It is necessary to establish special systems, places and facilities for information collection, storage, custody, exchange, consultation, establishment and release; It is necessary to clean up and classify the existing information, predict the future information sources and determine the public plan.
In addition, the effective realization of citizens' right to know depends on the serious investigation of the responsibility for violating the regulations and the effective relief for infringing citizens' right to obtain information. Government information is in the hands of government agencies. If government agencies and their staff are unwilling to disclose their own information that should be disclosed for various reasons. Then, there must be supervision, supervision and safeguard measures, such as assessment, appraisal, supervision, administrative counterpart reporting, application for administrative reconsideration and administrative litigation. Among all these measures, administrative litigation should be the most important and effective measure: the administrative counterpart applies for obtaining certain information according to law, and if the administrative organ refuses it illegally, it can resort to judicial review; After examination, if the court considers that the corresponding information belongs to the scope that should be disclosed according to law, it may order the administrative organ to provide it within a time limit. If the administrative organ delays the provision, it may also order the administrative organ to make compensation. Only by doing so can we avoid "breaking the law".
The disclosure of trial and procuratorial information should also be regulated by law.
Background: In the tenth legislative plan of the National People's Congress Standing Committee (NPCSC), the law on the disclosure of government information was written into the plan as a secondary legislative item drafted or submitted for consideration by the State Council. This year is the last year of the 10th the National People's Congress Standing Committee (NPCSC)'s term. According to the legislative plan of the National People's Congress Standing Committee (NPCSC) in 2007, the Law on the Openness of Government Information is not one of them.
Beijing News: The Law on Openness of Government Information was not included in the National People's Congress Standing Committee (NPCSC)'s legislative plan in 2007 as scheduled. What is the reason?
Mo Yuchuan: There are two main ways to legislate government information: some people advocate that regulations should be formulated within the administrative organs first, and then laws should be formulated after a period of implementation. Some people think that after some pilot projects in some places, some problems in the legislation of information disclosure have become very clear, and it is enough to formulate a government information disclosure law. Practice has proved that the latter idea is still quite difficult.
Although the "regulations" are only the constraints of the administrative organs on themselves, and the explorations carried out in various places are unified and standardized, even this is difficult, and it is difficult to coordinate the opinions of some departments. We should also see that this law is classified as the second kind of planning in legislative planning, that is, to start some research and drafting work. If conditions are ripe, it is very common and normal that the draft law to be considered cannot be formulated during the planning period.
Beijing News: What are the conditions for the Regulations to become law?
Mo Yuchuan: Becoming law is an inevitable process. It is certainly much better for the highest authority like the National People's Congress to make laws than for the government to make its own rules. But this requires the accumulation of experience and lessons. From the promulgation of the "Regulations" to the promulgation of the law, there is just a time period. Three steps can be formed in this cycle: first, the active exploration in some places, such as the legislation and implementation process of government information disclosure in Shanghai and Guangzhou, has accumulated valuable experiences and lessons and created conditions for the promulgation of the Regulations; The second is to formulate administrative regulations on this basis, that is, the "Regulations" just released; Third, accumulate experience in the implementation of the regulations and create better conditions for the highest organ of state power to formulate relevant laws. Such a step forward may be more steady, and it is also a more acceptable path to change the administrative model and administrative behavior, and the resistance will be less.
The legislative plan of the 11th National People's Congress is being drafted, and I estimate that the Law on the Openness of Government Information will still be written in it. Because after five years of exploration, it should be said that it will be more mature to raise the Regulations into law; When the law is promulgated, not only administrative organs, but also other state organs, including judicial organs and procuratorial organs, should be regulated by the law.