海角大神

Is China opening up?

China's highest state body has started to consult the public, opening the door on its secretive legislative process, even if only a crack.

China鈥檚 National Peoples鈥� Congress, the parliament that opened its annual meeting here Monday, is often dismissed as a rubber stamp body that offers only rote approval of the ruling Communist Party鈥檚 wishes.

But when delegates come to vote later in the session on one of the more controversial laws in recent memory, they will find that another, less predictable force has helped shape the legislation before them: public opinion.

鈥淧ublic opinion played a very important role鈥� in watering down provisions in the new聽Criminal Procedure Law that would have allowed the police to 鈥渄isappear鈥� political opponents for six months, says Chen Weidong, a law professor at Beijing鈥檚 Renmin University. 鈥淭he congress took the opinions that people expressed into account.鈥�

The law defines fundamental human rights, such as how suspects and defendants should be treated by the police, the prosecutor and the courts. When a first draft was published last August for public comment, human rights activists were horrified to find that the law would entitle the police to hold some suspects for six months in secret detention centers without telling anyone what they were doing.

The Chinese police have done this anyway, notably to dissident artist Ai Weiwei, but they were breaking the law. Now, it seemed they would be legally permitted, under certain circumstances, to put political opponents in 鈥渂lack jails.鈥�

Chinese lawyers and others flooded the NPC website with criticism during the 30 days it was open to comments. Today, according to Professor Chen and others who have seen the still-secret final version of the law, it obliges the police to tell a suspect鈥檚 family immediately if they take him to a 鈥渄esignated residence.鈥�

The change illustrates the potential impact of the public consultations that the NPC has begun to offer Chinese citizens, opening the door on its secretive legislative process, even if only a crack.

Invitation for public comment

The NPC has invited public comment, by post or e-mail, on 41 selected draft laws since 2008, with varying results. About 83,000 people came up with nearly a quarter of a million suggestions last year on how to improve the income tax law; only 22 citizens felt strongly enough to comment on a draft law concerning reserve duty military officers鈥� status, according to the NPC website.

鈥淭his represents an initial foray by the government into citizen participation,鈥� says Steven Balla, a politics professor at George Washington University in Washington who has studied the public consultation process. Although it is 鈥渞eally hard to say鈥� how much the comments affect the drafting process, he adds, 鈥渢here is potential for these comments to have a significant impact.鈥�

The consultations are only one ray of light shone into what human rights researcher Joshua Rosenzweig calls the 鈥渂lack box鈥� 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 鈥� the police, the prosecutor鈥檚 office, the courts, trusted legal scholars, and defense lawyers 鈥� some were happy to use public opinion to buttress their views.

Potential leverage

Reformists, Mr. Rosenzweig suggests, 鈥渃ould 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.鈥�

鈥淚t might be that the government turns to public consultations when decision makers are not agreed on an issue,鈥� agrees Professor Balla. 鈥淚n the Chinese context, they could be a way of settling disputes.鈥�

There are limits to the consultations鈥� value, however, points out Wang Lin, an advocate of more open government who teaches law at Hainan University. 鈥淚t鈥檚 all part of democratizing lawmaking,鈥� he says, 鈥渂ut the consultations are not institutionalized yet, and there is no guarantee that lawmakers will adopt any of the opinions that the public expresses.鈥�

Those who commented on a health reform bill in 2008, Balla found in his research, 鈥渙verall had pretty modest expectations鈥� 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.

鈥淭hat would have brought a lot of pressure to bear on law enforcement agencies,鈥� 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 鈥渁 pretty open back and forth鈥� on the contentious aspects of the proposed law, says Rosenzweig. 鈥淭he government could not always control what the public had to say.鈥�

A lot of what it said 鈥渃oncerned the limits on citizens鈥� rights,鈥� points out Professor Chen. 鈥淭he NPC seriously considered this and then canceled the provision鈥� on secret detention that had sparked such an outcry.

鈥淭he consultations make a difference,鈥� Rosenzweig believes. 鈥淢ore could be done to have them make more of a difference 鈥� but the opportunity for people to speak their minds creates valuable input that legislators generally appreciate. It鈥檚 not just window dressing.

鈥淚t鈥檚 a first step,鈥� he adds. 鈥淲hether it is just a first step, or the only step the authorities are willing to take, remains an open question.鈥澛�