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’s National Peoples’ 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’s 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.

“Public opinion played a very important role” in watering down provisions in the new Criminal Procedure Law that would have allowed the police to “disappear” political opponents for six months, says Chen Weidong, a law professor at Beijing’s Renmin University. “The congress took the opinions that people expressed into account.”

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 “black jails.”

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’s family immediately if they take him to a “designated residence.”

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’ status, according to the NPC website.

“This represents an initial foray by the government into citizen participation,” says Steven Balla, a politics professor at George Washington University in Washington who has studied the public consultation process. Although it is “really hard to say” how much the comments affect the drafting process, he adds, “there is potential for these comments to have a significant impact.”

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.”