Totalitarian governments have, for eons, paid at least lip service to gathering what we now refer to as public input. Common folk would, on occasion, be granted audiences with high officials to express opinions or request favors. In China, the royals were ensconced within the Forbidden City and, as the name implies, inaccessible to the hoi polloi. The masses, however, could petition local authorities and get their attention, usually by banging a large drum located in the public square for this specific purpose.

During the last few years, government officials at all levels have been soliciting input from the masses, especially about draft legislation that may affect everyday life. The leadership today aspires to create a “harmonious society,” which is more likely to be so if its members are listened to. If an active, assertive polis is not your image of life in China, you might be surprised to learn that officials are also asking foreigners for input, especially involving technical standards, legal reform issues, and the all-important implementing regulations. 

This is not to say that every comment has equal weight, or, for that matter, any weight at all.

This is not to say that every comment has equal weight, or, for that matter, any weight at all. It does indicate, however, that legislative branch sausage-making now includes some new ingredients and with them the chance for different and qualitatively better policy outcomes.

How did China come to embrace at least this aspect evocative of democratic institutions? In theory, it is the People’s Republic, and Article Two of China’s constitution specify all power to the people. At the national level, the people are represented by the 3000 members of the National People’s Congress (NPC). At the local level, it’s the Local People’s Congresses, who elect the NPC members. The NPC is often referred to in western media as a “rubber stamp” for approving pre-cooked decisions from Chinese presidents, including President Xi Jinping, who last year persuaded the body to amend the constitution to remove term limits, essentially baking into law his presidency for life.

But the NPC is not a group of cheerleaders according to China legal scholar Jamie Horsley. Her research indicates that in post-Mao China, the NPC has served as a platform for debating and mediating policy disputes. Starting in 2014, there was a move to further professionalize the body, providing members access to academic experts and lawyers. More legal personnel also appeared in the payrolls of government ministries. In 2017, Xi called for a law-based governance group to exercise unified leadership over building a state based on the rule of law. “Administrative scholars, think tanks, business associations and private law firms now had a seat at whatever table the government allowed a seating,” said Horsley, a Brookings Institution scholar who also teaches at Yale Law School.

Black puzzle box

Classical political science theory likens governments to black boxes around which various interest groups circle in search of a way in and thus a better understanding of and chance to influence its inner workings. The box is not static, and in China’s case, with respect to public scrutiny of the activity within, has been making progress, albeit slowly, during the past 15-20 years. Government officials now routinely hold public workshops, encourage one-on-one meetings between stakeholders and officials, consult experts, hold public hearings, make relevant documents available online, and allow people to submit comments on and offline. 

Foreign entities are also encouraged to weigh in on proposed laws and rules that may affect their business and other interests. Many foreign companies maintain government affairs specialists in Beijing and international law firms have offices in China to help clients navigate the often opaque political and law-making process. Foreign non-government organizations, including the US-China Business Council (USCBC), have offices in Beijing and Shanghai that routinely engage with PRC officials at the national and provincial level.

“We’ve seen a new readiness to listen to us and even to reach out for our opinions,” said Anna Ashton, senior director of government affairs for USCBC. Ashton and her team developed comments on the draft Foreign Investment Law (FIL) that was recently approved by the NPC and slated to become law on January 1, 2020. USCBC and other US-based groups reviewed English and Chinese versions of the draft and commented extensively, including language dealing with forced transfer of technology, a major issue for foreign companies and one the US government has made a focus of the ongoing trade agreement negotiations with China. 

The final law is tough on government officials, as USCBC and others had pushed for. While it does not address all concerns, the good news is that there now appears to be a role for policy advocacy in ways different from the past. 

Legislative intent

Comments also covered nuances of language in defining specific words and concepts. Different interpretations of the law can create disagreements later, so precise wording, and agreement on that wording, are important. 

Ashton said that while Chinese authorities did not include specific language of foreign contributors in the final draft of the law, they did alter provisions to include “the spirit of what was proposed.” Similar feedback was received from other foreign groups, giving officials a fuller, more representative view of what foreign interests wanted. Because of external pressure, drafters added a provision prohibiting disclosure of trade secrets by government regulators.

 Foreigners will also likely be asked to comment on implementing regulations connected to the law which, because it contains broad brushstrokes, are needed to provide directives on how the law is to be enforced. 

Written comments are, of course, not the only means of influencing policy decisions. Traditional lobbying techniques are also employed, and government officials’ calendars are chockablock with names of talking-point-carrying visitors.

While all this interest in soliciting opinions from outside the black box is to be applauded, it’s inaccurate to conclude that China has become a paragon of transparency and participatory legislation. Rather, Horsley said there are many complaints about regulations and rule-making procedures. Here are some that she’s noted in her research:

  • Not all revisions are subject to publication and comment;
  • Many central departments in the past gave only 10‐15 days or less to comment on major regulations; 
  • Many drafts are not posted on the central website or are posted in obscure places; 
  • The notification is not posted until several days into comment period; 
  • Official web “information management” platforms provide inadequate space for comments;
  • Not all comments are eventually made public; and
  • There is a lack of feedback on handling of comments;

Comments on the FIL reached 1399 submissions from 391 “persons,” a category which includes organizations such as USCBC. “Doesn’t seem like a whole lot,” remarked Horsley. 

China appears to struggle with public participation because there’s no history of doing so. Yet it is important to keep pressuring for more openness.

Even then, once a law is passed, there’s the added burden of implementing its provisions and intent. There may be strict rules for protecting the environment, but they go only so far if corrupt or if incompetent local officials are involved. Investigations into a recent chemical plant explosion that killed scores of people points to a chasm between words and deeds. Citizens—and foreigners—have limited recourse because the government and Communist Party can’t properly be sued, nor can the underlying laws be challenged. But people can complain and are doing so, loudly in some cases.

While the current state of affairs is far from ideal, it’s hard to argue that the black box is forever impenetrable and unchanging. If anything, government leaders may be compelled to more open decision-making processes further in the future—to deliver on the goals of societal harmony and rule of law including equal treatment of foreign businesses. More openness and better decisions are means to these important ends.

 

Doug Barry is the Senior Director of Communications and Publications at the US-China Business Council. 

Posted by Doug Barry