Elgar original reference
Edited by Padideh Ala’i and Robert G. Vaughn
Chapter 9: The role of the courts in China’s progress towards transparency
This chapter analyzes the role of the courts in China when faced with open government information request complaints under the new Regulations on Open Government Information (the 2008 OGI Regulations). In a country where the judiciary has never been a strong or independent branch of the government, and where secrets have surpassed openness regarding the operation of public powers for thousands of years, it is easy to understand that Chinese courts have faced significant challenges when asked to address lack of governmental transparency. Yet, significantly enough, that Chinese courts have also been creative in expanding the scope of government transparency. This chapter looks at the Chinese judiciary’s role in expanding governmental transparency in the past five years. In reaching this conclusion, the chapter is in three parts. In the first part, the OGI legislations are discussed together with early OGI court cases in order to provide general background on the challenges government transparency faces in the Chinese context. The second part elaborates on the details of OGI-related disputes by analyzing court discussions of standing, standard of review and burden of proof, reverse OGI litigation, and conflicts between laws. The final part analyzes achievements and failures of Chinese courts by contrasting the seemingly conservative approach of courts that hides a dynamic engagement of justices and judges with the OGI legislation, and demonstrates that Chinese courts have prevailed in expanding of the scope of administrative law cases and have expanded the power of judicial interpretation.
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