China’s Transparency Two-Step: Reform and Control in the Wake of the Fourth Plenum

Assembly of the 18th National Congress of the Communist Party of China (Wikimedia Commons) Is the Chinese government becoming more open and accountable or more repressive and controlling? What if both are happening at the same time?

Emerging in late October from the Fourth Plenum of the Chinese Communist Party’s 18th Central Committee, President and Party General Secretary Xi Jinping presented a decision document outlining an array of reforms under the theme of “governing the country according to law.” A striking number of the announced measures are aimed at improving government transparency to root out corruption and foster public confidence in the law. At the same time, the document emphasizes at every turn the Party’s paramount role in the Chinese legal system, and hints at new means of censorship to keep a lid on public discourse.

How to reconcile these seemingly contradictory developments?

Consider the assortment of reforms announced at the Plenum, notably those addressing China’s notoriously opaque judicial system. The black-box process of filing lawsuits will be opened up, limiting the ability of courts to avoid taking politically inconvenient cases without legal justification. There will be a system for reporting on local officials’ interference in cases, and new measures of accountability for meddling in the justice system. The judges who actually hear each case will be held accountable for their decisions, potentially reducing the murky behind-the-scenes involvement of other court personnel. Pledges to “make the trial central” suggest that judicial decisions will increasingly be based on evidence adduced at trial, instead of predetermined or manipulated by actors behind the scenes.

Some of these proposals have been cast as radical departures from current practice, but they in fact build upon China’s recent (and underappreciated) achievements in judicial transparency. This year, courts across the country began publishing their judgments on a central online database. In August, a nationwide case-tracking system was launched to allow greater public access to court documents and recordings. Trial proceedings are becoming more visible through court microblogs and other means. Coupled with experiments to remove local officials’ control over court appointments and salaries, these reforms promise to expose Chinese judges and prosecutors to greater accountability to the law.

While all bets will continue to be off in the most politically sensitive cases, the announced reforms address longstanding challenges of corruption and interference in China’s courts. They also dovetail with ongoing reforms to make administrative agencies more open and accountable. These include the continued implementation of China’s version of the Freedom of Information Act, as well as modest improvements to the law that gives Chinese citizens the right to sue the government.

But despite the Party’s embrace of transparency to promote adherence to law, there is ample evidence that information restrictions are becoming more severe by the day.

In September 2013, amid a crackdown on Chinese bloggers, China’s highest court pronounced that Internet users may be prosecuted for posting “rumors” viewed by 5,000 people or forwarded 500 times, and declared it a crime to make any statement online that “disturbs public order.” Such charges have been used to muzzle public interest lawyers and journalists. Beijing doubled down in August of this year with additional draconian regulations restricting the dissemination of “political news” on instant messaging platforms.

Then, just days before the Party’s Fourth Plenum session last month, China’s Supreme People’s Court issued new guidelines that tighten the screws on Internet service providers and influential bloggers. Among other things, these latest measures prohibit paying others to post or delete content online—ironic indeed, as this practice has long been employed by the Chinese government to “guide” public opinion.

Striking contrasts between transparency and control can be found side-by-side in China’s legal pronouncements. Take, for example, the ongoing amendment of China’s Food Safety Law. The latest draft of the law includes new rules to improve disclosure, such as real-time publication of food safety violations and innovative channels for risk communication. But the same statute would bar anyone from publishing vaguely defined “food safety information” without first obtaining authorization from the central government.

The recent Fourth Plenum decision has a similar push-pull feel. After laying out a series of reforms requiring more transparency in China’s courts, the document proposes to “standardize media reporting on court cases” to prevent distortion of public opinion. Calls in the decision to create nationally uniform legal textbooks and raise lawyers’ “ideological quality” sound a similarly ominous chord, echoing rules released in June that limit lawyers’ ability to criticize the legal system or even discuss cases publicly.

In short, Beijing is selectively expanding freedom of information while shrinking freedom of expression. The Party knows it needs the credibility that only transparency can provide, but it fears information being used in ways that might jeopardize its hold on power. The irony is that the very limits on expression designed to bolster the Party’s control threaten to undermine its efforts to tackle corruption and build public trust through transparency. The Fourth Plenum recognized in principle that the latter is more important to the Party’s legitimacy, just as last year’s Third Plenum emphasized its value to China’s economic prosperity. Time will tell whether the Party can live up to these lofty commitments.

For now, the tension between transparency and control shows few signs of abating. At a summit in Beijing shortly after the Fourth Plenum, China and the United States reached a landmark climate agreement that included China’s commitment to halt the growth of carbon emissions by the year 2030. Yet at the very moment the climate accord was being concluded, Chinese authorities were censoring data on Beijing air pollution published by the U.S. embassy. Clear targets on pollution are fair game, it seems, but full transparency about the problem remains a bridge too far.

Party leaders seem serious about reform, but they are determined to tightly control it. As such, we should not expect to see genuine rule of law in China anytime soon. Yet the new steps announced at the Fourth Plenum are cause for guarded optimism. If lifting the veil on China’s judicial system leads to more fairness in everyday disputes, the public demand for transparency and accountability will only continue to grow. And with more and more Chinese citizens pressing their government to make good on its rhetoric, there is reason to be hopeful about China’s plodding progress toward a more authentic rule of law.