Q&A: Steven Balla on NGO Law & Public Consultation

Last week, China’s National People’s Congress passed its long-awaited Foreign NGO Management Law. The bill, which takes effect next year, has a heavy emphasis on national security. It mandates ’ supervision by the Ministry of Public Security and partnership with Chinese organizations, while imposing new controls on funding and recruitment. Chinese officials argue that the law protects the rights of legitimate while guarding against a malicious minority. But critics including Chinese and , Western governments, and U.N. human rights experts fear that it will serve as a new instrument of political repression, chilling or freezing the work of both foreign and domestic organizations even in ostensibly apolitical fields. The law’s vagueness is a key concern, potentially leaving room for arbitrary interpretation by the authorities, though civil society expert Shawn Shieh has argued that it could also give NGOs the opportunity to influence implementation in their favor.

While the most draconian conditions remain, some changes were made in apparent response to a more than year-long public consultation. A Xinhua commentary on Wednesday cited this process in the law’s defense:

When comparing previous drafts of the law, which went through three readings, it is clear that great effort has been made to develop a balanced and comprehensive law.

Gathering opinions from different parties including foreign NGOs that already operate in China, the top legislature made notable changes through every reading.

For instance, the adopted law removed a provision in the original draft that limited foreign NGO offices on the Chinese mainland to one, and deleted the five-year operational limit on representative offices. Restrictions on staff and volunteers were also lifted.

The draft had required a permit for NGOs that wanted to operate temporarily on the mainland. In the adopted law this has been changed to a compulsory report with the regulator 15 days before the program begins. [Source]

Such consultations have also occurred, with mixed results, for legislation such as the 2012 Criminal Procedure Law revision and last year’s National Security and Anti-Terror Laws. The process is one of a number of methods, including surveys and social media monitoring, by which authorities have sought to gather outside input on .

Professor Steven J. Balla at George Washington University studies the structure and process of policy making in China and the United States, focusing on public consultation processes and their results. He discussed the consultation on the new law and the process more generally, its motives, and its effectiveness, with CDT via email.

CDT: What are your impressions of the effectiveness of the consultation on the Foreign NGO Management law?

Steven Balla: In some respects, the government consultation and citizen feedback that occurred during the development of the foreign NGO management law is rather atypical. From the perspective of consultation, the NGO law addresses issues that are inherently politically sensitive, namely, civil society and state security. The vast majority of consultations, by contrast, occur in areas of policymaking that are far less controversial and threatening from the perspective of the Chinese Communist Party. Furthermore, and not unrelatedly, much of the feedback that was submitted in response to the draft NGO law emanated from organizations with nationally and internationally prominent profiles. It is more common for participants to be drawn from narrower, less well-known circles of stakeholders.

Despite these important differences, in many respects the development of the foreign NGO management law resembled the government consultation and citizen feedback that is increasingly occurring across policy areas and levels of government in China today.

CDT: When did government consultation and citizen feedback begin? How does the process work?

SB: Government consultation with the public has occurred throughout the history of the People’s Republic of China, although the frequency has been rather low. According to Chinese language sources, from 1949 to 2007, the National People’s Congress circulated a total of fifteen draft laws for citizen feedback.

I want to be clear what I am talking about when referencing “government consultation” and “citizen feedback.” This is a system in which government officials make draft laws and regulations available to the public. These drafts are then open for public comment for periods that typically last for one month, although specific comment periods can be shorter or longer in duration. This sequence of government circulation of policy proposals and solicitation of citizen input is roughly analogous to what is known in the United States as the “notice and comment” process.

CDT: What is the scope and nature of the contemporary system of government consultation and citizen feedback?

SB: With the rapid spread of information and communication technologies, it is not surprising that government consultation and citizen feedback now take place over the Internet. In 2008, the State Council announced that it “will make use of the Internet as a standard method of inviting on draft laws and regulations.” The website of the State Council’s Legislative Affairs Office operates as a sort of clearinghouse for information about draft laws and regulations that are open for public feedback.

Online consultation occurs not only at the central government, but at the provincial and local levels as well. In fact, the online consultation practices of provincial and local governments are in some ways more developed than those of the central government. Provincial governments, for example, are more likely than central government ministries to disclose information about the feedback that is submitted in response to draft laws and regulations. This kind of disclosure is crucial if the full potential of the Internet as an instrument of consultative policymaking is to be realized.

The adoption of online consultation also varies across ministries and provincial governments. Although online consultation has spread throughout the country, the practice tends to be more developed in wealthy, urban, coastal provinces. Bread-and-butter issues of commerce and social policy are much more likely to be open for public feedback than drafts touching upon politically sensitive matters. There are exceptions to this general rule, however, exceptions that pre-date the foreign NGO management law. In 2012, the central government publicly circulated the draft of a proposed revision to the nation’s criminal procedure law. This consultation resulted in the submission of tens of thousands of comments, many of which addressed the politically charged issue of undisclosed, residential detention of criminal suspects.

CDT: What are the motivations of government officials in soliciting citizen feedback?

SB: Authoritarian regimes throughout the world continually seek ways to shore up their legitimacy, and the CCP is certainly no exception. In recent years, leaders all the way up to President Xi Jinping have emphasized governance reforms, such as online consultation, as a means of enhancing the party’s durability. Internal CCP politics, such as corruption and divisions within leadership factions, provide the party with incentives to seek and mobilize public opinion. In addition, as China develops economically and socially, the policy challenges confronting the party become more complex and difficult to resolve in the absence of robust information. Given that such information is often in the hands of the nation’s increasingly wealthy and well educated population, the party has an incentive to use online consultation to obtain this information. Finally, China’s accession, in 2001, to the World Trade Organization codified commitments to enhance transparency and public involvement in the policymaking process. Although these commitments were made explicitly in the area of trade regulation, the precedent of consultation and feedback has informed decision making in areas across the policy spectrum.

CDT: What do we know about who participates in online consultation? What do participants have to say?

SB: Feedback on draft laws and regulations tends to be submitted by well educated professionals who live in urban areas. In 2008, when the central government asked for feedback on a health care reform proposal, many of the participants were doctors and other workers in the medical industry. This is not to say that “ordinary citizens” never participate in online consultation. The central government received comments on the health care reform proposal that relayed personal or family anecdotes, many of them angry or sad, about problematic encounters with hospitals and medical providers.

Given that participants in online consultation often occupy relatively well-established places in Chinese society, one might expect a dearth of criticism of government policies. As it turns out, negative feedback, some of it quite strident, is much more common than comments encouraging government officials to continue along existing policymaking trajectories. Such negative feedback does not consist merely of expressions of discontent or opposition. In the health care reform consultation, participants drew upon professional knowledge and scientific studies to justify viewpoints that ran contrary to the government’s proposal.

CDT: Does participation matter? What kind of results has online consultation produced? Are there particular cases in which notable concessions have, or have not, been made?

SB: One concern with online consultation, and governance reform in general, is that such instruments serve merely to provide a veneer of popular legitimacy to decisions that government officials have already made behind closed doors. Comments submitted in response to draft laws and regulations are not, as a general matter, made available to the public. This lack of disclosure, in combination with the occurrence of other not readily accessible forms of communication between government officials and nongovernmental actors, means that it is often not possible to reliably trace the effects of public participation on policymaking outcomes.

One means, albeit indirect, of assessing the impact of citizen feedback is through the perceptions and behaviors of participants. Survey research indicates that participants in the health care reform consultation did not have high expectations regarding government responsiveness to the feedback that was submitted. Other anecdotal evidence suggests, by contrast, that public feedback on draft laws and regulations can have significant effects on government decision making. Many of the comments submitted in response to the proposed criminal procedure law objected to the practice of detaining criminal suspects in undisclosed, residential locations. Although the government retained this practice, the permitted duration of such detentions was shortened considerably in the law that was ultimately adopted.

CDT: What other means of consultative policymaking exist? Do these means collectively constitute a coherent framework for incorporating citizen feedback into government decision making?

SB: In contemporary China, a variety of means exist for citizens to express opinions to government officials. These include village elections, deliberative polling, and public hearings on prices, to name just a few. Each of these means has developed independently, in a manner not indicative of a coherent framework for soliciting and receiving feedback in the policymaking process. On top of this, it has proven difficult to institutionalize consultative policymaking. Research shows, for example, that experiments in deliberative polling are often discontinued when supportive government officials are transferred to other jurisdictions.

Viewed in this larger context, online consultation is part of the ongoing, incremental evolution in communication between government officials and citizens during the making of public policy. Given that online consultation derives from the CCP’s quest for legitimacy and durability, it is inherently limited as a means of governance reform. Despite limitations in scope and purpose, online consultation has demonstrated its promise in enhancing transparency in government decision making and shaping policy outcomes, at least under certain circumstances. More broadly, online consultation has the potential to gradually alter the perceptions of government officials and citizens toward the value of seeking and offering public opinion as a standard element of the policymaking process. With such results and possibilities in mind, I would support the development of best practices for the conduct of online consultation that are then consistently implemented, and ultimately assessed for efficacy, across policy areas and levels of government.