Identifier
Created
Classification
Origin
09SHANGHAI151
2009-04-03 04:09:00
CONFIDENTIAL
Consulate Shanghai
Cable title:  

(C) SHANGHAI LAWYER SUING FOR ECONOMIC STIMULUS

Tags:  CH EFIN KJUS PGOV PINR ECON 
pdf how-to read a cable
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RR RUEHCN RUEHGH
DE RUEHGH #0151/01 0930409
ZNY CCCCC ZZH
R 030409Z APR 09
FM AMCONSUL SHANGHAI
TO RUEHC/SECSTATE WASHDC 7796
INFO RUEHBJ/AMEMBASSY BEIJING 2661
RUEHCN/AMCONSUL CHENGDU 1875
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEATRS/DEPT OF TREASURY WASHINGTON DC
RUEHGZ/AMCONSUL GUANGZHOU 0331
RUEHHK/AMCONSUL HONG KONG 2043
RUEHML/AMEMBASSY MANILA 0064
RUEHUL/AMEMBASSY SEOUL 0420
RUEHGH/AMCONSUL SHANGHAI 8435
RUEHSH/AMCONSUL SHENYANG 1866
RUEHGP/AMEMBASSY SINGAPORE 0249
RUEHIN/AIT TAIPEI 1663
RUEHKO/AMEMBASSY TOKYO 0614
C O N F I D E N T I A L SECTION 01 OF 03 SHANGHAI 000151 

SIPDIS

STATE FOR EAP/CM, DAS DAVIES
STATE ALSO FOR INR/B
TREASURY FOR OASIA/INA -- DOHNER/HAARSAGER/WINSHIP
TREASURY FOR IMFP -- SOBEL/CUSHMAN
USDOC FOR ITA DAS KASOFF, MELCHER, MAC/OCEA
NSC FOR LOI, SHRIER
STATE PASS CEA FOR BLOCK
STATE PASS USTR FOR STRATFORD/WINTER/MCCARTIN/KATZ/MAIN
STATE PASS CFTC FOR OIA/GORLICK

E.O. 12958: DECL: 4/3/2034
TAGS: CH EFIN KJUS PGOV PINR ECON
SUBJECT: (C) SHANGHAI LAWYER SUING FOR ECONOMIC STIMULUS
TRANSPARENCY

CLASSIFIED BY: Christopher Beede, Pol/Econ Section Chief, U.S.
Consulate, Shanghai, U.S. Department of State.
REASON: 1.4 (e)

C O N F I D E N T I A L SECTION 01 OF 03 SHANGHAI 000151

SIPDIS

STATE FOR EAP/CM, DAS DAVIES
STATE ALSO FOR INR/B
TREASURY FOR OASIA/INA -- DOHNER/HAARSAGER/WINSHIP
TREASURY FOR IMFP -- SOBEL/CUSHMAN
USDOC FOR ITA DAS KASOFF, MELCHER, MAC/OCEA
NSC FOR LOI, SHRIER
STATE PASS CEA FOR BLOCK
STATE PASS USTR FOR STRATFORD/WINTER/MCCARTIN/KATZ/MAIN
STATE PASS CFTC FOR OIA/GORLICK

E.O. 12958: DECL: 4/3/2034
TAGS: CH EFIN KJUS PGOV PINR ECON
SUBJECT: (C) SHANGHAI LAWYER SUING FOR ECONOMIC STIMULUS
TRANSPARENCY

CLASSIFIED BY: Christopher Beede, Pol/Econ Section Chief, U.S.
Consulate, Shanghai, U.S. Department of State.
REASON: 1.4 (e)


1. (C) Summary. Shanghai-based lawyer Yan Yiming on March 20
described his requests for increased government transparency on
the RMB 4 trillion stimulus package announced last fall. Yan is
pushing the Central Government to allow National People's
Congress (NPC) delegates more time to deliberate on the national
budget; he also wants details on the projects to be funded under
the stimulus. The Central Government was largely unresponsive
to his applications, said Yan, but he plans to adjust at least
one request and submit it again next year. Yan said that he
does not coordinate his legal challenges with other lawyers.
End summary.


2. (C) Bio note: Yan Yiming first came to prominence
co-founding the AllBright law firm in Shanghai, which bills
itself as Shanghai's largest private law firm. His career has
led him to be both criminal defense attorney for Shanghai real
estate tycoon Zhou Zhengyi--once one of China's richest people,
but jailed for corruption in the early 2000's--and to sue large
companies pro bono on behalf of indigent plaintiffs, including
in cases of industrial pollution and fraud against minority
shareholders. Yan was named an opinion leader for Asia by
BusinessWeek magazine in 2002. He currently practices in a
self-named law firm, also in Shanghai. End bio note.

============================
Testing the Open Information Regulations
============================


3. (C) Shanghai-based lawyer Yan Yiming on March 20 provided
PolOff and EconOff with an update on his requests for government
transparency on the RMB 4 trillion (approximately US$586

billion) stimulus package. Following the May 1, 2008, entry
into force of the Central Government's Open Government
Information (OGI) Regulation, Yan initially contemplated
applying the OGI to press for greater budgetary transparency.
However, when the Central Government announced plans for a large
economic stimulus in October, he decided it represented an even
better opportunity. He thus conceived two requests for
government information:

- For the Ministry of Finance (MOF),a request that the 2008
budget and the proposed 2009 budget be provided to NPC delegates
two weeks in advance of the annual March plenary meeting of the
NPC. "If delegates are only given the budget at the last
minute, they cannot 'deliberate and approve' (shenpi) the
budget, they can only 'approve' (pizhun) it," said Yan. In
addition, Yan asked for budgetary details of the stimulus
package.

- For the National Development and Reform Commission (NDRC),a
three-part request: 1) A list of the projects originally
proposed by the provinces, municipalities, companies, and
others. 2) A list of the projects approved by the NDRC, along
with the justification. 3) Details of the NDRC's oversight plan
for monitoring the subsequent stimulus package expenditures.


4. (C) Without proper oversight, the stimulus program is ripe
for corruption, said Yan. Government officials think that taxes
are their money to spend as they wish, said Yan, when actually
it is "the people's money entrusted to the officials." Yan
cited as particularly egregious the stories that hotels
surrounding the NDRC were booked full as soon as plans for an
economic stimulus program were announced, suggesting that local
officials were flocking to Beijing to "follow the money."


5. (C) To his knowledge, said Yan, government bureaus are

SHANGHAI 00000151 002 OF 003


putting in place offices that can comply with the Open
Government Information Regulation. For instance, he noted that
when he made his application to the NDRC, he was directed to a
person at the designated office to turn in the paperwork. This
person at first would not accept the application, but Yan
prevailed after speaking with a manager of the office. In
addition, Yan said some media reporters accompanied him, which
he believes helped his cause. (Note: According to press
reports, Yan submitted the applications on January 7, 2009. End
note.)

============================
Appealing the Government's Rejection
============================


6. (C) Yan said MOF rejected his application on grounds that
the budget could not be unveiled before it was approved by the
NPC. He then appealed to MOF for administrative
reconsideration, as prescribed in the Open Government
Information Regulation. (Note: According to press reports, Yan
submitted his appeal on February 9. End note.) Because MOF did
not reply to the administrative appeal, Yan's next step would
have been to sue MOF in court, but he decided not to--his
original request was to provide the budgetary information prior
to the 2009 NPC, and any court decision would be made long after
the NPC ended, said Yan.


7. (C) The NDRC also rejected his application, said Yan,
justifying this in part by saying that the request touched on
third-party information--that is, the requests made by
lower-level governments and companies for stimulus funding. Yan
said that he also appealed for administrative reconsideration by
the NDRC. (Note: Yan made his appeal on March 3, according to
press reports. End note.) Yan believes that NDRC will not
respond to the appeal, however, and will instead cite the
limited economic stimulus details posted on the NDRC website as
fulfilling his request. (Note: The NDRC's website indicates
the details were posted on March 6. End note.)

============================
Planning to Try Again Next Year
============================


8. (C) Yan said that he will submit his request to MOF for
increased budgetary openness again the coming year. The next
time, however, he will alter his application to request that MOF
provide budget details to NPC delegates two weeks in advance of
the Congress every year. In that way, even if MOF is
unresponsive or rejects the application prior to next year's
Congress, Yan can sue MOF in court with the expectation that,
should the courts decide in his favor, any remedy will apply to
following years.

============================
Acting on His Own, But With Like-Minded Supporters
============================


9. (C) Yan said that other lawyers are attempting to use the
Open Government Information Regulation in a similar way, but
that he is not actively coordinating with them. He said that
his previous work testing environmental regulations in court to
gain damage settlements for pollution victims developed in a
similar manner: he was the first to take such cases to court
and win, demonstrating how to use the legal system to these
ends. Subsequently, several other lawyers initiated public
interest environmental suits. Yan said he does not meet or
communicate with others pressing for governmental budget
transparency because of the sensitivity of people working in
groups on politically related issues.


SHANGHAI 00000151 003 OF 003



10. (C) Yan commented that, to his knowledge, there was not a
particular faction in the State Council that supported passage
of the Open Government Information Regulation. Rather, it was
part of broader anticorruption efforts, and passed because no
officials wished to be seen as opposing increased transparency.
However, Yan thought that Central Government officials were
surprised that the regulations were being tested so soon by
himself and others. (Note: Yan may know of officials who
supported the regulation, but most likely would be reluctant to
reveal this in an initial meeting with CongenOffs. End note.)

============================
Comment
============================


11. (C) Yan, as a self-described adherent of the "uphold [the
people's] rights" (wei quan) movement, is an intellectual leader
on legal rights in China. He speaks with a clear commitment to
rule of law. However, he also appears realistic about how much
progress can be made--Yan said that he did not bring rights
cases against officials in Shanghai, since Shanghai was
relatively advanced, but also because if he initiated local
cases, then local officials might be inclined to revoke his law
license.
CAMP