The emperor’s new draft regulations

This week China’s State Council passed in principle a draft regulation that seeks to do away with the widespread practice of forced home demolition to make room for development projects. Forced demolition, or qiang chai (强拆), and its social fallout has been one of the most pernicious issues to haunt China over the past decade, as local government leaders across the country have recklessly seized land and destroyed property in a race to fuel local economic development, and to personally enrich themselves.

Over the past year, as discussion and debate of the regulation dragged on, China experienced a number of horrific tragedies stemming from forced demolition. In one of the most high-profile cases, three members of one family in China’s southern Jiangxi province set fire to themselves in a final, last-ditch act of protest as local police converged on their home to carry out a forced demolition order.

The draft regulation comes amid a building consensus in China that the issue of forced demolition must be seriously addressed. But is this draft State Council regulation the answer? Is there cause for even guarded optimism?

The draft does away with the practice of forced “administrative demolition” (行政拆迁) and appears to put decisions on demolition in the hands of China’s courts, favoring “judicial demolition” (司法拆迁). It demands also that “the degree of public participation be expanded” ahead of proposed demolitions, and that “compensation for [demolished] residences does not fall below the market price for similar properties.” The regulation further stipulates that companies involved in development projects slated for the demolition site not be involved in the demolition and eviction process, a problem that has contributed to abuses, as developers with strong political backing have often acted above the law.


[ABOVE: Residences face forced administrative demolition in Tianjin in 2007.]

Some commentators argue that the new draft regulation is a positive step forward, even if imperfect. CMP fellow Zhan Jiang (展江), a professor of journalism at Beijing Foreign Studies University, acknowledged problems with the new regulations but noted four points of progress:

Major points of progress include: 1. compensation for residences [on which demolition actions are] being imposed must not fall below the market price for similar properties; 2. the expansion of the degree of public participation, the opinions of the public should be sought for proposals for compensation for acts of demolition; 3. the cancellation of compulsory administrative demolition and removal (行政强制拆迁); 4. prohibition against development companies taking part in demolition and removal. These were not easy, and they are worthy of compliment.

“Just think how many people shed blood in exchange [for these concessions],” Zhan wrote. “Everyone should continue to observe the actions of local governments.”

But criticism has harried the draft regulation since its release on December 15 last year, and it certainly fails to address a number of key issues. It deals only, for example, with demolition carried out on state-owned land while many of the most serious incidents stemming from demolition actually occur on collectively-held land — for example, in villages on the fringes of expanding cities — a legacy of China’s land reforms in the 1950s.

One of the biggest concerns is how much impact the regulations can have in the absence of deeper reform to the system making local leaders more accountable. The regulations, for example, stipulate that government officials must now provide a demolition notice issued by the courts before a demolition can go forward. Critics point out correctly that such a stipulation will make little difference so long as the local courts (as well as the police) are in the hands of local officials.

Writing at the Caixin Media website, Yuan Yulai (袁裕来), a Chinese legal expert and member of the All-China Lawyers Association, said the new draft regulation would not be a step forward and might actually be a step back. The reason lies, he said, in the nature of China’s legal system.

The unit of decision-making power in our country is the Party committee, and demolition actions, which are generally related to major projects, are decided through local Party committees and standing committees and then handed to the government for implementation. The word “government” here has a very broad meaning, including the government, the local people’s congresses, the courts and other agencies. In the case of the courts, the Party committee exercises [its decisions] through the Politics and Law Committee. The chief of the court is the Secretary of the Party Committee, and the leading body of the courts is the court’s Party organization, comprising members of the leading Party group. The chief judge is not even a member of the local Party committee, and that he is not a member of the standing committee goes without saying. When the Party committee makes decisions on such issues as demolition and removal, the chief judge does not even have the power to attend as a non-voting delegate. The only thing he can do is carry out the decision of the Party committee.

Even worse is the fact that the People’s Courts are often garbed with the cloak of independence and fairness, and this idea is impressed upon many people’s hearts. At the heart, this is true of systems of justice, but over here where we are things are entirely not that way. The character of independence has already been totally hollowed out. Some time ago we were calling all the time for an end to the localization of court justice, but now we uphold the idea that courts must accommodate local Party leaders. I’m afraid there’s no way in a short period of time that we can redeem the outcomes we have reaped from this.

When Yuan said courts must now “accommodate local Party leaders,” he was referring to the policy of the “Three Supremes,” first introduced by Chinese President Hu Jintao (胡锦涛) during a 2007 session on national politics and law attended by senior judges and prosecutors. The policy represents a sharp change — and many say a clear step backward — in China’s judicial policies, and is summed up as follows:

1. “Supremacy of the business of the CCP” (党的事业至上)
2. “Supremacy of the interests of the people” (人民利益至上)
3. “Supremacy of constitutional law” (宪法法律至上)

Chinese legal scholar He Weifang (贺卫方) told Hong Kong’s Asia Weekly magazine in August 2010 that legal system reforms in China now face a major challenge in the form of this policy, and the term “Three Supremes” has entirely replaced the erstwhile policy goal of “judicial independence” (司法独立).

Also at Caixin Media, Ding Jinkun (丁金坤), an attorney at Shanghai’s Debund Law Offices, wrote of the new draft demolition regulation:

Some people believe this is a bright moment — what an absurdity!

First of all, the new draft regulation is an administrative regulation, a law made by the government. So how can administrative bodies stipulate the work that courts do? Clearly, administrative organs have overstepped their authority, regarding themselves as the National People’s Congress or the Standing Committee of the National People’s Congress. We need to know that the function of the courts is determined by law, and whether or not judicial demolition (司法强拆) goes ahead is something that must be determined by law. Judicial demolition deals with land and housing, and deals with the personal rights of those facing demolition. These are all basic civil rights stipulated in the constitution, and they also fall under the Law of Land Administration and the Property Law. For a low-level demolition ordinance to come along and rock all of these, how can we not say it has overstepped its authority.

Secondly, in terms of actual application, how big is the difference between administrative demolition and removal and judicial demolition and removal? If we had judicial independence and our courts could check administrative power, then judicial demolition and administrative demolition would naturally be different. But our courts certainly are not independent . . . In a word, the courts don’t dare fall afoul of the government, but can only accommodate the government. Therefore, judicial demolition is a superficial change, swapping the broth but not the medicine. Ultimately, what faces demolition will be demolished. . .

The only small note of progress in judicial demolition over administrative demolition is that the court procedures are a bit more normalized, and this will stop some demolitions that are out of bounds. But this progress is virtually insignificant.

Chinese blogger Wu Yue San Ren (五岳散人) expressed his reservations about the draft regulation more caustically on Twitter:

The regulations on demolition passed by the State Council say that stability preservation assessments (维稳评估) [of possible social fallout] must be made before seizures go ahead. Local governments might make their assessment as follows, for example. ‘This village has 500 residents, of which 150 are young and fit. Our city has a 1,000-strong police force, 500 urban management personnel, a 300-strong armed police unit that can be utilized, and we have an overwhelming advantage in terms of weaponry. Aside from that we can put at least 200 men from the criminal underworld out front. Assessment result: stability preservation is not a problem, the demolition can proceed.

2 Comments to “The emperor’s new draft regulations”

  1. jonathan says:

    oops – forget my last comment, or at least the second half of it. i see the regs were published late y’day with immediate effect.

  2. jonathan says:

    david, excellent post. keep it up. whatever force the new legislation might carry will derive largely from public awareness thereof. it will be interesting to see how the finalized regs read, and when they will take effect. sadly we still don’t know that.

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