Will Law Reforms Reduce Forced Home Demolitions?
By Stanley Lubman, The Wall Street Journal, China Real Time Report
In October 2010, thugs hired by a demolition company to destroy a house forcefully entered it and brutally murdered the homeowner. The crime, one of a series of similar violent incidents in recent years, was widely reported and sparked popular outrage. Last week, the State Council published a regulation that would end the power of local governments to order demolition of urban residences and require disputed cases to be decided by courts (report in Chinese).
The change in the law reflects a responsiveness to the public that will be welcomed by many residents, although it remains to be seen whether implementation will be effective. The new regulation is also significant because the public was given an unusual opportunity to comment on it before it was adopted–and because academic law reformers influenced the outcome.
The victim of the 2010 murder in a village outside the city of Taiyuan in Shanxi Province in Northeast China was Meng Fugui, the father of university student Meng Jianwei. The local government had authorized transfer of the house to a real estate developer, but there had been no agreement on the compensation to be paid to the residents for loss of their home and for their relocation. Ten men forced their way into the house, attacked Meng’s father and beat him to death. Meng subsequently attracted nationwide attention by posting an online diary about the forced relocation and his father’s murder.
This recent case, like numerous others that have been reported, illustrates the widespread frequent violation of Chinese landowners’ rights by forced demolitions carried out according to agreements between local governments and developers. Extensive publicity about such violence and mistreatment of residents protesting forced demolitions has fueled social unrest. For example, a column in the China Daily reported how one protester was buried alive for trying to prevent demolition of her house. The column cited several incidents in which protesters set fire to themselves, and told of one city where residents were forced to live on the streets because their compensation was too meager. A recent report points to increased involvement of local governments in demolition activity.
After Meng began posting his comments, including a letter of protest calling for legal protection for farmers, word spread, intensifying interest in a draft regulation already under consideration by the State Council. The State Council, China’s cabinet, which administers China’s ministries and commissions, exercises extensive legislative powers, although only China’s legislative body, the National People’s Congress (NPC), may enact “basic laws.”
Forced demolitions have long provoked concern in the central government and among legal scholars, and on this issue scholars and a key Beijing agency interacted in the legislative process. After one fiery suicide in December 2009, five Beijing University law professors wrote a letter to the Standing Committee of the NPC urging revision of the regulations then in effect, which permitted demolition even if the legal procedures required for expropriation had not been completed.
According to one of the professors, Wang Xixin, an administrative law specialist, after the professors wrote their letter to the State Council, it made public two draft regulations, and the Legislative Affairs Office (LAO) of the State Council then called for public input. Wang has said this “is unprecedented in the history of our country’s administrative regulation and shows legislators’ desire to listen to the public.”
A recent report states that over 100,000 opinions were received on the two drafts and 45 seminars were held for the public, legislators and local governments. The scale of public input on the proposed demolition regulations reflects the gradual increase of public participation in legislative and rule-making processes in recent years (see Jamie P. Horsley’s report, “Public Participation in the People’s Republic: Developing a More Participatory Governance Model in China”).
In September 2010 the LAO called a meeting of experts to discuss draft regulations on expropriation, demolition and payment of compensation for residential buildings on state-owned land. On January 19, 2011, the State Council announced that it had approved “in principle a draft regulation on home demolitions to end forced relocations by governments.” The same report added that forced demolitions ordered by local governments “are widely recognized as sources of power abuse and tragedy.” It also added that the proposed new rule would also require compensation for the required property “to be at least the market price.” The regulation was then published.
Another news report referred to the widely publicized Shanxi case, as well as several cases in which protesting residents set themselves on fire. It also added further detail to the report of the State Council action: “Violence or coercion must not be used to force homeowners to leave. Measures such as illegally cutting water and power supplies are also prohibited.” Further, land developers could not be involved in the demolition and relocation procedures. The local government must be in charge of land expropriation and relocation, although it can authorize non-profit organizations to also be involved.
Land development invariably raises conflicts among affected interests: the developers, the local governments in need of revenue and, of course, the residents whose housing is threatened. (Some homeowners, according to Professor Shen Kui of Beijing University, might have exaggerated ideas about the value of their property and could “abuse their rights to profiteer.”) In addition, the media, academia and the public have opinions as well. Professor Wang applauds the willingness of the State Council to invite public comment on proposed legislation but urges expediting the development of comprehensive legislation on property confiscation both urban and rural, and urges greater public participation in what he calls “the cultivation of common understanding.”
Some criticism of the draft regulation has appeared. Although the new regulation would require that demolition cannot be carried out unless the local court issues a notice permitting demolition, critics argue that since the local courts are dominated by the local Chinese Communist Party (CPC) Committee, the impact of the new requirement is unclear unless local leaders can be made more accountable. A Chinese legal expert writing on the website of Caixin magazine was quoted by a Hong Kong source: “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.”
It is notable that one criticized defect in the new regulation is currently being addressed: The regulation only deals with demolition in cities, where the land is owned by the state (houses are privately owned), but demolition on collectively-owned land has generated many problems. According to the Chinese press, legislators are currently working on modifying the national land management law, which governs collectively owned property.
The recent events discussed here invite speculation because they involve different currents in Chinese society. Social unrest has been considerable, and the President of the Supreme People’s Court recently predicted that in 2011 China’s courts “are expected to face an increasing number of cases involving social conflict.” The leadership is said to be extremely nervous about this perceived threat to its legitimacy and power.
At the same time, legal consciousness is rising among the populace, making challenges to assertions of administrative power more frequent, even while some citizens are also concerned about weakness of Chinese legal institutions. Legal academics add pressure for reform, and the cooperation between the LAO and the law professors on the recent legislation suggests a useful way to enhance the rule of law in order to address some of the social conflicts that arise in the course of the ongoing drive for economic development.