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Confronting Discrimination and Inequality in China

 | 
Errol P. Mendes
, 
Sakunthala Srighanthan

Part one. Discrimination against Rural and Migrant Workers

Chapter Five. Chinese Farmers’ Right of Access to Judicial Relief

An Investigative Report into Forest Land Expropriation Claims by Hebei Farmer Wen Shengcun

Wang Xinan

Texte intégral

INTRODUCTION

1Having played an important role in the founding of New China, farmers are crowned with a noble and impressive political designation and hailed as the pivot of the current regime and a pillar of strength. In reality, however, the political rights accorded to farmers do not correspond with their nobility as portrayed in official ideology. To examine in detail the current state of the various rights of farmers would be an elaborate task, as political rights are broadly defined and their applicability varies. To know the tree by its fruit, the author shall use farmers’ access to judicial relief to illustrate his case. Access to judicial relief under civil rights as provided by a constitution and the law is an important yardstick with which to measure the level of democracy in a country and society. Thus, a farmers right to judicial relief may be read in conjunction with any of his political rights. The level of access to judicial relief is a measure of the basic political right given to farmers, and the legal protection accorded to farmers vis-à-vis people of different social strata.

I. BACKGROUND

2Bazhou is located east of the central plains of Ji County in Hebei Province, and sits in the centre of a triangle formed by Beijing, Tianjin and Baoding. Its temperate continental climate and geographical conditions provides a good habitat for the fast-growing poplar tree, a perennial woody plant. Poplar trees offer commercial value, being used for construction and paper-making, as well as ecological value, being fully grown in one, three or five years. Encouraged by the State to convert plough land to forests, many farmers have sub-contracted wasteland in recent years to cultivate profitable forest trees, such as the fast-growing poplar. In early 2001, the State Planning Commission issued a basic document for planning, number (2001)1888, approving NCPG’s (North China Power Group) construction of a 500 kV high-voltage power transmission and transformation project. By the end of 2002, construction commenced. This project spans across a huge forest long cultivated by farmers. Article 24 of the Regulations on the Protection of Power Facilities provides that

Where any new construction, modification or expansion of power facilities are carried out, and where crops must be damaged, trees or bamboos felled, or buildings or other facilities demolished or moved, the power construction company shall offer a lump-sum compensation as provided by the relevant State regulations.

3Furthermore, Paragraph 1, Article 16 of the Implementation Measures of the Regulations on the Protection of Power Facilities provides that

Where any new construction or project on overhead power transmission lines requires such power lines to pass through forest areas, a ground transmission path shall be created in accordance with relevant power design regulations as provided by the State, and no tree shall be planted on such transmission path. Where trees are felled, the construction company of such power transmission lines shall complete the relevant procedures in accordance with State regulations, provide lump-sum compensation for owners of such felled trees, and enter into agreement with such owners that no trees shall be planted on such transmission path.

4In this case, a substantial number of trees planted by local farmers were felled.

5The compensation criteria for trees to be felled are set out in the following instruments: Article 4 of the Notice on the Relevant Issues on the Collection of the Four Charges for the Expropriation and Encroachment of Forest Land under the Laws, Rules and Regulations issued by the Ministry of Forestry, under document Lin Ce Zi (1991) No. 177; Article 12 of the Measures on the Implementation of the Forest Law of the People’s Republic of China in Hebei Province of the Hebei Forestry Department; and Paragraph 1, Article 4 of the Regulations on the Collection of the Four Charges for the Expropriation and Encroachment of Forest Land issued by the Forestry Department, Finance Department, Price Bureau and the Land Administration Bureau of Hebei Province, under document (1992) Ji Lin Ji Zi No. 111. The compensation criterion is that regardless of the level of maturity of the forest, compensation shall be based on the actual harvest value during the final clearing. In other words, compensation is paid based on the timber value, regardless of whether the matured trees are available for cutting. Based on this criterion, the compensation paid for every fast-growing poplar tree should be approximately RMB 1,000.

6However, NCPG did not pay the required compensation. Instead, it chose the following traditional administrative methods:

7Step 1: NCPG paid a lump sum to and entered into an agreement with the Bazhou municipal government. The agreement stated that the government shall be responsible for felling all the trees involved in the case. Both parties have not disclosed the amount paid by NCPG.

8Step 2: The government will forward the compensation to farmers and supervise the prompt logging of trees. However, in reality, the government’s military forces forcibly felled most trees, and no compensation has been paid.

9Five years have gone by. Most farmers have been busy with shangfang and in seeking relief but have found no resolution. After much encouragement by various judge friends, Wen Shengcun, who was formerly military personnel and had better education and social experience than most farmers, decided to seek judicial relief.

II. WEN SHENGCUN V. NORTH CHINA POWER GROUP AND BEIJING POWER TRANSMISSION AND TRANSFORMATION COMPANY: A CASE OF DISPUTE OVER FOREST TREES1

  • 1 The facts set forth here are based mainly on the various legal documents used during the proceedin (...)
  • 2 The division of jurisdiction for civil cases among Chinese courts is based mainly on the amount cl (...)

10In October 2004, Wen Shengcun, a local farmer, decided to prevent protectionism from pervading the local justice system by taking action against the defendant at the place of the defendant’s principal place of business. Legal suits were instituted at competent courts in Beijing. The case was first registered at the Xuanwu District People’s Court, Beijing Municipality (place of the first defendant’s domicile) and the Fangshan District People’s Court, Beijing Municipality (place of the second defendant’s domicile). In both instances, the courts refused to accept the case either on the grounds that it did not fall within the scope of a civil litigation case, or that the competent court should be located at the place where the subject of litigation is located. Finally, the plaintiff had no choice but to increase the claim amount in order to have the case registered with the First Intermediate People’s Court of Beijing Municipality.2 Shortly after registering the case, the court consulted with the plaintiff and advised him to drop charges in order to avoid affecting the court’s performance appraisal with an increased number of unconcluded cases. The plaintiff had to comply with the court’s request, and re-lodged legal proceedings one month later, at the end of December 2004.

11During the first instance proceedings, the defendant’s attorney spoke of the importance of constructing power plants, and the duty of farmers to comply with the State’s construction requirements. However, he avoided mentioning the duty of compensation for the trees, and advocated that the court should not have accepted the case, and that the government should resolve it. There was no further hearing after the first one, and the court did not make a decision. Finally, Wen indicated to the chief judge that he would have to resort to shangfang by lying at the doorstep of the Supreme People’s Court if no decision was made soon. This was clearly a case of overdue hearing; a hasty first instance decision was made on 22 July 2005. In its written judgment, the court ruled that, even though it was of the opinion that Wen’s legitimate right should be protected, it dismissed Wen’s motion on the grounds that the case is outside the scope of a civil litigation case. The court went further to deliberately distort the implication of a regulation in order to render judgment against Wen.

12The regulation that was deliberately distorted by the First Intermediate People’s Court of Beijing Municipality was the Design and Technical Regulations for 110-500 kV Overhead High-Voltage Power Transmission Lines. The court of first instance pointed out that, ”Upon separate investigation, the Design and Technical Regulations for 110-500 kV Overhead High-Voltage Power Transmission Lines provides that the perpendicular distance between the transmission line and the trees shall be 7 metres” (refer to page 5 of the first instance written judgment). In fact, this provision is not set forth under the Regulations. The relevant provision under the Regulations provides as follows:

16.0.7: Where the power transmission lines pass through a forest, a transmission path must be created. The net width of this transmission path shall not be less than twice the sum of the width of the transmission line and the height of the principal trees in the forest. Individual trees in the vicinity of the transmission path exceeding the height of the principal trees shall be removed.
Under the following circumstances, no transmission path may be created if there is no obstruction to the construction, operation, inspection and repair and maintenance of the power transmission lines:

  1. Where the natural height does not exceed 2 metres.
  2. Where the perpendicular distance between trees (taking into consideration the natural height) is not more than the value as listed under Table 16.0.7.1.

13The court of first instance dismissed the plaintiffs claim on the grounds that “the fast-growing poplar trees planted by Wen Shengcun have not exceeded the perpendicular distance between the power transmission lines and the trees as provided by the relevant State regulations.” Clearly, this was a misinterpretation of the Design and Technical Regulations for 110-500 kV Overhead High-Voltage Power Transmission Lines. The perpendicular distance stated under Article 16.0.7 of the Regulations refers to the distance between the transmission lines and the height of the trees after natural growth, and not the actual distance between the transmission lines and the fast-growing poplar trees as interpreted by the court of first instance. The Explanation of the Provisions under the Design and Technical Regulations for 110-500 kV Overhead High-Voltage Power Transmission Lines, issued by the State Economic and Trade Commission, provides an explicit and authoritative interpretation: the smallest perpendicular distance between the 500 kV transmission lines and the trees refers to the distance between such transmission lines and the trees after natural growth. The Explanation went further to illustrate that the natural height of Poplar trees in the north-east region should be calculated based on 20 metres. Furthermore, the natural height of the fast-growing, Zhonglin-46 poplar trees in this case was greater than 25 metres, and perpendicular distances between these trees and the transmission lines were far less than seven metres. Even if we were to compute using the largest perpendicular distance of 27 metres between the overhead lines from the ground, the perpendicular distance between the transmission lines and the trees was still less than two metres, which meant that these trees had to be cut. Hence, the first instance court’s ruling that, “the trees concerned have not met the statutory requirements for mandatory felling; therefore, they are not trees that must be cut, ” was defective.

Table 1: Perpendicular distance between the transmission line and the trees

Standard Voltage (kV)

110

220

330

500

Perpendicular Distance (m)

4.0

4.5

5.5

7.0

14The fact that the perpendicular distance between the transmission lines and the trees, according to the Regulations, refers to the height of the trees after natural growth instead of the actual height is apparent. Power operation and personal safety would be seriously threatened if felling were only carried out according to the perpendicular distance between the trees’actual height and the transmission lines. This is because when the distance between the high-voltage power lines and the trees reaches or exceeds the safe distance as set forth under the Implementation Measures of the Regulations on the Protection of Power Facilities, electricity will be conducted from the high-voltage cable to the trees. On days of rain or high humidity, trees will become conductors under high voltage, and will pose serious hazards to buildings, equipment, people and underground lines in the vicinity. In particular, when the lines are under a high voltage of 500 kV, there could be casualties and other grave consequences. Therefore, the court of first instance’s interpretation that cutting should be carried out only when the actual height of the trees reaches the statutory height limit is faulty.

15In view of the apparent defect in the first instance ruling, on 8 August 2005 Wen Shengcun appealed to the Supreme People’s Court of the Beijing Municipality. On 19 December 2005 the court made an inconceivable decision to reject Wen’s appeal and to uphold the original decision. It was inconceivable because the written judgment did not comply with the norm. There was no mention of the reason for the plaintiffs appeal, and the reason for the decision was an exact duplication of the first instance judgment. Why was there no mention of the plaintiffs grounds of appeal? The reason was clear: the court of second instance could not provide an explanation of this apparent mistake.

16Based on the principle that the judgment of the second instance is final, the plaintiff should have lost all confidence in seeking relief through judicial channels after the second ruling. However, a friend who is also a judge in Hebei persuaded Wen to try re-registering the case at a local court. On 29 December 2005, Wen instituted legal proceedings at the Bazhou Peoples Court in Hebei Province, demanding that the construction company compensate him for his trees. During the proceedings, the president of the court sought the opinion of a higher court, the Langfang Intermediate Peoples Court. After much effort by the various parties, the city’s intermediate court agreed to Wen’s claim in principle. The collegial panel heard the case several times, and conducted on-site investigations and a judicial audit. The court ruled in favour of Wen, and prepared a written judgment signed by the president in charge. However, just before the written judgment was delivered, the president of the court became aware of the case and instructed that the court cannot rule in favour of Wen. The president of the court feared that other farmers would follow Wen’s example and take legal action. The written judgment, which was signed and sealed by the court, was discarded. As instructed by the president, the collegial panel dismissed the plaintiffs claim on the grounds that the case was out of the scope of civil action. The court gave the following decision:

This court is of the opinion that the “Wuba” 500 kV power transmission and transformation construction project by the defendant, the North China Power Group for the Beijing Power Transmission And Transformation Company, is a construction project approved by the State Development Planning Commission. Hence, land expropriation and encroachment, as well as forest tree compensation involved in the construction thereof is not a case relating to a legal relationship between civil subjects with equal status; therefore, the civil law does not regulate this matter. The court rules that the Plaintiffs motion be dismissed under the provisions of Article 108 of the Civil Procedure Law of the People’s Republic of China.

17Subsequently, Wen appealed to the Langfang Intermediate People’s Court. Wen believed that his case had been affirmed by the rulings of the First Intermediate People’s Court of Beijing Municipality (2005) ZhongMin Chu Zi No. 402 Civil Judgment, and the Supreme People’s Court of Beijing Municipality (2005) Gao Min Zhong Zi No. 1244 Civil Judgment. During hearings by the aforesaid Beijing courts, the defendant claimed that this case was not governed under civil procedures. However, both levels of courts in the Beijing Municipality had studied the case, and were of the following opinion:

Civil procedure refers to property or personal disputes between civil subjects with equal status. These disputes occur between citizens, legal persons or other organizations. Legal action is instituted with the People’s Court for resolution by trial to protect legitimate personal rights. Wen proposed that the power transmission and transformation company and NCPG had not complied with the relevant laws, regulations and rules when the high-voltage power lines passed through his forest during construction. The companies had failed to discuss and enter into an indemnity agreement with Wen, or indemnify Wen. Therefore, they had infringed on his legitimate rights. Demanding compensation under the law is for disputes that arise between subjects of equal status as a result of a property relationship. Wen Shengcuns action meets the criteria for instituting legal proceeding under the Civil Procedure Law, therefore, the suit is within the scope of acceptance for civil lawsuits.

18Thus, the case is within the scope of acceptance for civil lawsuits as determined by the judgment. The first instance decision of the Bazhou People’s Court was in open disregard and violation of the rule of res judicata, and was therefore defective.

19After much effort, the Langfang Intermediate Peoples Court expressed support for Wen in extremely ambiguous language. The court held that the trees planted by Wen, the appellant, had indeed been felled. However, the defendant answered that the compensation criteria and the indemnifying Party were unclear. Thus, the court ruled in accordance with the provisions under Article 108 of the Civil Procedure Law of the People’s Republic of China to quash the ruling under the Bazhou Peoples Court (92006) Ba Min Chu Zi No. 159 Civil Judgment, and remand for retrial by the Bazhou People s Court. At that time, Wen was optimistic and glimpsed hope. To him, the Bazhou Intermediate People’s Court was still the higher level court, and it was not possible that a superior court’s instruction would be ignored. However, he could not have imagined that the true leader of a primary court is not the court of a higher level, but the Party commission and government at the same level. After the case was remanded for retrial, the Bazhou court again dismissed the motion when it could no longer delay judgment. The court held that

The construction process had not caused the plaintiff to suffer any injury. The plaintiffs trees are felled by the municipal government department according to instructions from a superior level to clear obstructing trees within the protection zone of the overhead power transmission lines; hence, it is not within the scope of acceptance for civil lawsuits. The court had worked with the relevant government departments during the court proceedings. However, complete resolution was not possible. Therefore, the plaintiffs motion is dismissed.

20Wen appealed, believing that the first instance court’s findings had no legal grounds, nor were they based on facts. In reality, the duty of compensation for trees is required by law, and is not transferred based on whether or not the trees have been felled, or who performed the felling. The reasons are as follows: according to the provisions under Article 24 of the Regulations on the Protection of Power Facilities, and Paragraph 1, Article 16 of the Implementation Measures of the Regulations on the Protection of Power Facilities, first, the indemnifying subject responsible for compensating for the trees is the construction company of the power transmission lines. Hence, NCPG is under the duty to indemnify. Second, the claimant of the compensation is the owner of the forest trees. Hence, Wen is entitled to demand indemnity from the defendant. Third, the conditions precedent for tree compensation are: (1) timing of indemnity: “...when the new overhead power transmission lines construction or project must pass through the forest area,” should refer to the period during construction; (2) scope of indemnity: “trees that have to be felled,” means that compensation has to be paid for trees within the power transmission lines protection zone that have to be cut, and not payment after the actual felling of the trees. During the previous hearings, NCPG recognized that the 1951 fast-growing Zhonglin-46 poplar trees located within the overhead transmission line protection zone were endangering the power facilities and power-supply and should be removed. Hence, NCPG should discharge its duty of indemnity before the actual felling of trees. The performance of this duty has no connection with when the trees are felled and who fells the trees. Furious with this reasoning, Wen said,

The court has pointed out that trees are chopped by the government under the orders of a higher authority. However, there was no mention of government of which level or on what basis. A hasty decision was made without making clear the most fundamental facts. Where is judicial justice and authority? Furthermore, can the so-called instructions be the basis on which the Peoples court applies laws?

21Despite the evident facts, the Langfang Intermediate People’s Court refused to deliver judgment even up to the day this article was written. Four years have passed, and the case is still being tried.

III. KEY ISSUES PREVENTING FARMERS’ACCESS TO JUDICIAL RELIEF

22The difficulties which Wen Shengcun encountered when he attempted to seek judicial relief for his legitimate personal rights exemplify the many country-specific problems faced by farmers seeking judicial relief:

23(1) The lack of a qualified and independent court, and the strong government powers behind the justice system. A truly qualified and independent court is the prerequisite that guarantees the right to judicial relief. Wen’s unsuccessful suits with the four courts in Beijing and Bazhou are testimonies to the dominance of administrative powers over the courts, and of the courts’ lack of capacity in independent decision-making. As a large state-owned company with quasi-government powers, the defendant had a huge influence over the proceedings in both the Beijing peoples courts, as opposed to a smalltime farmer. According to unwritten rules, and in an era where judicial supervision is ineffective, it is normal that the powerful defendant was able to exert influence over the judge. When the case was tried in Hebei, the government’s influence was even more apparent. To avoid government intervention, the plaintiff sent representatives and personally met with the deputy mayor in charge. The deputy mayor indicated that he would not interfere with the case. After this the superior court demanded that the trial court render a fair hearing; the chief judge and the deputy president in charge had even completed preparation of the written judgment. However, a single telephone call from a government official had caused the court’s president to order withdrawal of the prepared judgment. The president even voluntarily initiated discussions within the judicial committee on how to implement the municipal governments opinions, and rule against the plaintiff. Evidently, the local Party committees and governments exert a far greater influence over the local courts than courts of a higher level.

24(2) Farmers fear of lawsuits and lack of confidence in the justice system. There were at least a dozen households in Bazhou’s Xinzhang Village, the place where Wen resides, that were in the same predicament. Imagine the number of trees owned by farmers all along the 200 kilometre stretch of 500 kV high-voltage power transmission lines which were felled! However, Wen was the only one to institute legal proceedings. Most of the other farmers were either ignorant of the compensation criteria for felling trees, or were otherwise unaware of the means for resolution. Farmers would immediately think of their low social status that makes them powerless to bargain with the government. Farmers cannot differentiate between the judicial system and the government. They do not expect to claim their rights, thinking that both are in fact one entity.

25Another reason is that even though judicial relief is sought, the preference is for resolution by the authorities. Traditional, folk theatrical writings and drama stories have formed the deep-rooted perception that the administration and judiciary are one and the same. Thus, farmers would not resort to judicial means to seek relief under normal circumstances. On the contrary, they would have abnormal expectations: they would hope for a fair official to come along and carry out justice. Shangfang becomes a preferred avenue as a result. Hearsay on and personal experiences in judicial practices have also gradually eroded people’s confidence in the justice system. Most conclude that “no one uses the judicial system.” The People’s Supreme Court’s recent proposal of gradual withdrawal of the people’s courts from towns and townships will distance justice from farmers even more. Farmers will no longer meet judges at the marketplace, and judges who have become more distant may seem even more mysterious and terrifying to farmers. Eventually, farmers will find it difficult to establish necessary trust and expectation in the justice system.

26(3) Despite seeking judicial relief farmers prefer shangfang. Shangfang has always been the preferred and natural choice of farmers when seeking support for their rights. This is because of a desire for “clean and upright officials.” Another reason is the continued dominance of the system of the “rule of man” (renzhi) versus the “rule of law” (fazhi). In recent years, collective shangfang was employed in nearly all cases concerning farmers’ rights. In this case, Wen also used shangfang, having visited the various government and power departments, as well as the construction company of the high-voltage power transmission lines. Because the departments shirked responsibility and refused to accept Wen’s petition, he had no alternative but to eventually turn to judicial channels. This exemplifies the phenomenon that judicial relief is often the last resort for the agricultural community, after exhausting all other avenues. What is worth noting is that most farmers taking legal action do not look directly to the justice department for an ideal judgment. Rather, the judicial process is a means which they use to compel the relevant government department to grant them an audience in order to resolve their problems. While they distrust the judicial system, they do not believe entirely in shangfang, aggrieved persons will usually grab any resolution method that comes their way. Nonetheless, shangfang lacks the explicit regulations set forth under the procedure law. Furthermore, shangfang is a more arduous process, as it necessitates a struggle to avoid detention for obstruction of social safety and requires the toleration of an extended wait and the repeated avoidance of responsibilities by the authorities. Wen has been busy running about between the municipal government, the provincial government, and the State Council’s complaint offices, but his efforts have thus far yet to yield any encouraging results.

27(4) High litigation costs and deficient legal services in towns and townships. Total litigation and verification costs chalked by the four court trials in Wen’s case exceeded RMB 50,000. This can only be afforded by a “farmer” like Wen, who also runs a business. Farmers without savings, or those who rely on loans from friends and relatives, cannot afford to sue. Rules like payment postponement, reduction and exemption as provided under the Regulations on Litigation Charges of the Peoples Courts seem unlikely to ever benefit farmers. One of the reasons for these rules is that courts derive their major source of income from collecting litigation charges, and are reluctant to run a money-losing business. The other reason is the idea that if the court offers reduction or exemption of litigation charges for farmers who “make trouble with the government,” they would then be encouraging more trouble. Hence, litigation cost is a major obstacle for cases involving farmers’ suits against governments or quasi-governmental authorities. To these farmers, justice is expensive.

28Let us look at the legal services market in the rural areas. The level of education within the agricultural community is generally low; in other words, the agricultural community should rely even more than average on assistance by the legal professionals during litigation. However, what we see in reality is otherwise: it is rare to see a farmer accompanied by a lawyer. At present, legal services in rural areas are mainly offered by town and township legal service offices under the justice bureau. Personnel who lack professional expertise staff these offices, and a substantial proportion of personnel are civil servants who are afraid to speak up for the farmers. Although it is difficult to find lawyers in towns and townships, finding a lawyer in a county city is not difficult. The difficulty, however, lies with the meagre number of farmers who can afford legal fees. Perhaps a couple of thousand yuan to hire a lawyer may seem unimaginably cheap to us. Imagine, however, how many kilograms of grain a farmer would have to sell to raise that money!

IV. THREE MAIN CAUSES AFFECTING FARMERS’ACCESS TO JUDICIAL RELIEF

(1) A Justice System Driven by Political Correctness

29After having seen and experienced Chinese judicial practice for more than a decade, the author believes that there are fundamentals that must be understood in order to have an accurate view of Chinas judicial system. Some important questions include: what is the primary objective of China’s justice system? After receiving a case, what are a judge’s goals and priorities?

30This is a question that most have taken for granted and neglected. Anyone will say that the primary goal of a judicial system is to uphold justice, because it is a fundamental good. However, locals might give the answer that it is to be politically correct. There is an enduring institutional context and theoretical foundation behind this answer. The author provides the following empirical analysis.

31Firstly, Chinese judicial organs are set up in exactly the same manner as administrative regions. The only exceptions are the railway transportation court, maritime court and military court. There is the Supreme People’s Court at the national level, provincial people’s high courts, and prefecture or city intermediate people’s courts, the courts and administrative organs of the same level have exactly the same jurisdiction in the region; both are the highest authority at the Party level, have the same political goals and missions, and need to adjudicate based on the local Party committee’s central task. In other words, they must fulfil their role as effective instruments for achieving the goals of the local Party committee. What then is the goal of the local Party committee? Since the Third Plenary Session of the eleventh Central Committee of the Communist Party of China in 1978, the key objectives of the various levels of Party committees may be divided into two categories: (1) the maintenance of social stability to ensure the CPC’s continued rule; and (2) the aggressive development of the economy. For a long time, the protection of civil rights, especially political rights, has not been on the agenda. In fact, the concept of human rights has not been acknowledged. Despite talk of human rights protection at the CPC’s highest levels, it remains a means of political mobilization and propaganda, devoid of concrete protection measures. This is because the criteria for performance appraisal of government and Party officials remain social stability and economic development. Human rights protection is not evaluated. In fact, many official actions sacrifice civil rights for social development and stability. One of the most striking and extreme phenomena is the forced removal and deprivation of farmers’ land rights. Under these circumstances, instead of providing real judicial relief for civil rights, the main duties of judicial organs is to maintain local social stability and economic development.

32Secondly, the leadership system for Chinese judicial organs is organized such that external affairs are led by the Party committee of the same level, whereas internal affairs are governed by the respective courts Party leadership group. The Party commission demonstrates its leadership by having the power to appoint and release (renmianquan) personnel. Application of the Organic Law of the National People’s Congress or the Organic Law of the People’s Courts is not as simple as might seem. Within the courts, the Party committees decision prevails. To begin with, the president and vice president of the court are recommended by the Party committee of the same level. This recommendation is reviewed by the Party committee’s organizing department and submitted to the People’s Congress of the same level, or its standing committee, for consideration. An important issue here is that the appointment of the highest leadership within the court system is not governed by the Judges Law. Many presidents of provincial-level or higher courts were heads of the Party committee or administrative departments prior to their transfer; they knew little about the law, despite trying very hard to learn the ropes after their appointment. They have many years of political experience in the Party committee or administrative organ, and have cultivated political acumen. Additionally, courts appointing personnel who are judges or a higher level must first report to the Party committee’s organizing department at the same level. The Party’s organizing department must approve of the candidate before submission for appointment by the People’s Congress or its standing committee of the same level. This way, a judge whose performance is found unsatisfactory by the Party’s relevant department will find it difficult to get a promotion. Internally, the court is still run by the Party leadership group. Under normal circumstances, the president of a court is the secretary of the Party leadership group of the Court. In fact, the Party leadership group ranks high in the hierarchy. The full name of the Party leadership group is the Party Leadership Group of the People’s Court of XX (or city, county) of the Communist Party of China XX Provincial (or city, county) Committee. Within the CPC, it must be governed by the provincial (or city, county) Party committee. Within the court, the Party leadership group ranks higher than the president, vice president and the judicial committee. Any appointment or dismissal of any judge must be first approved by the court’s Party leadership group. Any vice president who is not a member of the Party leadership group (for example, a vice president who is either a member of the Democratic Party or not Party-affiliated) will have the lowest status within the court’s hierarchy; perhaps, even lower than the head of the political department or office administrator who is a member of the Party leadership group.

33Thirdly, the Chinese justice system is not independent of Party politics; this relates to ideology education in the judicial system. On the contrary, there is a strong emphasis on educating Party spirit. Within every court of every level, there is a Political Department (or “Political Work Section” for primary courts), which is not stated under the Organic Law of the People’s Courts. The department conducts political education for existing judges, monitors their orientations, and gives out reward or punishments based on their political performance. Each year, the court system devotes a lengthy period to conducting political education. The goals are to enable learning of the prevailing Party policies, and to enhance education of Party spirit through politically driven activities, such as restructuring practices and disciplines. Diligent participation in these activities by every judge is mandatory, whether or not he or she is a member of the CPC. They must also report their political stance and state their political opinions. Most judges are CPC members. Those who are not will still be obliged to obey the orders of the Party leaders during adjudication, and to carry out the Party’s instructions. In this respect, the presidents of the courts of various levels were candid during reporting at the Peoples Congress, admitting that adjudication must be based on the Party’s central tasks. Most judges, especially those in leadership positions in the courts, view being politically correct as more advantageous than being legally correct. Many technicalities are involved in the administration of justice. A legal mistake is at worst a matter of deficient knowledge or inadequate professional performance; a political mistake involves a judge’s standing, and directly affects his future in politics and in his career. Having undergone perpetual political brainwashing, judges are extremely careful with maintaining their political correctness during adjudication. Another serious outcome of unceasing political education is judges’ failure to recognize the importance of an independent judicial system, and its value in democratic rule. Instead, they emphasize their political mission. Many young judges who worked in the court system for a period after graduation experience the same thing. The damage to Chinas justice system is subtle and far-reaching. We must decide if the courts should intensify political education like Party organs.

34We can see that China’s unique political structure puts courts in an inferior position to Party leaders. Since achievement of political goals ranks above all else, political correctness will shape the adjudication process of judges. The key is to understand the definition of “political correctness” at work here. The measurement of “political correctness” is broad and ambiguous; it generally means staying consistent with the Party’s policies. If all policies at every level of the Party committees were to respect farmers’ rights, then political correctness as a criterion for justice would not disadvantage judicial relief for farmers. The problem is that a court or judge usually complies with the policies of the Party committee immediately above it. Yet, policies respecting farmers’ rights are often inconsistent with the central policies of the CPC; these policies focus more on ensuring local stability and economic development, and delivering quick political performance during the local leader’s short term in office. For a long time, the best way to deliver swift performance was to initiate major construction projects, such as large development zones of various titles, without considering local practicalities. These kinds of construction projects inevitably involve the expropriation of farmers’ lands and infringement of their land rights. What will judges do when farmers seek judicial relief? No doubt, the primary consideration is political correctness – which means: look at the big picture and serve the bosses’ interests. Judges will leverage every means and measure in procedure law, as exemplified in the case of Wen v. NCPG; or they will refuse to accept the case; or they will drag the case on for several years under the pretext of insufficient standing in order to consume the plaintiff’s energy and confidence in the action. When judges can no longer delay the case, they would rather commit a legal violation and miscarriage of justice than make a political mistake. Of course, we could say that the judges have their hands tied to a certain extent. Chinese judges are not protected under any employment policy. Where the local government dictates personnel movements and financial support, the future of the court president or judge who does not cooperate in his judicial practice will be endangered. When a party to an action is an ordinary farmer and his counterparty represents the government’s interests, the court will usually take the government’s side. Apart from the personnel and financial reasons mentioned previously, judges subconsciously put themselves in the same rank as government officials. They believe that they belong to the same bureaucratic level. They also have to take into consideration that certain government officials may become the key leaders of their court, or the immediate superiors of their relatives. Protecting or siding with the government may be beneficial for judges. In addition, where judges must first consider political demands, taking the initiative to safeguard the government’s interest, or to resolve the government’s difficulties and minimize trouble are important measures of a judge’s political reliability. Therefore, any rational judge will know which choice is most beneficial. Farmers will almost always be put in an extremely unfavourable position during an action.

35The fact that political correctness is the primary consideration in the justice system seriously prejudices farmers’ rights. The root of this problem lies fundamentally with the absence of political rights for farmers. Where the courts are completely politicized locally, the governing Party, the government, and the judiciary share the same political mission despite a division of powers. As a result, a single group or individual may rule over the court. Thus, when a farmer seeks justice against the government to safeguard his legitimate rights, the role of the justice system may not be one that protects farmers’ rights. Instead, the common political mission is the guiding tenet, and under the leadership of a group or an individual, judges work with the administrative departments to stabilize the situation. Farmers’ interests and the principles of equity and justice intrinsic to an independent judicial system are sacrificed. Hence, the key to resolving injustice in Chinas judicial system does not lie with the reform of the technical rules of operation in the justice system, or the improvement or revision of the procedure law. It is about the power structure and division between the central and local governments, the administrative and judicial organs, and the governing Party. In recent years, many legal academicians and judicial practitioners have taken actions to mitigate injustice in the judicial system. Major amendments have been carried out in the various procedure laws. Yet little improvement has been seen in judicial reform after more than a decade. Corruption in the judicial system is still prevalent. The only apparent change is the increasingly modern, luxurious and imposing offices of the judicial organs. This is mainly because no one places any hopes on constitutional reform; there is a lack of passion and diligence in this regard. It is true that constitutional reform may require the efforts of a few generations. However, China’s academics and policy and legal practitioners should look further, for the benefit of the country and the nation, by undertaking this mission and responsibility that could beget generations of peace, and work to eradicate these fundamental constitutional problems. If the judiciary can be free from local politics by changing the constitutional structure so that justice can be truly independent, then farmers’ rights will have found a real linchpin – the law. When farmers’ rights are effectively protected under the law, farmers will no longer need to form agricultural associations as proposed by many scholars. In a truly democratic country, the custodian of rights is none other than just laws and fair courts.

(2) Corrupt and Imperious Justice System

36The other reason why farmers are deprived of access to judicial relief is because of general depravity within the judiciary. The seriousness of corruption far exceeds imagination; it must be experienced to be believed. Judges who take advantage of their powers of office to serve their own self-interest deliver fatal blows to farmers’ judicial relief. There are two aspects to judges’ self-interest: material benefits, and favours. General poverty and low social status prevent farmers from bribing or exchanging favours. Accused parties in cases involving farmers’ rights are either governments or large corporations with material wealth or social influence that farmers cannot match. Even Wen, the plaintiff of the case previously mentioned, is no match for the municipal government, the power supply bureau and large state-owned monopolies like the NCPG. Judges’ pursuit of self-interest through their powers of office is inevitable where the Chinese bureaucracy is generally corrupt. Most cases of judicial corruption do not involve the acceptance of monetary or material gains, but involve relationships instead. Many see the basis of this problem on the use of relationships as a Chinese social tradition. However, to say that this social tradition interferes with judges’ actions is inaccurate. Relationships and social dealings exist in any society, and decisions are usually taken with relationships in mind. Why then do Chinese judges put a greater emphasis on relationships? It is not because they are more sentimental; rather, the motive for favour in any case is self-interest and benefits. When a judge takes into account personal relationships in a case he is not driven by pure friendship, but by an expectation of the exchange of favours, for advancement of his political career, or for the sake of his relatives. This begs the question of why judges are exceptionally benevolent to authority and especially heartless to farmers? The answer is because the judge cannot expect any exchange of favours if he bestows kindness on farmers. Any “relationship” is, therefore, intrinsically selfish. Never-ending personal desires must be curbed by an external system because the self-discipline of judges is unreliable.

37What are the supervision mechanisms for Chinese judges? First, there is opposition by the Peoples Procuratorate and adjudication supervision by it or by a superior People s Court; second, disciplinary supervision by the ruling Party is available; and third, there is the “leading case review and approval system” within the various segments of the courts internal process. Despite numerous supervision mechanisms, they provide little value in reality because they are, by nature, intra-system mechanisms that fail to offer real supervision. Where the police, the Procuratorate and the court are integrated, the Procuratorate and the court are essentially partners, not adversaries, that serve a common goal. The Party’s discipline supervision, the court’s internal Party leadership group, or the Party’s discipline supervision department of a higher level, are but supervisors of their own compatriots within a bureaucracy. The same applies to supervision within the court system. The system is further stymied by complex private relationships within specific administrative regions; the supervisors and the supervised being either former classmates or friends.

38What China lacks is a truly effective external supervision mechanism – public watchdogs. Public opinion can only become a watchdog with the freedom of the press. Freedom of the press guarantees freedom of speech, which in turn provides an effective channel for the expression of public grievances. Cases involving the protection of farmers’ rights usually involve complex power and personal relationships that affect or even influence justice. The supervisor and the supervised in a court, which is almost completely shaped by local politics, usually stand on the same platform in terms of their interests; both are players within the local bureaucracy. Where the nature of the case is a battle between farmers and the local bureaucracy, we cannot expect the multiple judicial supervisory mechanisms to be of any benefit. That being said, most farmers tend to choose shangfang, bypassing immediate leadership to go to a higher authority and hoping to bring their problem to the notice of a higher level within the bureaucracy. Nonetheless, the Letters and Visits system (“Xinfang”) is increasingly ineffective. Local governments are cautious of any complainant, striking back or retaliating against petitioners, as well as the corrupt and inefficient Xinfang system. The higher-level leaders cannot hear the cries of farmers. Therefore, we can only rely on public opinion; yet, to rely on public opinion entails a long process under the current political system. We do not see much hope for farmers with existing concerns.

39Another important reason that contributes to the general fear of litigation among farmers is the imperious justice system. As an avenue to resolve social conflicts, justice should be a platform for civilized dialogue. Yet the contrary is true; the judicial system in China is imbued with a perplexing air of tyranny, which is far worse than the government’s dominance. One wonders how a genteel graduate from law school could metamorphose into an unreasonable judge within a few years. The author believes that the key lies in the exceptional powers of judges and their lack of supervision. A sense of superiority will invariably emerge when judges meet litigants who are frustrated farmers and who have no power or influence. The judge could openly choose to reject an application for action, or deny a person’s right to speak in court, or even mock, ridicule or berate anyone in court. When the author was working at the primary courts ten years ago, the court system had placed “Difficult Entry, Unfriendly Face” (Men Nanjin, Lian Nankan) as the priority for reform. This issue was discussed in many meetings. More than a decade later, when the author encountered judges as a lawyer, the same feeling persists. No change has occurred, in spite of the courts being at a higher level or the fact that judges are well educated. The unpleasant attitude of judges cannot be corrected by a supervisory mechanism. Bad attitude does not constitute any violation of the law. Hence, it is a question of improving the cultivation of judges. Besides being constrained by the living and work environment, personal cultivation is also indicative of general social humanity. With low pay, stress from a heavy workload and malpractice, many judges feel a sense of defeat. This could contribute to their unreasonable attitude at work. Most farmers in China have been living in small and confined regions for generations. Poor education and insulation from the outside world make them extremely fearful of the external world. Imperious judges erode farmers’ confidence in the judicial system, and instil fear. This prevents farmers from coping with a legal suit, and some may even go as far as withdrawing legal action or resorting to extreme means to fight back at the justice system or the government. Thus, insignificant as it may seem, the attitude of judges has considerable impact on farmers’ access to judicial relief.

(3) Legal Services Are Beyond Farmers’ Reach

40Farmers are generally poorly educated, and many have no legal knowledge. On the other hand, justice is a highly professional sector, and farmers seeking judicial relief will require professional legal services more than anything else. Lawyers are the providers of this service. As of the end of 2007, there are more than 200,000 in China, a sizable team indeed. However, farmers’ cases involving litigation seldom receive effective legal assistance.

41There are two main reasons why lawyers are reluctant to provide legal help to farmers: one reason is the difficulty in collecting fees; and the other reason is the apprehension of government retaliation. Farmers are poor and are unable to afford high legal costs. Therefore, able lawyers who have good client sources will not want to represent farmers. This is not surprising since we live in a market economy; lawyers are legal service providers who are driven by profit and are not protectors of justice. This should have little impact on farmers, however, as cases involving farmers’ rights do not entail a complex application of the law. Lawyers with average ability would suffice. In many cities, there are many new lawyers who pass the annual bar examination and are just entering the profession; they have little income and do not have a steady clientele. These lawyers are ideal candidates to take on cases involving the protection of human rights. However, even these lawyers generally refrain from accepting such cases because they fear government retaliation. New lawyers who have little experience work within a restricted region, usually in the city in which they reside. Thus, they may be placed under undue pressure by the local judicial administrative department. They may face retaliation by the relevant government department if they represent farmers in a suit against the government. In China, it may appear that the lawyers’ association regulates the practice of lawyers; in truth, the association is an agent of the judicial administrative department and must carry out the orders of the department. Furthermore, the judicial administrative department is part of the same level of government. These are the practical circumstances that prevent farmers from appointing local attorneys. Therefore, in many high-profile cases involving the protection of farmers’ rights, many attorneys are from a different city, especially from major cities like Beijing, Shanghai, Guangzhou and Wuhan. This problem is resolved to some extent by the fact that lawyers are regulated by the judicial administrative department at the location where they are registered, and the fact that there is no restriction as to where lawyers practice. However, recent events have shown that the judicial administrative department of a lawyer’s place of registration has restricted him or her from representing farmers’ rights in other cities. The judicial administrative department is now given the important responsibility of maintaining social stability. To fulfil its political mission, the judicial administrative department disregards any violation of the Lawyers’ Law, the department openly interferes with lawful professional behaviour. In general, in cases where farmers’ rights are involved, lawyers refrain from accepting these cases either for financial reasons, or for fear of retaliation.

42In China’s judicial practice, the subtle relationship between judges and lawyers does, to some extent, affect the legal help available to farmers. Although judges and lawyers clearly play different roles and have different duties, both are persons of the legal fraternity, and should maintain a spirit of mutual respect and professional cooperation. However, in most cases, the relationship between the judge and the lawyer is not of cooperation for personal interests, but of professional rivalry. In cases where the judge maintains an extremely close relationship with certain lawyers in private, these lawyers will become the agent and executor of bribery for the judge. Thus, how a case should be handled has been privately arranged in advanced. The lawyer representing the counterparty becomes an adversary to the judge, who would employ tyrannous means to restrict or deprive a party’s rights. Hence, we cannot attribute the entire helpless situation to a corrupt judicial system. In fact, the entire legal profession, including lawyers, are depraved. For example, when most lawyers become aware that a specific judge is handling his case, his key tasks are not to gather evidence or to prepare the case from a legal perspective. Instead, he would mobilize all his resources to get in touch with the judge and bribe the judge with favours and material benefits. A case will not be given a fair trial if the relationship with the judge is not well-established in advance. Indeed, this seems to be an unspoken rule. Some say that great lawyers in China are more socialites than legal experts, whose social activities are mainly to build good relationships with judges and to promptly offer bribes to win cases. With the entire legal fraternity depraved, farmers will find difficulty obtaining legal assistance. On the one hand, farmers, being vulnerable parties in action, have no financial means to feed the corrupt party; on the other hand, the system does not encourage honourable and upright lawyers who work to protect farmers’ rights.

CONCLUSION: THE PROPOSAL TO ESTABLISH NON-GOVERNMENTAL ANTICORRUPTION ORGANIZATIONS

43For more than four years, Wen’s case has been tried five times in four courts, in Beijing and Langfang, Hebei Province. We do not see any possibility of resolution by law. As this article was being written, there was news that the forest belonging to a farmer and adjoining Wen’s land had been subject to forced felling by government-led police after a battle of many years. In the case illustrated here, judicial relief failed completely, whether the Beijing courts with sound professional knowledge, or Hebei judges, who are simple and kind, tried it. The grounds for dismissal may differ, but the outcome is identical. This illustrates that farmers receive basically no right to judicial relief in China today, especially when government’s interests are involved. The State’s fundamental political system, the way in which the CPC rules, the personnel and financial systems, the organizational structure of the People’s courts, and the systems of education and official ideology are the reasons why the judicial system is shaped completely by local politics. The right to judicial relief is further prejudiced by rampant judicial corruption and tyranny and the lack of political rights and financial means of farmers. In order to change the situation, we need to first change the way that the CPC rules. Courts must be freed from absolute command over their personnel and the financial and material deployment of the court by the local Party commission. These changes are required so that the judicial system may disentangle itself from the control of the Party commission and government within the regions of its jurisdiction. Qualification and independence of the judicial system must be set in place in order to change the present situation.

44Reform and eradication of abuse at the political level is a long, gradual and tedious process. However, a party who has suffered under a corrupt and unfair justice system requires expedient remedy. Therefore, we need to explore a “quick fix” under the current political system; one that exerts a force of influence over the judiciary in order to shape a just judicial system. The author calls for the formation of a non-governmental anticorruption organization as soon as possible. This organization should have a membership comprised of academics, journalists, lawyers and other relevant persons who handle complaints. The justice system would, under such an organization, be subject to public scrutiny. The media could be used as a vehicle to censure the court or judge in the event that the judiciary is found to be corrupt or unjust. Because the Constitution provides citizens the right to criticize and provide recommendations to State organs or to its personnel, to complain of judicial injustice or judicial corruption does not constitute a violation of the law. This organization will allow academics to implement their proposals; journalists to represent the public voice; and lawyers to mediate, understand and handle cases. Supervision will be the objective. As a force formed of the general public, courts and judges handling cases will not be able to retaliate. With convenient and fast internet access, and with governments and courts being wary of their reputations, this organization will be an effective force that prohibits judicial tyranny, injustice and corruption. It will also increase the awareness of vulnerable groups, promote observation of the law by government departments, and promote the rule of law in general. Last year’s “Nail Household” (“Dingzi Hu”) case in Chongqing involving forced removal revealed that public watchdogs can play a significant role in promoting judicial justice. If this organization were to materialize, the public would be certain to line up behind it and support it.

Notes

1 The facts set forth here are based mainly on the various legal documents used during the proceedings. Some facts are as stated by the parties concerned. The author does not guarantee them to be absolutely true and objective.

2 The division of jurisdiction for civil cases among Chinese courts is based mainly on the amount claimed. Thus, if the plaintiff deliberately makes a larger claim amount, the case may be under the jurisdiction of the higher People’s Court.

Auteur

Graduated from the Law School of Peking University in 2005 with a Master’s of International Law. Wang has substantial working experience in local court and government. He is presently the managing partner of the Guangda Law Firm in Beijing

© Les Presses de l’Université d’Ottawa | University of Ottawa Press, 2009

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