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IV. EXPERTS DEMAND REFORM: THE STATE’S RESPONSE

Chinese legal and policy experts have made a number of recommendations for reforms to address the abuses detailed here. Evicted tenants and their advocates have also made recommendations for reform. The Chinese state has itself been unusually prolific on the subject of demolition and eviction, with several state agencies expressing concern, issuing circulars, and promising reforms.

Human Rights Watch’s recommendations to the Chinese government for policy change draw on recommendations by Chinese legal experts and activists, in the context of the international standards that China has committed to uphold. While the state’s promises of legal reform are encouraging, the tendency appears to be toward reform of the letter of the law without addressing crucial problems of implementation. China’s arbitration and judicial systems must be made to function better in order to realize the state’s promises.

Much of the demolition and eviction underway in Beijing is related to China’s preparations for the 2008 Olympics Games. As the Games approach, forced evictions will be under increasingly close scrutiny by the international community.

Criticism by Chinese legal experts

Much debate, at the grassroots level and in senior levels of government, has circled around China’s constitution and the degree to which it does or should protect property rights. In particular, critics have pointed to article 10, which addresses reallocation of property rights; article 13, which protects the rights of individuals to income, savings, residence, and inheritance rights; and article 39, which prohibits illegal search or entry. This popular movement ultimately has succeeded in pressing senior officials to promise to amend the constitution.

One remarkable effort to strengthen the constitution was led by retired professor Liu Jincheng in Hangzhou, himself a victim of forced evacuation. Liu organized 116 residents to sign a petition calling on Beijing officials to investigate conflicts between the constitution and Hangzhou’s demolition regulations.¹⁰⁹ On March 7, 2003, he led a small group of Hangzhou residents in writing phrases such as “protecting constitutional law is everyone’s responsibility” on white overcoats. Wearing the overcoats, they walked to the local government compound, where two major meetings were convening. At the government compound, officials reportedly told Liu, “You may not wear this kind of clothing to petition.” Liu responded, “We are not petitioning, we’re promulgating the constitution.” Liu was subsequently arrested and remains embroiled in a series of lawsuits in Hangzhou courts.¹¹⁰ Other Chinese experts have raised procedural concerns about demolition regulations, arguing that they breach the constitution, the Legislation Law, the Civil Law and the Contract Law.¹¹¹

Promises of reform

In response to the wave of protests and calls for change by legal experts, the Chinese government issued a flurry of circulars and statements expressing concern and promising reform. While these are generally positive signals, the proposed reforms fail to address many of the key problems at stake.

First and most significantly, in December 2003, the National People’s Congress Standing Committee approved draft constitutional amendments for consideration by the National People’s Congress in March 2004, including an amendment to article 13 to bolster existing language protecting individual property rights.¹¹² This marks a success for the popular constitutional reform movement, and sets a positive precedent in general for Chinese movements for social change. It is an indication of the growing desire of many within China to move toward a system that respects the rule of law. As symbolism, the new amendment also signals a degree of government concern about the problems of evicted tenants.¹¹³

However, since Chinese constitutional law is not usually judiciable without implementing legislation, constitutional reforms will be of little immediate value for evicted residents. One Hangzhou official told Liu Jincheng that China’s constitution was simply “a set of principles,” while local regulations are “concrete.”¹¹⁴ Thus, constitutional change will not in and of itself result in actual reform. But as one foreign expert on Chinese rural politics observed, “The first step is to have broad pronouncements on a grand scale. There will be no direct impact, but it signals a direction…. Constitutional reform will change the process because it creates a greater political space for proponents [of legal reform].”¹¹⁵

Second, on December 9, 2003, the State Council issued a notable circular on land requisition in rural areas that criticized the use of force in land expropriation and that criticized the state’s participation in expropriation for commercial use. Among its conclusions, the State Council said, “We must establish a hearing system [to determine compensation standards] as well as a judicial and arbitrary [sic, probably “arbitration”] system for land requisition disputes.”¹¹⁶ On December 30, the national Ministry of Construction issued new regulations on administrative rulings that permit forced eviction. According to the new regulations, Demolition and Eviction Management departments may hold hearings before forced evictions are approved.¹¹⁷

However, as an editorial in the New City argued, given widespread conflicts of interest, these new rules will be ineffectual unless the entire arbitration process is taken out of the hands of agencies with a conflict of interest, such as most municipal demolition and eviction departments, and put in the hands of some more neutral third party.¹¹⁸

Third, the many reports of violent incidents in the process of forced evictions has led the government to issue statements condemning excesses in the implementation of forced eviction. On September 18, 2003, an official at the national Ministry of Construction warned work units against violating demolition and eviction laws and policies.¹¹⁹ On September 30, Beijing’s Department of Land Management issued a circular calling for “civilized” demolition and eviction, and published a telephone hotline number that residents could call to file complaints.¹²⁰ On January 5, 2004, the national Ministry of Construction announced that residents should be given fifteen days’ notice before forced eviction.¹²¹

There has also been at least one case where construction workers were held liable for a suicide protest. On November 7, Beijing municipal court held a government work unit responsible for the suicide of a resident during construction near his home. The man drank poison in front of construction workers to protest the construction, and instead of calling for medical help, the workers simply walked away and left him. The court found that the construction was undertaken without the proper permits and that construction workers had failed to attempt to save the man. The court charged the work unit to pay compensation to the family, including the cost of his funeral.¹²²

While all these are steps forward, most of these reforms do not adequately address the crucial problems of implementation and enforcement posed by the weak arbitration and judicial systems. China must engage in much more difficult reforms, particularly improving the administration of justice, in order to address demolition and eviction issues effectively.