Conditional Cooperation: Judicial Strategy in China’s Administrative Demolition Cases
In an authoritarian regime, how does the court rule against the government’s administrative practice?
Written by: Miao XIANG, Ph.D. candidate, Zhejiang University, Visiting fellow, Harvard Kennedy School
In China, the judicial system is seen by many scholars as having been largely co-opted by the party-state. In their view, because of a lack of judicial independence and autonomy, administrative litigation is no more than what a Chinese idiom calls “throwing an egg against a stone” — a futile effort unlikely to protect people whose the rights have been infringed upon by the authorities. Recently, other scholars have contended that a more dynamic relationship between the government departments and the court is at play in China, with the courts experimenting with strategies to exercise their powers and enhance their authorities. However, these strategies and the conditions under which the Chinese courts cooperate with or contradict the government have not been illustrated in the existing literature on this topic.
My study presents a strategy of “conditional cooperation” by a local Chinese court in administrative demolition cases. The premise of conditional cooperation is the distinction between substantive justice and procedural justice: while the court is hesitant to challenge the substantive power of the government, it sometimes rules against the government for violations of procedures stipulated by national laws. This strategy also evolves from cooperating with the local government at the stage of policymaking to conditionally and procedurally constraining the local government at the stage of judicial review.
In this study, I analyze 32 cases of administrative demolition decided by a basic-level court in Nan District of Hangzhou, Zhejiang Province. These cases took place from 2013 to 2015, when the provincial government rolled out a demolition campaign against “illegal structures.” The tensions at the local level are especially salient, for the local government depends financially on reselling the land on which the demolished houses once stood and local residents are not easily satisfied after seeing the significant gap between the compensation they receive and the revenue from the government’s land sale. Therefore, the judiciary has a crucial role to play in defusing such tensions between the government and the public.
The Zhejiang provincial government’s demolition campaign aimed to reconstruct former factory areas, old residential areas, and urban villages and to demolish so-called “illegal structures,” thus paving the way for new development projects. A leading group consisting of members from various government departments and Communist Party branches was formed to draw up incentives and provide support for the implementation of the demolition campaign by local governments. Provincial and prefectural authorities offered specific advice on enforcement to lower-level governments, stressing the importance of “advancing law-based governance.” However, due to the pressing political and administrative pressure from above, lower-level governments sometimes overstepped their designated authorities and caused disputes on the legality of the demolitions and on the fairness of compensation. When such disputes arose, residents often took their cases to court.
All the 32 demolition cases I examine in this study were adjudicated between 2013 and 2016. The rulings are publicly available on the “China Judgements Online” database. In twelve of these cases, the judges dismissed or rejected the lawsuits or allowed the plaintiffs to withdraw. Most of these cases involve compromises between the plaintiffs and the government. In the remaining twenty cases, the government and the plaintiffs each won ten cases.
The reasons for the results are rather illuminating. Among the ten cases in which the plaintiffs’ claims were overruled, one plaintiff sued the local government for failing to perform its legal duty of registration, another plaintiff sued regarding compensation and a relocation agreement, three complained about the administrative adjudications in the demolition disputes and five questioned the legality of the administrative permission granted to demolition companies. The fact that these plaintiffs lost reveals that regarding the licensing and the administrative adjudication involved in demolitions, the court deferred to the local authorities and adhered to a principle of noninterference.
However, in ten other cases, the court ruled against the local government. Except for one case in which the government was required to compensate the residents based on a resettlement agreement signed prior to the demolition, the court pointed out illegal conduct by the government in the other nine cases. In six of these nine cases, the court pointed to the government’s violation of legal procedures. In two other cases, the court ruled that the demolitions lacked legal basis. All of these eight forced demolitions were organized by the local township governments.
According to China’s Administrative Penalty Law, township governments should notify the residents within a prescribed time period before demolitions, inform all parties of the facts, grounds and the basis on which the administrative penalties are to be carried out, and explain to all parties the rights that they enjoy. Therefore, in six of those cases, the township governments violated the legal procedures to push ahead with the forced demolitions. In those two other cases, the governments were not able to prove the legality of the forced demolitions as part of the procedure prescribed by the Administrative Penalty Law. Therefore, the basic-level court ruled against the government.
In these cases, actions by both the local governments and the court adhere to a certain logic. When carrying out the demolition campaign on the ground, the local governments often find it impractical to follow legal requirements, such as notifying the parties of their legal rights, listening to the residents’ dissent and going through the long negotiating process with them. Plus, these local government officials often have good reason to believe that they can get away with such violations of procedure. After all, the demolition campaign enjoys explicit backing from higher-level governments and the Communist Party, and it is unlikely that these legal violations will be subject to internal administrative or party disciplinary punishment.
The court rarely reviews the preliminary conditions for demolitions, such as the legality of administrative licensing, the qualification of the demolition companies and the legal basis of the demolition campaign. However, the court system is not completely futile in intervening in forced demolition cases. While it cannot directly challenge the administrative power of local governments and the Communist Party, the court can still actively serve as a check on that power by upholding legal procedures prescribed in laws and regulations such as the Administrative Penalty Law.
“China’s local courts can simultaneously cooperate with and conditionally constrain local governments in the processes of policymaking, policy implementation as well as policy review.”
The court’s approach is an example of what I call a “conditional cooperation” in explaining local court behavior and strategies in maintaining a level of checks and balances against the municipal government. Although the local governments enjoy explicit support from higher-level authorities in carrying out administrative tasks such as the demolition campaign, the court still functions as a potential partner and a potential opponent at the same time, depending on the actions of the local governments. If the local governments follow the standardized legal guidelines prescribed by higher-level authorities and thus respect the law, the court will likely serve as a partner in offering legal advice on the implementation of these often-controversial administrative tasks. When local governments violate legal guidelines and procedures and ignore the court’s legal advice, the court can refuse to cooperate and rule in favor of the residents.
In the case of the demolition campaign, the court first cooperates with the local governments by offering ex ante legal advice on the implementation of the demolitions and respecting the local governments’ substantive discretional power. Once the local governments violate the legal procedures of demolitions, however, the court can strategically constrain the power of the local governments, which is an act of “strategic confrontation.” Such strategic confrontation and conditional cooperation are two sides of the same coin. Both relfect the politics of the judiciary in China today.
Unlike most existing research, this study argues that China’s local courts can simultaneously cooperate with and conditionally constrain local governments in the processes of policymaking, policy implementation as well as policy review. The key mechanism of this “conditional cooperation” model is the local court’s insistence upon the statutory procedures stipulated by national laws and deference to the local governments’ substantive power conferred upon by higher-level authorities. The statutory procedures serve as a crucial institutional tool for the local courts to constrain the local governments’ administrative actions and to defuse some of the tensions between the residents and the local authorities. Although justice is not always served, for not many residents end up receiving a satisfying amount of compensation after demolitions, the court still finds a way to assert its authority through the delicate approach of “conditional cooperation.”
Miao Xiang is a Ph.D. candidate in the School of Public Affairs at Zhejiang University. Mr. Xiang’s research interests are interdisciplinary field of law and public policy, judiciary politics, and public administration. He is currently studying the interaction relationship between China’s judicial system and government system, and illustrating how and to what extent China’s administrative litigation can influence local government’s behavior. This topic aims to dive deeply into understanding of promoting rule of law under authoritarian state.
