From the July 4, 2009 Guardian
July 4, 2009
by John Lee
Recently, Beijing announced new procedures to "give an effective guarantee" to rural citizens that their land rights would be respected by "standardising" arbitration procedures. This is explicit recognition that rural unrest remains a serious problem. But the problem in rural China is not bad legislation but enforcement. No number of new laws and procedures passed – no matter how elegantly rewritten – can improve their enforcement. In fact, the non-enforcement of new and better laws will likely increase unrest rather than appease frustrated rural citizens.
According to official figures, there were 87,000 instances of "mass unrest" in China in 2005, rising from a few thousand in the mid 1990s. Several human rights groups based in Hong Kong believed that the figure was closer to 300,000 instances. In a bad sign suggesting a worsening problem, Beijing has published no more recent figures.
It is not difficult to know why so many of China's 700 million rural citizens resort to protests. The majority of these concern land. Studies by researchers at the Chinese Academy of Social Sciences conservatively estimate that there have been more than 40 million illegal land confiscations by local officials over the past decade. Such confiscations are rising by about 2 million new instances every year. Local officials relying on extra-legal sources of revenue strike a bargain with developers. The best plots of land are identified and seized and farmers are given woefully inadequate compensation. In addition to a heavy emphasis on urban rather than rural development, poverty in rural China has actually increased since 2000. Over the last decade, the net household incomes of about 400 million Chinese – predominantly in rural areas – have declined even as the Chinese economy has more than doubled in size over the same period.
Given that use of a plot of land is often the only asset poor Chinese households actually have, allowing rural Chinese fair use of land, and fair compensation should they give up their lease, it is the most pressing political and economic problem in China.
The rural land reform announced on Saturday is all about ensuring that arbitration procedures between peasants and other entities such as local officials and developers are predictable and fair. In essence, it is should be about evening up the bargaining position between rural households on one hand and local officials and their cohorts such as developers on the other.
But poor enforcement of these laws and procedures cannot be improved without reforms that will loosen the Chinese Communist Party's (CCP) grip on power for two reasons.
First, central authorities have spent tens of millions of dollars improving the competence and training of judicial officers. But the formal authority of courts at every level has been largely left untouched, and courts continue to be subject to CCP oversight. Moreover, local party officials continue to oversee judicial appointments, and court presidents continue to be chosen for primarily political reasons. Not surprisingly, the overwhelming majority of judges tend to be party members. At the very top, the president of the supreme court continues to rank well below the minister of public security. This pattern is replicated from the top down to local levels.
The court's obsequiousness to the party was explicitly reaffirmed in 2006 with the launching of an official campaign to define the "socialist rule of law theory". One of the five core elements of the campaign was that courts must "follow the leadership of the party". If there were any further doubts that the "socialist rule of law" was somewhat similar to western conceptions of "rule of law", these were put to rest by Cao Jianming, vice-president of the supreme people's court, in urging the rejection of the "negative influence of western rule of law theory", which advocates judicial independence from the government.
An illustration of perverse operation of "socialist rule of law" is the system of "petitions" whereby aggrieved citizens can appeal to higher authority against their local officials. Hundreds of thousands of rural Chinese who had their land seized did so. This is a good idea perhaps – except that of every 10,000 petitions lodged, only three are heard. Not surprisingly, CCP officials at all levels are slow to respond to petitions that question their own decisions.
Second, China is a vast polity. It is ruled by a million central officials but more importantly 44 million local officials. Local CCP officials need extra-legal sources of revenue to remain relevant and in power; and Beijing needs the support of these local officials who are the leadership's eyes, ears and hands. Reining in the power of local officials and giving more power to independent entities would ultimately mean diluting Beijing's own authority. For example, as if party-controlled courts are not bad enough, local officials rely on about 800,000 People's Armed Police troops to maintain order but also enforce their will – including suppressing unrest resulting from illegal land seizures.
China's 700 million rural citizens need practical justice, not better-written laws and arbitration procedures that will not be enforced. The better new laws are rewritten, the more frustrating it gets for the rural people.
John Lee is a Hudson Institute Visiting Fellow and an Adjunct Associate Professor and Michael Hintze Fellow for Energy Security at the Centre for International Security Studies, Sydney University. He is the author of Will China Fail? (CIS, 2008).
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