Tuesday, Apr 25, 2017, 6:54 AM CST – China

Politics

Administrative Litigation

In Whose Court?

The failure of the country’s administrative litigation system has prompted calls to set up a separate administrative court system

Since Chinese president Xi Jinping vowed to fight corruption and “contain power within a cage of regulation” earlier this year, there has been much speculation about what, if any, concrete measures Xi and his government will take in the following years.

It is in this context that the Standing Committee of the National People’s Congress, China’s highest legislative body, recently called two high-level seminars on China’s administrative litigation, the process of suing the government, in Beijing and Fujian Province. A meeting of leading legal experts, administrative legislation judges and central and provincial government leaders, many see the meeting as foreshadowing a major policy change regarding China’s administrative litigation.

“It is now the time to overhaul the existing administrative litigation system,” Professor Ma Huaide, chairman of the China Administrative Law Association, told the media. According to Ma, the leadership is contemplating institutional reform to make government agencies subject to the rule of law.

Failure

The current administrative litigation mechanism was established in 1989, when the administrative procedure law was passed. Allowing ordinary citizens to sue government agencies for the first time, the law was hailed as a legislative milestone – a much-needed system for keeping government power in check.

However, under China’s political system, the judiciary depends on executive agencies for both financial and HR support, and is firmly under the directive of the Party’s legal committee, making ruling against government agencies extremely difficult.

Legal experts and judges have long complained about the routine intervention of Party officials and government agencies who exert pressure on courts and judges when a lawsuit is filed against them.

As there is no separate administrative court, if a private individual wants to sue a government agency of a locality, they need to file the lawsuit in the court of that same locality. But as the court reports to the Party’s local legal committee, there is not much a court can do if Party chiefs, often leaders of government agencies, intervene.

For example, in a case in Guangdong Province, local residents sued the urban planning bureau for approving a real estate project where the distance between two apartment buildings was less than what was required by law. The court was forced to drop the case after repeated requests from government leaders, including the city’s Party secretary, mayor and People’s Congress chairman. Officials feared that a ruling in the plaintiffs’ favor would result in more lawsuits, since the practice of breaking urban planning laws for higher profits is reportedly prevalent in the city.

A judge from a city in east China told NewsChina that his court had been forced to drop a case on the request of the city Party chief. The plaintiff later complained to the provincial court, which then directed the lower city court to review the case. Even so, the city court “dared not” accept the case.

Given the sensitivity of the issue, all of the judges speaking to NewsChina requested anonymity. Their fear of retribution is not without reason – in one case in northeast China, after the local county government lost a lawsuit in court, it launched a corruption investigation into the judges involved in the case. As it appealed the case to the provincial court, it threatened to take further action if the provincial court did not overrule the earlier decision of the county court.

The result is that most lawsuits filed against government agencies never reach the courtroom, and when they do, government agencies almost always win. Another senior judge told NewsChina that in the first a couple of years after China’s administrative procedure law came into effect in 1990, as much as 60 percent of administrative lawsuits in many localities were ruled in favor of ordinary people. Now, the proportion is less than 10 percent.

Since common people typically lose administrative cases in local courts, they usually take their cases higher up the system. The result is a disproportionally high percentage of administrative cases among all appeals – while administrative cases only account for 1-2 percent of all legal cases, they account for 19 percent of appeals.

A more damaging consequence is the erosion of public faith in the judiciary. The failure of the administrative litigation system is considered a major reason behind the rising number of petitions to the central government and mass public protests, as it is becoming clear that there is little chance of reversing an administrative decision through legal procedure.

Solutions

In recent years, some of those working in the judicial system have tried to find solutions within their jurisdiction.  For example, in 2002, the middle court of Taizhou city of Zhejiang Province launched a program to swap cases involving government agencies. Instead of having the court review cases involving government agencies of the same county, the higher court would designate a court from another county to review the case. The policy seems to have worked so far. Around the same time, courts within the jurisdiction of Taizhou city ruled on 45 administrative lawsuits, 29 of which local governments lost, or 64.4 percent – almost five times the tally in the previous year.

In 2007, the middle court in Lishui City, Zhejiang Province adopted a similar policy. After the reform, the number of administrative cases filed in Lishui increased from 111 in 2007 to 201 in 2009, an increase of 81 percent. Meanwhile, the chance of losing a lawsuit for local government agencies increased to 26.9 percent, the highest recorded rate in Zhejiang Province.

But according to Professor Ma Huaide, despite this limited success, these experiments can only be considered stop-gap measures, as they fail to address the fundamental problem. As many local leaders often chair prefecture governments, a higher court cannot be completely immune from political intervention. “There is no way out without overhauling the existing system,” said Ma.

According to Ma, the Supreme People’s Court is currently contemplating the idea of setting up a three-tiered administrative court, making it independent from both the current judicial system and government agencies. Financed entirely from the central government’s coffers, the administrative courts would be composed of a supreme administrative court, appeals courts at the provincial level and a number of circuit courts.

The proposal seems to follow the model of China’s maritime courts, which have a much lower appeal rate and are considered less corrupt.

Ma suggests that the judges should be nominated by the Supreme People’s Court, and appointed directly by the National People’s Congress, to make it independent from the State Council.

So far, the Supreme People’s Court has not made any official response to inquiries regarding reform on administrative litigation.

But many legal experts have warned that institutional design alone will not be sufficient to make administrative courts immune to political intervention. Nor can people rely on the relative success of maritime courts, as the political and legal environment would be very different for administrative courts.

Professor Liu Xin from the Chinese University Political Science and Law warns that a separate administrative court system may be able to make the court independent from government agencies, but not from Party leaders. “The key to success is figuring out how to rein in the intervention of Party leaders,” said Liu. 

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