Monday, Mar 27, 2017, 8:27 PM CST – China

Politics

Administrative Procedure Law

The Power to Sue

China’s new administrative litigation law has made it easier for private citizens to sue the government, but it has shown little effect in curbing abuse of power

"I can’t believe we won this lawsuit after 50 years of struggle,” said Chen Yan, a representative for the people of Shikao Village in Leizhou, Guangdong Province. On July 7, 2015, a municipal court ruled that a 1965 administrative decision made by the Leizhou government to appropriate 983 mu (162 acres) of forest near the village was illegal.

As it was the first time in Guangdong’s history that a city mayor personally appeared in court, many legal experts have hailed it as a landmark case that signifies a new beginning for China’s litigation system in light of the revised Administrative Procedure Law that came into effect on May 1. Its revisions aim to remove various procedural obstacles that previously discouraged members of the public who wanted to sue a government body. While some praise the changes, others say the law still lacks the capacity to counterbalance  official power.

Success?

Since the Standing Committee of the National People’s Congress (NPC) passed the new law last November, China has witnessed a surge in the number of lawsuits filed against local governments.

In Hunan Province, for example, the number of such lawsuits filed during the first half of 2015 increased by 80 percent, reaching 2,062 by the end of June. In Guangzhou, capital of Guangdong Province, the city government was sued 94 times in the first six months of this year, a 154 percent increase on last year.

The rocketing number of lawsuits seems to be a direct result of the updated Administrative Procedure Law, as many of them were filed after May 1, when the revised law came into effect. In Hangzhou, capital of Zhejiang Province, for example, 600 of 1,016 lawsuits filed against the government in the first half of the year were submitted after May 1. In Beijing, among the 127 lawsuits filed during that same time period, 124 were filed after the new law was implemented.

Coupled with the surge in the number of lawsuits against the government is a decline in the number of official petitions and complaints. In past years, without an effective channel to solve disputes with local government agencies, many people chose to file complaints with government bodies at a higher level. According to Shu Xiaoqin, director of the State Bureau for Letters and Calls, the body which receives petitions, the number of complaints filed with government bodies at different levels throughout the country dropped by 18 percent in the first six months of 2015, with a 20 percent drop in the number of complaints filed with the central government.

The existence of a massive number of petitions and complaints has long been a major source of social unrest, as officials often used intimidation, extra-legal detention and “interception” to discourage complainants and thereby avoid being disciplined by more senior authorities. One of the stated goals of the new litigation law is to solve this problem.

For example, a major revision in the Administrative Procedure Law is that it allows people to sue a government agency in a higher-level court. Previously, a plaintiff could only sue a government agency in a court at the same level, which would often refuse to hear cases due to the strong political clout local governments wield over local courts.

According to Xie Zhiyong, a law professor at China University of Political Science and Law who just completed a field study on this topic in Shandong and Zhejiang, most new lawsuits against the government in these two provinces were filed at the municipal or provincial level instead of the lower county level. “The number of lawsuits filed in grassroots-level courts remains stable in both provinces,” said Xie.

Xie added that the increasing number of these lawsuits filed at municipal- and provincial-level courts and the declining number of complaints filed at higher-level bureaus indicate that many complainants have chosen to go to court to solve their disputes with local governments because of the new law.

The apparent newfound confidence in China’s legal system among the country’s massive number of petitioners has led some to believe the revised Administrative Procedure Law shows significant progress toward achieving the government’s stated policy priority of strengthening the “rule of law,” which the Party focused on during its Fourth Plenum held last October. But, for most, clearing procedural obstacles for filing these lawsuits is only the first step. What is more important is how these lawsuits will be handled.

Obstacles

According to Tsinghua University law professor He Haibo, the problems in China’s legal system regarding lawsuits against the government can be summarized as the “three difficulties”: “It is difficult to have a court agree to hear a lawsuit against the government, and if a court does agree, it is difficult to have that court make a ruling, and if a ruling is made, it is difficult to implement,” He told NewsChina.

In the past year, when this kind of lawsuit had been filed, many government agencies simply chose to ignore it. Even when a government agency did choose to respond to a lawsuit, it often did not take it seriously. To counteract this, as the central government has shown more political will to push legal reform forward, it has reformed the appraisal system of government officials to motivate agency directors to personally show up in court.

For example, in Guangzhou, government officials appeared in court during just 70 out of 3,072 hearings in 2014, a rate of 2.3 percent. Now, the city government requires heads of government agencies to attend at least 4 percent of administrative lawsuits in order to be evaluated favorably in the official appraisal system. In Hefei, the capital of Anhui Province, government officials have personally responded to 86.6 percent of the lawsuits filed against them in May and June, after the law was enacted.

But Wang Zhenqing, a deputy director of the High Court of Beijing, told NewsChina that the push for directors of sued government agencies to come to court is more about appearances than actually changing government behavior. “It is not a legal requirement for agency directors to personally show up in court, and the appearance of agency directors in court does not necessarily mean the agency takes the case seriously,” said Wang.

Mediation

The push in many provinces for agency directors to appear in court is accompanied by increased punishment under the revised appraisal system if they lose a lawsuit. For example, in Qinghai Province, agency directors can only gain one point towards their evaluation by showing up in court for an additional 5 percent of all lawsuits against the government, but a point will be deducted if they lose a single lawsuit.

The rationale behind harsher punishments appears to stem from a desire to encourage government officials to make sound decisions and handle complaints carefully in order to prevent losing a lawsuit. But the requirement may cause the repetition of past mistakes. Previously, in order to motivate local officials to focus on solving their disputes with local residents, the government revised the appraisal system to punish local governments if the number of complaints filed by residents from their localities increased. But there was an unintended result — instead of tackling the problems that caused the complaints in the first place, local governments chose to devote their resources to coercing local residents into dropping their complaints.

The possible negative consequences of the new appraisal system may have surfaced already. A senior judge from a district-level court in Beijing, who asked to remain anonymous given the sensitivity of the issue, told NewsChina that the court now tends to seek to solve administrative lawsuits through mediation instead of making a court ruling.

According to the judge, a major reason behind the preference towards mediation over a court ruling is the court lacks the staff to accommodate the sudden surge in administrative lawsuits. Yet many believe that the real purpose behind the push for mediation is preventing direct confrontation with government agencies, which could jeopardize the political careers of government officials. Using mediation lets the court avoid issuing a ruling that is unfavorable to government agencies.

The court’s preference for mediation may also reflect a lack of confidence in its ability to enforce a sentence. Under China’s current legal system, courts lack enforcement power when a ruling involves administrative authorities.

With the new Administrative Procedure Law, the judiciary has apparently gained more power to implement its own rulings. For example, now the courts can publicize the administrative authority’s non-compliance, issue a daily fine of 50 to 100 yuan (US$8-16) to directors of relevant authorities, and even issue warrants to have relevant officials arrested if they fail to comply with a court ruling.

But some experts have pointed out that the court remains toothless under the new law, despite these changes. For example, most directors of government agencies usually serve as deputies of local branches of the NPC. Under China’s current law, the arrest of a deputy must be approved by the local branch of the NPC, resulting in a clear conflict of interest. All the court can do to enforce the fines issued to government officials is notify their bank.

According to Wang Zhenqing of the High Court of Beijing, the preference for mediation, which may be a rational choice for the court for now, may risk undermining the original intention of the revised litigation law, which was to delineate the boundary of government power and give more legal options to the public. “In each case, we have to make it clear whether the government has done wrong and if so, where,” said Wang, who warned that failing to do so would erode people’s confidence in the new law.

As the new Administrative Procedure Law has only been in effect for four months and many administrative lawsuits have not yet been processed, it may be too early to draw a conclusion on its efficacy. But what is clear is that preventing the government from abusing its power will require more than a revised litigation law. 

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