Politics of administrative litigation in contemporary china

Chapter Introduction BACKGROUND On April 4, 1989, the People's Republic of China adopted its first Administrative Litigation Law (ALL) at the Second Session of Seventh National People’s Congress Under this law, a legal redress system was established and came into effect on October 1, 1990 in China Citizens can sue the governments for their infringement of their lawful rights and interests The promulgation and enforcement of the ALL has been perceived as a crucial step in “China’s long march toward rule of law”,1 because it established the first system of judicial review in China to restrain the arbitrary power of government However, in the context of authoritarian China, implementing the ALL is not an easy task On one hand, the government departments are not willing to be sued and try to handicap the impartial law enforcement by all possible means On the other hand, due to the existing institutional arrangements, the courts are constrained by the governments and thus not have the power and courage to challenge them Consequently, the ALL has encountered serious and wide-ranging problems since implementation Many of the Chinese citizens are not familiar with the use of legal measure and confrontation with authorities for protecting their interests Many of the See Randall Peerenboom, China’s Long March toward Rule of Law，(Cambridge: Cambridge University Press, 2002) state officials are not used to answering to the citizens, being examined by the courts, and abiding by the laws In general, the individuals are all too weak and loosely organized to protect themselves; the state officials are still all too powerful and well established to be challenged; and the legal system is still not sufficiently well established to provide relief When litigation is to be pursued, there are, indeed, many obstacles to be overcome, high costs to be paid, and great risks to be taken 20000 Accepted Cases 40000 60000 80000 100000 Figure 1.1 Number of Administrative Litigation Cases of First Instance 1988-2001 1985 1990 1995 Year Data Source: Law Yearbook of China 1989-2002 2000 2005 Yet, fourteen years' practice of the ALL shows that it has made steady and significant progress in many aspects since its enforcement in 1990 despite of the resisting governments and imperfect institutional arrangements In the first place, the number of administrative litigation cases accepted by courts has increased steadily after the institution of administrative litigation was formally set up in 1990 In the past, citizens suing government was very unusual Even under the sanction of the Civil Procedure Law of 1982, the pursuit of administrative litigation was very difficult and the number of the filed cases remained rare But when the ALL began to take effect in 1990 and administrative litigation courts were set up at all levels specifically responsible for accepting and hearing administrative litigation cases, the first hearing administrative cases surged by 30 per cent to 13006 in 1990 and by 97 per cent to 25667 in 1991 (see Figure 1.1) In particular, 40 per cent of the 1990’s annual total, i.e 5258 out of 13,006 cases, were received from October to December when the Law took effect, which represented a 96 per cent increase over the same period in the previous year.2 It indicates that the citizens did have great expectation when administrative litigation was promulgated in 1989 and were eager to make use of it when it became effective in 1990 The rise slowed down to five per cent and two per cent in the following two years, suggesting there were indeed operational problems that were unrecognized before but soon manifested when the institution was put into effect Yet, the annual growth rate picked up again from 25 per cent in 1994 to 49 per cent in 1995, and 52 per cent in 1996 during the years of rapid economic growth After two years’ gentle growth, the accepted cases decreased to 97569 in 1999 and only 85760 in 2000 But in 2001, the first hearing cases jumped up again to a head of 100921 Despite many underlying problems and a zigzag development, it is undeniable that the magnitude of growth has been very substantial over a span of thirteen years, i.e almost ten-fold increase from 9,934 cases in 1989 to 100,921 cases Ren Jianxin, “1990 Work Report of the Supreme People’s Court at the Fourth Plenum of the 7th National People’s Congress,” Gazette of the PRC Supreme People’s Court, No 2, (1991), pp 42-49 in 2001 As a matter of fact, more and more numbers of the citizens are using the new institution to protect their lawful rights and interests The substantial increase in the number of accepted cases indicates that the ALL has not been left as just a window display but has indeed opened up a new era in the relationship between the state and individual in China since 1990 In the second place, the types of the accepted administrative litigation cases, as shown in Table 1.1, have expanded rapidly since 1990 It indicates that the ALL has broadened its role in protecting the citizens from various types of governmental infringement During the years before and immediately after the establishment of the ALL, the types of administrative litigation were limited to the government acts in the fields of public security and lands administration only.3 These two types of litigation are related to personal subsistence and survival.4 Therefore, it is fair to say that only the fundamental interests and rights were protected under the ALL in the early years of implementation The administrative lawsuits have rapidly extended into the fields other than public security and land administration since 1993 In 1997, the scope of accepted administrative litigation cases had expanded to more than 50 categories, covering almost all fields of public administration.5 It is obvious that the administrative litigation has developed from serving only two kinds of administrative It was to process an administrative lawsuit of public security that the first administrative tribunal was founded in Gu Luo County of Hunan province Later-established courts were also occupied mostly by the same type of cases and the cases of land dispute between government and the citizens as well The sued acts in the field of public security involve birth control, personal liberty as well as political rights In the field of land administration, the lawsuits involve arable land distribution, house demolition and clearance, and so on Law Yearbook of China, 1998, pp.134 Some other kinds of administrative litigation cases like statistic, technology supervision are not listed in Table 1.1 Among all the administrative cases accepted in 1990, public security and lands cases each contributed to around one third of the total, but the two had fallen to only 15 percent and 16 percent respectively in 1999 In contrast, “other” types of cases had increased from 34 percent to 53 percent over the same period complaints in the past, to a wide range of protection to the citizens in the PRC recently It also suggests that the Chinese citizens are readier to resort to administrative litigation on a diverse range of issues involving their individual rights and interests apart from sheer survival Table 1.1 Types of Administrative Litigation Cases of First Instance 1990-2001 Year Public Security Cases /% 1990 4519 /35 1991 7720 /30 1992 7863 /29 1993 7018 /25 1994 8624 /25 1995 11633 /22 1996 15090 /19 1997 14171 /16 1998 14288 /15 1999 14611 /15 2000 13173 /15 Lands Cases /% 4038 /31 8162 /32 8330 /31 8063 /29 7962 /23 10012 /19 13932 /17 12986 /14 15121 /15 15503 /16 13357 /16 City Building Cases /% -2038 /7 2303 /7 3062 /6 4526 /6 4848 /5 6232 /6 7608 /8 8184 /10 Forestry Industry &Commerce Cases / % Cases /% 1971 /7 572 /2 2159 /6 886 /3 2561 /5 1556 /3 2727 /3 1486 /2 2854 /3 1817 /2 2357 /2 2640 /3 2183 /2 2708 /3 1738 /2 2897 /3 Transport Cases /% -1385 /3 1869 /2 2094 /2 2645 /3 3322 /3 2658 /3 Others Cases /% 4449 /34 9785 38 10932 /40 8250 /30 13149 /37 22387 /43 40336 /50 51787 /57 55067 /56 51634 /53 43753 /51 Total Cases 13006 25667 27125 27911 35083 52596 79966 90557 98350 97569 85760 Data Source: Law Yearbook of China 1991-2002 (% added, 100 ± per cent) In the third place, the increasing probability of citizens' winning over governments in courts shows that the reliability of the ALL as a legal relief for the encroached has been improved significantly in the past fifteen years The Figure 1.2 shows the change of percentage that the sued administrative acts have been upheld by courts in the first hearing from 1988 to 2001 It can be learned that the rate of winning suits by the governments has dropped steadily over the fourteen years of implementation In 1988, there was 49 percent of chance for government agents to uphold their acts in the courts After a decade of continual decrease, the governments' chance of winning judicial support bottomed out in 1997 at only 13 percent Although the chance has increased with gentle slope since 1998, it may be attributed to the fact that the governments have realized the power of the ALL and endeavored to adjust their behavior to meet at least the requirements set by the laws .1 Percentage of Upholding Figure 1.2 Percentage of Upheld Cases 1988-2001 1985 1990 1995 Year Data Source: Law Yearbook of China 1989-2002 2000 2005 As a matter of fact, many officials admitted that they were more careful in exerting administrative power because of the law In recent years, most of the government organizations have established legal advisory branch in order to reduce possible unlawful acts These evidences illustrate the real impact of the ALL on bureaucracies has increased significantly Besides, despite the percentage of upholding cases has fallen over years; the rate of withdrawn cases by plaintiffs has remained uncommonly high One may thus argue that the institution has not been performing very well in resolving conflicts between the state and the citizens But, if the data are examined elaborately, we can find that this is not the whole story The data in Figure 1.3 show the changes in the percentage of withdrawn cases over the past fourteen years Despite the very high withdrawing rate of cases by plaintiffs, it has dropped dramatically from the highest rate of 57 percent in 1997 to 31 percent in 2001 Furthermore, among those withdrawn cases, there were approximately 38 percent withdrawn after the defendants rescinded the disputed administrative actions to the satisfaction of the plaintiffs.6 In such cases, though the lawsuits filed by citizens under the ALL were given up mid-way, it generated substantial reciprocal benefits for the plaintiffs This result shows that the ALL may help resolving the administrative dispute between the state and citizens even without bringing the lawsuits to trial To sum up, although the adverse environment has created various problems for the enforcement of the ALL and has prevented the institution of administrative litigation from doing what it could and should do, an undeniable fact is that the ALL has survived and played an increasingly important role in restraining government power as well as protecting rights of ordinary citizens The gradual developments of the ALL, including the consistent and dramatic rise in terms of both the number and scope of administrative cases accepted, the falling in the percentage of rulings in favor of state agencies, indicate that the ALL is being consolidated as a legal Minxin Pei, "Citizens V Mandarins: Administrative Litigation in China," The China Quarterly, No 152 (Dec.,1997).pp 832-62 institution in China Percentage of Withdrawn Cases 1988-2001 Percentage of Withdrawn Cases 10000 20000 30000 40000 50000 Figure 1.3 1985 1990 1995 Year 2000 2005 Data Source: Law Y earbook of China 1989-2002 RESEARCH QUESTION AND ITS SIGNIFICANCE The ongoing consolidation of the ALL 7in China raises an interesting question that the author wants to explore in this thesis project: what accounts for the consolidation of the newly emerged ALL? In other words, why and how is a legal institution that aims to restrain the government power feasible to work and develop in an authoritarian state like China? More abstractly, why and how can an institution survive and develop in the environment not conducive to its evolution? The concept of “consolidation” in this thesis is defined as a process that the law becomes increasingly viable and credible Answering the above question has both practical and theoretical significance: Practically, it will provide some policy implications for China’s construction of “socialist democracy and the rule of law” The rule of law is set as one of the most important targets of China’s political reform In 1997, the 15th Congress of the Chinese Communist Party announced that “China adopts governance according to law and will be constructed as a socialist country of rule of law”; in 1999, this statement was incorporated into the constitution as an amendment Nevertheless, to achieve this goal in China, where there is no full-fledged democracy and legal culture, many obstacles have to be overcome An essential problem to be urgently solved is how to build a credible and viable legal institution to work out the rule of law This study will shed some lights on the mechanisms of legal institution building in authoritarian context Thus, a clear and logically consistent explanation to the research question will certainly provide important policy implications for China’s successful transition towards “the rule of law” In addition, this study is theoretically significant as well Firstly, it will complement the inadequate studies on the politics of the rule of law in China While the existing studies emphasized the institutional features and performances of the ALL, the mechanisms that make the law work and develop over time in authoritarian China have been inadequately addressed This study will complement the existing literature through filling this needed niche Moreover, this study will better our understanding of transition to the rule of law in authoritarian context through the case of administrative litigation Current analysis of China’s movement towards rule of law focus on the judicial reform and the law enactment However, in authoritarian China, where there is no tradition of rule of law, the legal institution, which are transplanted from the western tradition may not be able to work and sustain Therefore, to understand China’s transition towards the rule of law, we need to explain the mechanisms that facilitate consolidation or development of the legal institutions The last but not the least significance of this study is that it aspires to contribute new view to the literature of institutionalism The change and persistence of institution have attracted much academic attention and constitute an essential research topic in the literature of institutionalism Yet, the issue that has been inadequately addressed is why and how an institution can evolve in the adverse context This study explores this problem through the case of Chinese legal institution consolidation It aims to illustrate how the interplay between the institution and the actors makes the institution develop in an incompatible environment LITERATURE REVIEW Although the development of the ALL, as mentioned above, has not attracted sufficient academic attention from the students of Chinese politics, it cannot be denied that some significant literatures have been contributed by both legal scholars and political scientists The author believes that it will be helpful to look at the accumulation of the literature on this topic as a whole It can be learned from the 10 Chapter Conclusions FINDINGS OF THIS STUDY The promulgation of the Administrative Litigation Law established a legal institution for the Chinese citizens to challenge the arbitrary power of government However, this law has been confronted with various difficulties in implementation because it is incompatible with the authoritarian context On the one hand, the governments have been resistant to the newly created law In order to avoid being sued or losing in the courts, they have tried all possibility to obstruct the enforcement of the ALL On the other hand, the courts in China, due to the existed institutional arrangements, not have courage and independent judicial power to challenge the government In authoritarian China, courts are not independent from the political, government and supervisory authorities Given the fragmentation of the Party-state, these authorities may have different responses to administrative lawsuits and thus exerting different pressures on courts In order to maneuver the interlaced pressures, courts often take flexible approach to deal with the administrative litigation cases As a result, the judicial decisions are not based on the rules of the law but contingent upon the pressure structure that a lawsuit brings about This contingency has significant influence on citizens' choice of litigation strategy and stimulates the citizens to be active in exploiting the existed legal-political 138 embedded in the fragmented authoritarian regime On one hand, citizens believe that there exists possibility to win administrative lawsuit in court because the judges who are afraid of making misjudgment dare not violate laws on the table On the other hand, they are also aware that the court may not make ruling in their favor automatically because it lacks the independent authority to challenge the powerful government With understanding the logic of judicial behavior, the citizens accordingly take the strategy of dual mobilization - combining the legal recourse with the political efforts to ensure their successes of litigation in courts By virtue of this mode of citizen activism, litigants have exerted both legal and political influence on courts and thus obtaining more chances to win over the government in courts The citizen activism also produces recursive effects The previous successes of citizens attract increasing number of potential litigants to engage in the further exploitation of the existed legal and political spaces It was the growing driving forces that push the institution of administrative litigation onto the trajectory of consolidation THEORETICAL IMPLICATION This study observes that the legal institution consolidation in China follows the pressure driven mode The administrative litigation institution is not consolidated automatically because it operates in an adverse environment The powerful governments are resistant to its implementation and the courts are lack of independent authority to challenge the governments But the citizens are active in 139 cultivating the benefits that the institution intends to provide The cultivation takes the form of mobilization in both legal and political arena and thus helping to capture the opportunities embedded in the fragmented authoritarian state It was this persevering and strategic cultivation that produces the increasing returns effects and drives the newly created institution to consolidation This observation has important implication for the theory of institution evolution In standard theory of institutionalism, the institution, by its very nature, tends to be self-enforcing and path-dependent As Paul Pierson argued, “Established institutions generate powerful inducements that reinforce their own stability and further development.”213 Therefore, the consolidation of institutions is explained as an endogenous process deriving from the mechanism of increasing returns.214 However, the observation of this study suggests that increasing returns may not happen automatically, instead, they require cultivation by the beneficial actors, because the uneven distributional effects of institutions often confront the institutions with a heterogeneous environment composed by the actors with conflicting interests While the beneficiaries mobilize the established institutions to promote their interests, the losers also try all the best to obstruct the further development of the institutions This means that there is a period of cultivation between the institutional initiation and the institutional path dependence Whether the institutions can be consolidated depends 213 Paul Pierson, “Increasing returns, Path Dependence, and the Study of Politics”, American Political Science Review, Vol 94, No 2, (June 2000), pp 251-267 214 See Gerald Alexander, “Institutions, Path Dependence, and Democratic Consolidation”, Journal of Theoretical Politics, Vol 13, No 3, (July 2001), pp 249-270 The approach is also applied in the explanation of legal institution development in reform China, see Pitman Potter, “Riding the Tiger: Legitimacy and Legal Culture in Post-Mao China,” The China Quarterly, No 138,( June 1994), pp 325-358; Minxin Pei, “Citizens v Mandarins: Administrative Litigation in China,” The China Quarterly, No 152, (Dec 1997), pp 832-862; Randall Peerenboom, China's Long March toward Rule of Law, (Cambridge: Cambridge University Press, 2002) 140 upon the extent to which the beneficiaries are able to cultivate the institutional returns The slowgoing consolidation of administrative litigation in China illustrates that the cultivation process is often complex and full of ambiguity Therefore, to explain the institution evolution, one must not only focus on the creation and the reproduction of the institutions but also pay attention to the political dynamics of cultivation POLICY IMPLICATION This study also has policy implication for the construction of rule of law in transitional China Constructing the socialist state under the rule of law is the claimed undertaking of the Chinese leadership Establishing the rule of law in an authoritarian regime is, however, not a easy task In China, where there is no constitution-based power separation, the legal institution is unevenly embedded in the Party-state and may not be able to enforce the established laws independently Therefore, how to make the rule of law rule in such context becomes a crucial problem for the construction of the rule of law This study finds that the administrative litigation law may provide legal release for the administratively infringed citizens even if the judiciary is not independent from the other authorities This is feasible because the relevant authorities who have a stake in the judicial decision making may also be mobilized to support the disadvantaged citizens under certain conditions This finding suggests that the rule of law can rule without judicial 141 independence if there exists political space for the citizens to struggle for the access to the legal justice Therefore, to construct the rule of law in China, it is wise to open or strengthen the channels for political participation 142 Bibliography Books (In English) Bernstein, Thomas P Taxation without Representation in Contemporary Rual China, Cambridge, New York: Cambridge University Press, 2003 Bourdieu, Pierre Language and Symbolic Power, Cambridge: Polity Press, 1991 Chen, An, “Restructuring Political Power in China: Alliance and Opposition, 197898”, Boulder & London: Lynne Rienner Publishers, 1999 Chen, Jianfu, Yuwen Li and Jan Michiel Otto.(ed.) 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Disadvantage) Yu, Mingsun, “Shiqu tudi de nongmin yifa weiquan nanyu shudao”, conference paper presented at the Annual Conference of Chinese Comparative Law Research Association, (October 30, 2003) 152 [...]... policy implications 24 Chapter 2 Building the Institution of Administrative Litigation Restraining the discretionary power of the government by law is not an easy task In fact, China has paid great efforts in building up the institution of administrative litigation To understand consolidation of the administrative litigation law, the process of institution building should be firstly appreciated This... scenario of political struggle at each stage of litigation They found that local officials often attempt to preempt, derail or undermine administrative lawsuits by blocking the access to official documents and regulations, pressuring the courts to 12 Minxin Pei, “Citizens v Mandarins: Administrative Litigation in China , China Quarterly, No 152, (Dec., 1997), pp 832-62 15 reject cases, failing to appear in. .. 12 Because of the existence of an informal structural network -Guanxi Wang, the abuse of power in China “involves not merely acts of an individual but also acts of individuals at different levels of the hierarchy in administrative authorities”, thus, “holding street-level bureaucracies responsible through court rulings means challenging the whole of administrative operations.”10 This stream of studies... their business in China in various forms A corollary of the rapid development of private economy is that the number of individuals who have personal interest in challenging the government infringement increased On the other hand, the incentive and opportunity provided by the fiscal reform and the decentralization of administration gave rise to a variety of deviant administrative behaviors, most of which... first administrative tribunal was established in Guluo County, Hunan Province in late 1986 Beijing, Shanghai, Shenyang, Wuhan, Chongqing, and Shenzhen also established administrative tribunal early or late 34 Ren Jianxin, “Implementing the ALL in Real Earnest, Striving to Inaugurate a New Stage for the Work of Administrative Adjudication”, Speech in the Working Conference of National Courts for Administrative. .. constraints of China s closed political system seriously limit the effectiveness of the ALL, the institution of judicial review of administrative actions is gradually being consolidated.” This consolidation process indicates that the institution of administrative litigation evolves through “a process of mutual 14 adaptation -new institution adapt to the existing political system and its constraints and... rate of case withdrawing Nonetheless, this study has its weaknesses as well It suffers from unreliable polling, insufficient data and not in- depth analysis Compare to the 1992 study, Minxin Pei’s study is more systematic Using official national data on administrative litigation during 1986-96, he systematically analyzed the increase of administrative litigation lawsuits, regional variation, scope of administrative. .. political elites taking the initiative, China began to reform its legal system.20 The endeavor of legal institution building laid foundations of the emergence of the ALL in many ways: First, the infrastructural framework of modern legal institutions have been constructed up and a large number of laws have been promulgated, some of which contain the provisions of judicial review In 1982, China promulgated... compensation in accordance with law 22 See the Provisional Law of the People’s Republic of China on Food Hygiene 18 19 26 citizens Besides, the Party’s policy towards the rule of law encouraged some legal scholars to work on the study of administrative law and administrative litigation law During 1978-1982, there were more than 20 theses about administrative and administrative litigation law published in official... number of household business increased from 961,000 in 1981 to 10,342,000 in 1987 The total number of people employed in rural household business increased from 1,218,000 in 1981 to 16,660,000 in 1987, with a total business volume of 70.23 billion yuan and retail sales of 48.7 billion yuan (8.4% of national retail sales) The number of urban household business increased from 868,000 in 1981 to 3,383,000 in ... Building the Institution of Administrative Litigation Restraining the discretionary power of the government by law is not an easy task In fact, China has paid great efforts in building up the institution... "Citizens V Mandarins: Administrative Litigation in China, " The China Quarterly, No 152 (Dec.,1997).pp 832-62 institution in China Percentage of Withdrawn Cases 1988-2001 Percentage of Withdrawn Cases... systematic Using official national data on administrative litigation during 1986-96, he systematically analyzed the increase of administrative litigation lawsuits, regional variation, scope of administrative