Owen Bennett Jones, on his new and insightful BBC radio show, NewsHour Extra, discussed the recent assault on China’s rights-defending lawyers. Featuring Dr. Li Ling of NYU’s U.S.-Asia Law Institute, Prof. James Feinerman of Georgetown Law School, Prof. Eva Pils of Kings College London, barrister Philip Riches, and yours truly, the discussion proved lively if slightly pessimistic regarding the current crackdown on China’s rights-defending activists and their future under the current Chinese Communist regime.
Rights-defending lawyers Yu Wensheng and Teng Biao both give their assessments of the recent crackdown.
Last month the New York Times ran a front page story on the Chinese Communist Party’s investigation of former Minister of Public Security Zhou Yongkang. Rarely if ever have the Party’s investigations reached such senior echelons. Does this signal a new Chinese president intent on holding officials responsible under the law or merely a purge to consolidate his power?
Here in part 3 of this three-part series, Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, answers that question, noting that Xi Jinping’s current anti-corruption campaign is far from a promotion of a rule of law.
Read the transcript below of Part 3 of this three-part interview or click on the media player to listen:
Length: 9:20 minutes
To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.
To read or listen to Part 2 of this three-part interview series with Prof. Pils, click here.
EL: Going back to the government, I want to finish with one last question about the government and its relations to the rights activists. Recently, in late 2013, early 2014, you’re seeing a lot of rhetoric coming from the Chinese Communist Party calling for things like judicial independence, greater respect for lawyers. I think there are some people in the West who have seen this as a positive development, that it is showing that the government wants incremental legal reform and that there is space for that. But my question to you: given this crackdown that has happened, should we see this rhetoric as anything positive? How should we view it and how should you view the rhetoric that’s happening simultaneously with this very severe crackdown on rights lawyers?
EP: Well maybe answering those questions does require looking at least briefly at some of the reform measures and the changes
Former Minister of Public Security, Zhou Yongkang. Now being investigated by the Party for corruption.
under the new leadership. I think the anti-corruption campaign is probably a good example. Personally I think it would be quite a mistake to see that as a new leadership coming in and trying to essentially provide or establish a basis for further-reaching reforms that ultimately end in this end-goal of the democratization or liberalization narrative which is a stable rule of law system with increasing political openness.
Because if you look at what actually happens in the anti-corruption campaign, I believe it would be really hard to deny that people who do end up being investigated for corruption are really those who have somehow lost protection from within the system. It remains a party decision who will be investigated for corruption. So another way and perhaps a more accurate way of seeing what is going on under this so-called anti-corruption campaign is actually a party purge, a party-internal purge that serves the ultimate goal of strengthening and centralizing control under the central leadership, and centralizing control by Xi Jinping.
So that is really very, very far from construction of the rule of law, which of course would also require some moves against corruption; but those would take the form of the use of the judicial process, an open process and a rule of law-based process. All of that I don’t think we are seeing clearly at all. Just think of the fact that high-ranking officials who are targeted are not processed through the judicial system but, rather, just as they used to be before, they are put under some sort of Party detention [known as shuanggui].
Corruption investigation and trial of another senior Party official, Bo Xilai
I think that tells us a lot about this liberalization narrative that you just brought up. I think it’s a very powerful narrative and has been extremely attractive for essentially anyone who has tried to engage China from the outside, including many foundations, governments, institutions, who have tried to strengthen rule of law development in China over the past decade. I think that from the perspective of these institutions and the individuals working with them, there are very powerful reasons – important reasons – for wanting to see this kind of incremental reform process that you mentioned, and to make constructive contributions to this process without at the same time alienating the authorities.
But for the reasons that I just gave, I don’t think that we see, that we have evidence from the ground that this is what is happening. And of course that means also that this powerful, attractive but then somehow also a little bit anesthetizing narrative of gradual liberalization, just doesn’t work.
In China, amongst academic circles, I think you can see that reflected in a shift of vocabulary away from constant uses of the word ‘reform’ or ‘judicial reform’ – sifa gaige [司法改革]. I think that people are sort of becoming more critical of that idea [of reform] because they just reach a conclusion that it does not seem to be working. They’re actually talking more broadly about ‘change’. I think that what I would take away from that shift is that agency in change – legal-political change – does not necessarily lie with the government. Increasingly the momentum has shifted to civil society, including the human rights movement.
EL: Just one last question. What do you see short-term for the future of human rights advocates in China. Not long term just short term. Do we see it getting worse or do you not even want to try to guess?
EP: Well, I think that yes we do see it for the moment things getting worse. I would be very pleasantly surprised if there was some
Can’t keep a good man down – the movement continues even as activists are arrested
loosening or lightening of the pressure. The events of the past couple of weeks and months have sent very strong signals that it is quite likely that more lawyers will be detained. We are now unfortunately finding that human rights defenders when detained can be exposed to very significant levels of violence. Of course you mentioned the terrible case of the death of Cao Shunli.
I think that what is interesting is that despite all this repression, despite the worsening long-term crackdown, you also have a rise in numbers of human rights lawyers. You have more and more lawyers showing solidarity with human rights lawyers and expressing a willingness to be called human rights lawyers, identifying with this human rights cause. What I also find remarkable is that human rights lawyers are amongst the most optimistic people I speak to when I go to China.
EL: I guess the increase in numbers gives us some hope amongst all this despair. I want to thank you Prof. Pils for your time and for letting us know and trying to figure out what’s happening on the ground in China. Thank you
In Part 1 of this interview series with Prof. Eva Pils, an associate professor of law at the Chinese University of Hong Kong and research fellow at NYU’s U.S.-Asia Law Institute, Prof. Pils described the “weiquan” (rights defense) movement in China. Here in Part 2, Prof. Pils continues by discussing the emergence of one of the most significant and organized aspects of the weiquan movement, the New Citizen Movement. What is it these New Citizens want and what is it that causes the government to violently suppress some of the Movement’s leaders? Prof. Pils answered these questions and more when China Law & Policy sat down with her last month.
Read the transcript below of Part 2 of this three-part interview or click on the media player to listen:
Length: 13:38 minutes
To read or listen to Part 1 of this three-part interview series with Prof. Pils, click here.
EL: So just to get a little bit more specific, I want to turn now to focus on Xu Zhiyong who just received in January four years in
Emblem of the New Citizens Movement – calligraphy of Sun Yatsen
prison. He is a part of this “New Citizen Movement.” Can you describe what that movement is a little bit? Where did it emerge from and what its platform is?
EP: So the New Citizen Movement, it emerged in 2012, around May 2012. I think that it can be seen as in some ways a response to the problems that we have just been discussing, the [social] grievances, and also the problem of repression of civil society. In some ways it is also due to changes that have come about because of new communication technologies – the social media – that have enabled a new form of activism to emerge not only in China but also in other parts of the world. Think of the various Occupy movements and the Arab Spring.
That’s I think one the reasons why the New Citizen Movement emerged. Obviously it focuses on the idea of the citizen. When you look at what Xu Zhiyong in particular has provided as an analysis of citizenship, the concept of the citizen, you can see that it is a very strong, richly normative political conception of the citizen; a sort of 18th-century-Europe notion of the individual who has rights against the state. I think that looking at the history of the human rights movement [in China] that we just discussed, you could perhaps also say that Xu Zhiyong, having tried for ten years to introduce beneficial changes in China through case-by-case legal rights advocacy, comes to the conclusion, around 2011- 2012, that now a new method of advocacy has to be tried; that rights advocacy in a way has to move beyond working on individual cases, and become more issue-focused and more explicitly political.
Teng Biao, organizing without organizations
So how do you do that in the context of a political system that very clearly does not allow a political opposition? Like in other places in the world, the answer that seems to be emerging in China right now, as I see it, is to adopt forms of organization that are significantly different from what we’ve seen before. Teng Biao, another very important scholar and rights advocate, has used Clay Shirky’s idea of organizing without organizations to describe what is going on here. The idea is basically that you could achieve a high degree of coordination and initiate various types of actions, civil society actions, without having a visible traditional organizational structure. It’s also that in a new civil society political movement of this kind, you have to be very open. You have to be the opposite of what characterizes, for instance, the rise of the Chinese Communist Party from its sort of underground years, to this moment when it manages to control power.
An example of that [openness] would be, for instance, these so-called gongmin jucan [公民聚餐], the citizen meals that were organized by the New Citizen Movement. The idea was really that you would somehow get people to distribute information about venue and time and so on online. At some of the gongmin jucan, the new citizens meals that I have observed, it really was possible for people who simply had come across this information online to come along and join the meal. It was entirely open towards anyone who wanted to show up. That’s remarkable in the context of a system that, as you just said a while ago, scrutinizes everybody so much and has so much surveillance. But the idea really was that this sort of openness represented a new form of political power that could be used to initiate some sort of change. Along with that of course goes the idea that the activism of the New Citizen Movement must be non-violent.
EL: Just in terms of numbers, what are we looking at in terms…how big would you estimate the movement is if you can even do that? If you can, if you can.
EP: On the numbers, I have to say I don’t know. Of course we have asked those various questions. There is no very clear answer.
A New Citizen Dinner – From left to right: Guo Feixiong, Yang Zili, Xiao Guozhen, and Xu Zhiyong in a dinner gathering in Beijing. Photo Courtesy of Chinachange.org
Perhaps one could say that in 2013 we had in a number of say in around 30 or so different Chinese cities you had a total of a couple hundred people who were essentially initiating and organizing these meals. And by the way the idea was basically that you had a meal being held at the same time in different locations all over China potentially. So you had a couple hundred people. Perhaps that means a few thousand people who would be willing to show up for one or two or more of those who would be in some way supporting the New Citizens Movement. Perhaps it would be good if we had access to (I have not) the list of people signing the so-called gongmin chengnuo [公民承诺] – the citizens pledge – that was issued in 2010 and was kind of an appeal to citizens from all walks of life to essentially pledge to be a good citizen using this political idea that Xu Zhiyong stands for and others stand for.
Something else that perhaps you could consider would be the level of support that Gongmeng [Open Constitution Initiative], the organization co-founded by Xu Zhiyong, got for its activism for educational rights for migrant worker children. As I recall, at the time it was said that in Beijing they would be able to essentially reach tens of thousands of migrant worker parents. So, certainly they were thinking big. They were thinking that they could reach out to potentially everyone. And if you look at the composition of the citizen meals, it wasn’t just lawyers; it was not just scholars, lawyers, people with legal education or that sort of background. It was also people who were petitioners or people who just took an interest in what was going on there.
Education of migrant children – major political issue in China
EL: You raised the issue of education for migrant children as one of the issues, which would require a change to the hukou system. And some of the other things of the New Citizen Movement advocates like more transparency of Chinese officials and their assets. These are in fact the reforms that in the past year the Chinese government has stated that they are looking to examine or to adopt. So it is seems like the Chinese government is sort of listening to the New Citizen Movement or at least their complaints. But then, how do you mesh that with the fact that they’re arresting the advocates of that movement for disrupting public order. What gives here?
EP: I’m not so sure about that analysis. I think that when you look at what the New Citizen Movement has advocated, yes of course you have some similarities to these reform policies announced by the Chinese government. But, I don’t think that is by itself evidence that the government is following suggestions from the New Citizen Movement. For one thing, these reform ideas were around long before the New Citizen Movement even emerged.
But perhaps more important is that you could also see this the other way around, and this is how it was analyzed by people involved in the various movements that you currently have in China. People were saying that in some ways the New Citizen Movement had chosen to talk about causes that the government had already said it had adopted. That might be a way of coming across as a little bit less provocative than if you do what very clearly and visibly was done in the south of China [in the context of] various movements around Guo Feixiong, another very important right advocate who is based in Guangzhou. What you had there was really the use of much more aspiring and much more abstract political slogans: constitutional government, democracy, human rights — in those words.
So you have this very interesting discussion within these smaller sub-movements if you like, these groups within the human rights movement. Some people were critical of the New Citizen Movement, saying that essentially it was not a good strategy to choose government slogans. I remember one person saying basically that you shouldn’t think that the government is that stupid – those are his words – that ‘[you shouldn’t think that] just because you shout the government slogans they won’t come after you’ — they are not going to let you off just because you shout the identical slogans.
President Xi Jinping of China – listening to the New Citizens?
The reason for that [according to my interlocutor was that] as long as you make political demands of any kind they [the Chinese government] will assume that you want a share of the political power and that’s what the government won’t accept. From that perspective, we were seeing an attempt to be a little bit less provocative by using campaign causes that were similar to the government, but that strategy essentially is not really working. And I think that there is a whole lot more to say about the differences between what the New Citizen Movement, what other movements were calling for, and what the government has so far delivered. For instance, when it comes to anti-corruption and so on.
EL: So you wouldn’t say the government is co-opting the movement?
Since the fall, not a month has gone by where there isn’t some Chinese human rights advocate being prosecuted. The charge is usually the vague and broad claim of “disturbing public order.” Activist Xu Zhiyong (pronounced Sue Zhi young) was given four years in January under that charge, one year shy of the maximum. Cao Shunli (pronounced Ts-ow Shun lee), another human rights, died in police custody while being investigated for the same charge.
EL: Thank you for joining us today Prof. Pils. Let’s start with a little bit of background. These human rights lawyers, who are most frequently referred to as “rights defense” or “rights defending” lawyers, when did they first start to emerge and why?
EP: Thank you. I think that they used to call themselves ‘rights defense – weiquan [维权] lawyers’ – but I think that actually over
Bringing back the law – Deng Xiaoping
the past one or two years, they’ve started preferring the term renquan lushi [人权律师] which means ‘human rights lawyers.’ That’s in a way related to how they emerged. They emerged because in the post-Mao era, especially from the 1990s onward, it became possible to use the law to defend rights, for one thing of course because there [now] was law — it was only under the Deng Xiaoping reform and opening policies that law became an accepted tool of government of the Party-State, after it had been completely denounced in essence as a counter-revolutionary idea in the last decade under Mao Zedong
Then the other thing is that there was a period, [from the beginning of the post-Mao era until] the 1990s when the Party-State authorities were essentially encouraging the use of law to address certain kinds of dispute, certain kinds of conflict in society. During that time, weiquan – rights defense – was actually an officially propagated term. As background, one would have to say that rule by law – yifa zhiguo [依法治国] – was an idea that the authorities were making use of in the Deng Xiaoping era in order to claim political legitimacy. That in a way replaced the political legitimacy coming from the idea of a communist revolution that was what political legitimacy was based on in the Mao Zedong era.
I think that this argument [about law as a tool of governance] is quite right, this is how Deng Xiaoping wanted to develop China in the post-Mao era, but also I think that the authorities, perhaps including Deng Xiaoping, didn’t fully realize what they were letting themselves in for when they promoted the idea of [rule by law and] weiquan. Perhaps this was because they were quite good Marxist-Leninists and believed sincerely that law was nothingother than a tool of governance to be used by the ruling power. Whereas of course, from the weiquan or rights defense perspective, [law] is connected to justice and it’s connected also, potentially at least, to political resistance, to the idea of rights, of human rights. I think that it’s a step toward a more explicitly political agenda that the lawyers who used to be referred to as weiquan lawyers have now chosen to call themselves human rights lawyers.
EL: In terms of the political agenda, the agenda of the human rights lawyers in China, in terms of their issues – is there something that unifies them as a single issue or are there different issues? In general, are they located in one area or do you find them throughout the country.
The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian
EP: I think in terms of area, definitely there is a huge concentration in Beijing and also in a couple of other cities, in particular Guangzhou and of course also Shanghai. But when you look at how they work and where they work, it is very important to see that they really work all across the country. In the Jiansanjiang case you mentioned just before [the interview] you have a couple of human rights lawyers going to this extremely remote location in Heilongjiang with the purpose of freeing, or in any case providing legal support to, a couple of people who are extra-legally detained there. That’s an example of what human rights lawyers do regardless of where they are based.
Is there something that unifies them? My impression in having done so many hundreds of interviews over the past couple of years with, I suppose, a few dozen human rights lawyers, [is that] they are very diverse, they are very different in terms of their personalities, their approach to their work, and in some of their convictions. But there are things that do unite them. I think that for one thing, they see themselves as adopting different methods from what many other lawyers are prepared to do. For instance, they reject the idea of wining and dining the officials concerned in their clients case to get results. In that, they’re not different from a group of lawyers called sikepai [死磕派] lawyers, lawyers who are very uncompromising. But what sets them apart from the sikepai lawyers is that they are willing to take on cases that nobody else will want to touch. I suppose one good example for that is the cases of people who practice Falun Gong. And thirdly, they [human rights lawyers] have recently started identifying more clearly around political ideas. They want democracy.
The more things change, the more they remain the same – 25 years after Tiananmen, still cracking down on dissent
EL: Just in terms of the crackdowns that we are seeing and I think you talk a little bit about this in your previous answer. There has always been a crackdown on dissent in the People’s Republic of China, even in the post-Mao era. You see the 1978 Democracy Wall movement, there is a crackdown. You see the Tiananmen protests of 1989, there is a crackdown. Should we be surprised that the same Chinese Communist Party is looking to crackdown on these rights defense lawyers and activists?
EP: No. No, we should not be surprised. I don’t think that the lawyers are surprised either. And I say this, although I just said that initially, in the 1990s, there was this official promotion of and use of the idea of rights defense. There was, I think, for a couple of years, especially around 2003 when you had the famous Sun Zhigang incident, this notion that perhaps rights defense could mean a bold group of courageous lawyers, legal professionals, and legal academics sympathizing with them, persuading the State to introduce incremental reforms. One of [these reforms], for instance, could have been to introduce some sort of meaningful constitutional adjudication — whichever mechanism one would have used — this would have made a potentially very great contribution towards making constitutional rights guarantees more effective in actual people’s lives and actual legal practice in China.
So, [until around 2003] you had that hope — and of course along with that an expectation — that the State would tolerate weiquan. But actually very early on, from the moment almost when they started being successful, these weiquan lawyers also encountered repression. I think we now understand better than perhaps a couple of years ago, that that was really based in a high-level perception that weiquan presented a political challenge and that consequently, it had to be controlled.
So, what has been happening from about 2004 and especially over the past couple of years, has been a tightening of control, and the use of ways of trying to stop lawyers from engaging in weiquan. I don’t think that anyone I have spoken to has been surprised by what has happened.
EL:So in terms of the tightening of control, you mention that the Sun Zhigang case in 2003 is kind of a high point. But then by
Locked Up for Four Years – Human Rights Lawyer Xu Zhiyong
2009, we see a government crackdown with Gao Zhisheng basically being abducted and being held incommunicado. Also in 2009, you see the disbarment of activist lawyers like Tang Jitian and Liu Wei; you see Xu Zhiyong being investigated. Then in 2011, with the Arab Spring, we see another crackdown. Now, 2013, 2014, we are seeing perhaps the worst treatment of advocates. So you were talking about how some of the responses [to weiquan lawyers] is coming from high-level. I think a lot of people see these different crackdowns as separate incidents, just a knee-jerk reaction by the Chinese Communist Party. But should we see it that way or should we see it as part of a larger trend?
EP: I think that it is based in a decision that as I just said was essentially made in 2004 that they would have to be controlled and I think that basic attitude and policy has remained the same also before and after the recent changes in leadership. So I definitely think this is part of a larger trend, yes. I think that also the situation at the moment is worsening.
EL:I think we can guess what it that the Chinese government is so afraid of. But what precisely is it? Is it the issues themselves or is it another power base that could take away power from the Party? What is it that they are so afraid of?
EP: Well, I think from the perspective of the Chinese authorities, or at least from [the perspective of] that part of the Chinese government that is entrusted with the task of stability preservation – of weiwen[维稳], it’s quite clear (and perhaps it is clearer to them than to lots of people outside and inside China) that the human rights movement of which human rights lawyers are of course an important part, stands for political ideas that challenge the Party’s political existence.
“Social Stability” at all costs
There is a perception also amongst the establishment that the current system isn’t viable unless it’s somehow changed. But I think what leads to this attitude of having to crack down on human rights lawyers is that the establishment, the authorities, are completely reluctant to allow any civil society forces to take control of the changes that need to be introduced. So, yes, there may have to be changes; but certainly we, the Party-State, want to stay in control of changes. Another way of putting the same thing, I suppose, is to say that the tizhinei [体制内]forces, the system, the establishment, can’t accept the idea of accountability to people outside of the system; and in a way, it is not institutionally set up to accept that idea. That of course means that the notion, the idea of political opposition, the idea of a free open political discussion of popular grievances, of the forces of social unrest, of the various contentious issues which you have in Chinese society right now is even less acceptable.
China’s rise raises a lot of questions for the rest of the world. How will it flex its increasing military might? What impact will its insatiable demand for resources have on the rest of the world? Will its economy overtake the US’ in the near future?
Another question that is being raised with more frequency is: as China becomes a more equal player on the world stage, how will its views of human rights impact the development of international human rights laws and the role of the United Nations.
On Friday, April 13, RightsLink, a human rights law research organization based out of Columbia Law School, will host a forum examining exactly the issue of China’s influence on international human rights discourse. It is likely inevitable that China will begin to have a louder voice on the human rights world stage, but is that destined to be a bad thing? Find out on Friday at what will likely prove to be a thought-provoking discussion.
Rightslink Henkin Forum: Rise of China and Its Influence on Human Rights
Friday, April 13th, 2012 1:30 – 4:30 (2 Panel Discussions – see below)
Columbia Law School Room 103, Jerome Greene Hall 435 W 116th Street Box Lunches will be Served
Schedule 1:30 – 2:45 pmChina, the UN, and Influence on International Human Rights
Moderator: Professor Ben Liebman – Robert L. Lieff Professor of Law and Director of the Center for Chinese Legal Studies, Columbia Law School
Panelists: Thomas Kellogg – Program Director, Open Society Institute; Adjunct Professor, Fordham Law School Steven Hill –Counselor for Legal Affairs, United States Mission to the United Nations Eva Pils – Associate Professor, Faculty of Law, Chinese University of Hong Kong 3:00 – 4:30 pm China’s Relationship with Africa and its Impact on Human Rights Moderator: TBA
Panelists: Matt Wells – Researcher, Africa Division, Human Rights Watch Sarah Cook – Senior Research Analyst, East Asia, Freedom House
The tale of Wukan village is not an uncommon one in China. Rural farmland is constantly taken by corrupt village officials for real estate development and the villagers – the owners of the land through the collective – receive little to any compensation. For certain Wukan’s story is a little different from other run-of-the-mill land taking protests: the length of the protests (close to three months), the unity of the group (close to 20,000 villagers), the complete expulsion of the Chinese government from the village, the death of a protest representative in police custody, and the attention from the western media distinguishes Wukan from other taking protests.
But now that it appears that the villagers and the provincial government have reached some sort of agreement, has Wukan ended differently from other protests?
Some China watchers have argued that it has and see Wukan as the general populace’s deepening understanding of its rights under the law and its willingness to fight for those rights (see here and here). But given the discriminatory structure of China’s Real Property Rights Law (“the PRL”) and the Land Administration Law (“the LAL”), one hopes that these villagers are not really fighting for their rights under the law as it stands now. As Prof. Eva Pils points out in “Waste No Land: Property, Dignity and Growth in Urbanizing China”, China’s property laws have been written specifically to render villagers into “second class property rights holders” and permit their land to be legally taken for urban development. The below summarizes much of the article and views the Wukan protest in light of Prof. Pils’ analysis.
How Villagers in China Get Screwed
(1) The Limitations on Rural Land Use Rights
As a nominal communist country, land cannot be privately owned in China. The PRL, passed in 2007, maintained that distinction. Instead, the land is owned publicly; in urban areas, the land is owned directly by the state; in rural and suburban areas, the land is owned by the village collective, usually through the villagers’ collective economic organization or the village committee. This difference in ownership between urban land and rural/suburban land is not just limited to who owns the land, but extends to what individuals can do with the land.
Although not directly owned, individuals are able to own certain usage rights associated with the land that they occupy. These land usage rights differ depending on the underlying ownership of the land – if it is owned by the state or if it is owned by the collective. In urban areas, these usage rights include the ability to live on and to construct non-primary residence buildings on the land (known as “construction rights”); rights to the land can last for 70 years in urban areas. As a result of the ownership of these “usage property rights” and the fact that these rights last for 70 years give urban residents the ability to buy, sell and lease their usage rights, providing somewhat of an appearance of actual individual ownership.
But in rural areas, the usage rights are much more restricted and this is where the problem first begins. First, villagers are pretty much limited to one type of usage right: the right to farm (there are other rights, such as the right to building housing). Under the LAL, which was adopted in 1986 and last amended in 2004, this land use right cannot be transferred or rented for “non-agricultural construction.” (See LAL Art. 63). Urban land use rights have no such restriction. The Property Rights Law (“the RPL”), passed eight years later, continued the limitation on rural usage rights.
Furthermore, rural land use rights are limited to 30 year terms. As a result of these restrictions, there is no free flowing market for the sale of rural land use rights – real estate companies interested in building a housing complex in a suburban area do not go directly to the owners of the rural land use rights; all they would be able to purchase is the right to farm the land (note that Prof. Pils does discuss the illegal minority use rights market between the farmer and the real estate investor).
Instead, where a real estate company is interested in building a housing complex or a factory in a rural area, the land must first undergo a transformation from a rural (where usage rights are limited to agricultural purposes with 30 year terms) to urban land (with “construction usage rights” for 70 years). To undergo such a transformation, the land must go from being collectively owned by the villagers to being state-owned. Under Article 60 of the PRL, it is the “village’s collective economic organization” or the “villagers’ committee” that acts on the villagers’ behalf, negotiating the compensation for the villagers’ land use rights.
As Prof. Pils points in her example of the Nongkou village in “Waste No Land,” the village committee itself often acts in its own interest, not that of the villagers. It appears that in the case of Wukan, the village committee was not representing its constituents; part of the reason that the Wukan villagers deposed of its government was the allegation that the village committee was corrupt and not reflecting the interest of the villagers.
(2) No Just Compensation
The first problem for villagers is the fact that the law leaves them with second class property rights – usage rights that can never be sold for non-agricultural purposes, necessitating the expropriation of the land by the village committee. But the second major issue is that the compensation villagers receive – if they receive anything at all after the village committee is done with the transaction – is nowhere near what is being paid for the transformation of agricultural land into urban land.
Under Article 47 of the LAL, when agricultural land is expropriated, compensation is “made according to the original purposes of the land being expropriated.” As a result, farmers are only entitled to compensation of the value of what they would have farmed over the remaining life of the 30-year lease rights (there are also other compensation other than the value of the land use right, such as resettlement fees but the largest part of the compensation package is for the land use rights).
The villagers themselves do not reap the benefit of the market value of the underlying land or even the full value of what they are relinquishing. In fact, as Prof. Pils notes, for most villagers, the compensation is a mere 5% to 10% of the value of transforming agricultural land to urban land. Article 49 of the LAL requires transparency to the village regarding money received by the collective for the land, but as the Wukan protesters point out, they had little knowledge of anything that was going on.
Furthermore, any complaint regarding the amount of compensation occurs after the compensation plan has been set (see LAL Article 48), making one wonder – what can really be done after the fact. Again, as Prof. Pils notes, because the compensation schedule is considered an administrative decision, it is not subject to judicial review, leaving the villagers with little legal recourse to contest the compensation (although petitioning always remains as an option).
Compensation appears to be a major in the Wukan protest. As part of the brokered settlement between the villagers and Guangdong provincial officials, the low-level of compensation will be reconsidered. (See China Media Project’s translation of a Nanfang Daily article). Hopefully, the villagers will be able to recoup some of the value of the actual transfer of the land to urban use and not just the value of their agricultural land use rights.
(3) The Discriminatory Definition of Public Interest
As Prof. Pils argues in “Waste No Land,” given China’s economic development philosophy over the past 35 years and the fact that land takings account for a significant portion of the local GDP, converting agricultural land into urban land is inherently defined as a taking for the “public interest.”
In fact, the whole drafting of the 2007 Property Rights Law has been predicated on the ability of governments to easily and cheaply take rural lands without providing the villagers with a more realistic compensation. Although both the Chinese Constitution and the PRL reiterate the government’s commitment to equal protection of the laws, the purposeful distinction between urban land use rights and rural land use rights, Urban land use rights are not under the same restrictive
The third and biggest challenge to being a villager in rural China is the expansive definition of “public interest.” Takings of rural land against the villagers’ wishes are legal in China if it is done in the public interest.
In January 2011, the State Council promulgated new regulations (in Chinese here) better defining “expropriation for the public interest.” But those regulations were limited to state-owned land, or in other words, urban lands. In the countryside, what is the public interest remains intentionally vague.
So What Happened in Wukan?
Wukan is not an example of villagers seeking their rights under the law. China’s property laws – the PRL and the LAL – provide little rights to villagers.
But there is certainly something happening here….I’m just not so sure what it is and perhaps it is still too early to determine if Wukan is in fact a harbinger of something more. Protests in China against rural land takings and the lack of just compensation occur on an almost daily basis. But in Wukan, these protests were large, public and extreme. Add to the mix that one of the protest leaders died while in police custody.
On some level Wukan had the potential to end differently, to end violently. But it didn’t. Instead, the provincial government stepped in to admonish the local officials (although interestingly enough such punishment is going to happen outside of the legal system and under shuangguai, the Party adjudication method – see Nanfang translation), praise the villagers, admonish against further protest and agree to provide greater compensation.
But how often can the provincial or central government step in and continuously calm these tensions? Arguably the government must recognize that it is the structure of the law itself that leads to such discontent. But such a discriminatory law is necessary to provide for real estate development, an increasingly important part of China’s GDP. Will the government change this paradigm and provide equal property rights to villagers? Right now it is unclear. Wukan seems to have ended in the same way as all of these protests do. But perhaps this time the central leadership will realize that constantly involving itself in these local protests is unsustainable.
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Owen Bennett Jones, on his new and insightful BBC radio show, NewsHour Extra, discussed the recent assault on China’s rights-defending lawyers. Featuring Dr. Li Ling of NYU’s U.S.-Asia Law Institute, Prof. James Feinerman of Georgetown Law School, Prof. Eva Pils of Kings College London, barrister Philip Riches, and yours truly, the discussion proved lively if slightly pessimistic regarding the current crackdown on China’s rights-defending activists and their future under the current Chinese Communist regime.
Themocracy