Thursday, February 23, 2012

Part XVII—Zhiwei Tong (童之伟) Series: Interview; As long as there is determination, then we can curb the violent demolition and relocation

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.

     (Pix (c) Larry Catá Backer 2012)

Part XVII—Zhiwei Tong (童之伟) Series:  As long as there is determination, then we can curb the violent demolition and relocation
November 14, 2010

Translator's Note: Chāiqiān (拆迁) has been translated as demolition and relocation.  The connotations itself are actually more complex and involve issues similar to the use of eminent domain in the United States.  In China, chaiqian has been used as a tool of rapid development.  Entire buildings, blocks, neighborhoods and areas are being bought up, the buildings demolished and new buildings built.  The inhabitants are paid a compensation fee (sometimes substantial) to relocate somewhere else.  Oftentimes, the inhabitants are provided with new housing to replace the old housing that was going to be demolished.  The process, unfortunately, is not always peaceful and is also quite frequently corrupt.

Background: In recent years, the scale of urban and rural housing demolition and relocation has increased from one home at a time to whole blocks and whole villages.  This process is filled with too much violence and blood and tears.  Just on New Year’s Day 2010 alone, violent demolition and relocation of homes have led to a long list of cases of suicide, self-immolation and murder cases.  The violent demolition and relocation takes on a variety of forms, the most common being the use of hard violence in blood and fire, such as the Jiangxi Yihuang forced suicide, besiegement and corpse snatching; there are also various forms of soft violence, including the rigid order given by the leading officials of Fangshan District in Beijing: “If you cannot finish the task, then don’t bother coming back to work!”  Can we really not curb the violent demolition and relocation of homes?  Host Wu Xiaofeng of Legal Daily, View One on One invited Professor Tong to comment.

Host: “Why has there been one bloody incident after another when it comes to the violent demolition and relocation of homes?  What is the mechanism that is driving local government officials and developers to act so recklessly?  Is it that there are no legal deterrents to prevent them from taking the risks?

Tong Zhiwei: “Businesses and their owners pursue profit, local governments and officials must accrue political achievements, and they both require money.  The owners are looking for money for additional investment, while government and officials are looking for new projects to increase fiscal revenue.  The pressure that they need to withstand is quite strong; therefore they need each other like dry wood and fire.  Once they are combined, they will explode.  Can the process of demolition and relocation be done in a more relaxed fashion?  No!  Businesses and their owners face competitive pressures, local government face performance pressures.  This entire situation involves the political system.  In China, the political future of officials is determined by their superiors.  These superiors use development to measure the performance of these officials.  Of the developmental indictors, the most visible and tangible is GDP.  As a result, they can only direct their efforts to meet this criterion.  They cannot lead the people to live a calm and stable life.  Even if the people are satisfied, they will lose the opportunity for advancement.

In the discussion of the accumulation of capital, Marx quoted an article from Critic Quarterly to describe the nature of capital: “Capital fears where there is no or very little profit, like a natural fear of vacuum.  Once there is a suitable level of profit, then capital will boldly rise.  If there is a 10% profit, then capital will be employed everywhere; 20% profit, capital will be lively; 50% profit, capital will be willing to take risks; 100% profit, capital will dare to trample over all human laws; 300% profits, capital has the courage to commit any crime to the point of risking being hanged.”  The disposition of capital in China is no different.  Local officials, hungry for promotion, recognize the performance requirements for their advancement that is akin to the performance requirements for capital.  Profit-seeking and performance-seeking behaviors are dominated by the same rules.  In China’s political and commerce relationship, government is the dominant aspect.  As a result, the root cause of violence, blood and tears in demolition and relocation of homes lies in the nearly zero roles played by public opinion and voting.”

Host: “Violence in demolition and relocation is on the rise, and has reached the stage that it must be prohibited.  Do you see whether China today can fundamentally curb violent demolition and relocation?  What ways are there to curb this violence?

Tong Zhiwei: “From our current situation, while there are many drivers in violent demolition and relocation, as long as those public power agencies have sufficient determination, the process can fundamentally be curbed.  There are those who are keen to talk about the Chinese model.  In my view, the most prominent feature of the so-called Chinese model is the extensive use of public authority in economic life.  Therefore, violence in demolition and relocation of homes can be seen as a direct result of the excessive use of public power.  Such a problem can only be solved by the entities that are causing this problem.

If we are seeking an immediate stopgap solution, the best way to curb the violent demolition and relocation of homes is to investigate the political responsibility of those involved.  Are you going to use brutal demolition and relocation of homes in the pursuit of performance requirements for promotion?  Okay.  As long as there is evidence that there are violent demolition and relocation, regardless of whether they are fatal consequences, local government leaders and leaders in charge must face demotion or dismissal.  After that, see who still dares to continue to violently evict and demolish.  In the short-term, at least, no one will dare.  Unfortunately, examples of serious investigation of responsibility are too few and the warnings only have limited use.  However, the occurrence of demolition and relocation are too frequent that if we do not hold the behavior of demolition and relocation accountable until someone is killed and then we investigate the responsibility, I’m afraid that the effect of the curb will be quite limited.  This kind of situation will cause officials to try their luck and take the risk.

From the demolition and relocation that has occurred so far, those implementing demolition and relocation should be held criminally responsible on charges of violating civil and property rights.  In addition, there are the associated civil liabilities.  In reality, however, there have been rare cases where an individual has been indicted for such activities and even rarer for someone to be actually found liable.  If we can strictly utilize the law to hold those performing demolition and relocation responsible, we will be able to curb demolition and relocation.  However, to do this is quite difficult.  China’s reality is that justice has been localized and the judiciary does not operate independently.  Whether to hold some accountable of the criminal responsibility of performing demolition and relocation depends heavily on the willingness of political leaders.

Public power has several methods in his hands to curb violent demolition and relocation.  Among these, the power to adjust the set of performance evaluation indicators of officials; will be extremely useful.  Of course, from an economic perspective, the appropriate reduction the national pursuit of GDP growth should also be able to create the conditions for the realization of the goal to curb violent demolition and relocation of homes.”

Host: “A while ago, there has been discussion of the repeal of the existing Demolition and relocation Ordinance, to publicize a new Demolition and relocation Ordinance.  The public interest has been quite high.  Why has there recently been no discussion?  How can China improve on the legislative front?”

Tong Zhiwei: “Years ago, I wrote a lead article that systematically dissects the unconstitutionality of the Urban Housing Demolition and relocation Ordinance.  The compensation for demolition and relocation of housing is actually a levy and should be regulated by the National People’s Congress or its Standing Committee.  The new Demolition and relocation Ordinance also has this problem.  Demolition and relocation will always be led by the government.  Almost every time that there are demolition and relocation of housing, there is overt or covert support from the local government.  Now, local finances are basically the finances of selling land, the relationship between government and demolition and relocation has become too intimate.  Therefore, the State Council has seized control of and has been unwilling to let go the power of the new Demolition and relocation Ordinance.  The new Demolition and relocation Ordinance is only a few pages long, with the important sections only amounting to a few words.  Why then has it been so difficult to finalize?  It is because the nature of the zero-sum game that it is difficult to balance the interests of: the continuation of land sales for finances and the performance of local officials are dependent upon demolition and relocation (and so they want to spend as little as possible for the land and sell the land for as high as possible); on the other hand, citizens out of consideration of their livelihoods hope to get the best possible conditions for the demolition and relocation of their homes and avoid property value losses and want the value to actually increase.  The new Demolition and relocation Ordinance is a program for the allocation of “power.”  In comparison with the old regulation, the power of the new regulation seems to take a step back.  If there are indeed concessions, they were forced.  Therefore, if they can push back the implementation of the new regulation by one day, they will do so.  For every day that the new regulation is stopped from being implemented, the more gain for the local government.”

Host: “Are there any experiences from abroad that we can learn from?  Are there any city that has had a peaceful experience with demolition and relocation that we can learn from?  I wish that one day in China that demolition and relocation no longer goes hand in hand with violence.”

Tong Zhiwei: “Forced demolition and relocation does not equate with violent demolition and relocation.  The legitimate use of forced demolition and relocation is something that no country can completely avoid.  The key, however, is whether there is a fair and reasonable method developed on the basis of democracy and not bound by the opinion of local authorities enforcing the law.  When there is a dispute, the existence of an independent and impartial organization to help referee and resolve the dispute is also important.

There are examples of cities where demolition and relocation have been done peacefully.  In general, the process in Shanghai has been fairly calm.  In some parts of Shanghai that I’ve gone to take a look, such as Chongming District, the scale of demolition and relocation is great.  Although there seems to be no end to the wrangling, there the situation has not spun out of control and there have been no casualties.  This, of course, has some relationship with the degree of the rule of law that has been developed in Shanghai, but it has more to do with the fact that local government has money and are willing to pay a good price.  The majority of the citizens who live in Chongming seem to be willing to have their homes be demolished and for them to be relocated to the point that some are even offering to do so.  There is a profit in doing this.

If we can appropriately reduce focus upon GDP, the demand for demolition and relocation will be reduced.  If we can give more benefits/compensation to those whose homes are being demolished and are being relocated, improve legislation, establish a dispute-resolution mechanism and use a heavy hand in suppressing illegal demolition and relocation, then violent demolition and relocation can be curbed.

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