(Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之伟), 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 (童之伟) 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
http://libertyzw.fyfz.cn/art/806865.htm
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.
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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