by Liu Xiaobo
At home in Beijing, July 10, 2002
Original text available at http://zyzg.us/thread-148537-1-1.html
Translated by Michael S. Duke and Josephine Chiu-Duke
STATE OWNERSHIP OF LAND IS THE AUTHORITIES’ MAGIC WAND FOR FORCED EVICTION
CHINA’S 2007 “PROPERTY LAW” may have brought some order to the question of land seizures by providing evicted people with compensation and guaranteeing their living standards. Yet one of the core purposes of the law is to preserve the principle of “public” ownership of land, and this is the provision that allows the government, using the powers and procedures of the law, to expropriate not only land and work units that have been communal property but also private residences and other real estate, provided only that such action is deemed to be in the “public interest.”
The equal protection of public and private property in the Property Law has won general approval, but the rules about land ownership rights have been widely criticized. As conflicts between the government and the people over forced evictions and the commandeering of land have increased in frequency and intensity, many experts have called upon the government to reform the land ownership system as quickly as possible. The noted economist Mao Yushi, for one, has said the Property Law cannot resolve China’s unending problems of illegal evictions. Only the privatization of land can do that.
In the past few years, forced evictions in the name of “public interest” have increasingly given rise to conflicts between the government and the people, and have caused people to resort to ever more virulent modes of resistance. Injuries and deaths in the wake of forced evictions are now common, and the suicides that occur are hardly random. The case of Zhu Zhengliang, who traveled with his wife from rural Anhui Province to Beijing in September, 2003, to protest their forced eviction, and who eventually attempted to immolate himself in Tiananmen Square (and was, thankfully, rescued and treated) is an extreme example of how evictions followed by the failure of all remedy can lead to despair. For the same kinds of reasons, in March 2007 the famous “nail house” stood in perverse isolation in Chongqing: Yang Wu and his wife, Wu Ping, became briefly famous at the time for refusing to sell their family home to make way for a shopping mall. They held out against the developer despite being left stranded in the middle of the excavation—like a nail sticking out of a board that cannot be removed or pounded flat.
It is a common pattern that the Communist government and its agencies draw up development plans in secret and then enter into commercial arrangements that properly should be no business of a government. Officials serve as the backers, protectors, and interested partners of developers. They look the other way when developers use criminal tactics of terror, intimidation, and violence to evict people from their homes and land. The tactics range from cutting off water and power to using police to detain people or even hiring thugs to beat homeowners, to set fire to their property, or to kidnap them in the middle of the night. When victims of such abuse take their complaints to government departments—whose job is supposed to be to protect such victims and to deal with the perpetrators—the victims find themselves wandering from the Eviction Office to the Petitions Office, and from there to the Public Security Bureau, to the Discipline and Inspection Commission, and finally to the courts. These agencies almost always side with the developers, law or no law. The Eviction Office sanctions the evictions, the Petitions Office forwards no petitions, the Public Security Bureau looks but does not see, the Discipline and Inspection Commission knows without needing to inquire, and the courts either refuse to accept suits or decide against plaintiffs. In short, lacking basic human rights, and with impediments stacked all along the way, evicted people who face greater losses day by day also face huge barriers to any administrative justice or legal protection. The result is that taking to the streets becomes a standard way of seeking protection of rights. Self-immolation, the most extreme of protests, is a last resort of the powerless.
China Economic Times reports an incident in which a family living in a house near Changchun Bridge in Beijing’s Haidian District—a house that was slated for demolition—was sleeping in bed one night when five or six thugs carrying halogen flashlights and long wooden staves suddenly barged in. They tied up the entire family, blindfolded them, stuffed their mouths, and threw them outside as though they were garbage. Later, under cover of night, the family members heard a great crashing and rumbling sound, which lasted for less than forty minutes. Their house had been flattened by a steam shovel. To this day the criminals have evaded the law.
Zheng Enchong, a lawyer in Shanghai who helped more than a hundred evictees bring lawsuits against this kind of abuse, adduced evidence that exposed the illegal power-grabs and profit-nabs of government officials and certain meteoric millionaires, such as Zhou Zhengyi [the Shanghai property developer who at one point was rated the eleventh wealthiest person in China but in 2007 ran afoul the local power elite and was sentenced to sixteen years in prison on charges of bribery, embezzlement, and tax fraud.—Trans.]. Zheng’s effrontery made him a thorn in the side of Shanghai’s rich and powerful, and he began to receive a stream of threats, harassment, and surveillance. Then the authorities revoked his license to practice law. It was Zheng Enchong who had exposed Zhou Zhengyi’s wrongdoing, so when Zhou was called to accounts, one would think that Zheng should get some credit. Instead he got a three-year prison term on the specious charge of leaking secrets.
When people struggle to protect their interests against the powerful government-business combines that expropriate land and evict people, they suffer misery, helplessness, and despair. Suicides lay bare the cold-bloodedness of officialdom and the avarice of capital for all to see. How is this cold-bloodedness and avarice able to have its way, without impediment? Why has forced relocation been so savage, and compensation so meager? Why do legal appeals go unheard and get nowhere? The most important factor—by far—is the enormous asymmetry between the government’s power and the rights of ordinary people. Where citizens should have rights to private property, fair exchange, and legal recourse—to say nothing of rights to a fair trial and to personal safety—there is only a yawning gap. The plethora of tragedies that evictions cause—extending even to suicide—reveal not only the harm that monopoly of political power can produce but also the desperation in the resistance that people are prepared to offer.
China’s reform began in rural areas in the 1970s when the “responsibility system” allowed “land-use rights” to farmers and allowed households to keep or to market their own harvests. This had not been possible under the “People’s Communes” system that had gone before, and this devolution of power became an important motive force in economic reform. Among farmers there arose a craze for owning one’s own home, and the craze spread to cities when “land-use rights” similarly became available there. Housing then became a commodity, and a market in land-use rights appeared in a number of guises. We should not doubt that the whole process was genuine marketization and privatization even though it sprang from offices of the Communist Party. Still, because the crucial item of land ownership remained a government monopoly, we can only call it a “half-baked privatization”: the power to decide what property would be withheld and what would be parceled out remained exclusively in official hands, and huge profits, easy to scoop up, rested in the balance. These opportunities became the private preserve of the power elite, into whose pockets nearly all revenue from the sale land-use rights began to fall. The housing business became a disaster zone of corruption.
Today all land in China, rural and urban, remains legally “state-owned.” The government can sell land-use rights to people, but what the people get are effectively leases. Under the rural “responsibility system,” farmers can have what they harvest from their labor on the land, but could never realize a gain by selling it. This is why, in the face of the large-scale eviction that has been going on in cities, ordinary people feel that they have no way of resisting what the powerful combines demand
, and no way to get fair compensation for their losses.
Before 1949, China had a group of people—landlords—who owned land and took profits from it, and another portion of the populace, but only a part, who rented land as tenants. After 1949, a thorough nationalization of property eliminated the landlords and set up a system of “equal rights to land” and “power of ownership.” The owner of the land became the Communist regime acting in the name of the nation. Now it was, in effect, the sole landlord in China. Rural people in the Mao era, while farming “state land,” were something like serfs. In the post-Mao period people became, at best, more like tenants. They have rights to use the land they rent. But a tenant can live on a certain piece of land only as long as the landlord is willing. When the landlord is no longer willing, he can evict a tenant, and that’s that. From this perspective, the system of the Communist regime’s expropriation of private property rights by force has been far more savage than anything that happened under any regime before 1949. Three points are worth examining in more detail:
1. The phrase “state land” seeks to confer “legality” on forced evictions. The term state land echoes a phrase that was in use in China in the early part of the first millennium BCE: “Of all under Heaven, there is none that is not state land.” In that era private land ownership was not legally recognized, and rulers claimed to own all land as proxies of their states. Today China’s entire regulatory framework regarding land, beginning with the “Regulations Concerning Expropriation and Management of Urban Residences” announced by the Communist Party’s State Council in 2001, and including the corresponding regulations of local governments at all levels, takes the state ownership of land as its legal foundation. It gives government departments complete authority to use any means they like in doing their expropriations. It further gives them, with developers, authority to set land prices unilaterally when they evict people. It is the magic wand of forced evictions.
Such “legality” is a classic case of bad law. When it commodified housing, the government chose to sell rights to use “state land” to private parties. This amounted to a mutually acknowledged contract between those people and the government, and a contract, by definition, is binding on both sides. When one of the parties—the government—unilaterally tears up a contract, it violates the law. To put the point another way, when a private individual has paid money to the government to buy the right to use land for a set period of time, the government that has received payment in return has no legitimate grounds for using its status as landowner to force a homeowner to sell to a developer.
Even more important is the fact that land has long been recognized as the most important form of property. In today’s China, rights to use land are the root of prosperity for farmers, just as, for urban people, rights to home ownership are the foundation for a lifetime of saving. State ownership of land should in no way bestow legality upon forcible eviction; on the contrary, the people’s rights to land use should give them legal power to oppose evictions. This is why landgrabs in the countryside and evictions from homes in the cities are first and foremost questions of property rights. Only secondarily are they questions of compensation. Property ownership should be viewed as a basic human right, and forcible expropriation the deprivation of a basic human right.
People throughout Chinese society have challenged the State Council’s “Regulations Concerning Expropriation” and the associated regulations of local governments. Not only experts have been skeptical; ordinary citizens have raised questions, too. On August 31, 2003, six Beijing residents submitted a petition to the Legal Work Committee of the National People’s Congress arguing that the expropriation provisions in the “Beijing Municipal Procedures Concerning the Expropriation and Management of Residences” and the State Council’s “Regulations Concerning Expropriation” seriously contravene Articles 3, 4, 5, 6, and 71 of China’s “General Principles of Civil Law” as well as Articles 13 and 39 of China’s Constitution. [Article 13 states: “The state protects the right of citizens to own lawfully earned income, savings, houses, and other lawful property. The state protects by law the right of citizens to inherit private property.” Article 39 states: “The home of citizens of the People’s Republic of China is inviolable. Unlawful search of, or intrusion into, a citizen’s home is prohibited.”—Trans.]
2. Without full and secure property rights there are no rights of fair exchange. In a perfect market, full and secure protection of private property is a prerequisite for free and fair trade. It is what makes the rights of two sides equal in an exchange. With the “half-baked privatization” that we now have in mainland China, the rights of the two sides are severely out of balance, and fair market exchange is impossible. What we have instead is unfree, and even less fair, property seizures, with unilateral determination of prices.
When exchange takes place in China today between two private parties, each of which bears equally defective rights, the exchange can still be roughly equal. But when “exchange” takes place between an ordinary citizen and the government—or a combine of the rich and powerful backed by official interests—the official side enters with absolute land-ownership rights in its pocket while the citizen has only a deficient land-use right. An ordinary person has no alternative but to accept an unfair deal. In the long term this kind of unequal exchange, which is arranged in secret, exacerbates official corruption, damages the authority and dignity of government, and undermines the government’s ability to carry out its proper functions.
Once any piece of land in mainland China, urban or rural, falls under a government development plan (be it for urban design, commercial development, or infrastructure such as railways, bridges, airports, or reservoirs), land that is “private” in terms of its land-use rights reverts to land that is “public” because of ownership. People must accept the stronger side’s purchase agreements, compensation offers, eviction deadlines, and relocation sites. When the regime wants to bring a private entrepreneur into line, even a large one, simple mention of the phrase “loss of state-owned property” can, in the blink of an eye, turn massive family wealth, accumulated over many years, into a bubble. If victims of such extortion can settle for mere bankruptcy, they are being let off easily; often they have to pay with a prison sentence.
Examples of government use of intimidation to force unjust exchange, and thuggery to force evictions, are legion. Such methods contravene the following articles of the regime’s own Contract Law:
Article 3. Equal Standing of Parties: Contract parties enjoy equal legal standing and neither party may impose its will on the other party.
Article 4. Right to Enter into Contract Voluntarily: A party is entitled to enter into a contract voluntarily under the law, and no entity or individual may unlawfully interfere with such right.
Article 7. Legality: In concluding or performing a contract, the parties shall abide by the relevant laws and administrative regulations, as well as observe social ethics, and may not disrupt social and economic order or harm the public interests.
The standard tactics also violate the following article of the Criminal Law:
Article 226: Whoever buys or sells commodities by violence or intimidation, or compels another person to provide or receive a service, if the circumstances are serious, shall be sentenced to fixed-term imprisonment or criminal detention of not more than three years and shall be fined, or fined only.
These articles clearly establish that forcible commerce is illegal. In particular, forcible buying and selling that resorts to violence or threats should be severely punishable under the law.
Even so, because the regime holds the two magic wands of absolute political power and “state ownership of land,” no citizen, no matter how much reason is on his or her side, can resist the force of the bulldozer.
3. The rights to timely notice, to agreement, to appeal, to fair judgment, and to personal security are all lacking. When it determines its land development plans, the Communist government at all levels routinely
ignores people’s basic rights, including the right to be notified. It pays not the slightest attention to public opinion and holds no public hearings. At most it does a bit of “expert testimony” and “open bidding,” but ignores the views of the people whose land is being taken away and makes all arrangements inside a black box where unchecked power, official corruption, and the trading of wealth for power are what make things happen.
When it implements its plans, the government and its allies in the power elite proceed basically by force. They disregard the circumstances, opinions, and expressed needs of the people whose land is being taken—and they always win. It is very hard for the people to get their appeals heard, and even when they are heard, they bring no result. The “big-picture interests of society as a whole” lead to the waving of the magic wand of “state ownership”—even though, in reality, these phrases are only outriders for the interests of the government and the power elite.
As the power of government offices becomes daily more bloated, the consequent erosion of individual rights becomes ever more serious, and the result is a situation of extreme injustice in which a tiny power elite reaps exorbitant profits while the vast majority of ordinary people see their interests dwindle. Living in the fear that one’s farmland will disappear or one’s house will be bulldozed, and with no possibility of legal recourse (or any other recourse), ordinary people invent their own ways to pursue their property rights. Rural people travel to towns and cities where they petition, protest, and sometimes surround government offices. Urban people file lawsuits, demonstrate, and if all else fails take poison or immolate themselves. If people want to pursue their interests, and to find relief from the predations of the rich and powerful, their only alternative is to throw themselves into the “rights-defense movement” that has been growing in China and that offers long-term, gradual popular pressure as a means to force the government eventually to return rights to the people.