Tuesday, October 2, 2007

A Maiden Voyage for China's Property Law

This is my translation of an op-ed piece on http://www.nanfangdaily.com.cn/, which points out the pre-conditions for the effective operation of the recently enacted Property Law in China:-

“On March 16 the National People’s Congress passed the draft Property Bill, which will become law as of tomorrow (October 1). We will use “compulsory eviction” as a moot point to describe a once cruel urban landscape in the absence of such a law, as well as reveal the effect of private property right being forcibly distorted, and in some cases even barbarically erased. Now, with the Property Law finally in place, the nation is hopeful that it will serve not only to heal the socio-psychological wounds once inflicted by compulsory eviction, but also to uphold justice and confirm the rule of private property law.

As an important pillar of China’s civil law, there is a significant meaning for the Property Law to take effect on National Day. The eight readings of the draft bill over a span of 13 years are sufficient proof of the necessity and urgency for such a law. The fact is, the slowness and difficulties attending the birth of the law are directly proportionate to the multi-layers of ideals that it embodies. As revealed in many in-depth news reports, destinies of individuals and families have often been subverted by compulsory eviction, while administrative blunders have exacerbated social injustice as well as created a potential cause for social instability. Although one cannot expect the Property Law to be a panacea for all ills, it nevertheless is a promise to recognize private property right as such. At least it is a fundamental means to deter or prevent the plundering of private property, although it is not the only means.

Of course, to thoroughly cure compulsory eviction is not the only content of the Property Law. However, now playing out all over China are scenes after scenes of brutal eviction, which will be good testing grounds for the new Property Law in terms of its tenacity and surviving ability in real life situations. Perhaps it is hard to make any judgment, as the nation presently is going through a climax in compulsory evicting acts. However, the vicious genes bred by compulsory eviction will not disappear with the birth of the Property Law. Rather, they will mutate into a new reactionary power in the new battle ground. For this reason, the post-Property Law era will not be a peaceful world, rather, as in the past, the Law needs to be fought for. In other words, the extent to which the Law can be put into practice depends on its confidence and ability in harnessing state authority, as well as on its power to restrain vested interest groups’ abuse of private property right. It is true that the Property Law has offered an opportunity to wrest private property right out of state possession. However, the budding chance of liberation is held in the hands of the state and not the citizens.

One thing that warrants caution is: before the Property Law came into being, the protection of private property was well documented in the Constitution as well as in Land Management Law, but in practice, the spirit of property right under the Constitution and the Rules of Land Management have always been widely evaded. The government’s evicting actions are based on the Urban Housing Evicting Regulations issued by the State Council, and the provinces have established their own relevant procedural rules based on those regulations. Together, they have reinforced government’s authority in the system of private property right and their say is the final say. The individual’s right to negotiate his own property right is precarious at best and he faces the danger of being subjugated at any time. Although with the inception of the Property Law, the Land Management Law and Eviction Regulations will have to be amended to align with the Property Law, as long as the habitual unspoken rules of the game between governments and developers are allowed to continue to exist, the administration’s monopolizing control over private property right will not have been eliminated. Whether the efforts by victims of eviction to use the Property Law to fight that control will be successful is anyone’s guess.

Apart from the blatant challenge of the Property Law coming from government and vested interest groups, their threat to the Law, as in times prior to its enactment, consists of three principles: habitual occupation, transfer based on agreement and fulfilling a promise. In the example of urban eviction, although a citizen has the right to take his case to court, the court can only determine whether government’s documents are adequate, it cannot invalidate the act of eviction itself. The fact that a citizen cannot rely on civil law for redress means that an individual is unable to shatter government’s imposing control over private property. According to the latest civil law interpretation, as long as the procedures of compulsory eviction are legal, objection by the victim is deemed unimportant. Once the government applies to court to carry out compulsory eviction, the court is empowered to first take the plaintiff into custody. So much for private property right! What it all comes down to is a fight against the evils of a system of unspoken rules. If the Property Law is to be properly implemented, there is a need to break free from that system.

In any event, the Property Law represents a certain kind of hope for the citizens: on the premise of private property being made independent, the individual can hope to cease being a resource that can be manipulated by government. Yet, the new law is supposed to strike down such an absurd concept: it is only when the individual has obtained his private property right that he can deter government from abusing its power. The unfortunate thing is, whether he can “obtain” such right is dependent on the power- wielding authorities. Therefore, a law-abiding government is the only guarantee that can guard the spirit of the law from being distorted, mutated or displaced. The Property Law has provided a good reference for a role model government. A progressive local government should not be apathetic to such a call for improvement.”

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