Chinese Court Says "No" To Government -- Applause Not Warranted

The Chinese Law and Society Blog just did an interesting post, entitled "Court said no to government."  The post describes how a Ningbo Intermediate court overturned a lower court to hold that a local government acted illegally in "forcefully demolishing a resident's house."  The post concludes by calling for "Thunderous Applause!"

Thunderous applause is not warranted.

The post has this to say about China's courts and its relationship to the government:

As we all know, Chinese court is actually an affiliate of the government because the latter funds the former and this is the case from the central government downward to the bottom local level. Courts have been viewed as an instrument by the government to enforce and implement governmental policies, as has been true from the establishment of the national institutions.

The post notes there have been some cases where courts have "boldly and courageously" said "no" to government misuse and abuse of power and these cases have attracted much media attention.  According to the post, these anti-government rulings typically occur at the appellate level because that court is "hierarchically higher than the government" involved in the dispute.

In this particular case, the Yuyao municipal planning bureau ordered Zhu Lifeng to tear down an illegal structure he had erected "around his residential area."  Zhu's lawyer argued that the municipality violated the PRC Municipal Planning Law which mandates court approval for a demolition if the party whose property is up for demolition seeks court intervention.  In other words, the government cannot just go ahead and demolish the property with the case pending. The municipality ignored that rule here.

China Law and Society sees the Court's decision as significant:

The court's decision is of great significance. The whole nation is still on the heat and craze of land enclosure often leaving the farmers or urban citizens crying in grave grievance. The situation is especially acute in Zhejiang province to which Ningbo City belongs since this province has the most dynamic economy which has posed high demand for industrial land.  According to the report entitled "a great danger to lawyers" released by the Human Right Watch, there has constantly seen protests and clashes between the local farmers and the local government which often forcefully seizes the farmer's lands without just compensation.

Given the situation described above, the court's decision is definitely precious and valuable in that it may convey a signal to at least the local government that they can not use their power without constraint and they should really discharge their duties according to law.

Thunderous applause!

Though I agree this was a good decision and one that should inspire some optimism, I am not clapping. 

I do not view the decision as terribly significant.  First off, the problem with the relationship between the Chinese courts and the Chinese government goes way beyond funding.  The problem is that the Chinese courts are the Chinese government.  China's local courts are essentially the local government and things just move up from there.  Chinese courts are not autonomous and until they become autonomous, decisions against the government will be unlikely.  Until anti-government court decisions do not require judges to act "boldly and courageously," China's legal system will always greatly favor the government. 

Second, I see this decision as more procedural than substantive.   Near as I can tell (and this is strictly from reading Chinese Law and Society's blog post), the decision said nothing about the legality of property demolitions or seizures.  It merely said that if the government is going to engage in such actions it must follow the rules for doing so.

I am often posting on the fairness of China's courts for business disputes.  See "The Yin And Yang And The Apples And Oranges On China's Courts," "China Courts And Abuses Of Power," "China's Courts Are Fair," and "China's Courts are Fair, Part II."  But at the same time, I do not believe that cases involving the Chinese government as a party can be fairly handled.  Yes, no doubt, China has countless eminently fair judges. But until China's courts become independent from its government  I will withhold my applause.