New rules on eviction in China – will BKL residents be so lucky?

Jan. 27, 2011. This article is provided by Caixin Media, and the Chinese version of it was first published in Century Weekly magazine. http://www.caing.com

Eviction rules are but a first step

Edited by Hu Shuli
Updated on Jan 27, 2011

Finally, after four years of preparation and hearing over 100,000 public opinions, the government has set rules to put an end to the forced demolition of homes by government officials. The new regulation on the requisition of buildings on state-owned land, which took effect last Friday, brings hope to the millions of residents in mainland cities who are at the mercy of rapid urbanisation and industrialisation. The rules signal the awakening of civil rights awareness in mainland China, and reflect progress towards a society with sound governance and rule of law. They offer an institutional solution to the seemingly intractable problem of forced demolitions. In particular, two provisions are commendable.

First, the regulation outlaws the forced demolition of homes by government, and allows people who object to the requisition to seek legal redress through the People’s Court. This is an unprecedented move that puts homeowners on an equal legal footing with local governments, and gives residents the opportunity to protect their rights in a relocation.

Second, the regulation states for the first time that the compensation for a requisitioned property must not be less than the market value of similar properties. It also allows the affected homeowner to hire the valuation agency of his choice. This effectively bans the practice of sending homeowners packing with only nominal compensation.

However, the regulation’s implementation will be challenging. For it to be effective, for demolitions to be carried out legally and the compensation to be fair, and for lawmakers to strike a balance between public interests and homeowners’ rights, the judiciary must work independently and in compliance with the law. At this stage of China’s reforms, this is its most difficult task and biggest challenge.

Under the regulation, the government may not evict a household by force, but it may apply to the court to take such action. Inevitably, questions will arise: in this scenario, can negotiations between the government and residents be truly fair, and will the judiciary be truly independent of the government? In the past, we’ve seen local government officials who, with court orders in hand, tried to turn people out of their home without fair compensation. When residents put up a fight, this sparked confrontations that in some cases ended in death.

In fact, there have been too many examples of government intervention in the exercise of judicial powers. We’ve seen cases in which local governments did not acquire a property according to law, even though they were authorised to do so; and we’ve seen many relocation agreements reached through negotiations that were neither rational nor just.

The worry is that, not only will the latest regulation not rein in government excess, it may provide a cover for more such behaviour. After all, government officials may now justify forced evictions by saying they were only acting on the court’s order, according to regulation. If this happened, it would sorely disappoint the people, who had hoped to bring forced evictions under the purview of the law.

Therefore, even as we welcome the new rules, it is important that we also establish mechanisms to ensure the effective legal protection of civil rights, and to provide legal channels for residents to seek redress if needed.

The new regulation has another major flaw – it is silent on the requisition of housing on collective land in rural areas. The State Council’s Legislative Affairs Office explained that it was because the regulation comes under the law governing urban properties, while the requisition of collective land in rural areas is covered by the law on land administration. This means that two different laws govern the two types of requisition, though they share the same principles.

This is a poor reason for the regulatory gap. The two laws are separate because, for technical purposes, rural and urban issues are administered separately, though this distinction should have been changed long ago.
Due to rapid urbanisation, demolition and relocation is a common scene in rural and urban areas. Every year, some 80 per cent of new land for development comes from the requisition of rural land, which sometimes involved the demolition of whole villages. With accelerating urbanisation, the size of the villages facing demolition and the number of people affected have far exceeded those in urban areas. Clearly, the problems associated with the requisition of rural land are more widespread and critical.

But, no laws regulate the demolition of rural housing. There aren’t even standardised rules at the provincial government level. The eviction is often carried out based on county government documents and, in some cases, the meeting minutes of a county government. The fate of a village and its thousands of residents is in most cases decided by several county officials. This regulatory lapse is worrying; it is the direct cause of many violent clashes between villagers and local government officials.

These problems must no longer be ignored. Perhaps recognising the need for change, a State Council executive meeting last week urged that the land administration law be amended, to regulate the requisition of rural land and its compensation, and for a relevant bill to be presented soon to the National People’s Congress Standing Committee for consideration. This is a positive development.

To fully tackle the problem of forced evictions, the government must integrate its administration of rural and urban land, refrain from interfering in the land market, and strictly carry out its plans for land use and urban planning.

As China urbanises, the forced evictions by local governments must be brought under the rule of law – this is inevitable as society develops, and it is what the people expect. The new rules for land requisition are a milestone, but whether they are effective remains to be seen.

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