Let judiciary decide demolition cases

Five professors of Peking University's Law School have written to the National People's Congress Standing Committee to either annul the Urban Housing Demolition and Relocation Management Regulation or advise the State Council to revise it.

What necessitated them to write to the country's top legislature and ask it to advise the national Cabinet, if necessary, is the self-immolation by a woman in protest against the forcible demolition of her house in Chengdu and the rising tide of clashes between house owners and demolition squads.

The Constitution stipulates: For public interest, the State could take over or requisition private property and give corresponding compensation according to law. This provision contains two of basic spirits of law.

First, there is no so-called "absolutely sacred and imprescriptible property" and the State could appropriate or requisition private property for public good in line with the law. The restrictions on private property grounded in significant legitimate reason by the State applies to the concept of administrative law.

Second, though the government could requisition private property irrespective of civil contracts, it does not mean that the administration could do whatever it wants. The State has to pay compensation to owners of property, which it requisitions or appropriates. The process to fix the amount of compensation, however, is a matter of civil law.

It is true that, in the field of substantive law, the Constitution and Real Right Law have been in substantial agreement. The provisions of procedural law, however, seriously lag behind, contrasting with the economic and social development and creating confusion.

According to the urban housing demolition regulation, once local authorities order the requisitioning of a house, they could play the role of "mandatory administrator" after granting the "demolishing party (mainly real estate developers)" the power to demolish the property. So, even if the house owner sues the "demolishing party" in court, the authorities can easily shy away from their responsibility and obligation in the case. This role of "athlete and referee both" of the authorities is inexplicable.

Moreover, besides "acting as athlete and referee both", the authorities can also play the role of "judge", exerting the last compulsory implementing power. Though administrative departments can use compulsory power for public good in certain fields, can they use or abuse it in cases that involve a citizen's constitutional rights?

Regrettably, ours is among the very few countries where officials still resort to administrative mandatory measures to requisition private property.

In a society ruled by law, judicature is the most effective means of addressing social contradictions and seeking social fairness, and the State should exercise prudence in cases that put extreme constraints on citizen's property rights.

So shouldn't the governments' "compulsory administrative power" be withdrawn in order to avoid the frequent barbaric confrontations between "forklifts and gasoline bottles"? The only way to resolve the conflicts over forced demolitions is to grant the final enforcing power to the judiciary.

Though, nobody can ensure that the judiciary will solve all the problems, a relatively open and transparent judicial procedure, strict presentation of testimony, legal debate in court and adequate legal help to the disadvantaged groups could play an active role in ensuring procedural justice and reducing conflicts.

Besides, the careful and time-consuming judicial procedure could indirectly ease the speed of urban expansion, which is in line with the requirements of the country's "scientific outlook on development".

Administrative order alone cannot clear the confusion over urban land requisition and demolition of houses. So it is important that some outdated and turbid administrative regulations and rules are abolished timely.

The history of the world's laws shows that a rule works effectively only when most members of a society acknowledge its justice and fairness and are voluntarily subjected to it. Otherwise, depending only on the accustomed force of suppression to maintain authority could spread discontent and crises.

The author is an independent researcher on law studies.

(China Daily 12/11/2009 page9)