Harnessing Officials

By+Yin+Pumin

The peoples right to sue government agencies and officials should be protected by the introduction of more detailed rules， according to a draft amendment to the Administrative Procedure Law.

The law， which defines procedures to challenge government agencies in court， is to be revised for the first time this year since it was enacted on October 1， 1990， according to this years work report of the Standing Committee of the 12th National Peoples Congress （NPC）， Chinas top legislature. Zhang Dejiang， Chairman of the NPC Standing Committee， delivered the report at the Second Session of the 12th NPC on March 9.

While praising the law for once playing an important role in solving disputes， Xin Chunying， Vice Chairwoman of the Legislative Affairs Commission of the NPC Standing Committee， said that citizens now face many obstructions in suing governments.

“When citizens， legal persons or other organizations have disputes with governments or government workers， the latter are often unwilling to be defendants and courts are reluctant to accept and hear such cases， leading many citizens to try to solve their disputes through petitions，” Xin said.

The need to revise the Administrative Procedure Law has become increasingly urgent since its difficult for the people to have their administrative suits accepted by the court and tried fairly， she said.

Although legal experts admit the law in practice does not work well， they attach great importance to its symbolic value. Wang Hanbin， former Vice Chairman of the NPC Standing Committee， who participated in drafting the law， once hailed it as “a democratic milestone.”

“Thanks to this law， common people get a chance to understand that regulating the publicly authorized power of the state is the essence of rule of law，” said Ma Huaide， Vice President of the Beijing-based China University of Political Science and Law.

A toothless law

Since its enactment， the Administrative Procedure Law has ignited many burning questions.

For example， the law stipulates that a citizen， a legal person or a civic organization has the right to file a lawsuit against a concrete administrative action by an administrative organ or its personnel that has infringed upon his or her or its lawful rights and interests. But it says courts shall not accept actions initiated by citizens， legal persons or other organizations concerning administrative rules and regulations， or decisions and orders with general binding force that are formulated and promulgated by administrative organs.endprint

Ma said that during the research for amending the Administrative Procedure Law， many experts called for the inclusion of abstract administrative actions in the scope of valid lawsuits.

“As more administrative decisions are implemented through abstract administrative actions， such as raising prices and restricting traffic， its urgent to include those abstract behaviors in the law to effectively supervise and limit them，” Ma said.

So far， the law has not been applied to litigation involving basic citizen rights to education， government information or demonstration. The law says citizens， legal entities or other organizations can launch administrative litigation proceedings only when their personal and property rights have been harmed.

In Mas opinion， citizens should start administrative litigation if they feel their legal interests and rights have been violated by an administrative agency or its personnel in the course of administrative activities.

Chinese courts at various levels processed 1.91 million first-instance administrative lawsuits between 1990 and 2012， or less than 100，000 per year. Plaintiffs won less than 17 percent of the cases， according to the Supreme Peoples Court， Chinas highest judicial organ.

In contrast to the low number of administrative trials， a huge number of administrative disputes never make it to courts. Each year， for example， the State Bureau for Letters and Calls under the State Council， which handles petitions of citizens， receives up to 10 million public grievance cases， a fair number of which are administrative disputes. Apart from that， media reports of power abuse and procedure infringements by local authorities are on the rise.

“The underlying cause is that the function of the administrative litigation system has not been brought into full play， thus preventing the expression and settlement of administrative disputes through legal proceedings，” Ma said.“The institutional value of settling administrative disputes in court to promote administration by law has yet to be fully realized.”

Wang Zhenqing， former Vice President of the Beijing Higher Peoples Court， remembers that when the law took effect， some officials publicly said that they would “never sit in a defendants chair.”

Encouragingly， things have changed. In recent years， local governments around the country have encouraged government officials to defend themselves at administrative trials.endprint

In most cities in east Chinas Jiangsu Province， for example， the practice has been institutionalized through official documents. Government officials in the city of Rugao are required to follow up and report on local administrative litigation lawsuits， and trial results are used to measure their job performance. This practice is controversial， though， and some say it may encourage administrative meddling in the judicial system.

Facing a government official in court can shake individual plaintiffs confidence， said Yuan Yulai， a lawyer specializing in administrative litigation. He said that some of his clients are skeptical about the neutrality of courts.

“They debate among themselves whether or not to trust the courts when the courthouse is financed through government funding，” Yuan said.

Moreover， according to Yuan， the accused often cite their obligations to fulfill tasks assigned by seniors or higher-level government agencies. This can be an excuse for infringing upon the interests of civilians， legal entities or other organizations.

Right to sue

In late December， the draft amendment to the Administrative Procedure Law underwent a first reading at a bimonthly session of the NPC Standing Committee.

New stipulations include instructions that more rights infringement cases are to be accepted by courts.

Courts shall accept lawsuits in which administrators have infringed ownership or rights to use natural resources such as forests， pasture， mineral reserves， mountains and water， according to the draft. It also states that courts shall accept lawsuits concerning infringement of rural land contracts and management rights， illegal fundraising， unlawful collection or requisition of property， and unfairly apportioned fees.

A court should make clear any reason for refusing an administrative lawsuit and it should file a lawsuit within seven days after accepting a claim， according to the draft.

Hu Jianmiao， a professor with the Chinese Academy of Governance， said that the occa- sions on which citizens could sue governments have been increased and more clearly defined in the draft.

Hu regards the revisions as the most important parts of the law， balancing the interests of citizens， administrative bodies and courts.

As many administrative bodies simply refuse to implement or ignore court rulings which favor citizens， the draft stipulates that administrative bodies refusal to execute rulings should be made public.endprint

Hu believes that public supervision is an effective force in the Internet era. Once a refusal is made public， the concerned government agency will be harshly criticized and its leaders will run the risk of being removed， so difficulties in execution should be significantly alleviated.

Ma with China University of Political Science and Law suggests setting up independent administrative courts to prevent government agencies from intervening in the trial process.

“Setting up independent administrative courts is an option for the future litigation system reform. It is the easiest way to shut out intervention from local government organs because it doesnt need complicated procedures such as revising the Constitution or the Organic Law of the Peoples Courts but only requires making some amendments to the current Administrative Procedure Law，” Ma said.

The current Administrative Procedure Law also stipulates that administrative proceedings cannot be mediated.

Ma said that the prohibition was adopted due to two considerations. First， administrative power is a kind of public power， which administrative authorities cannot dispose of and concede as they wish. Second， if allowed to mediate， courts or administrative organs may force the plaintiffs to accept unfavorable mediation results.

“But， its impossible to forbid mediation in practice. In fact， all courts engage in mediation， and just avoid the term，” Ma said. “Its time to consider permitting mediation.”endprint