《纽约时报》系列报道:《依法治国》之七(Rule by Law)

作者: 阮一峰

日期: 2006年4月26日

珠峰培训

当中国人起诉政府,案件常常会被压制

作者 JOSEPH KAHN

原载2005年12月28日《纽约时报》

泗桥,中国 ---- 在法院忙碌的前厅里,农民围住了一个工作人员,要他受理他们的起诉。他们起诉当地政府夺走了他们的土地。

不行,不行,那个工作人员又摇头又摆手的说。农民们回忆,他说这是浪费时间。但是,当他们离开时,他们的起诉书却留在了他桌上的显眼位置。农民们心想,也许这表明他会暗中接受他们的起诉。

"二年了,我们试遍了所有法律途径,那一刻让人感到有希望了,"李惠堂说。他是河北省泗桥村参与起诉的农民中的组织者。他说:"我们希望他会受理我们的起诉。"

插图一 三个农民(左起李春堂,李永路,李惠堂)在讨论起诉政府夺走他们的土地,补偿不公。

事实上,一份书面的拒绝受理书就够了,这可以使他们向上一级法院上诉。但是,这也没成功。不久,那个工作人员打电话给李惠堂,要求他来取走那份起诉书。李惠堂没去。工作人员就把它装在一个普通信封里寄了回来,没有任何标记,也没有被处理过,就好像法院视其为不存在。

中国司法制度下的判决,经常让许多无权无势的普通人感到不公平。但是,一个更大的问题是法院经常拒绝受理,或者索性否认那些棘手的法律纠纷真的存在。

"立案"这个词在英语里可以被简单翻译为"记录或登记一个案件",但是在中文里,它要受到很多官方干预,使得在许多想要进行行政诉讼的人看来,法律体系只对经济案件开放。

自从四分之一个世纪前,共产党第一次创造了一个貌似现代的法律体系,刑事案件(政府起诉个人)大多数通过法庭来完成。自然人和法人也经常通过法庭解决民事纠纷。但是学者们说,法律体系的第三个,也是最敏感的一个用途,1989年《行政诉讼法》赋予公民的起诉政府的权力,依然像空中楼阁。

(以下翻译略)

插图二 泗桥农民为政府夺走他们的土地和法院的冷漠,举行了抗议。农民们拍了录像和照片,这进一步激怒了当局。

插图三 类似的抗议活动在全国范围内出现。

======================

When Chinese Sue the State, Cases Are Often Smothered

By JOSEPH KAHN

SHIQIAO, China - The peasants surrounded the clerk in the busy court anteroom, badgering him to let them sue the officials who had seized their land.

No, no, the clerk said, shaking his head and waving his hands, as the peasants recalled it. They were wasting his time and theirs. But as they withdrew, their legal papers remained on his desk in plain sight. Maybe, the peasants hoped, that meant the clerk had tacitly accepted their application to sue.

"In two years of trying every option under the law, this was a moment of optimism," said Li Huitang, a leader of peasant resistance in Shiqiao, a village in Hebei Province, in northern China. "We hoped he might rule on our request."

Even a written rejection would have been a bonanza, enabling them to appeal to a higher court. But it was not to be. The clerk soon called Mr. Li's home, ordering him to retrieve the documents. When Mr. Li declined, the clerk mailed them back in a plain manila envelope, unmarked, unprocessed and officially ignored.

China's legal system often hands down verdicts that the powerless consider unfair. But a bigger problem is that courts often refuse to issue any verdict at all - or even acknowledge that some bothersome legal complaints exist.

The English translation is simply "put on the record" or "register a case," but in China "li'an" is so fraught with official meddling that for many with complaints against the government, the judicial system is closed for business.

Since Communist China first created the semblance of a modern legal system a quarter-century ago, criminal cases - the state suing individuals - mostly go through the courts. Private citizens and businesses now often resolve civil disputes in court. But the third and most sensitive use of the judicial system, a 1989 statute that entitles people to sue the state, remains a beguiling fiction, scholars say.

"The number of people wanting to sue the government is large and growing," says Xiao Jianguo, a legal scholar at People's University in Beijing who has studied the issue. "But the number of people who succeed in filing cases against the government is miniscule. So you could say there is a gap between theory and practice."

Though fast-rising China wants to persuade the outside world that it is governed by law, pressure to improve the system comes mainly from within. Protests are erupting around the country over land seizures, pollution, corruption and abuse of power, with 74,000 officially recorded incidents of mass unrest in 2004.

China's leaders know they need to manage such unrest. Indeed, President Hu Jintao says "democratic rule of law" is a crucial ingredient of his plan to build a "harmonious society."

Such pledges spread awareness of legal rights, but have yet to change legal procedures. It is not clear how many protests follow failed attempts to settle disputes in court. But lawyers say the judicial system bars its doors to so many contentious cases that it effectively forces people to take to the streets.

That is what happened here in Shiqiao, where residents protesting the loss of prime farmland for a government-backed road, office and residential development tried suing to protect their land-use rights.

They met Kafkaesque obstacles at every turn. The only party that used the courts successfully was the state-linked construction company. It won an injunction in March declaring peasants' protests illegal.

Every Man for Himself

On the scale of land deals in China today, where hundreds of thousands of acres of farmland are converted each year into factories, shopping malls and housing, Shiqiao's 33 acres are just a tiny window box along the bank of the muddy Fuyang River in southern Hebei Province.

Yet the dark, fertile soil and good irrigation made it prime land for growing vegetables. Scores of families depended on small plots there to earn a steady income selling cabbages, cucumbers and beans to city dwellers nearby.

That was true until early 2004, just before spring planting, when the Fengfengkuang district of Hebei instructed peasants in Shiqiao to stay off their land. The Binhai Construction Company, linked to the district's construction bureau, was to build a road and housing there to "raise the city's status." Farmers who lost land would be compensated according to the National Land Management Law, a government notice said.

For villagers, it was a call to arms. Peasants cannot own their land outright. Their land-use contracts remain firmly under the government's thumb, nominally to guard against the loss of arable land.

The controls actually provide a perverse incentive for local officials to seize and develop as much farmland as possible. Farmers need only be compensated for lost farm income, generally far below soaring real estate market values. Government-linked middlemen can make a fortune.

"It's every man for himself," says Li Yonglu, a 64-year-old resident who has taken part in the campaign against the Fengfengkuang district government. "You get what you fight for, and no more."

Officials in Fengfengkuang did not respond to requests to talk about the matter. But in official documents and propaganda posters, they said that the development of Shiqiao's land met all local and national requirements and that peasants were compensated fairly.

The district did offer compensation, from $2,500 to $5,000 a mu, a sixth of an acre. But local rumors had it that the market value exceeded $35,000 a mu and that government agents were pocketing the difference.

Some villagers took the money. Others refused to cooperate. Mr. Li, who wears a French-style beret and once served as the leader of a collective farming brigade in Shiqiao, spurred opposition. He was joined by Li Huitang, a heavyset, gregarious man of 45. They share a family name but are not directly related.

The two men filmed a short documentary praising their ancient alluvial soil. A narrator, speaking in a deep baritone, recited central government policies to prevent the loss of farmland.

Beijing seemed like a possible ally. In the spring of 2004, the National People's Congress, the party-controlled legislature, passed China's first property rights law. Newspapers and television broadcasts heralded the leadership's commitment to govern "according to law." In Shiqiao, the principles seemed abstract, but potent.

The local activists read national land laws and concluded that the laws protected their land-use contracts. The local government could not cancel those contracts against their will, they said.

They decided to sue. An attorney in a neighboring city drafted the lawsuit. The two Mr. Lis brought it to Fengfengkuang's court. A clerk read their application, then disappeared for consultations. When he returned, he said the court would take the case, but only if they paid a filing fee of $2,300.

The fee, several times their annual per capita income, seemed intended to scare them away. And in fact many villagers scoffed at paying even a small share. But the Lis rallied 11 families to join them. By the summer of 2004, they had the money. The case was established.

That proved to be the low hurdle. Months passed with no trial date. They demanded explanations. Finally, early this year, they were granted an audience with Chen Xiuying, the top local court official.

Ms. Chen, according to Li Huitang and two others who attended the meeting, struck a sympathetic tone. The court would like to see the case go to trial, but the matter was unfortunately too sensitive.

"She told us the court did not have the power to challenge the government," Li Huitang said. "It might be better for everyone if we withdrew the case. She said if we did, she would refund the fee."

Ms. Chen, reached in her court office, hung up the phone when asked about the exchange. Her phone was later answered by someone else, who said Ms. Chen had left town on business.

Mr. Li said he declined to withdraw: "I told her the law is either a tool that can be used by the people, or it isn't. You can't offer it and then take it away."

Street Justice

Binhai Construction did not wait on the courts. It laid a broad new road, paved in concrete, through Shiqiao's old vegetable plots. Other sections were cordoned off by a high wall, decorated with billboards that show a river flowing through rich fall foliage. Behind the wall, high-rise residences sprouted.

Frustrated by the court setback, the two Mr. Lis began a campaign of civil disobedience. They planted themselves in front of bulldozers, harassed workers and generally disrupted construction.

On March 18, Binhai filed its own civil lawsuit naming Li Yonglu as a defendant, seeking an injunction against his interference. Four days later, the court issued a peremptory ruling without trial. Li Yonglu's actions were declared illegal.

Local officials distributed copies of the ruling to every resident in Shiqiao, villagers said. A party boss read the text of the decision over the village's loudspeakers.

It did not stop the Lis. They and other villagers said they were outraged that the court acted so quickly after suppressing their own suit.

"I discovered that the law is what they say," Li Yonglu said. "What they practice is power."

On March 25, Fengfengkuang dispatched the local police and paramilitary troops to stop the interference. The deployment brought hundreds of villagers from their homes. A tense standoff turned into a minor riot when the police confiscated cameras some local residents were using to record the event, participants said.

Li Huitang's younger brother said he suffered a gash in his forehead when police officers ripped his camera off his neck. An elderly man fell and was trampled, photographs show.

Villagers turned unruly and began smashing windows and trying to overturn police cars. Fifteen local residents went to jail; three remain behind bars nine months later, relatives said.

Such conflagrations have become a fixture of rural life in boom-time China. Many go unnoticed or face reporting bans in the national news media.

But shortly after the Shiqiao protest, in nearby Dingzhou City, a government effort to quell a land protest captured attention all over China. Hundreds of hired thugs armed with hunting rifles and clubs forced villagers to give up land for a power station. Six farmers died and dozens were injured in a bloody crackdown captured by a farmer's video camera.

For Beijing, that went too far. The Communist Party boss in Dingzhou and 26 others went on trial for the killings in early December.

China's top judge, Xiao Yang, also inspected Hebei's courts following the Dingzhou incident. He told state news outlets that the courts too often treated important cases as "hot potatoes" better left untouched, marginalizing the judicial system. "If the courts bow to the government every time, the people will have no faith in the judicial process," he warned.

Neither Yes Nor No

Those sentiments seem to be widely held among officials at the top. There is little evidence, however, that Hebei heeded his warning, at least when cases threatening strong local interests came before the courts.

The two Mr. Lis gave the law another try. This time they found a prominent Beijing-based attorney, Zhou Shifeng, who often pursues difficult cases against the authorities.

After an investigation, Mr. Zhou concluded that the Binhai project violated national land laws, which require State Council approval to develop prime farmland. They could sue Hebei Province for allowing the project to proceed, he said.

Mr. Zhou had low expectations. China's administrative law stipulates that cases against a local government must be filed first in its jurisdiction, where local party bosses hold sway. It can be appealed, but only after the local court rules or rejects the case.

Courts legally must issue written rejection notices if they choose not take the case. But to avoid appeals, court clerks often decline to take possession of legal papers. No rejection notice is needed if the case does not, in China's political-legal cosmos, formally exist.

"The law is absurd," Mr. Zhou said. "But it is the only way."

In September Mr. Zhou, the two Mr. Lis and other villagers gathered at court in Shijiazhuang, Hebei's provincial capital. Qian Rendong, a court clerk, received them.

They pleaded their case: they had legal right to sue; local officials had violated national land laws; their hope of obtaining justice depended on him.

Mr. Qian, they said, was polite, but stubborn. He browsed through their papers and asked some questions, but in the end gave no ground. He urged them to appeal to higher authorities through the petition system rather than the courts.

But whether out of deference or a simple oversight, he did not, as their session ended, hand back their documents. Technically, it seemed, he had accepted their application to sue.

"We talked excitedly among ourselves as we left the court," Li Yonglu said. "It seemed like a first step."

Two days later, Mr. Qian called Mr. Li's home. The papers must be collected immediately or he could not guarantee their safety. The case would not be registered and there would be no rejection notice, either.

Mr. Zhou advised Mr. Li to stay home. They would press the clerk to reject the case in writing. Mr. Li said he was nervous - original documents he had spent months compiling were in the clerk's possession - but he held back.

The risk, though, was not that the documents would be destroyed, but rather that they would be disregarded. Two weeks later they arrived by mail, incognito, at Mr. Zhou's office in Beijing.

In Shiqiao's land case, it was the only verdict the court would render.

(完)

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