Local Governments in the Dock

Beijing resident Zhao Qiang (pseudonym) had contracted a plot of land from the government in Miaocheng County, Huairou District to grow fruit trees. Shortly after he planted them, the trees were uprooted due to an old building renovation project. Zhao took the local government to court and won his lawsuit.　

As administrative disputes rise, government departments have been finding themselves on the back foot in court, with judgments going against them, although they still win the majority of cases. In 2019, Beijing No.4 People’s Intermediate Court heard 1,749 administrative cases, eight times more than in 2014, in which local governments lost 12.6 percent of the lawsuits.　

“The cases mainly involve government departments that oversee labor and social security, education, healthcare, food, medicine, city construction and environmental protection,” said Cheng Hu, vice-president of the court.　

Cheng told NewsChina that whether government agencies win or lose a lawsuit can be rather random, and can also depend on factors outside their control. For example, if a local authority is undertaking a major development project, there may be a number of cases filed against it. If it loses one of those cases, there can be a cascade effect and it will lose other related suits.　

Cheng said governments at all levels lose lawsuits mainly because of breaches of procedural law, negligence, wrongs in facts or in the application of laws, administrative misconduct or failure to uphold statutory obligations.　

Chen Lianggang, chief judge of the court’s administrative division, told our reporter that government agencies are most likely to lose a lawsuit if they have failed in fulfilling their duties. Some cases rest on minute procedural issues. Chen said that one plaintiff had sent a letter to the information disclosure office of a local government in Beijing but there was a mistake in a word written on the envelope. The office rejected the letter even though the two words have the same pronunciation. The court ruled against the disclosure office because it failed to fulfill its duties.　

Local courts in many provinces nationwide have released judicial review reports. In 2019, Shaanxi provincial government lost 38.6 percent of lawsuits as defendants. In the provinces of Yunnan and Qinghai, the failure rate in court of local governments was 25.6 percent and 21.35 percent. In Shenzhen, South China’s Guangdong Province, however, administrative organs lost 6.2 percent of legal disputes heard at intermediate and high courts. 　

Wang Jingbo, a professor at the School of Law-based Government at the China University of Political Science and Law, told NewsChina that there are noticeable differences between the governance capabilities and level of law-based administrations. “The rate at which governments lose court cases is a reference to gauge the rule of law in a specific place, but it can’t be a universal index,” he said.　

It is not the only time a district head has appeared in court. In November 2019, Chaoyang District head Wen Xian appeared to defend a case in which three local residents sued the government to withdraw a house expropriation decision. Several days later, a resident surnamed Zhang sued Xicheng District government because of a public housing contract and district head Sun Shuo responded in court.　

Cheng Hu told our reporter that Beijing No.4 Intermediate People’s Court has been working to push district leaders to appear in court to answer charges from the public. 　

“We will not interact with local governments on a specific case because it will affect the impartiality of the judgment,” he said, adding that in the past five years, over 6,000 officials, including those at the ministerial or provincial level, have appeared in the court. 　

Chen Lianggang told our reporter that if a government leader has to appear in court, a summons would be sent to the heads of defendant agencies, requiring them to provide detailed titles and posts of those who will appear in court. 　

Huang Yongwei, director of the Administrative Division of the Supreme People’s Court, argued that administrative disputes are not ordinary legal disputes, as they are actually conflicts between residents and the government. That leaders of government departments appear in court personally has helped reduce resentment toward the government, and if government heads appear in court, it is itself “a stance and solace to the residents involved.”　

In many places, leaders of government agencies rarely appear in court, according to white papers on administrative cases released in the city of Dalian in Liaoning Province and Xi’an in Shaanxi Province. In Xi’an, only 4.15 percent of cases were defended by leaders of government organs in 2019.　

Cheng said it is not easy to request government leaders to appear in court. There are 16 districts in Beijing and district heads are very busy, so it is difficult for them to find the time for a court hearing. 　

“Many administrative department leaders are not legal experts. They’re not familiar with administrative lawsuits and are sometimes afraid to appear in court,” he said. “If a district head appears in court, it would be of great social concern. More than a dozen other government department heads would also attend the trial which has to be livestreamed throughout the proceedings.”　

Zhang Yan, a senior judge at Beijing No.4 Intermediate People’s Court, told NewsChina that appearing in court has been a great change for district heads. “In previous years, district heads only participated in the final statement. Nowadays, they have to involve themselves in testimony, cross-examination and debate.”　

Zhang Yan said that sometimes during a trial, government defendants do not fully understand questions from the judge. In many cases when government officials and lawyers or agents appear in court, communication can be poor.　

“They [officials and lawyers or agents] are afraid of making mistakes in court. Most of the time they are very silent and inactive,” she said. The Supreme People’s Court recently released a judicial interpretation which specifies that “government defendants in court should have a certain extent of decision-making rights regarding the lawsuit and voice their opinions to solve administrative disputes.”　

Beijing No.4 Intermediate People’s Court has made great efforts to explain the law to both residents and government agencies rather than just giving a verdict, aiming to resolve conflicts between litigants and prevent similar problems from happening again. In addition, the court has provided judicial advice to each government agency that lost a case, in which the judges explain in detail why they lost. Each lost case is a negative judgment on government performance which will push the government to perform their duty under the rule of law.　

Cheng Hu said that local courts rely on local governments for their budget, and protectionism and administrative interference can occur. To reduce interference from governments when courts hear administrative disputes, judicial reform was implemented in 2013 in Beijing Municipality which requires intermediate courts, and not local courts to handle administrative cases involving the suing of governments in the city’s 16 districts.　

The establishment of trans-administrative regional courts and jurisdictions aims to create an impartial judicial environment. To date, there are only two trans-administrative regional courts across the country, including Beijing No.4 Intermediate People’s Court and Shanghai No.3 Intermediate People’s Court.　

Wang Jingbo told our reporter that trans-administrative regional courts aim to reform China’s judicial system. “The next step for reform is to establish administrative courts to ensure legal professionalism and independence.”