Land expropriation, protest, and impunity in rural

Bo Zhao

Abstract:Conflicts over rural land expropriation, which have intensified over the past decade in China, pose a significant threat to the country’s social stability and the sustainability of its economic development. This article argues that such con- flicts are inevitable under China’s current political and legal system. After a brief introduction of the present situation in China and an overview of China’s land regime, the article first analyzes reasons for the escalation of land conflicts, includ- ing the vague definition of public interest, the inadequate compensation, and the ambiguous nature of collective land ownership. It then argues that even the few existing rights of rural peasants under the present land regime are not adequately protected due to China’s poor . The article further elucidates that impunity with regard to illegal land grabbing is common in China for a variety of reasons that all have roots in the Communist Party’s monopoly over Chinese society. With no fundamental reform to China’s party politics, the article con- cludes, there will be no effective measure to prevent further conflicts over land in the near future. Keywords: China, conflict, party politics, , rural land expropriation

In April 2008 a violent clash between local po- attention even in the international media—it is lice and villagers resisting the expropriation of however only one of hundreds of uprisings tak- their land occurred in Saixi village in the south- ing place in present-day China related to rural western province of Yunnan (Hsiao 2008). The land expropriation. conflict began with villagers protesting against Forced appropriation of land and resistance the insufficient compensation they had received against it has increased dramatically during the from the Zijin Mining Corporation, one of the past ten years and appears to be accelerating (Zhu largest mining companies in China, which had and Prosterman 2007). According to data col- started excavations on the contested land. Local lected by the Ministry of Land and Resources, in arrived and strived to put down the pro- the first half of 2002 40 percent of the petitions test but instead their presence increased the ten- received from peasants related to land acquisi- sion. In the end the police opened fire on the tions and illegal land seizures, of which 87 per- protesters, killing one person and critically injur- cent involved inadequate compensations for land ing several. The incident in Saixi village gained and unfair resettlement subsidies (Zhang 2004).

Focaal—European Journal of Anthropology 54 (2009): 97–105 doi:10.3167/fcl.2009.540108 98 | Bo Zhao

The Ministry of disclosed that in Since 1949, the (CCP) 2005 more than 65 percent of mass incidents in has gradually eradicated private land ownership rural China were reportedly the result of land ex- through a series of political campaigns to real- propriation (Hsiao 2008). In the first nine months ize its socialist ideology of a planned economy. of 2006, China reported a total of 17,900 cases of A new land regime was established after 1956 massive rural unrest, with at least 385,000 farm- that made all land publicly owned, either by the ers protesting against the government. Approx- state of by rural collectives (see Ho 2005). The imately 80 percent of these incidents were related only liberalization that has taken place since is to illegal land appropriations. Land acquisition that a market has developed for the lease of con- by the state has thereby become the top cause of tracted farmland and the transfer of farmland rural grievances in China (Zhu and Prosterman use rights. Ultimately, state and collective own- 2007). In the absence of a free media and with ership however remain untouched. trying to silence protest, it is According to , urban land belongs safe to assume that there are many more inci- to the state; the State Council, by means of sub- dents related to land expropriation. organs, exercises this right. In contrast, rural and In recent years such mass incidents have sub-urban land, including arable land, forest, started to pose a significant threat to China’s so- grassland, and construction land, should—un- cial stability and economic development, as well less prescribed otherwise by law—be collectively as to the authority of the Chinese government. owned by farmers and be collectively adminis- In order to ease the accumulating tension in ru- tered on behalf of farmers at two levels—the ad- ral China, the latter has made considerable ef- ministrative village and the village group.1 This forts, including establishing new land markets, means that only farmers’ use rights (jingyingquan) legislating new laws, tightening law enforcement, to land are recognized and protected by law. Be- issuing stricter policies, increasing compensation cause all urban land belongs to the state, it must standards, and punishing corrupt officials. How- be noted that land expropriation in China merely ever, those measures have not had the expected refers to rural land. result. In the past two decades rapid industrializa- This article seeks to explain why conflict over tion and has caused an rural land expropriation is inevitable under the increasing demand to convert rural land for in- present political and legal regime of the party dustrial, housing, infrastructural or other urban state in China. It is not that the Chinese govern- use (see Wang 2005). But a potential land user— ment is not serious about the issue, but that un- for example a private property developer—can- der current conditions it is impossible for the not acquire rural construction land or arable state to solve it. Contrary to what has been the land directly from a collective on the land mar- expectation of many Chinese scholars, this arti- ket. Such conversion must be permitted and cle argues that the forthcoming land reform will carried out by the Chinese government. After not make much difference. There will inevitably the potential land user has made an application be more land expropriation-related tragedies for the land that is in accordance with land use unless fundamental political and legal reforms plan, the government can start the procedure of in pursuit of the rule of law and democratiza- land expropriation (tudi zhengyong) in the name tion are embarked on. of public interest, followed by a land transac- tion (tudi churang) between the government and the potential land user. Land expropriation under Rural land expropriation is carried out by the present regime the county government or higher level officials. Farmers who lose their land do not get compen- The main characteristic of the Chinese land re- sation directly from the local government, but gime is the prohibition of private ownership. from a potential land user, according to statu- Land expropriation, protest, and impunity in rural China |99 tory standards based on the principle that farm- comparison to the market value, farmers are of- ers’ living standard may not be lowered due to ten not even given that and a considerable part the expropriation. Compensation is based on of the compensation disappears into the pock- the original land use. It consists of three parts: a ets of local governments, collectives, and village compensation for the loss of land set at six to cadres. Moreover, there are no stipulations in ten times “the average annual output value,”2 a current Chinese law on the procedure to be fol- resettlement subsidy of four to six times the av- lowed where compensation fees are not paid ac- erage annual output value, and a compensation cording to the legal standard (Liu 2007). for structures and standing crops. Based on the Also the meaning of “collective ownership” is prescribed standard, each provincial government vague and it is not clear who the actual owners can decide its own compensation rates accord- of collectively owned rural land are. Scholars have ingly within its jurisdiction. However, in case the suggested that rural land is ultimately owned by prescribed compensation is not high enough to the state (Ho 2001), but in reality it is in the comply with the above principle, the total com- hands of village and township party cadres (Cai pensation of the first two categories shall not 2003; Guo 2001). In land expropriation cases, exceed thirty times the average annual output the latter pursue their personal interests in ne- value of the previous three years.3 gotiating how much is to be compensated and Land expropriation remains a highly contro- in deciding how much each villager may get. The versial matter in China, partly because of leg- overall gap between the compensation in farm- islative defects and poor law enforcement. An ers’ hands and the market value of the expropri- important issue in this regard is the ambiguity ated land is so big that landless farmers cannot of the notion of the “public interest,” in whose but feel heavily exploited.4 name land is expropriated. There is no specific However, not all rural land acquisitions give definition of the term in either case law or statu- rise to riots and unrests, even under the current, tory law. In common practice, the term is inter- defective legislation. Peasants do not have high preted extremely broadly to allow a variety of expectations because they know that they only urbanizing, industrializing, and “modernizing” have “use rights” to rural land. In cases where activities. In this way, local governments sup- the legally prescribed compensation is paid, they port many commercial projects to increase local are usually satisfied. In Guangzhuo City, Guang- revenue. It is, however, mostly certain local lead- dong province—one of China’s richest areas— ers, interest groups, and other insiders who ben- land requisition for urban development has for efit from such projects, while farmers’ interests instance been successful and has triggered no seem to be excluded from the definition of pub- apparent confrontations (Tang et al.2008). Land lic interest (Zhang 2004). expropriation was conducted there in accor- The most often reported reason for the high dance with the respective rules and regulations number of land-related incidents is inadequate and with more transparency and public partic- compensation to farmers. No doubt the com- ipation than in other places. Even the proper pensation standard set by statutory law is rather implementation of existing state law would likely low in comparison to the market value of ex- reduce the intensity of the present conflicts over propriated land, let alone farmers’ real long-term land. loss. The compensation only aims to uphold their present living standard, but does not ensure them an alternative means of making a living. With a Economic dispossession maximum compensation of thirty times the with political impunity average annual output value, it is up to the ju- risdiction of the provincial government to deter- In recent years the Chinese government has be- mine the amount of compensation. Although the come more aware of the danger of popular un- compensation de jure standard is already low in rest over land expropriation and has tried to 100 | Bo Zhao improve the situation. It has made considerable by all means, even offering land at a price far efforts to tighten the fence and has issued new below the market value (Zhou 2004). Thus, in policies, established new monitoring agencies, regional economic competitions some local lead- and designed new laws. It is worth mentioning ers even offer free land to companies that may that the recently promulgated property law par- contribute more to local revenue. For this rea- ticularly emphasizes the protection of farmers’ son inadequate compensation to local farmers land use rights and prescribes adequate compen- is almost unavoidable. Second, large real estate sation to be paid in case of land acquisition.5 development rather than agricultural produc- Such measures nevertheless cannot effectively re- tion is promoted by local officials as the former duce the conflicts over land expropriation. New is likely to contribute more to GDP growth. laws have little effect as local officials hardly Apart from this, there is also the fact that lo- comply with them. Even under strong pressure cal officials can gain incredible interests from from Beijing, illegal land grabs continue in ru- land expropriation and land lease. Due to the ral China. For instance, local officials of Dang- non-democratic character and hierarchical struc- shan County, province, have engaged in ture of the Chinese government, rent seeking is illegal land grabbing for many years, causing popular in local land administration. Though continuous conflicts between peasants and the there are specific procedures, rules, and policies local government.6 In June 2008 the Chinese on land transfers, it is ultimately local leaders, Central Government issued a special regulation usually party cadres, who have the last say in de- punishing government officials who intention- ciding who gets land and at what price. Local ally disregard land laws. Its preamble openly ad- leaders, in particular those in charge of land is- mits that local officials breach the law and that sues, benefit directly from such land transac- China’s land administration is at a critical point.7 tions by taking bribes from potential land users. The fact that there is a widespread violation of In some cases, the land developers are actually the law in rural China despite remedies sought companies owned by officials’ relatives, family by the central government relates to the sharp members, and close friends. All this leads to an contrast between economic reforms that have ever more disturbing redistribution of wealth lead officials to pursue profit at all costs and an away from farmers toward local officials and the absence of any political reforms to hold officials companies to which the land is assigned. democratically accountable and tackle their The attractions of the promotions and prof- impunity. its to be made from illegal land grabbing are Following the 1994 fiscal reform, the central worsened by the lack of punishment of officials government took away most of the revenues of breaking the law. Poor enforcement of land laws local governments but did not diminish their fi- has caused serious problems in China. Due to nancial responsibilities (Yang 2008). To meet illegal land grabbing, China’s arable land de- local needs, a considerable proportion of local creases so fast that it now touches the so-called income is acquired, legally or illegally, through red line, endangering China’s food security. land expropriation. Had state law been strictly Moreover, massive land expropriation-related implemented, the income of township, county, incidents threaten the rule of the party state. and municipal governments would have de- Though Beijing wants tight control over local creased significantly, particularly in less devel- officials on land issues, it cannot achieve the oped areas of the country. With GDP growth aim because land law violations at local level are being the priority of the Chinese government, hardly punished. The main reasons for this are more rural land is needed for industrial use and strong local protectionism and the absence of urbanization. In the present promotion system, an independent . officials who achieve high GDP growth are most It is difficult for Beijing to restrict local offi- likely to be promoted. This has two negative con- cials due to an increasing local protectionism, a sequences. First, they have to attract investors problem that results from China’s rapid eco- Land expropriation, protest, and impunity in rural China | 101 nomic growth. Local governments enjoy more not welcome and are forwarded to the local of- independence and have become the real gover- ficials in charge. Local media often keep quiet nors of their localities. Taking into account the on illegal land grabbing and insufficient com- size of the Chinese government and the number pensation because the party propaganda bureau of local officials, it seems impossible to reverse forbids them to disclose such negative news so this trend. Although still appointed from above, as not to endanger “social harmony.” Less than local leaders now have absolute authority within one percent of the farmers surveyed in Zhu’s their jurisdiction. They tend to align with each (2007) study were able to file formal lawsuits to other to seek personal interests and establish resolve their land-related grievances. Rights to larger social networks for mutual protection. This public hearings and procedural justice only ex- makes it easy to escape legal punishment and ist on paper. When individual lawsuits are de- party disciplining. Moreover, when high-rank- nied and class-action lawsuit banned, farmers ing officials and party leaders in Beijing become are forced to stage public protest and riots to involved in corruption scandals,9 we can expect draw attention from the national media and even more impunity. Beijing, whom they tend to consider more be- Reinforcing this impunity is also the lack of nign than their immediate oppressors at the lo- judicial independence in China (Lubman 2000). cal level (see Guo 2001: 436 ff.) Chinese courts are under the control of party cadres. Party policy, instead of state law, gets priority in decision making (Peerenboom 2002). The dilemma Thus the different parties in a land-related con- flict are encouraged to solve it by means of ne- Though the CCP’s efforts to curb misbehav- gotiations and non-legal methods. Class action iours in land expropriation are impressive, the lawsuits are extremely uncommon in China. Such result is doomed to be far below expectation as lawsuits are rarely accepted by Chinese courts any real solution would have to involve a funda- because they are regarded as threatening social mental political reform. Some scholars assume stability, as was seen for instance in the recent that it would be possible to return land to farm- milk adulteration scandal (Wong 2009). Local ers but under the present conditions this means courts encounter pressure and interference from returning it to local cadres (Cai 2003). The prob- local leaders and party cadres in the name of lem is that the CCP is the landlord of all Chi- promoting “local economic development and nese and has the ultimate authority to decide who urbanization.” Under such circumstances, ap- can benefit from land use and how much—one peals from farmers to local courts against illegal of the reasons why Chinese dissidents tend to see land expropriation and unfair compensation private property as the solution to the lack of have little hope of winning. Only a small por- protection currently enjoyed by farmers against tion of law violations is punished unless they forced expropriation. Under China’s current threaten to seriously damage Beijing’s reputa- economic policies, the state monopoly over land tion. In this regard, Pei’s study indicates that in means that local governments and land devel- general the low rate of criminal investigations opers, particularly those having close relation- targeting individuals accused of corrupt activi- ships with local leaders, gain major profits from ties and the negligible probability of criminal land acquisition at the expense of farmers’ liveli- penalties make corruption a low risk and high- hoods (Zhang 2004; Zhu and Prosterman 2007).8 return activity that is extremely attractive to of- The central issue is thus whether the Chinese ficials (Pei 2006: 150). government, or the CCP, is willing to give up its In contrast to well-protected local officials, monopoly over land and give farmers a real say landless farmers have to march a long way to in what happens to the land they depend on for achieve justice. As an ex-post remedy, petitions their livelihood. This also entails bringing the to higher governments like letters and visits are impunity to an end with which farmers’ rights 102 | Bo Zhao are violated by Chinese officials, which has deep ciation and a free media, to procedural justice, roots in the CCP itself. Since the terminal crisis and especially to direct local elections, is testi- of international in the late 1980s, mony to this interdependence. Realization of what glues party members together is no longer such rights is undoubtedly a threat to the party so much communist ideology but mere pursuit state as well as to the interests of party cadres. of individual interest. More and more people join Although human rights violations by local offi- the CCP for social advancement instead of for cials are common in China, only those seriously commitment to any political ideology. As Peer- damaging CCP’s legitimacy and international enbom points out, “party control and discipline reputation will be tackled. At the local level, law have been largely weakened by further corrup- violations by officials seem to be an “open se- tion and the prevailing ethos of self-interested cret.”To meet the quota set by higher officials in materialism” (2002: 210). After the amendment population control, local officials in Shangdong of the party charter in 2002, it has basically be- province for instance quite openly took illegal come an association of nouveau riche, bureau- measures trampling human rights (Watts 2005). crats—the majority of which are party cadres, Such interdependence, however, does not sim- and some intellectual elites. It has moreover come plify the central-local relation and drive away to the point that not only are mafia members possible clashes. To understand the complex re- joining the CCP but local cadres are even col- lation, one has to bear two things in mind. First, lecting wealth in ways that are no different from the CCP has both a benevolent and a malevolent those of the mafia (He 2006, 2007). face simultaneously. To retain its grip on power In a sense the CCP is more united than ever despite increasing economic injustice, it deploys before, even if without any ideological commit- heavy-handed suppression. On the other hand, ment and with diversified interests. On the one it cannot rely solely on coercion and must deploy hand, local officials and cadres rely on the a benevolent face to gain legitimacy. Thus cases Party’s authority and protection to seek personal annoying the public and damaging the party’s goals. Even though they are number one within reputation have to be punished to show its deter- their own territory, they have to comply with mination in curbing corruption and in serving the officials above them who are responsible for the interest of Chinese. Second, as Lü (2000) ar- their promotion. As long as the officials domi- gued, deviations from party policies and miscon- nating key positions of local government con- ducts in pursuit of personal interest cannot be tinue to be assigned by those above them and eradicated due to the “organizational involution” selected within the CCP rather than democrat- of the CCP. The party state has never succeeded ically elected, it is safe to assume that the pro- in modernizing its organizations by integrating tection of peasants’ land rights will not be a true relations of legal-rational authority in the We- priority. On the other hand, at national level, berian sense. Instead it has been captured by its the central party needs support from local lead- own agents who distort policies and resist con- ers and cadres to maintain its party monopoly. trol from above. In this regard, it is not so much China’s new generation of leaders do not have that the central government is “unwilling” to the same authority over local leaders as Mao fight against the misconduct of its members and and Deng once had. To retain power, they have sub-organizations, but it is incapable to do so. to win loyalty by allowing local leaders to pur- Because the CCP cannot really fight itself, il- sue their own interests, sometimes even illegally. legal land grabbing and corruption can only be Consequently, the aforementioned separation of brought to a halt through democratization and local and central governments, though apparent, judicial independence. In China village elections is not fundamental; they are more interdepend- began in the late 1980s and have been popularly ent on each other. regarded as a good means toward responsive lo- In this regard, the suppression of human cal leadership. As it turns out, village leaders rights such as the right to free expression, asso- elected in fair elections are willing to protect Land expropriation, protest, and impunity in rural China | 103 farmers’ interest against illegal land acquisitions people, which seems to be a by-product of the and unfair compensations (Cai 2003). Although propagation of “socialist rule of law” by the it is probably only still a minority of village elec- CCP. As Gallagher (2005) observed with regard tions that are conducted democratically and to , Chinese citizens have accepted the though there are many “fake elections,” it is still Western legal concepts and now use the law as a observed that even poorly conducted or corrupt- weapon to press their own rights and interests. ible elections provide leaders with a motivation Whether such rights-based fights can lead to to act in the interests of their constituents (Brandt much result is doubtful as long as local courts are and Turner 2000). So far there has been no sign still under the control of cadres who may have from Beijing of extending these elections to the various interests in land expropriations. Never- township level or higher. The CCP becomes very theless, this is no doubt the strongest push to- cautious when encountering challenges against ward the rule of law that we have seen in China’s its political monopoly. recent history. Neither is judicial independence possible in The CCP is fully aware that judicial independ- China right now. It is well recognized that inde- ence, democratization, and increasing rights- pendent judges can bring justice to a society by based resistance eventually will remove its keeping a rein on the power of executive officials. monopoly over Chinese society, a path however With judicial independence, there could at least not acceptable to the party.10 With the example be better , countering of the coloured revolutions in Eastern Europe, illegal land grabbing. However, though pro- the CCP knows that gradual political reform claiming that the rule of law is China’s future, puts it in danger of losing power altogether. True the CCP hardly makes any substantive move to- democracy and judicial independence will also ward judiciary independence. Even the firmest endanger leaders by removing their impunity. supporters of gradual judicial reform have lost So here comes the dilemma: on the one hand, confidence after observing so many years of “slow illegal land grabbing and unfair compensation progress” (He 2008). in land expropriations endanger the CCP’s le- One may object that countries with judicial gitimacy and authority and it is therefore forced independence and formal democracy, such as to take the problem seriously. On the other hand, India still show many cases of violent land expro- the final resolution depends on a fundamental priation and that thus the expectations of what political reform that is unbearable for the CCP. democracy and rule of law can do should not be too high. In this regard, the best counterargu- ment resides in what is now happening in Tai- Conclusion wan, which has more similarities with , both culturally and socially, than India. The real source of the numerous social conflicts Thanks to judiciary independence and demo- related to land expropriation is the CCP’s mo- cratic governance, forced evictions and illegal nopoly on Chinese society. In the near future, land takings are seldom reported. Former pres- the present situation will not change much, if ident Suibian Chen has been formally accused the CCP continues to maintain the monopoly of misconducts during his presidency. ’s and allows no real political reform. Ideally speak- case at least proves that democracy and judicial ing, the more the CCP gives up its monopoly on independence can remove officials from the pro- land issues, including the return of ownership tection of party politics and hold them respon- of land, the more rights and interests peasants sible for past misconducts. This is why many may have, the less discretionary power local Chinese believe that China’s real future may lie cadres can wield against peasants, consequently in that small island. the less land expropriation-related mass inci- In addition, it is important to mention the dents. Whether peasants can benefit from such increasing rights consciousness among Chinese a retreat also depends on political development 104 | Bo Zhao introducing more democracy and judicial inde- Zhu (2007) revealed, land losing farmers typi- pendence. Otherwise, the rights awarded to peas- cally receive 10–20 percent of total land sales. ants might be taken away again by local cadres, 5. (2007), article 42, 125, of which strict control from Beijing seems im- 126, and article154. possible under the present circumstances. 6. Anhui Dangshan: Conflicts over Coercive Land Expropriation with Local Police Led by County In line with this, observers should not be too Leaders,” Nanfang Daily, 5 November 2008. optimistic that the Third Plenary Session of the 7. See http://www.gov.cn/jrzg/2008-05/29/content Seventeenth Central Committee of the CCP held _998441_2.htm. in October 2008 signals any fundamental reform 8. According to Forbes magazine ranking of wealth- in the near future. According to its proclamation, iest Chinese (2007), six of top ten are private es- no significant reform is promised so far; only tate developers. measures to tighten up the already loose fence 9. For example, at the time of this writing, vice are adopted. For example, the proclamation ac- president of the Chinese Supreme Court Songyou cepts popular experimental practices, though Huang is under investigation for misconducts illegal before, such as transfer of use rights of in interfering with local court’s judgment in arable land; emphasizes more strict land acqui- Guangdong province. sition regulations and explicitly assures peasants 10. Luo Gan, China’s top law and order official, warned of the danger of Western enemy forces of full compensation in land acquisition; and it trying to use China’s legal system to Westernize promises to separate public interest from non- and divide the country. He demanded that legal public interest. With a new round of policy mak- departments should stand with the CCP (Kahn ings and law amendments, I believe these mea- 2007). sures will somehow help. However, as long as there is no proper law enforcement and democ- ratization in China, the old question remains: how much? References

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