How Ma Yalian, a Shanghai resident whose three-storey home came in the way of her country's relentless and unforgiving rush for development, fought the law.
It all began, as so many stories do, with a knock on the door. On the morning of August 4, 1998, Ma Yalian found three officials from a local real estate firm outside her Shanghai home. Demolition papers in hand, they uttered the words Chinese home-owners dread to hear: her three-story family home in downtown Shanghai was to be torn down to make way for an urban redevelopment project. Then came the second blow. She would be relocated to a cramped, dingy apartment in Shanghai's outskirts, and given little compensation. “Fight the order at your own risk,” the men warned.
In many ways, Ma Yalian's story is hardly unusual. Every year, tens of thousands of Chinese lose their homes to influential real estate companies. Evicted residents are routinely forced out of their houses with little or no compensation, and often have little recourse to justice. Every year, there are an estimated 90,000 “mass incidents” — officialspeak for protests — reported across China. The majority of them involve land rights issues. Most residents have to quietly accept their fate, intimidated by the influential real estate mafia and befuddled by opaque laws.
But Ma Yalian fought the law. A decade-long struggle took her across every level of China's judicial system, from a local district court in Shanghai to the Supreme People's Court in Beijing, the highest court in the land. She faced threats to her life, suffered beatings, and spent months in detention centres. But slowly, her voice began to be heard. Her struggle grew far beyond the immediacy of her case, beyond compensation amounts and questions of relocation. She took on a much larger battle: reforming her country's judicial system.
The People's Republic of China's judicial system has, since its founding in 1949, always functioned with inherent tensions. The Constitution guarantees human rights, the rule of law and an independent judiciary, as in any liberal democracy. But, given the nature of China's one-party political system, the courts have always functioned within limits firmly set by the ruling Communist Party.
Over the past three decades, after Deng Xiaoping launched his economic “reform and opening up”, China has had to open up its legal system too. Particularly after China's accession into the World Trade Organisation in 2001, Beijing has had to professionalise its courts to make them more transparent. The last decade has seen a slew of significant judicial reforms. Chinese enjoy more legal rights now than they have ever before in the country's history. However, there are limits to reform. Despite progressive changes in Central laws, their enforcement by local governments remains arbitrary at best.
Into a legal maze
Ma's story illustrates what happens when a Chinese citizen openly challenges this system's arbitrariness, and the often alarming gap between the theory and practice of law in China. Ma first took her case, in the face of threats to her life and after a brutal assault by thugs hired by the local mafia, to the Nanshi District People's Court, a lowest level court. Without a second glance, the court threw out her case.
China has a unique redressal system, a legacy from the Qing Dynasty (1644-1911). Citizens can appeal the verdicts of provincial courts — notorious for their willingness to bend Central laws for local interests — by petitioning the Central government. The petition system has in recent years come under strong criticism from lawyers and rights activists, who say it has grown into yet another mechanism which facilitates the silencing of dissenting voices.
In March, 2000, Ma travelled to Beijing, petition in hand, to appeal the verdict. Her trip didn't last long. Before she reached the national petition office, she was intercepted by Shanghai police officials, who locked her up at a shourong qiansong prison — a detention system solely created to prevent petitioners from having their voices heard in Beijing. She was released after two days, with a stern warning and a promise: return to Shanghai, and the case would be heard.
It wasn't. Over the next two years, Ma would make at least half a dozen trips to Beijing. On each occasion, she was, along with other petitioners, detained by officials. On one Beijing visit, Ma managed to secure a meeting with a well-intentioned Supreme Court judge, who she said was alarmed by the facts of her case. He presented her with a court order calling on the Shanghai court to hear her case. But when she returned home, again, the court refused. In September, 2001, she was arrested in Shanghai on criminal charges for “illegal petitioning activities” — ironically, a right guaranteed to her under the law.
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When I met Ma in Shanghai, almost a full decade after her battle first began, I was struck by two things: her willingness to tell her story, despite the many threats she continues to face, and her unyielding faith in the law, even after her many failed trips to Beijing and repeated detentions. She said she decided, early on, that the only way she could challenge the legal system was from within. So, at every opportunity she got, she began studying it. She wrote a series of widely-read articles in online journals, criticising the petitioning system and calling for judicial reforms. Slowly, her voice began to be heard in the legal community. Unfortunately for her, it was also heard by the authorities. Following the publishing of her articles, she was sentenced to 18 months of “Re-education through Labour” in February, 2004, on the more serious charge of stirring social unrest.
“I had no access to legal counsel, and even my family couldn't visit me,” Ma said. “I wanted books on law, but they were all confiscated. I was deprived of all basic rights even prisoners are supposed to have in jail. And I had committed no crime.” She said suffered regular beatings, and on occasions had to be taken to a prison hospital in Tilanqiao, Shanghai, for treatment. After her release, her family hired Guo Guoting, a well-known human rights lawyer, to represent her. Under pressure from the government, he eventually went into exile in Canada. Her case remains unresolved. She says she will continue to appeal.
The road to reform
Lawyers in Shanghai and Beijing who were familiar with Ma's case made the rather ironic point that in China, it has always taken extreme cases, like Ma's, to bring about changes to the system. A case often cited is the death of Sun Zhigang, a 27-year-old graduate student who died in custody in a Guangzhou detention centre, held for not carrying the right identification papers. Widespread public indignation led to a landmark reform of detention laws.
Ma's case, along with a few similar cases from the 1990s, has resulted in small but significant changes. In 2003, following protests from lawyers, Beijing abolished the controversial shourong system. In cities like Beijing and Shanghai, governments have vastly improved compensation payments. In January, 2008, China passed a new property law, aimed at reducing its seeming arbitrariness.
Detentions of petitioners are now no longer as widespread, though they still do take place. In a report released last month, Human Rights Watch documented cases of dozens of petitioners who have, since 2003, been locked up in extra-judicial centres which have replaced the shourongjails. China's Foreign Ministry has denied the existence of these “black jails”. But the testimonies in the HRW report closely echo Ma's own story, and underscore the limits of the law's reach in China. Ma spent several months in one of these prisons between 2004 and 2006, locked up in the basements of nondescript government-run hotels in Shanghai suburbs.
Public resentment over land rights, scholars say, remains the single biggest cause of social unrest in China. Every week, local newspapers are littered with stories of aggrieved residents protesting the loss of their homes. Just last month, in Chengdu, Sichuan province, a 47-year-old woman died setting herself ablaze atop her home, in a confrontation with local officials who were set to demolish her house. Her story received widespread national attention and public sympathy. Even the usually staid State-run China Dailynewspaper warned in an editorial that the incident pointed to the increasing sensitivity with which land rights were viewed in China, and the urgent need for ensuring basic property rights.
This month, five law professors from Beijing's prestigious Peking University called on the National People's Congress, China's highest legislative body, to reform property laws and demolition procedures. They said current practices violated property rights guaranteed under the Constitution, and pointed to the often close ties between real estate developers and government officials. “Such twisted relations between urban development and personal property have resulted in many social conflicts,” warned Shen Kui, one of the five scholars.
In the past three decades, China has sought to professionalise and modernise its legal institutions. Indeed, Chinese enjoy more rights now than ever before in the country's history. But the evolution of China's judicial system now stands at a crucial crossroads. Nicholas Bequelin, a China scholar at Human Rights Watch, argues that we may have now come close to reaching a point where any further reforms will begin to erode the ruling Communist Party's power. The Party, now more than ever, faces an increasingly tricky tightrope walk. It has to balance its persistent need to ensure its unchallenged political control with satisfying a growing demand from its citizens — a demand for the rule of law.
