The ability for citizens to take officials to court is back in the public eye now that China’s legislature has terminated its review of a draft amendment that had been criticized for potentially making it harder to sue the government.
The revision to the Administrative Litigation Law had sought to move four types of cases from being initially heard by the intermediate courts to first being tried in lower-level district and county courts, as tested out in pilot program launched by the Supreme People’s court in October 2021.
The four types included cases involving government information disclosure, cases where administrative staff or agencies did not perform their duties, cases not accepted by administrative reconsideration authorities, and administrative disputes over the ownership of natural resources.
The Standing Committee of National People Congress (NPC) announced on Aug. 21 that the review of the draft amendment had been axed.
The idea behind the amendment was to move more of these cases, referred to in China as “citizens suing officials” cases, to the lower courts to reduce the number of administrative retrials heard by the Supreme People’s Court.
If one of the parties involved in such a case believes an error in a judgment or ruling made by a high court and that has taken legal effect, they must then apply for a retrial to the original high court, and only if conditions are met, can they apply for the Supreme Court to hear the case.
The NPC didn’t give a specific reason for spiking the review of the draft amendment. Generally, analysts saw the termination as a sign the draft wasn’t ready to be enshrined in law, so should have not be hastily advanced. As long as the goal is to improve the law and advance the rule of law, this suspension is rational and beneficial.
Administrative litigation, alongside civil and criminal litigation, is one of the three major types in China, but has had a development trajectory markedly different than the others. The decision to stop the review underscores the legislature’s prudence. Like other judicial reforms, this one has also entered challenging waters. Successfully reforming “citizens suing officials” cases involves two dimensions. Internally, it’s about adjusting and integrating administrative trial mechanisms, including jurisdictional arrangements addressed in this amendment. Externally, it’s about creating conditions for fair administrative trials, such as those that minimize undue interference. The essence remains to guarantee the independent exercise of adjudication power. Judicial bodies should be willing, daring, and able to judge, and they should be positioned to oversee administrative bodies. This central proposition has been consistent throughout the 30-plus years of administrative litigation, and it’s even more critical now.
The Administrative Litigation Law was passed in 1989, implemented in 1990, revised in 2014 and again 2017. Even before the law was promulgated, the societal and economic demand for citizens to sue the government had already emerged. With the influx of foreign capital and the rise of private enterprises, the pressing issue became how to correct and oversee administrative actions that grievously harmed businesses or individual rights. Statistics indicate that, prior to the implementation of the Administrative Litigation Law, over a hundred pieces of legislation had already addressed this issue. Courts at all levels had also adjudicated a substantial number of administrative lawsuits. In the early days of the law’s implementation, every victorious lawsuit by the public was zealously covered by the media, creating a profound conceptual impact. It forcefully demonstrated that the concept of “equality before the law” was not just empty words. The judicial practice of “citizens suing officials,” though at odds with traditional Chinese notions like “litigation aversion” and “the high-ranked should not be penalized,” is a product of the reform and opening-up policies. It’s an inherent demand of a market economy and a society governed by the rule of law. Any amendments and reforms to the administrative litigation system must adapt and continually meet these needs.
The evolution of administrative litigation from its inception, especially after its 2014 revision — which shifted away from a “case review system” to a “case registration system” and proposed certain cross-administrative jurisdictional regulations for administrative cases — has gradually clarified the direction of the reform. Considerable progress has been achieved. However, the “three difficulties” of filing cases, adjudication and enforcement remain unresolved. A recent research report released by the Supreme Court reveals that, compared with civil and criminal cases, administrative cases have consistently shown a higher rate of appeals and complaints over the years, with an upward trend in recent times. The causes for this not only lie in judicial philosophy and trial quality but also in the administrative litigation system and mechanism itself. Furthermore, “in a few regions, there are varying degrees of inappropriate local interference.” Especially during the past three years of the Covid-19 pandemic, many regions have displayed a tendency toward a “one-size-fits-all” approach and escalating regulations, rampant formalism, and a marked resurgence in the infringement of citizens’ rights by public authority. The immense responsibility of administrative litigation speaks for itself.
Any amendment should adhere to the legislative purpose of the Administrative Litigation Law. Article 1 of the Administrative Litigation Law stipulates that it ensures that courts adjudicate administrative cases fairly and promptly, resolves administrative disputes, protects the lawful rights and interests of citizens, legal entities, and other organizations, and oversees the lawful exercise of authority by administrative bodies. Currently, although the draft amendment to the Administrative Litigation Law has been terminated, the public expects judicial institutions to remain principled and true to their original intent.
For “citizens suing officials” to make breakthroughs, there must be dependable institutional arrangements to oversee administrative power. Administrative litigation is a litmus test for the relationship between judicial and administrative powers. Prior to the 2014 amendment of the Administrative Litigation Law, the original phrasing was to “uphold and supervise administrative organs in the lawful exercise of their authority.” The word “uphold” was removed during the revision. However, in judicial practice, the tendency to overly emphasize support while downplaying supervision has persisted. In administrative litigation cases, judicial bodies are evidently at a disadvantage compared with the administrative ones. The head of the Supreme Court’s Administrative Trial Chamber revealed in 2014 that “about 10 years ago, the plaintiff’s victory rate was around 30%. In recent years, it has generally been below 10%, and in some provinces, it’s even as low as 2%.” Moreover, the phenomenon of top officials from administrative bodies rarely appearing in court to respond to lawsuits, or when they do, remaining silent, remains widespread.
Refining administrative litigation has a direct impact on economic and social development, with the business environment being a prime example. The unlawful acts of some local governments or departments, when unchecked and uncorrected over time, severely harm the socio-economic fabric of localities. In the face of an economic downturn, the central government has repeatedly called for bolstered confidence and improved expectations, emphasizing the enhancement of the business environment. To this end, governments at all levels have issued numerous commendable policies. However, for market entities, a single impactful case can have a greater effect than a slew of documents.
Over 30 years ago, the system of “citizens suing officials” came into being only after breaking through numerous obstacles. Behind this was the inherent inequality between officials and citizens. A high-ranking official once proclaimed: “We wear the national emblem on our heads. Taking us to court is equivalent to suing the People’s Republic of China.” Today, such egregious remarks are rarely heard. Yet, has this mindset been entirely eradicated? The challenges faced in “citizens suing officials” provide an answer. Nowadays, people’s aspirations for rule by law and their thirst for a nation of laws are stronger than ever before. The termination of the draft amendment to the Administrative Litigation Law offers legislators and jurists an opportunity for rational summarization and profound reflection. We anticipate that, in the not-so-distant future, the Administrative Litigation Law amendment will embark on a new journey.
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