Let All Citizens Enjoy Safely Their Homes / Guo Daohui et al

家园

To the State Council on the Massive Illegal Demolition Campaign against the Constitution in Beijing and Other Places

State Council of the People’s Republic of China, Premier Li Keqiang:

In recent years, Beijing and other places have been emerging the violation of  citizens’ housing rights and property rights and large-scale illegal forcibly demolition in the name of “demolition of illegal buildings “. Since 2019, due to the fact that some local governments, such as Beijing, have formulated large-scale forced demolition plans by form of movement,  used government organizations at all levels to link positions and promotions with the “achievements” of forced demolition, which has resulted in more negative and significant social impact, serious violation of housing rights, eviction and displacement of citizens living in the only residence, and huge property losses equivalent to the total annual income of several years suffered by citizens whose houses were  illegally forcibly demolished; their constitutional rights were violated and their human dignity was destroyed (see the annex for details). We condemn this unconstitutional and illegal demolition campaign.

First of all, this forced demolition is a serious violation of the principle of protecting the life, property and dignity of citizens in the Constitution, and a serious violation of citizens’ housing rights (Article 39), property rights (Article 13), personal freedom (Article 37) and human dignity (Article 38). The only reason the implementers of this illegal demolition campaign used against the Constitution was that these houses were “illegal buildings”. Its legal basis is the Law of Urban and Rural Planning, which is the subordinate law of the Constitution. Among them, the so-called “planning right” should only protect and serve the citizens’ housing right and property right, and should not arrogate them, let alone damage the constitutional rights of these citizens. At the same time, it violates the principle of “socialist market economy” stipulated in the Constitution. That is to say, market system plays a decisive role in resource allocation, including land allocation. “Planning right” can only be a secondary public power which plays an auxiliary and referential role in the market allocation of land resources.

Second, this illegal demolition violates the Legislative Law and the Urban and Rural Planning Law. A large number of “forced eviction notice” quoted article 41 of the Urban and Rural Planning Law, but this article only emphasized that if people want to occupy the farming land for building houses, they need to obtain the construction planning license, so that we can see that there is no need for a license for building on non-farming land; it does not give the forced evictor the power to forcibly demolish the citizens’ houses, especially on non-farming land. The Article 65 cited clearly refers to the “building under construction”, rather than the citizen’s home that has been completed, sold, and carefully managed for several years, or even 10~20 years. It is a deliberate violation of the law that the forcible demolisher distorts its meaning and uses it for a purpose totally different from the original intention of the legislation. In spite of this, the forcible demolisher still apply the distorted interpretation of the Urban and Rural Planning Law, which was implemented in 2008, to the houses built before that, which also violates the principle of “no retroactivity” in the Legislative Law (Article 93).

Third, this illegal forced dismantling also violates the legal due process stipulated in the Administrative Punishment Law, the Administrative Reconsideration Law, the Administrative Litigation Law and the Administrative Compulsory Law. The forcible demolisher fails to comply with the Administrative Punishment Law, that is, inform the citizen concerned (Article 31), listen to the defense (Article 32), hold a hearing after the notification (Article 42), post the threatening notice of “three days within a time limit” by means of sudden attack, which violates the provisions of the Administrative Compulsory Law that the party concerned shall not demolish after bringing administrative reconsideration or administrative litigation (Article 4 4). The legal period of “administrative litigation” is six months. For example, there are more than 800 citizens in Xiangtang cultural new village who have filed administrative reconsideration or administrative litigation against the “Notice of forced demolition”. Up to now, none of them have received the notice of acceptance, nor have they entered the administrative reconsideration or administrative litigation procedure, which violates the provisions of the Administrative Reconsideration Law and the Administrative Litigation law on accepting complaints.

Fourth, the forcible demolition by the forcible demolisher also violates the Administrative Compulsory Law and the relevant regulations of the State Council. For example, the use of power and water cut-off means to force citizens to leave their houses in order to forcibly demolish them (for example, in Woodhouse village, Oubei), in violation of the provisions of the Administrative Compulsory Law, “the administrative organ shall not stop water supply, power supply, heat supply, gas supply for residents and other ways to force the parties to implement relevant administrative decisions.” (Article 43) the forcible demolisher has forced demolished (for example, to Hanbi building) or prepared (for example, to Xiangtang new village and Old Beijing Courtyard in Water Great Wall) to forcibly demolish in the form of sudden attack, which violates the Emergency Notice of the State Council (Guo Ban Fa [2010] No. 15), and is not allowed to “forcibly demolish by means of” demolition in a row “or” demolition by surprise “. Some local forcible demolishers ordered the police to interfere with and intimidate the rights safeguarding actions of the citizens concerned (such as in Guozhuang Village), which violated the regulations of the State Council that “the public security police should not be used to participate in the forcible land acquisition and demolition”; the forcible demolishers employed the demolition company and the security company to illegally demolish the taxpayer’s houses with the financial funds, which violated the provisions of the Budget Law in scope of use of government funds (Article 27, Article 93).

Fifth, this unconstitutional and illegal demolition movement has fundamentally damaged the property rights institution. This property rights institution is the basis of the “socialist market economy” system stipulated in the Constitution. It is precisely because of the establishment of the property rights institution, the enthusiasm of the people’s production and management stimulated by China’s reform and opening up that China’s miracle has attracted worldwide attention. Illegal demolition in violation of the Constitution and challenge the constitutional rights including housing right and property right with exaggerated administrative “planning power” is to dig the root of reform and opening up and shake the root of China’s economic miracle. The illegal forced eviction campaign not only violated the housing and property rights in practice, but also threatened all other house owners with its unconstitutional and illegal, devalued their market value and deterred citizens and foreigners from investing in China.

Sixth, this illegal forced demolition movement used the concept of “small property rights” to stigmatize the property rights of rural collective land, in an attempt to weaken the legitimacy of its property rights. The property rights of rural collective land is a complete property rights stipulated and protected by the Constitution. In a certain period of time, it was limited by the mistakes in the Land Management Law. However, the new Land Management Law of 2019 corrects this error. Rural collective land can enter into the construction land market without being expropriated by the government. This improvement originally restored the complete nature of the rural collective land property rights. The houses built on the collective land in the past should be better protected in accordance with the principles of the new law. However, this illegal forced demolition campaign continues to deceive the society with the fallacy of “illegal house with small property rights”, which destroys the wealth of house owners and greatly damages the interests of rural collective as land owners.

Seventh, the forcibly demolition is suddenly launched during the time fighting against the COVID-19. It shows that the demolitions took advantage of the COVID-19 epidemic as an opportunity to demolish (Hanbi building in Qingdao) or threaten to demolish (the Old Beijing Courtyard in Water Great Wall ), causing the gathering of the demolishers, of the demolishing teams,  of the security companies, and their strongly body contact with house owners, greatly  increased the risk of virus infection and destroys the overall situation of anti-epidemic. It also shows that the forced demolishers ignore the economic recession aggravated by the epidemic, seriously hit the economic recovery, and destroy the mode of suburban economic development in large and medium-sized cities, resulting in huge loss of wealth and related demand contraction and unemployment, leading to further deterioration of the macroeconomic situation. Some areas (such as Miyun County, Beijing) have “sounded the clarion call of” basically no illegal construction area “, which is enough to prove that it is a serious damage to China’s overall interests to place illegal demolition on top of anti-epidemic and economic recovery.

Eighth, in the form of the “Cultural Revolution” movement, this illegal forced demolition campaign is characterized by “first convicting, then finding evidence of crime”, first determining the area of forced demolition, then finding the reasons for forced demolition, and taking the completion of the forced demolition indicators as the criteria for assessing the performance of governments at all levels, forcing governments at all levels to become tools of illegal forced demolition, devastating governments at all levels and their officials, forcing them to break their promises and tear up contracts, Illegal actions, insulting the constitution. The forced demolitions forced the government officials to distort their minds, to annihilate human nature, to break through the moral bottom line, to take destruction as a task, and to regard human life as nothing, which became the cause of local citizens’ unease and fear. The forced demolition movement put government officials at all levels in a high risk area that will eventually be punished by law, and turned the government institutions that originally protected citizens’ constitutional rights into monsters that devoured houses. This is a serious damage to the national system.

Ninth, This illegal demolition campaign violates the Constitution, the Legislative Law, the Urban and Rural Planning Law, the Budget Law, the Administrative Penalty Law, the Administrative Reconsideration Law, the Administrative Procedure Law and the Administrative Compulsory Law, the administrative decision of the municipal government, the decision of the District or County People’s Congress, the contract of villages and towns as the civil subject,   by illegal means to forcibly demolish citizens’ home is to destroy the entire legal system. Because if the violators can’t be punished, the law itself has no effect. This is equivalent to putting the homes of all the people in our country into a huge risk that they can be forcibly demolished at any time without legal protection, and our society will lose the foundation of its public governance.

Mencius said, “Killing one innocent, conducting one injustice, even can get the world, I will not do so.” Today, in China, there are tens of thousands of buildings have been destroyed; there will be millions of buildings will be destroyed, in buildings there are homes, and people. Above the top of the country, is there no shame? To sum up, we invite the State Council and Premier Li Keqiang to quote the first paragraph of Article 89 of the Constitution, “according to the Constitution and the laws Issue decisions and orders “, urgently stop this large-scale illegal demolition campaign of abusing public power, investigate the illegal demolition that has been implemented, and prosecute the responsible person of illegal demolition. At the same time, we hope you also reaffirm the protection of citizens’ constitutional rights, including the right to housing — even for buildings that are likely to violate major laws, they should be treated on a case by case basis, and they should strictly follow the due process of law to make decisions — let all citizens enjoy safely their homes.

Guo Daohui    (signature)

Zhang Qianfan               (signature)

He Weifang     (signature)

Sheng Hong                               (signature)

Guo Yuhua               (signature)

 

April 26, 2020

 

Annex I: Some facts of illegal demolition in Beijing and other regions (omitted)

Annex II: The directory of forcibly-demolition  videos (omitted)

Author: flourishflood

Economist, Confucianist

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