'Put power into cage'
Sware's victory might not have been entirely a coincidence. Discussion of amending the Administrative Procedure Law has appeared frequently in Chinese media during the last two years. After three rounds of deliberation by legislators with the NPC and two rounds of solicitation of suggestions from the public, the NPC approved the first amendment in the law's 25 years of existence.
According to the amendment, courts must launch administrative proceedings if the government is sued for violating agreements on land or other commercial operations franchised by the government. According to the People's Congress of China, the NPC's official magazine, the amendment's goal is to "put administrative power into the cage of rule of law."
"It is this general trend towards rule of law that encouraged us to use legal means to [protect our] rights. Sware sued the Department of Education in Guangzhou, because Guangdong Province has a sound economy, relatively efficient courts and experienced judges familiar with the market economy. If this case was held in other less developed provinces, we might lose the trial. Through this case, I've gotten the sense that, with each trial, the government is improving itself a little bit," said Wei Shilin.
A new normative normal?
The legal drama in Sware's case is not over. Guangdong's Department of Education refused to accept the Guangzhou Intermediate People's Court's verdict. It appealed to the high court of Guangdong Province. The hearing is yet to be held. The department insists it is merely obeying so-called "normative documents" from higher educational authorities.
However, the amendment to the Administrative Procedure Law enables private parties to challenge not only specific decisions of government agencies, but also the rules and regulations on which they are based. The new provision stipulates that if a citizen or any other organization believes that a normative document issued by central and local government departments is not in accordance with the law, they may request that the normative document be reviewed in a formal legal proceeding.
"We say that the Administrative Procedure Law is meant to allow citizens and private parties to sue the government. But for what should suits be allowed, and for what should they not be allowed? There should be clear definitions. Many citizens' economic activities are legal. But when those citizens really want to do something, the normative documents and procedures of government agencies block them from doing it. I think either the courts or the NPC should have the power to review government normative documents, so that citizens can know for what they can bring suit, and for what they can't," said Wu Xiaoling, vice-chairwoman of the Financial and Economic Committee of the NPC, during an NPC deliberation, according to the NPC official website.
Court appearances
Since 2014, to get ready for the new amendment, judges, police and government officials have been changing both their training and daily work routines.
In a written response to the Global Times, China's Supreme People's Court stated that on March 8 the court held three days' nationwide live video streaming training on the new Administrative Procedural Law for judges at various levels, the first televised national training of this kind for judges. Most judges at the Supreme People's Court attended the training. High courts throughout the country have also arranged for local courts to watch the recorded video stream from the training. Lecturers at the training included NPC senior legislators and supreme court senior judges specializing in administrative law.
In October 2014, as part of preparation for the new amendment, deputy district chief Liu Yu of Beijing's Fengtai district appeared in person as defendant's legal representative before a judge at the Beijing High People's Court. In March 2015, district chief Lu Yingchuan of Beijing's Shunyi district also appeared as a defendant's legal representative before a judge at Beijing Fourth Intermediate People's Court.
The amendment compels defendants - representatives of government agencies - to personally appear before the court. Those who refuse to appear without legitimate reasons may face punishment. Currently most defendants ask their lawyers or other staff to represent them in court.
"Government officials appearing in court in person is a very important revision. Though the heads of these government agencies might not appear in court every time, they now have to assign their deputies or someone directly related to the case to appear before court. This means the government will hear the other side's story, [and may push them to] consider their administrative decisions more carefully. Furthermore, appearing in person is a way of showing respect for the court and rule of law," said Song Tong, a lawyer and director of administrative law office at Beijing Chaoyang District Lawyers Association.
An open court also needs an independent and transparent judiciary. On March 30, the general office of the Central Committee of the Communist Party of China and the State Council released regulations requiring leaders at all levels to keep their hands off legal proceedings. For leaders who try to pull strings, not only will it be included in their performance evaluations, but they also face the risk of being put behind bars for illegally meddling in the work of the judiciary.
As China's first white paper on judicial transparency in Chinese courts, issued in March by the Supreme People's Court, said, "Justice is not [just] to be done, but to be seen being done."
