Yao Lifa: A Summary of the Twists and Turns in the Judicial-Remedy Provisions for Village Committee Elections: “Proposed During Drafting—Deleted Before Review—Ultimately Absent”

Key conclusion: The revision of the Organic Law of Villagers’ Committees, launched in 2009, included a proposal at the drafting stage to open the door to judicial remedies for rights in village committee elections. A 2008 report noted that the draft revision contained “mainly five” provisions concerning judicial safeguards, under which villagers could sue in court over election violations and election disputes. But before the provisions were formally submitted to the Standing Committee of the National People’s Congress for review, they had been deleted under the legislative approach of “keeping the law broad rather than overly detailed.” In the more than ten years that followed, three avenues—the voter-qualification procedure in civil litigation, administrative litigation, and the crime of disrupting elections under the Criminal Law—were each closed on the grounds that they “do not apply to village committee elections.” The alternative left in place—filing an appeal with the villagers’ election committee—cannot provide a genuinely neutral means of correcting errors because the adjudicator and the party being appealed against are often the same entity. This was not a technical legislative oversight, but an objective institutional consequence: between “protecting villagers’ self-governance” and “safeguarding individual voting rights,” the legislative text ultimately provided no avenue for external judicial review for the latter.

I. Drafting stage: judicial safeguard provisions appeared in early drafts

A 2008 report indicated that the draft revision of the Organic Law of Villagers’ Committees then being prepared added provisions for judicial safeguards for villagers’ self-governance, and that there were “mainly five”: villagers could sue in court over election violations, election disputes, disclosure of village affairs, and other matters. Officials from the Ministry of Civil Affairs also publicly said at the time that the revision would focus on resolving issues exposed in the course of villagers’ self-governance, including “the definition of vote-buying and judicial remedies.”

It should be made clear that “included” refers to early drafts in the drafting process, not the draft text formally submitted to the legislature for review. The 2008 report itself did not list these five provisions one by one, so it can serve as evidence that there was “an intention at the drafting stage,” but it cannot establish precisely that “these were the five provisions that were deleted.”

II. “Keep the law broad rather than overly detailed”: provisions deleted before review

On December 22, 2009, the draft revision was formally submitted for review at the 12th Session of the Standing Committee of the 11th National People’s Congress. The headline of media coverage directly stated the result: “Judicial intervention in villagers’ self-governance cannot be written into law for the time being.” The first draft “was prepared to make major changes to the existing law, with 48 articles and detailed provisions on some issues,” but “under the later approach of ‘keeping the law broad rather than overly detailed,’ much of the content was deleted.” A reporter who reviewed the final draft revision submitted, with six chapters and 39 articles, found that “provisions concerning litigation had once appeared in the draft,” but “found no similar provisions” in the text at that point.

The reason for the deletions was summarized at the time as “judicial intervention in villagers’ self-governance cannot be written into law for the time being.” The draft went through coordination among more than 30 departments between drafting and submission for review. The text that entered the review process contained no provision anywhere establishing a path to court for election disputes.

III. Calls during the 2010 review did not change the outcome

On June 23, 2010, during a group review of the draft revision at the 15th Session of the Standing Committee of the 11th National People’s Congress, committee member Ma Fuhai explicitly recommended “providing a judicial remedy and safeguard mechanism for villagers’ self-governance rights.” His reasoning was specific: acts that disrupt village committee elections through violence, threats, deception, bribery, or other means “cannot be fully resolved simply by having villagers report or make representations to higher authorities and have those authorities step in; this may even lead to repeated petitions by villagers.” He argued that if villagers believed county- or township-level administrative bodies had handled a matter unfairly or inadequately, villagers’ representatives or a certain number of villagers acting jointly should be able to sue in court.

The Organic Law of Villagers’ Committees, revised and passed in October 2010, did not adopt this recommendation. The final text’s provisions on remedies for voting rights remained within the self-governing body.

One detail in the distinction between the draft and the final law should be noted: the explanatory note to the December 2009 draft set the deadline for appealing an objection to the voter list at “within three days from the date the list was published”; at the third review in October 2010, the NPC Law Committee, adopting the opinions of Standing Committee members, recommended extending the appeal deadline to “within five days.” The final law adopted five days. This change addressed the convenience of filing an appeal, not whether the appeal process was fair; the villagers’ election committee itself remained the body that decided appeals.

IV. Three avenues to the courts, closed one by one

The provisions were not included in the law, with the result that all three paths that could have led to court were blocked in judicial practice.

First: the “voter-qualification case” procedure in civil litigation. The Civil Procedure Law does provide a special procedure for voter-qualification cases, but courts have ruled that it applies only to elections of deputies to people’s congresses at various levels, not to village committee elections. In 2008, when the Wuyi County Court in Zhejiang rejected lawsuits by two villagers stripped of their voter eligibility, it reasoned that the voter-qualification procedure under the Civil Procedure Law “applies to elections at all levels of the People’s Congress, not to elections of villagers’ committees,” and that the cases therefore did not fall within the category of voter-qualification cases accepted by courts. Courts in Tianjin and elsewhere later applied the same reasoning in similar cases, explicitly stating that “village election matters are not within the scope of the Election Law, and therefore are not voter-qualification cases.”

Second: administrative litigation. An official from the Ministry of Civil Affairs once acknowledged that, as a matter of legal principle, if a party believed county- or township-level administrative bodies had handled a matter unfairly, “there should be a judicial avenue for redress,” but “many courts decline to accept such cases on the grounds that the Administrative Litigation Law makes no provision for them.” A research report by the Ministry of Civil Affairs concluded that not only did the Organic Law of Villagers’ Committees lack provisions on legal liability to safeguard villagers’ self-governance rights, but “relevant laws, such as the Criminal Procedure Law and the Administrative Litigation Law, also do not provide a judicial remedy for villagers’ self-governance rights.” Since a village committee is a self-governing organization rather than an administrative organ, it is impossible to clear either of the two hurdles: defendant eligibility in administrative litigation and the scope of cases accepted.

Third: the crime of “disrupting elections” under the Criminal Law. The scope of this offense is strictly limited to “elections of deputies to people’s congresses at all levels and leading personnel of state organs.” The guiding opinions in the case database are clear: bribing voters in village committee elections “although it infringes on citizens’ democratic rights, does not endanger the national election system provided for in the Election Law and does not constitute the crime of disrupting elections.” Acts of disrupting village committee elections through violence likewise “do not constitute the crime of disrupting elections” because they fail to meet the offense’s constituent elements.

V. Why the remaining alternative channels are inadequate

The remedies left by law are these: if there is an objection to the voter list, file an appeal with the villagers’ election committee within five days, and the election committee must issue a decision within three days; report election violations to the township people’s congress and government, or to the county-level standing committee of the people’s congress and government.

The problem is that the party being appealed against is often the very body making the decision. The villagers’ election committee conducts the election and also decides disputes over the voter list. When the heart of the dispute is the election committee’s own conduct—such as stripping someone of voter eligibility or turning a blind eye to vote-buying—asking the election committee to decide an appeal against itself means impartiality is absent from the outset. The Ministry of Civil Affairs’ research report concluded that, among villagers’ self-governance rights, “apart from matters involving villagers’ property rights and personal rights, which can be remedied through judicial channels, the others have not yet been incorporated into judicial remedies”; many farmers “either swallow their anger or can only embark on a long road of petitioning.”

VI. What consequences followed from “protecting self-governance” as a rationale

One consideration repeatedly cited for not including judicial remedies in the legislative text was the protection of space for villagers’ self-governance, amid concerns that judicial intervention would erode self-governance. In form, this consideration is not without reason: disputes over village committee elections concern self-governing affairs, and it might seem that the judiciary should not intervene lightly from outside.

But in terms of objective consequences, this arrangement produced a clear backlash: self-governance was exempted from external oversight in the name of “self-governance,” while disputes within the self-governing body were precisely those most in need of an external authority to decide them. When the election committee both conducts elections and decides election disputes, the internal correction mechanism of self-governance loses the most basic impartiality. An official from the Ministry of Civil Affairs summarized the problem this way: “Vote-buying, the difficulty of removal, the lack of mechanisms to correct election violations, and the absence of effective legal means to resolve problems in villagers’ self-governance have affected the authority of the law and constrained the further development of villagers’ self-governance.”

It should be noted that the existing materials establish that the provisions were deleted and that judicial avenues are inapplicable in practice; the materials themselves are insufficient to assert a causal claim that the sole or primary motive for the deletion was “excluding the judiciary in the name of self-governance.” More precisely, whatever the specific considerations during drafting and review, the objective result of the institutional design is that, when voting rights are violated, there is no neutral, external adjudicator to turn to.

Timeline

2008: Media report that the draft revision contained “mainly five” provisions concerning judicial safeguards, allowing villagers to sue in court over election violations and election disputes.

December 2009: The draft revision is submitted to the Standing Committee of the National People’s Congress for review, with six chapters and 39 articles; litigation provisions are no longer in the text. Media headline: “Judicial intervention in villagers’ self-governance cannot be written into law for the time being.”

June 2010: Committee member Ma Fuhai recommends during a group review that judicial remedies be provided for villagers’ self-governance rights, arguing that villagers should be able to jointly sue in court.

October 2010: The revision is passed without adopting the recommendation for judicial remedies; the appeal deadline is changed from “three days” in the draft to “five days.”

From 2008 to the present: In judicial practice, the three avenues—the voter-qualification procedure in civil litigation, administrative litigation, and the crime of disrupting elections—are all closed on the grounds that they “do not apply to village committee elections.”

In one sentence: A proposal for “five” judicial safeguard provisions appeared during drafting but did not enter the text formally submitted for review under the approach of “keeping the law broad rather than overly detailed”; afterward, the three avenues of civil litigation, administrative litigation, and criminal law were closed one by one on the grounds that they “do not apply to village committee elections”; the remaining appeal channel often has the same entity as both adjudicator and party being appealed against. The absence of judicial remedies for village committee election rights is an objective institutional fact: the legislative text ultimately chose not to establish an avenue for external judicial review, leaving voters to bear the cost when their voting rights are violated and they cannot find a neutral adjudicator.

Yao Lifa (former member of the Qianjiang Municipal People’s Congress, elected after receiving votes in the “write-in candidate” column on the ballot. Contact: mobile phone and WeChat 13339728964)