The detention of journalist Chen Yongzhou, his employer New Express’s front page editorial pleading that he be set free, and Chen’s subsequent televised confession to accepting bribes and writing false articles against Changsha’s Zoomlion, all the while in Changsha police custody, is, even for China, unusual.  But the question is – was it all legal?

Last week, China Law & Policy examined whether Changsha police followed proper procedures in detaining Chen, especially since they went to Guangzhou to find him.  Today, we look to the underlying charges – mainly the claim that Chen defamed Zoomlion and thus is subject to arrest.  Is defamation a crime?

Watch What You Say…..Criminal Defamation is Legal in China

Like it or not, China’s criminal law covers defamation.  Article 246 makes it criminal to “publicly humiliate another person or invent stories to defame,” providing a potential prison term of not more than three years.  But as Mei Ning Yan stated in Criminal Defamation in the New Media Environment – the Case of the People’s Republic of China, Article 246 covers defamations of actual persons, not corporations.

That is why immediately following Chen’s apprehension, state-run news outlets like Xinhua stated that Changsha police had detained Chen on suspicion of “damaging business reputation,” a defamation-like charge found in Article 221 of the Criminal Law which subjects the defendant to up to two years in prison.

According to Chinese news reports, on September 9, 2013, after over a year of alleged defamatory articles published by New Express, representatives of Zoomlion complained to the Changsha police about the articles.  The Changsha police investigated the charges and on October 18, 2013, went to Guangzhou to apprehend Chen (see Stealing Suspects to understand the law surrounding cross-province detention).  On October 30, 2013, Chen was formally arrested on charges of damaging Zoomlion’s reputation.  The allegations and the charges are all legal under Chinese law

People in Glass Houses…..the U.S.’ Use of Criminal Defamation

While many Americans are surprised to learn that defamation can carry prison time in China, China is not alone in criminalizing defamation.  As of 2006, seventeen states in the U.S. still maintain active criminal defamation or criminal libel statutes.  While in most states the charge is a mere misdemeanor, one state – Massachusetts – provides for a prison sentence of up to one year.  In 1966, in Ashton v. Kentucky, the United States Supreme Court examined Kentucky’s criminal defamation statute and although held it unconstitutional, it was only on the grounds that the use of “disturbing  the peace” to define the crime was too vague to pass muster.   The crime itself was not a problem; just the way it was defined, or more aptly not defined.  The seventeen states that retain a criminal defamation or libel statute have much more clearly defined laws that could potentially pass the Ashton test.

Since the 1966 Ashton case, criminal defamation has rarely been prosecuted.  But more recently, there has been a bit of a revival in the United States, at least in examining these statutes intellectually in light of the internet age.  Criminal libel and defamation statutes are seen as a possible to deterrent what has become a more common problem in the United States: cyberbullying.  In “Kiddie Crime: The Utility of Criminal Law in Controlling Cyberbullying,” Megan Rehberg and Susan W. Brenner note the recent rise in the call to use current criminal law, including criminal defamation statues, to criminalize cyberbullying.

While Legal, the Use of Criminal Defamation is an Odd Choice in this Case

Criminal defamation is a rarely used tool in the United States because individuals and corporations have an alternate option: civil defamation claims.  Bringing the case civilly entitles the victim to compensation.  For most, especially for businesses, monetary compensation is a lot more rewarding than having the perpetrator sit in a jail cell.

Although an October 29, 2013 op-ed by Ku Ma in the English-language version of  the China Daily asserted that there is no ability to bring a civil defamation claim, that is just not true (and might explain why that op-ed has been pulled from the China Daily website although still available here).  Since the 1987 adoption of the General Principles of the Civil Law (“General Principles”), where reputation has been harmed, civil defamation claims are permissible under Article 120 for both citizens and “legal persons” (businesses).

Under the General Principles, the victim can sue the perpetrator for the following remedies: (1) to stop the defamation; (2) to restore his reputation; (3) for an apology; and (4) for compensation, both economic and emotional.  These remedies are not available under the Chinese criminal law.

And the victim can bring the civil defamation claim in his home jurisdiction.  According to the Supreme People’s Court’s  1998 Interpretation of the General Principles, the “consequences of the crime” in defamation cases can be the plaintiff’s hometown.  So for a company like Zoomlion – where the provincial government as its controlling shareholder and it is an important economic force in Changsha – bringing a civil defamation charge in Changsha would likely have a close to 100% success rate.  According to a 2006 study by Prof. Benjamin Liebman examining defamation cases in China, cases brought in the plaintiff’s home jurisdiction have an 82% success rate.  That rate increases to 88% where the plaintiff is also a Party-State actor.

So if you are Zoomlion, why bring the criminal action?  Why not go for the civil claims and at least get paid?  Prison time for Chen doesn’t necessarily make you whole.  And Zoomlion gets the apology either way.

Only Zoomlion knows why it choose to go the criminal route and not the civil one.  But in trying to find some rational reason, one can’t help but wonder that maybe Zoomlion wanted to avoid a civil trial.  A confession from Chen, held incommunicado in Changsha, would mean that a court would only have a short criminal trial with little testing of the evidence (in China, “plea bargaining” doesn’t avoid a criminal trial, it just shortens it.  See here for a detailed explanation).   With Chen’s confession, Zoomlion would not have to worry about “truth” as a defense to defamation.

But with a civil defamation trial, New Express would likely play an active role and even though Zoomlion would likely win, New Express might want to bring them down with them, exposing even more evidence of Zoomlion’s corruption.

Another alternative theory is that the Party-State wants to send a signal to an increasingly aggressive media:  the government is still in charge; that under China’s new president, Xi Jinping, the commercial media will be reigned-in.  The years 2008 to 2012 witnessed the central government’s clamp down on a once increasingly vibrant public interest lawyer bar.  While still active, that bar is under constant assault.  Does 2013 begin the start of a similar and severe clamp down on the commercial media?

But these theories are speculation.  Perhaps Chen is guilty of accepting bribes from Zoomlion’s competitor and wrote false articles.  The only one thing we know for sure is that Chen’s televised confession and his “trial by television” (as Peter Ford has coined the term) does a disservice to a rule of law.  Instead, like the Gu Kailai trial and subsequent Bo Xilai one, the Chinese government has merely continued to demonstrate that for legal cases that would test the system and challenge vested powers, its merely sham justice.  Who the Chinese government thinks it is fooling is unclear.

Last month’s drama surrounding the detention of journalist Chen Yongzhou’s (pronounced Chen Young-joe) by Changsha police, and his employer’s  front page plea for Chen to be freed (“Please Release Him“), sent shock waves through the China-watching world.  Was a local, albeit scrappy newspaper really taking on another city’s public security forces?  Was it really publicly shaming them and essentially implying that the Changsha police were on the take?

But for many Americans watching these events unfold, the most puzzling aspects of the situation was not so much the David-and-Goliath narrative of the New Express newspaper confronting the Changsha public security bureau.  Rather, most Americans were probably confused about two things:  (1) police in one province can just go to another province and willy-nilly take someone away? and (2) defamation is a crime in China?  This post will focus on the former.

Cross-Border Journalism Leads to Cross-Border Detention in China?

Chen and his colleagues at New Express are part of a new breed of journalist in China – muckrackers looking to hold powerful interests responsible and seeking to expose the truth that is often kept hidden by the government.  For the past 18 months, Chen’s focus had been on Zoomlion,  a construction equipment maker located in Changsha, Hunan province.  Zoomlion is no ordinary construction equipment company; it is the country’s second largest construction company and in a country where construction is non-stop, that means wealth and power has accrued to the company.

Although Chen and New Express are located in Guangzhou – a city over 400 miles from Changsha and located in an entirely different province –

it is not peculiar that it chose to write and publish articles about Zoomlion.  In China, where the local governments and local businesses are often in a symbiotic relationship and where the local Party is the law, it is commonplace that the local newspaper does not write about the corruption in its midst.  Instead, it is an outsider newspaper – one as far away as Guangzhou – that will pick up the story.

Chen’s articles on Zoomlion fit this pattern.  According to Bloomberg, Zoomlion’s controlling shareholders are Hunan State-Owned Assets (holding 19.97% of all A shares traded on the Shenzen exchange) and the Hunan government (owner of 16.2% of all outstanding shares of the company).

By May 2013, Chen was writing hard-hitting articles uncovering facts about the company that suggested it falsified its sales figures and was committing fraud on the market; a serious allegation for a company that trades on both the Shenzhen and Hong Kong exchanges.  After his May 27, 2013 article, Zoomlion’s shares took a 5.4% hit on the Hong Kong stock market.  While it denied Chen’s allegations, Zoomlion could not have been happy.  But what is a Changsha company to do when the reporter and his newspaper are located in Guangzhou?

As far as the world knew, Zoomlion did nothing.  But then on October 23, 2013, New Express  stunned the world with its front page editorial acknowledging that the Changsha police had come to Guangzhou, detained Chen, and brought him back to Changsha where he remained in detention.  The allegations: that Chen’s articles were false and defamed Zoomlion.

But do the police in one city have the power to swoop into a city in a different province and take away a suspect back to their home city?  To Americans, this seems illegal.  In the United States, because each state is sovereign within its territory, New York City police cannot just go to Boston and arrest the suspect they think did the crime.  Rather, the New York City police must go through the legal proceeding of extradition:  the New York City police must present the indictment to the Governor of Massachusetts who then has little choice but to consent to the arrest and orders Massachusetts or Boston police to arrest the suspect and eventually hand him over to New York City police to bring back to New York City.

In China, things are not that different.  Like in the U.S., there is a recognition that at times, a criminal suspect might be living outside the confines of a local police bureau.  The new Criminal Procedure Law (“CPL”)and its interpreting  and implementing regulations – in particular the Ministry of Public Security’s “Procedural Regulations on the Handling of Criminal Cases by Public Security Organs (revised 2012)” (“MPS Regulations” or “Regulations”) – do contemplates this fact.  Article 24 of the CPL makes it clear that by default jurisdiction of a criminal case is based on where the crime was committed.  The MPS Regulations re-affirms this.  Article 15 of the MPS regulations gives jurisdiction of a case to the public security bureau at the “site of the crime”, a term it defines as including  not just the site of the actual criminal acts, but also any location where the consequences of the crime occurred. For a newspaper or online article, the consequences of the crime might be felt in a great number of locations, and the first public security bureau to file the case will exercise jurisdiction.  The public security bureau at the place of the suspect’s residence can have jurisdiction when more appropriate, even if it isn’t a site of the crime.

As Jeremy Daum, research fellow at the Yale Law School’s China Law Center and founder of China Law Translate, pointed out recently, the Criminal Procedure Law and MPS Regulations clearly address activities by police  outside of their geographic area – what Americans would likely compare to extradition.

An entire Chapter of the Regulations – entitled Cooperation in Case-Handling (Chapter 11, encompassing Articles 335-344) – specifically deals with these situations.  As Daum noted, in terms of detaining a suspect, “Articles 339 and 340 [of the MPS Regulations] describe situations where police either take custody of someone in another jurisdiction or request that local police act on their behalf. Generally, the outside force has an obligation to contact the locals and to have the necessary authorizing paper work with them, and the locals have an obligation to facilitate.”

At this point, this pattern is not that different from what occurs in the United States when one state seeks to extradite a criminal suspect.

Although there a few, technical grounds upon which a U.S. governor of one state can deny another state’s extradition request, in general, extradition is mandated by the  U.S. Constitution if the other state presents the indictment.  The requesting state can go to federal court and compel the governor to extradite the suspect if she refuses on illegitimate grounds.

But where China differs from the U.S. in its proceedings is that the requesting police physically go to the local police’s territory to take the suspect back to their city.  In accordance with Article 340, after the local police apprehend the suspect, the outside police must immediately pick up the suspect and bring him back to its territory.  In fact, Article 122 requires that the outside police do so within 24 hours.

Was Chen Yongzhou Properly Detained?

It does appear that Chen was in fact properly detained in accordance with the MPS Regulations.  Whether the Changsha public security bureau’s underlying claims against Chen are just is less apparent, but in terms of the procedure for cross-provincial transfers of a suspect, the Changsha public security officials likely complied with the Regulations.

Here, the Changsha police likely have a valid argument that the crime occurred in its jurisdiction or its consequences were the most strongly felt in its jurisdiction, giving it the right to assert its jurisdiction.  Zoomlion, the entity that was allegedly injured by Chen’s articles, is located in Changsha.

According to a Freedom House bulletin, on October 18, 2013, after being summoned, Chen went to the Guangzhou police station.  Once there, according to an article from the China Times News Group, Changsha police confronted Chen with a document listing his crimes and then placed him into its custody for transfer to Changsha.

It appears that the Changsha police complied with the MPS regulations concerning “Cooperation in Case Handling:” (1) Chen was summoned to the local police station by the Guangzhou police, (2) while in the Guaungzhou police station, the Changsha police presented him with a document listing his crime (perhaps the required authorizing paperwork), and (3) Chen was immediately transferred to the Changsha police and brought to a Changsha detention center within 24 hours.

Although the underlying criminal charges reek of corruption and a Changsha police department possibly at the beck and call of Zoomlion, it is still important to recognize that the Changsha police likely followed the law in obtaining custody of Chen.  To ignore this fact does a disservice in criticizing other aspects of this bizarre case.

One such bizarre aspect is Zoomlion turning to the criminal law for a charge of defamation.  Is this legal?  Find out in part 2 of this article posted here.

You can’t really be a dissident in an authoritarian regime without being a difficult character. These are individuals who for some reason – call it bravery, call it madness, call it no other choice – feel the need to speak out knowing, either consciously or not, that their cause is likely futile and the full force of the authoritarian regime will come down on them like a ton of bricks.  As a result, their life often becomes their cause.  What happens to these characters when things get so bad that they are forced to flee their country?  What happens to their causes?

These questions rose again this past June when Chen Guangcheng, the blind dissident who escaped his illegal house detention in 2012 and made it to the U.S., caused a stir in the media about his departure from NYU.   But answering these questions – or at least attempting to – isn’t untraveled ground as one China scholar pointed out in the wake of Chen’s NYU exodus.  Back in 2001, Ian Buruma, a Dutch China-hand and journalist, published Bad Elements: Chinese Rebels from Los Angeles to Beijing and this past summer seemed an appropriate time to pick up the book and read it.

Buruma’s Bad Elements begins by looking at the Chinese dissidents – starting with China’s 1978 Democracy Wall Movement through the 1989

Tiananmen student activists – living a new life in the United States.  His survey from Wei Jingsheng to Wang Dan and Chai Ling shows a group of people out of sorts in their adopted land.  Without access to China, most have given up their cause.  Chai Ling, the famous female student leader of the Tiananmen protests is now a successful businesswoman with a Harvard Business School MBA.  Same is true of her former Tiananmen colleague Li Lu.  He now runs an investment company in New York.  Many of the other student leaders just seem lost and lonely.

The pre-Tiananmen/post-Cultural Revolution Chinese exiled in America do not fare any better.  Separated from their cause, most have failed to figure out how to remain relevant to the mission back home.  Fang Lizhi‘s wife, Li Shuxian, probably expressed the exiled dissident’s predicament best when she told Buruma “[n]ow I am finally free to talk, but there is no one for me to talk to.”  Even amongst the exiled dissident community itself, there is little conversation for as Buruma recounts, the splits within the community are cavernous with some dissidents refusing to be in the same room as others.  One would think the bonds within the community would be stronger, but as Buruma insightfully details, the personality traits that allows one to become a dissident are not those that allow them to create strong bonds with others.  But even in honestly observing the exiled dissidents, Buruma never loses respect for them, reminding the reader that these people had the courage to speak up and that their suffering is likely incomprehensible to anyone else.  These individuals carry the battle scars of seeking democracy in a dictatorship and Buruma is always cognizant of this fact.

But Bad Elements‘ most fascinating aspect is Buruma’s attempt to breakdown “the Chinese Myth,” a key tenant of which is that the Chinese are just not made for or currently prepared for democracy; some form of an authoritarian rule is necessary.

Buruma begins this journey to deconstruct this myth in Singapore, a Chinese-based society where the post-colonial government took and maintained power in the most vicious of ways.  For those who have never been to Singapore or know little of the details of its history, this chapter is a must read.  Singapore is a scary society that holds tight to the belief that this type of rule is necessary in a “Confucian” and “Asian-valued” society.  But even with such pressure to conform and unfathomable methods of torture, there are still those in Singapore who choose to dissent.  Their very existence in Singapore demonstrates that the idea that democracy is too alien a notion for the Chinese is nonsense.

The experiences of Taiwan and Hong Kong further demonstrates that the Chinese can have democracy, with Taiwan offering the best hope that democracy can succeed in a Chinese society.  While Taiwanese democracy is often punctuated with physical assaults within parliament, as Buruma shows, after a period of abusive rule, it has become a rather thriving and real democracy.  Hong Kong is similar except that its reversion back to the Mainland and the change in leadership to more Mainland, business-focused executives threatens that democracy.  In fact, in Hong Kong, the Chinese myth is beginning to reassert itself, with some prominent leaders stating that perhaps the Chinese people cannot handle full democracy.

Buruma ends his journey of destroying the Chinese myth by visiting the Mainland where shockingly, the belief in the need for a strong

government is not just prevalent amongst China’s intellectuals (who usually are the dissidents), but is a strongly held.  It is Buruma’s cab driver who most cogently expresses the desire for democracy, demonstrating that while the intellectual class believes China’s masses are not ready for democracy, those masses sure think they are.

Although Bad Elements is 12 years old, it is certainly not dated and raises issues that are still pertinent.  Twelve years later, the Chinese Myth is still very much alive and not just among the Chinese; at times Western businesses prefer to turn a blind eye to the Chinese government’s choice of leadership and instead are easily lulled by the belief of the Chinese Myth.

Buruma believes that democracy is inevitable in China and that it must be brought more quickly than the current (as of 2001) intellectuals appear to want.  Even as early as 2001, the Mainland intellectuals, perhaps reminded of what happened in Tiananmen Square, sought to more gradually change China.

But one wonders, who is Buruma – or any non-Chinese – to say that this approach is wrong?  Only the Chinese themselves can find their path.

This theory of gradual reform within the system has only gotten stronger in the past twelve years, with current activists like Xu Zhiyong seeking to work within the system.

Unfortunately, the past four years have shown that perhaps Buruma was right to feel frustrated – the Chinese government has also crackdown

harshly on this set of reform-minded activists.  Buruma’s suggestion twelve years ago – that the “social stability” which the Chinese government and the intellectuals desire – can never be achieved where a people is ruled by an authoritarian regime – rings more true today than ever before.

Another prescient aspect of Bad Elements is Buruma’s observation that many of the dissidents, those in the US, Singapore, Tawain, Hong Kong and even China, are Christians.  This is an occurrence that has only increased over time.  Most of today’s Mainland activist profess the Christian faith.  Buruma speculates that Christianity is prevalent among Chinese dissidents as it replaces one religion – Maoism and the Party – with another.  It’s unclear if that is the reason or if the reason is more because many of the dissidents see Christian values (at least the ones that make it to China) are akin to the rights and democracy which they seek.

But there are aspects of Bad Elements that do show their age, mostly about the exile community.  Although slightly dismissive of Chai Ling in Bad Elements, she has re-engaged with China.  In 2010, Chai founded “All Girls Allowed,” a Christian-influenced non-profit that seeks to eliminate the injustices associated with the one-child policy in China.  Similarly, Xiao Qiang who is give short shrift in the book, has become an important force in communicating the stories of dissent from the Mainland through his website China Digital Times.  Xiao remains extremely relevant to China’s reform movement.  And that’s the aspect of the book that Buruma could not have fathomed at the time – the rise of the internet.  The internet certainly shapes the role of today’s exile differently than those of years past and perhaps allows the dissident community to continue their connections with activists on the Mainland.

Rating: — as a result of certain aspects of the book being outdated (which is too be expected from a 12 year old book about contemporary China)

Bad Elements: Chinese Rebels from Los Angeles to Beijing, by Ian Buruma (Vintage Books 2001), 341 pages.

A Touch of Sin  (天注定), mainland director Jia Zhangke’s new movie, is certainly not a tourist flick.  While Jia’s cinematography in the movie lends itself to beautiful sweeping vistas of various parts of China, including the gorgeous Three Gorges area, the focus of the film is on the underbelly of China.  An underbelly that is increasingly prevalent across the country and as Jia vividly, artistically and intensely demonstrates, increasingly violent.  To understand present-day China and the pressures, challenges and threats it faces, that underbelly must be seen.

The four narratives that tell the story of A Touch of Sin are not mere embodiments of Jia’s mind. Rather they are ripped from the headlines or more aptly, from weibo, the Twitter-like microblog where news events are often first reported by average citizens, quickly spread throughout the country, and then suppressed by the central government.  Two of the narratives – the murder of an attempted rapist by his sauna worker victim and the suicide of a young factory worker in Dongguan – will be well known to many China watchers as the Deng Yujiao Incident from 2009 and the 2010 Li Hai suicide at Apple’s Foxconn factory in respectively.

The other two stories – that of Dahai (played by the teddy bear-looking Jiang Wu), a villager in a Shanxi coal mining town angry at the corruption that has allowed the selling of the state-owned mine to benefit a select few, and the story of Zhou San (well played by Wang Banqiang), a hitman returning to his less than grateful family in Chongqing for Chinese New Year – are perhaps less well known outside of China.  But, in the case of Dahai, the comparison between the shockingly savage beating which he experiences and that of real-life Chinese artist and dissident Ai Weiwei’s assault can’t help but be made: both receive a beating by officials (or quasi-officials) in response to their attempts to seek transparency and accountability of “the people’s government” and both have eerily similar head wounds.

In an interview at Asia Society (a must watch before seeing this movie), Jia described his movie and the characters in it as on a quest for dignity –

dignity in a society that is increasingly unequal, dignity in a place that appears to have left so many behind, and dignity in a country where without the rule of law to objectively handle society’s strains, violence is the only answer.

But while Jia’s story certainly focuses on reclaiming that dignity, it is unclear if that is what motivates the individual characters.  For Dahai, does his murderous rage come from a true feeling of societal injustice or from a lack of opportunity to share in the wealth?  It is unclear that if Dahai was put in the same position as the corrupt local officials or his schoolmate, that he wouldn’t have jumped at the opportunity.  Is Dahai a “hero” because he had nothing left to be?

The same questions emerge with Zhou San, the hitman.  Does he really choose this lifestyle because it is the only path he can take?  Or is he a lonely, degenerate unable to maintain healthy relationships even with his own son?  The innocently young Foxconn worker (played by Luo Lanshan) leaves you wondering what motivates his suicide – is it the pressures of the factory life or unrealistic expectations about what life is and what to expect?  Only the sauna worker, Xiao Yu (aptly played by Jia’s beautiful wife Zhao Tao), seems to regain her dignity in the traditional sense.  After receiving a beating from her boyfriend’s wife and her henchmen, Xiao Yu doesn’t take a second beating sitting down.  Instead, she kills the man trying to rape her with a fruit knife.  The movie closes with a return to Xiao Yu’s story, where she has had to flee her village and find a new life.  But even with her apparent restoration of dignity, her life still seems like a hopeless, lonely mess.

This lack of clarity concerning motivation is what makes A Touch of Sin a fascinating movie and ultimately leads the viewer to realize that the individual stories are less important for Jia than the overarching story of that harsh reality known as present-day China.

That is perhaps what will leave the Western viewer perplexed the most – is this really today’s China?  My movie companion and China-hand (who likes to refer to herself as “your good friend Cynthia Nixon”) questioned if Jia’s movie is in fact present day China and if A Touch of Sin is an accurate portrayal.  Definitely there is a lot of violence in contemporary China; but there always was.  It’s not like 1949 to 1976 was some walk in the park: first the killing of landlords, then the Great Leap Forward, then the Anti Rightist Campaign, and the finally the Cultural Revolution.

But Jia is not attempting to give us a complete perspective of modern day China; nor should he or his art be burdened to do so.  Instead, Jia is attempting to show us the future – that if the Chinese government doesn’t curb the rampant corruption that has corroded China, if it doesn’t deal with huge inequities in both wealth and power, if it doesn’t find a legitimate outlet for society’s inevitable anger (like an independent and functioning legal system), then the violence that permeates his movie will soon be more than just a story from weibo.  It will be destined to be a commonplace occurrence.

This premise might be the reason why Jia’s A Touch of Sin might not make it past the Chinese government censors.  According to Jia, the censors have okay’ed his film and rumor has it that it will begin to be shown in China in November.  There are reasons why the censors might be okay with A Touch of Sin.  Philana Woo over at Jing Daily does a great job of explaining why the film “bows” to censorship, namely by avoiding the obvious – an outright attack of the central government.  Dahai’s issues are local, the central government is never implicated in the decision to sell the mine to an insider who retained all the profits.   Even the story of Xiao Yu was toned down.  Deng Yujiao, the real-life sauna worker Xiao Yu’s character is based on, was attacked not by local businessmen (as Xiao Yu was in the movie), but rather by government officials.

But with its emphasis on China’s increasing violence, A Touch of Sin questions one of the central tenants of the Chinese Communist Party’s

(CCP) rule: that the Party’s specific type of leadership is necessary to promote “social stability.”  But with the Party’s inability to deal with the rampant corruption and the increasing inequities in Chinese societies that leave individuals with no other choice but to resort to violence, the myth that is the Party’s promise of social stability becomes apparent.  Jia is looking for an alternative.  Religion, including Catholicism and Buddhism, deftly punctuates key scenes.  Traditional Chinese culture including opera plays and old novels keep returning in each scene.  And Jia has repeatedly mentioned that without a fair legal system, people are left with vigilante justice.

It is this conclusion – that the Party’s version of social stability is a mirage and that there needs to be an alternative be it religious, cultural or legal – that ultimately makes A Touch of Sin subversive and could railroad its showing in China.  For our readers outside of China, make sure you see this one as it is a thought provoking, beautifully shot film.  For our readers in China, get the bootleg copy from your local VCD store.

Rating:

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A Touch of Sin is currently showing in New York City through October 17 at IFC and Lincoln Plaza Cinemas.  It will then travel throughout the United States.  For schedule, click here.  A Touch of Sin will allegedly open in China in November.  For readers in China, we look forward to your feedback when (or if) this movie opens there. 

 

Chinasmack recently translated a fascinating article regarding the introduction of reverse mortgages to the senior citizen population in China.  For those familiar with the foreclosure crisis in the United States, reverse mortgages have a bad reputation.  But even though issued as a predatory product in the mid-2000s (as most mortgages were back then), reverse mortgages, when issued responsibly, do have their place.

Basically, a reverse mortgage is the stripping of equity from your home and usually reserved only for the elderly.  Ideally most seniors own their homes outright.  In the United States, they have paid off the mortgage they took out to purchase their homes 30 years ago and own a piece of property worth, in a place like New York City, over $300,000.  Now in their twilight years, and with an underfunded retirement savings plan, these seniors want to access that equity while remaining in the house.  Refinancing into a regular mortgage likely would not be available to most seniors who are often on a lower fixed income like social security and/or pension and wouldn’t be able to support a monthly mortgage payment.

Enter the reverse mortgage.  A reverse mortgage only looks at your age and the equity remaining in your house and allows you to take that equity out either in a lump sum or in monthly increments.  Instead of making mortgage payments every month, with a reverse mortgage, the bank pays you every month (or as a lump sum when you close on the reverse mortgages – this is usually left at the discretion of the homeowner).

Where’s the catch?  Even though you are stripping the equity out of your house, the bank that has given you the reverse mortgage charges you interest on the money it gives you.  The collateral is your house – when you die, the full amount owed comes due.  If your heirs want to keep the house, they must pay off what is owed or if they can’t, the bank will foreclose.  But you are guaranteed your house until you die, sell it or move out (like to a nursing home) even if housing prices fall.

For some seniors, the extra monthly cash is essential to survive their later years.  As the Chinese government has recognized, this is especially true in China where – even with reforms to health insurance – out of pocket medical expenses are astronomical.  For seniors, those expenses are even more exorbitant.

Recognizing that by 2025, China’s senior population (defined as 60-plus) will be over 300 million (today the government estimates a senior population of 194 million – see Chinese State Council announcement here), on September 6, 2013, China’s State Council issued its Opinion Concerning the Accelerated Development of the Elder Care Industry.  While the document is more general in stating the problem, the government is rather frank in realizing that elder care and the inability of the government to fund it in addition to pension funds, will become an increasing problem.  Muddle in the middle of the 5 page Opinion is the one sentence announcement that localities should look to experiment with reverse mortgages (“住房反向抵押养老保险”, aka “以房养老”) as a way to fund elder care.

As the Southern Weekend reported, since as early as 2003, various cities in China – including Shanghai, Nanjing and Beijing – have encouraged

the use of reverse mortgages but with little success.  One major hurdle to the success of the reverse mortgage is the fact that people in China do not own their land – they only have a 70 year land-use right to the piece.  What happens when that land-use right expires in 70 years is unclear, giving the banks or insurance companies major pause in issuing reverse mortgages, especially for land-use rights that are approaching the 70 year mark.

So what is the Chinese government to do?  It realizes that it has a ballooning senior population and insufficient funds to support it.  A reverse mortgage – especially with China’s increasing housing bubbles – can be an important private financing tool of one’s later life.  But banks and mortgage companies don’t want to lend in an environment with such uncertainty.  Does the State Council’s Opinion signal a possible change to the current land-use rights system?  Clearly it must recognize its dilemmas as all the domestic media outlets have been openly commenting on the 70 year problem as a major roadblock.

According to the Southern Weekend, the Chinese government is to issue more specific parameters of reverse mortgage lending in the first quarter of 2014.  While it is doubtful that those parameters will deal particularly with the 70 year land use limits, hopefully the regulations will guard against other risks inherent in dealing with a senior population.  The Southern Weekend pointed out a 2011 case in Shanghai where the court rescinded a reverse mortgage contract between a 90 year old woman and the nursing home, where her 550,000 RMB-valued property rights served as her monthly maintenance fee and her funeral expenses.  It was the son who brought the case in his mother’s name.

In the United States, to deal with the vulnerability of senior citizens, all seniors must receive independent credit counseling regarding the reverse mortgage prior to obtaining it.  Such education is important for two reasons: (1) seniors develop a basic understanding of the product and what it means and (2) proper counseling should prevent seniors from taking out a reverse mortgage too early.  Ideally, the longer you can wait to take out a reverse mortgage, the greater your monthly payment will be.  For seniors this is an important factor to consider because as they age, care becomes increasingly more expensive.

Further, the Chinese government should look to protect the spouse of land-use title holder.  In the United States, federal law prevents reverse mortgage holders from foreclosing on a property when there is still a spouse – even if she is not on the title – living in the property after the mortgage holder dies.  This protection is even more imperative in China where only 30% of married women add their names to the title.

Additionally, the Chinese government should regulate who can give reverse mortgages.  As the case from Shanghai demonstrated, having the nursing home able to enter into a reverse mortgage with one of its residents is likely not best practices.

Finally, the reverse mortgage likely will not be a useful tool in the rural areas.  Reverse mortgages contemplate high property/land use values and an increasing property market.  For seniors in the countryside, the reverse mortgage is likely not an option and to the extent it is, there is likely not enough equity to pay for the care they will need.  The Chinese government will still need to find a way to deal with the health care crisis in the rural areas.

Many will likely compare Wong Karwai’s new kung fu masterpiece – The Grandmaster  – to Crouching Tiger, Hidden Dragon, but to do so does a disservice to the artistry, intensity and beauty that is The Grandmaster.  Wong Karwai out did himself on this one and if this movie is still playing at a theater near you, it is a must see on the big screen.

The Grandmaster opens with a dark, fierce, rain-soaked fight scene and center to it all is the white fedora of Ip Man (Tony Leung), perhaps the most famous master of the Wing Chun school of kung fu.  It is 1936 China, the Japanese are on the verge of invading most of China, and the various kung fu schools are seeking to unite.  Northern China’s great Grandmaster visits Foshan in southern China and calls upon the southern schools to present their best pupil to become the nation’s Grandmaster.  Although younger than most, the southern schools choose Ip Man and his Wing Chin technique.  The decision is interspersed with different kung fu school disciples demonstrating and explaining their own style, providing for a deeper understanding of the history of kung fu and seeing some of the moves that Ip Man will eventually adopt.

Ip Man, who was a  real kung fu master and lived in China and Hong Kong between 1893 and 1972, meets his match in the northern Grandmaster’s daughter, Gong Er (Zhang Ziyi) and her “eight fists” school of kung fu.  The fight ends up being a draw but the chemistry between the two is obvious as they each go back to their respective homes, planning a future meeting.

That meeting never happens as history gets in the way, first with the Japanese invasion and eventually with the Communist takeover.  Leaving even his family behind, Ip Man escapes to Hong Kong where he sets up a school.  In the 1960s, Ip Man’s most famous student – Bruce Lee – will join his gym.

As with most Wong Karwai movies, each scene is a painting, with its vivid colors and slow camera shots.  Wong’s tortured stories of longing –

longing for the woman you love, longing for the life you once led, longing  for vindication – are told with even greater effect and emotion than his prior works.  Wong is surely at the pinnacle of his game.  But what makes The Grandmaster truly a tour de force is the combination of Wong’s style, respect for beauty and downright genius mixed into all the kung fu fight scenes.  The train station fight scene where Gong Er takes on her nemesis is perhaps the most intense five minutes of film making ever made.  And also one of the most beautiful.  Being on the edge of your seat the entire time, you want the scene to end.  But then you don’t because the beauty and gracefulness of Wong Karwai will end with it.

But The Grandmaster is more than just a series of beautifully shot scenes and exciting kung fu fighting.  Rather there is a story there – quite a number of stories – that Wong is trying to tell.  You can’t help wondering when watching the movie if Wong is really currently critiquing modern Chinese culture (or just all modern culture really).  With the modern day’s insistence on the material goods and the changeability of truth, The Grandmaster holds up a mirror to that society and shows the profoundness and spirituality that is kung fu.  That there are things bigger than ourselves in this world.  That with dedication to an art, one can transcend.  Wong Karwai has certainly done that with filmmaking and now he is showing how Ip Man did that with kung fu.

The version of The Grandmaster shown in the United States is shorter than the one shown in Asia, leaving out perhaps some character development of the more one-dimensional characters.  Also, some of the historical aspects are not mentioned in the US version – it isn’t very clear that Ip Man, as a master of kung fu, wealthy citizen, and Guomindang  (Nationalist) soldier, had to leave China once the Communists took over and thankfully for Hong Kong, his Wing Chun school could live on.

But these are minor critiques in an otherwise incredible piece of cinematography, storytelling, and kung fu genre.  It is a film that must not be missed.

 Rating:

In our final segment with Prof. Rachel Stern, author of Environmental Litigation in China: A Study in Political Ambivalence , China Law & Policy discussed the role that the international NGO has played in China’s environmental law movement, especially given the fact that many foreign governments have cut back or completely eliminated their funding for “rule of law” projects in China.

Finally, Prof. Stern concludes the interview with her assessment of the future of environmental litigation in China.

Listen to Part 3 of the interview with Prof. Stern:

Length: 7:09 minutes
A transcript of Part 3 of the interview is below.

To listen to or read Part 1 of this interview, click here.

To listen to or read Part 2 of this interview, click here.

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EL: Just to switch gears a bit, I do want to focus on one of your last chapters in the book which talks a lot about the foreign rule of law

projects and environmental aid projects that have been happening in China for the past decade.  Now as part of your research, you were able to attend some of these foreign sponsored conferences and see some the effects of this foreign aid.  Can you give us a little bit of background on this and what the landscape looks like for foreign aid projects in the environmental sphere?

RS:  Sure.  I did most of the research for this book between the end of 2006 and the beginning of 2008.  I wasn’t really originally planning to write about international NGOs or foreign aid.  But as I was doing my interviews in China at that point, it wasn’t purely a domestic story, that it would be weird to write about environmental lawsuits and not write about the foreign, mostly international NGOs, who are trying to support environmental lawyers and environmental lawsuits and the development of public interest law in China.

Once every two weeks, around that much, I would get an email announcing some kind of roundtable or training program or workshop on one of those themes.  Whether it was environmental law or there was a lot of public interest law and public interest litigation.  These were ideas that were really very much in the intellectual ether and really being promoted by a range of international NGOs.  So I felt that I had to write something about those efforts and the kind of effect I thought they were having.

EL:  And what do you think….based upon what you viewed, what do you think the efficacy of these programs are?

RS:  I tried to write the chapter right down the middle; people react to it really differently.  But what I was trying to say is that I think they have some successes in an extremely difficult environment for action.  I think what’s challenging is that these programs have been caught up in the seduction of quantification.  There is a ton of pressure to count things, to have quantifiable outcomes for these programs.  I think often in a worst case scenario, that boils down to the number of people trained.  How many trainings can we run?  How many can we run in how many different areas of the country?  How many people have been there?

I think this is really the wrong approach because where I see the successes of these programs are not on the mass level.  So if you have 100 people at a training I think 95 of them are going to go back to their same old existence.  And I think that’s as we would expect.  Think about how many three-day workshops you have been to.

EL:  I have been to a lot!  [Laughter] And I go back to my old life a lot.

RS:  Me too.  I can’t think of any three-day workshop I have been to that has changed the direction of my life.  So I think that the effects are most evident for a very small minority of people who really use these as springboards to really change their life and their commitments.  And I also think that they can be really effective in promoting ideas and putting ideas in circulation and discussion that were not there before.  So I think those effects are really important but they’re almost impossible to quantify which is why it is so frustrating for donors.

EL:  In the past couple of months you have seen some foreign donors like the Canadian government and the Swedish government pulling out its aid to China on a lot of these projects.  Do you think it’s a smart move?  What do you think will be the result if more donors follow suit and pull out aid from China for projects like these?

RS:  I think donors have been pulling out because the economic argument – providing aid to China – holds absolutely no water any more.  It’s clear that China….

EL: …is very wealthy….

RS:  They should be giving us aid if you look at it as a tool for economic development or something like that.  I am waiting for the discourse to shift so that we look at these programs as a tool of diplomacy.  Which is really how I see them.

EL:  I think you note that in the book and I think that’s important that I think gets lost in the shuffle about quantifying all of these projects is that you learn whose on the ground.  If you do the projects right you learn who is on the ground in remote areas that’s doing really cool work and that can help…you can find out who those people are and see what is really happening.

RS:  Yes.  Your question was about what are we going to lose and when I think about what we are going to lose, one of the big things I think about is that we are going to lose a lot of knowledge about China because the people who have been involved in these projects for a really long time – like folks at the Ford Foundation and the American Bar Association – these are some of the Americans who are most knowledgeable about what’s going on in China and some of the very few American voices that are on the ground participating in any way in domestic debates over what should happen with rule of law.

EL:  Just in closing, where do you see environmental litigation and/or the environmental movement now that you are comfortable calling it that, where do you see it going in China in the future?

RS:  Well the environmental movement is totally going to take off.  Now that it is here and I am comfortable with it, I’m going to predict….

EL:  [laughing]…yes….now that you have written a book about it, it is going to take off….

RS:  No, I really think so though.  I just see a growing demand for a reduction of risk; not just environment but also food safety.  There is no question that Chinese citizens have a right to expect, increasingly expect and increasingly will expect government regulation to reduce risk in their lives.  I’m not exactly sure what form that reduction of risk is going to take.  It may take the form of regulation and beefing up regulatory agencies as opposed to courts and judges.  That’s the part that is not clear.

I do think that the Chinese government will be responsive to these demands for risk reduction.  But exactly how they are going to be responsive is not yet clear.  This area is changing so fast.  It was so hard to let this book go off to the publishers because the story is changing every year.  Between when I started this book and when I finished it, laws on standing changed, 95 environmental courts opened around the nation, China Greenpeace brought their first environmental law suit in China.

EL:  I guess you already have the second edition ready then….

RS: [laughing] Any day now.  Just talk to my publisher about it!

EL:  Well thank you for joining us Rachel.  If people are interested in purchasing your book, it is a great book – Environmental Litigation in China: A Study in Political Ambivalence – where can they do that?

RS:  They can buy it on Amazon and I would be delighted.

EL:  Okay.  Thank you so much.

RS:  Thank you Elizabeth

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This concludes China Law & Policy’s three-part interview series with Prof. Rachel Stern.  To go back and read Part 1 of the interview (focus on the rise of the environmental movement in China), click here.  To read Part 2 of the interview (focus on litigating environmental cases in China), click here.

To read China Law & Policy’s book review of Environmental Litigation in China: A Study in Political Ambivalence , click here.

China Law & Policy continues its interview with UC Berkley professor and noted China environmental law expert Rachel Stern.  In Part 1 of the

interview, Prof. Stern discussed what an environmental movement looks like in an authoritarian regime.

Here in Part 2, Prof. Stern gets to the heart of the matter – how are China’s environmental laws put into practice?  What does environmental litigation look like in China?  What are the advancements its made and what are the challenges it still presently faces?  Prof. Stern addresses all of these issues and then also looks at the positive developments in administrative litigation in the environmental field.

Click here to listen to the audio of Part 2 of the interview with UC Professor Rachel Stern
Length: 20 minutes (audio will open in a separate browser)

To listen to or read Part 1 of this interview, click here.

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EL:  So you do have these [environmental] laws and presumably with these laws you would see an increase in environmental litigation.  Is that what your studies have shown?  Has there been an increase in citizen litigation of environmental claims in China?  What is the status of that litigation?

RS:  I wish we had better data on that.  [Laughing].  That would be really nice if you were writing a book on environmental litigation in China.

All research is limited by the statistics the Chinese government chooses to release.  The data on the numbers of environmental lawsuits have been really piecemeal.  So the best data I have is from a Supreme People’s Court work report from 2011.  They announced that there were about 12,000 pollution compensation lawsuits the year before – so that would be 2010.  The volume of litigation going through the legal system in general is about 4.1 million civil cases a year.  So we have a tiny fraction.  So it would be very small but that is true in all legal systems.  Environmental lawsuits are always a pretty small portion of what is going on.

EL:  So in the United States, so do you know what percentage are environmental cases?

RS:  I don’t know the exact percent but the numbers would be roughly comparable.  Courts are mostly busy handling divorce, family matters, the kind of stuff that is much more every day.  I’m pretty sure that the number of environmental lawsuits [in China] have been rising because there is clear data that the number of environmental disputes have been rising.  So if disputes are going up, my expectations is that lawsuits are going up as well.

EL:  And in terms of these lawsuits – keeping in mind that a lot of people who read this blog are American students of law or students of American law – what do these cases look like?  Are they largely angry citizens bringing these suits on their own as pro se?  What role do non-profits play?  Is there a Sierra Club or an NRDC in China?  And how do these cases play out in the courts in China?

RS:  Most of the cases are what lawyers call tort cases.  The cases that I am looking at are civil [tort] cases.

EL:  A tort case is basically a case where someone has been injured?

RS:  Yes, exactly.  So they involve monetary compensation for damages.  The archetypical case that  always think about is: there is a chemical factory upstream and there is a guy farming fish downstream and there is a chemical spill at the chemical factory and the fish farmer wakes up and all of his fish are dead and he wants 10,000 renminbi [Chinese currency] from the chemical factory to pay for the dead fish.  That’s where the average case is in the Chinese legal system.  It’s not about environmental rights per se, it’s about money, it’s about monetary damages, and it’s not necessarily about health.

When I was writing this book in the end of the first decade of the 2000s, lawyers were trying to get money for health claims for pollution victims and that was very much on the frontier.  If you could get money for a cancer victim and link that case to pollution, that was a huge victory.  That was not the mainstream case that was going through the legal system at all.

EL:  And is that more of a result of evidence issues to show that the — because I mean I know even in the United States, if you see Erin

Brockovich – which you mention in your book which I thought was funny – proving that people’s cancer is a result of a certain chemical, is hard even in the United States.  Is that hard to show even more in China where presumably you wouldn’t have the resources because lawyers aren’t paid maybe in the same way.

RS:  Yeah, I think there are two things going on.  I think the issue you are talking about is causation which is really hard.  This is so hard in all environmental law suits; it doesn’t matter if they are happening in China or Zambia or New Jersey – that link is always super hard.  And it’s really hard for Chinese judges to figure it out.  Here in the US we would have competing experts dueling it out over what the ground water patterns show.  In China what they tend to do is they tend to outsource this issue of causation to an appraisal agency.  So judges impulse is usually to find a neutral third party to write something up.

One of the big issues that came out of my field work was that the quality of these appraisals are all over the place.  Sometimes they are done really conscientiously by people with a really strong background in environmental science and they’re really good.  And sometimes they’re really awful and done by people who have no idea what they’re talking about.  There is not a lot of quality control.

So that’s the critical piece of evidence when it exists in these cases and one of the steps forward for Chinese environmental litigation to work better is that you have to  control of the quality of these appraisals better than has been done in the past.

EL:  In terms environmental cases getting into the court system – I know a lot of people talk about how the courts don’t have to take a case…

RS:  No, they sure don’t.

EL:  How successful are environmental cases in making it past that first hurdle?

RS:  It’s really hard.  I think that’s actually the biggest stumbling block is getting the case into court and convincing judges at the case acceptance

division of the court [li’an ting -立案庭] that this is a good way to handle the dispute.  That’s the moment in which the case is likely to be turned away.  The best data I have suggests that if you get your case accepted by the court as a plaintiff in one of these environmental lawsuits, plaintiffs will get something, not everything they want, maybe it’s just one renminbi, but they will get something 50% of the time.  So the big stumbling block is getting it in the door and convincing judges that this is a case that they can deal with, that it is within the court’s jurisdiction and realm of possibility.

EL:  You have the monetary relief, so you have to show damages for that guy whose fish are dead because of chemicals in the water.  Do you ever see cases where they ask for injunctive relief, where they ask for the industry to stop polluting to shut down the industry or anything like that. 

RS:  So a very typical sentence in an environmental decision will call on the polluter to stop harm.  It is not an injunction but that’s usually part of the decision.  The problem of course is enforcement.  It’s very rare for the courts to follow up and make sure that the decision is actually enforced.

So one of the more exciting things that have been happening is that some of the environmental courts have been working with the environmental protection bureau to establish monitoring of decisions after the fact to make sure there’s a cleanup plan and that it actually happens.  But again that is really the frontier of where we hope environmental law is going as opposed to the mainstream of where it is right this second.

EL:  I guess given all of that do you think there are successful environmental cases in China.  You had talked in one of your chapters in the book about the Pingnan case where the villagers won on the law.  They ostensibly won – the company had to clean up the pollution and pay a fine.  But ultimately the fine amounted to such a small amount – $63 USD per person.

RS:  I know, isn’t that a depressing story?

EL:  It was very depressing.

RS:  Especially because this was the most celebrated environmental lawsuit of 2006.  So this is trumpeted as a major victory and then it is kind of the glass is half empty.  It’s not that much.

EL:  In your mind and I guess in some of the people who are on the forefront of the environmental movement in China and the judges in the environmental courts and the governmental agencies that deal with it, how do they define victory?  Do they really see this [the Pingnan case] as a victory?  Do they understand that…

RS:  They would definitely see Pingnan as a victory.  Not so much because of what the villagers got but because of the media attention the story got and the way in which it called attention to the issue and the way in which it re-framed the debate.

So the media attention itself is a victory regardless of what people actually get.  The articles that came out of the Pingnan lawsuit are questioning the old economic-growth-at-all-costs model that has been on for so long.  So in so far as the real story is about raising environmental consciousness and creating groundwork for the environmental movement, any lawsuit that gets national attention is a success.

But it’s hard to know.  I would sometimes in my interviews, I would ask lawyers “can you tell me about a successful lawsuit?” And they would come back with a story and the punch line of the successful lawsuit for them was that the factory closed up and moved away.  So then my next question is “where did it go?”  The answer is often that it went to this poorer part of the province.  So is that a real victory?  It is for people who live in that place, but it raises real concerns about environmental justice and whether or not these lawsuits, if you take the nation as the unit of analysis, whether or not they are really doing that much to improve environmental quality.  This is such a tough field, you have to celebrate every little success even it doesn’t add up to success on the level of Brown v. the Board of Education.

EL:  When that [Brown] came down wasn’t enforced in a lot of places, it was just enforced in that one place and then the Supreme Court

decided to wait to integrate.  So I guess it is kind of fair to see Pingnan as a victory because it did get media attention and did raise consciousness but then it was just a little bit of money for the people that were harmed.

RS:  I know.  I find again – just speaking in general – the plaintiffs tend to be pretty happy if they get any part of what they wanted.  They really feel like the deck is stacked against them in these type of cases and if they get a fair hearing and if they get a portion of what they wanted, they tend to think that that that’s a success.

EL:  What do you think are the major roadblocks to what we would define as success where the plaintiff is made more whole than they are being made right now?  What are the major roadblocks you are seeing in environmental litigation in China?

RS:  Well we already mentioned two of the really big ones – one is getting the case into court and convincing judges that this is part of their responsibility to hear these kinds of cases and [second is] improving the quality of appraisals so that they have a real scientific basis and judges can really rely on them.  I think that those two reforms would go a long way toward improving the quality of justice in these kind of cases.

The third one is enforcement of decisions.  Putting teeth in the idea that you have to clean up after a decision as opposed to basically pay off plaintiffs with a little bit of money.  It would be the third thing.  And I think for that really to work there would need to be cooperation between the court and the environmental protection bureau to a much a deeper degree.

EL:  What are you seeing right now between the court and the environmental protection bureaus?

RS:  Usually nothing.

EL: In China is it that when the court orders for the plant to stop polluting the water is it then the responsibility of the local environmental protection bureau [EPB]to enforce that?

RS:  Right now it is kind of no one’s responsibility.  It is kind of in a gray zone where nobody is going to be held to task for it, nobody is going to follow up, everybody knows that.  One of the criticisms of China is that there is not enough judicial independence, the courts are too likely to communicate with other branches of government.  The flip side is that you could really take advantage of that.  If the courts were communicating with the EPB and making this cleanup part of the EPB’s mandate, that could really make a big difference.  Of course the problem is that the environmental protection bureaus are chronically underfunded and understaffed so that probably needs to be addressed.  But at least the possibility is there.

EL:  When I was reading your book, definitely these are problems in environmental litigation in China but honestly a lot of this seems to be problems in a lot of citizens’ rights cases – disability rights things like that.  Do you think this is also a problem in other areas?

RS:  Totally.  Some of its a little bit specific like the issues of the appraisals, that’s a little special  But problems getting cases accepted, problems getting decisions enforced, this is totally endemic to the whole legal system.

EL:  Well, that’s positive, at least it is not focused on environmental issues. [Laughter]

RS:  No, it is not personal.

EL:  The other thing in reading your book, I think a lot of people outside of China because there has been so much press about China passing

so many laws one environmental protection, that in the Western press there is this talk of an environmental movement in China, you see protests.  So you think oh, this is a hotbed of activity – stuff is really happening here.  But then I read your book and I am like oh, no, not really.  But when I did read your book, one of the hopeful things I did read it was there were parts where you talked about the success of administrative litigation in China.  What’s been happening with administrative litigation in China in the environmental sphere and can you just describe more what that looks like vis-à-vis civil litigation.

RS:  So the most hopeful thing that I found was not so much in terms of civil litigation.  I need to  give a shout out to Zhang Xuehua whose research this really draws on.  What she found is that there is a part of the environmental litigation law that’s not that well know which is what call “non-litigation administrative execution cases.”  I always have to look at my notes because I never get that quite right.  But that’s what they are called and what it means – to put it in English – is that under the administrative litigation law, government agencies can bring lawsuits in court when their administrative decisions are not being followed.

What she found in Hubei province was that sometimes the environmental protection bureau brings these lawsuits in court to sue polluters who are not paying their fines and to get the court’s moral authority and help calling these polluters to task.  So you can get this sort of synergistic relationship and alliance that can emerge between the EPB and courts.  So between two parts of the Chinese government that are traditionally perceived as very weak.  They can kind of help each other out.  The court doesn’t have a lot of tools at its disposal but two things they can do is that they can detain managers of firms that are not paying up and they can freeze bank accounts.  Plus they have some moral authority.

So if you put all of this together, sometimes the EPB bringing these lawsuits can scare polluters into thinking “wow the courts have gotten involved, the judges have shown up, now I have to pay.”  And she’s [Zhang Xuehua] just describing this pattern – this alliance emerging – in just a few places.  But it is really optimistic that there is that possibility of cooperation between these bureaus.  They can get more done together than either one can ever get done on their own.

EL:  So you’re seeing this in just a few places in China?  Has it spread since she started investigating Hubei.  Do you think this is a model that will spread throughout China?

RS:  I don’t know.  I hope so.  There’s been quite a few of these non-litigation administrative execution cases in some of the environmental courts in Wuxi in particular and in Chongqing.  In those two places this type of case makes up a large percentage of what the courts are dealing with.  There it has provided real way for the court to get enough cases to justify its existence.  I am optimistic that this may be a path forward for the environmental courts in particular.  It kind of works out well for both sides.  The EPB brings cases and that is a way for the environmental court to expand its case load and reach a more stable footing.

EL:  In terms of the EPB, the environmental protection bureaus on the local level and then – your book does talk about how even though they still are underfunded and understaffed it does talk about the huge increase in the number of staff that they have had over the past decade and that in 2008 the National Environmental Protection Administration was raised to a ministry-level which gives it more power.  Is this changing the culture of people who work there.  What are the types of people who work there.  I know in the United States a lot of people who work at EPA, they are very into the environment and they will often go to NRDC or Sierra Club.  Is that culture you are starting to see created in the government agencies that supervise environmental [issues] or is there still a lot of people where it’s just a job?

RS:  The visible upgrade in status for the environmental protection bureau employees over the last ten years has been positive.  There is more of a feeling of pride in their work as you would expect as the work has more visible importance placed on it.  I think there is a ways to go before everyone who works for the EPB is a dedicated environmentalist.  In the interviews I have done with EPB officials the discourse is usually – it is about protecting the environment – but its mostly about finding more appropriate balance between economic growth and environmental protection.  And recalibrating that balance so that it is more appropriate for the current moment in China.  I think that makes sense for where China is right now and for the kind of rhetoric that is coming out of the central government.  But it does strike me that there is a big gap between finding balancing point between economic growth and environmental protection and being a fervent and committed environmentalist as we might see here at least in parts of the EPA.

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To listen to Part 1 of the interview with Prof. Stern, click here.

In the next post, China Law & Policy concludes its interview with Prof. Stern where she discusses the role that international NGOs have played and what she sees as the future of the environmental movement in China.

Back in January, Beijing saw some of the worst air pollution in its modern history.  Even the state-run media, which usually tries to cover up environmental disasters, openly discussed the off-the-chart pollution levels that were literally suffocating the city.  Did this open discussion signal change?

Certainly over the past decade China has passed many environmental protection laws.  There has been increasing citizen awareness and on occasion government responsiveness.  But what role has the law and litigation played in moving Chinese society forward?

Fortunately, China Law & Policy was able to sit down with Rachel Stern, assistant professor of law and politics at UC Berkley and author of the amazing book, Environmental Litigation in China: A Study in Political Ambivalence .

Below is the audio and transcript of part 1 of a three part series.  In Part 1, Prof. Stern  discusses the origins of China’s environmental rights movement and what that movement looks like in an authoritarian state.

Click here to listen to the audio of the interview with UC Professor Rachel Stern
Length: 10:08 minutes (audio will open in a separate browser)

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EL: Thank you for joining us today Rachel. 

RS:  It’s a pleasure to be here.

EL:  Let’s start with the pollution in Beijing this past January, specifically the horrible smog that covered the city for days with residents being warned not to leave their homes.  A lot of outsiders compared the Beijing smog in January to the Great London Smog of 1952 or the New York City killer smog of 1966.   First off, do you think it’s fair to compare Beijing’s pollution to London’s in the 50s or New York in the 60s?  Is this the same level and type of pollution?

RS: Well, I can certainly see where the comparison is coming from.  All those examples you mentioned are all examples of air pollution in major

cities that are the outcome of industrialization and economic development.  They’re huge crisis events that really galvanize the public and draw attention to an issue area.  So sure, I think the comparison is fair.

Whether or not it is totally accurate is a little harder to say just because, at the risk of sounding like a social scientist, it is hard to get data that is exactly comparable.  So one of the things that was in the news that you are probably know about was that China just started measuring particulate matter under 2.5 microns in January [2013].  So whether or not the quality of the smog is exactly the same, it’s really hard to compare.  That London smog that you mentioned, I just glanced back at some of the historical accounts, there were accounts that 4,000 people died in that smog.  So that’s not quite the same as the “air-pocalypse” that were coming out of.

But I do think that the events are comparable in terms of drawing attention to a problem and galvanizing the public behind the issue.

EL:  And that’s what I think a lot of foreign journalists and China watchers kind of also looked at when they compared Beijing to London and New York.  That they argue that these kind of incidents are necessary to get the society on board to promote environmental awareness and movements.  But to what extent do you think China is different from London or the United States?  Do you think the fact that China is a one-party state with a developing legal system will cause a different result?

RS:  Of course.  The fact that it is a one-party state with a developing legal system shapes all the possibilities for environmental activism in China.  But let me talk about the part where they are actually kind of the same.  I think one of the things we see in environmental movements worldwide is the difference between crisis events and chronic problems.  Chronic problems: the fact that air pollution is terrible day in and day out, in general what happens is that people learn to live with it.  It just becomes the new normal.   Sometimes you get this with Chinese friends who are visiting the States for the first time and hadn’t realized that it could be different.

The role of the crisis event is to create a sense of urgency.  Crisis events for that reason tend to play a really large role in environmental movements.  So I am actually hopefully that the air-pocalypse will play a similar kind of role in China as the Great Smog and other events like that did in the United States.

What’s so different in China is that the opportunities for public participation are so much more limited.  We’ll talk more about this but it’s really hard for NGOs  to bring environmental litigation under the current legal system.  So that’s really different than here in the United States where NRDC and the Sierra Club were really instrumental in some of the major pollution law suits in the 1960s and the 1970s.  And of course there is no elections [in China].  That’s really different from Japan where the LDP started to take on environmental issues when they started losing elections over it.  So that mechanism of accountability is somewhat broken in the Chinese case as well.

EL:  You had mentioned in comparing London and New York to Beijing, it is kind of similar path with the industrialization so let’s rewind a bit with China and focus now just on China.  China basically starts industrializing in the early 1980s with Deng Xiaoping.  With that we see the increasing environmental pollution and degradation.  But when do you see the development of an environmental movement or concern about the environment?  I know the past decade we have seen a lot of laws but do you see it before that and was there a certain incident or crisis moment that really sparked public and government attention to the issue before 2000?

RS:  I always felt uncomfortable talking about China’s environmental movement.  I think I only started using that term with some degree of comfort maybe last year.  It was really recent.

EL:  What made you uncomfortable about using it?

RS:  Well, movement implies a sustained political push by a large group of people.  China’s first environmental NGO is founded in 1994 by Liang

Congjie; that’s Friends of Nature.  That’s sort of the first generation of environmental NGOs in China is the in 1990s.  They had a few really notable successes, particularly drawing attention to the hunting of a rare Tibetan antelope.  That was one of the big, early Friends of Nature successes.  But throughout that early period, the NGOs are really focused on environmental education and raising awareness of environmental issues.  And they really had their work cut out for them.  When I think about surveys from the 1990s they were just a few but they are really super interesting.  One of the survey questions that got asked for example in Anhui province was “have you ever heard of the term environmental protection; have you ever heard of the term ‘huangbao’ [环保] “  Over 90% of people said “nope, never herd of it.”

EL:  Who were these surveys given out to?  Who gave out the surveys and was it then just to the general public?

RS:  No, it was to the general public in a rural part of Anhui province.

EL:  Was this sponsored by the Friends of Nature NGO?

RS:  No, this was a group of environmental researchers that were mostly based in the US.

So that was the story throughout most of the 1990s.  Then attention to environmental issues really started to pick up in the 2000s.  There was a dramatic expansion of the NGO sector in general and a blossoming number of environmental NGOs were a big part of that story.  With more groups you got more diversity of approaches.

This coincides with a time when the central government started making environment more of a priority too.  So one of the key moments was in 2007 when Wen Jiabao introduced the phrase “ecological civilization” – shengtai wenming [生态文明] – at the 17^th Party Congress.  A lot of observers, both within China and outside of it, really saw that as a sign that environmental issues were rising in prominence for the central government.  So that was a big event that 17^th Party Congress.

The Green Olympics of course in Beijing – is it going to be possible to hold the Olympics in one of the world’s most polluted cities?  That was a huge event in the 2000s.

Also the cancer villages and the amount of media attention surrounding villages were there were lots and lots of people dying of cancer.  This was all the Chinese media, not the international media.  But the linking of those cancer cases to pollution [was important].

Those are three of the events in the 2000s that really, really jacked attention to environmental issues inside of China.  And as the decade has worn on we have started to see more of the NIMBY [Not In My Back Yard] protests especially in the urban areas.  I finally started to feel more comfortable thinking about an environmental movement.  It’s widespread enough and it isn’t just a few people.

EL:  You had said before that you don’t have elections in China and that there is less accountability but this media attention to some of these

cancer villages, the fear of 2008 Olympics being a pollution nightmare for the government, there is in a way some accountability.

RS:  I think there is definitely responsiveness.

EL:  Yeah, I guess that is different.

RS:  Yes.  I think there is some degree of accountability too through responsiveness.  It’s just that the mechanisms are different.  In democracies elections are the mechanism by which government officials are held accountable.  And here [in China] you have a government that is really trying to be responsive and you see this all the time in the kind of NIMBY protests that come out of urban areas.  They [the Chinese government] actually back down quite a bit and give urban residents what they want.  But that’s because of fears of unrest or media pressure or being embarrassed; not because of elections.

EL:  Now in terms of the Chinese government responding to some of this pressure.  So the past decade has seen enormous amounts of laws written for environmental protection and you discuss this in your book Environmental Litigation in China.  Based on what is written, how well written are [these laws] and how thought out are they?

RS:  I think they’re pretty well thought out.  It’s part of a big trend toward drafting lots of laws.  The 1990s and 2000s were boom times for legal drafters in China.  There are laws being drafted all the time on all subjects; we can’t have gaps.  Often the process of legal drafting is really a thoughtful one – of looking around the world, seeing what other countries do, trying to pick and choose the elements or the best practices that are really going to work well for China.

So I think over the course of the last decade, the consensus has changed a little bit from saying China doesn’t have enough environmental laws to saying well the laws that we have on the books, they’re not perfect but they’re not bad.  So I think the consensus has shifted to thinking that the problem is really about enforcement, about the gap between what should be happening and what’s actually happening.

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Please return to China Law & Policy for Parts 2 and 3 of our interview with Prof. Stern.  In Part 2, Prof. Stern maps out what environmental litigation looks like in China today as well as discusses other alternatives to litigation that has been having more success.  In Part 3, Prof. Stern concludes the interview with her analysis of international NGO’s work in China as well as what she sees for the future of environmental litigation in China. 

Interested in purchasing Prof. Stern’s book? You can purchase it here: Environmental Litigation in China: A Study in Political Ambivalence

Over at the Council on Foreign Relation’s China blog, Prof. Margaret K. Lewis of Seton Hall’s School of Law has written an interesting and timely piece about the role that criminal law plays in advancing China’s economic “miracle.”

As Lewis notes, and following up on recent articles in the New York Times (see here, here and here), China’s civil legal system and its regulatory state largely failed in dealing with some of China’s new economic problems – namely food safety, financial markets and environmental degradation.

But as Lewis goes on to highlight, this failure of the civil and regulatory systems does not mean that the Chinese government has not tried to stem these problems.  In fact, as Lewis observes, it has, through the use of the criminal law.  Recently, the Chinese government has stepped up the threat of severe criminal sanctions, including the death penalty, in an attempt to try to police this situation.

Lewis’ blog post is based upon her new research regarding how, since Deng Xiaoping’s 1978 “Reform and Opening” policy, the Chinese government has used the criminal law to propel its economic development.  See Margaret K. Lewis, Criminal Law’s Contribution to China’s Economic Development (August 1, 2013). Available at SSRN: http://ssrn.com/abstract=2298923.

In fact, one of Deng’s first actions after assuming leadership was to publicly prosecute the Gang of Four, signaling the changing of the guard from

political extremism to a focus on economic growth.  From there, Lewis recounts the formation of many of the laws that would underpin Deng’s policy of economic growth, showing that the intention of many criminal laws was to find the “growth-enhancing sweet spot.”  It’s no wonder that today in China, economic criminal liability is much broader than in most other developed countries including the United States.

Lewis’ well-researched analysis makes a strong argument for her point: that you cannot analyze China’s economic growth without looking at how it has used the criminal law to assist in that growth.  But even still, it leaves you uncomfortable – there is something about the use of criminal law to propel growth that seems at odds with its purpose.  This Lewis notes is likely more the result of how the West has come to define patterns of economic growth.  To achieve a sustainable market economy, the government sets in place a regulatory state with certain ground rules and then lets the actors – usually companies and individuals – duke it out within the confines of an independent legal system.

But that is not what is going on here in China and it’s this bucking of the traditional historical trajectory of growth that forces scholars to look elsewhere for its explanation.  In China’s case, that elsewhere might be the criminal law.

“Criminal Law’s Contribution to China’s Economic Development” is a must read for anyone who wants to understand the relationship between law and economic growth in an authoritarian state.  But it also raises many questions – is this use of the criminal law sustainable?  Can China solve its regulatory failure problems through state-dominated use of the criminal law?  Lewis examines a few problems with its usage, especially in attempting to deter official corruption where the Chinese Communist Party is too hesitant to prosecute its own.  She also explores the use of economic criminal liability to suppress dissent that officials determine is too “destabilizing” to development.

From Lewis’ review of recent criminal legislation, interpretations and call for greater criminal liability, it becomes obvious that she is right – the Chinese government is attempting to use criminal law to support its market reforms.  But in a country of 1.3 billion with a land mass close to the size of the United States, how sustainable is this approach?  That is a question that we hope Prof. Lewis answers in her next article.