New Boss at the Supreme People's Court of China

After almost ten (10) years of service at the SPC, Hon. Xiao Yang is stepping down, and his replacement has been selected and confirmed by the National People’s Congress...

The rest of the post is here.

Vulnerability of Chinese Lawyers

The sudden disappearance and resurfacing of Beijing Lawyer Teng Biao captured lots of attention and generated much reporting in the media.

If you haven't listened to this (the fourth one on the list) radio program, discussing Teng Biao's experience with the Beijing Police and the challenges that Weiquan lawyers face, I strongly recommend it.

It makes me want to watch To Kill a Mockingbird again.

Importers of Poisonous Chinese Toothpaste Indicted

Four exectives of of two Californian import companies have been indicted by the city of Los Angeles, reported by the NY Times.

The Los Angeles city attorney, Rocky Delgadillo, working with the Food and Drug Administration, filed a criminal complaint against two Los Angeles-based importers, Vernon Sales Inc. and the Selective Imports Corporation.

At Selective, Frahad Nazarian, the president, and Yones Ghermezi, the vice president, were charged with two counts of receiving, selling and delivering the tainted products.At Vernon Sales, Kamyab Toofer, the president, and Pejman Mossayi, the vice president, were charged with 14 counts of receiving, selling and delivering an adulterated drug.

The case is the first instance of criminal charges being filed in the United States against any party in the toothpaste scare and comes after a suit filed in Missouri against an American company that had imported tainted ingredients used in pet food.

This is not the first instance of criminal indictment, and it won’t be the last one either. Importing from China has become a little more costly to some who have not been practicing due diligence and caution. An investigative trip to Chinese exporters is a lot more pleasant than being charged with a crime.

Chinese Water Pollution Law Amended for Good

China faces many problems in its modernization. Income gap, aging population, air pollution, inadequate housing, social security/retirement, and the lack of affordable healthcare, to name just a few. But, none is more urgent and worrying than water pollution. Many readers are already familiar with media coverage of extensive pollution in major Chinese waterways and fresh water sources, and it is unnecessary to list them one by one. But, I do want to make an exception, the pollution of the Hanjiang River, as reported in the last few days, because it has touched a personal nerve.

I grew up by the Hanjiang River, along its upper stretches, close to its origin, so I have some emotional attachment to this nurturing, and at times mighty river. About a fifteen- minutes walk away from my home, as a kid, I used to swim and fish in it, search for rocks along its southern bank, graze our family water buffalo by it, and even drink from it. It was not so special while I was there, passing by it thousands of times. But it is when I have left my home that I realized how important a river like that is in shaping who I am today. So, upon hearing that pollution turned the water in the lower stretches of the river, I lament for its suffering. Even more so, I am deeply concerned for the people who live by the river because they rely on it for its life sustaining water, one of the most precious yet underappreciated natural resources on earth.

With that said, I am glad to hear that the Water Pollution Prevention and Control has been amended to abate the almost out-of-control pollution situation in China.

According to this report:

China's top legislature on Thursday passed an amended water pollution law that toughens punishment of company officials through hefty fines.

The Water Pollution Prevention and Control Law, to take effect on June 1, was passed at the 32nd session of the Standing Committee of the National People's Congress (NPC), which concluded in Beijing on Thursday.

"Enterprise heads directly responsible for causing severe water pollution incidents and others with direct responsibility would be fined up to half of their income in the previous year," said the law.

Previously, corporate executives faced only administrative penalties.

Water pollution is among the top environmental concerns of the Chinese government and the public.

A 2006 survey found that surface water generally was classified as containing intermediate levels of pollution, but one third of the 744 samples tested were graded at the worst pollution rating.

Yes, I have my doubts about how effective these amendments will be in the come days and years in alleviating the vast pollution problem facing the Chinese. I cannot help but question: how will monetary fines against executives of polluting companies effectively reduce and curb pollution (does deterrence really work?)? How strictly will this law be enforced? What viable measures and policies are in place to cure the impact of water pollution? Besides administrative penalties, civil fines, can individuals be given a private right of action for injuries due to pollution? If the current anti pollution legal structures are not effective, what solutions, legislative, administrative, or non-government related, could be adopted to abruptly abate pollution and jump start cleaning up process? Answers to some of the questions probably lie in a quick research, which I will do soon; but some questions are beyond my limited scope of knowledge.

The first required book in law school, which is not a casebook, was A Civil Action. It’s an enthralling book about a lawyer taking on two large corporations (W.R. Grace and Beatrice Foods) that allegedly polluted underground water. It is such a powerful book. (I digressed.)

Notwithstanding the questions I have about the amended Water Law, I welcome any step forward by the Chinese government (legislature) to address pollution.

What do you think?

Low-Budget, High-Yield Legal Aid in Xi’an

After I enrolled in law school, I began to notice what amazing services that legal aid offices in American cities offer to the indigents. They operate on a small budget, yet manage to give their all to their clients’ causes. As the good folks at the Dallas Bar Association put it, Pro Bono work is like “billable hours for your soul.”

It turns out that lawyers in my home turf of Shaanxi Province are doing the same, providing much needed legal representations to migrant workers who would otherwise not be able to afford lawyers. As I wrote in one of my previous posts, affordable and easy access to the justice system in a country is essential to the establishment of the rule of law. And what China Digital Times reported does shine a gleam of hope for many, including the disenfranchised Chinese workers and those of us who care about China’s legal system.

In its post titled Why Migrant Workers Praise the Law, CDT states:

The Shanghai Daily News reports that migrant workers have some hope to resolve their woes with free legal assistance in the northwestern city of Xi’an in Shaanxi Province.

Running with a budget of less than 7,000 yuan (US$972) per month, the Xi’an legal-aid station is hailed as a “beacon” for migrant workers by local media which have tracked the station since its formation last year. It is a joint effort by the United Nations Development Program and the All China Lawyers’ Association.

Migrant workers who number up to 200 million in China usually complain that employers pay them late or not at all, and of work-related injuries.

The station recently helped 41 construction workers fight to collect about 90,000 yuan, their half-year earnings for last year. “The work is tougher as they were employed indirectly through sub-contractors or, even worse, via oral promises,” said Zhao.

Now, the Xi’an lawyers have at least two things to be proud of—the historical legacy of Shaanxi and their care for the “soul.”

Mag Train, or Mega Pain?

While most of China is paralyzed by one of the coldest winters of nearly half a century, including the South, and Southwest, the citizens of one district in Shanghai is engaged in a potentially flammable protest against the Shanghai government. As reported by western media (NYTimes, and Washington Post) and in China (Chinese only), some citizens are waging their "battle" against the city government, which has proposed an extended stretch of the Shanghai mag-lev train. Under the proposed plan, the train line, connecting the Pudong Int'l Airport with the Hongqiao Airport, will cut across a densely populated residential area, potentially wrecking the peaceful life of thousands of residents (the number could be over one million based on one undisclosed source). As soon as those residents caught wind of the plan, they began vehemently opposing it, but in peace and through various forms of pleas and petitions. Their efforts so far culminated in a public hearing held on January 19, 2008; this event was attended on the one hand by officials from the city bureau of environment protection, bureau of city planning, the Mag-lev Project management team, and various district officials, and on the other hand by affected citizens of the proposed project.

One of the citizens' key concerns is just compensation for the loss to their property due to the project. Reportedly, the plan proposes to "condemn" property within 22.5 meters of the train line on both sides. In other words, the government will appropriate private property by way of eminent domain; however, it will only do so to property that it deems necessary for the consummation of the project—those apartments located on the plots of land lying within 22.5 meters of both sides of the train line. And the government will compensate the owners of property that it deems "affected" by the project, whereas those owners with property beyond the 22.5 meter boundary take nothing.

Many homeowners cannot stomach this Mag-lev project and the compensation methodology to be employed by the government. First, they disagree with the 22.5 meter rule as proposed, citing that it is arbitrarily set without adequate scientific evidence that the property beyond the boundary will be unaffected by the train. Of course, two sub-issues are embedded in this concern. 1). whether the government needs to "condemn" more land beyond the 22.5 meter line for safety concerns; and 2). whether the entire project will affect the health, safety, home value, and qualify of life of those residents alone the train line, irrespective of the 22.5-meter eminent domain proposal. Second, they disagree that this project is for public good. Public good is the prerequisite to eminent domain proceedings initiated by government entities (more on this later), but the construction project, linking two airports, does not either directly or indirectly benefit the people concerned. Rather, the benefit and convenience go to transit travelers. Third, they oppose the proposed plan all together because they believe that this project is a direct consequence of poor city planning, and that they should not bear the burden and consequence of substandard governance.

So far, the city government appears to be just listening. Officials have appeared at the public hearing, received complaints, and have "softly" pressured vocal dissenters. But, the severity of the issue, with homes and lives of thousands of residents on the line (pardon the pun), begs the question of "what next?" if the government turns a deaf ear. What other recourse do the citizens have? What are their rights under the Chinese legal system? How can they protect their rights in a country where the central government has been "pursuing" the Rule of Law? How should they navigate the complex and at times unfriendly legal system to enforce their rights?

To be Continued...

“Regulationism”

My apologies to lexicographers, linguists, and English teachers out there for coining the word “regulationism.” But I couldn’t help it after seeing so many regulations that come into my China New Law alerts on a daily basis. To me, regulationsim means a tendency by a government(s) to resort to administrative regulations to solve social issues that might otherwise be resolved through alternative means.

Most people who know China are aware of the plethora of regulations in China, and my mentioning of the issue is surely no news. But, I am not certain that people know how the almost ubiquitous and countless rules and regulations impact China’s efforts to establish the rule of law, and how they affect people’s daily lives (both good and bad). I am not sure I know either, but I fear that regulations, once they start to “run wild” and become a short cut to the formal legislative process, do come with high costs that citizens probably do not want to pay.

For example, there have been fierce discussions on the regulation/standard on steamed buns in China. Reportedly, all steam buns must be made of flour, and be either oval or round in shape. Understandably, there needs to be certain standards for quality and sanitation, but a required shape for buns? Yes, this regulation will benefit average consumers by ensuring that all steamed buns will have a desirable uniform quality; however, these regulations also result in fewer choices for consumers. What if a consumer wants a triangular bun? What if she desires a bun made of a mixture of flour and corn meal in the market? Therefore, an unexpected corollary of excessive regulation is the blockade of the market mechanism.

In light of the consequence of this steamed bun regulation, its necessity should be called into question. The fact is that China already has Product Quality Law (and its relevant regulations), which should be sufficient to address quality concerns. Why then is another regulation necessary just for steamed buns? The answer, I guess is that the two Chinese agencies, General Administration of Quality Supervision & Inspection and Standardization Administration, subscribe to “regulationism.”

(Note: in the midst of a fury of outcries about the standard shape of steamed buns, the Standardization Administration issued an explanation that the standard shape of steamed buns in the regulations is only a recommendation, not a requirement.) Query, why even a recommendation?

While this topic of excessive regulating is discussed, I just learned of another notice by the State Council issued on December 31, 2007, which has to do with the ban on the production, sale and use of ultra-thin plastic grocery sacks (<0.025 mm). Pursuant to the notice, this ban goes into effect on June 1, 2008, and the National Reform and Development Commission will revise the Investment Guide Catalogue to reflect this national campaign to root out ultra-thin plastic sacks. In addition, starting on June 1, 2008, all markets in China shall cease to offer plastic sacks for free, and shall charge customers a specific fee for sacks requested by customers.

Clearly, this new regulation aims to increase the externality for the use of plastic sacks, which is an annoying solid pollutant in China and elsewhere. Hopefully, it will be effective in achieving its administrative purpose in stemming pollution and shifting the cost of pollution to average consumers and investors in manufacturing of ultra-thin plastic sacks. I don’t doubt the wisdom of the rationale behind the regulation, but I do have qualms about how it will be enforced in China. So many enormous polluters of China’s skies, rivers, lakes, and wetlands go unpunished in spite of China's long existing environmental laws and regulations. Thus, how could a neutral China observer be convinced that the government will go after a small business owner or grocer for selling a few thin plastic sacks, following the announcement of yet another regulation? This leads to, as I see it, another unexpected consequence of regulationism—societal cynicism about excessive regulations. If regulations are not to be strictly enforced, why make them in the first place?

Any thoughts?

Death Penalty by Lethal Injection: Humane or Inhumane?

As reported below by the New York Times, China plans to replace execution by shooting in the head with lethal injection, thus providing a more “humane” method of capital punishment.

China plans to expand the use of lethal injection to replace the current method of execution, a shot to the back of the head, the newspaper China Daily quoted Jiang Xingchang, vice president of the Supreme People’s Court, as saying. Half of the 404 intermediate people’s courts, which carry out most executions, now use lethal injection, he said. “It is considered more humane” and “will eventually” be expanded to all such courts, he said without providing a timetable.

Curiously enough, the United States Supreme Court will hear arguments in the case of Baze v. Rees on January 7, 2008. The issue of this case centers not on the constitutionality of the death penalty, but on the constitutionality of the cocktail used in the lethal injections in the United States. Defendants plan to argue that, according to the FoxNews, one of the chemicals used in the cocktail causes severe pain and violates the Eighth Amendment. Basically, they advance the argument that the current chemical mix of lethal injection causes unconstitutional pain and suffering to the convicted.

Here, you have the vice president of the Supreme People’s Court of China advocating the lethal injection, citing that it is more “humane” than the somewhat out-dated (still used in some places) bullet-in-the-head execution. Juxtaposing the apparent “welcome” of lethal injection in China with the growing “challenge” it faces in the United States, one can see the huge differences in the criminal jurisprudence in the two countries.

Apart from the difference, one should, however, not ignore the attention that the death penalty has received in both countries in recent years. In the United States, there has been a de facto moratorium on the death penalty, while the Supreme People’s Court of China now automatically exercises subject matter jurisdiction over every death penalty review case. As debates surrounding the death penalty continue on both sides of the Pacific, it would be interesting to see what results in Baze v. Rees and how it will impact academic discussions in China about lethal injection.

And as we all sit tight for the ruling in Baze v. Rees to descend, the answer to the question posed in the title of this post is--stay tuned.

Migrant Workers Self Help: Extreme Edition

A group of workers camped around a fancy Audi, surrounding it in order to force the owner of the car to pay wages owed to them (h/t China Digital Times).

The picture speaks volumes about the social condition that Chinese migrant workers endure—overworked, underpaid, unappreciated, and at times violated. What is more, it epitomizes a social phenomenon where a class of people who are unaware of (or unable to utilize) another tool to exercise their rights to be paid for their blood and toil—the law.

For want of justice, people can resort to self help or the law. As the migrant workers often do, self help appears to be the most sensible and accessible method of achieving justice. A plausible reason for their tendency to self help is that they do not have the money to hire lawyers; and they probably do not know to report the violators to the proper authorities, thus availing themselves of administrative assistance. Or, they do not have faith in the legal system in its ability to dispense justice to poor migrant workers. Irrespective of the reason, this phenomenon reveals an undeniable weakness in the Chinese legal system—the poor, the weak, and the disenfranchised do not have easy access to it. (Of course, this is not a problem unique to China.)