Shanghainese use the law to fight 'Beer
Street' By David
Fullbrook
SHANGHAI - Laws rule China today, its
leaders thunder regularly from Beijing, yet many
Communist Party cadres and officials still believe their
word trumps the law, willfully ignoring it.
Increasingly, though, citizens are seizing upon the law
and using it to battle official wrongdoing, like the
Chinese and foreign residents of once-tranquil Qinghai
Road. They are fighting to have tacky bars that appeared
overnight removed and prevent the construction of more
by the company, "Beer Street" that planned for as many
as 20 saloons. And they may even be winning.
They are hammering away at the lack of permits,
irregularities and illegalities; they are seeking
audiences with and sending petitions to city and
Communist Party officials, the Shanghai People's
Congress (the city council), planners and police. Their
petitions are signed as well by many overseas Chinese
residents who know how to use the law. All these actions
have disrupted the quiet and comfortable lives of
bureaucrats who used to act with impunity, while
brooking no dissent.
If this campaign invoking
the law fails, residents are quite prepared to file suit
with the courts that usually - but not always these days
- rule in mandarins' favor, and to court attention from
newspapers and television stations with reputations for
exposing corruption and malfeasance.
Similar
challenges, even victories, against once all-powerful
mandarins are becoming increasingly common in the new
China where communist leaders proclaim the law, not the
government or party, is paramount. And residents here
are taking them at their word.
Residents of the
Sea of Clouds apartments, opposite Shanghai Television's
towering headquarters on Qinghai Road branching off
downtown boutique-lined Nanjing Road, insist their
enclave must be restored to its former simple character,
before Beer Street construction began in August for what
was supposed to be a brief period - a three-month
tourism festival.
"If we succeed in getting
these structures removed it will set a precedent," says
a retired legal professional with more than 20 years'
experience. "If we win this time, the law wins. It's
major progress," the professional said, speaking on
condition of anonymity, which is customary in China.
Word of local discontent - many residents
themselves are well connected - has reached high places
in Shanghai and Beijing. (That they may be forced to use
their connections in the government and the Communist
Party, as well as the law, indicates the law is still
far from supreme.) Perhaps not coincidentally, Beer
Street's opening, set for September 18, has not come to
pass. Sturdy, open-air beer shacks, chilly no doubt come
winter, remain empty.
Telephone calls to the
directors of Beer
Street, the company behind the beer bars
project, on Qinghai Road, went unanswered.
Beer Street a 'haven of serenity'?
According to its website, Beer Street creates "a haven
of enjoyable entertainment in the midst of the hustle
which is daily life ... from the peace and serenity of
the 'Garden Bar' to the active excitement of the 'Beer
Train', Shanghai Beer Street has something to interest
everyone (over 18 ) who is still young at heart!"
Observers, however, say its character is more in keeping
with raucous Pattaya, Thailand, than with Shanghai,
jarring rudely with Nanjing Road's aspirations to become
as prestigious as Bond Street, the Champs Elysee and
Fifth Avenue.
Young and old gather on Qinghai
Road - sensibly closed to vehicles - strolling, sharing
gossip or playing cards. Cyclists and tricycle-riding
coolies weave by. Now they crowd past the bar huts,
which narrow the street below the 3.5 meter-width
traffic law required for passage of fire tenders. Hence
the letters to the district and city fire departments,
and the local fire station.
Indignation has
forged a powerful, well-connected community in the
apartments, bringing together doctors, engineers,
housewives, lawyers, property developers, retired
officials, and teachers. Many foreign residents are
ethnic Chinese, some returning to their birthplace with
new ideas, believing laws rule China now, not officials'
fiat.
"Overseas Chinese returning is a very
important trend. The older people I have met in the
neighborhood still believe they cannot stand up to the
government. It is our duty to fight for our legal
rights," says a Chinese-American retired realtor asking
that only her surname Wang be used. "You are going to
see more and more of this happening. These people are
less afraid, they have seen democracy work and are not
afraid to strive for their rights," she said.
Residents' dogged inquiries with Jin An District
government bureaus, maintaining a wall of bureaucratic
silence, nonetheless revealed laws broken, and their
inquiries raised questions about the project's dubious
background, suspect planning and zoning practices, and
quite possibly corruption.
Residents say they
were never consulted about the changes to their
neighborhood - no hearings were held, in violation of
what is supposed to be the law. No project notices were
posted. Some trees were cut down in an adjacent public
green to make way for the project. No official licenses
or permits have been issued by city planning,
environmental and other departments. Residents say that
all the district officials do is flourish bits of paper,
actually application receipts, claiming them to be the
requisite permits.
A few ugly confrontations
but no violence Residents also had strung huge
posters from their balconies protesting the bars,
demanding answers. These were later removed so as not to
violate a law against unauthorized outdoor banners.
Recently they pasted posters inside their windows. There
have been a few ugly confrontations with police, but no
violence.
Often failing to meet the responsible
officials, residents have been sending letters to city
government and party officials, detailing the broken
laws and irregularities. Petitions were fired off, some
with 167 signatures, among them 69 foreign passport
holders from a dozen countries worldwide and another 10
with Hong Kong and Taiwan passports.
Residents
did discover that officials had offered bar leases for
as long as 20 years, contravening official assurances
that Beer Street would close after three months.
"It is still very, very difficult to fight the
government. You need a lot of time, money, energy,
knowledge and determination. We are somewhat unusual in
that we have these resources," said a Canadian, speaking
on condition of anonymity, who once worked in the public
affairs division of the city of Toronto.
Qinghai
Road is where old and new China tussle. To many
officials' umbrage and surprise, brave souls are
challenging them with mere words, bits of legal paper -
the law. Such cases present a conundrum for the
judiciary, all too well aware of local officials' power
to make their lives difficult.
"It is a trend,
as there are laws allowing people to sue the government.
But it will take time. People have rights. The courts
need to change their mentality to act neutrally, to
apply the law fairly. Right now it is hard to say if the
judges are changing their mentality, however more people
are winning cases against the government," said the
retired legal professional.
Lawsuits complex,
expensive, time-consuming People have little
choice but to petition Beijing or take their grievances
to the courts, a complex, expensive and time-consuming
exercise, because a public ombudsman responsible to the
public and able to rectify mandarins' mistakes does not
exist yet. Such independent oversight is apparently
under consideration, but unlikely in the near future.
Whether this is by design or because central government
lawyers are busy scribbling other laws is unclear.
Cases such as this are increasingly well
publicized, as bitter competition forces newspapers,
somewhat critical of inadequate government policies, to
reflect their readers' concerns - this in spite of local
Communist Party media owners and publishers.
Consequently some officials, at least, are
learning of the new reality: people really will exercise
their rights. Increasingly the Communist Party realizes
that it must respond to the people, tackling discontent
and strife head on, if it is to retain the people's
consent to govern.
"Because cases of the people
versus the government are increasing, officials are
starting to be more careful," said the retired legal
professional. "Now the officials have restrictions on
their actions that must be followed. It makes it harder
for them to act, however it takes time for them to
become familiar with the law, to fully understand what
is legal and illegal."
Many leading officials'
attitudes to the law are mired in the past. "Government
officials are notified and trained regarding new laws.
But many still have the attitude that, well, it's just a
new law. It takes time to have an effect," the former
legal professional said.
Those attitudes are
partly because the public, especially outside big
cities, remains ignorant of new laws, their conception
and views of officials and government little changed
since before 1949, when the communists took over. Such
ignorance creates space and fertile ground for
corruption to flourish. "I think the government needs to
go further, to educate the public about new laws," the
former lawyer said.
While China's laws are
improving, the bureaucracy struggles to implement
mechanisms outlined in the law and provide training for
officials charged with abiding by or implementing the
law.
Even traffic laws are
misunderstood A new national traffic law
effective May 1, drawing heavily on similar laws refined
over decades in the West, caused an uproar. Badly
explained by officials and some journalists, motorists
mistakenly understood that the law made them responsible
for all accidents involving cyclists or pedestrians,
even if the injured parties were reckless and the
accident was not the motorists' fault. Police struggled
to enforce the new law because training, procedural
guidelines and even paperwork were not ready in time.
Before Deng Xiaoping began steering China
towards capitalism in 1978, detailed laws were few.
Party cadres and government officials, many of them
poorly educated, filled the gaps, and their arbitrary
decisions made for inconsistent law.
Since
communism effectively ended in 1978 with the beginning
of the economic reform era, the need for well-drafted
laws has grown, if for no other reason than that the
market works best when nurtured by good and consistently
applied rules. China is now passing hundreds of laws,
which by 2010 at the earliest, will comprise a modern,
complex legal code, largely inspired by best practices
in the West.
"The higher levels of government in
Beijing or Shanghai stress justice. But the local
government people, especially departments under the
district governments, still think that if their boss
tells them to do something, it is right irrespective of
the law," said the former legal professional. "They are
used to this kind of way, they don't realize that the
government is bound by the law."
Enforcement is
the great test of intentions to make everyone - people,
party, state and government - equal before the law. In
many developing countries neighboring China, corruption
enfeebles enforcement. Leaders, from Chinese President
Hu Jintao down, attack corruption publicly as the
nation's - the Communist Party's - public enemy number
one.
Words are not their only weapon. China
executes the corrupt, not just the small fish either,
suggesting that graft may not yet have permeated power's
highest levels. Endemically corrupt Indonesia and
Thailand, where graft scandals often implicate ministers
and leaders, rarely arrest, let alone prosecute or hand
out tough punishments, for corruption.
Given all
the residents' campaigning, the word is now that Beer
Street's bars will be allowed to open for three months,
in order to save face, after which they will be
demolished. Whether Qinghai Road’s residents win or lose
though, China wins. Each time the people turn to the
law, the law's supremacy is advanced. One day it may
triumph.
(Copyright 2004 Asia Times Online Ltd.
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