24 September 2004

Amendment to China Labour Bulletin’s E-Bulletin No. 19:

NB: The first page of the item headed “Court Proceedings: Defence Statement on Behalf of Hired Labourer Chen Nanliu,” was inadvertently omitted from CLB’s E-Bulletin No.19, issued on 22 September 2004. We apologize for this oversight, and we are re-issuing the complete and amended item as follows:

Eight Arrested Workers from Stella International Shoe Factories Go on Trial in Dongguan, Guangdong Province – No Verdicts Announced Yet

At least eight detained workers from the large Taiwanese-owned shoe company, Stella International, have been tried on criminal charges of “intentional destruction of property” since late August, following a mass protest by workers at two of the company’s shoe factories in the southern Chinese city of Dongguan on April 21 and 23. The first trial, of five workers from Stella’s Xing Ang factory, took place at the Dongguan Municipal People’s Court on 25 August; the second trial, of three workers from the company’s Xing Xiong factory, took place at the same courthouse on 8 September. Both trials were held “in camera” because some of the defendants are under 18 years old.

On the evening of 21 April, more than 4,000 workers staged a mass protest at the Xing Xiong Shoe Factory over low wages, wage arrears and the poor meals provided at the factory’s canteen. The problem that directly sparked off the protest was the factory’s decision to reallocate the workers’ overtime hours from the weekend to weekdays, resulting in substantially lower overtime rates being paid. Two nights later, on 23 April 2004, about 1,000 other workers at Stella International’s Xing Ang Shoe Factory staged a similar mass protest. Both protest actions turned rowdy: some machinery and other company equipment was damaged and a manager at one of the factories was injured. Around ten workers were secretly detained by police shortly after the two mass actions, and dozens of other workers are said to have been fired for participating in the protests.

The Shengzhi Law Firm, based in Beijing and headed by Lawyer Gao Zhisheng, represented six of the detained Stella workers at their separate trials on 25 August and 8 September. No verdicts have yet been announced on any of the eight defendants in the two trials.

An edited translation of Lawyer Gao’s defence speech on behalf of Xing Ang worker Chen Nanliu is presented below. (CLB has recently also received copies of the defence statements made by Gao’s law firm on behalf of two of the detained workers from the Xing Xiong factory, and they contain similar points and arguments as those made on Chen Nanliu’s behalf.)

The Stella Trials: A Turning Point in the Chinese Labour Movement?

Lawyer Gao Zhisheng’s defence statement on behalf of Chen Nanliu constitutes a landmark event in modern Chinese legal history. It is an extraordinarily bold and impassioned document, and it turns the whole focus of the case away from the workers who (as Lawyer Gao frankly admits) engaged in “inappropriate behaviour” during the mass protest at the Stella factory on the night of April 23, and towards the abusive and unfair employment practices of the Stella company management. In effect, Lawyer Gao places the Stella management in the dock, rather than the workers.

The defence statement consists of two parts: first, the legal arguments as to why the court should find Defendant Chen Nanliu and his co-defendants innocent; and second, the wider social arguments – focusing on the exploitative working conditions at the two factories where the protests took place simultaneously – that explain why the Stella workers were driven to stage such a massive protest action on April 23 and why the workers’ anger eventually led it to turn violent. Below, we provide a full translation of the second part of the defence statement.

The first part of the statement went into considerable technical detail about the specific legal aspects of the charges against Chen Nanliu, and these can be briefly summarized as follows:

• Lawyer Gao concedes that the mass protest action by Stella workers on the night of April 23 got out of hand, that acts of violence did occur, and that it therefore involved “inappropriate behaviour.” However, none of the prosecution’s evidence contains anything to indicate that this “inappropriate behaviour” had been premeditated in any way – that is, that the workers involved had started out with the “subjective intent” to damage or destroy property (a necessary legal requirement for a verdict of intentional destruction of property.)

• Lawyer Gao argues persuasively that it was a spontaneous mass action by the workers, prompted by their intense anger and resentment towards the Stella management for having withheld or seriously underpaid their wages for a several-month period; for the allegedly very low quality of the food provided in the factory’s canteen; and for the excessively long hours (11-hour shifts on four successive days a week, with only one weekly rest day) that workers had to put in at the factory.

• According to Lawyer Gao, none of the copious witness statements assembled by the police and prosecution authorities in preparing for the trial contained any actual evidence linking Chen Nanliu personally or directly to any of the specific acts of violence or property damage that occurred at the Stella Xing Ang Factory on the night of April 23. For the court simply to state arbitrarily and without any evidence that Chen had committed acts of property destruction was tantamount, the lawyer argued, to unlawfully singling him out as a scapegoat for the mass protest action.

• Similarly, the police and prosecution had failed to provide any witness testimony or other evidence to support the charge that Chen Nanliu had in fact “instigated” or “led” the protest action and the ensuing violence. On the contrary, noted Lawyer Gao, many of the police’s witness statements – and even one of the Stella factory managers – had specifically stated that the entire incident had clearly been a spontaneous action carried out by the discontented workers without any prior planning, forethought or coordination at all. So here again, Chen Nanliu was clearly being unfairly scapegoated by the police and prosecution authorities.

• Finally, Lawyer Gao indicated that the entire trial had evidently been pre-planned and pre-decided upon, since: “It lasted only one hour and six minutes in all, in a case involving five separate defendants, five lawyers and several hundred pages of case records”; and “The most prominent feature of the trial has been the court’s complete lack of interest either in the facts or in issues of law”; and moreover: “Any speech lasting more than three minutes has simply been cut off in mid course by the judges.”

Defence Statement on Behalf of Hired Labourer Chen Nanliu, Charged with Intentional Destruction of Property, at his Trial of First Instance

Chief Judge and other members of the judicial bench:

Defendant Chen Nanliu has been charged with committing the crime of intentionally destroying property and has been held in custody for the past four months on this account. As Chen Nanliu’s defence lawyer, I have looked into all the objective facts and circumstances of this case and have gained a comprehensive understanding of it, including the nature of the defendant’s actions and behaviour and also the nature of the legal consequences thereby produced. Just as in all other types of criminal proceedings, I, as the defence lawyer in this case, and as a legal worker for society, have had to acquire a thorough knowledge of all aspects, and every single detail, of the present case. After reading through all the evidence, however, I must confess that a sense of anxiety and sadness has overwhelmed me. The case before us today is one that would cause anyone holding respect for the dignity and freedom of our citizens to ask the question: has the prosecution on criminal charges of the various defendants in this case been motivated by the requirements of China’s Criminal Law and the need to punish wrong-doers – or has it, by contrast, been motivated by the particular needs and requirements of those who have brought this prosecution? Furthermore, we must ask the question: was this prosecution an inevitable result of the actions and behaviour of the various defendants – or was it, by contrast, prompted by certain extra-legal considerations and values, one characteristic of the traditional mindset that says: “Whenever such a big social incident as this occurs, a group of people has to be caught and sent to jail to set an example to the others”?

[Part I omitted: See summary above.]

II. On the Question of the Social Factors Leading Up to the Defendant’s Actions

Your Honour, the defendant Chen Nanliu did indeed take part in the inappropriate action taken against the [Stella] company on 23 April by around 1,000 people; the action taken was inappropriate and it objectively resulted in a certain amount of damage to property. The accused has already paid a very high price for this: he has lost his freedom and his job; and given current Chinese social attitudes towards those who have been jailed for any reason (irrespective of whether or not the detention by the police was justified or not), this fact will probably have an adverse affect upon his working opportunities for the rest of his life. Moreover, the inappropriate collective action taken at the Xing Ang Shoe Factory was the result of certain clear and pressing social causes: namely, the fact that our society today permits and encourages the most naked forms of social injustice, together with an unrestrained level of gross and inhuman exploitation of the workers that has reached truly reactionary proportions. Our extensive inquiries into the circumstances of this case have revealed that the Xing Ang Shoe Factory workers have only one day off a week, and they are required to work for no less than 11 hours each day on Mondays, Tuesdays, Thursdays and Fridays – not including time taken for meal breaks – and for this they are paid a wage that cannot even support normal life. On top of all this, the factory sometimes simply doesn’t pay them their wages at all. Indeed, the immediate cause of the collective incident staged by the workers on 23 April was that even the miserably insufficient wages that they were due had not been paid to them on time. As the following facts clearly illustrate, this left the workers facing a genuine crisis of survival:

1. According to the statement of Wan XX, given at 8.00 PM on 24 April: Wan stated that the reason for the riot was that the wages paid to the workers were both too low and also not paid regularly and on time; the analysis offered by witness Cai XX was identical to this. The appalling thing was that Wan XX’s monthly wage came to only 450 yuan, and out of this he had to pay no less than 400 yuan in rent for his accommodation – leaving him only 50 yuan in hand per month, which was hardly enough to pay for 10 days of basic living expenses. From this example we can see that the problem facing the young workers at the shoe factory was not just one of wages: rather, it is no exaggeration to say that it was a fundamental problem affecting the workers’ very survival.

2. At 9.00 PM on 24 April, the interrogation record of Chen Nanliu clearly and unequivocally reveals that the already miserly wages paid to the workers had just recently been lowered still further by the factory management – this was the immediate and direct causal factor that sparked off the inappropriate collective action by the workers. And at 10.00 PM on 24 April, the witness record of Wan XX states that a view held universally by the factory workers was: our boss is not a real human being – he always owes us money and even after we had worked at the factory for two whole months, all we got out of him was 100 yuan.

3. At 8.00 PM on 24 April, the interrogation record of Qu XX states: the reason for the so-called disturbance at the factory was that “the wages are too low and the meals are dreadful.”

4. On 16 July, the defendant Chen Nanliu again replied to questioning from the prosecutor by stressing: “Our wages were too low and the food was lousy, so we wanted to create an incident that would make the boss take concrete action to improve our living conditions.”

5. At 5.00 PM on 24 April, the witness record of Jiang XX states: the employees were all unhappy with the company because of the wages issue.

6. At 2.00 PM on 27 April, the witness record of Liu X notes: around 1,000 people took part in the inappropriate action, and it was all because of the wages issue.

7. At 10.00 AM on 27 April, the witness statement of the factory’s chief personnel manager, Liu XX, records him as denying that wages were too low or that the food was bad; however, his own statements reveal that what he regarded as minor issues were nonetheless ones that had a sharp and direct adverse bearing upon the lives of the workers – for example, he testifies clearly that on four days of the working week, the workforce had to put in 11 hours of time on the shopfloor.

Your Honour, the defining hallmark of a crime lies in criminal wrongdoing; that is to say, in what is commonly referred to as guilt. What took place on the night of 23 April – the inappropriate mass action that is being judicially examined here today – is not something that should in any way be viewed in terms of guilt; and if any guilt is to apportioned in this matter, then it should not be the various defendants who are on trial here today, Chen Nanliu among them, who should have to bear that guilt. Where the real fault – or perhaps one should say the real guilt – lies, is both in the broader social environment and also in the more specific micro-environment of the shoe factory that served to spark off the inappropriate collective action by the workers in the first place. With regard to the broader social environment, the unfair and unequal relations between employers and workers is a worldwide phenomenon, but one of the most extreme and abusive examples of this generalized unfairness in labour relations is nowadays to be found right here in China. The inequity of workers within our current system of labour relations is absolute; the channels for resolution of labour conflicts of all kinds in our society are either totally blocked or non-existent; and judicial protections for the rights and interests of the labourer are functionally absent. When on top of all this, my fellow defence lawyers and I read through the case files and saw the urgent and immediate crisis of survival that confronts the workers in this case, together with the appalling conditions of labour that have been imposed on them by the company, we said to ourselves: This is just like the [pre-1949] situation of cold-blooded and ruthless exploitation of the workers by the capitalist that was depicted by Mao Dun in his famous novels of that period – the very same situation that caused the workers then to rise up in revolutionary rebellion! What distinguishes the present situation, however, is that in those days the Communist Party stood alongside the workers in their fight against capitalist exploitation, whereas today the Communist Party is fighting shoulder-to-shoulder with the cold-blooded capitalists in their struggle against the workers! So we can see clearly what kind of a tragic future lies ahead for the workers struggle in our country.

Take the example of Wan XX: after working like a brute animal all month long, he received a salary of only around 450 yuan, of which 400 yuan went to pay his accommodation, leaving him only 50 yuan to support himself on for the entire month. I defy anyone, no matter if one thinks of every money-saving trick and device known to man, to explain how a person can possibly be expected to maintain his basic health and livelihood on such a pitiful sum of money as this. To have only 50 yuan left to survive on for a month places a person in a psychologically terrifying situation. But what is even more unimaginable and disturbing is that in Wan XX’s, Chen Nanliu’s and all the other workers’ cases, for the two months of March and April the company paid them all only 50 yuan per month in wages. And there was absolutely no transparency as to why the company had seen fit to act like this towards the workers: first, the company made no effort to explain the situation; and second, no actual channels of communication existed through which any such explanation could have been made. The net result was that not one of the factory’s workers had even the slightest idea as to why they were suddenly only being paid only 50 yuan a month.

Another very serious problem can be seen from this state of affairs: the functional absence of any channels for dialogue or communication between employers and workers. The company is entirely accustomed to following the Chinese pattern of thinking about such issues; but coming as it does from a democratic society with rule of law, it should be well aware of the socially dangerous consequences that can ensue from a company attitude of despising and disregarding the rights and interests of the workforce, and instead pursuing a policy of absolute gain for itself and absolute harm to the workers. Such behaviour is not simply unlawful and immoral, it is also, in a very real practical sense, highly dangerous. During my meetings with the defendant Chen Nanliu, my client, I learned that not once during his two years of working at the Xing Ang Shoe Factory did the company ever tell him that he was entitled to sign a labour contract with the company; moreover, when I asked him whether there was a trade union branch [at the factory], even after repeated attempts to explain to him what a trade union was, he still had not the slightest idea of what such an organization consisted of or what it did. I am reasonably confident that this was not solely due to my lack of explanatory skills. Having an effective institutional channel of communication between workers and company is the basic systematic safeguard and guarantee for stable labour relations, for safety in the workplace, and also for peace and stability in society as a whole. In China, however, this fact has been openly neglected and disregarded throughout the past half century and more. The Xing Ang Shoe Factory is a large enterprise employing several thousand workers, but it does not even have a trade union branch (in China, of course, there is little difference in terms of workers’ rights protection whether or not a trade union organization is present.) Meanwhile, the almost complete scarcity of any judicial protections for workers’ rights and interests leaves Chinese workers without any defence against the predations of their employers, such that so long as they have a breath left in their bodies they will endure almost any indignity and injustice, simply to survive. The pathological greed for profits on the part of the factory owners, together with the absolute protection afforded to corrupt capitalists by our judicial system – these, and these alone, are the real main reasons why this incident erupted [on 23 April] in the first place.

Your Honour, when I met with my client Chen Nanliu [in jail] on 18 August, I saw before me an extremely thin and poorly looking young man of just over 20 years of age; and three times during our meeting he had to rest his head on the table out of sheer exhaustion and ill-health. Frankly speaking, I was utterly shocked by his general condition. I appeal to this Court to take full notice of the social factors I have outlined in my statement here today, and to show sympathy toward my client for the high spiritual and psychological price that he has already had to pay. I ask you – on the basis of law, humanity and conscience – to find the defendant Chen Nanliu innocent of all charges, in order that the judgment of this Court may stand the test of history.

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Lawyer Gao Zhisheng,

Shengzhi Law Firm, Beijing,

At the Dongguan Municipal People’s Court, Guangdong Province,

28 August 2004