China: Solidarity Under a Song What a Strike Tells Us*

Feng Xiang**

Abstract

The right of solidarity has been in legal limbo in China for decades. But in recent years an increasing number of strikes ended in collective negotiation, mediated by government, congressional and trade union officials, instead of the familiar story of arrests and prosecution. This article argues that these changes cannot be adequately explained by the “unseen hand” of the market, the policy of urbanization or better networking technology. Rather, they are essentially due to a conscious effort on the part of strikers to re-politicize their walkout, whereby to overcome barriers of the “rule of law” and revert what the law defines as contractual employment disputes to their original status: the breaking, repair and reorganization of the Party-masses relationship. The solidarity thus regained is not a lawful right, but an avatar of justified power, authority and even people’s sovereignty, all captured by a single Chinese character, “quan”. Key words: solidarity; right to strike; trade union; “quan” as power/authority/sovereignty/right; the PRC constitutions.

Let’s build a new Great Wall

May 17, 2010, Monday. Early in the morning, Tan Guocheng came to his shift at the Honda factory of Nanhai District, Foshan City in Guangdong Province. Tan was a 24 year old “migrant worker” from Hunan, a neighboring province; and the factory, commonly known as Honda Nanhai, manufactured automobile parts. But that morning Tan did not turn on the machine. Instead he pushed a red emergency button nearby. At once a “humming” noise filled the air, and the entire production line automatically stopped. As planned, Tan and a group of workers walked out. Others stood there, hesitating, watching, but soon the ranks of the protestors grew as they assembled in the factory’s basketball court. Thus began the great strike of Honda Nanhai. Ordinarily, in the past, a “mass event” (qunti shijian) like this ended quickly, “mass event” being a euphemism for any forms of unapproved public gatherings, demonstrations, strikes or riots. This time, however, the Honda Nanhai “industrial action” did not submit to the usual measures of control by the management and the company’s trade union: threats of layoff and individual offers, beatings and calling in the police. Nothing worked. Even after Honda summarily fired Tan and another leader, and after the company asked all employees to sign a pledge not to join the walkout in exchange of a 55 yuan (6.9 euro) monthly bonus, the strike continued. The protestors rallied at the factory

gate, all in white uniform and surgical masks to avoid being identified by surveillance cameras and targeted for reprisal. In unison they sang the national anthem: “Arise, ye who refuse to be slaves! With our very blood and flesh, let’s build a new Great Wall....” The anthem is a historical battle song, entitled March of the Volunteers; it was born in 1935 during the war against Japanese aggression, which later evolved into World War II. The strikers also went on the web and formed QQ (a Chinese version of internet “chat room” service) communities, where they addressed each other as “comrades” or friends “of one will” (tong zhi). In other words, the migrant workers restored an old revolutionary personal appellation, “tong zhi”, from the days of Dr Sun Yat-sen, a century ago, to its beautiful original meaning -- a usage shared by China’s gay subculture for some time. For normally and officially, “tong zhi” is used within the Chinese Communist Party (CCP) at serious and ceremonious occasions, and in daily life people would feel embarrassed or even offended if addressed “tong zhi”. So the strikers persisted, for 19 days. Their demands were firm and clear: (1) reorganizing the company’s trade union, (2) a pay raise of 800 yuan (100 euro) per month, and (3) no reprisal. Perhaps due to their highly disciplined demonstration of solidarity as well as moral courage, which drew great sympathy among the public and netizens – or perhaps just by accident – on May 28 the CCP organ People’s Daily published a special report on the Honda Nanhai strike. According to observers, this is unprecedented. For the first time in over three decades the chief organ of the Party’s propaganda apparatus gave such lengthy coverage of what it described as a “cessation of work on account of a labor- capitalist dispute”. What is more, the report carefully maintained a neutral position and pointed no fingers at the migrant workers or sided with the management. Meanwhile many scholars and commentators called for a “rule of law” strategy in lieu of the usual harsh suppression under the prevailing policy of “keeping stability” (wei wen). The latter, in their words, is likely to aggravate the conflit and “drive the masses of workers to become opponents to the Party rather than what the Party should rely upon”. Eventually, with the battle song reverberating on the factory premises, the workers elected “spontaneously” 30 delegates and engaged legal counsel, who helped draft their 6-point negotiation plan; and they decided to accept the mediation by a CEO of a state car maker in his capacity as a member of the National People’s Congress. On 4 June, a day after the strikers published on the web their “Open Letter to Workers and All Walks of the Society”, the management agreed to sit down for collective bargaining. Rounds of intense negotiation followed. With the help of the mediator and legal counsel, the two sides reached an agreement on a monthly pay raise of 500 yuan (62.5 euro). The agreement took effect by a vote, with 25 of the 30 delegates endorsing it. And the protestors returned to work on 5 June. What happened next was a landmark achievement or progress in the labor history of the People’s Republic of China (PRC), for the company’s trade union was reorganized pursuant to the strikers’ demand. The pressure was said to come from the provincial Party authorities, who apparently took note of the

workers’ angry denunciation of the union, calling the unionist thugs “yellow” saboteurs – not simply because they wore yellow caps. In theory, the Party consists of what is called the “pioneers of the proletarian class”, and the trade union functions as an organized representative of the workers’ best interest. Now the workers at Honda Nanhai not only had no trust in the union, but loathed it. Indeed throughout their negotiation with the management, the union was totally ignored, as if it had been non-existent. Such open hostility reportedly was a great embarrassment to the officials of the provincial trade union. Consequently a team of union cadres was sent in to implement a 6-month program of “norm building” and to offer “guidance”. The old rule of appointment was dropped. The new union officials were not chosen from the management or “landed from the sky”, as people say, meaning appointed by the government. This time they were elected by workers from among themselves, all union cadres in the factory, from team leaders, workshop representatives to the chairman and his deputies. Six months later, in December 2010, the democratically elected new union led the collective bargaining on the year-end bonus, resulting in an increase from the equivalent of two months’ salary to that of three and half months’. Then in February, for the negotiation on the 2011 salary scheme, the new union conducted detailed consultation among workers and with their full support made a counteroffer to the management. In the ensuing bargaining, the union delegates seemed to have the backing of the provincial trade union as well as competent legal counsel. Again, the negotiation was intense and almost collapsed – on the verge of calling for arbitration, and there were procedural hurdles for the labor arbitration committee to take on a dispute of collective bargaining under the relevant regulations – but both sides made concessions and agreed on a 27% pay raise. The new union’s success was hailed by observers, labor experts and union officials alike as an exemplar for the handling of labor disputes. Commentators and pundits also suggested that the Honda Nanhai case may mark a new chapter in the trade union’s democratization. Indeed, the reorganization of the Honda Nanhai union took place at a critical moment. For 2010 saw a sharp increase of labor disputes nationwide, especially in privately owned and foreign-invested enterprises. With this new development, it is hoped that labor unrests and strikes will be fewer, or at least be stabilized, as the democratically elected unions play an more active role in collective bargaining; and it is further hoped that, more often than not, such bargaining will happen ex ante rather than ex post facto. To put the Honda Nanhai case in the larger social and economic context, several questions are in order here: First, what are the main factors that contribute to the “eruption” of labor unrests and collective actions in recent years, in particular strikes? And in the case of Honda Nanhai, are these factors relevant? Secondly, do workers have a right (quan) to strike under Chinese law or not, on the books or in reality? Thirdly, whatever legal status the strikers and their demands may be, what can we expect the future of China’s labor movement to be? Let us consider these questions one by one.

Who are the strikers?

One obvious factor to consider is: who are the strikers? A common characterization has to do with what is called in western media “migrant workers”. The stereotypical description is like this: a young man or woman from a remote, poverty-stricken village in one of the inland provinces. He or she comes, with a group of villagers or through the help of a relative or a friend, to a coastal city and finds a job and earns a meager living. Often the treadmill employment environment drives workers to injury and illness. And in exteme circumstances, as in those notorious cases, the desperate protestation amounts to serial suicides; for instance, young men and women jumped from buildings to death at some facilities of Foxconn, a computer maker and home electronics giant and a Fortune 500 company. But to call such a worker a migrant is, strictly speaking, a misnomer. The Chinese term is more accurate, “peasant-worker” (nongmin gong), for that person’s official status in terms of household registration (houkou) and social standing is a peasant, not an urban resident. Without proper household registration, the peasant-worker and his/her children have only limited access to education, employment, medical care and other urban welfare benefits. Yet China has been on the road of “reform and opening-up” for over three decades, and millions of peasants have left their villages to make a living in the cities. Today the majority of peasant-workers are of the second generation. These young peasants are better educated than their parents, having been exposed to the lures of urban life and commercial society at an early age. While the first generation rarely took collective actions, for various reasons, the second generation is much more prone to staging a “mass event”, hence more frequently a headache for both the management and government. In the Honda Nanhai strike, for example, the “instigator” and one of the organizers is the 24 year old Tan, as mentioned above. Before his employment by Honda Nanhai, he toiled with little pay at another Hongda facility in Guangzhou as a temporary hand. He was quickly disappointed with his salary at Hongda Nanhai, about 1,200 yuan (150 euro) per month, with which he could hardly make ends meet. And he found out through media report on the internet that despite the global financial crisis, Honda’s operations in China were actually doing extremely well with huge profits forming a significant part of the Japanese giant’s global revenue. He decided to resign after the spring festival (the Chinese lunar new year) and knew others were thinking about the same. But he also talked with fellow workers about the possibility of organizing a strike before leaving the factory, and many said they would go along with him. So Tan handed in his resignation in April, giving 30 days advance notice, as per the company policy and employment contract. This was also meant to be a symbolic act, showing everyone that he had no personal insterest in the outcome of the walkout, whether success or not. The rest is history. Later, in an interview with a Hong Kong weekly, Tan emphasized that throughout the “mass event” the strikers adhered to the principle of non-violence and civil disobedience. The idea was inspired by Mahatma Gandhi, he said;

formerly, not even a decade ago, who would expect such foreign ideas and “educated” language on the lips of a peasant-worker? As soon as the strike began, he circulated a notice among workers, asking them not to damage company property, equipment or tools, so as not to give the other side an excuse to call in the police. When the management and trade union tuned up pressure and threatened punishment, the strikers sang the national anthem in protest and got the real time photos, videos and footage on the web which spread the news of the walkout in a second throughout the country. So in the verses of the March of the Volunteers, the workers exerted their unity in civil disobedience: “Arise, arise, arise! Millions of masses of one mind, Brave the enemy’s gunfire, March on! Brave the enemy’s gunfire, March on, march on, march on, on!” Noticeably, however, Tan and his fellow strikers did not pursue any legal options, as scholars and commentators suggested, under the rhetoric of “rule of law”. In other words, the strike was a success despite its lack of legal protection. How did this come to be?

A right in legal limbo

Whenever there is a labor unrest and the strikers are fired or experienced threats, or face arrest and prosecution, a legal question is invariably asked: do workers in China have a right or freedom to strike? For human rights lawyers, constitutional scholars as well as labor activists, this question is like a “thorn in the flesh” for three decades, a real torment from Satan’s messenger (2 Co 12:7). For the agony was caused by none other than the PRC Constitution 1982. Prior to 1982, the freedom to strike was enshrined in unambiguous language in both the Constitution 1975 (art 28) and Constitution 1978 (art 45). There this freedom is listed in a group of “citizen’s rights” including those of speech, correspondence, press, assembly, association, demonstration, as well as the “four great freedoms” endorsed by Chairman Mao Zedong in 1957, namely the freedom to air one’s views, criticize authorities, take part in debates and put up big-character posters. In 1982, the National People’s Congress (NPC) adopted a new constitution. Following the CCP Central Committee’s resolution on the Cultural Revolution (May 1966~October 1976), the law makers duly deleted the term “strike” from the citizen’s rights provision, along with the “four great freedoms”. While the latter was officially repudiated as relics of the Mao era, the constitutional freedom to strike was also cancelled as “a product of the ultra- left trend of thought, incompatible with the interest of socialist development or with the concrete circumstances of our country”. “Since enterprises in our country all belong to the people,” the NPC legislative notes reasoned, “a strike that stops production is a damage to the interest of the entire people including the working class itself” (Chang Kai, p. 89, note 22). At the time of this legislative statement, it should be noted, China’s economic reform was at an initial stage, and the majority of enterprises were either state-owned or owned by collective entities (such as a People’s Commune or a rural township). The assumption is that urban workers as a class are now the “masters of the state”, who ultimately share the same basic interests and

long-term objectives with their “work units” (enterprises). Therefore any disputes that arise between the work unit and individual workers should be resolved by proper means other than a strike, such as “criticism and self- criticism” and reconciliation, so as to minimize the interruption and possible damages to the socialist economy. That of course is specious reasoning. For one thing, the economic reform, aka privatization, had already begun, and soon most state- and collectively owned enterprises would be transformed into private companies, or went into “bankruptcy” and sold – a process that would drive a large chunk of the nominal “master class” into unemployment and early retirement. The vacated jobs as well as those newly created were to be filled mainly by peasant-workers. And the peasant-workers are much “cheaper” and easier to “manage” than regular state employees, for, as discussed above, they lack household registration, being outside the urban social (and socialist) welfare system, and therefore are in a much weaker position than local residents individually to bargain for better pay, shorter working hours or fuller labor protection. Nonetheless, until recently, there has been strong opposition to statutory recognition of the right to strike, from the political establishment as well as industries, who viewed peasant-workers’ solidarity as a threat to private property rights, social order and economic development. Today, soem right-wing reformists and conservative media still refuse to budge, but scholars and labor activists generally agree that the constitutional cancellation does not mean that workers’ collective action is unlawful. They call for legal recognition of the “three labor rights” (laogong san quan) , namely the rights to organize labor union (right of solidarity), to collective bargaining and to strike. The preferred approach among moderate advacates is therefore one of “de-politicization”, which means to replace the current high-handed policy of “keeping stability” (wei wen) with a form of “rule of law”. There are a number of arguments for the worker’s right to strike. The weaker one is based on the adage “nulla poena sine lege” (no punishment without a law). It goes like this: though a walkout as a collective action is no longer one of the constitutional freedoms, it has never been outlawed specifically by any statute or administrative regulations. Therefore it should be allowed as long as it does not infringe upon a third party’s lawful rights or breach social order. More positively, one may argue that since China has acceded to the International Convention on Economic, Social and Cultural Rights, without any reservation, and that Convention at Art. 8 affirms the workers’ right to strike, China has an obligation to respect the citizens’ exercise of that right. And a stronger argument is to add that in China’s municipal law, some national statute can be interpreted to lend further support. For example, the Trade Union Law 2001, at Art 27, requires that, in the case of “an event of cessation of work or slowdown”, both the trade union and management “should” endeavor to “conciliate” and “resolve the event”. Is the phrase “cessation of work” not a description of a strke? The “should” provision appears to be based on an assumption that workers do have a right to strike, some legal scholars suggest. Unfortunately this interpretation is a bit over-stretched. For the statutory language is “an event”, not a “right” or “freedom”, and the law requires

only that the trade union and management “conciliate” and “resolve the event” and mentions nothing like workers’ right or freedom, as if they were outside the conflict. And from such language one cannot deduct or assume a vague statutory restoration of a right. Nor is the International Convention really being helpful, as it cannot be implemented without an enabling statute in municipal law, and the Trade Union Law is clearly not such a statute. One might ask if in practice, the judiciary or the People’s Court can offer some assistance toward a more “liberal” interpretation. This is unlikely at least for now. The conundrum is an institutional one, and familiar to China observers. Indeed even an occasional observer can not fail to notice this, and he happens to be one of the leading US jurists widely known and studied in China: Judge Richard Posner. Last year at a University of Chicago summer program on law and economics, Judge Posner delivered a speech to a group of young Chinese scholars. The pioneer cum doge of law and economics called himself an “outsider” so far as China is concerned, but remarked that since China is “a nondemocratic country with a tenuous commitment to the rule of law”, “in such a political culture… it would be a mistake for the judiciary to be pragmatic, or at least to be very pragmatic—that it would be better for it to be abstract and formal, and actually remote from practical and pragmatic”. And by removing themselves from the practical, the judges (in the manner of a Blackstonian judge) can say, “Look, all we judges do, we translate immemorial principles of justice into decisions. We’re not politicians; we don’t exercise discretion. We don’t consider consequences; so leave us alone.” (Posner, p. 3) Now the use of legal dogmatism by the Chinese “Blackstonian judge” playing the game of “the oracles of the law”, as recommended, is that approach rather too practical? But Judge Posner is right. The People’s Court is a weaker department in the Party and state apparatus. Therefore it has to be pragmatic to safeguard the little authority allowed to it, and like the law enforcement and trade union officials, the judges tend to interpret the law in a dogmatic way and, as a result, must deny the workers their right to strike. Consequently strikes and other collective actions continue to dwell in a legal limbo, as a constitutionally cancelled freedom.

Overcoming the law by a song

So the Honda Nanhai strikers sang the March of the Volunteers, while rallying in solidarity. By singing the historical battle song, the workers effectively said “No” to both the legality of the strike and the legitimacy of any act of suppression or hostility on the part of government authorities including the trade union. The strike cannot be legally protected because the Constitution has cancelled the freedom, and as a citizen’s right it has no statutory basis. But its illegality should not be an excuse for attack and suppression, because the national anthem has re-politicized the strike, making it a political expression rather than a mere action in economic demands. The anthem was composed by Nie Er, a musical genius, patriot and young communist who died in 1935, at the age of 23. The song has always been a

rallying call for the Chinese nation in solidarity. Singing the song is therefore like holding up portraits of Mao Zedong by demonstrators and protestors in today’s China. It is an effort to overcome the barrier of unjust laws and reach the Party directly without any intermediary such as the trade union, the government mediator, the People’s Court, etc. Thus when the strikers gathered at the factory gate or went into the streets singing the national anthem, the song is an act of re-politicization of their collective action. It recalls a powerful tradition of modern China, namely the 20th century socialist revolution. During the past three decades, China is said to have said farewell to the revolution; and in many aspects of social and economic life, as well as mainstream media propaganda, this is largely true. Today the country is embracing the market economy and employment relationships, fully engaged with the international trade and investments, almost as an upstart venture capitalist. Yet history is not entirely forgotten. As the workers utter the verses of the anthem or hold up portraits of Chairman Mao, the memory of the society comes back. That is why the strikers denounced the unionists who clashed with them as a “yellow union”. Not that the unionists wore yellow caps and followed instructions from the management, which they did, but because people have not forgot what Lenin once said of the socialist trade union. The trade union, he pointed out, should become a school, where workers learn to manage their factory, supervise economic activities, take part in the governance of the country, and guard against bureaucratic corruption. In a word, as the Bolshevik leader famously said, the trade union is “a school of communism”. And more familiar and closer to their hearts are Chairman Mao’s teachings. Did he not spell out the “sanctity of labor” (laogong shensheng), over 90 years ago, on May Day or the International Labor Day of 1921, for the first labor unions of Hunan Province in Central China? Specifically he urged the workers to strive for three “quan” – which means a weight of a steelyard, hence weighing, a judgement; hence power, authority or a situation of advantage, as well as an individual person’s rights – the “quan” concerning workers’ subsistence, labor and full harvest of [the fruits of] labor. As Mao explained, these “quan” mean that, first, not only working men and women are entitled to a decent living, but their families including children under 18 and parents beyond 60 years old, everyone in the world should have that entitlement, according to the same ancient principle that Heaven grants herbs and trees the same rain and dew, regardless green or grey, tender or aged, weak or strong. Secondly, for those between 18 and 60 years old, except those who refuse to earn one’s bread out of laziness, everyone is entitled to work, i.e., to hold a job. If for any reason the society does not have enough job openings, and some able-bodied workers have to be in “leisure”, then it is the society’s responsibility to pay them a salary as usual, since such unemployment is not a crime nor a sin. Thirdly, all the fruits of labor shall belong to the laborer, though practically speaking, that is not yet the immediate goal of the labor union. This last “quan” or weighing a judgment/power/authority/right cannot be fully realized till the overthrow of the capitalist class, both its mode of production and employment relationships, as people did away with it in Russia. What is more, Mao pointed out, the

provincial Constitution of Hunan, though on its face it looks like a grand legislation, it contains not a single word on these “quan” of workers in solidarity. When all these teachings are recalled and remembered, the “three labor rights” would suddenly sound rather familiar to the peasant-workers. And who can say that will not happen when the song on the lips and in the hearts of the strikers is born of the same history?

May 2013

*Submitted as a report to the doctoral seminar at the Institut d’Etudes Avancees de Nantes and the seminar entitled the Avatars of Solidarity at the College de France, June 2013. The author wishes to thank Prof. Alain Supiot of College de France and Dr. Samuel Jube, secretaire general, l’IEA de Nantes, as well as the seminar participants, for their kind support and invaluable comments. **The Mei Ru’ao Chair Professor in Law, Tsinghua University, Beijing.

References:

Chang Kai, “An analysis of the legality of strikes”, Zhanlue yu guanli (Strategy and Management), July/August 2010, pp. 82-90. Mao Zedong, Xuanji (Collected Works), volume 5, People’s Press, 1977. Mao Zedong, Wenji (An Anthology), 8 volumes, People’s Press, 1993-99. Richard Posner, “Economic analysis of law and legal pragmatism”, Beida falv pinglun (Peking University Law Review), 14:1, 2013, pp. 4-12. Wang Jing, “Collective bargaining and negotiation must be based on three labor rights”, Zhanlue yu guanli (Strategy and Management), Sept/Oct 2011, pp. 104-108. Yu Jianrong, “Without the right to strike, employees have no integrity”, Nanfeng chuang (A Window to Southern Wind), June 16-29, 2010, pp. 36-38.

Financial Times, “Migrant workers shape China’s future” (April 22, 2013): http://www.ft.com/cms/s/0/de19ac9a-a749-11e2-9fbe- 00144feabdc0.html#ixzz2RH9uoVEH Guangming (Light) daily, “The great political significance of the two no-denials” (7 May 2013): http://cpc.people.com.cn/n/2013/0507/c64102-21389761.html Negotiation delegates of the Hongda Nanhai strikers, “An open letter to workers and all walks of the society” (3 June 2010): http://blog.renren.com/share/270412171/2400436903 Xiaokang (Well-to-Do) magazine, “A full account of the case of collective negotiation at Hongda Nanhai” (8 August 2011): http://news.sina.com.cn/c/sd/2011-08-08/101422953422.shtml Yazhou zhoukan (Asia Weekly), “Tan Guocheng fired the first shot of China’s labor movement” (27 June 2010): http://www.21ccom.net/articles/sxpl/pl/article_2010061811663.html

appendix

The March of the Volunteers

Music: Nie Er Words: Tian Han

Arise, ye who refuse to be slaves! With our very flesh and blood Let us build our new Great Wall! The Chinese nation is at its most perilous hour, Everyone must roar a final time: Arise! Arise! Arise! Millions of masses of one mind, Brave the enemy's gunfire, March on! Brave the enemy's gunfire, March on! March on! March on, on!

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