The orignial article is from Asia Week, 9 November 2001
Order In The Court
Laborers ravaged by poor work conditions win a major class-action lawsuit in China, a sign that ordinary Chinese are starting to find justice in the legal system and that the authorities are finding a way to defuse potential unrest
By SHAI OSTER
Zhang Fanqiao jumped at the chance to leave his poor village in the mountainous border between China's Zhejiang and Fujian provinces. A man from the county seat was recruiting workers to dig a 100-meter tunnel on the road connecting the gritty northern coal and steel production centers of Shenyang and Benxi, in Liaoning province. Conditions were harsh cold wind, freezing rain. And each time workers blasted the rock, they raised choking dust so thick they couldn't see the hand in front of their faces. But none of the 200 men drafted from Taishun county complained. At $5.50 per six-hour shift, pay was good, and they ate meat with nearly every meal.
For three years Zhang and his coworkers labored day and night. Then, as the tunnel neared completion in 1996, dozens of the crew developed hacking coughs, chest pains and breathing difficulties. Zhang, a former soldier who used to be able to run for miles, found himself winded just from walking and would wake up in the middle of the night gasping for breath. One by one, workers began to die. The cause? Fine silicon dust particles they inhaled while digging, unprotected by masks, had ravaged their lungs with silicosis. Five years ago, the story would have ended there, with a few protests or appeals to the authorities before despair and death silenced Zhang and his fellow farmers. But they chose a different fate: they sued.
Last week, the verdict of what became one of China's highest profile class-action lawsuits was trumpeted by all the major Communist Party-controlled newspapers and TV stations victory for the 192 farmers involved. A court in Wenzhou city ordered two construction companies and Chen Yixiao, the man who recruited the farmers, to pay $27,500 to the families of the 11 farmers who died. The survivors won from $4,700 to $47,050, depending on how ill they are. That's a huge change from a few years ago, when wrongful death decisions barely reached $1,200. While not the first class action, the Wenzhou case set new standards for damages and showed how even illiterate farmers have begun to put their faith in what was one of the weakest arms of China's government the courts. It also showed that both courts and the government have grown more comfortable with class-action lawsuits a legal tool they generally shunned because of the political overtones of groups of people banding together with a common cause.
The path to the courthouse was tortuous. At first, the villagers just tried to resume their lives. But as the medical bills and deaths mounted, so did their anger. They turned to Chen, a fellow villager and subcontractor for the Liaoning construction companies. When he refused to compensate them, the villagers held protests outside local government offices. An official task force was set up, but for two more years the only thing that changed was the number of dead. Last year, a group of 20 workers took their plea for justice to Beijing the traditional final resort for peasants seeking justice. Police detained them for causing a disturbance, although officers took their petition and passed it on. Returning home, the farmers were detained and beaten by local authorities.
The first glimmer of hope came in December, when Beijing ordered a review of the situation. Facing an angry populace and irritated higher-ups, Taishun county officials found a way out: let the courts decide. A group of lawyers conscripted to work pro bono sat down with representatives of the initial 62 plaintiffs. "At first, we were reluctant to join the lawsuit," says Zhang, 38. "We didn't trust the Taishun court at all. They're all Chen's friends." Looking at the lost lives and ability to work, the lawyers came up with a figure for the total damages: $24 million. "That was the first time we felt cheerful," recalls Zhang, who can no longer work to support his wife and children. The actual award does not come close (the total has not been revealed), but it's a start.
The first class-action type lawsuit in China was filed just over a decade ago, when about 1,000 farmers sued the local grains bureau in Sichuan for selling fake seeds. China's civil law code did not allow for such group suits. But fearful of unrest, the government pushed local courts to handle the cases quickly by trying them together rather than individually. The farmers won. In 1991, the legal code formally incorporated class-action suits, one of the few jurisdictions outside the United States to do so. But few cases were filed, partly because judges and lawyers remained unsure how to handle them.
China's lawyers and plaintiffs are growing more daring by the day. Earlier this year, 690 taxi drivers in Hangzhou city sued the municipal government after it decided to hike taxi license fees from almost nothing to $400. Tenants in a new housing project in Beijing sued the developer for breach of contract. Five law firms from across China banded together to present a suit against cigarette manufacturers for failing to warn underage smokers of the health risks. (The first two are moving forward, the last has been dismissed.) According to Beijing Politics and Law University Professor He Bi, more than 1,000 of the 100,000-odd suits filed each year at China's 4,000 courts are class actions.
The new willingness to sue stems from rising awareness of legal rights, an increasingly professional judiciary and more lawyers, says Tang Weijian, a law professor at People's University. Also, while under the Maoist system, individual Chinese looked to their employers their work units to feed, house and care for them. Now that this so-called iron rice bowl has been shattered, they find they must seek support in other places. "Under a market economy, when somebody's body is hurt, you should fight for it. You're aware of your value," Tang says.
Perhaps more important is the government's change in attitude. Many courts still turn down class-action suits because of their political overtones. "The impact of a class-action suit on society is very different from a regular case," says Winston Zhao, lead lawyer at the Shanghai offices of U.S. corporate law firm Jones Day. One person pursuing a lawsuit remains an individual. Many people jointly pursuing a lawsuit might form the kernel of an independent civic movement which if centered on an issue like labor rights could look to the authorities like a political threat. But Beijing may sanction some class-action suits because it wants to see those disputes settled in the courts rather than the streets. The heavy coverage of the Wenzhou case in the official media points to official support. Nearly all class-action suits have direct or indirect government backing, says Jonathan Hecht, a researcher at the China Law Center at Yale Law School.
But barriers remain high for those seeking redress through the legal system. Most courts are still in thrall to local governments. Few are willing to risk bankrupting a major employer regardless of the magnitude of its environmental or labor law violations. Many judges and lawyers are unfamiliar with class actions. (The cigarette lawsuit floundered when only one plaintiff signed on.) In some types of cases, the rules for trying them aren't in place yet. But the biggest problem isn't with the courts. Enforcement of decisions is weak at best.
The Zhejiang farmers have yet to see a yuan of their settlement. The court has frozen some $170,000 in Chen's bank accounts, but it hasn't been distributed. The farmers and their lawyers claim Chen has already dispersed most of his assets. And the farmers continue to bury their dead. "We need Chen to compensate for our lives," says Wang Yunkui, a 30-year-old villager who came down with silicosis after working in the tunnel. "We can't live much longer and without life, no amount of money has any meaning." With the number of labor disputes rising by more than 10% a year, it's likely others will soon be joining Wang in his wait.