By Yaxue Cao, published: March 9, 2015
China’s left foot wants to go north, and China’s right foot wants to go south. Both feet have the same goal, and, that is, to maintain the one-party rule.
When I first watched Chai Jing’s Under the Dome a week ago, my response was like everyone else’s: “Bravo!” In early 2013, shortly after the prolonged smog that cloaked much of China which Chai Jing mentioned at the beginning of her film, political science professor Wu Qiang at Tsinghua University wrote an article titled Amidst the Smog, I Hear the Bugle Call for a National Environmental Movement and China Change translated it. So, watching the film, my mind jumped, “the Bugle Call!”
But instantly, I had other thoughts, too, just like many others did: without the government’s acquiescence or even assistance, a private citizen, even a celebrity citizen, could not have completed the investigation in which she was able to interview government officials of various positions, make inquiries with the National People’s Congress (NPC), and follow the police during their enforcement tours. In China, the government controls who can, and who cannot, expose its failings, what can and cannot be exposed. And without an order from some office, it’s practically impossible to premier the film on the People’s Daily website and disseminate it on all internet portals under the 24/7 watch of the censors.
Regardless, I think the making and dissemination of the film is a landmark event. I agree with Ian Johnson’s assessment that the film is “the final proof that the Party is serious about the issue,” but the party has other determinations too. The film galvanized public opinion and consolidated its awareness to an unprecedented level. It peeled apart the multi-faceted causes of pollution. It is a mobilization of the public, and it sets expectations for a war against environmental disasters. The film works on many layers of the public psyche, and not all of them are welcomed by the government. This probably explains why it was spectacularly promoted and then shut down.
“In order to solve the environmental problem in China,” said Wang Yuesi (王跃思), an atmospheric scientist at China Academy of Sciences, “first, we need to have better management. Second, we still need to have better management. Third, we still need to have better management.” Though not an expert, I’m going to take a quick look at management, management, and management.
Law and Policy
Most people are probably impressed by the government officials and researchers who spoke on camera. They are insightful about the causes of environmental ills and candid about solutions.
With one zero after another, Chai Jing gives us shocking account of how laws and regulations have not been enforced.
As outsiders, we are shocked that China’s petroleum standards are set by the industry itself, and the environmental authority didn’t even have a vote. Chai Jing talked about how the EU, Canada, Australia, Mexico, South Korea and Japan formulate their respective standards, how it is a result of multilateral participation, consultation and voting. But she didn’t point out what these six political systems have in common: they are all democracies in which each participating party has independent power safeguarded by the rule of law, and the powers check each other to reach optimal solutions through procedures established in similar manners. Chai Jing’s film seems to share this ideal of governance. But does the Communist Party share it?
We can foresee that China will be improving its policy making process, the environmental authority probably will get its vote on the Standard Committee, but ultimately everything will still be subjected to the will and need of the party, whatever that may be at a given point.
Unlike Article 53 of the Law of the Peoples Republic of China on the Prevention and Control of Atmospheric Pollution, most of the Chinese environmental laws do specify enforcement authorities. The truck stopped by enforcement officers has a certificate, issued by environmental authorities in Hebei province, for meeting the national emission phase III standard, but in reality it has no emission measure. On camera, the officer squirms, telling Chai Jing that he can’t fine this truck because it is delivering the city’s essential supplies – eggs, milk and cooking oil. Here you witness a case in which an administrative order overrides the law. It is common in China.
In my favorite section of the film, Li Kunsheng, Beijing’s environmental official in charge of emission regulations, said that Chinese automakers, against the law, falsify data and that 90% of the vehicles don’t have basic emission controls. Individual automaker’s argue that they can’t afford to manufacture vehicles with proper emission controls if all of their competitors are omitting them. In addition, they argue, without gasoline supplies that meet a national standard, what’s the use of making cars that use cleaner gas? The Chinese petroleum industry does not produce high-grade gas because the industry itself is in charge of setting the standard, and being a monopoly, it is not inclined to upgrade gasoline.
Such a mess. There are laws, but they cannot be enforced. There is the know-how, but it is not carried out. How so? Let me try an analogy: A judge sits in the court, the plaintiff is his daughter, the defendant is his son, the prosecutor is his brother, the plaintiff’s attorney is his sister, the defendant’s attorney is his wife, and the court martial is his cousin. But this doesn’t prevent the judge from gaveling the court, “The dignity of the law lies in its enforcement!” (Xi Jinping)
Monopoly and Competition
On camera one by one, officials indict the state-owned petroleum industry. “Each and every part (of the petroleum industry) is basically a monopoly.” “Under a monopoly there can be no innovation.” “Outsiders can’t break into it at all.” “It is the one and only child. The toys are all his. He plays with them anyway he wants, and he throws them around.”
Cao Xianghong, the director of the National Petroleum Standard Committee and former chief engineer of CNPC, rejoins, “Petroleum is a security issue, and it could easily cause big problems.” Supply disruption could cause social instability and turmoil. Opening the market could lead to disaster. “Not any Tom, Dick, Harry can run a fuel company.”
It sounds like the left brain and the right brain of the party are punching each other, doesn’t it?
Chai Jing tells us, the U. S. auto companies also complained when the government tried to raise emission standards, and allowing competition from foreign companies forced American auto makers to keep pace. “Weren’t you afraid of hurting the national auto industry?” Chai Jing asks an American environmental official. “Environmental protection is not a burden,” she is told. “It’s innovation. Protecting a backward industry is no way to promote innovation. The government’s role is to set the standards and ensure fair competition in the market. You win the market through fair competition.”
Try to put this mindset in the communist party in China. This is more or less how the Party approaches international competition, judging from the trend of the last couple of years: when I don’t know how to do it, I welcome you to come and show me how. When I’ve learned how to do it, you can’t make money from my market anymore.
The ongoing Two Sessions is signaling that the environmental industry will play a big part in China’s economic transition and drive new growth. The British Energy and Climate Change Minister Edward Davey told Chai Jing that “You must give the emerging industry a fair chance at competition. If you do, it will surprise you.” The irony is, while the petroleum industry is a state monopoly and monopoly had led to rampant environmental abuses, the rising environmental industry will most certainly be a state monopoly too and a new playground for those in power. You will be lucky if it does not turn into the new toy of powerful clans like the petroleum industry is to the Zhou Yongkang clan and the power industry to the Li Peng clan. We have yet to see whether Xi Jinping’s anti-graft campaign will clamp down the tigers, but we can be certain that there will be flies everywhere.
Wrapping up the film, Chai Jing speaks movingly of “our choice and our determination,” making a strong appeal for civic action. Among her recommendations are:
1) Citizen watchdog. Download apps, take photos, call 12369 to report pollution, or expose it on Weibo. Chai Jing says, while reporting SARS ten years ago, she realized how important it is to have information transparency. But information transparency is not limited to emission numbers on an app. How do you have information transparency when information is monopolized by the government, media is not independent, and citizens cannot express themselves freely?
2) Litigation. We’ve all seen photos of polluted villages and rivers in China. Law professor He Weifang (贺卫方), upon watching Under the Dome, wrote on Weibo, “there are often many victims in a pollution case, but an individual may not have enough courage to pursue litigation and sufficient ability to present evidence. This is where class action as a legal mechanism can stem rights infringement, compensate the victims, and improve judiciary effectiveness…In the U. S., this mechanism has played a significant role in environmental protection.” But Professor He lamented, “Unfortunately this country has a deep-seated fear of group actions, and meanwhile the judiciary is not independent. It’s difficult!”
To be sure, China has just established law for “joint action” in pollution litigation. In an overview of China’s class action law, King & Wood Mallesons points out that, “the recent amendment [August 2012] to the Civil Procedure Law of the P.R.C. (“CPL”) added provisions for certain joint litigation in areas of public interest related to ‘pollution to the environment’ and ‘damage [to the] legitimate rights and interests of consumers at large. In these cases of public interest litigation, however, only certain ‘designated institutions may institute proceedings.’ It is believed that for environmental public interest litigation going forward that entity will be the All-China Environmental Federation (ACEF).”
In other words, the victims cannot sue; only this organization connected with the government may sue. Why don’t I just call this law a fake law?
Professor Wu Qiang of Tsinghua University wrote, “In the past ten years, although the Property Rights Law was passed, private property owners are still unable to obtain effective protection. It is difficult for private property owners or environmentalists to resist pollution by asserting their property rights, or to make claims and demand compensation for rights infringement by polluters. The issue of private property has been debated non-stop ever since the economic opening and reform began. As long as this issue is not dealt with, not included in the civil code, and not recognized by the Constitution and safeguarded by an independent judicial system, it will be difficult to curb environmental pollution from the approach of civil law, and the environmental movement will not be able to take root and grow strong.”
The new Environmental Protection Law of PRC, which took effect on January 1, 2015, stipulates that social organizations specializing in environmental protection and public interest activities for five consecutive years or more and having no law violation records may file litigation with the courts. There are 700 NGOs that meet the criteria, but the problem is, most of these NGOs, like ACEF, are either trade associations under de facto leadership of the government or NGOs funded by the government. To expect them to represent the victims by suing the polluters, that often are SOEs, is tantamount to climbing a tree to catch fish (缘木求鱼).
There are a small number of true NGOs in China. But they are extremely vulnerable, and the authorities can make criminalize an NGO if they want to. Did Gongmeng (公盟) break the law? It was outlawed. Did Liren Library (立人图书馆) break the law? It was forced to close its doors. Key leaders of the Transition Institute (传知行) were arrested without even a plausible reason. NGOs receiving foreign funding and training are being terrorized now and can be interrogated for espionage and divulging “secrets.” It’s a shame that Chai Jing did not interview some prisoners who “provoked disturbances,” “engaged in illegal business operation,” or “incited the subversion of the state power.”
In a country where citizens are forbidden to exercise their basic political rights and civil rights, where they mostly don’t even have the right to sue when their interests are damaged, how do we even talk about the right to know, the right to participate, and the right to legal relief? Chinese citizens not only do not elect their “people’s representatives,” they don’t even know which of the 3,000 representatives convening in the Great Hall of People represent them. Lawyer Liu Xiaoyuan said that, ever since 2007, he has been asking the NPC to publicize contact information of the representatives, and he has gone nowhere with his Quixotic quest.
In China 90% of vehicles have fake emission certificates. So what? The people’s representatives are 100% fake. Remember that fellow, the head of the Environmental Protection Department of Shanxi province? “The cat,” he said, “is the local government’s cat. Whether this cat can catch mice or not, how many mice it can catch, is decided by the local government. It’s not decided by the environmental protection authority.” The same is true on the national level, and the state-sponsored NGOs are additional cats of the government.
I too inaugurated a theory recently. It’s not “Four Comprehensives.” It is “Four Buts:”
- China wants to deepen reform, but it also wants to tighten control over society and its citizens;
- China wants to govern the country according to the law, but it also insists on the party’s supreme leadership;
- China wants to encourage innovation, but it rejects real competition;
- China wants to have world-class universities, but it also wants to extinguish free thinking.
China’s left foot wants to go north, and China’s right foot wants to go south. Both feet have the same goal, and, that is, to maintain the CCP’s one-party rule.
The journey of Chai Jing’s documentary is a microcosm of the party’s own embattled state. It was premiered by the party’s mouthpiece, but at the same time, the party’s propaganda department was keeping vigilant. Its first edict said, “All media outlets are required not to hype Under the Dome, and must control and adjust online opinion.” “Control and adjust” reminded me of a switch that can be turned on or off, dimming the brightness at will. The blinding light beam of the film was dimmed down to a kerosene lamp in less than 48 hours and then turned off completely. The party’s control is a must; the party’s will is absolute. It is so for the film, and it is so for everything in China. Don’t be surprised if the party launches a smear campaign against Chai Jing tomorrow.
I don’t know whether you saw it or not – there is a thin smog over Under the Dome. Chai Jing the narrator assumes that this system is just like any other system in the world except things are not done right. She runs to the United States and to England, to shoot and ask questions, presenting their practices and successes and lamenting that China isn’t doing the same. She pretends Weibo is a place for free speech. She looks up at the blue planet, anticipating the system reform prescribed by a high-level official. She tallies all the sources of pollution except the biggest one. It is the same with those officials in the film. They are able to trace pollution to the energy monopoly, but they see no ills in the political monopoly. It’s not that they don’t see, of course. They are feigning they don’t see. Or they will be in prison or sent packing. But as everyone pretends, what’s the difference between their feigning and the faking of vehicle emission certificates? If the Global Times’ political smog index is 800 and People’s Daily and Xinhua’s 600, I say, Under the Dome has a reading of 200.
When I shared these thoughts on Twitter, a Chinese tweep argued with me. “As an ordinary citizen,” he (or she) said, “I drive less, develop green habits, do my share, and have peace of mind, that’s better than doing nothing.” I said to him (or her), the film no doubt is a milestone, a powerful bugle call, for the simple reasons that two hundred millions of Chinese have watched it, and that even though the party is able to spirit it away, it cannot efface, with a click of the delete key, the smog cloaking China and the pollution scarring the land. Citizens should do everything they can, I said, to contribute to a better environment, but what they can do is purposefully restricted by the system, and they must understand that the political blue sky is the real blue sky, the ultimate dome over China.
Yaxue Cao is the editor of this website.