Disembedding lawful activism in contemporary China: The confrontational politics of a green NGO’s legal mobilization

Abstract

Recent legal reforms in China, particularly amendments in 2014 to the Environmental Protection Law, have encouraged environmental non-governmental organizations (ENGOs) to embrace legal strategies in their advocacy. However, the wider significance of such strategies remains understudied and underestimated. This article examines one such example in Xiamen, Fujian Province, where an ENGO, incensed by the conversion of walkways into parking spaces, led the first administrative lawsuit in the name of ‘pedestrians’ rights’ (行人路权) in China in early 2015. Based on digital ethnography and participant observation, the case illustrates three salient points: first, legal mobilization is conflict-laden and confrontational; second, depoliticized legal actions belie the development of popular critical consciousness; and third, professional ties have become more instrumental than connections with state officials. The net result is then an embedded activism that evinces disembedding tensions. This questions conventional expectations over Chinese environmental activism, that it is non-confrontational and overdependent on personal relations with local officials. In addition to elucidating the disembedding processes and experiences absent in previous ENGO literature, this exploratory research offers a snapshot of lawful activism among environmentalists, illustrating the wider opportunities and challenges accompanying ‘the turn to law’.

Keywords

environmental NGOs (ENGOs)legal campaign administrative litigation social resistance rule of law

Environmental activism in China is usually non-confrontational, because environmentalists tend to work through their personal and institutionalized relations with the state.¹ However, since the amendment of the Environmental Protection Law, nine environmental non-governmental organizations (ENGOs) have launched 37 public interest lawsuits against polluting firms in 2015, litigating over problems of water, air, and soil pollution.² Similarly, Xiamen Green Volunteers (hereafter Xiamen Volunteers),³ a Xiamen-based ENGO in Fujian, led an administrative suit against local state actors over ‘pedestrians’ rights’ (行人路权) in 2015, the first of its kind in China. This calls for recalibrating conventional depictions about ENGOs’ supposedly ‘routine’ and ‘non-confrontational’ activism,⁴ in order to capture their evolving action repertoire that has begun incorporating lawful confrontation. To this end, this exploratory research on Xiamen Volunteers’ legal campaign addresses its underlying strategic interactions, showing how environmentalists redefine what is considered confrontational, adjust their modus operandi, and position themselves vis-a-vis China’s rule-of-law regime. In short, it offers an illustrative snapshot of ‘lawful activism’ within environmental advocacy, referring specifically to advocacy strategies that are couched in the language of rule of law, and seek to attain and publicize environmental data, and/or press for remedial action, through existing courts, laws, and legal procedures.

The law in China has largely been painted as a contested terrain exclusive to conflicts in property and labour relations.⁵ Where litigation is acknowledged as an ENGO tactic in China, researchers usually cite only the example of the Centre for Legal Assistance to Pollution Victims (污染受害者法律帮助中心, hereafter Legal Assistance Centre) whose staff includes environmental lawyers and legal academics. Xiamen Volunteers’ court experience provides a unique window into societal responses to China’s rule-of-law regime among a non-lawyer group that was previously unfamiliar with legal channels. Like the labour dispute plaintiffs Mary Gallagher surveyed, Xiamen Volunteers saw the law as ‘something to be learned and … gamed’. Yet, they also experienced ‘informed disenchantment’, acquiring ‘legal consciousness in terms of knowledge about the law and feelings of greater efficacy and understanding of legal strategy with a concomitant sense of disappointment and frustration about inequities and dysfunctional aspects of China’s developing legal system’.⁶ But unlike these usually unorganized social actors who seek to maximize their individual interests, environmentalists enjoy advantageous social positions and are armed with experienced leadership, vital resources and social capital that facilitate the execution of ambitious agendas. The ENGO campaign presented here was both reactive and proactive; it resisted ‘new disadvantages’ hampering pedestrians’ mobility,⁷ while seeking in the long run the recognition of pedestrians’ rights that remain unprotected under Chinese law. The legal arena, in the hands of these activists, then potentially becomes more than a means for conflict resolution, but also an indirect avenue for advancing policy change.

In what follows, I first argue why and how this emerging legal advocacy produces empirical tensions with the concept of embedded activism that commonly describes the nature of Chinese ENGOs. I then elaborate on the political and associational dynamics framing the rise of lawful activism. This helps bridge the law and society literature with Chinese ENGO studies that have progressed separately.⁸ Before detailing Xiamen Volunteers’ lawful activism, I briefly discuss the background surrounding the issue of pedestrians’ rights. Next, I review how legal resistance shifted the way Xiamen Volunteers viewed its relationship with the state: the experience of state-imposed constraints, the growth of critical consciousness, and the closer link-up with professionals contributed to a disembedding effect. Finally, I close with comments on the significance of the case study and areas for additional research.

Data collection was conducted through a three-month participant observation in Xiamen between April and June 2015 when I was a volunteer and observer for the legal campaign. Through access to Xiamen Volunteers, I was able to review court documents, meeting minutes, and a variety of ENGO publications. Aside from taking notes on all campaign meetings and court trips I attended, I subscribed to the WeChat (微信) group that kept people abreast of the campaign developments.⁹ Access to this group allowed continued observation offsite and online of a year’s worth of internal discussions from May 2015 to May 2016, capturing the duration of the legal process that concluded with an appeal hearing in April 2016.¹⁰ Observations at both digital and physical sites of interactions present an illustrative account of the legal discourse and praxis of an ENGO. To minimize researcher bias, I analysed subject interactions I neither led nor elicited. Semi-structured interviews with academics, ENGO leaders and staff in Beijing and Sichuan Province between August and October 2015 also provided suggestive variation in perspectives on the use of law in their advocacy.¹¹

Findings from this single case study should not be interpreted as definitive or representative of all ENGOs. Rather, by elucidating the disembedding processes and experiences absent from the embedded activism literature, they help illuminate the ‘micro-foundations of an active society’.¹² Additionally, they offer an up-close glimpse into the wider opportunities and challenges accompanying ‘the turn to law’ among environmentalists.

Beyond embeddedness?

Studies on Chinese ENGOs tend to focus on the issue of associational autonomy, understandably given China’s authoritarian milieu.¹³ In this tradition, Peter Ho and Richard Louis Edmonds describe Chinese environmental activism as ‘embedded’, distinguishing it from its radical counterparts elsewhere. Enabled by formal and informal ties to state officials, environmentalists deploy non-confrontational strategies that portray themselves as partners with the state. Put differently, ENGOs prefer undertaking depoliticized action, and forging instrumental ties with state authorities, which is a survival strategy that bestows legitimacy on them.¹⁴ However, these observations are derived mostly from analyses of early ENGOs and their first-generation leaders, who invariably were part of the state system. The classic example is the founder of Friends of Nature, Liang Congjie, who was a member of the national Chinese People’s Political Consultative Conference. More importantly, scholars downplay ‘the disembedding [tensions]’ resulting from legal mobilization and recent legal reforms.¹⁵

Insofar as ENGOs partake in embedded activism, litigating against local state agents is likely considered non-confrontational, because embedded activism operates on a maximal definition of confrontational, that is ‘confrontations with the national government’.¹⁶ Small wonder then, collective petitioning and direct action targeting the local government has not been viewed as confrontational under this embedded framework.¹⁷ This borders on tautology, because in the face of salient threats of state repression, no ENGO would contemplate portraying itself as ‘against the national state’. Rather, suing the local state can be institutionalized but confrontational and transgressive. As one legal scholar remarks, the confrontational nature crystallizes when a lawsuit enrages state officials, and they might fume, ‘You [dare to] sue me?’¹⁸

Even though Xiamen Volunteers steadfastly rejected mass protest as a mode of mobilization, their legal strategy evinces qualities of resistance that are obscured when focusing simply on embeddedness. Legal action, as Guobin Yang comments, is ‘politics by other means … that thrives on political ambiguities’, approximating a ‘boundary-spanning’ resistance that straddles the bounds separating institutionalized and non-institutionalized politics.¹⁹ These campaigners’ behaviour thus finds affinity with rightful resisters studied elsewhere, as they invoke legality and display sophisticated rights consciousness.²⁰ Congruent with insights from law and society literature that legal mobilization is a bottom–up resistance against state hegemony,²¹ litigants resist state-imposed hurdles both overtly and symbolically, undergoing continual learning and adaptation to outwit and outplay the local state. However, instead of appealing to upper-level officials and central rhetoric as rightful resisters do, they appealed to broader principles, real and imagined, underpinning the rule-of-law complex, as they fought for a new issue that had no domestic precedents, uniform benchmarks, or central edict.

While maintaining relations with state officials is paramount, that legal mobilization still takes place as political space shrinks in China shows that embeddedness need not be the default coping strategy of ENGOs. Moreover, the premise of litigation is antithetical to embeddedness, because principles of universalism and equality before the law underpin the legal system, foreclosing actions depending on particularistic ties with state officials.²² A study on Chinese women’s rights litigants notes that legal action pits the ‘divisive assertion of rights’ against the imperative of preserving relationships.²³ Hence, even as legal mobilization is contained within institutionalized politics, its inherent transgression points to a disembedding pull away from embedded activism.

Lawful activism

Stimulated by the central state’s increased emphasis on environmentalism, especially in the aftermath of several environmental disasters in the 1980s and 1990s,²⁴ the production and circulation of environmental discourses – or ‘greenspeak’ – by ENGOs and the media have encouraged an emerging ‘green public sphere’.²⁵ The ‘greening’ of state and society has thus enabled a vibrant environmental activism in China. But less emphasized is the parallel discursive proliferation of ‘lawspeak’ around environmentalism since the eve of the 21st century. Under state programmes of ‘legalization’ (法制化) to facilitate China’s market transition,²⁶ environmental legalization enshrined through legislations between 2003 and 2008 public participation in environmental concerns, explicitly mapping lawspeak on to greenspeak.²⁷ The Hu Jintao administration had backed local legal innovation such as the establishment of environmental courts, to which ENGOs responded with their first public interest lawsuit in Qujing, Yunnan Province, in 2011. However, the law experienced in practice falls short of the law written in the books. While the Qujing lawsuit was unresolved,²⁸ the environmental courts were ‘preoccupied with prosecuting small-time rule-breakers, rather than tackling pollution’.²⁹

Under Xi Jinping, while party control of the judiciary has centralized and tolerance of public-interest lawyer activities has declined further, the central government appears committed to deeper legal reforms. The Fourth Plenum of the Chinese Communist Party Central Committee in October 2014 addressed the theme of rule of law – a milestone whose significance Randall Peerenboom likens to Deng Xiaoping’s southern tour for economic reforms.³⁰ In 2014, both the Administrative Procedure Law and Environmental Protection Law were amended for the first time since 1989. When the central government signalled its readiness to instrumentalize law as a tool to punish state officials and resolve citizen disputes, it marked a reversal of the ‘turn against law’.³¹ Though Xi’s intentions had less to do with delivering citizen justice than disciplining local state agents, environmentalists saw common ground in holding local authorities accountable for the environmental mismanagement the latter have been complicit in.

Despite local governments’ resistance, the central leadership’s renewed emphasis on environmental protection ensured that revisions to the Environmental Protection Law were passed.³² Effective from 2015, the amendments include a new chapter devoted to ‘information disclosure and public participation’ (信息公开和公众参与), which is key to the public’s role of environmental monitoring. The amendments recognize certain ENGOs for bringing public interest lawsuits on behalf of environmentally aggrieved citizens on condition that they must be registered with a civil affairs authority at or above the city level, and involved in public interest environmental advocacy continuously for five years without having broken any law.³³ Just as Chinese trade unions ‘turned workers’ individual legal mobilization into a form of union action that represents its constituency’, environmentalists now have an opportunity to deliver a similar agenda through litigating on behalf of pollution victims.³⁴ Friends of Nature, China’s oldest ENGO and an archetype of embedded activism, had taken on six such lawsuits by 29 October 2015, winning the first of them in Nanping, Fujian Province.³⁵ The new law, combined with the dissemination of the state’s campaign-like rhetoric about using the ‘law as a weapon’ in environmental protection matters,³⁶ emitted credible signals about the permissiveness of legal recourse. Due to fears of state repression, ENGOs usually refrain from organizing environmental resistance. But by legally taking on a depoliticized matter, they can assume a leadership role under the shelter of rule of law without risking state censure, even if this means potentially putting the local state in a bad light. An ENGO thus called the law a ‘new opportunity’ to apply legal perspectives in its current work.³⁷

Amidst the flurry of legislation, ENGOs have been undergoing years of legal experience-sharing and advocacy training, where invited lawyers or legal scholars educate them on relevant legislation through well-circulated handbooks and pamphlets. For instance, in anticipation of the implementation of the 2008 Disclosure of Environmental Information Measures, the Legal Assistance Centre prepared a manual and held a workshop attended by ENGO representatives from all over China. Previously, at a Legal Assistance Centre seminar in April 2007, participants signed a proposal entitled ‘We believe in the law’, declaring their commitment to utilizing legal means for environmental protection endeavours.³⁸ ENGOs had realized the need for more assertive actions and that they could not rely solely on publicity and awareness campaigns.³⁹

Recent ENGO publications have elucidated best practices in legal advocacy and successful case studies for emulation.⁴⁰ Despite countless stories on the limits of legal action, the few successful instances were sufficient to inspire confidence in its possibility as a potent weapon. As Michael McCann remarks, small advances are good enough for movements to build on for further legal mobilization.⁴¹ Lawful activism then builds on the accumulation of small advances in legal recognition of public participation in environmental affairs over the years. The production and distribution of lawspeak, as well as its actualization and perceived returns, have prepared ENGOs to embrace legal strategies as part of their action repertoire. Besides lawsuits initiated by ENGOs such as Legal Assistance Centre and Friends of Nature, legal measures are already part of the modus operandi of many. To build a database on waste incinerators in China, Wuhu Ecology Centre collected information from environmental protection bureaus through the Environmental Information Disclosure Measures. The Chongqing Green Volunteer League applied for administrative review over the Jinsha hydroelectric dam project under the Administrative Reconsideration Law.⁴² Xiamen Volunteers’ legal campaign not only extended these trends, but also gave them feedback. Even as the campaign was progressing in 2015, Xiamen Volunteers joined ENGO conferences in Chongqing, Chengdu, and Guangzhou to share its court experience.

Green commuting activism

Existing traffic infrastructure in Chinese cities has not kept up with the rapid pace of urbanization. Massive population growth has precipitated a rise in private ownership of motorized vehicles – seen as a necessity and status symbol. In Xiamen, motorized vehicle ownership reached about 1.035 million in 2013, a 13.38 per cent surge from the previous year. Car ownership in every hundred households steadily rose from 23 in 2010 to 30 in 2011, and to 33 by the end of 2012. Though lagging behind Beijing’s car ownership, which exceeded 33 in every hundred by the end of 2010, it surpassed that of Guangzhou, a far larger city, which recorded 21 in 2010, 26 in 2011, and 32 in 2012. Current traffic designs invariably prioritize car owners, often at the expense of non-motorists – the natural constituents of ENGOs propagating low-carbon travel. Indeed, according to a 2012 survey conducted by Xiamen’s Bureau of Statistics, 84.6 per cent of the respondents believed that the expanding number of motorized vehicles contributed to Xiamen’s worsening traffic situation, and 32.5 per cent attributed the problem to ‘unreasonable traffic planning’.⁴³

Recently, ENGOs, such as Bike Guangzhou and Beijing-based Nature University, have been campaigning to make cycling safer and more feasible. They have called for city planning to accommodate cyclists’ interests, and stronger legal enforcement to stop motorized vehicles from obstructing bicycle lanes. This is consistent with their work on the development of sustainable transport to achieve the long-term goal of carbon emissions reduction. Xiamen Volunteers has likewise been part of the Green Commuting Network, an alliance of over 20 ENGOs seeking to spread the idea of ‘green commuting’ nationwide. Safeguarding pedestrians’ rights is then a natural progression from these past efforts, rather than an entirely new issue frontier for environmentalists. With greater awareness of how urban mobility is better handled outside of China, grievances over commuting have found expressions in the language of ‘rights’, which would frame the wider debates and struggles against unjust traffic policies.

Xiamen Volunteers’ legal mobilization

Founded in 1999 and registered with the civil affairs bureau in 2007, Xiamen Volunteers was one of Xiamen’s earliest ENGOs. Consisting of three permanent staff members and three interns, it has engaged in issues from waste sorting and recycling to monitoring the water quality of a nearby river. It has also received recognition from the Ministry of Environmental Protection and the Fujian provincial media over the years. Fei, its founder and leader, had a corporate background and previously worked as a part-time university lecturer. Like many Chinese ENGOs that distance themselves from mass environmental uprisings, Xiamen Volunteers notably did not mobilize in the 2007 protest against a petrochemical factory in Xiamen. In the previous decade of green commuting activism, Xiamen Volunteers had held public awareness activities and meetings with government officials to influence policymaking. Feeling that these efforts had ‘little effect’, 2015 marked a shift in strategy to effect change.⁴⁴

The pedestrian sidewalk Fei must pass across to go to work from home was re-designed and doubled up as parking spaces for motorists in 2012. As the sidewalk became too narrow for pedestrians, Fei had to walk on the road, subjecting herself to unacceptable traffic risks. In April 2015, she sued the street-level office and demanded reversal of this policy, contending that she had been deprived of her right to use the walkway. What seemed like an individualized action was actually a part of Xiamen Volunteers’ campaign to ‘Defend Pedestrians’ Rights’ (维护行人路权).

The citywide phenomenon of cars parking on sidewalks first drew Fei’s attention in February 2015. Before going ahead with the campaign, Fei consulted and was encouraged by a renowned Beijing-based environmentalist, who believed in trying out new means of activism.⁴⁵ Xiamen Volunteers recruited volunteers, whose professional backgrounds included education, urban planning, the media and the legal sector, from among its long-time supporters and the public at large. While the campaign was largely driven by Fei with the assistance from Xiamen Volunteers’ staff and interns, it attracted interested citizens beyond Xiamen to its WeChat group.⁴⁶ Attended by usually no more than 10 persons, the campaign meetings were lively occasions involving reflective discussions about publicity strategies, funding, and the state of pedestrians’ protection beyond Xiamen and China. To construct the legal case, volunteers individually requested information from state agencies on the government unit responsible for collecting parking charges and marking the parking spaces through the Regulation on the Disclosure of Government Information.

The campaign, through Fei, filed two separate lawsuits in April, nicknamed respectively ‘spear’ (矛) and ‘shield’ (盾). Whereas the shield challenged the decision of turning sidewalks into parking spaces, the spear disputed Fei’s RMB 100 fine for temporarily parking her car at a roadside in February. Enclosed on three sides by walkways that created a bay-shaped appearance (see Figure 1), this roadside had no yellow line or signs prohibiting parking. Suspecting this had been an entrapment zone, she sued the local traffic police, to at least clarify whether the bay was part of the carriageway or the walkway. If she were to lose this suit on the grounds it was a walkway, Fei and her lawyers calculated it would aid her defence for the shield lawsuit by throwing doubt on the legality of parking on sidewalks altogether. Therefore, she intended to ‘take the state at its word’,⁴⁷ forcing the state to contradict itself.⁴⁸

Figure 1.

Parking bay on what was previously a sidewalk (left), before being redesigned post-trial to block parking (right).

Fei found pro bono lawyers for both cases. Because the Xiamen lawyer for the shield lawsuit could not handle another case, Fei mobilized her personal networks all the way to Beijing, securing the services of a Guangdong-based lawyer. To absorb the lawyer’s travelling and accommodation expenses, in addition to a nominal fee of RMB 3000, Xiamen Volunteers initiated a crowd-funding plea on WeChat, which volunteers forwarded to their own social networks. Setting RMB 10,000 as the target, nearly RMB 5300 poured in from 230 people after a month.⁴⁹

The suits were successfully filed at the administrative adjudication chambers (‘the court’). However, the adjudication chambers saw the defendants’ pre-trial written response as a list of ‘specious arguments’. The shield defendants stated that they were wrongfully sued, since the traffic police demarcated the parking lots (even though, as the plaintiff contended, it required the street office’s cooperation). Other than claiming that the statute of limitations had expired,⁵⁰ the defendants argued that Fei could not prove the harm she experienced, or her regular use of the sidewalk. By contrast, the spear plaintiff apparently ‘did not even bother to argue’ in court in June 2015.⁵¹ Besides prevaricating over the designation of the contested road before confirming it as a carriageway, the defendants claimed the act of leaving the car at the roadside was illegal, with or without a yellow line.⁵²

Apart from inviting reporters to the hearings, Xiamen Volunteers urged the public through social media to also attend to ‘push for justice’. As Fei rationalized later, ‘Judges would be less inclined to act according to their whims, if the audience was large enough.’ ⁵³ The shield hearing in May 2015 drew 15 people.⁵⁴ From my observations, other than two reporters, most attendees were part of the campaign or its WeChat group. At least two were unaffiliated with the campaign and turned up out of interest after finding out about the case through social media.

The judges ruled against Fei in the spear lawsuit, interpreting the police action as ‘flawed’, rather than ‘illegal’, and declaring it was a ‘bay-style road section’ of the carriageway.⁵⁵ At the September 2015 appeal hearing, the defendants reverted to calling it a walkway, because it was a non-motorized pathway bridging the existing sidewalks.⁵⁶ Fei lost her appeal.

Meanwhile, after much deliberation over the shield, the judges asked Fei to switch the defendant to the traffic police instead, allowing for a retrial. Fei and her lawyer insisted on suing both the street office and the traffic police, until the judge threatened to throw out the suit altogether.⁵⁷ They lost the retrial in November 2015, and the appeal hearing in April 2016. The appeals court decided Fei was unqualified to bring suit, because she could not show her ‘property ownership certificate’ over the disputed sidewalk.

Insights from Xiamen Volunteers’ campaign

In a city with a population of 3.73 million, the amount of donation, the number of donors, and the size of court audience throughout this campaign indicated that it had not adequately aroused interest from the broader citizenry. This is partly because Xiamen Volunteers’ finite resources had been devoted to legal action, even though public outreach was on its agenda. Nonetheless, the campaigners were somewhat encouraged by a redesign of the ‘bay-style’ roadside that happened a week after the appeal trial. Road poles were installed to block vehicle parking, hence eliminating the practice of entrapment (see Figure 1). The unusual timing led them to conclude that it was due to pressure from their legal action.

To demonstrate how this lawful turn marks a disjuncture with embedded activism, in the following I examine three key aspects: conflictual elements; critical consciousness developing underneath the depoliticized action; and social ties built away from the state.

Conflict-laden process

While the Administrative Litigation Law grants citizens a route to dispute state decisions, its goal is more to check against cadre misconduct and push state agencies into compliance with the law than protecting citizens’ negative freedoms.⁵⁸ Unlike civil litigation that allows for mediation, administrative litigation generally designates winners and losers, giving rise to a high-stake zero-sum game.⁵⁹ Besides a possible polarizing outcome, plaintiffs confront not only specious substantive arguments, but also constraints throughout the legal course.

The defence rhetoric and court rulings had outraged the campaigners’ sense of justice. Though they had little illusion about the court’s partiality from the beginning, they were not acquainted with the extent of its partiality until experiencing it themselves. Through colourful and provocative use of words, Xiamen Volunteers deftly reported on it via social media. For instance, one summary of the spear court decision was entitled, ‘What happened to the promised fairness and justice?’⁶⁰ These reports contrasted the defendants’ seemingly unreasonable arguments with the plaintiff’s well-reasoned points, questioning out loud these officials’ commitment to serving the people and justice. Consequently, awarding victory to the defendants was framed as a sign of the court colluding with them.

To limit the publicity of the hearings – and the possible blowback to the state – judicial officials had deployed subtle suppressive tactics.⁶¹ They banned journalists from attending and covering the shield hearing. Attendees who were scribbling notes during the proceeding were asked whether they were reporters. One reporter was discovered and reprimanded after the trial concluded. After the hearing made it to the press, the judge told Fei that it was wrong to mobilize media attention because it would affect the judicial process, questioning her motives and indirectly threatening her. At the spear hearing, court officials photocopied attendees’ identity cards and requested their employers’ information. Since everyone already had to go through routine identity checks at the entrance, this was seen as intimidation.⁶² These state-imposed constraints only reinforced their sense of injustice.

Hence, litigation turned the campaigners and local state agencies into legal adversaries, with the former resisting legal arguments and extra-legal tactics from the latter. The confrontation is also manifested symbolically and physically. The imagery of ‘citizens suing officials’ (民告官) underlying administrative litigation already pits society against the state. Its physical manifestation in the courtroom, with the plaintiffs on the left facing directly the defendants on the right, signifies this confrontational nature.⁶³

Thriving critical consciousness

Despite everyday experiences of bad policies and administrative abuses, many ordinary Chinese balk at the costly option of legal redress.⁶⁴ One audience member from the shield hearing explained that most people either know little of legal channels or have no confidence in their individual efficacy.⁶⁵ Notwithstanding the numerous instances of frustration and indignation, navigating the legal process could be energizing and empowering, as the campaigners aimed to ‘make [state officials] suffer’ for flouting the rules.⁶⁶ They relished the opportunity of giving the authorities a hard time, frequently using the phrase ‘very fun’ throughout their discussions. This social-psychological payoff is akin to that of participants of ‘consentful contention’, as they ‘hav[e] fun at the authorities’ expense’ and attain a ‘sense of agency … that might arise from even modest degrees of success’.⁶⁷

Direct contact with the state strengthened the campaigners’ critical consciousness. At a campaign meeting, Fei shared her recent experience of calling ‘110’, the police hotline to complain about illegal parking on the sidewalks. Having waited for an hour with no police appearing, she called back, only to get rude treatment from the officer on the line. Fei then complained about him, which resulted in a personal apology to her days later. When she phoned again for a different complaint, the police arrived at the scene within five minutes. Fei ended the account with a lesson to all in attendance: ‘call “110” next time; you need to try it out to know [its effect]’. This line sums up the motivations and experimental approach of the campaigners when they invoke the law. It also demonstrates how they became ‘little experts’ who shared strategic knowledge with others about working the law, enabling others to learn and believe in their own individual agency.⁶⁸ For many, it was their first chance to exercise agency to challenge the local state’s infallibility, just as it was Fei’s first time stepping into a courtroom.

Immediately after the shield hearing, listeners spontaneously gathered and burst into audible discussions inside the courtroom. They spoke of their rights as a ‘subject to be served’, pointedly criticizing the incompetency of the street office and the weaknesses in local traffic planning. The legal process thus offered a window into an open and civil clash between state and society, where one could indulge in talks of citizenship and rights. As discussions involving Fei reveal, she hoped others would similarly mobilize the law to press the government to ‘rule according to law’ (依法治国), which ultimately means ‘checking state power through the cage of the legal system’. Even if she were to lose her suits, she believed government officials would be less likely to persist in their old ways.⁶⁹ This echoes other environmentalists’ aspirations of serving the environmental monitoring role through promoting public participation.⁷⁰

Similar to the workshops and seminars assembling like-minded environmentalists, the legal campaign formed a site for ‘self-transformation and identity production’,⁷¹ facilitating the creation of a pedestrians’ rights collective action frame that ‘organize[d] experience and guide[d] action’.⁷² Injustice, agency and identity are key components to such a collective action frame. While conflict with state agents fuels a ‘shared moral indignation’, the agency component kicks in by telling people that ‘something can be done’ about this injustice, and ‘that “we” can do something’. But to construct this identity of ‘we’, it is set against ‘some “they” who have different interests or values’.⁷³ Put simply, campaigners derived agency from being against the local state that had unmistakably different interests and values, as they established an oppositional collective identity of citizens, which entailed consciousness of given rights and that of means of agency to satisfy those rights. Their attitude and behaviour underline the disembedding contradictions within their activism: they work within the state, if uneasily, by paradoxically working against the state.

Professional ties

Legal mobilization is a knowledge-intensive collaborative process, and because of the uncertainty surrounding court processes, legal strategy can determine the case outcome.⁷⁴ Therefore, it requires expertise not only in the law, but also in the issue domain itself. Xiamen Volunteers brought on several lawyers to its WeChat group. When Fei and her colleagues were confused about legal procedures or the propriety of certain court action, these lawyers provided guidance and assurances, even urging patience when the court had not promptly responded. For instance, the court rang up one volunteer who had filed her own suit for a meet-up. Suspecting it was an attempt to persuade her to drop the suit, one lawyer told her to ignore it because it was not standard legal procedure.⁷⁵ Similarly, one volunteer who was affiliated with the local urban planning and design institute assisted when the lawyer needed information on the optimal width of parking spaces and walkways.

Furthermore, Fei viewed the media as capable of shaping public opinion, which in turn could pressure the government. Hence, she appealed often to her personal network of reporters to cover the hearings. As she told me, ‘[the legal battle] will make a difference, only if there is pressure from public opinion and the media follows up’.⁷⁶ Moreover, the crowd-funding method forced the campaigners to mobilize their own social networks for donation. When they were uncertain about how to publicize the hearings or raise funds through social media, fellow environmentalists provided prompt encouragement and suggestions.

Because finding a public-interest lawyer or an urban planning expert is not easy, networking and relationship-building with these professionals are required, shifting the direction of embeddedness towards them and slightly away from the state. Though this is not mutually exclusive with embedded ties with the state, legal mobilization decreases the salience of such ties, paving the way for a less embedded activism. For example, rather than relying on government insiders as ‘back channels’ of information for their legal case, Xiamen Volunteers made use of the Government Information Disclosure Regulation. ENGO staff elsewhere have also revealed that the legal opening for public interest litigation has encouraged a rudimentary formation of professional networks between ENGOs and local law firms. Since legal expertise on environmental issues is concentrated in the coastal region, one Sichuan-based ENGO had begun in 2014 to link up with local lawyers and other ENGOs to build up their ‘legal capacity’.⁷⁷

Conclusion

Because the law is vague on the status of public interest administrative litigation, Xiamen Volunteers’ legal pursuit marks a first leap into relatively unknown territory that has so far few comparable cases. However, the case reflects an emerging trend of environmental litigation where Friends of Nature had filed its first administrative lawsuit in December 2016 against the Environmental Protection Bureau of Nujiang in Yunnan Province for approving a polluting project,⁷⁸ and a Sichuan-based ENGO had assisted in a residents’ legal action over waste management.⁷⁹ It is the grass-roots equivalent of ‘local experiments’ with the law that have otherwise characterized China’s national policy process.⁸⁰ Indeed, Friends of Nature has described its legal foray as ‘testing the law themselves’.⁸¹ While the pattern of environmental litigation appears erratic, it has corresponded closely to central signals about utilizing the law for environmental redress. As more cases accumulate, this snapshot should provide a basis for further research: for example, to what extent does Fei’s personal history shape the legal movement and to what degree do the experience and funding sources of the ENGOs affect their willingness to litigate?

As Sally Engle Merry argues, ‘law contains both elements of domination and the seeds of resistance’.⁸² The state’s hegemonic rule-of-law rhetoric has ensured some opening for creative experimentation among resourceful groups to challenge local state practices during one of the most repressive periods in post-reform China. Though legal reforms are driven by the Chinese state’s preoccupation with economic development, social stability and regime legitimacy, their unintended consequences are far-reaching, such that courts are emerging as institutional sites for ‘micro-assertions of rights … [that] are distinctly different from community compromises’.⁸³

While many ENGOs’ actions still follow the contours of embedded activism, overlooking the transgression of specific advocacy strategy underestimates its ‘disembedding’ tensions. As Ho and Edmonds suggest, it is likely that embedded activism is a ‘transient phase’.⁸⁴ If so, its successor phase may very well be, in an ENGO worker’s words, ‘environmental protection according to law’.

Footnotes

Notes

References

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