REPORTS

 

 

Shenzhen Government Disregards Migrant Worker’s Rights

 

By Yang Chen

 

Summary

 

  • In 2002, the State Development Planning Commission and the Ministry of Finance had a joint official announcement that requested all local governments to cancel seven fees that are levied from migrant labors, including a temporary residency management fee. But the Shenzheng government was reluctant to follow the policy. It repeatedly reported to Beijing in order to retain its privilege. A subsequent incident thus erupted and lasted for half a year.
  • In 2002, when most provinces and cities are working hard to solve the educational problem of migrant labors’ children in order to reduce their burdens, Shenzhen is doing the opposite. Beijing, Shanghai, Hainan, Yangzhou, and etc. have all been decreasing “educational fees” levied specifically from migrant labors. Shenzhen, instead, increased the fees largely. The tentative schooling fee increased at a 50-70% rate, making it 3.5 times as much as Beijing’s, and 4.2 times as much as Shanghai’s.
  • In 2002, Shenzhen canceled its social security insurance that went into effect earlier. Instead, it added one new regulation to migrant labors, “Migrant labors who want to have pensions in Shenzhen should pay fees continuously for 5 years before they reach the official retirement age.”  This is against the government’s policy. In 1999, the State Council’s new social security policy says, “anyone who pays the fee for more than 15 years can enjoy the pension.” It also says that this could apply to any worker whose residency is not local.
  • In 2002, there are only 8 points regarding migrant labors in the Shenzhen City government’s Work Report and its Tenth Five-Year Plan Topical Plan. Among them, except for the strengthening of social security and the management of birth control, the rest only address the main idea, the control of migrant labors’ quality. As for migrant labors’ living, work, education, and other aspects that social welfare attends to, are invisible in these documents. Any neutral evaluations of migrant labors is also unseen. We can thus infer that the discrimination and ignorance against migrant labors in Shenzhen starts from the government.
  • In the 20 year’s development history of Shenzhen, millions migrant labors have also been the primary labor force of Shenzhen’s economic development. It is those migrant labors that helped create Shenzhen’s economic miracle and glorious achievements. They were, are, and will always be Shenzhen’s wealth.
  • Shenzhen’s poor treatment to its migrant labors is unfair and unjust. It is against the government’s spirit of “managing the state with morality” and the government’s policy of “establishing a well-being society”. It is also against the WTO’s fair competence policy. It is certainly incompatible with the idea, “All human beings are born free and equal in dignity and rights,” written in the Universal Declaration of Human Rights. This shows that Shenzhen’s leadership is incapable of taking political responsibility and implementing policies.
  • Shenzhen’s needs to be aware of where its wealth comes from. Migrant labors should be treated better. Shenzhen should be the pioneer in creating an order and social security system that assure justice, reason, and fairness. Therefore, it could be an exemplary in China’s history of “special economic zone” that aims to eliminate social inequality and to unify city’s labor force.

 

I. Temporary Residence Permit Incidence in 2002[i]

 

          The State Development Planning Commission of China and the Ministry of Finance of China issued a joint order in October 2001,[ii] stipulating that all local governments should cease seven types of “unreasonable” levies from the migrant population, such as temporary residence fee, and various regulation fees for temporary residents. However, this policy that sought to reduce migrant workers’ burdens eventually brought about an incident that lasted for half a year in the city of Shenzhen.

 

          This order requested the city government of Shenzhen to stop issuing the Temporary Residence Permit. But the Shenzhen government resumed the issuance two months after the order from the central government. Only this time, the monthly regulation fee of 25 RMB and the cost fee of 20 RMB were required. A total of 320-RMB yearly fees were required from applicants of the Temporary Residence Permit, meaning 20 RMB more than before. In the meantime, the police department mobilized greater forces to verify the holding of the Temporary Residence Permit at train stations, bus stations and other locations, demanding all migrants to have permits. According to the report of Feburary 20th from Xinhuan News Agency, the Police Station of Shenzhen Train Station sent 80 policemen everyday since Feb 18th to check on the holding of the permit. Those who did not hold the permit were expelled or arrested.

 

          Shenzhen government’s resume of regulation levies obviously violated the order issued by the State Development Planning Commission and the Ministry of Finance. It subsequently encountered strong opposition from different parts of the society. The Bureau of Price Regulation of Guangdong Province accordingly issued an urgent notice on Feb 28th, demanding all local governments to cease all levies related to the Temporary Residence Permit, saved the cost fee. Otherwise the local governments are subject to penalties.

 

          The city government of Shenzhen again ceased the issuance after receiving the notice from the Bureau of Price Regulation. Meanwhile, the Shenzhen government started its appeal for an allowance of the special levy policy from the central government. A standing member of the CCP committee of Shenzhen and a director of Municipal Office flew to Beijing twice, reporting the extraordinary “difficulties” facing Shenzhen, and asked for an allowance of a special policy to levy from temporary residents. However, both efforts failed. In May, the State Development Planning Commission authorized Shenzhen to charge a 15-RMB cost fee of the Temporary Residence Permit. Seven departments of the Shenzhen city government, including the Police Department, Labor Bureau, Finance Bureau, Personnel Bureau, the Population and Family Planning Commission, Bureau of Price Regulation, as well as the Bureau of Social Security, then issue a joint policy on May 10th announcing that, from June 3rd, the issuance of the Temporary Residence Permit will resume without any regulation fees. To everyone’s surprise, this gave rise to another incident.

 

          Compared to the days with regulation fees, to obtain the Temporary Residence Permit suddenly became extremely difficult. After June 3rd, the Shenzhen media received many complaints regarding the difficulties of acquiring the Temporary Residence Permit.

 

          The difficulties included a longer time to obtain the permit, more complex procedures, and more stringent requirements. The new policy required a temporary resident to submit numerous documents, including labor contracts, social insurance proof, family planning proof, employment proof, and so on. The procedure was extremely complicated. It took eleven stamps from the public agents to obtain a permit: 2 stamps from the Mobile Population Contracts, 2 stamps proving the birth control plan, 2 stamps proving the employment status, 2 stamps from the labor registration system of the Shenzhen Special Zone, 1 stamp from the temporary household registration, and 2 stamps from the temporary population registration system. Since all stamps were required, many people found it almost impossible to obtain a Temporary Residence Permit.

 

          With the strong appeal from the media, the city government adjusted its policy on June 25th. The new policy increased the availability of the permit and simplified the application procedures. The incidence finally calmed down.

 

          Some people say that it is the conflicts of interests that brought the problem of the permit, which is true.

 

          For Shenzhen, a city that accommodates millions of migrant workers, it could collect plentiful fees of the Temporary Residence Permit. Before the State Planning Commission and the Ministry of Finance issued the order, the approval fee for one permit was about 320 RMB. According to a conference briefing of the Shenzhen government in 1996, the Municipal Labor Bureau, the Personnel Bureau, and the Police Bureau made 33, 30, and 72 RMB respectively from one permit, while the Population and Family Planning Commission shared 4% of the fees. Motivated by interests, different departments of the government, even different levels of the government, engaged in an intense competition to issue the permit. The administrative regulation was commercialized by the intense competition. Many governmental agents issued the permit based on money disregarding the legal requirements.

 

           In fact, the problem of the permit has a long history in Shenzhen. At the end of 2000, China Youth Daily published an article authored by Chile saying that in Shenzhen,[iii] “it is expensive, and difficult to obtain any permit.” It also asked the government to “think for the migrant workers and to reduce their burdens”. But till now, the situation remains the same. The Police Bureau still sends policemen to arbitrarily arrest people without permits.[iv] The migrant workers still live with fear. 

 

 

II. The raising of tentative schooling fees in 2002

 

            China’s constitution guarantees all citizens the right to an education. The Laws of the People’s Republic of China on Education further stipulate that all students have equal rights to enter school, continue on to higher education, and gain employment. But for children of migrant labors (peasants who have moved from rural areas to the cities in search of work), exercising these rights is a difficult task. A built-in inequality, based on the system of tentative schooling fee, is depriving some children of their basic right to education.

 

Indeed, even if there were not a constitutional guarantee of the right to an education, there is still a grave injustice in denying these children the opportunity to attend school. Migrant labors make a significant contribution to the cities they live in through increased commerce, purchasing power, and tax revenue. The cities have an obligation to let their children enjoy the same education as the children of official urban residents. Labors who have left their rural homes currently face a double burden: most still must pay tentative schooling fee at their official residence, despite not having any children attending those schools.

 

            Early in April 2001, the State Council approved the Ministry of Public Security’s opinion by setting out reform suggestions for migrants from rural areas and urging that rural residents be provided practical guarantees of their lawful rights.[v] “After the approval, residents of urban and rural areas must be given the same rights and duties with regards to attending school, entering the military and pursuing employment.” This proposal affirms that all citizens, from the flow influx (labors aimlessly flow into cities from rural areas) to migrant labors, regardless of where they come from, must enjoy the same educational and work opportunities and have an equal share in the benefits of modern urban society.

 

            The difficulties that migrant labors’ children face in obtaining an education have drawn attention all across China. There have many sincere attempts to solve this injustice, and the situation has recently taken a turn for the better. Starting in 2002, Beijing, Shanghai, and other employment centers have been taking steps to reduce the tentative schooling fee that migrant labors have to pay. Hainan, Yangzhou, and other cities have taken to issuing temporary residency cards, giving migrant labors more stable employment, equal wages, and a fixed residence. After three years they can be issued a “residency card,” entitling the holder to the same treatment as urban residents, providing a long-term solution to many of the problems faced by migrant labors.[vi]

 

            But in the midst of these positive developments, Shenzhen’s city government suddenly issued what it called a hearing, ordering a shockingly dramatic increase in the tentative schooling fee for children of migrant labors. Elementary school fees shot up 75%, with middle school fees rising 50%. The table below compares the fees of Shenzhen and two comparable cities,[vii] before and after the fee hike:

 

 

 

City

New Fee

Original Fee

 

Elementary School

Middle School

Elementary School

Middle School

Shenzhen

1400

1800

800

1200

Beijing 

400

1000

1000

2000

Shanghai

340

500

N/A

N/A

 

(Note: On February 18, 2003 the author received a Shenzhen elementary school’s fee collection announcement. Residents’ fees were 341 yuan per child, non-residents’ fees were 1,146 yuan. Clearly, school fees continue to rise, and some elementary schools are demanding fees as high as 1,610 yuan/year.)

 

            At the same time as it is demanding higher school fees from migrant labors, Shenzhen’s government is making almost no attempt to rein in ballooning government expenses. All the government departments are doing their best to outspend each other, with most of the expense going to department office buildings. Each district is competing to build its own building, each bigger, more imposing, and more luxurious than the last. Many are so elaborate that it looks as if each district is trying to compete with provincial governments, not just with each other. The central city government is the initiator of new buildings. It is hoped that the city government building would become a sort of “city center.” This building, a showpiece of European-style modern architecture, is currently under construction and is already two billion yuan over budget. When the author was passing by in August 2002, an old man pointed out the showy thing and commented,“Look at how showy that thing is! An exhibition hall should never be so flashy. It’s just too much!”

 

            One of Shenzhen’s district bureaus has built its own ten-plus story building, most of which tower over the rest of the district. They come complete with ample office space, luxurious furnishings and the most up-to-date technological facilities. Even more absurd, every floor has a main entryway fronted by a pair of grand, red-lacquered doors that always remained closed (even during working hours) and are controlled by a state-of-the-art identity card security system. So if you want to enter the building on any sort of business, you have to call them from outside the entrance (those without a mobile are out of luck). If no one answers, all you can do is station yourself outside the door and wait (and wait). As some people say about how hard to get government services in China, “its door is hard to get through, and its face is hard to look at.”

 

            Shenzhen is wealthy, wealthy enough to make you forget the stoic slogans of austerity that marked China’s recent past. But the city’s productivity and newfound wealth relies heavily on its one million migrant labors. Considering this, it is amazing that Shenzhen cannot find enough money to pay their children’s school fees and provide them with the education that is supposed to be compulsory.

 

          Reading the following anecdote, one cannot be too surprised by Shenzhen’s current tentative schooling fee policy:

           

          Two years ago, Shenzhen’s education department closed down a school whose students were mostly the children of migrant labors. When asked where the children were supposed to go, an official answered, “Where your children go to school isn’t our problem. We don’t have a responsibility to educate them.”

 

          Unfortunately, as long as school officials keep this attitude, there is little hope that migrant labors’ children will be receiving their educational rights any time soon.[viii]

 

 

III. The Immoral Aspects of the New Regulations and the Inspiration from Foreign Social Security System

 

          In July 2002, Shenzhen City Mayor Yu Dongjun signed the Social Security Execution Rules.[ix] The new rules went in effect on September 1st 2002.

 

          Compared with two earlier versions that passed in November 1999[x] and December 2000,[xi] the new rules added an independent article 13 that takes away all benefits of non-resident workers. This is not only against the will embedded in the 10th five-year-plan,[xii] it is also an violation of national laws.

         

 

1.                  Callousness:  A new regulation that lacks fairness

 

          Let’s first compare the major differences on retirement benefits for non-Shenzhen resident workers under both old and new regulations. According to Provision 23 of the Shenzhen Social Security Law, non-resident workers who cumulatively have paid the required 15 years of social security tax, and who also have reached the national retirement age, are entitled to retirement benefits in Shenzhen.  Whereas the amended Provision 12 of the new Regulation writes:  “Non-Shenzhen resident workers who retire in the city and wish to obtain monthly retirement benefits are required to have a continuous social security tax payment during the last five years of employment prior to retiring at national retirement age.”  This independent clause is a new addition to the law, and is also the fundamental reason for Shenzhen City Government to legislate the new Regulation as a replacement of the old one.

 

          According to this independent clause of the new Regulation, and since the national retirement age for male is 60 years old, it is necessary for male workers to continue working in and paying social security tax to Shenzhen for the last five years of their employment from age 56 to 60; and since the national retirement age for female is 55 years old, female workers must work and pay social security tax for the last five years of their employment from age 51 to 55.  If a single tax payment is missed during this 60-month period – even for the situation when payment in the very last month was missed because the worker has been laid off – the worker would lose the right, which is an entitlement under national policy, to receiving retirement benefits from Shenzhen, no matter if the worker has cumulatively worked and paid social security taxes for the previous 30 years in the city.

 

          This condition is unfair, unjust, and callous to the millions of migrant workers. 

 

          In Shenzhen, migrant workers are “present when you need them, and expendable when you do not”, “the vast majority of migrants in Shenzhen work for less than three years – the average attrition rate of company workers is about 30%, and it could reach 50% for some companies.  Many of these workers who left Shenzhen were coerced and had no other options”.[xiii]  Therefore, it is uncommon for migrants to be able to work in Shenzhen for even 8 or 10 years, and it is scarce for them to have worked and paid social security taxes for 15 years.  But most critically it is extremely rare for anyone – resident or not – of age within five years of retirement to be able to find a job or to remain employed.  One could presume that the above amended clause was designed in light of these circumstances, and its purpose is obvious:  to prevent the reception of retirement benefits by the tens of millions of migrant workers who have contributed their youth and energy to working for the city of Shenzhen.

 

          So, what of those migrant workers whose retirement benefits have been denied by the new Regulation?  They must return to their home state.  Provision 37 of the Shenzhen Social Security Law stipulates: “Non-resident workers who have reached national retirement age but have failed to satisfy the length requirement of social security tax payment as stipulated by this Regulation, or those who have relocated outside the city either after resignation or before retirement, shall have their personal retirement managed as follows: (1) those whose place of origin have social security systems, shall have their account balances transferred to their respective local social security organizations.  Should the local organization not accept account transfer, the account balance shall be returned to the individual; (2) those whose place of origin have no social security systems, shall have their account balances reimbursed to the respective individuals.

 

          The provision above is also unfair to the migrant workers – According to the Regulation, social security tax in Shenzhen is 13% of the workers’ taxable income, but only 11% of that income is reimbursable.  The remaining balance goes to Shenzhen’s Common Benefits Fund and cannot be returned.  Furthermore, the following expenses are also not reimbursable:  medical treatment and hospital stay insurance (the amount is withheld by the employing unit  2% of the withholding amount 2% of Shenzhen city’s previous year’s average monthly salary), worker’s labor disability insurance (withholding amount is determined by the employer), etc.

 

          The callous nature of Shenzhen’s Social Security system does not end here.  Article 1, Provision 10 of the Shenzhen Workplace Accident Insurance Implementation Regulation stipulates [14] that “accidents or deaths occurred during working hours and in working areas, and caused by activities not related to the individual’s professional duties” are considered “private activities” under Provision 15 of the Regulation:  therefore, they are not covered by accident insurance.  It is questionable whether the legislator of this Regulation realizes that, under related national law, incidents such as traffic accidents that occur during commute to workers who are not primary responsible are considered as a workplace accident.  Incidents that “occurred during working hours and in working areas, and are caused by activities not related to individual’s professional duties” such as movements in fire escape corridors, or cell-phone calls during break time, and etc. 

 

2. Virtueless:  A new regulation that lacks kindness. 

 

          To advocate kindness and virtue is a tradition of the Chinese culture, and community, cooperation, justice, fraternity, and progress are its core values.  President Jiang Zemin championed “government with virtue”.  China’s Communist Party’s 16th Congress confirmed the objective “to build a comprehensive middle class society”.  It proposed “the target to build wealth for all, to expand the proportion of middle-income earners, and to increase the income of low-income earners”, and “to build a robust social safety net that corresponds to the country’s level of economic development is crucial to the long-term social and political stability of the nation.” 

 

          To “insist on ‘governing by virtue’ is to combine the rule of virtue and the rule of law, and to balance the relationship between groups that are influential and those that are not, and to guarantee the rights of the non-influential group.[xiv]  To protect the underprivileged is an obligation of ‘government by virtue”. 

 

          “To treat migrant workers well, is like treating parents. ”[xv]

 

          In contrast, Shenzhen’s new social security system not only denies the rightful and fair treatment to migrant workers, it also “conspires to squeeze out the last bit of youth and energy from them, and callously drive the workers out once they become useless”.  While the inland provinces contribute “youthful and energetic labor” to Shenzhen, Shenzhen returns the favor by forcing back “the old, weak, sick and used” back to these regions.  The poor and underdeveloped inlands now have to care for the livelihoods of the expended retirees. 

 

          After having 20 years of economic reform, China’s income inequality has worsened.  It is of economic and political concern when the costs and benefits of reform are not evenly distributed.  This will adversely affect future economic growth and hinder the formation of policy consensus.  The situation will reduce and even eliminate the popular support from these underprivileged groups to the continuation of reform, and it may even lead to social instability. 

 

          In addition, according to “Special Programs for Population, Employment and Social Security”:[xvi] “The State plans to increase the deployment efficiency of labor resources, establish an integrated and uniform system for labor market, improve government’s administrative policies towards labor employment, and amend corresponding labor regulations.  The State will also further reform the management systems for labor resources and household registration, revise and coordinate policy measures related to employment issues.”

 

           The State will “commence the planning and coordination of employment of urban and rural labor forces, and eliminate policy constraints on reasonable labor migration.  This will enable the orderly labor migration within local areas, and between urban and rural regions.  During the Tenth Five-Year Plan, the State will seek to pass reform initiatives on household registration and social security, and a gradual push for unity of labor markets in cities and rural areas.

 

          The message from “Special Programs for Population, Employment and Social Security” is unequivocal, yet, after more than one year of publication of these Special Programs, Shenzhen unveiled a new Social Security Regulation that is in complete opposition to the spirit of the national program. 

 

 

3. Illegal: A new regulation that lacks legality.

 

 

(1)       The new provision’s Article 13 fundamentally breaches the State Council’s social security laws:

 

  September 1999: The State Council’s Notification Concerning the Deepening of Employee Insurance System Reform in Business Enterprises, Appendix 1, One of the Methods of Implementing the Combination of Business Enterprise Employees’ Basic Pension, Social Security and Personal Bank Acconts Overall Social Plan， Article 3 (which came into force and was announced on September 18, 1999) announces that all management officers and all workers who arrive at the legal retirement age can enjoy basic social insurance and monthly pension payments, provided that they have paid the full fee for 15 years or have worked for 10 years (including the paying age) before this law was put into effect.

  In other words, according to the Notification, all that pay the full fee for 15 years can enjoy basic insurance.  The regulation emphasizes the usage of the phrase “all can,” without any restricting terms.  In accordance with the above provision, the State Council’s Decision Concerning the Building of a Unified Business Employees’ Basic Pension System, Article 5 states, “If an employee pays the full fee for 15 years, they will receive pension payments monthly beginning after retirement.”  Again, there are no restricting terms.

 

  In the above Notification and Decision, who are included under the term “employee”?  The Social Security Agency’s Propoganda About the Temporary Guideline Concerning the Collecting and Paying of Social Insurance Fee, (which came into force and was announced in 1999, No. 9) points out that the term’s scope “includes all town collective enterprises, state-owned enterprises, foreign investment enterprises, town private enterprises and other town business enterprises and their employees, and public service units carrying out enterprise management and their employees.  The workers covered include all employees that have a relationship to a given work unit, meaning both ‘formal’ workers and temporary workers, employees with locally registered households, as well as employees registered in other parts of the country, and both city workers and rural workers.”

 

  The Labor and Social Security Agency’s Notification Concerning Relevant Problems in Improving Town Employees’ Basic Pension Policy, Article 4 (which came into effect and was announced in 2001, No. 20) is also clear in whom it includes.  It proclaims, “Within the farm contract system, male rural workers who have reached 60 years of age or female rural workers who have reached 55 years of age may begin to receive their old age pensions, provided they have paid the full fee for at least 15 years.”  To clarify, it is impossible for a farmer to receive city household registration, but according to the above provision, a farmer may receive the same treatment as a city worker, “provided they have paid the full fee for 15 years.”

 

  Therefore, the Shenzhen Social Security Agency’s new provision’s Article 13, which states, “An employee not registered in this municipality, in order to receive their monthly endowment in this municipality upon reaching the national retirement age, must continue to pay the fee for 5 more years,” breaches the State Council and Labor and Social Security Agency’s provisions. 

 

(2) The New Provision’s Article 7 breaches the Labor and Social Security Agency’s guidelines:

 

  The Labor and Social Security Agency’s response to relevant problems in social insurance for people not registered where they are working can be found in the letter’s Article 1 and Article 3:[xvii] “If a worker participates in the pension plan in different places because of job flow, no matter where the worker is registered, the amounts of time he has paid the fee in his last place of work should be combined with the amount of time he has paid it in other places he has worked in order to begin receiving pension payments in accordance with the country’s regulations.”  Also, “If a worker participates in the pension plan in a place where he is not registered, after his contract with his original work unit has ended and he has lost his original job and before finding a new job, the social insurance agency in that place should retain his pension.  If he finds a new job in another place, the agency should then transfer his pension payments on time and the agency in the accepting place should continue his pension plan on time.” But Shenzhen’s new provision’s Article 7 states, “Laborers who have moved here and work here but aren’t permitted to move by the personnel and labor department of this municipality (including those who have changed their household registration to this municipality), when computing the time they have paid the social security fee, cannot include the amount of time paid at their original place of work toward finishing paying the fee and beginning to receive pension payments to their bank accounts.” Therefore, the Shenzhen Labor and Social Security Agency has clearly changed the policy of “the amounts of time he has paid the fee in his last place of work should be combined with the amount of time he has paid it in other places he has worked in order to begin receiving pension payments in accordance with the country’s regulations” into “cannot include the amount of time paid at their original place of work toward finishing paying the fee.”  This conflicts with the clear and definite provision of the Labor and Social Security Office.

 

(3) The way the new provision was drawn up violates the Lawmaking Act:

 

  Lawmaking Act, Provision 19,[xviii] rules:  “The establishment and modification of important local laws must pass the People’s Representative Conference.”  This applies to Shenzhen’s new provision, which is an “important local law” because of its effect on the city’s social security system and its people’s livelihood.  In reality, while Shenzhen’s “Basic Insurance Regulation” and “Social Security Regulation” were both eventually reviewed and passed by representatives, the decision on whether or not to implement these things was actually made outside the law by the important men in Shenzhen’s city hall.   Though representatives had not yet authorized it, Shenzhen’s city hall announced the new provision, ignoring the proper lawmaking authorities and breaching the proper lawmaking process.

 

  Moreover, even if Shenzhen’s city government had this right according to its “social security regulation’s” provision on formulating laws, according to Lawmaking Act, Article 73, Part 1, local governments must “make articles of regulations for better carrying out local laws.”  They may not establish local laws beyond the restrictions of pre-existing local laws, i.e. original social security regulations (Article 13), unless “for the sake of better protecting citizens by adding to their benefits through special provisions” (Lawmaking Act, Article 84).

 

  The Shenzhen Social Security Agency’s previous Regulation 23 clearly states, “Employees who meet the following conditions should receive pension payments by the month:  (a) Have paid the social insurance fee according to rules, (b) Have reached the national retirement age, (c) Or have households who are not registered in this municipality, but have paid the fee for a full 15 years.”  The new provision restricts (rather than adds to) the Social Security Agency’s original regulation’s guarantees and therefore breaches Lawmaking Act, Article 73.

 

  Finally, Lawmaking Act, Article 84, states: “Laws, administrative regulations, local regulations, natural guidelines and independent guidelines or regulations do not influence past regulations.”  During the specific implementing of Shenzhen’s new regulation, it is not clear how Article 13 is carried out and it is not clear whether or not it applies to persons who took part in the pension plan before the regulation came into effect.  If it actually applies to such persons, it obviously breaches Article 84. 

 

          In addition, according to the State Council’s Notification Concerning Implementing ‘People’s Republic of China Lawmaking Act’ (which came into effect in 2000, No. 11), “Government lawmaking work must aim wholeheartedly at serving the people; the key point is to maintain benefits for the majority of people.”  Shenzhen’s new regulation does not meet this condition. 

 

(4) The new provision violates Lawmaking Methods and Labor Law’s principle of equality

 

  Equality is considered the basic principle of our country and of every region in our country.  Sexual equality, racial equality, and the equality of members within a family are all affirmed in our constitution.  The principle of equality is also embodied in the country’s social security system in a way that indicates that citizens enjoy equal rights to the retirement system and social security system.  The constitution’s Article 44 states, “Retirees should receive national and social security guarantees.”  The Labor Law, Article 3 states, “Workers enjoy equal… rights to social security and welfare.”  The Shenzhen social security system widens the difference between registered and non-registered households, discriminating against the non-registered population.  Its unreasonable limitations violate entirely the principle of equality expressed in the constitution and Labor Law.

 

(5) The new provision breaches the Province of Guangdong’s social security laws

 

  Pension Guideline of Guangdong Province, Article 2, Part 15 reads, “This article is applicable to the following work units and persons (pensioners) in districts under this province’s administration… (a) All business enterprises and town individual entrepreneurs and related employees, those who have been investigated and found to be qualified for social insurance, matching any one of the following conditions for receiving pension payments by the month until death:  (1) Have worked since July 1, 1998, have reached the legal retirement age, and have paid the full fee for 15 years.”  Guangdong Province Social Security and Pension Implementation, Article 2 declares, “All, including regular replacement workers, contract system employees, temporary employees, rotating farm workers, individual entrepreneurs and their employees, employees working in the export sector, and both locally registered employees and non-mainland employees of Hong Kong, Macau, or Taiwanese-based investment business enterprises, and all Chinese employees in foreign investment enterprises should receive social insurance.”

 

  It is obvious that the Guangdong Province Social Security and Pension Implementation and its provision for employees registered on the mainland guarantee employees equal social insurance.  As long as they pay the full fee for 15 years, employees should receive pension payments by the month.  The Shenzhen Social Security Agency’s new provision Article 13 clearly violates this item.

 

4. The Inspiration of Germany’s Social Security System

 

          Let me introduce Germany’s social security system here.[xix] We can learn from its experience.

 

          In the early 19th Century, Germany initiated the social security system for all employed labors. All German labors can enjoy the same benefits regardless of their residency. Due to the lack of social security capital, the state subsidized it. It has contributed greatly to German society and economic development. Germany’s social security system and mandatory education facilitated Germany’s unification. Every citizen enjoys the same benefits. Germany, thus, is able to grow stronger and even after 50 year’s division, it can still unify in a rather short period of time. After the country’s reunification, in order to balance the country’s development in all regions, West Germany put in hundreds of billion dollars to improve East Germany’s social security system and its basic infrastructure.

 

      In the last 100 years, Germany’s social security system survived and contributed greatly to the society. Social security allows the poor to maintain certain level of consumption and further create a relatively bigger consumer market. Modern industry’s feature is to have a market with plentiful people. Take the pharmaceutical industry for example, a wealthy person’s consumption of medicine does not increase when he gets wealthier. The demand of medicine relies on the size of population instead of wealth. Germany’s social security system includes medical insurance and helps expand Germany’s medical care and medicine market. This is why Germany’s pharmaceutical industry, compared with other countries, has much bigger sales and earnings. With this rich capital, Germany can invest in R&D in other areas, such as medicine and chemistry. Germany’s pharmaceutical industry and chemical industry are thus far ahead of others and monopolizes the market.

 

          Shenzhen should study the regulations of the State Council’s social security policy, as well as Germany’s experience.

 

 

IV. The Analysis of the Background of the New Social Security Regulations of 2002

 

For obvious reasons, the author is unable to understand the background of Shenzhen’s new social security policy of 2002, but one can probably have a better understanding from a report of the  “Southern City Journal”.[xx]

 

This report revealed the shocking information that Shenzhen’s 14 out of the 19 Provincial People’s Assembly Representatives introduced an amendment of “the Social Security and Pension Articles of Guangdong Province” at the Guangdong Provincial People’s Assembly meeting in January 2003. The amendment aimed to cancel the article that provides monthly pensions to non-residents. This shows that these representatives are unsatisfied with the cruel treatment of migrant workers stated in the 13th article of the Execution Rules of the Shenzhen Social Security Regulations of 2002. Furthermore, they deliberately decided to usurp migrant workers’ rights stipulated by the State Council and the Ptovincial government’s relevant policies in order to avoid obstacles to Shenzhen’s economic development.

       

Let us explore the rationale behind the 14 Provincial representatives:

 

Rationale 1:

Most migrant workers are young and spend relatively short time in Shenzhen. Most of them do not prepare to stay in Shenzhen forever. They simply hope to save some money for future living.

Analysis:

1.                The view sees migrant workers as beggars. The fact that they can enjoy some benefits in the city is grace from those representatives.

2.                As for the assumption that most migrant workers do not intend to stay in Shenzhen does not imply that their savings are for future living, instead of the cushion when they lose their jobs.

 

Rationale 2:

Migrant workers’ pensions put buddens on Shenzhen’s economics and obstruct Shenzhen’s development.

Analysis:

1.                These representatives simply want to”milk migrant workers while feeding them weed”, yet they think they over feed migrant workers. Shenzhen is China’s as well migrant workers’. Migrant workers contribute their labor to Shenzhen and certainly should enjoy fair pensions. Their rights are explicitly written in national laws.

2.                Deng Xiaoping used to say that, “Make some people rich first and the rest will get rich.” Obviously those representatives only remember the first half of the sentence, and they want to milk more from migrant workers.

 

Rationale 3: Migrant workers only pay for 15 years while they could probably enjoy pernsions for 18 years since China’s average male lifespan is 68 years and they are eligible for pensions after being 50-year-old. There is a 3-year gap. (take male migrant workers as an example)

Analysis:

1.               According to the 5th National Census, China’s average male lifespan is 69.63 years now. The gap is increasing.

2.               Everyone enjoys pensions on the same basis. Discrimnation against migrant workers is unfair.

3.               Migrant workers’ contributions to Shenzhen, if calculated in economic terms, are far beyond what they pay for pensions. The GDP, various taxes, and consumptions they create should be factored in as well.

 

Rationale 4:

Enterprises will not be able to pay for workers’ insurance if following the provincial regulations. They will have bad influences and might affect Shenzhen’s investment environment.

Analysis:

1.                It is apprents that those representatives do not care about those hardworking workers. Their reponse might be worse if they know about the amendment.

2.                The argument that migrant workers are being paid for their work is good enough is terribly unfair. Any type of labor work should be compensated well so workers can live a life with human dignity.

 

          From these representatives’ introduction of the amendment, one can discover the real reason behind the disregard of migrant workers’ legal rights. While Shenzhen’s economy is rapidly growing, it is rather slow in terms of civilizing. The disregard of migrant workers’ legal rights has proved a lack of rethink in the policy. It also shows that group interests are dominant in the process decision-making. This will certainly hinder Shenzhen’s development. Even though Shenzhen is working on all means to enhance its competency, its intent to milk migrant workers would only bring negative effects to its image.

 

          Frankly speaking, these representatives’ fundamental interests are against these migrant workers. They represent another “class’ interests”. Then who will represent migrant workers’ interests?

 

   In order to improve the situation, the national representative electoral system should be reformed. In Shenzhen, where more than 5 million people reside, non-residents consist of 3.5 million. However, they cannot have their own representatives. Their voices cannot be heard. I suggest a new kind of election. Electors should be allowed to register for election according to their current residency. So long as a person lives in a place for more than certain period of time, half a year or a year, then he/she should be able to register for a vote.

 

          Only an abolishment of the voting system could resolve the problem that representatives do not concern the majority residents’ legal rights.

 

 

V. Fair and Just Treatment to Migrant Labors

 

  1. Fair and Just Treatment of Migrant Labors: They are the Construction Force of Shenzhen’s Development

 

        It is no question that without millions migrant labors, Shenzhen would not have achieved today’s economic prosperity and social development.

 

        Let us examine the two sets of data: one is the percentage of Shenzhen’s migrant labors’ participation in the social security program.[xxi] As of August 2002, there are 2.25 million people enrolling in pension program. They either live, reside, or work in Shenzhen. Among them, there are about 700,000 Shenzhen residents while there are 1.55 million migrant labors. Migrant worker constitute of 68.89% of the population who have pensions. The other set of data is that at the end of year 2000,[xxii] there are 13,196 professionals in Shenzhen. Among them, 4,319 (32.7%) are Shenzhen residents when the rest (67.3%) are non-Shenzhen residents.

 

        The first set of data explains that in Shenzhen, migrant labors engage in a variety of vocations. They are the major source of domestic production, exportation, and tax. However, they cannot participate in the insurance program if they are unemployed. Also, in a few industries, such as construction, food, and privately owned labor-added enterprises, migrant labors cannot even take part in social security program. But unemployed residents can still have pensions. Therefore, migrant labors should constitute of more than 68.89% of Shenzhen’s population. An analysis says that the number of Shenzhen’s migrant labors should be 8 times as much as that of local labors.[xxiii]  The second set of data also shows that migrant labors not only work on production lines, they also work at managerial and technical levels. Shenzhen’s advanced technologies should attribute to their contributions.

 

         “In the 20 years’ development, Shenzhen is always proud to have millions migrant labors from all over China. They help create the city’s prosperity as well as the capital needed for social development. Shenzhen’s economic miracle and origin of wealth comes from the energetic production force. It is a result of rich and cheap migrant labor.” Therefore, “they are the origin of Shenzhen’s wealth.”[xxiv]

 

  1. Fair and Just Treatment of Migrant Labors: the Demand Has Long Been There

 

          In Zhu Rongji’s “Government Work Report” of 2002, the term of  “disadvantaged group” was first introduced.[xxv] It stressed a need to give special assistance to those disadvantaged groups. Since then, migrant labors’ rights have attracted enormous attention from the media. In merely four months of time, from February to May in 2001, “the South Weekly” published 5 in-depth articles asking for protections of migrant labors’ rights.[xxvi] It called for the elimination of discrimination and the creation of fair and just competence environment”. This is not only necessary in a market economy, but also an important measure to social stability.”[xxvii]

 

  1. Fair and Just Treatment of Migrant Labors: the Party and the State’s Expectation

 

        In the report at the Sixteenth National assembly, Jiang Zemin reiterated a few points pertaining to protections of disadvantaged groups. They include, “We must promote social advancement in all aspects, continuously enhance people’s living standards, and to assure people’s sharing of achievements on the basis of economic development.” “ We must establish a society that provides better social security net, better work opportunities, a society that helps increase household properties so people live better lives, a society where people’s political, economic and cultural rights are respected, a society that allows people to have better education.” “We must deepen the reform of the wealth distribution system and to have a healthy social security system, ” “ We must oppose egalitarianism and prevent income discrepancy,” “We must pursue the goal of common wealth, increase the percentage of the mid-level income, and to increase the low-income level.” He also pointed out that “ to have a social security system that is consistent with the standard of the society’s economic development is the insurance of social and national stability.” All these are the central government’s political requests to local governments to protect disadvantaged groups.

 

          In the document of “Principles of Population, Employment, and Social Security Plan”, it also pointed out that in the Fifteenth National Assembly, a policy to reform the residency system and refresh the social security system will be passed. In Eastern provinces and cities, China should gradually unify labor markets between countries and cities. A sounder social security system must be established. The reform of labor employment must be deepened. The discrimination against people with different careers must also be eliminated.”

 

          After more than 20 years’ rapid economic development, Shenzhen’s has possessed relatively strong and stable economic power. Its economic scale and growth rate is among the top ones on the national list. It already has the criteria to support the disadvantaged groups. “Some people become wealthy first, then the rest of the society becomes all wealthy.” Shenzhen’s outstanding performance meets the expectation from the party and the state. However, it is the government’s responsibility and obligation to treat migrant labors fairly and justly.

 

  1. Fair and Just Treatment of Migrant Labors: Shenzhen’s Development Needs

 

          In modern society, fairness has become a moral standard to evaluate a policy and a social system. The most basic idea in the Universal Declaration of Human Rights that our country has officially singed is “All human beings are born free and equal in dignity and rights.”

 

          If Shenzhen is to achieve the goal of becoming a modern and international city, it needs to pay more attention to the following aspects: education, human resources, legal system, civil environment, morality, identity, and etc.”[xxviii] It cannot simply rely on some 5-star hotels, golf courts, gigantic buildings, or other hardware. It must have its own some moral high ground.

 

          In order to become and international city, with China’s accession into the WTO and globalization, Shenzhen cannot restrain itself with the absurd idea of “others” and “<