Making Law: Small-Scale Trade and Corrupt Exceptions at the Vietnam-China Border
2014; Wiley; Linguagem: Inglês
10.1111/aman.12119
ISSN1548-1433
Autores Tópico(s)China's Socioeconomic Reforms and Governance
ResumoIn Vietnam's postreform era, the proliferation of profiteering opportunities have, in addition to creating new forms of corruption, transmuted previously prevailing types of corrupt acts in multiple ways across different levels of state–society relations. Everyday corrupt practices have thus become an essential means of economic survival for many. Starting from the metaphorical framing of petty bribery as "making law," I propose the notion of what I term "corrupt exception" as a conceptual tool to explore the power dynamics of petty corruption between state agents and small-scale traders at the Vietnam–China border. Whereas bribery is felt by local traders to create better profit opportunities, the corrupt exception likewise pushes them into a de facto illegality where they remain subjected to arbitrary "lawmaking" and excluded from legal protection. I show that the metaphors employed by small-scale traders to negotiate complicit relationships with corrupt state officials both contest and reinforce the exercise of a localized form of sovereign power in a permanent state of corrupt exception in which "law" is "made" in exchange for bribes. A través de los distintos niveles de las relaciones Estado-sociedad en la era post-reforma de Vietnam, la proliferación de oportunidades de beneficio ha transformado en múltiples maneras las formas de corrupción anteriormente prevalecientes, al tiempo que han surgido nuevos tipos de actos corruptos. Así, las prácticas cotidianas de corrupción han devenido un medio esencial de subsistencia económica para muchos. A través de la interpretación metafórica de la pequeña corrupción como "hacer ley," propongo el término "excepción corrupta" como una herramienta conceptual para explorar las dinámicas de poder de la pequeña corrupción en la frontera entre Vietnam y China. Al tiempo que el soborno es percibido por los comerciantes locales como una herramienta para crear mejores oportunidades de beneficio, la excepción corrupta los conduce a una ilegalidad de facto dentro de cuyo marco dichos comerciantes permanecen sujetos a un "hacer ley" arbitrario y, por lo tanto, los excluye de cualquier protección legal. En este artículo muestro que las metáforas utilizadas por los pequeños comerciantes para negociar una complicidad compartida con los oficiales estatales corruptos, desafían, al tiempo que refuerzan, el ejercicio de un poder soberano localizado en un permanente estado de excepción corrupta donde "la ley" es "hecha" en el intercambio de los sobornos. Every morning, scores of Vietnamese transporters and trader intermediaries gather at the Lào Cai–Hekou border gate and wait for the checkpoint to open at 7:00 a.m. sharp. Their role in directing the flow of goods from Chinese wholesalers and retailers in Hekou, Yunnan Province, to Lào Cai City on the Vietnamese side of the border is crucial (see Figure 1). One of these intermediaries, whom I shall call Mr. Hưng, specializes in the supply of various goods to Lào Cai–based market vendors. As a local resident, Mr. Hưng holds a special border-crossing permit that entitles him to the duty-free import of Chinese-produced goods into Vietnam up to a maximum value of two million đồng (around $95) per person per day per load. His daily trading volume, however, exceeds this amount by far. Moreover, some of his goods do not comply with current quality and regulatory requirements. To reduce import costs and avoid closer scrutiny, Hưng has an arrangement with a set of customs officials on a 500,000 đồng (around $24) per month basis and schedules his trips to match their hours of duty. Once Hưng has passed the border gate, he may be pounced upon by a mobile patrol of the market control department in charge of trade law enforcement. For a monthly "fee" of 400,000 đồng (around $19) to the market control team, Hưng does not have to worry much about such encounters. According to the good-humored middleman, these arrangements are necessary for him and the market vendors he supplies to stay profitable in their business. "Making law [làm luật; i.e., negotiating a bribe] with customs officials and evading [import] tariffs are essential, otherwise we couldn't make enough for a living," he says (conversation with author, September 6, 2012). In this article, I examine how small-scale traders at the Lào Cai–Hekou border gate negotiate their cross-border trading opportunities with customs officials and other law-enforcing state agents. Through a detailed study of two corruption episodes at my major field site, a large state-run market in Lào Cai City, I illustrate that corruption encounters take place in two different directions: in the one described above, a transgressor of the law (in this case, the trader) negotiates a bribe to bypass a legal restriction or avoid being fined for its violation; in the other, a law enforcement official extorts a bribe from a (real or alleged) transgressor in return for not applying the law. In both cases, the authority to grant an unlawful exception to the legal provisions in place ultimately rests with those whose actual task it is to enforce compliance with the law. In their everyday encounters with borderland traders, local state officials thus assume a localized form of sovereign authority, defined by the ability to decide whether to enforce the law or to declare an exception. I suggest that the juridical concept of exception provides a useful conceptual tool to explore the power dynamics of petty corruption at the Vietnam–China border. This approach builds on the premise that the bribe arrangements of small-scale traders like Mr. Hưng are intimately bound up with the state official's assumed sovereign power to decide on an unlawful exception to the legal provisions that regulate cross-border trade. I define this exception as "corrupt" in the literal sense that it is granted in exchange for a bribe. The metaphorical framing of petty corruption as "making law" (làm luật) adds an intriguing twist to this notion. As Giorgio Agamben (1995:26) notes, "The law has a regulative character and is a 'rule' not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular." This perspective holds that lawmaking is preceded and determined by an exceptional (and most often undesirable) situation or fact that continues to remain unregulated by law unless it is included into the legal order by its very exclusion from the normal sphere of life. It is in this light that Agamben (1995:26) sees the exception as "the originary form of law." Làm luật, however, in its euphemistic sense of negotiating a bribe arrangement, is not preceded by a situation unregulated by law. Rather, it blurs the distinction between the already existing legal framework and the transgressive fact by establishing an unlawful, corrupt exception from the law in the name of law. Anthropologists have analyzed the intricacies of illegal and semilegal flows of goods and people across national borders from a variety of perspectives: as an expression of resistance to states that fail to provide their citizens with sustainable employment opportunities (MacGaffey et al. 1991), as a subversive economy that imposes practical limits on the exercise of state power (Donnan and Wilson 1999), as a collaborative form of trade regulation governed by practical norms and mutual understanding between state agents and local traders (Titeca and de Herdt 2010; Walker 1999), or as a way for traders to challenge and reinterpret neoliberal logics of free trade to their own advantage (Galemba 2012). While each of these perspectives offers a valid way of understanding the particularities of borderland economies and the wider social, moral, and political processes in which they are embedded, the exigencies of systemic corruption in the broader context of Vietnam's socialist-oriented market economy require a view from a somewhat different perspective. Largely inspired by Agamben's work (1995, 2005), the concept of "the exception" has drawn much scholarly attention in the past decade, particularly in studies on neoliberal governmentality and citizenship regimes. In her book Neoliberalism as Exception (2006), Aihwa Ong deploys the exception to examine neoliberal strategies of governing in East and Southeast Asia that rely on the creation of "differently administered spaces of 'graduated' or 'variegated sovereignty'" (Ong 2006:7), such as free trade zones in border areas and other economic and administrative enclaves. Whereas the exception is most often associated with the suspension of basic citizen rights and the reduction of people to "bare life" (Agamben 1995), Ong's neoliberal zones of exception instead offer special economic opportunities to certain segments of the population while excluding others. In countries in which neoliberalism itself is not the norm, these logics of inclusion and exclusion demarcate the boundaries between what Ong calls "neoliberalism as exception" and "exceptions to neoliberalism" (Ong 2006:5). In contrast, the notion of what I term "corrupt exception" shifts attention to certain spaces of overlap between inclusion (into the neoliberal logics of economic self-advancement) and exclusion (from legal protection and, more generally, political participation) in a state in which corruption has become the norm rather than the exception. On the one hand, the corrupt exception at the Lào Cai–Hekou border gate is seen by many Vietnamese small-scale traders as essential for deriving a profitable income from cross-border trade and trade-related services. Oftentimes, traders construe their complicit arrangements with corrupt officials as benevolent exchange relationships from which they ultimately receive more than they give, and notions of hardship and family burdens are employed to elicit compassion and urge state officials to apply the law with reason and sentiment. Yet, on the other hand, the corrupt exception also constitutes a space of illegality in which the law is broken twice in the name of the law: first by the transgressor who violates the (real or alleged) law and then by the official who accepts or extorts a bribe in return for not applying the law. Through their inclusion into this space of illegal opportunity, the corrupt exception likewise excludes cross-border traders from legal protection in their economic pursuits and subjects them to predatory law-enforcement practices. Routine raids for substandard or prohibited goods are met with much resentment and moral outrage, as they are primarily (and most often correctly) seen as a pretext for negotiating the conditions of exchange required for the corrupt exception to apply. Corruption can hence also be understood as "a form of exchange: a polysemous and multi-stranded relationship and part of the way in which individuals connect with the state" (Shore and Haller 2005:7). If all forms of exchange are ultimately embedded in social and power relations and moral economies, then corruption, too, is subject to continuous processes of embedding and re-embedding in the changing societal, economic, and political contexts in which it occurs. Besides addressing the particular social and cultural complexities involved, an anthropological inquiry into the practices and discourses of corruption may further shed light on how, as Akhil Gupta (2005:175) suggests, "people imagine the state to be, what state actions are considered legitimate, and how ideas of rights of citizens and subjects are constituted." What Gupta does not take into account, however, is that citizens may also be, to some extent, co-opted into the wider political economy of systemic corruption. I argue that metaphors and other figures of speech play a crucial role in mediating such processes of embedding and co-opting. As cognitive tools "rooted in the cultural categories within which speakers construct their conversations" (Ben-Amos 1999:152; see also Lakoff and Johnson 1980), metaphors not only frame and shape human (self-)perception and social experience but also harbor the potential to transmit social commentary and political criticism. My findings show that although the growth of systemic corruption in Vietnam has transformed the overall ways in which Vietnamese citizens imagine and experience the state, the tropes, analogies, and metaphors employed by small-scale traders at the Vietnam–China border to negotiate complicit exchange relationships with state officials simultaneously contest and reinforce the exercise of assumed sovereign power in local sites of corrupt exception. Corruption has for a long time been most closely associated with underdevelopment and poor governance in the non-Western world. Since the end of the Cold War, however, the spread of neoliberal principles of market deregulation and privatization has spurred, contrary to the promises of dominant neoliberal perspectives, unprecedented forms and scales of corruption across the globe (Brown and Cloke 2004). Vietnam's shift from a centrally planned economy to a socialist-oriented market economy has had similar effects, and ordinary citizens feel increasingly disenchanted by the degree to which corruption in its manifold manifestations has come to permeate their lives.1 An escalating series of high-profile scandals revealing the close ties between the political elite and private business interests contributed not only to an upsurge in discontent among the general population (MacLean 2012) but also to an increased readiness to question the integrity of the political system and voice off-the-record anger, such as the market woman who whispered into my ear, "I just hate the system (chế độ). It is corrupt all the way through!" (conversation with author, September 15, 2012).2 The rise of corruption as a spiraling systemic phenomenon has apparently eroded respect for the state leadership to such a degree that expressions of discontent have become much bolder than in the past.3 Corruption is, of course, nothing new to Vietnam. Besides the most common contemporary terms for corruption and bribery, tham nhũng and hối lộ, the Vietnamese language is rich in metaphorical expressions denoting a variety of corruption-related practices in different historical and social class contexts. The phrase "the silver bullion pierces the paper document" [nén bạc đâm toạc tờ giấy], for example, dates back to ancient times and indicates a bribe paid to influence a mandarin official to revoke a decree or an edict. If the latter was a member of the petitioner's lineage, the mandarin official would even have been morally obliged to generously grant favors and privileges to his relative, true to the adage "one man becomes a mandarin, his entire lineage benefits" [một người làm quan, cả họ được nhờ]. Under French colonial rule (1884–1945), corruption and nepotism among mandarins and local notables became ever more pervasive (Gillespie 2002:174). The common people's attitude toward greedy and corrupt officials was encapsulated in a proverb that is still popularly used today: "At night we are robbed by bandits and at daytime by the mandarins" [cướp đêm là giặc, cướp ngày là quan]. During the so-called subsidy period from 1975–1986, bribing and gift giving was frequently referred to as lo lót ("taking care of the lining"), in the sense of feathering someone's nest to generate favorable conditions for oneself. Significant segments of the Vietnamese population, including traders and entrepreneurs, apparently "survived decades of central planning and official suppression by co-opting, corrupting and evading state regulators" (Gillespie 2009:248; MacLean 2008). In southern Vietnam, similar practices evolved during the cooperativization of private trade in the 1980s. Ann Marie Leshkowich (2008:23) relates that traders at Bến Thành market (Hồ Chí Minh City) "today joke that one of the great ironies of the central government's cooperative system was that the primary cooperation it fostered was between traders and market management in outwitting the state." As elsewhere in socialist economies, elaborate networks of social relations—based on mutual obligation and reciprocity and nurtured by the exchange of gifts and favors—played an important role in facilitating access to otherwise scarce goods.4 After economic reform, such networks—as well as corruption—not only became more or less "regular solutions to problems of exchange left unsolved by the rule of law and administrative reforms" (Abrami 2002:2) but gradually evolved into a system of rule that some scholars classify as neopatrimonial. In such a system, public offices become commodities that provide ample opportunities to earn back one's own investment by way of misappropriating public resources and extracting rents from below, parts of which are channeled upward in return for further patronage from higher levels of state bureaucracy. "By paying bribes we feed (nuôi sống) the tax inspectors and customs officials, and these guys in turn feed other guys," Mr. Hưng explains, referring to the elaborate patronage networks through which positions in the state sector have come to be secured in present-day Vietnam, "because if you want to work in a lucrative place like this [the Lào Cai–Hekou border gate], you have to spend huge sums to pay your way in" (conversation with author, August 27, 2012). In his opinion, it is impossible to fight the pervasiveness of corruption in contemporary Vietnam. This, he reasons, is "the dark side of Vietnamese society." Another rich field of profit-seeking opportunities was opened up by the privatization of state-owned businesses and assets.5 As in China (Sun 2004:203), the distribution of such opportunities for enrichment and access to power is highly uneven across social groups and regions in Vietnam. Corruption and its distributional effects thus contributed to the growing sense of "exasperated distress" (Harms 2012:739) among the wider population over the blatant discrepancies between the Communist Party's claim of advocating social justice and equality and the reality of economic insecurity, political powerlessness, and an ever-widening divide between rich and poor. Yet as David Smith (2007:5) has pointed out in the case of Nigeria, ordinary citizens "can be, paradoxically, active participants in the social reproduction of corruption even as they are also its primary victims and principal critics." It was allegedly not until the early 1990s that certain forms of corruption became couched in terms of làm luật.6 John Gillespie (2001:10) contends that making law refers to "the arrogation of power by officials to resolve issues not directly addressed by formal law," which then "has the positive connotation of manufacturing local solutions to centrally imposed problems and the negative implication of inventing laws to extract rents." My research, however, shows that in its current usage the term more likely refers to the renegotiation of actually existing legal prescriptions. Perhaps the most commonplace làm luật situation involves the negotiation of an on-the-spot fine between the traffic police and a traffic rules violator, such as when a motorcyclist is caught turning into the wrong lane or fails to present a valid driver's license during a routine traffic stop. Smugglers of contraband make law with relevant local authorities before carrying their wares across the border. Larger illegal trade networks, for example, in the logging and timber industry, may even use bribe brokers, called người làm luật, to ensure that each truckload of wood enjoys a smooth passage through various road checkpoints along the way (Sikor and To 2011:695). Depending on the nature, amount, and size of goods smuggled on the chosen route, more or less elaborate arrangements need to be made. The term therefore seems to imply a certain agency on the part of the bribers in making laws that suit their needs. Conversely, however, làm luật also refers to the extortion of bribes from offenders in return for not applying the law. Unraveling the dimensions of the metaphor therefore requires a brief review of the Vietnamese political and legal system. Vietnam is a one-party state ruled by the Communist Party of Vietnam, whose role as the leading force in state and society remains firmly enshrined in the constitution. The National Assembly, designated as the highest organ of state power and representative of the people, is vested with the sole constitutional and legislative authority. However, as with legislative processes elsewhere in the world, the reality is more complicated. During the pre-reform era, party resolutions and directives, though not technically considered law, in fact had a prelegislative function and thus formed the "skeleton of national legislation" during the socialist period (Dang and Beresford 1998:71–79). These resolutions, often mapped out in opaque propagandistic prose, were then basically left to interpretation at the hands of lower-level authorities, which allowed for a limited but relevant scope of flexibility in (technically illegal) local adaptation and experimentation (Kerkvliet 2005). Since the introduction of đổi mới ("change to the new") in the 1980s, the legal system has undergone profound changes aimed at establishing the rule of law and improving government transparency. This entails that laws are now drafted by the government that is also authorized to issue further subordinate legislation such as detailed regulations, bylaws, and guidelines. Adding to the complexity of the legislative process, law-making authority is not limited to the central level of state administration but also takes place at the provincial, district, and commune level. Thus, "each level can promulgate subordinate legislation and from a constitutional perspective act as a lawmaker" (Gillespie 2008:681). The vertical distribution of law-making authority has not only led to a proliferation of decrees, ordinances, directives, and circulars but also provided its enforcers and transgressors (who often coincide with each other) with new avenues for corruption, an effect that Xiaobo Lü (2000:172) sees as an "unintended result of institutionalization efforts" in the case of China. In Vietnam, the coining of làm luật as an idiomatic term for corruption underscores Walter Benjamin's contention that "law-making is power making, and, to that extent, an immediate manifestation of violence" (Comaroff and Comaroff 2006:35). The "secret of the law," as Gerhard Anders and Monique Nuijten (2007:12) argue, is that the possibility of its violation is already "inscribed into the law as hidden possibility." In sites of corrupt exception, this hidden possibility emerges as a rule and generates a form of localized sovereign power that wields authority by violating the law, or, as Jakob Rigi (2012:81) puts it, by "counterfeiting legality." Lào Cai's history as an embattled trading post located on Vietnam's frontier with China is characterized by major disruptions associated with banditry and ethnic rivalry in its ancient days, followed by French colonialism (1889–1954), socialist transformation, and the experience of war. When Chinese troops invaded northern Vietnam in February 1979, Lào Cai was shelled to ruins and its migrant ethnic majority residents—most of whom had hailed from the lowlands in the early 1960s—were urged to return to their places of origin. Following the normalization of Sino-Vietnamese relations in the late 1980s, border trade gradually resumed. On either side of the frontier, the emerging border economic zones drew, in addition to evacuation returnees, substantial numbers of spontaneous migrants from economically disadvantaged regions in search of work and a better life. Cross-border trade, on the one hand, was seen by the Vietnamese state as an important opportunity for the economic development of the border region that would create new (or better) livelihood options for both the ethnic Kinh majority and for the ethnic minority population in the highlands.7 On the other hand, the competitive advantage of China's economic growth soon led to an unfavorable trade balance for Vietnam, thus calling for tighter regulations and restrictions to keep the flow of Chinese goods from turning into a torrent that would undermine Vietnam's national industry. Lào Cai City stretches out to the south from the junction of the Red River and Nậm Thi River and borders the Chinese town of Hekou, Yunnan province. A bridge across Nậm Thi River connects the twin towns and currently serves as an international border crossing for pedestrians and small transportation vehicles (see Figure 2). Located south of the river junction that marks the border, the major city market is only a kilometer away from the bridge that serves as Lào Cai's gateway to China.8 I chose Lào Cai market as my primary field site for investigating the complex dynamics of social relations and exchanges that facilitate the participation of small-scale Kinh (ethnic majority) market traders in cross-border economic activity. As an important economic resource for borderlanders in many parts of the world, small-scale cross-border trade inevitably makes use of various means and skills to circumvent the restrictions imposed on it (Bruns and Miggelbrink 2012; Wagner 2011). I was thus prepared to hear not only about ways of fostering trustful relations with trading partners and customers but also about bribes paid to customs officers, support from patronage, and the exchange of gifts for favors to secure advantages in the market environment. The outright issue of corruption, however, was not part of my research agenda—it would have raised the concern of those for whom the mere presence of a foreign anthropologist in town already posed a potential threat to border security. My official research permission was therefore limited to Lào Cai's largest marketplace, and this is where my assistant and I conducted the bulk of research from October 2010 to March 2011 and in August and September of 2012. During peak hours, vendors were inevitably busy with attracting customers to their stalls, and much of our daily routine consisted of hanging out in the market's various sections; observing the ebb and flow of trading activities and social interactions with fellow vendors, market administration personnel, and law-enforcement officials; and engaging in casual conversations and idle gossip with vendors during the less busy hours. Occasionally, however, we also ventured out to both sides of the border to watch the loading and unloading of goods, observe custom procedures, and to chat, as inconspicuously as possible, with transporters and trader intermediaries who traverse the border on a regular basis, some even several times per day.9 In contrast to international airports, where encounters between travelers and custom officials are more fleeting in nature (Chalfin 2008), the wielding of sovereign authority by Lào Cai–Hekou border gate officials takes place in the much more intimate space of shared knowledge and practices that defines "communities of complicity" (Steinmüller 2010). Yet the notion of "cultural intimacy" (Herzfeld 2005) does not account sufficiently for the sensitivities that determine the cautious attitude of Vietnamese state officials toward foreign outsiders who, it is feared, may tarnish the image of Vietnam by exposing its ugly sides. In a site of corrupt exception, this includes the possibility of witnessing (as I did on several occasions) the rather common use of extralegal forms of law enforcement, such as harassment, intimidation, and sometimes even outright violence. Sites of corrupt exception are thus inevitably shrouded in an air of secrecy. Some of the secrets that abound in Lào Cai have taken the literally concrete form of opulent buildings towering high above their surroundings. My inquiries as to who were their owners were almost inevitably met with an indication that pointed to the involvement of some higher-level state official—or, rather, their relatives (con cháu các cụ cả; i.e., the grandchildren and nephews of senior elders). "They enjoy the elders' protection and can thus freely engage in [the pursuit of illicit wealth]," one of my more straightforward interlocutors (whom I shall call Dũng) claimed. "That's why there are so many luxurious villas here, although many rich people are cautious—they maintain a simple lifestyle in Lào Cai and buy houses in Hanoi instead" (field notes, August 30, 2012). Moreover, I was told that the contraband smuggled through the Lào Cai–Hekou border gate is really only the tip of the iceberg. The big smuggling allegedly takes place elsewhere, at night. "Nighttime is the time when the black society (xã hội đen; i.e., organized criminals) becomes active," Dũng continued, "and the majority of these guys are under the patronage of some big man. It's only drugs and human traffickers who get caught. Everything else may move freely (tự do)." Considering the massive scale of corrupt enrichment that takes place at higher levels of the unholy confluence of clientelistic power mechanisms and capitalist opportunities to profit, it is certainly not unreasonable to think that there is some truth to such allegations and rumors. Yet only a few of my interlocutors addressed the issue of corruption explicitly. Those who did provided valuable clues for the present analysis—an analysis that, despite being limited in scope and perspective to the experiences, practices, and attitudes of small-scale traders at the margins of the Vietnamese state, hopes to shed light on the overall ways in which petty corruption between citizens and state officials manifests and perpetuates itself in contemporary Vietnamese society. In the following sections, I provide an ethnographic account of how small-scale traders frame and enact relationships of complicity i
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