Public Interest Litigation in China

1. Public Interest Litigation in China Huang Jinrong Beijing Dongfang Public Interest and Legal Aid Law Firm

2. Contents • A. Overview of rule of law in China • B. Evaluation of public interest law movement • C. Strategies Of Public Interest Lawyers • D.Difference in PIL between China and India

3. A. Overview of rule of law in China • 1. Two perspectives on rule of law in China: Horizontal perspective: Pessimistic description • Compared with the rule of law in the West, there is no true rule of law at all in China. If there is any, the legal system is fundamentally flawed and malfunctioning. • US Country Report on Human Rights on China: The government's human rights record remained poor and worsened in some areas,The government continued to monitor, harass, detain, arrest, and imprison journalists, writers, dissidents, activists, petitioners, and defense lawyers and their families, many of whom sought to exercise their rights under the law. A lack of due process and restrictions on lawyers, particularly human rights and public interest lawyers,

4. A. Overview of rule of law in China • Vertical perspective (historical perspective) :Optimistic description • Chinese government claims In the white paper on rule of law 2008: • “Over almost six decades since its founding, especially during 30 years since the introduction of the reform and opening-up policies, China has made tremendous achievements in promoting the rule of law in its great task of building socialism with Chinese characteristics.” • “A Constitution-centered socialist legal system with Chinese characteristics has basically taken shape. ”

5. A. Overview of rule of law in China • 2. Two pictures of rule of law in China: law in book and law in action (1) rule of law in constitution • The Chinese Constitution in 1982 (with four amendments) envisions a country under rule of law. • Article 5. The People‘s Republic of China practices ruling the country in accordance with the law and building a socialist country of law. • Article 33 " …….. The State respects and preserves human rights." • Article 126. The people's courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.

6. A. Overview of rule of law in China • (2) rule of law in reality • a. Chinese Constitution is hardly applicable in court. • Authorities take a very negative attitude towards the call from the law circles on the judicialization of the Constitution. • b. Most of civil and political rights are not enforcable in court. The rights of person and property rights are the main focus. . c.There is no effective mechanism ensuring the unity of law.SCNPC actually almost never exercised its power. The power of judicial review of court is very limited. • d.The court is too weak to resist interference from the government or the party.

7. A. Overview of rule of law in China • 3. The paradox in the building of rule of law • The process of establishing rule of law aiming at restricting the party state is initiated and led by the party state.The party state takes an instrumentalist approach of law. The party is very careful not to let the law become a sharp weapon against itself. It selectively practises rule of law in different areas: • a.There are areas that completely out of control of law at all. Detentions in form of “two designateds” of Party members. Temporary detention or house arrest of petitioners and dissidents. • b.There are areas with very limited control of law. press, internet, NGO, demonstration. No effective guarantee • c.There are areas with enforceable laws. relatively normal area of rule of law. Civil law, criminal law, administrative laws.

8. A. Overview of rule of law in China • 4. Socialist concept of rule of law(社会主义法治理念) • In 2006, the party state launched an education campaign on the judiciary and police on the "socialist concept of rule of law", the party’s new theory on rule of law. • It mainly consisted of five aspects: governance according to law, enforcing the law for the people, equality and justice, serving the overall situation and leadership of the CCP. Distortion of law or intervention from the party or government can be justified. • Supreme People’s Court: in handing cases that might harm the interest of the masses and social stability, various complicated elements should be taken into consideration with a view to enforcing laws as well as maintaining social stability.

9. B. Evaluation of public interest law movement • 1. Concept of Public interest litigation. • it usually means litigation seeking to promote social change through court-ordered decrees or litigation designed to reach an end beyond the individual case. • The goal for public interest could be advocacy for legal reform, policy change, enforcement of law, or just exposing unlawful or unreasonable practices. Anyway, public interest litigation lawsuits are intended to have wider implications beyond the individual case and affect more than the immediate litigant. • Public interest litigation emerged in late 1990s in China, and has been booming since 2000. Most Initiated by lawyers.

10. B. Evaluation of public interest law movement • 2. Active Areas in public interest litigation • (1)Consumer rights protection • (2)Anti-discrimination (including woman’s rights) • (3) The right to education • (4) Land and property rights protection • (5) Environmental protection • (6) The right to government information • (7) Make government agencies accountable in law enforcement

11. B. Evaluation of public interest law movement • 3. The major difference between West and China on public interest litigation • In West,public interest litigation to a large extent is based on the capacity of courts to make law through interpreting and invalidating existing laws and to order public institutions to enforce laws. • The courts are playing a much less important role in public interest litigation in China. Chinese courts explicitly do not have the authority to invalidate or interpret laws, and individual decisions of courts do not have official precedential value. Furthermore, courts have limited remedial powers ; After a judgment is rendered, even the enforcement is often very difficult.

12. B. Evaluation of public interest law movement • 4. Main achievements: • 1. Successful cases: succeed in court and succeed out of court; • There are lots of Cases that have brought out positive influence and catalyzed legal reform and social transformation in some respects.(anti-discrimination) • The concept of public interest litigation is partly accepted by government agencies, especially in the area of environmental protection. • 2. Welcomed by media and general public, and often can produce great impact. • 3. More and more lawyers and ordinary citizens begin use Public interest litigation as a tool to advocate rule of law and social justice.

13. B. Evaluation of public interest law movement • 5. Problems • (1)High rate of no admission of public interest litigation cases • It is estimated that more than 60-70 % public interest litigation cases were not admitted by Chinese courts. • The courts are more sophisticated in dealing with public interest litigation and more determined to reject some public interest litigation cases. In so doing, Chinese Courts cater the authorities’ preference for social stability as well as push out hot potatoes which are beyond their control.(standing, scope of jurisdiction, inability, political intervention) • (2)Low rate of victory in court • A study I conducted in 2006 on public interest litigation cases showed that this rate was no more than 18%, counting in those cases ended in compromise through mediation and those only partially wined and those cases are not admitted by the courts. But the rate of winning in cases admitted by court is however still considerable. • (3)Petitions ended in little direct response from the authorities.

14. B. Evaluation of public interest law movement • 6. Political restrictions and risks for PIL • public interest litigation in certain areas such as certain “political rights” in Chinese sense is either not possible in law or there is little chance courts will admit such cases. • Even the courts admits such cases, there is little chance they will be covered by media that mostly controlled by the authorities in China. • Those who frequently pursue this type of cases and frequently contact foreign media for help could easily be labeled as political dissidents. • Due to the uncertainties of political sensitivity, there is possibility of being over-politicized in an seemingly normal public interest litigation case.

15. C. Strategies OF PI Lawyers • 1. Beliefs shared by most public interest law activists. • Most activists identify public interest litigation as a legal movement rather than a political one. This self-identification can be demonstrated in their insistence on the use of legal tools no matter how they are ineffective in practice. The persistence in legal actions in part can be attributed to the increasing belief of rule of law among the legal profession in China. • In a large country like China with a long tradition in which most people, from ordinary citizens to the leadership, lack of respect for law, this moderate and steady approach is one of the most effective ways to change the mind of people and the society. • By insistence on the use of legal tools which are often too dull to use, the activists also believe that their unremitting actions would eventually bring a systemic improvement of the legal mechanism.

16. C. Strategies OF PI Lawyers • 2. Mild advocacy approach • The mild advocacy approach adopted by activists partly due to their beliefs on gradual transformation, partly due to the realistic tactics in current political environment. • Most legal activists usually carefully choose cases that are not too politically sensitive but with the potential to have widespread social impact. It is also possible for the media which on the whole are controlled by the government to cover these legal actions. • Most legal aid practitioners would like to adopt a moderate model of advocacy by working within existing legal channels, carefully citing the current Constitution, laws and official rhetoric, and taking advantage of the issues that it is possible for the media to report.

17. C. Strategies OF PI Lawyers • In contrast, some radical activists who have directly challenged fundamental state or Party interests by focusing on particularly sensitive political issues such as Falun Gong, adopting radical tactics or becoming too much involved in group protests or local unrest have been less successful in promoting legal reform. • These radical actions along with the following suppressions by the government have received significant media attention in western countries. But they are almost invisible at all for the general public in China

18. C. Strategies OF PI Lawyers • 3. Media strategy • In current Chinese context, the use of the media emerges as the most powerful tool for increasing the impact of any individual case and producing positive results in advocating public interest. • The legal actions of activists provide the civil society with a platform through which to influence public opinion and to pressure those with decision-making power to act. In this respect, they are an increasingly powerful vehicles to bring attention to problems that otherwise would remain unaddressed. • Public interest litigation and publicity interest litigation

19. D.Difference in PIL between China and India • (1) The role of court : judicial activism and judicial restraint; too open a door and too hard to open the door • (2) political environment: democracy and authoritarianism • (3) Focus: help poor people and advocate legal reform; image of public interest litigation: India court has paid much attention to abuse, misuse of PIL