Public interest litigation lawyers often have their backs to the wall in getting court rulings enforced even after winning a case
A traditional Chinese saying goes, “Married daughters are the water splashed out,” meaning in a patriarchal system, a married woman is the property of her husband’s family and has nothing to do with her parents’ family. Old biases die hard. The same old maxim is plaguing women farmers in the country who are “married out” to a man not from the village. The reason is the woman will bear offspring who will carry the husbands’ family name rather than the family name of her village.
This is what has happened to five women in Tongcheng City of central Anhui Province. In recent years, urbanization has led to the conversion of large tracts of land to non-agricultural uses in the village located in the suburbs of the city. When the village committee distributed the compensation for land, they skipped five women who had started families with men from outside the village. When the second batch of compensation was due to be distributed and the five women found that their names were still missing from the list, they petitioned governments at different levels, but to no avail. They were about to give up hope when they were promised free legal aid by the Peking University Center for Women’s Law & Legal Services.
Li Ying, the attorney for the case, recalled that back in 2005 women farmers losing land-related interests owing to marriage with men from other villages was becoming an issue of national concern. She decided to take up the case to set a legal precedent for women facing similar problems. “This case mirrored our center’s common difficulty in filing litigation for the disadvantaged: the case is easily won but the enforcement of the ruling is too strenuous and requires a lot of work out of court,” said Li Ying.
She filed a lawsuit in the Tongcheng Court representing the five victimized women on June 16, 2005. At the trial on August 3, the defendant, the head of the village committee, made a ferocious rebuttal. “Every nation and every clan has its rules; according to the rules of our clan, land will never be given to married-out daughters,” he thundered. The committee rallied more than 100 villagers, including relatives of these women, who scolded and cursed these women for their “irrational demands.” Some family members even swore that they would sever their relations.
Despite the ruling in favor of the plaintiffs, on the very evening these women won their case, they burst into tears in the hotel room of their lawyer late into the night. Getting the compensation also turned out to be a rough ride. The women finally summoned the courage to apply to court for coercive enforcement only under the encouragement of their lawyer Li Ying. They eventually got the money this April, eight months after winning the lawsuit.
Defining public interest litigation
Li Ying, one of the six full-time lawyers of the Peking University Center for Women’s Law & Legal Services, said by the end of November the center had accepted a total of 93 cases, covering a wide range of issues such as women’s labor rights, domestic rights, sexual harassment and rural women losing land because of marriage. Li said all these cases, whether class action or individual, were examples of public interest litigation.
She said that understood narrowly, public interest litigation is filed for the protection of abstract “public interest”, such as pollution, road safety and constructional hazards, by non-governmental organizations or the prosecutor’s offices. However, China’s laws on litigation stipulate that any plaintiff must be a real stakeholder rather than concepts. Thus, the center views public interest litigation in a much broader sense, that is: “From the perspective of effects and repercussions, as long as the lawsuit is targeted at promoting reform of the unfavorable status quo and improving legislation, it could be deemed as public interest litigation.”
Since China’ reform and opening up in the late 1970s, China has enacted more than 200 laws and more than 650 administrative regulations at the central level. Wu Ge, Director of the Constitution and Human Rights Committee of the All China Lawyers Association, told Beijing Review, “I think public interest litigation is an effective way to ensure all these laws and regulations are implemented and all citizens enjoy their rights.’’
Li Ying believes that in public interest litigation, winning or losing is never the top concern, “Just like a hero should not be judged by victory or failure, the best cases are those that arouse public attention and thinking and inspire certain improvements in the situation.”
Li quotes a sensational sexual harassment case against a kindergarten teacher of southwestern Chongqing Municipality, as an example. This case of Zhang Wenjing charging her headmaster of sexual harassment, lasting from August 2005 to September 2006, was the first sexual harassment lawsuit after the revised Law on the Protection of Women’s Rights and Interests took effect on December 1, 2005. The revised law for the first time writes the term sexual harassment into law and stipulates that victims can file complaints to related government agencies and that harassers would be subject to administrative punishment or civil action.
In this case, which could be written into China’s legal history, the alleged victim lost. Xu Weihua, the lawyer from the Center representing the plaintiff, said the litigation was still meaningful for several reasons. First, the case proved that it was necessary to add the provisions on sexual harassment in the law. Secondly, one reason the victim lost was the lack of a detailed definition of sexual harassment and this has prompted efforts to draft explanations to the law. Thirdly, it offered a reference point for women suffering from harassment.
The center, which started by offering free legal service in 1995 to women who could not afford a lawyer, shifted its focus to public interest litigation involving gender issues in 2004. An important reason for the shift was the Chinese Government’s adoption of the Regulations on Legal Aid in 2003, which laid the foundation for a multi-level legal aid network to serve any destitute person.
Liu Xiaodi is Law and Rights Program Officer of the Ford Foundation Beijing office, the main sponsor of the center since its foundation. She told Beijing Review that they have noticed the shift of focus of the center to representing selected plaintiffs for free and are pleased by it. She said not all cases filed by women were gender related. “I hope the center will represent more cases highlighting issues of gender inequality and sexual discrimination rather than ordinary legal aid cases filed by women,” said Liu Xiaodi.
Lawyers kept out
Li Ying from the center of the Peking University said the difficulties in public interest litigation lay in the process of getting courts to accept the case and getting the verdict implemented.
Supporting women’s land interests in the countryside has become a major part of the work of the center with more land interest conflicts arising from the accelerating expropriation of farmland for construction. When Li Ying and the director of the center Guo Jianmei went to Huizhou of Guangdong Province to represent a group of married women who had lost their land on marriage to men not from their own village in a farmland shareholding reform, the plaintiff and lawyers were kept out of court - judges told them that lawsuits concerning land interest in the shareholding farmland reform would not be accepted as civil litigation by any court in the province. This greatly reduced legal access to women unfairly treated in the wide-ranging reform in the economic powerhouse province which ranks top in land prices.
A judge of Huicheng District Court, who received Li Ying and Guo Jianmei, based the refusal to accept the lawsuit on requirements of a new circular issued by the Supreme Court, but he failed to produce a written document or legal basis.
“It is clearly stated in the Law on the Protection of Women’s Rights and Interests that women’s farmland and residence land are protected by law after getting married or divorced, so from the legal perspective, it made no sense to refuse our litigation,” said Li Ying. She said the financial means of these women as well as those of their offspring would have been reduced to nothing if they lost their land, the only stock in the shareholding reform.
In the end, the village did back off, but not because of the law but owing to the intervention of the Huicheng District Government. According to Li Ying, the district government took the case seriously only after they threatened media exposure of the illegal practices, which would have damaged the city’s image and sabotaged its bid for national city status.
In a similar case represented by lawyers of the center in Hohhot, the capital city of the Inner Mongolia Autonomous Region, 28 women won the litigation for land compensation, but failed to get it enforced even one month after the ruling was delivered. The desperate women, who started to pursue their legal interests in 2002, climbed onto the roof of a six-story residential building and launched a 78-hour sit-down protest in blistering heat.
These women got the first lot of compensation at the end of November, five months after winning their case. The final resolution, in this case too, was pushed by the governments at the township, district and city levels.
“The difficulty in implementing the court’s ruling is more a social problem than a problem of the legal system,” said Zhou Ze, an associate professor at the China Youth University of Political Sciences.
Li Ying said China still lags behind in the rule of law as compared to Western countries. “Before the authority of law is thoroughly set up in society, forces outside the legal system must be rallied to support the disadvantaged group in public interest litigation,’’ she said.