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.