Procurator toolkit in enforcing protections for women

Following recent revisions to China’s Law on the Protection of the Rights and Interests of Women, the Supreme People’s Procuratorate has issued a notice on implementing the law’s new requirements, conveniently released just as International Women’s Day approaches. The document is light on specifics, and probably most notable for the fact that it was issued at all- at least putting the protection of women’s rights on procurators’ radar. It’s best understood as a broad overview of procuratorate efforts under the law rather than new authority, providing an opportunity to discuss some of the many tools available to procurators.

1. Supporting litigation [providing consultation services, arranging legal aid, assisting in collecting evidence, submitting comments in support of lawsuits to protect women’s rights]
2. Oversight of administrative agencies: [Using means such as procuratorate recommendations to urge regulatory bodies to better protect women’s rights or to stop abuses of power]
3. Pursuing public interest litigation- [Pursuing administrative public interest lawsuits against government organs not fulfilling duties to protect women or civil public interest lawsuits against civil entities that infringe on the rights and interests of groups of women with a major social impact.
4. Punishing crimes that violate women’s rights [Fighting against human trafficking, sexual assaults, domestic violence, intimate partner violence etc.; understanding modern standards to prevent criminal insult and defamation of women online.
5. Increasing judicial aid for women [increasing assistance for women involved in litigation and their minor dependents, and better coordinating with social aid resources]
6. Correction of the root causes of harms to women that lead to litigation [a diverse group of directives that includes addressing not only the present case, but also preventing similar situations that may be occurring elsewhere; using diverse methods to resolve disputes such as mediation, criminal settlement, and open hearings, to create a social reckoning beyond a single case; and carrying out legal education to raise awareness.

Government Oversight Functions

Of these, the administrative oversight and public interest litigation functions are most notable. The two functions are closely related, as both involve correcting regulatory bodies’ misconduct or failures to adequately perform their duties.  Such actions are based in the procuratorates’ duties to protect the public interest and to supervise the application of law by other bodies, roles that may be taking gaining prominence after the procuratorate’s power to investigate corruption was shifted to the new Supervision Organs in 2018.

Despite its name, public interest litigation does not always involve court proceedings at all.  Most public interest cases initiated by the people’s procuratorates are administrative, meaning they target a government body. Under the relevant procedures, after investigating and opening a case, the procuratorate must first issue a recommendation to the responsible agency, urging them to correct their regulatory failures in specific ways. Only if problems continue will the case evolve into litigation at court. Civil public interest litigation is also possible against private entities and individuals who violate the public interest, and more likely to go to court, but is much more rarely used.

The best practice, as illustrated by the procuratorate’s example cases, seems to target violations by private entities by using recommendations urging the relevant regulatory authorities to address the problem. Of 10 example cases on protecting women’s rights released in November of 2022, for example, six involved issuing recommendations to local regulatory bodies to step up enforcement against private enterprises with violations such as not giving women benefits they enjoyed, posting discriminatory advertisements, covertly filming women, etc.

The cases also frequently entail holding hearings attended by stakeholders and all the relevant government bodies to build consensus on legal requirements and clarify needs and obligations. Often, ongoing work groups are formed between agencies. Through these methods the procuratorate not only involves itself in resolving individual cases, but can become actively involved in determining how the regulatory bodies will perform their work and in setting their priorities, and can remain involved through follow-up supervision.

Litigation Support and Judicial Aid

These measures aim to provide women involved in cases with legal and material support, respectively, to both encourage lawsuits and offer protection. Helping to overcome some of the challenges to lawsuits is welcome, but the limited support that the procuratorate can provide is unable to overcome greater barriers that exist in the law itself, such as some violations by employers lacking individual causes of action for enforcement.

On March 8th, International Women’s Day, the procuratorate and women’s federations released a set of example cases aimed at encouraging the use of judicial aid to help women facing hardship as a result of crimes or misconduct. At an accompanying press conference, it was announced that some 380 million yuan (54.7 Million USD) in judicial aid had been distributed over the last year to 32,000 recipients. Beyond financial support, the example cases emphasize collaboration with the womens federations and others to provide more holistic support, counseling, medical care etc.  Of course, example cases highlight best practices rather than the norm, and while it’s good to see such services available to some, there is much work ahead.

Addressing Root Causes

The effort to ‘govern cases at their source’ is ambitious because it involves considering the customs and institutions that are leading to violations, as well as individual cases. In the discussion of public interest litigation, it was mentioned that procuratorates often hold hearings on pervasive problems to get diverse input, which is also in furtherance of this goal- aiming to correctly identify the problem and find solutions. The downside is that the emphasis on alternative dispute resolution methods can itself become a deterrent to litigation, or even to finding new violations if they are viewed as a sign that previous efforts have failed.