The Procuratorate and Public Interest Litigation (PIL)

The Chinese Procuratorate, which exercises a general supervisory jurisdiction under the Constitution over the application of law, has now stepped in to institute PIL on behalf of the state and public interest. Article 55(2) of the Civil Procedural Law (CPL) explicitly authorizes a procuratorate to institute a lawsuit on behalf of the public interest in relation to the destruction of the ecosystem and natural resources and harm to the rights and interests of consumers at large in areas such as food and medicine safety. The same Article also imposes a restriction on the procuratorate’s public interest law power in that the procuratorate may exercise this power only in circumstances where “government departments and organizations” have decided not to institute public interest lawsuits.

With special authorization from the Standing Committee of the National People’s Congress (NPC) that was given on 1 July 2015, the Supreme People’s Procuratorate (SPP) implemented public interest litigation in 13 provinces, cities and autonomous regions. In addition to the tradition roles of protecting the eco-system and natural resources and safety concerns regarding food products and medicine, the SPP can initiate public interest litigation in relation to the protection of state owned assets and the transfer of the use right of state land, two vulnerable areas where state interests have suffered because of corruption. In accordance with the Decision, the SPP prepared a pilot plan and promulgated pilot work implementation measures.

There are two-types of procuratorate-initiated PIL with different procedures: administrative PIL suing government departments; and civil law PIL suing private entities or individuals. For administrative PIL, a procuratorate should first file a case for investigation where evidence exists that regulatory agencies have violated the law and the violation may have harmed public interest; following a case-filing the procuratorate should carry out investigation. The investigators, upon completing their investigation, should prepare a concluding report with recommendations for actions to be taken. The procuratorate finally considers the report and decides whether to institute PIL in court. It is important to note that PIL is the last resort and will not be brought lightly. A procuratorate is duty-bound to issue a procuratorial recommendation for action before instituting a PIL in court and the administrative agency has one month to respond. A PIL is instituted only after an administrative organ has refused to correct an error or to perform its legal duty at the end of the pre-trial stage and the state and public interest continue to be adversely affected. This design incentivizes self-correction on the part of administrative agencies under the threat of litigation by the procuratoratre; therefore in practice administrative PIL will likely be a rare occurrence after a few initial symbolic test cases.

In contrast the procedural design of the SPP is likely to encourage civil PIL. Where the public interest may have been harmed by pollution, unsafe food and medicine or other unlawful activities, as with administrative PIL the procuratorate should carry out an investigation. Like the administrative PIL, the procuratorate may decide not to pursue a case if there is no hard public interest or the harm is no longer in existence due to the intervention of the procuratorate or other organs. Unlike administrative PIL, however, the procuratorate has a duty to “request” a government department to initiate a PIL or to “suggest” to a social organization to institute a PIL. Having gone through the pre-trial process, if no PIL is launched and the harm continues to exist, then the procuratorate may institute a PIL.

The procuratorate has proven to be effective in designing and instituting public interest action. According to the SPP, by September 2016 the procuratorates in the pilot jurisdictions instituted 1,710 PIL cases, of which 1,668 cases ended at the pre-trial stage and 42 PIL cases were brought to the court for trial, including 28 administrative cases and 14 civil cases. Among the 42 cases, the courts have reached a verdict in 8 of them, all of which found in favor of the procuratorates.

During the pilot, the procuratorial focus had been on the four areas of public interest concern in order to bring out to legal highlight issues “the people care the most”. The style is proactive and aggressive requiring the procuratorate to survey the horizon for clues and sources. According to reports, they carefully categorized potential cases and evaluated them before deciding whether or not to institute a PIL. The 1,710 PIL cases that had been instituted were chosen from 2,982 potential cases that the procuratorates had discovered and assessed, including 2,221 related to ecosystem and natural resources; 371 related the transfer of state-owned land; 280 related to state-owned assets; and 110 related to food and medicine safety.

Ideally, the procuratorate plays an important role in facilitating class action and NGO-initiated PIL. Given a design which both empowers and constrains the procuratorate in instituting PILs relating to private defendants, it is likely and this has also so far been reflected in practice that it will incentivize the procuratorate to motivate the related government departments, mass organizations or NGOs into nudging the plaintiffs who are still hesitating, providing access to information that is otherwise not available and sponsoring solidarity through joint action. It is not by coincidence that the number of PIL cases on consumer protection and environmental protection has grown since 2005. Many of these cases are against powerful private actors. They tend to be jointly instituted by the procuratorate and may not have been possible without the help, investigative capacity and authority of the procuratorate. In this way the state power is exercised in nurturing civil society forces.

Chinese scholars have adapted the cliché of “PIL with Chinese characteristics” in describing the procuratorate’s contribution to PIL. It may be exceptional in the global landscape of public interest law but is necessary and perhaps even indispensable in light of China’s statist tradition where civil society is weak and has not been given space to grow. Facing harm to public interest, the society depends on the state to step in for rescue.

It is therefore clear that China is seeking to develop its PIL by taking its own path that can perhaps be characterized as Chinese authoritarianism, which marginalizes civil society and relies on state organs to litigate issues relating to the public interest and collective rights. It remains to be seen, however, if China can create a culture of rights without a support civil society structures and promote public interest law without concomitant public participation. ​

Leave a Reply