On China's Slow Boat to Women's Rights: Revisions to the Women's Protection Law, 2005

Abstract

The 2005 revisions to the Women's Protection Law represent the first major reform of the various social protection laws (shehui baozhang fa) that have been steadily introduced in China during the post-Mao period, and build on a number of changes introduced through a refurbishment of the Marriage Law in 2001. This paper examines the nature and significance of China's latest attempt to promote the position of women in Chinese society, and more specifically to discourage discrimination against women, by means of law. The revisions to the Law suggest a growing concern with problems of achieving equality between men and women, and with protecting women's rights and interests. However, while important reforms have been introduced by the revised Women's Protection Law, overall the statutory changes that have been put in place indicate that in reality only slow progress is being made.

Acknowledgements

The Author wishes to thank the anonymous reviewer, Zhang Xiaoping, and Xi Chao for their most helpful comments on an earlier draft of this paper, as well as Phil C. W. Chan for his editorial kindness and patience. Responsibility for the views expressed, as well as any errors remaining, rests entirely with the Author.

Notes

1. See, e.g., Ronald C. Keith and Lin Zhiqiu, Law and Justice in China's New Market Place (Basingstoke and New York: Palgrave 2001), pp.49–92 (‘Special Groupings of Human Rights’).

2. See, e.g., Michael Palmer, ‘The Emergence of Consumer Rights: Consumer Protection Law in the People's Republic of China’, in K. Latham, S. Thompson and J. Klein (eds), Consuming China (London: RoutledgeCurzon 2006), pp.56–81.

3. Michael Palmer, ‘Minors to the Fore: Juvenile Protection Legislation in the PRC’, in M. Freeman (ed.), Annual Survey of Family Law: 1991, Vol.15 (London: International Society on Family Law 1993), pp.299–308; and Michael Palmer, ‘Caring for Young and Old: Developments in the Family Law of the People's Republic of China, 1996–8’, in A. Bainham (ed.), International Survey of Family Law, 2000 (Dordrecht, The Netherlands: Kluwer 2000), pp.95–107. Taken together, the two approaches to age-based discrimination law appear to go a long way towards preserving a system of gerontocracy.

4. Thus, the Labour Law 1994 promises in Article 70 that ‘the state shall develop social insurance undertakings, establish a social insurance system, and set up social insurance funds so that labourers may receive assistance and compensation in such circumstances as old age, illness, work-related injury, unemployment and child-birth’. However, the Law immediately qualifies this promise by declaring that ‘the level of social insurance shall be in proportion to the level of social and economic development and social affordability’.

5. For an extended discussion of the relationship between such benevolence and special treatment in imperial Chinese statutory law see Derk Bodde, ‘Age, Youth and Infirmity in the Law of Ch'ing China’, in Jerome A. Cohen, R. Randle Edwards and Fu-mei Chang Chen (eds), Essays on China's Legal Tradition (Princeton NJ: Princeton University Press 1980).

6. Protected in China's current legal system by the 1990 Law for the Protection of Disabled Persons.

7. See Michael Palmer ‘The Death Penalty in the People's Republic of China’, in Andrew Rutherford and Peter Hodgkinson (eds), Capital Punishment: Global Issues and Prospects (London: Waterside Press 1996), pp.105–41.

8. An observation stressed in Ann Jordan, ‘Women's Rights in the People's Republic of China’, Journal of Chinese Law, Vol.8 (1994), pp.47–104.

9. In particular, China's decision to accede to the United Nations Convention on the Rights of the Child was an important impetus for the promulgation of the 1991 Minors' Protection Law, and accession to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women was a major factor informing the promulgation of the 1992 Women's Protection Law. The Minors' Protection Law is now under revision, in part as a result of China's increasing commitments to the welfare of children under various international conventions. In 2002 China ratified the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, as well as the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. In April 2005, China ratified the Hague Convention on Protection of Children and Cooperation in respect of Inter-Country Adoption. At the same time, the current Minors' Protection Law makes no provision for situations that have developed since the mid-1990s, and amendments are being considered by the Standing Committee of the National People's Congress in order to bring the Law up-to-date – particularly important changes currently under consideration are the introduction of new rules that would deal with problems of minors' Internet addiction and their patronage of insalubrious internet cafes, both of which are perceived to be widespread behavioural difficulties.

10. Zhonghua Renmin Gongheguo Funü Quanyi Baozhang Fa (Law of the People's Republic of China on the Protection of Women's Rights and Interests) promulgated on 28 August 2005 and entered into force on 1 December 2005, revising the Law of 1992.

11. Michael Palmer, ‘Marriage Reform and Population Control: Changing Family Law in Contemporary China’, in A. Bainham (ed.), International Survey of Family Law: 2005 (Bristol: Jordon 2005), pp.173–201.

12. For an interesting account of the creation and intensification of ideologies and practices of gender inequality in traditional Chinese society see the insightful but neglected essay: Chiao Chien, ‘Involution and Revolution in Gender Inequality’, in the Christian Academy (ed.), Changing Families in the World Perspective, Volume 1 (Soeul: Wooseok Publishing 1989), pp.138–53.

13. This goal was robustly asserted in the Introduction to Books IV and V: ‘The reform of the Chinese family system constitutes one of the most important items in the Kuomintang programme for the political and social rehabilitation of China … and to enable the citizens to make use of their personal abilities to the best interest of their country … the excessive grip of the old family tier over the individuals should be loosened … The enfranchisement of the woman … is now placed on the same footing as men’. Foo Ping-sheung, ‘Introduction’, in Ching-lin Hsia and James L. E. Chow (trans.), The Civil Code of the Republic of China, Book IV Family, Book V Succession (Shanghai: Kelly and Walsh 1931), pp.v–x.

14. Judith Stacey, Patriarchy and Socialist Revolution in China (Berkeley and Los Angeles: University of California Press 1983), pp.108–57.

15. Harriet Evans, Women and Sexuality in China (Cambridge, Polity Press 1997), p.31. For a classic statement of the concept and practice of ‘woman-work’ and its relationship to Communist Party policy, see Delia Davin, Woman-Work: Women and the Party in Revolutionary China (Oxford: Clarendon Press 1976), especially p.17, where the author writes: ‘I use the term woman-work for the Chinese funü gongzuo … The term covers all sorts of activities among women, including mobilizing them for revolutionary struggle, production, literacy and hygiene campaigns, social reform and so on.’

16. Phyllis Andors, The Unfinished Liberation of Chinese Women, 1949–1980 (Bloomington: Indiana University Press; Brighton, Sussex: Wheatsheaf Books 1983). See also, for example, Norma Diamond, ‘Collectivization, Kinship and the Status of Women in Rural China’, in Rayna R. Reiter (ed.), Towards an Anthropology of Women (New York and London: Monthly Review Press 1975), pp.372–95.

17. See, e.g., Martin King Whyte and William L. Parish, Urban Life in Contemporary China (Chicago and London: Chicago University Press 1984), p.199.

18. See, e.g., John Bauer, Wang Feng, Nancy E. Riley, and Zhao Xiaohua, ‘Gender Inequality in Urban China: Education and Employment’, Modern China, Vol.18, No.2 (1992), pp.333–70.

19. Joan Kaufman, ‘China: The Intersections between Poverty, Health Inequity, Reproductive Health, and HIV/AIDS’, Development, Vol.48, No.4 (2005), pp.113–19.

20. See, e.g., Jordan (note 8).

21. See, e.g., Brian Schwarzwalder, Roy Prosterman, Ye Jianping, Jeffrey Reidinger and Li Ping, ‘An Update on China's Rural Reforms: Analysis and Recommendations Based on a Seventeen-Province Survey’, Columbia Journal of Asian Law, Vol.16 (2002–3), pp.141–225.

22. See, e.g., Jennifer Duncan and Li Ping, ‘Women's Land Tenure in China: A Study of Women's Land Rights in Dongfang County, Hainan Province’ (Seattle: Rural Development Institute, April 2001), p.13.

23. See, e.g., Stanley Rosen, ‘Women and Political Representation in China’, Pacific Affairs, Vol.68, No.3 (1995), pp.315–41.

24. Evans (note 15) p.31.

25. Jordan (note 8) p.95. Of course, there is another side to this story. The general absence of clearly defined and enforceable human rights for the individual Chinese citizen was a significant aspect of socialist rule in pre-1979 China. For women there was less deprivation relative to men, but overall there was a widespread burden on both women and men from the system of authoritarian and often repressive rule that had been put in place under the leadership of the party. Moreover, the almost complete absence of a free press during the Maoist era means that the fact of numerous news reports detailing abuse of and discrimination against women in contemporary China may tend to give a somewhat exaggerated picture of post-Mao deterioration in the position of women in Chinese society.

26. See, for example, Richard Siao and Yuanling Chao (eds) and Yan Kong (trans.), ‘Provincial Laws on the Protection of Women and Children’, Chinese Law and Government, Vol.27, No.1 (January–February 1994), pp.3–105.

27. Michael Palmer, ‘Women to the Fore: Developments in the Family Law of the PRC’, in A. Bainham (ed.), Annual Survey of Family Law: 1994 (Dordrecht, The Netherlands: Kluwer 1996), pp.155–79.

28. Ann D. Jordan, ‘Human Rights, Violence Against Women, and Economic Development (The People's Republic of China Experience)’, Columbia Journal of Gender and Law, Vol.8 (1994), pp.216–72, at p.267.

29. For a somewhat dated but nevertheless insightful characterisation of the system of ‘mass organisations’ see James R. Townsend, Political Participation in Communist China (Berkeley and Los Angeles: University of California Press 1967), pp.150–58.

30. On state and market manipulation of some of these stereotypes, and the emergence of more complex images of women, see Harriet Evans, ‘Fashions and Feminine Consumption’, in Latham et al. (note 2), pp.173–89.

31. On the importance of literacy as a male preserve, and local female responses to conditions of illiteracy, including the development of a special female-specific script known as nüshu (‘female writing’) in Jiangyong County of southern Hunan, see Liu Fei-wen, ‘Literacy, Gender and Class: Nüshu and Sisterhood Communities in Southern Rural Hunan’, Nan Nü, Vol.6, No.1 (2004), pp.241–82.

32. In addition, the 1986 Compulsory Education Law has recently been revised in order to implement a number of important reforms. Entered into force on 1 September 2006, the revised Law attempts to promote greater equality in access to education by, for example, abolishing so-called ‘key schools’; reducing the charges that schools have increasingly imposed even during the period of compulsory education; and sharing competent teachers between schools so that children in poorer areas are not disproportionately taught by unqualified teachers. These reforms, if fully implemented, will undoubtedly significantly assist female students.

33. For current developments in China's system of rural land contracts see Schwarzwalder et al. (note 21).

34. See, for example, Shu Xiaoling and Bian Yanjie, ‘Market Transition and Gender Gap in Earnings in Urban China’, Social Forces, Vol.81, No.4 (June 2003), pp.107–45. Shu and Bian conclude that the persistent gender gap in employment in post-Mao China reflects ‘a consistent gender difference in human capital, political capital, and labor-force placement that remains largely unchanged over the years. Women [have] had less education, had fewer years of seniority, were less likely to be Communist Party members, less likely to be in the state sector … less likely to be cadres and managers in sate agencies and enterprises … Moreover, women were more likely to be workers and to work in service and education … Market forces [have not necessarily eliminated] the practice of discrimination, and its numerous mechanisms of self-maintenance, including gender-based occupational segregation, sex-typed career orientations, and institutional and attitudinal biases’ (pp.1136–7).

35. Michael Palmer, ‘The Re-emergence of Family Law in Post-Mao China: Marriage, Divorce and Reproduction’, in Stanley Lubman (ed.), ‘Law in China Under Reform’, Special Issue of The China Quarterly, Vol.141 (March 1995), pp.110–34; republished in Stanley B. Lubman (ed.), China's Legal Reforms (Oxford: Oxford University Press 1996), pp.127–8; Michael Palmer, ‘The People's Republic of China: More Rules but Less Law’, in M. D. A. Freeman (ed.), Annual Survey of Family Law: 1989 (London: International Society on Family Law 1991), pp.325–42, at pp.337–9.

36. Quanguo Renmin Daibiao Dahui Changwuhui Fazhi Gongzuo Weiyuanhui Xingzheng Fashi (Administrative Office of the Law Committee of the Standing Committee of the National People's Congress) (ed.), Funü Quanyi Baozhang Fa (The Law on the Protection of Women's Rights and Interests) (Beijing: Guojia Xingzheng Xueyuan Chubanshe 2005), p.68. See also Wang Qiongzhi (ed.), Funü Quanyi Baozhang Fa (The Law on the Protection of Women's Rights and Interests) (Beijing: Renmin Fayuan Chubanshe 2006), p.175.

37. See Quanguo Renmin (note 36) p.122.

38. On the development of provisions in the criminal law dealing with these kinds of offences, see Palmer, ‘Caring for Young and Old’ (note 3) pp.96–9.

39. ‘China's First Sexual Harassment Case Rejected’, People's Daily (online edition), 25 December 2001, http://english.peopledaily.com.cn/200112/25/eng20011225_87414.shtml.

40. See, e.g., ‘An Epic Struggle Against Sexual Harassment’, China Daily (online edition), 29 August 2005, http://www.china.org.cn/english/china/140117.htm.

41. Palmer, ‘Marriage Reform and Population Control’ (note 11).

42. Michael Palmer, ‘Patriarchy, Privacy and Protection: Slowly Conceptualising Domestic Violence in Chinese Law’, in N. Iu. Erpyleva, J. Henderson, and M. Butler (eds), Forging a Common Legal Destiny: Liber Amicorum in Honour of Professor W. E. Butle r (London and New York: Wildy, Simmonds and Hill 2005), pp.786–812.

43. CEDAW A/54/38/Rev.1 (1999). The Committee on the Elimination of Discrimination Against Women in addition to the specific criticisms noted above observed that China's approach was misplaced: ‘The Committee is concerned that the Government's approach to the implementation of the Convention has an apparent focus on the protection of women rather than on their empowerment. Thus, the central machinery responsible for government policy is the National Working Committee on Women and Children, perpetuating the identification of women with children. Similarly, in the area of women's health, there is a focus on mother-child health, limited to women's reproductive function. Likewise, labour laws and regulations overemphasise the protection of women’ (para.280). The Committee, at para.281, recommended ‘that the Government re-examine its approach to realising gender equality, with an emphasis on the human rights framework of the Convention and the empowerment of women. The Government should encourage a country-wide social dialogue that advocates equality between women and men, and a comprehensive public campaign aimed at changing traditional attitudes.’ Also, at para.282, the Committee recommended ‘that the Government examine and enhance the structure, authority and resources of the national machinery for the advancement of women’.

44. Palmer, ‘Marriage Reform and Population Control’ (note 11); and Palmer, ‘Patriarchy, Privacy and Protection’ (note 42).

45. Palmer, ‘The People's Republic of China’ (note 35).

46. Palmer, ‘Marriage Reform and Population Control’ (note 11); and Palmer, ‘Patriarchy, Privacy and Protection’ (note 42).

47. 2001 Population and Birth Planning Law, Article 17. For text of this Law and related legislation see: Funü Quanyi Baozhang Fa: Peitao Guiding (Law on the Protection of Women's Rights and Interests and Supporting Regulations) (Beijing: Zhongguo Fazhi Chubanshe 2005).

48. See, e.g., the matrimonial case analysed at length in Anthony Clayre, ‘Mediating: Caring and Control’, in Anthony Clayre (ed.), Heart of the Dragon (Boston: Houghton, Mifflin 1988), pp.91–109.

49. The actual text reads, ‘women have the right to bear children in accordance with the relevant principles of the state’. That is, women do not have the right either to bear children outside marriage or to give birth in violation of the provincial regulations which implement the single-child policy. See Palmer, ‘The Re-Emergence of Family Law in Post-Mao China’ (note 35).

50. The issue of marital rape is one of considerable controversy within Chinese legal circles, with the possibility that a husband could be considered to have raped his spouse having been accepted in principle as an offence, but dealt with very conservatively as a matter of judicial practice so that very few prosecutions have actually convicted a husband of the rape of his wife.

51. Article 30 of the 2001 Population and Birth Planning Law states: ‘The State shall establish premarital health care and maternal health care systems to prevent or reduce the incidence of birth defects and improve the health of newborn children.’

52. See Palmer, ‘The Re-Emergence of Family Law in Post-Mao China’ (note 35), and Palmer, ‘Caring for Young and Old’ (note 3).

53. In the sense that this is an area of government regulation where policy rather than law has played the key normative defining role, and judicial review of administrative action has sometimes proved very difficult and even dangerous for plaintiffs seeking redress for official misconduct. See, e.g., Josephine Ma, ‘Four Years in Jail for Blind Activist’, South China Morning Post, 25 August 2006, p.A7, cols.3–5; and John Pomfret, ‘China's Bumpy Path to Justice; Victim of Birth Control Policy Sues, Wins, Has Yet to Collect’, The Washington Post, 27 March 2001, Section A.

54. See, in particular, Judith Banister, ‘Shortage of Girls in China today’, Journal of Population Research, Vol.21, No.1 (2004), pp.19–45, and Liu Sisi, ‘Where Have All the Young Girls Gone?’, China Rights Forum, No.4 (2004), pp.50–55. China has 119 male births for every 100 female, significantly higher than the global ratio of 103–107:100: see ‘Abortion Law Amendment to be Abolished’, China Daily (online edition), http://www.china.org.cn/english/government/172719.htm.

55. Josie Liu, ‘Changes to Criminal Law under NPC Review’, South China Morning Post, 26 December 2005, p.A-4, cols.2–3, and Sun (note 54).

56. Rosen (note 23). Rosen's insightful analysis demonstrates that in both party and state sectors, women have persistently been underrepresented in leading positions, and that those women who have achieved some degree of success have also experienced the ‘glass ceiling’ of limited promotion prospects and been appointed often specifically because of their responsibilities for women, and have also often been expected to fulfil other ‘minority’ criteria (for example, to be a member of a minority nationality, or one of the democratic parties). Although there was something of a breakthrough in women's political roles during the Cultural Revolution, this was but a temporary development; moreover, the most important of the women who attained leading positions during this radical period did so with the aid of significantly powerful husbands: for example, Jiang Qing (wife of Mao Zedong), Ye Qun (wife of Mao's designated successor, Lin Biao), and Deng Yingchao (wife of Zhou Enlai).

57. Shu and Bian (note 34) p.1112.

58. Du Jie, ‘Gender and Governance: The Rise of New Women's Organisations’, in Jude Howell (ed.), Governance in China (Lanham and Oxford: Rowman & Littlefield 2004), pp.172–92.

59. Ibid. p.183.

60. Indeed, the Law has already been unofficially criticised in China for such failings. Perhaps the most trenchant criticism to date comes form Zhang Zhicheng, who complains that the refurbished Law remains essentially ‘declaratory-type law-making’ (xuanshixing lifa). The revised Law proclaims general political and ideological principles; fails to provide meaningful and enforceable legal remedies; imposes broad duties on government that may well not be capable of implementation; incorporates grand moral standards; is inappropriate even in its efforts to encourage greater political participation for women (better for China to have free and fair elections); and lacks key definitions (for example, for the term ‘sexual harasssment’): see Zhang Zhicheng, ‘Tanlun < Zhonghua Renmin Gongheguo Funü Baozhang Fa > de Ruogan Quexian’, (A Discussion of A Number of Weaknesses in the Women's Protection Law of the PRC), 2006, at Beida Law Information Network, http://article.chinlawinfo.com/article/user/article_display.asp?ArticleID=30524 (accessed 1 November 2006).

61. On the concept of harmony ideology, see Laura Nader, Harmony Ideology: Justice and Social Control in Zapotec Mountain Villages (Stanford, CA: Stanford University Press 1990), and Laurel L. Rose, The Politics of Harmony: Land Dispute Strategies in Swaziland, (Cambridge: Cambridge University Press 1992), pp.79–85.