Rhetoric and reality: litigation rights of Chinese disabled people

Abstract

This article discusses the impact of China’s latest judicial reform on disabled people. In 2018, the Supreme People’s Court of China (SPCC) issued judicial reform documents for courts attempting to guarantee disabled people equal access to litigation rights. One year later, reform has provided only partial improvements for disabled people. The legal hierarchy of the Law of the People’s Republic of China on the Protection of the Disabled (LPRCPD) limits reform. The weakness of the Litigation Rights of disabled people has a negative influence on basic rights, including rights to equal employment and education. It is imperative to make targeted modifications to relevant laws, including Civil Procedure Law of China (CPLC).

Keywords:

• Disabled people
• litigation rights
• equal employment rights
• Civil Procedure Law of China
• Law of the People’s Republic of China on the Protection of the Disabled

Introduction

According to the China Disabled Persons’ Federation (CDPF) in 2010, the population of disabled people in China was conservatively estimated at more than 85 million. However, the latest data of the CDPF shows disabled people in China remain in a remarkably disadvantaged position in society: in 2018, there were 13,770 high schools and 23.75 million high school students in China, but only 102 special education classes for 7,666 disabled students showing disabled people lack adequate educational opportunities. Meanwhile, studies have confirmed that in 2011, the poverty rates of rural and urban disabled families were 33.78% and 50.17% respectively and that the more disabled people in a family, the poorer the family (Jin-Ling and Juan 2018). This indicates that Chinese disabled people still lack equitable job opportunities and are in a relatively weak economic position compared with non-disabled people.

The overall low level of education and economic ability for disabled people reduces the willingness and ability of disabled people to defend their rights through litigation. A study funded by the Ford Foundation showed only 20% of disabled people in China realize they can protect their legitimate rights and interests through legal means when their rights are infringed, only 2.9% actually file a lawsuit (Yang 2008).

Protection system of litigation rights of disabled people in China

In 1990, China passed the Law of the People’s Republic of China on the Protection of the Disabled (LPRCPD), the first and only comprehensive law in China devoted to protecting the rights and interests of disabled people. Although the LPRCPD provides support, it is still difficult for disabled people in China to file anti-discrimination suits or resolve daily life disputes through litigation, largely due to the lag of the Civil Procedure Law of China (CPLC).

The current CPLC was passed in 1991, and amended in 2007, 2012 and 2017. It should be pointed out though that China ratified the UN Convention on the Rights of Disabled Persons (UNCRPD) in 2008. According to the requirements of UNCRPD Article 13, China as a contracting party should ensure disabled people have equal access to justice. However, the amendments of the CPLC in 2012 and 2017 have not been revised in accordance with the UNCRPD Article 13; existing legislation does not promote equal participation of disabled people in litigation.

The CPLC lacks legal provisions to provide necessary support for disabled people’s participation in litigation. Chinese courts are not obliged to provide litigation assistance for disabled people. For example, people with hearing impairment may need to hire sign language interpreters themselves which increases litigation costs. Chinese courts are not obliged to provide barrier-free facilities which make it difficult for disabled people to participate in court.

Meanwhile in China, people with intellectual disabilities are defined as “persons without competency to participate in an action” in the CPLC, meaning that a person with intellectual disabilities is not allowed to participate in litigation without the intervention of a guardian and has no right at all to determine the beginning or end of their “incapacity”. This is contrary to the requirements of the Equal Recognition embedded in the Law of UNCRPD Article 12. The CPLC is still unable to guarantee equal access and unable to facilitate disabled people to exercise their litigation rights.

Further, it is difficult for disabled people to apply for effective legal aid measures set up by the Ministry of Justice of China for those who cannot afford litigation. The application for legal aid by disabled people means the government will provide professionals to assist applicants in litigation activities and bear the corresponding lawyer fees and legal costs. The main providers of legal aid are Legal Aid Centers under the Ministry of Justice. But unfortunately, a study by the Ministry of Justice confirms that Legal Aid Centers, like the courts, lack barrier-free facilities and professional staff and face the problem of insufficient funds to effectively protect the legitimate rights and interests of disabled people (Xia 2014).

Supreme court of China pursues judicial reform for disabled people

In 2018 the Supreme People’s Court of China (SPCC) (2018) issued a reform document to local courts in accordance with the spirit of the LPRCPD and hoped this would enable disabled people to enjoy legal services with lower thresholds, more content and wider scope without amending the CPLC.

In the reform, the SPCC requires local courts to assume additional obligations beyond the provisions of CPLC. According to the requirements of the reform document, local courts must apply for legal aid for disabled people, instead of disabled people applying themselves. When a poor disabled person files a lawsuit, the court must reduce or exempt the lawsuit fees. When a disabled person has mobility impairment and the trial courts lack barrier-free facilities, the SPCC even requires judges to set up temporary courts in their own residence to facilitate attendance. The SPCC asks the CDPF to provide legal advice for disabled people, and engage legal assistance services such as sign language and braille for visually impaired people.

Mr. Huang, who is mobility impaired in Jingxi, is one of the beneficiaries of this reform. Mr. Huang and his five siblings had a dispute over the assignment of heritage and jointly filed a lawsuit. However, Mr. Huang’s mobility impairment made it difficult for him to participate in the trial personally. The judge set up a temporary court in Mr. Huang’s home so that Mr. Huang could participate in the litigation activities. Finally, Mr. Huang and his siblings reached a mediation agreement and Mr. Huang did not have to pay legal fees (Jiayu 2018).

Why is the result of the reform not more remarkable?

One year following reform, the SPCC, the CDPF and the Ministry of Justice have not provided convincing statistics on its effectiveness. Local courts, judicial bureaus, and the Disabled Persons’ Federations (DPF) in large cities such as Beijing and Shanghai have not disclosed relevant data. The only source of data we found is the Justice Bureau of Kunming, the provincial capital of the province where Shangri-La is located. Disclosed data detailed applications for judicial assistance for disabled people since the reform. During the 10 months (07/2018–06/2019), the Legal Aid Center of the Kunming Justice Bureau provided 1,256 legal aids and 5,265 legal consultation services, but only 1.11% and 0.47% for disabled people. The reform seems to have stalled.

There are many reasons for stagnation of reform including lack of funds. The SPCC has no power to order and supervise the CDPF which has become the Ministry of Disabled Persons’ Affairs of China. But the most important reason is that Chinese law operates through a pyramid structure with distinct levels in which the lower-level law needs to obey the higher-level and cannot exceed its authority. The CPLC belongs to the level lower than the Constitution, and the level of LPRCPD is lower than the CPLC. This means only the CPLC can stipulate the content related to civil procedures, while the LPRCPD has no right to stipulate any special measures for disabled people. Without the protection of higher-level laws, many reforms pushed by the SPCC according to the LPRCPD are difficult to action because of its low legal binding. Therefore, reform may provide some leverage for disabled people to participate in litigation at a technical level, but it fails to fundamentally challenge the weakened state of their litigation rights.

Impact on basic rights of disabled people

The weak legal rights of disabled people make it difficult for them to use litigation as a way of safeguarding their rights in struggles against discrimination. As a result, the basic rights of disabled people are insecure, including rights to education and employment as the following examples show.

In March 2019, Zheng, a male blind college graduate, was denied a teaching job at a Special School for the Blind in Nanking, China, despite having ranked top in written and oral exams for the job (Rongquan 2019). The reason for rejection was that he failed a physical examination due to impaired vision. Zheng did not litigate but states that he still keeps hope for the system to create a way for him. In a previous case, Wang, a female preschool teacher from the same province was also denied a teaching license due to her use of a prosthetic eye (Yilong and Ting 2018). Unlike Zheng, the visually impaired female preschool teacher sued the local Board of Education. Yet after multiple trials and appeals over three years, Wang did not succeed in shaking the system to obtain a teaching license. In both cases, it is claimed the two visually impaired people did not pass qualifying physical requirements, listed in a regulation stipulated by the Ministry of Human Resources and Social Security, the National Health Commission, and and the State Administration of Civil Service in China (2016). This regulation contains over twenty articles specifying health requirements; visual impairment and hearing impairment are categorized as disqualifying conditions.

Standards of physical requirements do not only apply to employment within the public sector, but also to higher education admission in China. All students are required to go through a mandatory physical examination. The physical requirements for higher education admission clearly states that the institutions cannot grant admission to student with certain physical conditions. Universities or colleges may reject students with certain impairments. Although these rules are against LPRCPD, the present procedural law of China stipulates litigants can only make recommendations to the legislative branch and such appeals do not often receive satisfactory outcomes.

With the combination of physical requirements in higher education admissions and employment, it is not surprising there is a lack of disabled academics in China and few disabled employees in the public sector. In 2018, only 9.484 million disabled people were employed in China, of which 4.801 million were engaged in traditional farming and animal husbandry with low incomes, 1.423 million were employed in government-provided welfare posts, 2.546 million were engaged in basic handicraft or service industries in their families or communities with government subsidies, and only 0.714 million were able to choose their own jobs. It is difficult for disabled people to fight against unreasonable employment and education discrimination.

Conclusion

In the Chinese legal system with its pyramid structure, it is difficult to improve litigation rights of disabled people through judicial reform. The CPLC has not been substantially revised in accordance with the spirit of the UNCRPD article 12 and 13. It is still difficult for disabled people to protect their rights and interests through litigation, and the rights of disabled people advocated by the LPRCPD are often reduced to rhetoric in judicial activities. Efforts of the LPRCPD to ensure equal employment and access to education for disabled people have also had little effect due to the difficulties of litigants with disabilities to safeguard their own legitimate rights. Even with multiple trials and appeals in the legal system, disabled people have not yet succeeded in removing the regulatory physical requirements barrier. The barriers deter other disabled people from pursuing diverse occupations and further education. Regulatory obstacles and legal difficulties limit disabled people’s rightful choices in life. To safeguard rights of disabled people, Chinese law has a long way to go in implementing the UNCRPD.

Disclosure statement

No potential conflict of interest was reported by the authors.