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"We Tibetans are looking for a legitimate and meaningful autonomy, an arrangement that would enable Tibetans to live within the framework of the People’s Republic of China."

The dragon should obey its own laws

August 9, 2009

Frank Ching
The Globe and Mail
August 7, 2009

On the heels of the arrest last month of
Australian citizen Stern Hu, mining giant Rio
Tinto's top negotiator in Shanghai, China's
foreign ministry spokesman promptly pronounced
Mr. Hu guilty of stealing state secrets, even though there had been no trial.

In the next breath, apparently seeing no
contradiction, the official declared China is a
country where the rule of law holds sway. In
fact, what China has today is not the rule of
law, but rather rule by law, with the government
applying the law selectively against its critics
while not behaving lawfully itself.

That is probably why the government has viewed
with hostility the handful of rights lawyers in
the country who dare to take on politically
sensitive cases and try to ensure the government
itself is subject to the law. For their efforts
to ensure the rule of law prevails, these lawyers
have been threatened, kidnapped, beaten, imprisoned and disbarred.

Last year, after the government cracked down on
demonstrators in Tibet, lawyers who offered legal
help to defendants were reprimanded and
threatened. After the tainted-milk scandal
erupted, lawyers were warned not to represent
parents of children sickened by melamine in baby formula.

Law firms employing human-rights advocates were
pressured to fail the lawyers in their annual
assessment, or have the firm face the danger of being shut down.

Each year, all lawyers must pass a review before
their licences are renewed by municipal judicial
authorities. The government can hold this
procedural requirement over the heads of lawyers,
using it to disbar those whose actions are not to its liking.

This is what happened last year to Teng Biao,
formerly a leading human-rights lawyer. He was
kidnapped, questioned and threatened by the
police for two days. Because he refused to mend
his ways, his licence was revoked.

This year, in the biggest-ever crackdown on
activist lawyers, more than a dozen known for
taking sensitive cases lost their licences. This
is a huge blow to the rights movement,
considering that only a few dozen of the 140,000
lawyers in China dare to take on sensitive political cases.

The latest blow came last week with the detention
in a dawn raid of leading human-rights lawyer Xu
Zhiyong, less than two weeks after a legal centre
he helped found, the Open Constitution Initiative, or Gongmeng, was shut down.

Just how rights lawyers have been able to work at
all was explained in a recent article by Teng
Biao in the Washington Post. While officials
"still violate the law, especially in political
cases," he wrote, they always "have to pretend
that what they do is ‘according to law,' because
their legitimacy depends on it.”

This "divergence between practice and pretense,"
he explained, is what gives space to rights
lawyers. "When we insist on the rule of law and
are public about it, we can at least embarrass
government officials for their illegal actions
and hypocrisy, and embarrassment sometimes stays their hands."

The government, clearly tired of being
embarrassed, is cracking down hard on rights
lawyers, trying to leave them no room to operate.

But this is a short-sighted approach. China's
government should realize these rights lawyers
are a tremendous asset -- talented, idealistic
people who are not trying to enrich themselves
but are dedicating their lives to helping China
and its people. The Chinese government should
welcome public monitoring of its actions. If it
were to abide by the rule of law, there should be
no fear of lawyers who right injustices and give hope to the hopeless.

If China is a country of laws, then the law
should be able to solve people's problems. A
legal system manipulated by the government so
people with grievances have no avenue of redress
is a prescription for trouble. What China needs is genuine rule of law.

Frank Ching is the author of China: The Truth About Its Human Rights Record.
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