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Friday, May 04, 2007

Shining rights

Why must human rights be protected by the rule of law? Victoria Walne, winner of the 2007 Graham Turnbull prize, explains what happens if they are not

Excerpt - Law Gazette: Thursday 03 May 2007 - These examples alone would suggest that inequality before the law is an archaic phenomenon. A glance at the world’s newspapers today show that the need for protecting our human rights by upholding the rule of law is as pertinent now as it has ever been.

Modern China is a case in point. While China’s constitution appears on the surface to afford protection of human rights akin to democratic countries, gaping holes in its legal system undermine this facade.

The concept of the rule of law is entrenched in article five of the Chinese constitution, which states: ‘The People’s Republic of China practices ruling the country in accordance with the law…. no laws or administrative or local rules and regulations may contravene the constitution. All state organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the constitution and the law… no organisation or individual is privileged to be beyond the constitution or the law.’

However, it is one thing to enshrine the principle of the rule of law, but quite another to ensure its implementation in practice.

In China, the fate of Falun Gong, a spiritual self-improvement practice, during the past decade illustrates the way in which fundamental human rights can be undermined by breaches of the rule of law. Since 1996 the Falun Gong movement has been targeted by the government because of its immense popularity and its appeal to all social strata, which is considered a threat to communism.

While article 36 of the Chinese constitution theoretically gives citizens the right to freedom of religion, the stark reality is that such freedom is only enjoyed by state-approved religions, with the term ‘religion’ being given a restrictively narrow interpretation. The right is therefore a qualified freedom, selectively and unequally applied at the discretion of the state.

To counter the ‘threat’ posed by Falun Gong, the Chinese government has promulgated rules and orders that create exceptions to existing laws for cases concerning certain groups, such as Falun Gong practitioners. In no way can it be claimed that the followers of the Falun Gong movement have been treated equally to adherents to other faiths, religions or spiritual practices with regard to their rights under their constitution.

Since the late 1990s, Falun Gong practitioners have been arrested and sent to labour camps for ‘re-education’. A huge state-propaganda campaign has been implemented in an attempt to suppress the movement. September 1999 saw the first case of a Falun Gong adherent tortured to death in custody.

Gao Zhiseng, a leading Chinese human rights lawyer, who, in December 2004, took on the fight for the Falun Gong movement, has had his law firm shut down, his practising licence revoked and on 21 September 2006 was arrested, without a warrant, on charges of ‘inciting subversion’.

The vagueness of this charge is in itself a violation of the rule of law, which requires that the laws by which an individual is judged be clear, precise and accessible. The Chinese state regularly uses other ambiguous offences such as ‘leaking state secrets’ to justify the imprisonment of human rights activists and peaceful protesters.

Broadly defined crimes such as these afford the state a wide discretion which, in effect, gives state officials a license to act on a whim, in any way they see fit, regardless of the theoretical confines of the constitution and its supplementary legislation.

The Chinese state justifies such action with public order and national security excuses. This leads to the question of whether breaches of the rule of law can ever be excused in response to threats against the state and the security of its citizens. Lord Denning certainly thought so when he stated that in ‘a case in which national security is involved… our cherished freedoms may have to take second place. Even natural justice itself may suffer a setback.’ (more)

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