By Rebecca Lowe
The ‘engine of change’ is in China, a leading law academic from Hong Kong has said – only 24 hours after state officials stopped two human rights lawyers from travelling to an International Bar Association conference in the UK.
‘People are frustrated with the inequality in society and the pervasive corruption in government,’ Fu Hualing said in an IBA interview on 10 November. ‘In that sense, there is an emerging and growing awareness of rights, freedom and the importance of the rule of law.’
Reform of the rule of law and media censorship controls are inevitable, according to the University of Hong Kong law professor, who agreed to be interviewed after Mo Shaoping – who runs the law firm representing Nobel Peace Prize winner Liu Xiabo – and He Weifang were prevented from boarding a plane at Beijing Airport on 9 November.
|Professor Fu Hualing
All three had been due to take part in an IBA Human Rights Institute panel discussion at University College London on the freedom of lawyers in China. After being banned from flying, Mo Shaoping and He Weifang joined the conference by web-link from Beijing.
In an interview with the IBA, Professor Fu echoed Mo Shaoping’s statement that the authorities’ main concern was to stop the pair attending the Nobel Peace Prize ceremony in Norway next month. But British Prime Minister David Cameron would have a ‘difficult time’ raising the subject during his visit, he believed.
‘I doubt it would make much difference,’ he said. ‘We have exchanged dialogue with China for decades and it doesn’t have any impact on their decision-making processes.’
Despite this intransigence, Professor Fu voiced optimism about the country’s potential for change. The state’s clampdown on lawyers’ rights and freedoms was ‘not a sign it is going back to its old ways’ he said, but a sign that it is ‘facing new challenges’.
‘Civil societal forces are mobilising. Lawyers are very aggressive, active. To stop a lawyer you would have needed only a phone call to do the job ten years ago, but now you need 20 officers physically to push him back home.
‘There is a big difference now. People are starting to know and practise their rights. They are not that scared of force and the punishment the government may impose.’
Though only a ‘small community’ of Chinese people are currently advocating political change, Professor Fu believes ‘frustration is growing’.
‘Ultimately, people are looking at the root cause – whether it is the political system itself that is causing the problem, and whether you can reform the legal institutions under the present structure.’
Lawyers are still subjected to frequent ‘low level’ harassment by local government officials, he added, and the judiciary, lacking independence, often refuses to take on ‘sensitive’ cases that challenge the state authority.
‘Lawyers and judges don’t work well together in China. This is probably unique to the country. In most places you say lawyers and judges are in partnership, they share a common goal – but in China they don’t.’
He added: ‘A solution could be to pay judges more, and we could restructure the judiciary so it is not controlled by local government and has an independent budget so the courts are separate.’
‘There is an emerging and growing awareness of rights, freedom and the importance of the rule of law [in China]...people are starting to know and practise their rights.'
Professor Fu Hualing
University of Hong Kong Department of Law
Lawyers were also inclined to drop cases because of government control over the annual renewal of practice licences, he said – though there remain ‘two or three dozen’ human rights lawyers practising in the country, alongside a ‘much larger group’ providing assistance to vulnerable groups.
Recent legal reforms to strengthen the rule of law have also proved disappointing. Police refuse to follow the 2008 revised Law on Lawyers, he said, and instead choose to follow the more restrictive and contradictory 1996 Criminal Procedure Law.
The amended Law on Lawyers officially allows lawyers to meet criminal suspects or defendants in person without being monitored and gives them greater powers over the collection of evidence – but has little impact in practice due to police non-cooperation.
‘Chinese criminal justice is a police controlled system. Police have the most authority and are not directly accountable to the judiciary. They are accountable to the Communist Party.’
Yet according to the professor, journalists are faring worse than lawyers, with an estimated ‘30 or 40’ currently behind bars. They remain a powerful source of contention for the Party – but hopefully not for much longer.
‘It all depends on what happens in the Communist Party next year,’ he said. ‘Chinese politics is driven by the personality of its top leader.
‘Hopefully next year we will have an enlightened leader who can start to reform the political system.’