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Grounding people with groundless jurisprudence – an illustration of how Chinese human rights lawyers’ freedom of movement are arbitrarily barred (2 July 2021)

The pre-dominantly pro-government legislature in Hong Kong has recently passed a bill conferring authority to the Director of Immigration to prevent a person from leaving the territory under his/her discretion even though the person is free from any criminal liability, albeit the Hong Kong Basic Law clearly states that people in Hong Kong shall enjoy such a right unfetteredly unless they are encumbered by any criminal responsibility.

 

Such practice looks familiar in the adjacent jurisdiction, the Mainland China. It is true that Article 37 of the Constitution of the People’s Republic of China stipulates that “unlawful detention or deprivation or restriction of citizens’ freedom of the person by other means is prohibited”, essentially meaning that Chinese people’s freedom of movement should be fully respected if they are free from criminal responsibility. It is also true that as a State party adopting the Universal Declaration of Human Rights (“UDHR”), China is obligated to allow its citizens to exercise their freedom of movement as they please, pursuant to Article 13(2) UDHR, unless they are restrained by criminal measures.

 

But in reality, such obligation is easily subordinated and stifled when government authorities arbitrarily exercise ambiguously worded measures through loosely adopting the notion of “national security” to restrain people who are totally free from criminal liability from leaving the country, even in dire situation. This article will illustrate this increasingly worrying phenomenon by a number of recent events involving human rights lawyers and activists barred from leaving the country despite absence of any criminal liability.  

 

Recent cases show an increasingly worrying trend

 

This matter has become a concern for many in recent months because such restriction, though already regarded as a trend for a long time, has become increasingly worrying when, in just the first half of 2021, at least 3 human rights legal practitioners and activists in China are prohibited from leaving the territory even though they are not restrained by any criminal measures. These include:

 

  1. Legal activist GUO Feixiong (郭飛雄) (whose real name is Yang Maodong 楊茂東)

 

GUO Feixiong is a legal activist in Guangdong. In January 2021, he was eager to leave the country to visit his seriously ill wife in the United States with the determination of instigating a hunger strike should the authorities interfere his travel. He was detained in Shanghai Pudong Airport on 28 January 2021 for alleged national security reasons, and has remained incommunicado thereafter.

 

  1. Human rights lawyer LU Siwei (盧思位)

 

LU Siwei is a human rights lawyer in Sichuan who has recently been disbarred shortly after his participation in the “12 HKers Case”. In May 2021, he received a Fulbright Scholarship and prepared to leave China for further studies. As he was about to depart on 8 May 2021, he was notified by immigration officers that he would not be allowed to leave the country because of alleged national security concerns.

 

  1. Human rights lawyer TANG Jitian (唐吉田)

 

TANG Jitian is a human rights lawyer in Beijing who was disbarred in 2010. He was eager to fly to Japan in late May 2021 to visit his daughter who is in critical condition, but on 2 June 2021 his boarding pass was destroyed as he attempted to leave the country from Fujian province. He has not been allowed to fly to Japan because of national security allegations.

 

Implication of these cases – Unhumanitarian and Unlawful

 

Two forms of implication can be construed from this pattern: (1) The most worrying and distressing part of these cases is the fact that the authorities are ruthless, manifesting no humanitarian consideration at all even when these human rights defenders are in dire situation: they are prevented from visiting their seriously ill family members overseas; save to mention the fact that (2) such a form of restriction goes against the international legal framework, and it is arbitrary in the context of domestic law.

 

  1. Unhumanitarian practice

 

While this text should limit itself into the discussion of a more technical legal analysis, it is difficult not to mention that it is blatantly unhumanitarian and excruciating to see that people of this country are not even allowed to leave to visit their beloved ones who are in severe condition. As a country which claims to promote its people’s happiness and contentment with the appreciation of people’s rights in its constitution, the aforementioned cases simply show the contrary. Such practice facilitates nought but the deterioration of China’s reputation and image in the international community.

 

  1. Violation of Laws

 

International Human Rights Obligation

 

It is important to note that China adopts the UDHR. Restraining people’s freedom of movement in the absence of criminal liability falls squarely into the violation of Article 13(2) of the UDHR, which states that “everyone has the right to leave any country, including his own”.

 

Moreover, in the last United Nations Universal Periodic Review of China which took place in November 2018, China claimed its adoption and even implementation of the recommendation 28.152 therein, which recommends China to “ensure  that  any  legal  provision  to  protect  national  security  is  clearly and strictly defined in its security laws, in conformity with international human rights law and standards.” Coupled with the fact that it is currently a member of the Human Rights Council, China should scrutinise themselves with a heightened standard of human rights protection framework, meaning that it should carry out the obligation of protecting human rights more proactively.

 

Notwithstanding, as it would soon be explicated below, halfway through the last Universal Periodic Review, the practice in the cases mentioned above clearly shows that China has not been committed to the recommendation when it exercises its domestic law in restraining people’s freedom of movement. There is no indication that China has incorporated its international human rights responsibility into the enforcement of its domestic law whatsoever in this area of practice.

 

Arbitrary Domestic Law

 

In all the 3 cases above, the government refuses human rights lawyers and activists to leave the territory on the ground that their departure may endanger national security. Such legal power appears to originate from the loosely constructed Article 12(5) of the Exit and Entry Administration Law of the People's Republic of China, which stipulates that the State Council (in this context, it essentially means all government departments) can prohibit anyone from leaving China when it deems the departure of the person may endanger national security.

 

In other words, authorities can subordinate a person’s freedom of movement just pursuant to a mere belief that his/her departure MAY (emphasis added) endanger national security. There is no need for departments to show that the departing person does indeed commit endangerment of national security.

 

This application of the law demonstrates blatant defiance of Article 37 of China’s own constitution as well as its international legal obligation enshrined in UDHR to protect human rights, since the provision allows law enforcement agencies to restrict a person’s freedom of movement even when the person leaving is not prosecuted for any criminal liability. A loosely defined imputation, regardless well-proven or not, already suffices to restrict a person’s freedom of movement in China. Neither any court proceeding or criminal sentence nor detailed reasoning as to how such a conclusion is formed are required.

 

This is exactly the practice that can be observed in these 3 cases: none of the human rights lawyers or activists mentioned above has hitherto been encumbered with any criminal liability or punishment. Their departure is refused simply by a groundless proposition of “endangering national security”, without further explanation provided from the government, and they simply do not have means to dispute such a decision. There is no information as to what they can do to eradicate the alleged national security concern (if any), or when they can leave the country.

 

Way Forward

 

China should observe its international human rights obligation appropriately. Being a member of the Human Rights Council, it should maintain its profile by advancing human rights conditions in its own territory. Domestic laws restraining people’s rights shall be construed most narrowly but not the other way round.

 

Thus, it is unfortunate that the authorities are undermining the legitimacy and the credibility of the Chinese legal system when it arbitrarily forbids human rights lawyers and activists who are free from any criminal liability to leave the country, which is totally against China’s own constitutional stipulation and international human rights obligation as identified above.

 

It is hoped that China, especially the law enforcement agencies and the judiciary, can stop arbitrarily restraining human rights lawyers and defenders from exercising their freedom of movement and the loose adoption of the notion of national security. Most importantly, they should stop any kind of persecution against human rights lawyers, for human rights lawyers in China are invaluable members of the society who contribute their career and lives to safeguard people’s human rights and civil rights in this country.