Jerome A. Cohen and J.Colin McGee. Do Chinese Have A Right To Return Home?

June 22, 2010

After camping out at Tokyo’s Narita airport for over three months in an extraordinary protest against the Chinese government’s refusal to allow him to return home, Shanghai human rights activist Feng Zhenghu made history last February. Having only recently turned him away for the eighth time, the government suddenly yielded, ending the worldwide publicity that had been poisoning the atmosphere for the impending opening of Shanghai’s World Expo.

Is this embarrassing government reversal a precedent that should encourage the many Chinese political dissidents who have been yearning to end their foreign exile? Can they now return home if, like Professor Feng, they are prepared for the often illegal restrictions on their freedom that may await them? Has the Chinese government decided to remove one of the obstacles to its long-pending ratification of the International Covenant on Civil and Political Rights (ICCPR), which, almost without exception, precludes states from excluding their own nationals? Or was the reversal in Feng’s case a one-off “sport” of no enduring significance?

Certainly, the famous 1989 Tiananmen student leader Wu’er Kaixi, now living in Taiwan, and the temporary Swedish resident Li Jianhong, who both unsuccessfully tried to return to China while Feng was demonstrating in Tokyo, must wonder whether similar imaginative antics on their part might now succeed.

Perhaps the Boston-based democratic organizer Yang Jianli, who holds Ph.Ds from Berkeley and Harvard, regrets that he did not resort to Feng’s tactics instead of misusing a friend’s passport to enter China in 2002 after vainly waiting a dozen years for permission to return. Yang was caught and served five years in prison.

These are not isolated incidents like the recent, disturbing U.S. government practice of temporarily exiling a handful of Americans suspected of terrorism by placing them on a “no fly” list. Because their political influence might be greater at home than abroad, hundreds, possibly thousands, of Chinese activists living abroad are refused re-entry. Only the Chinese government knows the statistics.

The problem goes far beyond Chinese living abroad. Although many domestic activists are prohibited from foreign travel, the Chinese government presses others to leave. Yet the risk that they might never be allowed to return has prevented many from agreeing. Thus, even some former “rights lawyers” who have served prison terms, such as the now  illegally house-arrested Zheng Enchong, have been reluctant to consider even short trips.

Does China’s law authorize exclusion of its own nationals? No legal justification was offered to support Professor Feng’s eight rejections or the decision reversing them. Before the reversal, a Foreign Ministry spokesman merely asserted that relevant agencies were following the law. Chinese legislation permits exclusion of nationals who lack a valid passport, and, since the government often refuses to renew the passports of overseas dissidents, it bars many on that ground. According to a regulation, those with valid passports, like Professor Feng, can still be excluded if either the Ministry of Public Security or the Ministry of State Security in Beijing notifies the border authorities to do so, no reasons required.

Professor Feng did not rely solely on his airport protest but also retained one of China’s outstanding human rights lawyers, Mo Shaoping, to bring a court complaint. Their complaint claimed Feng’s exclusion was illegal because neither of the central police ministries had issued an exclusion notice. Moreover, although “the right to travel” was removed from China’s Constitution during the Cultural Revolution and has not been specifically  renewed, the complaint also claimed that the exclusion was an unconstitutional denial of Feng’s physical freedom.

Unfortunately, the court never accepted the case and in any event lacked the power to rule on constitutionality. Yet the Standing Committee of the National People’s Congress, which is empowered to interpret the Constitution, refuses to exercise that power.

A comparison with contemporary Taiwan is instructive. In 2003, Taiwan’s constitutional court, the Council of Grand Justices, ruled that Taiwan nationals have a right to return home without asking for approval. That right, the court held, can only be restricted to protect the country’s security and social order if stipulated by law — not mere regulation — and subject to the constitutional requirement of proportionality or reasonableness. But even those limited restrictions have now been discarded by Taiwan’s recent incorporation into its domestic law of the ICCPR, which forbids states from excluding their nationals for almost any reason.

China too should allow all its nationals to come home.  This would eliminate a major hurdle to its ratification of the ICCPR and permit a large number of able, dynamic and patriotic reformers to contribute to the Motherland’s further progress.

This article appeared in edited form in the South China Morning Post on June 22, 2010 under the title, “Return of the Native.”