As the year ends, ALN is releasing a statement on eight ways in which rights lawyers in China have continued to face arbitrary detention, harassment, and repression in 2023. A PDF version of the statement is also available from here.
Eight Ways that Rights Lawyers in China and Hong Kong Continue
to Face Arbitrary Detention, Harassment, and Repression
29 December 2023
As 2023 ends, this article highlights eight important or recent developments in the arbitrary detention, harassment, and repression of rights lawyers and activists in China and Hong Kong over the last year.
The context remains the hostile environment for rights lawyers and human rights defenders created by President Xi Jinping and his administration since the early years of his rule, characterized by “rule by law” authoritarianism, that is, by crackdowns on all potential oppositional actors, including (especially) rights lawyers assisting such oppositional actors, through “legal” procedures ostensibly in the name of “upholding law and order”.[1] However, these procedures themselves are designed to allow for easy abuse by authorities, such as language that is vague or easily manipulated, and they lack in any protection against abuse. Extrajudicial or extralegal abuses also occur as well, with the government often simply denying such abuses exist at all. The 709 crackdown, a nationwide series of arrests and interrogations involving over 300 lawyers and activists that started on 9 July 2015 was one of the major early events characterizing the current period.
One of the key international standards violated by these measures is UN Basic Principles on the Role of Lawyers, particularly Principle 16, which states that:
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.[2]
1. The practice of RSDL, enforced disappearances, and torture
Residential Surveillance at a Designated Location (RSDL) is a form of detention at a special facility run by the public or state security bureaus of China, such as a converted hotel or hospital, sometimes euphemistically called a “training center”. The current legal basis is the 2018 amendments of Arts. 75-79 of China’s Criminal Procedure Law (CPL), which allow residential surveillance for up to six months at residences that are not the detainee’s home, but any place designated by police. Under the RSDL system, police disappear a person and place them in the location, often without informing their family despite CPL Art. 75 requiring the police to inform the family within 24 hours. The person is also given no ability to contact their family and in practice their right to a lawyer is restricted for national security related charges, leading to incommunicado detention. The NGO ISHR has estimated that between 53,000 to 90,000 individuals have been enforced disappeared under the RSDL system.[3]
A great majority of the lawyers and HRDs that have been detained in China since the 709 Crackdown began their detention in RSDL. Reports of torture and other abuses in RSDL detention are widespread.[4] The idea is that torture early in the detention process allows authorities to obtain a confession of guilt, ostensibly allowing them to be more easily be arrested and convicted, despite ignoring that Chinese law does not allow confessions extracted from torture to be admissible at trial. Since the person is held incommunicado for at least six months, this allows wounds from torture to heal somewhat before a person is seen by family members, friends, or lawyers, ostensibly allowing the government to more easily deny any report of torture. Because the family members have no information and don’t know what happened to their family member, it also instills fear and trauma into the human rights and legal community.
Lawyers that have faced abuses in RSDL detention include Xu Zhiyong, Ding Jiaxi, Li Yuhan, Qin Yongpei, Chen Jiahong, Chang Weiping, Tang Jitian, Xie Yang, and Yu Wensheng, as well as other rights activists including Xu Yan, Li Qiaochu, Huang Xueqin, Wang Jianbing, and Guo Feixiong (the pen name of Yang Maodong).
2. The lengthening of detention periods for arrested rights lawyers
One notable development in the treatment of rights lawyers in China is that detention periods have gotten markedly longer over the last year both by heavier sentencing and by the lengthening of pre-trial and pre-sentencing detentions. As for heavier sentencing, more arrested lawyers have received heavier sentences over the last year compared to the period from the 709 crackdown up to a few years ago, when sentences were more typically under five years and fewer lawyers received heavy sentences. Some examples of this recent trend include rights lawyer Li Yuhan, who was sentenced last October to six and a half years in prison, despite being over 70 years old and having serious health issues, and in April the human rights lawyer Ding Jiaxi and legal academic Xu Zhiyong received sentences of 12 years and 14 years imprisonment, respectively.
Aside from the greater prevalence of longer sentences, authorities are also extending the period that rights lawyers and activists are detained independently of a verdict. This includes continually extending the period of pre-trial detention before a person is arrested or a trial begins, or introducing delays between a trial and the verdict while the subject remains in detention. Before receiving her long sentence, for example, Li Yuhan was also subject to delays in receiving a verdict for about a year, some argue because she refused to confess her guilt and authorities wanted a confession.[5]
Needless to say, the significant lengthening of sentences and detention periods to which rights lawyers are subjected is a sign that the Chinese government aims to further deter lawyers’ work and instill fear in the legal community.
3. Relentless harassment and intimidation against lawyers and their family members
Chinese authorities continue to subject rights lawyers and their family members to relentless harassment, whether or not they have been arrested or detained in the past. Types of harassment by police include constant surveillance, visits, trailing, calls, interrogations, punitive measures against family members, travel restrictions, and evictions.
Lawyer Wang Quanzhang, who had been previously detained from 2015 until 2020, and his wife activist Li Wenzu, were evicted at least 13 times following Li’s declaration of her intention to run as a candidate for the Beijing Municipal People's Congress.[6] Each time the family moved to a new apartment, authorities pressured the landlord to evict the family or pressured the family to leave in other ways, including at one point by cutting off their electricity, water, and gas service.
The rights lawyer Zhou Shifeng was subjected to constant surveillance following his detention, which he reported came in three shifts every day. [7] He also reported that he had to get permission even for domestic travel, forcing him eventually to leave Beijing.
Harassment can also target family members, such as the son of rights lawyer Chen Jiangang who was denied access to primary school after his father made public allegations about the torture of his client and fellow lawyer Xie Yang.[8] Wang Quanzhang’s son has also been blocked from going to school since the recent harassment against his family began. When rights lawyers or activists go into exile abroad, their family in China may also still be harassed.
The government may also harass lawyers extraterritorially. Lu Siwei was arrested in Laos during his attempt to leave China and travel to the US, eventually being returned to China in October.[9] Similarly, in the context of Hong Kong authorities increasingly acting under Beijing’s direction for National Security Law (NSL) cases, a HK$1 million bounty was placed by Hong Kong authorities on each of eight Hong Kong activists accused of NSL crimes on 3 July 2023, including the lawyers Dennis Kwok Wing-hang and Kevin Yam Kin-fung, who currently live abroad,[10] which was later increased to 13 people on 14 December 2023.[11] Such a bounty openly encourages and rewards others abducting and returning them to Hong Kong.
4. Administrative measures against rights lawyers including disbarment and law firm dissolution
Aside from penal prosecution, lawyers working on sensitive cases are being administratively disbarred as one more form of repression to prevent them from practicing law and assisting their clients.[12] A lawyer may be effectively disbarred by having his or her license cancelled or revoked. The cancellation of a lawyer’s license still allows the lawyer to appeal the decision, although in practice the application is always denied. One method that judicial bureaus may use to ensure the cancellation of a license is to threaten potential employers from hiring the lawyer, as a lawyer’s license will be cancelled if they are not employed within a certain time period. The revocation of a lawyer’s license is a disciplinary measure for alleged misconduct or criminal offences, which cannot be reinstated. In practice, however, lawyers report that the outcome is the same—they are prohibited from practicing law—whether their license is revoked or cancelled. This means that judicial bureaus can effectively disbar a lawyer by cancellation without needing to establish any basis for punitive action through a revocation procedure.
The reason why law firms would be receptive to threats from authorities not to employ a rights lawyer is related to the role of law firms’ annual inspections. Both individual lawyers and law firms are subject to annual inspections. If a lawyer fails the inspection, his or her license will be cancelled. If a law firm fails it, it will be dissolved. For most types of cases, the handling of the case is a subject for individual review; but for politically sensitive cases, the handling of the case is a subject for review for the whole firm under its annual inspection. This by itself deters law firms from hiring lawyers with backgrounds working on rights issues, as the firm does not want to risk failing its next annual inspection. Thus annual inspections of both firms and lawyers allow authorities to have significant control over their conduct.
Since 2016, 46 lawyers have been disbarred, which is more than twice the 20 lawyers disbarred from 1995 to 2015. To the extent there are fewer lawyer disbarments in recent years, it is ostensibly because most of the rights lawyers who are most at risk of disbarment have already been disbarred.
5. Exit bans for rights lawyers
Another form of harassment to which rights lawyers are subjected is bans from exiting the country. Two prominent recent examples are the rights lawyer Tang Jitian and the legal activist Guo Feixiong. Tang Jitian has defended vulnerable groups, was permanently disbarred in 2010, and, troublingly, has been missing since 4 November 2023,[13] and Guo Feixiong is known for battling local political corruption and wrote a prominent book on a political scandal in Liaoning province, and he is currently imprisoned six months into an eight-year term for “incitement to subvert state power” while in a critical state of health.[14]
Tang was prohibited from leaving China in 2017 for “national security reasons” when he attempted to visit Hong Kong for medical treatment, and in June 2021 he was again prohibited from visiting his daughter who was studying in Japan after she was hospitalized with tuberculosis and placed in intensive care where she fell into a coma. Her condition remains gravely concerning to this day, but Tang has not been able to visit is daughter in the years since her health collapsed, and his recent disappearance raises great concern. Guo was not only prohibited from leaving China, but he was disappeared and later arrested for subversion when attempting to visit his wife in the US, who had terminal cancer and shortly thereafter died before Guo was able to visit her.
Exit bans are particularly harsh on the subjects of the bans when they cannot visit their sick family members abroad, despite compelling humanitarian grounds. However, it is important to note that arbitrary exit bans violate the rights of the subjects of the bans in all cases.
6. Lawyer NDAs and unjustified “secret” trials
Recently, the Chinese judicial system has required lawyers in politically sensitive cases to sign Non-Disclosure Agreements (NDAs) for any work they do on the cases. Since the practice began, it has been observed that lawyers do not share information about the cases with the public or even privately to friends and family, evidently due to the NDAs. Lawyers working on politically sensitive cases are also often forced to withdraw from the cases, but they are still evidently prohibited from releasing any information about the case under the NDA. At the same time, courts have stopped releasing information on cases. While basic information such as the verdict and sentence may become known, the public and family do not have access to the court’s documentation on the case and its outcome. This effectively creates de facto “secret trials” without going through the usual procedures for a formal secret trial. A formal secret trial would require authorities to show grounds that the case involves state secrets or similar grounds, and it would also be subject to heavy criticism. By not releasing documentation and subjecting lawyers to NDAs, authorities can create a de facto secret trial, even without the grounds for a secret trial, and the trial is less subject to criticism.
7. Forced admission of rights activists into psychiatric hospitals as a form of arbitrary detention
This factor is not specific to lawyers, but it is an important development in the scope of arbitrary detention affecting human rights defenders of any kind. Petitioners, political dissidents and rights defenders have been subjected to forced admission into psychiatric hospitals by police for involuntary treatment such as Li Tiantian, Zhou Caifeng, and Hao Mingjin in 2021.[15] One of the grounds for such arbitrary detention is the designation of qualities such as “stubbornness in pursuing individual rights”, “feeling pressured”, and “resolute petitioners” as indicators of paranoia and mental disorder under China’s Classification Scheme and Diagnostic Criteria for Mental Disorder (CCMD3), which has been in effect since 2001, explicitly validating the designation of human rights defenders as mentally ill and subject to forced admission to a psychiatric hospital for their rights work. Once in the psychiatric hospital, the persons are subjected to “treatment” that may include electroshock therapy, drugs, and torture. It is relevant to note that under the so-called Ankang system, local Public Security Bureaus may directly administer and operate some psychiatric hospitals instead of medical professionals, allowing such institutions to focus on civil society repression.[16]
While there are no known cases of rights lawyers being involuntarily committed to such psychiatric hospitals, there has been a case in which a rights lawyer was arrested after attempting to express concern or support for an activist subjected to enforced psychiatric admission and treatment. The rights lawyer Xie Yang was enforced disappeared and later arrested and charged with inciting subversion after publicly expressing support and an intention to visit Li Tiantian, a pregnant teacher from a rural school in Hunan Province that had been subjected to enforced psychiatric treatment in December 2021 after publicly speaking out about the firing, harassment, and mistreatment of another teacher that had raised questions about an official historical narrative.[17]
8. The intolerable situation in Hong Kong for rights lawyers and activists under the NSL
The situation in Hong Kong for human rights lawyers and defenders has rapidly deteriorated since the National Security Law went into effect in 2020, leading to a near total collapse of civil society organizations in Hong Kong and leading most human rights lawyers and defenders to either silence their activities inside Hong Kong or leave the country to avoid intimidation and the threat of prosecution.[18] The NSL and newly-revived sedition law has allowed authorities to target human rights activists with national security crimes, as well as deterred civil society action at almost every level of government and society, including the conduct of rights lawyers.
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[1] Taisu Zhang, "Xi’s Law-and-Order Strategy", Foreign Affairs, 27 Feb. 2023, https://www.foreignaffairs.com/china/xis-law-and-order-strategy.
[2] OHCHR, "Basic Principles on the Role of Lawyers", 7 Sept. 1990, https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-role-lawyers.
[3] ISHR, "Call on China to free defenders and #RepealRSDL", https://ishr.ch/campaign/23654/.
[4] Eryk Bagshaw, " ‘Psychological torture’: The brutal system China uses to make people disappear", Sydney Morning Herald, 15 Oct. 2023, https://www.smh.com.au/world/asia/psychological-torture-the-brutal-system-china-uses-to-make-people-disappear-20231013-p5ec16.html.
[5] Gao Feng, "Verdict delayed as ailing Chinese rights lawyer refuses to 'confess', plead guilty", RFA, 8 Sept. 2022, https://www.rfa.org/english/news/china/li-yuhan-09082022102635.html.
[6] Huizhong Wu, "Chinese human rights lawyer chased out of 13 homes in 2 months as pressure rises on legal advocates", AP News, 22 June 2023, https://apnews.com/article/china-human-rights-lawyers-beijing-wang-quanzhang-1e327eb9cf0959d6e643d6101618e8c6.
[7] Gao Feng, "Rights lawyer leaves Beijing after police step up surveillance", RFA, 17 May 2023, https://www.rfa.org/english/news/china/lawyer-expelled-05172023140624.html.
[8] Ding Wenqi, Wong Lok-to, Goh Fung, "Son of Chinese Rights Lawyer Denied Access to Primary School After Torture Report", RFA, 17 May 2017, https://www.rfa.org/english/news/china/son-of-chinese-rights-lawyer-denied-access-to-primary-school-after-torture-report-05172017113350.html.
[9] Amnesty International, "China: Human rights lawyer at risk of torture after return from Laos", 4 Oct. 2023, https://www.amnesty.org/en/latest/news/2023/10/china-human-rights-lawyer-at-risk-of-torture-after-return-from-laos/.
[10] Amy Hawkins, Daniel Hurst, "Hong Kong issues arrest warrants for eight overseas democracy activists", The Guardian, 3 July 2023, https://www.theguardian.com/world/2023/jul/03/hong-kong-issues-arrest-warrants-for-eight-overseas-democracy-activists.
[11] Reuters, "Hong Kong puts arrest bounties on five overseas activists including US citizen", 14 Dec. 2023, https://www.theguardian.com/world/2023/dec/14/hong-kong-puts-arrest-bounties-on-five-overseas-activists-including-us-citizen.
[12] Emily Feng, " 'Where No One Dares Speak Up': China Disbars Lawyers On Sensitive Cases", NPR, 18 Feb. 2021, https://www.npr.org/2021/02/18/963217332/where-no-one-dares-speak-up-china-disbars-lawyers-on-sensitive-cases.
[13] Gu Ting, "Prominent Chinese rights attorney incommunicado, believed detained", RFA, 21 Nov. 2023, https://www.rfa.org/english/news/china/lawyer-detained-11212023133007.html.
[14] Maya Wang, "Prominent Chinese Activist Seriously Ill in Prison", Human Rights Watch, 6 Oct. 2023, https://www.hrw.org/news/2023/10/06/prominent-chinese-activist-seriously-ill-prison.
[15] Pak Yiu, "China forcing political critics into psychiatric hospitals: report", Nikkei Asia, 16 Aug. 2022, https://asia.nikkei.com/Spotlight/Society/China-forcing-political-critics-into-psychiatric-hospitals-report.
[16] Wall Street Journal, "Political Psychiatry: How China Uses ‘Ankang’ Hospitals to Silence Dissent", 19 Apr. 2016, https://www.wsj.com/articles/BL-CJB-29001.
[17] Gao Feng, "Prominent rights attorney Xie Yang arrested for subversion in China's Hunan", RFA, 23 Feb. 2022, https://www.rfa.org/english/news/china/lawyer-arrest-02232022141944.html; Chris Buckley, "Fury in China After an Outspoken Teacher Disappears", New York Times, 23 Dec. 2021, https://www.nytimes.com/2021/12/23/world/asia/li-tiantian-disappearance.html.
[18] James Pomfret, Greg Torode, Anne Marie Roantree, David Lague, "Lawyers exit Hong Kong as they face campaign of intimidation", Reuters, 29 Dec. 2022, https://www.reuters.com/investigates/special-report/china-lawyers-crackdown-exodus/.