Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Thursday, February 8, 2007

HIV/AIDS activist doctor Gao Yaojie under "house arrest"

Gaoyaojie_1 The VOA reports that Dr. Gao Yaojie has been placed under "house arrest" by authorities in Henan, and thus prevented from traveling to the US to receive an award for supporting the rights of women in China. [VOA report | NYT profile of Gao Yaojie]. I use quotation marks around the word "house arrest" because I don't actually know of any legal basis for the actions taken here (and often in other cases as well). Typically, the police simply surround the residence of the person in question and refuse to let anyone in; the person under house arrest may be allowed out to go shopping or something like that, but accompanied by a police officer. Under Chinese law as I understand it, if people are suspected of criminal activity in China, they can be questioned inside or outside of a custodial setting. Once charged, they can continue in custody or can be allowed to await trial outside of custody. These procedures are all in the Criminal Procedure Law and associated documents. There is a procedure called "supervised residence," but this again is supposed to be pursuant to criminal charges and there's no indication that Gao has been charged with anything.

Thus, my tentative conclusion is that the measures adopted here and in similar cases (for example, the long house arrest of Zhao Ziyang) represent actions by authorities who simply do not care what the law may or may not demand or allow. The central government could if it wished pass regulations to allow for this type of thing (since this involves coercive measures, it should be at the NPC or NPC Standing Committee level), but to the best of my knowledge it has not. My guess is that spelling out the conditions under which this kind of house arrest would be allowed would be unsatisfactory: they would either be too narrow to be useful or so broad as to attract substantial criticism, not just outside China but inside it as well.

I think the best term for this kind of action might be "extralegal"; "unlawful", if I'm right about the lack of justifying legislation, is also accurate as far as it goes, but it fails to capture the notion that the legal system is simply irrelevant in the view of the authorities. And if that view can be made to stick, then we have to take it seriously in understanding how the system works.

My premise may of course be wrong; if readers do know of any legal basis for this kind of action, please explain in the comments.

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