Saturday, February 27, 2016

China’s nationality law: Does a foreign passport protect you?

China’s detention of five Hong Kong booksellers that published titles critical of its Communist leadership has drawn widespread condemnation, with many calling it a serious affront to the government’s pledge to follow the rule of law.

Having covered the story for months, I have paid close attention to one specific Chinese law relevant to the cases – the Nationality Law – for both professional and personal reasons.

Two of the five men in Chinese police custody – after being allegedly abducted by state agents abroad – have foreign citizenship: Lee Bo is British and Gui Minhai is Swedish.

Consular officials from the two European nations have so far failed to gain access to them and the Chinese foreign minister made clear his government considered Lee “a Chinese national first and foremost.”

A foreign ministry spokeswoman reinforced her boss’s message when asked about the issue, saying: “Anyone who is eligible for Chinese nationality is considered a Chinese national.”

In an appearance on state television, Gui asked the Swedish government to leave him alone and insisted: “Though I hold a Swedish passport, I still feel I am Chinese.”

The two cases have sparked a heated debate on the issue of citizenship and unnerved many people of Chinese origin living and working in China – myself included – who believed a foreign passport would offer protection should their actions fall foul of Beijing.

“When somebody is ethnically Chinese – a former PRC national becomes a foreign national and they don’t like what the person does, they go after that person and say at heart you are still a Chinese,” said Jerome A. Cohen, a law professor at New York University and an internationally recognized expert on China’s legal system.

Chinese at heart?

At first glance, the Nationality Law – promulgated in 1980 and containing only 18 articles – seems straightforward enough.

Article 3 states that “the People’s Republic of China (PRC) does not recognize dual nationality for any Chinese national,” while Article 9 says that Chinese nationals living abroad who have acquired foreign citizenship of their own volition “shall automatically lose Chinese nationality.”

Like the bookseller Gui, I was born in China. My family immigrated to the United States in my mid-teens.
Becoming a U.S. citizen
in Atlanta in June 2001.

As a naturalized American citizen who has relinquished his former Chinese nationality, I have been given the “Chinese at heart” talk time and again since moving to Beijing as a journalist some 15 years ago.

The argument I have heard – from officials as well as ordinary people – tends to be more moral than legal in nature, and it cuts both ways.

It has opened doors to sources skeptical or jittery of foreign media, but has also triggered greater wrath – “you should know better” – when I covered sensitive or controversial topics.

I have also detected signs of different official treatment of naturalized foreign citizens of Chinese origin, presumably because the authorities want to crosscheck government databases to ascertain we hold no dual citizenship.

Every year when I renew my journalist visa, police officers raise the question of my former Chinese ID and household registration, which I canceled for permission to leave the country in the early 1990s.

At airport passport control counters, I am often asked to provide my Chinese name – even though the country’s entry-exit regulations include no such requirement.

Formal renunciation

My occasional annoyance aside, it was the plight of Lee and Gui that prompted me to dive deeper into China’s Nationality Law, especially after an online post on the subject became widely circulated on overseas Chinese websites.

The post claims that, contrary to popular belief, most people do not automatically lose their Chinese citizenship when they assume that of another country, as is suggested in Article 9 of the law.

The author cites Articles 10 and 11 as proof that people are required to go through a formal process to renounce their Chinese citizenship if they choose to give it up legally. The Ministry of Public Security’s website provides a form for doing just that.

“The Chinese government is using it in a – let’s say – in a clever way,” said Antonia Grant, a Hong Kong-based partner for the Lewis Silkin law firm who specializes in immigration.

“China is saying, actually you are not a foreigner unless you have formally renounced your citizenship; otherwise, you are still a citizen of China and we will deal with you the way we want to deal with you – and we don’t want foreign governments meddling in that process.”

The lawyer added that the little-known renunciation process could take up to a year.

She cited political concerns – including a rising number of corrupt officials who flee overseas and acquire foreign citizenship to escape the massive anti-graft campaign in China – as a reason for Beijing’s stance.

‘Hard to lose citizenship’

To me, though, the most worrying suggestion was that entering China with a foreign passport and a valid Chinese visa – as I do – does not change your nationality status in the eyes of the Beijing government, which seems to indicate that I could be denied consular assistance in China when facing legal trouble.

“Visa and nationality are two separate concepts,” said Grant, who was not surprised by such interpretation. “It’s really hard to lose citizenship in many countries.”

Chinese authorities have kept largely quiet on the renunciation issue, while scant state media coverage on the topic has provided little hint on the official position.

Many legal experts, however, remain convinced of the unequivocal meaning of Article 9 when it comes to the automatic loss of one’s Chinese nationality upon receiving citizenship from another country.

Any second-guessing or new interpretation only shows that Chinese officials “don’t respect their own Nationality Law,” said Cohen, the American law professor.

Many encounters with police and security officials
while on assignments over the years.

As the Beijing leadership continues to tighten its grip over the nation, Paris-based Reporters Without Borders recently issued its annual World Press Freedom Index and ranked China 176th out of 180 countries – reflecting an increasingly challenging environment faced by foreign journalists in China.

And the thought of my U.S. citizenship might offer me little protection here is really an added concern.

“If you ever end up in a Chinese jail, I’ll do all I can to help get you out,” said Cohen, who had taken active roles in securing the release of prominent Chinese activists in the past.

We both laughed – but I figured he was only half joking.

January 26, 2016: Trial by media? Confessions go prime time in China -