China’s Security Law

China Bridge (神州橋樑)_2003/Aug

China’s Security Law

In his book Decades of Vacillation, Anthony Lam examines China’s National Security Law. With Article 23 on the minds of so many in Hong Kong, it seems an opportune time for China Bridge to cast a brief glance at this law as described in Chapter 3 entitled, “Pervasive Influence of the National Security Law.” The English edition of Decades of Vacillation will be published in the autumn of 2003.

China’s National Security Law

Outsiders have no way of knowing the organisation and inner workings of China’s National Security Bureau simply by viewing official pronouncements. China’s National Security Law is not aimed solely at religious circles, but government officials, in dealing with religious questions, repeatedly emphasise that “government law agencies should cooperate in exposing and attacking current counter-revolutionary activities and other crimes committed by those operating under the guise of religion.” Persons involved in religion in China should not underestimate their need to know the National Security Law.

Few materials available

Unofficial publications that deal with the National Security Bureau are extremely few. Even the young political commentator He Pin in his book, Chinese Government Leaders, has very little to say about the Bureau. He writes: “The National Security Bureau is a department within the State Council whose function is to protect national sovereignty and interests. Like the Security Bureaus it can perform investigative and custodial functions as set out in the Constitutions and Law; it has the power of pre-interrogation and arrest; its nature combines the characteristics of both an Intelligence agency and a security bureau. It was established in 1983.”

Goal and purpose of the National Security Law

The National Security Law was promulgated on February 20, 1993; however the detailed rules and regulations for implementing it, promulgated on June 4, 1994, are harsher than the Law itself.

Some details of the Law

The first article of the National Security Law makes its purpose clear: “To safeguard national security, defend the political power and the socialist system of the People’s Republic of China’s People’s Democratic Dictatorship, guarantee that the open reform and the establishment of modern socialism is successfully carried out, and formulate its own laws in accord with the Constitution.”

Confusion of terms

China always mixes different terms in its legal documents, such as “nation,” “the Socialist System,” “the political power of the People’s Democratic Dictatorship.” Moreover, China’s political circles do not make a clear distinction between the two terms “law” and “policy”. “Open Reform” is a policy; the “establishment of modern socialism” is another policy. Policies, however, often change according to the prevailing winds. Laws and regulations should belong to a higher level and, since they extend the scope of the Constitution, they have a more permanent value. To mix policies with laws and regulations so that the latter serve the exigencies of the former is to arouse suspicion about their relative value.

Activities that endanger national security

The law defines activities endangering national security as “Those actions that foreign bodies, organizations, or individuals carry out, instigate, or assist others to carry out, or those carried out by domestic organizations or individuals in collusion with foreign bodies, organizations or individuals.”

Most controversial article

Article 26 on the power of detention seems to be the most controversial. It reads: “Once there is clear knowledge that an individual has committed the crime of espionage and when during the National Security Agency’s investigation and collection of relevant evidence, the accused refuses to provide answers, his unit or the higher department in charge should take disciplinary action against him or have the National Security Agencies detain him for a period of not more than 15 days. For serious cases punishment must be meted out according to Article 162 of the penal code.”

This article deals with two questions. The first is that no citizen has a right to silence before the National Security Agencies. This is unfair to the citizen. The right to silence is one of a citizen’s chief rights. This is common practice abroad and is also recognised in China.

In principle only the courts have the right to rescind the right of an accused to silence. Nevertheless the above article gives this right to the National Security Agency.

Moreover, Security Agencies and National Security Agencies are set up to investigate and make accusations; they cannot in themselves take over the functions of the law courts. Yet the above article permits the National Security Agencies to detain the accused for a period of not more than 15 days. One of the penalties National Security Agencies can impose upon the suspect is to adjudicate his case without recourse to the courts. This seriously conflicts with the spirit of the legal system that China is now actively promoting.

Li Peng, the former head of the State Council, signed order number 157 of the State Council on June 4, 1994 promulgating the “National Security Law’s Detailed Rules and Regulations for Implementation.”

Detailed rules and regulations

An editorial in the Ming Pao Daily pointed out that the “Detailed Rules and Regulations” were even harsher than the National Security Law (July 15, 1994). The editorial stated: “The articles in the National Security Law usually take the ‘activities’ of Chinese citizens as the object of their concern. The “Detailed Rules and Regulations” go a step further and take the ‘attitude’ of Chinese citizens as their object of concern. For example, Article 5 specifically states: “When the National Security Law speaks of ‘hostile organizations’ they mean those organisations that adopt a hostile attitude towards the People’s Democratic Dictatorship and the socialist system of the People’s Republic of China, as well as those organisations that endanger national security. In other words, a citizen does not need to engage in a ‘hostile action’ against China’s security; it is enough to be linked to an organisation that is considered to have a ‘hostile attitude’ towards China’s security to be liable to prosecution before the law.”

Risk of outside financial aid

Furthermore, Article 6 of the “Detailed Rules and Regulations” allows people from outside China to get caught into lawsuits. Article 6 targets the activities related to financial aid that would endanger national security. It reads:

“(1) Provide funds, locations and materials to domestic organizations and individuals whose activities are considered as dangers to national security. (2) Provide funds, locations and materials to domestic organisations and individuals who use them to endanger national security.”

In general, the second item is easier to guard against and carry out, but the first item is impossible to guard against. According to the wording of the first item only to contact a body defined as “an organisation whose activities endanger national security” to offer it money, even though it is not used “to endanger national security,” constitutes the crime of “financial aid that endangers national security.” What is even worse is that the National Security Bureau and the Public Security Bureau can define “a body as hostile and a danger to national security.” This means that even people from abroad could unknowingly be liable to a criminal offence without having recourse to any judicial proceeding.

Extraordinary powers of the Bureau

Article 21 that bestows authority on National Security Agencies also infringes upon the rights of the courts. Article 21 reads: “National Security Agencies can seal up, detain, and freeze all instruments and other properties, as well as funds, locations, goods and materials listed in Article 6 of these Detailed Rules and Regulations that are used to endanger our socialist country’s national security; all properties that have been sealed, detained or frozen can, depending upon different circumstances, be confiscated by National Security Agencies or handed over to the courts for legal disposal.” This article, as in the case of the previous one, trespasses into the authority of the law courts.

What is especially worrisome is that Section 8 specifically targets religion making it very difficult for one to avoid the feeling of being discriminated against.

Discriminating against religion

Section 8 reads as follows: “The activities listed below belong to what the National Security Law Article 4 lists as “those other destructive activities that endanger national security:

(1) organizing, planning or carrying out terrorist activities that endanger national security;
(2) spreading rumors, twisting facts, publishing or distributing written articles or speeches, manufacturing or distributing electronic media that endanger national security;
(3) using established social bodies or business enterprises to carry out activities that endanger national security;
(4) using religion to carry out activities that endanger national security;
(5) sowing ethnic dissension, stirring up ethnic divisions, endanger national security;
(6) foreign individuals who violate pertinent regulations, who do not accept warnings and who on their own visit Chinese citizens who commit acts endangering national security or those under heavy suspicion of committing such acts.”

Item 4 is aimed at religious organisations. This is unjust. Any group can carry out illegal activities endangering national security: cultural, sports, business, academic, etc. Why is religion the only one mentioned? An article such as this one can only put undue pressure on religious circles and fails to put their minds at ease.

Article 22, an enigma

Article 22 is the most difficult to understand. It reads: “Carrying out activities endangering national security that constitute a crime must be investigated according to law to establish responsibility for the crime; in the case of those that do not constitute a crime, disciplinary action should be taken by the individual’s local unit or by the department holding higher authority over the individual; the National Security Agency can also give warnings, reprimand or order the individual to sign a written statement of repentance.”

Infringement of rights

This article says that even though an individual has not committed a crime, the National Security Agency can administer a sanction. This is obviously a serious infringement of the rights of citizens. Article 94 of the “Procedural Law for Criminal Suits” of the People’s Republic of China states, “If during the process of investigation it becomes clear that the accused is not liable for prosecution, the case must be rescinded.”

However, for Article 22 to permit some acts to be listed among those “activities endangering national security” is in reality to place the “Detailed Rules and Regulations” above the law.

Hong Kong’s Basic Law

That a security law must be enacted in and for Hong Kong is not strange. Every developed country has such a law on its books. What Hong Kong lawmakers must ensure, however, is that the law they put in the book along with its rules and regulations really ensures Hong Kong’s security and also safeguards the rights of all its citizens.