The annual session of China's National People's Congress (NPC), which opens tomorrow, is expected to enact extensive revisions to the nation's criminal code including the elimination of the statutes on "counterrevolution," which have in the past been used to imprison many of the Chinese government's critics. Human Rights Watch/Asia and Human Rights in China, concerned that crimes of "counterrevolution" may simply be replaced in the new code by the crime of "jeopardizing state security" without any fundamental easing of restrictions on expression or association, urge the NPC to define state security offenses in clear, narrowly-drawn terms so as to ensure that the criminal justice system may no longer be used as a tool for the suppression of peaceful religious and political dissent.
The two organizations also urge the NPC to undertake a systematic review of the cases of all those convicted under the counterrevolution articles of the criminal code. Those imprisoned under Articles 98, 99 and 102 should be immediately released, since they are clearly detained only for non-violent exercise of the fundamental rights and freedoms China recognizes in its Constitution. Those convicted under the remaining counterrevolution articles should be entitled to a reexamination of their cases through a mechanism set up under the NPC. The latter, for example, could establish a Review Commission that could, through hearings open to the public and the media, assess the evidence in each case individually and release all those held for peaceful expression, association and assembly.
While some of the other legal reforms that the NPC is expected to enact may represent genuine advances in criminal justice, the removal of "counterrevolution" statutes does not appear to be one of them. A December 1996 statement by Wang Hanbin, vice chairman of the NPC Standing Committee, that "counterrevolutionary activities stipulated in the current criminal law are still all considered as crimes" in the Committee's proposed revisions seems to indicate that the changes are to be cosmetic, rather than the fundamental revision of the Criminal Code many Chinese legal scholars have been advocating since the early 1980s.
Deng Xiaoping's passing, however, and the beginning of a new political era is an opportunity to make the NPC session a turning point for China's legal system and give substance to China's oft-stated commitment to the protection of human rights. Instead of simply changing the name of the offense from "counterrevolution" to "jeopardizing state security," the NPC could model its security legislation on standards articulated in the Johannesburg Principles on National Security, drafted in 1995 by an international group of experts on law and human rights and considered a model of good practice in this area of law. In accordance with the Johannesburg Principles, specifically, the NPC should adhere to the following in enacting its revisions of the Criminal Code:
- The law should allow the greatest possible degree of freedom of expression and information, recognizing that people have a right to express their opinions, even if offensive, and to gain information about all facets of the operation of their government, even when these relate to national security concerns.
- Legitimate national security interests should be defined narrowly, such as those protecting "the country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the threat or use of force [...]" (Johannesburg Principles, Art. 2.(a)
- Any restrictions on expression or information on grounds of protecting national security must be clear, unambiguous and narrowly drawn; and must be open to challenge through review by an independent court, in which the government is required to show that the said restriction has the genuine purpose and demonstrable effect of protecting national security.
To give full effect to the abolition of the crime of counterrevolution and the incorporation of the above principles into national law, the NPC should also begin a thorough assessment of other laws to bring them into conformity with these principles. In particular, the NPC should act speedily to repeal the 1993 State Security Law and its implementing regulations. The 1988 Law on the Preservation of State Secrets and its implementing regulations should be thoroughly amended to incorporate safeguards for basic rights, protections for disclosure in the public interest and a much tighter classification system, as well as review of classification decisions by an independent court in case of dispute.
These revisions are particularly important given that in the past year, a number of individuals have been convicted of offenses such as "conspiracy to overthrow the government," "leaking state secrets" and "espionage" when the sole evidence presented at their trials was their non-violent advocacy of points of view that clashed with prevailing policy. For example, the peaceful actions of both Wang Dan and Wei Jingsheng, sentenced respectively to eleven and fourteen years' imprisonment for "conspiring to overthrow the government," were deemed to be threats to national security, while information about individuals convicted on criminal charges for their role in the 1989 protests was labeled a "state secret" in the trial of Li Hai, who was given a nine-year term for collecting such data. No evidence has been made public which shows that Tibetan scholar Ngawang Choepel, recently sentenced to eighteen years in prison for "espionage," was doing anything but collecting material for his study of Tibetan music and dance. Protecting state security was mentioned as a rationale for prosecution in all of these cases.