A joint report by Human Rights Watch/Asia and Human Rights in China.
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Summary
Recommendations
SUMMARY
National security has long been invoked by authoritarian governments around the world as a pretext for suppressing freedom of expression and freedom of association. The “crime” for which dissenters are punished can have different names in different countries: subversion, sedition, terrorism, sowing hatred, or, as in China until March 1997, “counterrevolution.” While all governments have laws designed to protect the nation against threats from within and without, authoritarian governments tend to define national security crimes in overbroad terms, making no distinction between violent and nonviolent acts, so that peaceful critics and political opponents can be detained.
In China, the National People’s Congress (NPC) took the historic step at its annual session in March of eliminating crimes of “counterrevolution” from the criminal code, a step which at first glance seemed to indicate movement toward greater respect for the rule of law. After all, from the early years of the People’s Republic of China through the aftermath of the Tiananmen Square crackdown in June 1989, most victims of political purges were labeled “counterrevolutionaries,” and thus the removal of the crime might have been a signal that the legislature intended to end the legal persecution of the government’s political and religious opponents. But in fact, China has merely replaced the term “counterrevolution” with the equally elastic notion of “endangering state security” and has, in the process, actually broadened the capacity of the state to suppress dissent.
The reasons for the change were political. They include the fact that the existence of crimes of counterrevolution was proving to be an international liability, as it was an easy target for outside condemnation and a hindrance to cooperation on legal issues more generally. There were also historical connotations of the term that were no longer applicable — China’s period of revolution is now deemed officially to have come to an end — and the imminent reversion of Hong Kong to Chinese control created special problems.
Whatever the reasons, there are several disturbing aspects of the security provisions of the newly revised criminal code. They include:
‧ punishment of contact with individuals and organizations outside China:
In the revised code, “colluding” with “institutions, organizations, or individuals” outside China to harm state security is seen as essentially the same as “colluding” with foreign powers, while giving information to any outsider is seen as analogous as obtaining or providing state secrets for an “enemy. ” Actions which involve some foreign connection are subject to harsher punishments than persons that are purely domestic, and those inside and outside China who “subsidize” acts which “endanger state security” may be prosecuted and imprisoned.‧ highlighting crimes of separatism
“Splitting the nation or sabotaging national unity” has become a whole separate article in the new law, emphasizing the authorities’ battle against separatist forces in places like Tibet, Xinjiang and Inner Mongolia.‧ tightening limits on freedom of expression
The scope of what can be considered subversive, seditious or secessionist expression appears even broader than in the 1979 criminal code.
Taken together, the new security provisions will facilitate the labeling of all domestic critics as tools of “hostile foreign forces” and could play well with an increasingly nationalist domestic audience, ready to see dissidents and restive ethnic minorities as part of the “conspiracy” to hold China back from its deserved great power status. Along with the 1993 State Security Law and the 1988 PRC Law on the Preservation of State Secrets, they create a web in which any person expressing views contrary to those promoted by the Chinese state, or associating with others for a purpose not sanctioned by the government, may be caught.
One of the most telling signs that the abolition of counterrevolution as a category of crime does not mean a shift in the government’s attitude towards dissent is the fact that the authorities do not intend to release any of the thousands of “counterrevolutionaries” who remain in prison. “The punishment meted out for crimes of counterrevolution in the past will remain valid and cannot be altered,” said Wang Hanbin, NPC Standing Committee vice chairman, when introducing the new criminal code. Thus the revised law will merely continue the Chinese Communist Party’s (CCP) long standing practice of persecuting its critics by adding a new category of prisoner — “state security offenders” — to those already serving time for daring to exercise their rights.
The change is the culmination of a long term effort, which gathered steam in the wake of the crackdown on the 1989 democracy movement, to recast the suppression of dissent as “protecting national security.” On a practical level, the revisions were presaged by a distinct linguistic shift away from the term “counterrevolution” in the last year and a half or so. For example, the “state security” justification was a major feature of the prosecution arguments in the cases of Wei Jingsheng and Wang Dan, sentenced for “conspiracy to overthrow the government” to fourteen years and eleven years respectively. It was also used to explain why Li Hai’s attempt to collect information about people sentenced in connection with the Tiananmen Square crackdown became “espionage.” Li Hai was given a nine-year term in December 1996 for “gathering state secrets.”
As a member of the United Nations, China is bound to uphold the principles contained in the Universal Declaration of Human Rights, which sets forth, among other rights, the rights of free expression, association and assembly without qualification. China has yet to sign the two basic human rights treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which together with the Universal Declaration comprise what is known as the “International Bill of Rights.” The rights set forth in these covenants, by virtue of their overwhelming acceptance by the nations of the world, have entered the realm of customary norms of international law, binding on all states. Despite the fact that it is not yet a party to the covenants, China will soon be specifically obliged to respect their provisions in part of its territory. Beginning in July 1997, China will assume sovereign power over Hong Kong, and by the terms of a bilateral treaty with Britain, the current colonial power, that preserves the territory’s way of life and economic and social characteristics for fifty more years, it will be obliged to continue the protections of the two covenants which apply there now because of Britain’s status as a party to both.
The International Covenant on Civil and Political Rights provides for the rights of free expression, assembly and association, but qualifies them by allowing restrictions in the interest of protecting national security. Such restrictions, however, are only valid if they are prescribed by law and “necessary.” The latter requirement means that the restriction must be proportional to its purpose in severity and intensity and the least restrictive means of achieving that purpose. Thus interference with a right must be interpreted narrowly in cases of doubt and not presumed to be the rule. In the case of freedom of association and assembly, a restriction must be “necessary in a democratic society,” that is it must not only meet the above requirements but must also be respectful of the democratic values of pluralism, tolerance, broad-mindedness and popular participation in the political decision-making process. The protection of national security has been interpreted narrowly as well, to apply only to those cases where there is a serious political or military threat to the entire nation, as, for example, disclosure of military secrets in time of war. A threat to national security is not the same as a threat to any given government of the nation, and mere criticism of a governing party or its policies should not be restricted in the name of national security.
The definition of national security in the context of permissible restrictions on freedom of information and expression was the subject of intensive study in 1995 by international conference of legal scholars and experts in Johannesburg. Their conclusions, known as the Johannesburg Principles, include that restrictions in the name of national security should be narrowly drawn, be the least restrictive means necessary for this end and have “the genuine purpose and demonstrable effect of protecting a legitimate national security interest,” in order to meet with standards for good practice in this area. Furthermore, “The peaceful exercise of the right to freedom of expression shall not be considered a threat to national security or subjected to any restrictions or penalties.” China’s legal formulations on “state security” do not meet any of these standards.
This report from Human Rights in China and Human Rights Watch/Asia provides a detailed analysis of the provisions of China’s new law relating to national security concerns, pointing out the changes and additions in the revisions as compared with the 1979 version; gives a brief overview of two other key security laws, the State Security Law and the State Secrets Law, which further elucidate the notion of “endangering state security”; assesses the past use of the crime of “counterrevolution” and points out how the changes in the law are affecting how the state treats dissent. The report also contains several appendices comprising the full texts of some of the laws mentioned in the report and a list of individuals sentenced in the last two years to prison or reeducation through labor for political “crimes.”
RECOMMENDATIONS
To address the concerns raised in this report, Human Rights in China and Human Rights Watch/Asia urge China’s National People’s Congress and the Chinese government to:
1. Begin immediately drafting further amendments to the criminal code to bring it into line with international human rights standards, specifically the narrow interpretation of national security interests under the International Covenant on Civil and Political Rights developed through national jurisprudence and expert analyses such as the Johannesburg Principles. The amendments should:
‧ Allow the greatest possible degree of freedom of expression and information, recognizing that people have a right to express their opinions and to gain information about all facets of the operation of their government, even when these relate to national security concerns.
‧ Ensure that legitimate national security interests are defined narrowly 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.
‧ Ensure that any restrictions on the rights of expression, receiving information, assembly or association on the grounds of protecting national security are unambiguously worded, that a limited and narrow definition of national security is employed and that such measures are limited to the least restrictive means possible in all cases.
‧ Ensure that any restrictions on these basic rights are open to challenge by individuals and bodies affected before an independent court, and that the government bears the burden of showing that the restrictions have the genuine purpose and demonstrable effect of protecting national security, and that they are the least restrictive means of doing so.
2. Repeal the 1993 State Security Law, which is basically incompatible with human rights standards and significantly amend the State Secrets Law so as to restrict the scope of classified material to what is strictly necessary, as defined by the Johannesburg Principles. Limit the powers of classification to agencies which deal with such material.
3. Draft a law granting Chinese citizens access to information about their government, so they may effectively monitor and supervise its operations, in accordance with provisions of China’s constitution.
4. Order immediate and unconditional release of all those convicted solely under Articles 98, 99 and 102 of the 1979 criminal code.
5. Establish a Commission on Review of Counterrevolutionary Offenders to review, in a transparent process, all convictions under counterrevolution statutes, to make public all documents related to trials of counterrevolutionaries and to order release of all those charged with crimes for peacefully exercising their basic rights and freedoms under these statutes.
6. Allow monitoring of the judicial process, including attendance at trials, by independent domestic and international human rights monitors.
Human Rights in China and Human Rights Watch/Asia also call on the international community to:
1. Move to have either the U.N. Commission on Human Rights or the Subcommission on the Prevention of Discrimination and the Protection of Minorities appoint a Special Rapporteur on National Security Laws. One of his or her first tasks should be to examine China’s laws relating to national security and their impact.
2. Use all opportunities to impress on China that “legal reform” must entail improved respect for fundamental rights to freedom of expression and association and ensure that bilateral aid for legal reform does not in any way support measures which reduce or restrict those freedoms.
3. Raise the issue of China’s use of state security as a rationale for suppressing dissent and the above recommendations to the National People's Congress and the Chinese government, at all appropriate U.N. fora, including the Commission on Human Rights, as well as in other multilateral events and in bilateral meetings. In particular these issues should be raised:
‧ In all bilateral contacts of European Union member states with China, especially visits of leaders to China such as French President Jacques Chirac's upcoming May trip, and during the European Parliament's debate of EU China policy set for late April.
‧ At all summit meetings in 1997, including President Clinton's planned summit meeting with Chinese President Jiang Zemin and reciprocal invitations between Japan and Beijing to exchange high level visits this year and next year. Concrete steps to implement such reforms, as well as releases of significant numbers of counterrevolutionary prisoners, should be included among the necessary preconditions for summit meetings.
4. The leaders of the G 7 industrial nations, during their summit meeting in Denver, Colorado, on June 22, 1997, should agree upon a multilateral agenda for promoting human rights in China, as well as benchmarks for the protection of civil liberties and democratic institutions in Hong Kong after its reversion to Chinese sovereignty on July 1, 1997. Along with the above recommendations, crucial items on such a multilateral agenda would also include the need for access to Tibet and Xinjiang by private and U.N. human rights monitors, access to prisoners by international humanitarian agencies, ratification of human rights treaties and other measures.
