The rationale of protecting national security has been misused to suppress peaceful dissent in countries all over the globe. In shifting to such a justification, the Chinese authorities have taken the opportunity to expand the law's capacity to punish critics of all kinds, as a new report by Human Rights in China & Human Rights Watch/Asia makes clear. The following is a summary of some parts of a 56-page, footnoted report, which also includes sections not summarized here on the State Security Law and the State Secrets Law and on the use of the counterrevolution provisions of the 1979 Criminal Code, as well as a list of recent cases of political imprisonment.
National security has long been invoked by authoritarian governments around the world as a pretext for suppressing freedom of expression and association. 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 overly broad terms, making no distinction between violent and nonviolent acts.
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 There were also historical connotations of the term that were no longer applicable - China's period of revolution is now deemed officially to have come to an end - and the imminent reversion of Hong Kong to Chinese control created special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, including the punishment of contact with individuals and organizations outside China, the highlighting of crimes of separatism and the tightening of limits of freedom of expression. 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 nationalistic 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 that senior officials have already stated that the thousands of "counterrevolutionaries" who remain in prison will not be eligible for any kind of amnesty or early release. The revised law will merely add a new category of prisoner - "state security offenders" - to those already serving time for daring to exercise their rights.
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 1989 protests became "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. Although China has yet to sign the two basic human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, it 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 that preserves the territory's way of life 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 ICCPR provides for the rights of free expression, assembly and association, but allows 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 and popular participation in politics.
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 an 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." 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.
Discussion about reforming the criminal code began almost immediately after its promulgation in 1979. Although the legal community in China supported the enactment of the code as an important step towards the revival of a legal system which had been all but suspended since the 1957 Anti-Rightist Movement, there had been hopes that it would incorporate more protection for human rights. Many legal scholars proposed eliminating crimes of counterrevolution from the statute book then: some argued that the term "counterrevolution" was too ambiguous and undefined, while others criticized it for being politically motivated and outmoded.
By 1988 efforts to reform the criminal code had progressed to the point where that year's revised draft of the law actually incorporated the replacement of counterrevolution with "endangering state security," but after the 1989 crackdown such ideas were swept away in the political storm as the country's security forces carried out a nationwide hunt for all those responsible for the "counterrevolutionary rebellion" that the leadership claimed had taken place.
In mid-1990, the debate publicly resurfaced in the legal press, but this time calls to discard the term "counterrevolution" were no longer linked to any aspiration toward legal liberalism or greater tolerance. On the contrary, virtually all contributors to the debate stressed that renaming such offenses "crimes of endangering state security" not only would entail no substantive change at all in China's law enforcement practices, but would even increase the authorities' effectiveness in cracking down on precisely the same targets as before.
What, then, were the reasons that impelled China's leadership finally to discard the legal weapon of counterrevolution? The same series of arguments in favor of the proposed legislative shift can be found in almost all of the post-1990 contributions to the debate.
First, the authorities apparently hoped to lift the embarrassing shadow of "political imprisonment" from China's international image. No actual releases of political prisoners would be required in order to accomplish this dramatic transformation: a mere change of label would suffice. A closely related point concerned the considerable difficulties the Chinese authorities have been experiencing in trying to persuade other countries to establish more cooperative cross-border judicial relations with China, particularly regarding the mutual extradition of criminal suspects.
The Chinese authorities had also been experiencing procedural difficulties stemming from the requirement in the 1979 Criminal Code that the state prosecutor demonstrate the defendant's "subjective counterrevolutionary purpose" (fan'geming mudi). In revising the code, the Chinese authorities could easily have required the prosecutor to show the defendant's "subjective purpose" of endangering state security, but instead they took the opportunity to drop the requirement entirely. That they chose to do so was in part intended to facilitate convictions under the new law. But a more fundamental reason was probably that to retain the "subjective purpose" requirement would have meant including in the revised Criminal Code some more precise and specific legal definition of what an "act endangering state security" actually entails.
Another possible reason for the removal of counterrevolution involves Hong Kong. In the legal debate on this topic in recent years, counterrevolution has been perceived as essentially incompatible with the concept of "one country, two systems." The broad explanation lies in what is referred to in the relevant literature as China's need to assert its "universal criminal law jurisdiction" (xingshi pubian guanxiaquan), that is, to extend the applicability of China's Criminal Code, in both geographical and conceptual senses. Given that one of China's main pledges to Hong Kong under the "one country, two systems" formula was that the territory's separate and independent legal system would remain so after the resumption of sovereignty, this repeated emphasis on the need for China's former laws on counterrevolution to be retooled in ways that make them "compatible" with the "one country, two systems" formula is very troubling.
The 1979 Criminal Code listed twelve main categories of counterrevolutionary crime in fifteen separate articles (Articles 90 to 104), including both violent and nonviolent offenses. By contrast, the new Criminal Code applies the term "endangering state security" to a broad range of actions detailed in twelve articles (Articles 102 to 113). While the new offenses detailed in the law are somewhat more specific, the central premise behind the whole section, the concept of "endangering state security," is left completely undefined: the new chapter on "Crimes Endangering State Security" contains no operative definition similar to the old Article 90, which defined crimes of counterrevolution as "all acts endangering the People's Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system." This provision has simply been deleted, demonstrating the government's desire to expand the jurisdiction of the revised Criminal Code's "state security" statutes as far as possible.
While on a general level, the concept of "endangering state security" continues to denote the purely political actions aimed at overthrowing the dictatorship of the proletariat and the socialist system previously covered under counterrevolution, it is no longer restricted to such actions. Henceforth, both entirely non-political actions - such as Wang Dan's providing humanitarian assistance to families of imprisoned dissidents - as well as political actions, can potentially be dealt with under the judicial rubric of "endangering state security."
Since both the subjective purpose requirement and any objective categorical definition of "acts endangering state security" are missing from the new Criminal Code, how then are the judicial authorities supposed to identify and evaluate such acts? One might assume that the most valid standard to apply would be the extent of actual social harm resulting from the actions in question. In fact, however, this issue is also deemed to be fundamentally irrelevant, as the following explains:
Where activities involving conspiracy to subvert the government, splitting the nation or the overthrow of the socialist system are concerned, it is not necessary that any actual harmful consequences should ensue; provided only that such actions have been performed, then legal responsibility must be pursued. [From book published by Criminal Law Section of the NPC Standing Committee's Legislative Commission]
The latter continues to apply even when "the person concerned has secretly planned and made preparations toward conspiring to subvert the government, splitting the nation or overthrowing the socialist system, but has not yet actually performed any criminal actions of this nature," the book continues. In the absence of any requirement at all to demonstrate social harm, then, the courts are free to deal with such cases in accordance with the dangerous legal assumption that "acts endangering state security" constitute a self-evidently obvious class of events requiring no further verification beyond their initial labeling to that effect by the "competent authorities" (youguan bumen).
The following article-by-article analysis clearly demonstrates that the scope of state security crimes imposes limitations on rights and freedoms which go far beyond what is allowed by the Universal Declaration of Human Rights.
- Article 102: The articles on collusion in the 1979 and 1997 codes are identical at the outset. The new code's Article 102(1), "colluding with foreign states to harm the sovereignty, territorial integrity and security of the People's Republic of China," is essentially identical to Article 91 in the 1979 law. However, in Article 102(2), a crucial addition is made: "Those who collude with foreign institutions, organizations and individuals to commit the above offense may also be punished according to the provisions of the preceding clause."
This change significantly broadens the scope of the old law, since it expands those who can be colluded with beyond foreign states to any foreign "forces," including individuals.
Claims of such "collusion" have been a major feature of dissident trials in recent years, with telephone conversations about "the struggle" with friends and associates overseas being presented as examples in the cases of both Wang Dan and Wei Jingsheng. Under the new law, this offense is punishable by sentences of ten years to life in prison, or execution.
- Article 103 expands the provision of the old Article 91 on "splitting the nation" into a whole separate article, clearly aimed at pro-independence movements and activists in restive ethnic minority regions such as Tibet, Xinjiang and Inner Mongolia. Article 103(1) allows penalties of up to life imprisonment or even death for the crime of "organizing, scheming and carrying out activities to split the nation and sabotage national unity." Article 103(2) permits sentences of over five years, thus up to the statutory maximum of fifteen years for sentences of "fixed term imprisonment," for "ringleaders" in acts of "incitement to split the nation and sabotage national unity." This latter clause obviously duplicates key elements of the "counterrevolutionary propaganda and incitement" charge in the old law. China has never limited its interpretation of incitement to incitement to violent action or other criminal behavior; indeed, it interprets incitement to include even speech that is likely to provoke no reaction other than tarnishing the reputation of the state or the Party in the views of the audience.
In Tibet, prisoners serving sentences for counterrevolutionary offenses already make up a much higher proportion of the total inmate population than in mainland China. Minister of Justice Xiao Yang, speaking in 1993, said that in the whole country counterrevolutionaries made up only 0.3 percent of the prison population. According to a confidential journal for prison officials, in Tibet such prisoners comprised 6.5 percent of the total number; other sources put the proportion as high as 20 percent.
- Article 104 defines what is essentially the same offense as the old Article 95, prohibiting participation in "armed rebellion or armed riots," or "instigating, coercing, luring, or bribing employees in state organizations, personnel in armed units, people's police, or militia members" to join in such actions. While life imprisonment and the death penalty are likewise available for crimes under this article, the new Criminal Code also allows for sentences of below three years for lesser participants in the offense.
- Article 105 is a key part of the new law, incorporating as it does elements from the old law's Article 92 ("conspiracy to subvert the government"); Article 98 (organizing and/or participating in a "counterrevolutionary group"); and Article 102 ("counterrevolutionary propaganda and incitement"), as well as language from the State Security Law. This article is also the only one in which a mention of the socialist system, protecting which was such a feature of the counterrevolution clauses, is made. The new article defines the offenses it covers as "organizing, scheming and acting to subvert the political power of the state and overthrow the socialist system" in 105(1) and "incitement to subvert the political power of the state and overthrow the socialist system by means of spreading rumors, slander or other means" in 105(2). This latter formulation could be seen as an expansion of the scope of what was defined as "propaganda" in the 1979 law, since the catch-all "other means" leaves the parameters open to constant reinterpretation. Again, incitement to subversion seems to require little more than communicating dissenting opinions, not provoking violent or criminal acts. Sentences available range from probation to life imprisonment for 105(2). In an important change, the death penalty, previously potentially applicable to those convicted of the type of crime now contained in Article 105(1), has been eliminated as an option for this offense.
If the fact that its precursors accounted for the vast majority of counterrevolution convictions in recent years is any guide, Article 105 is likely to be the most frequently used part of this chapter. In combining the 1979 law's Articles 98 and 102 with the more serious offense in Article 92, the authorities are inextricably linking subversion with acts of free association and free expression. This has been made very clear in recent dissident trials. For example, at the 1996 trial of a group of Guizhou activists who drafted and distributed an open letter to the authorities calling for democratic reform, human rights improvements and the release of political prisoners, although the charges were under articles 98 and 102, the verdict stated that the defendants "aimed to subvert the dictatorship of the proletariat and the socialist system ... [and] the leadership of the CCP."
- Article 106 is an addition to the Criminal Code, stipulating that persons committing offenses under the previous three articles shall "receive a heavier punishment" if they are also found to have "colluded" with "institutions, organizations, or individuals outside the borders of the People's Republic of China." Nothing comparable to this appeared in the 1979 Criminal Code. If such a finding of collusion is made, the crimes detailed are subject to the heavier penalties in the sentencing ranges in the article in question.
- Article 107, likewise an addition, stipulates that "Institutions, organizations and individuals inside and outside the country which subsidize organizations and individuals inside the country" in committing the offenses described in Articles 102 to 105 are liable to prosecution, with "personnel with direct responsibility" to be subject to sentences of five years or less, criminal detention or probation, although when "the circumstances are serious," sentences from five to fifteen years may be applied.
This principle of extraterritorial criminal jurisdiction was contained in the 1979 Criminal Code. It also appears in the new law in Article 6 of the "General Principles" section. However, this principle was not part of the counterrevolution section, and by linking it explicitly to this part of the new code as they do in Articles 106 and 107, the Chinese authorities are clearly sending a chilling message to those who seek to "subsidize" their domestic critics.
The most obvious targets are the various groups which provide funds for former political prisoners or their families or which have programs to support activism in China. Large amounts of money were raised in Hong Kong and in overseas Chinese communities around the world following the 1989 Beijing Massacre. This was a key issue in the prosecution cases against both Wei Jingsheng and Wang Dan, who tried to help channel money raised both inside and outside China to assist victims of political persecution. While Wei argued forcefully at his trial that this was a purely humanitarian effort, his claim was rejected by the court.
The main target of Article 107 appears to be Chinese activists overseas. Few countries are likely to extradite either Chinese nationals or foreigners to face trial for such a clearly political offense, and refoulement of refugees who would face a threat to their lives or freedom for reasons of "race, religion, nationality, membership of a particular social group or political opinion" is banned under the U.N. Convention Relating to the Status of Refugees. However, people caught in China could be subject to prosecution for this offense. And despite Hong Kong's separate legal system, Beijing may have the power to bring Hong Kong people to face trial in mainland courts under Article 107.
- Article 108 - "defecting to the enemy and turning traitor" - is more or less identical to the old Article 93 offense, except that the lowest specified sentence is now three years instead of ten. "Those who lead members of the armed forces, people's police and people's militia" to commit the offense are subject to higher penalties, of ten years to life imprisonment, or death.
- Article 109 appears to duplicate the provisions of the previous article, with a slightly lower standard since an "enemy" is not involved. Persons subject to punishment under this article are:
Employees of state organs who leave their posts without authorization while on public service and defect by fleeing from the country, or who defect from outside the country's borders, thereby endangering the state security of the People's Republic of China... Penalties for this crime range from probation to a maximum of ten years in "serious" cases. Article 109(2) specifies that state personnel "who are in possession of state secrets" and commit this offense should be punished in the higher sentencing range specified in 109(1).
- Article 110 covers the crime of espionage dealt with in Article 97 of the 1979 law. While the sentencing range stays the same as before - three years to life imprisonment, or death - the former distinction between "agents" (tewu, which used to be reserved for Kuomintang spies from Taiwan) and "spies" (jiandie, denoting mainly non-Chinese agents) has now been dropped, and the latter term is used throughout. The new article includes two main categories of offense: "Joining an espionage organization or an accepting assignment from an espionage organization or its representative" in 110(1) and "identifying bombardment targets for an enemy" in 110(2). It is unclear from this article that those who carry out such "assignments" are required to be aware they are doing so for an entity identified by the authorities as a "spy organization."
In practice, "espionage" is a highly elastic term in Chinese criminal law. For example, in unconnected cases, Hada and Ngawang Choepel were accused of this offense, yet no evidence was ever presented to show that either had access to any privileged information or that they passed anything resembling "intelligence" to any "spy organization." Both are from sensitive ethnic minority regions - Inner Mongolia and Tibet - and both were concerned about the preservation of their respective cultures. And they received harsh sentences: 15 years in prison for Hada, 18 for Ngawang Choepel.
- Article 111 incorporates into the Criminal Code the main principles of the State Secrets Law and the 1988 Supplementary Regulations of the NPC Standing Committee on the Punishment of Crimes Involving Leaking State Secrets regarding the provision of secret material to parties outside China. Article 111 defines the offense as: "Stealing, prying into, purchasing or illegally providing state secrets or intelligence for institutions, organizations and individuals outside the country." While this generally mirrors the formulation of Article 32 of the State Secrets Law, the vague term "intelligence" (qingbao), which does not appear in that law, has been added, thus expanding the scope of materials covered beyond documents classified in accordance with the formal system it established. The full range of penalties is available for this crime, from probation to life imprisonment, or death.
The scope of classified information under the State Secrets Law is vast and infinitely expandable: due to questionable categories such as "major policy decisions on state affairs," "secret matters in national economic and social development," and "those secret matters of political parties . . . [that] concern the security and interests of the state," as well as a catch-all clause, "other state secret matters that the state secrecy preservation departments determine should be preserved," virtually any official information can be classified.
As the case of Li Hai has recently demonstrated, merely "prying into" information which is not contained in any document marked "secret" may bring a heavy penalty. In 1996, Li was sentenced to a nine-year term for collecting information about Beijingers convicted of criminal offenses committed during the 1989 protests by making door-to-door visits to the families of the men in question. The information he gathered, according to the verdict in his case, was: "name, age, family situation, crime, length of sentence, location of imprisonment, treatment while imprisoned." Another major target of prosecutions on secrets charges has been Chinese nationals working for foreign companies, who, as part of their work, have disclosed information which in most countries would be considered trade secrets, at worst.
- Article 112 introduces another offense not covered by the counterrevolution articles: providing weapons, munitions or other material assistance to the enemy in times of war. Penalties range from three years to life imprisonment, or death.
- Finally, Article 113 stipulates that all offenses specified in the chapter as a whole, with the exception only of those in Article 103(2); Article 105; Article 107; and Article 109, are to be additionally punishable by the death penalty whenever "the harm to the state and the people is especially serious and the circumstances especially odious." In the 1979 Criminal Code all but two of the twelve types of counterrevolutionary charges were punishable by death; thus the new law reduces by a small degree the scope of the death penalty's applicability to the offenses covered in the chapter.
Article 113 (2) concludes the chapter with a sweeping provision: "Whoever commits any of the crimes in this chapter may in addition be sentenced to confiscation of property." As in the 1979 law, there is no requirement that the property be related to the committing of the offense in question. In fact, this clause was part of the PRC's original counterrevolution law promulgated in 1951. Thus the authorities may, quite legally, make paupers of dissidents at will.
To address the concerns raised in this report, Human Rights in China and Human Rights Watch/Asia urge the Chinese government to:
- Begin immediately drafting further amendments to the Criminal Code to bring it into line with international human rights standards. The amendments should ensure that legitimate national security interests are defined narrowly, that any restrictions on the rights of expression, receiving information, assembly or association on the grounds of protecting national security are unambiguously worded and limited to the least restrictive means possible in all cases, and that any restrictions on these basic rights are open to challenge before an independent court.
- Repeal the 1993 State Security Law 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.
- Draft a law granting Chinese citizens access to information about their government, so they may effectively supervise its operations, in accordance with provisions of China's constitution.
- 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 the release of all those charged with crimes for peacefully exercising their basic rights and freedoms under these statutes.
- Allow monitoring of the judicial process, including attendance at trials, by independent domestic and international rights monitors.
Human Rights in China and Human Rights Watch/Asia call on the international community to:
- Move to have the United Nations appoint a Special Rapporteur on National Security Laws, one of whose first tasks should be to examine China's laws.
- 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 support measures which restrict those freedoms.
- Raise the issue of China's use of state security as a rationale for suppressing dissent, and the above recommendations to 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.