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China Considers State Secrets Law Revision

July 24, 2009

On June 22, 2009, a draft revision of China’s Law on Guarding State Secrets (中华人民共和国保守国家秘密法) was given a first reading at the Ninth Session of the Standing Committee of the 11th National People’s Congress (NPC). Although the draft revision was reviewed, it was not adopted by the NPC. Instead, on June 27, 2009, the NPC released the draft revision for public review and comment. The deadline for public feedback is July 31, 2009.

China’s state secrets system – with the Law on Guarding State Secrets as its centerpiece – is perhaps the most powerful tool the Chinese government has at its disposal to control access to information and to punish those who express views disapproved of by the government. As indicated by an explanation of the proposed changes in the draft revision, the revision is meant to address technological advances that have taken place since the Law on Guarding State Secrets was promulgated in 1988, and to place broader, tighter, and more rigorous control over classified information in the digital age.

Human Rights in China (HRIC) has translated the proposed draft revision of the Law on Guarding State Secrets into English. HRIC has also prepared a summary of cases highlighting politicized use of the state secrets system and a list of important state secrets law resources.

Some proposed changes indicating an emphasis on greater control include:

  • Exclusion of limitations on the definition of state secrets via deletion of the current requirement that matters not satisfying the state secrets definition “shall not be considered state secrets” (Article 8 of the Law on Guarding State Secrets);
  • Detailed provisions regulating electronic information management, including electronic data storage and connectivity to the Internet or public networks (Draft Articles 22-26 of the draft revision);
  • Specific details on the power of state authorities to investigate, prosecute, and punish misconduct involving state secrets (Draft Articles 37-43 of the draft revision), in contrast to current provisions calling only for authorities to “deal with” such matters “without delay” (Draft Article 8 of the Law on Guarding State Secrets);
  • Detailed classifications of the personnel handling state secrets and provisions requiring personnel to sign agreements to ensure secrecy Draft Article 33 of the draft revision);
  • Increased severity of penalties for violations of state secrets rules, including specific monetary fines and administrative and criminal consequences (Draft Articles 44-49 of the draft revision);
  • Restriction of the number of people or entities with knowledge of state secrets “to the smallest scope allowed by work needs”(Draft Article 14 of the draft revision);
  • Expansion of the scope of state secrets to explicitly include all electronically stored or processed information (Draft Article 21 of the draft revision).

The draft revision does contain one article with the potential to increase openness, namely, a proposed procedure for declassification of state secrets at the end of set, finite time periods, as well as declassification of information or materials no longer deemed to be secret. (See Draft Article 17)

Nonetheless, the draft revision does not contain crucial measures that are essential to reforming a political culture of secrecy and promoting the rule of law. Specifically, the draft revision does not incorporate any of the following:

  • Adoption of a clear and concise definition of state secrets that is in keeping with international legal standards, including the requirement that any restriction on freedom of expression be narrow, specific and limited to information that would threaten the life of the nation if disclosed, as provided for in the International Covenant on Civil and Political Rights1 and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles).
  • Also in keeping with the Johannesburg Principles, the requirement that punishment only be levied for actual harm to a legitimate national security interest.
  • Establishment of an independent review mechanism for the classification of state secrets, incorporating the right of institutions and bureaus, as well as individuals involved in state secrets legal proceedings, to seek independent review of the classification of the information involved.
  • Elimination of retroactive classification of information.
  • Elimination of distinctions in the scope of state secrets, and the severity of criminal sanctions, between domestic and external disclosure of state secrets, in accordance with international norms and standards.

HRIC encourages Chinese citizens to engage in the process of state secrets reform by providing public comment on the draft revision before the July 31, 2009 deadline.

In addition, HRIC urges China law experts, both in China and abroad, as well as groups involved in rule of law and civil society capacity-building initiatives to call for greater openness and transparency through substantive legislative reforms to the state secrets system.

The NPC has provided instructions for providing public comment online. (Chinese only.)

1. Although not a party to the International Covenant on Civil and Political Rights (ICCPR), China became a signatory to that treaty on October 5, 1998. As a signatory, China may not, as a matter of international law, do anything to actively undermine the purpose of the treaty. China has also indicated in numerous statements that it intends to ratify the ICCPR.^

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