On June 22, 2009, the National People’s Congress (NPC), the Chinese legislature, reviewed and discussed but did not pass a draft revision of the Law on Guarding State Secrets (hereafter, State Secrets Law). It has since released the draft revision for public comment until July 31.
As you know, China’s state secrets system - consisting of laws and regulations accumulated since the early 1950s, with the State Secrets Law 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 by the government.
According to the NPC’s stated explanations and goals (see end of this e-mail for a summary), the revision - consisting of 51 articles, versus 35 articles in the current State Secrets Law - is meant to address the technological advances that have taken place since the State Secrets Law was first promulgated in 1988, and is largely aimed at placing greater, tighter, and more meticulous control over classified information in the digital age.
Among the key proposed provisions are:
- Exclusion of limitations on the definition of state secrets. The exclusion of a provision in the existing State Secrets Law - Article 8: “Matters that do not conform with the provisions of Article 2 of this law shall not be considered state secrets” - has the potential of greatly expanding what can be considered state secrets.
- Detailed provisions on the management of information in electronic form, including electronic data storage and connectivity to the Internet or public networks. (Draft Articles 22-26 describe specific prohibitions in the context of storing, distributing, transferring, and disseminating electronic information.)
- Clear delineation of a hierarchy of authorities to investigate and prosecute misconduct involving state secrets and discipline those involved. (Draft Articles 37-43 detail the process of investigation, including provisions requiring full cooperation of concerned individuals and entities and permitting seizure of relevant materials and equipment. In contrast, Article 30 of the existing State Secrets Law states only that, upon receiving reports of misconduct relating to state secrets, state authorities shall “deal with the matter without delay.”)
- New classifications of the personnel handling state secrets and provisions requiring personnel to sign agreements to keep secrets. (Draft Article 33: “Personnel working in jobs that involve secrets shall be classified according to the degree of involvement with secrets into ‘core personnel involved with secrets,’ ‘important personnel involved with secrets,’ and ‘general personnel involved with secrets’ . Personnel involved with secrets shall agree to and sign a letter of promise to maintain secrecy, and shall not in any manner disclose state secrets.”)
- Increase in the penalties for violations. (Draft Articles 44-49 set out specific monetary fines and administrative and criminal consequences.)
- Confinement of knowledge of state secrets among the smallest possible number of personnel and government agencies/departments. (Draft Article 14)
Notably, the draft revision does not contain measures that are essential to reforming the political culture of secrecy or promoting the rule of law. Among these measures are:
- 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 Rights and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.
- Elimination of retroactive classification of information as state secrets.
To provide an overview of the proposed legislation for the English-speaking public, HRIC has prepared the following items (all the items are attached):
- Law of the People’s Republic of China on Guarding State Secrets (Revised Draft) Full Text and Explanation (English translation by Human Rights in China and Chinese original)
- Examples of Cases Involving Charges Related to State Secrets from 2007 to Present
- Resources on the Draft Revision of the Law on Guarding State Secrets
Please feel free to contact us if you have questions.
Mi Ling Tsui
Human Rights in China