state secrets: china's legal labyrinth - Human Rights in China

292 Pages·2007·2.43 MB·English

STAT E
S E C R E TS :
CH INA’S
LEGAL
LABYR INTH
HU M A N R I G H T S I N C H I N A
ABOUT HUMAN RIGHTS IN CHINA (HRIC)
Founded by Chinese students and scholars in March 1989,
HRIC is an international, Chinese, non-governmental organi-
zation with a mission to promote international human rights
and advance the institutional protection of these rights in
the People’s Republic of China.
OTHER HRIC PUBLICATIONS
The Fog of Censorship: Media Control in China
(forthcoming 2007)
Challenging China: Struggle and Hope in an Era of Change
(2007)
China: Minority Exclusion, Marginalization and Rising Tensions,
commissioned by Minority Rights Group International
(2007)
Devastating Blows: Religious Repression of Uighurs in Xinjiang,
a joint report with Human Rights Watch
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Table of Contents
STATE
SECRETS:
CHINA’S
LEGAL
Acknowledgments v
LABYRINTH
Abbreviations vi
Translator’s Note vii
Introduction 1
Section I: Into the Legal Labyrinth 5
A. The International and Domestic Legal Framework 5
1. International Norms and Standards 5
PRC Obligations Under International Law 7
2. The PRC State Secrets Framework 9
Overview 9
The State Secrets Law 10
3. Enforcement of the State Secrets System 17
Sanctions 17
State Secrets and State Security 21
4. Derogations from Procedural Protections 23
B. Impact of the System on Human Rights 24
1. Impact on the Rule of Law 25
Stripping Procedural Protections 27
Intimidation of and Attacks on Defense Lawyers 31
Lack of Independent Review 31
2. Lack of Transparency and Accountability 32
Cover-ups 34
Corruption and Official Malfeasance 37
Detention, Torture, and the Death Penalty 38
3. Undermining Independent Civil Society 44
TABLE OF CONTENTS i
C. Reform Efforts 47
1. Open Government Information (OGI): Local Initiatives 48
2. The Right to Know 50
3. The Declassification of State Secrets 52
4. Reforms of the State Secrets System 53
Declassification of Natural Disaster Casualties 53
Criminal Justice Reforms 55
5. The Limits of Reforms 56
6. Conclusion 57
D. Recommendations 58
Introduction and Section I Notes 61
Section II: State Secrets Laws and Regulations of the PRC 79
Editors’ Introduction 79
A. Main Statutes, Regulations, and Supreme Court Interpretation
Governing the State Secrecy System in China 81
1. Law on the Protection of State Secrets of the People’s Republic
of China 81
2. Measures for Implementing the Law on the Protection of State
Secrets of the People’s Republic of China 94
3. The Supreme People’s Court Interpretation of Certain Issues
Regarding the Specific Application of the Law When Trying
Cases of Stealing, Gathering, Procuring or Illegally Providing
State Secrets or Intelligence Outside of the Country 112
B. Selected Provisions of Major Laws Involving State Secrets 117
State Security Law of the People’s Republic of China 118
Criminal Law of the People’s Republic of China 120
Criminal Procedure Law of the People’s Republic of China 122
C. Four Classified Regulations Pertaining to Law Enforcement
and the Judiciary 125
1. Regulation on State Secrets and the Specific Scope of Each Level
of Secrets in Public Security Work 125
2. Regulation on State Secrets and the Specific Scope of Each Level
of Secrets in the Work of the People’s Procuratorates 138
3. Regulation on State Secrets and the Specific Scope of Each Level
of Secrets in the Work of the People’s Courts 143
ii TABLE OF CONTENTS
4. Regulation on State Secrets and the Specific Scope of Each Level
of Secrets in Judicial Administration Work 152
D. Regulation on the Protection of State Secrets
in News Publishing 160
E. Selection of State Secrets Provisions
Regulating Specific Activities 168
Appendices 187
Editors’ Introduction 188
I. Official Documents 189
II. Cases Involving State Secrets 213
III. Incidents of Official Cover-Ups 236
Appendices Notes 243
Glossary 249
I. General Terms 249
II. State Bodies 250
III. PRC State Secrets Laws and Regulations Cited in this Report 251
Bibliography 255
TABLE OF CONTENTS iii
Acknowledgments
Human Rights in China (HRIC) would like to thank the Chinese legal and policy
experts who provided invaluable comments and suggestions on working drafts of
this report. Special thanks to: Jerome A. Cohen, Fu Hualing, Liu Baopu, Christine
Loh, Andrew Nathan, and others who wish to remain anonymous.
ACKNOWLEDGMENTS v
Abbreviations CAT Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CERD International Convention on the Elimination of All Forms of Racial
Discrimination
CPC Communist Party of China
CPL Criminal Procedure Law
CRC Convention on the Rights of the Child
HRIC Human Rights in China
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
MOJ Ministry of Justice
MPS Ministry of Public Security
NAPSS National Administration for the Protection of State Secrets
NGO Non-governmental organization
NPC National People’s Congress
OGI Open Government Information
PRC People’s Republic of China
RTL Reeducation Through Labor
SARS Severe Acute Respiratory Syndrome
SCMP South China Morning Post
SEPA State Environment Protection Administration
SEZ Special Economic Zone
SPC Supreme People’s Court
SPP Supreme People’s Procuratorate
UNDP United Nations Development Programme
UDHR Universal Declaration of Human Rights
UN United Nations
WHO World Health Organization
WTO World Trade Organization
XUAR Xinjiang Uyghur Autonomous Region
vi ABBREVIATIONS
In this report, we have attempted, as much as possible, to use the English names of Translator’s Note
government bodies in the People’s Republic of China as found on their Web sites
or in official publications. The difficulty in doing this in regard to state secrets bod-
ies, however, is that firstly, state secrets bodies at the provincial and municipal lev-
els (all called in Chinese, or “protection of state secrets bureau”) often do
not have English translations of their names; and secondly, if they do have English
names, there is a lack of consistency in the way the name is translated. For example,
the Guangdong Province state secrets body (省) calls itself the
“Administration for the Protection of State Secrets of Guangdong Province,” but
the equivalent Jiangxi Province state secrets body (省) calls
itself the “Jiangxi State Secrecy Bureau.”
Furthermore, there is a lack of consistency in the way foreign NGOs refer to these
bodies, particularly the national-level state secrets organ () , which
many organizations refer to simply as the State Secrets Bureau—but whose official
English name is the “National Administration for the Protection of State Secrets.”
Therefore, in the text of this report, we have chosen to use the national body’s offi-
cial name, or its abbreviation, NAPSS. State secrets bodies at the provincial and
municipal level are translated as “bureau” and at levels lower than the municipal
level, “department.”
A phrase found in a number of the laws and regulations in Section II: State Secrets
Laws and Regulations of the PRC is the rather vague term .
This literally translates as “National Protection of State Secrets Work Department,”
but it does, in fact, also refer to the “National Administration for the Protection of
State Secrets.” Therefore, when translating this term in the various laws and regula-
tions in Section II, because it is not the official name of the body in Chinese
() but rather a generic term, we have used the more generic-sounding
“national State Secrets Bureau.” When there is mention of a at the
provincial or municipal level, we have simply used the lower-case “state secrets
bureau.”
In translating the different classification levels of secrets that exist in China, we
have opted to use the following terms: The highest level of secret () is “top-
secret,” the next highest level () is “highly secret” and the lowest level ()
is “secret.” The purpose of translating the classification levels in this way is to
reflect the comment element in the Chinese terms () and to provide the reader
with an immediate grasp of the hierarchy between the three.
The glossary at the end of this report contains a full list of terms related to state
secrets in Chinese and English, as well as a bilingual list of government bodies and
state secrets laws and regulations cited in this report.
All of the laws, regulations and other documents presented in both Section II and in
the Appendices of this report are original English translations produced by HRIC.
TRANSLATOR’S NOTE vii