STATE SECRETS: CHINA’S LEGAL LABYRINTH HUMAN RIGHTS IN CHINA 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 Head Office: (2005) 350 5th Avenue, Ste. 3311 如何控制媒体 (Zhongguo zhengfu ruhe kongzhi meiti) New York, NY 10118 USA (2004) Tel: +1 212-239-4495 Fax: +1 212-239-2561 Hong Kong Office: GPO P.O. Box 1778 Hong Kong Tel: +852 2710 8021 Fax: +852 2710 8027 EU Liaison Office: 15 rue de la Linière 1060 Brussels, Belgium Tel: +32 (0)2 609 44 20 Fax: +32 (0)2 609 44 33 http://www.hrichina.org [email protected] 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 (省国家) calls itself the “Administration for the Protection of State Secrets of Guangdong Province,” but the equivalent Jiangxi Province state secrets body (江西省国家) 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 (国家), 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 国家工作部门. 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 (国家) but rather a generic term, we have used the more generic-sounding “national State Secrets Bureau.” When there is mention of a 工作部门 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 (绝) is “top- secret,” the next highest level (机) is “highly secret” and the lowest level (秘) 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 Introduction Since the People’s Republic of China (PRC) introduced economic reforms in the late 1970s, its exponential growth and the lucrative potential of its huge market have shaped how international business, media, and governments engage with the PRC, often to the detriment of human rights concerns. Despite this reported eco- nomic growth, the Communist Party of China’s (CPC) post-Tiananmen “bargain” of silence—don’t ask, get rich—is breaking down under the pressures of endemic corruption, growing social inequalities and unrest, and serious environmental, public health and social welfare challenges. The PRC ruling elite1 maintains political and social control in this volatile domestic landscape through a comprehensive and non-transparent state secrets system, which is largely shielded from the international spotlight. The development of the state secrets system as a sword and a shield, together with an effective security appa- The development of the state ratus, serves to strengthen the one-party rule of the CPC and undermines the foun- secrets system as a sword and a dations for good governance, an independent rule of law and sustainable shield, together with an effective development.