Jerome A. Cohen and Jeremy Daum. China’s Draft State Secrets Law: Revision Without Reform. SCMP (South China Morning Post)

August 6, 2009.

When on July 5 China detained four Shanghai employees of Rio Tinto, a prominent Anglo-Australian company, on charges involving state secrets, the world immediately took note. While global media scrambled to decipher the ramifications of invoking “state secrets” under Chinese criminal procedure, a related story was quietly unfolding. China’s National People’s Congress had just released for public comment a draft revision of its 1989 Law for Protecting State Secrets.

In the twenty years since the Secrets Law’s enactment, China has undergone massive social, economic and political transformations, and experience with this law has demonstrated the need for corresponding improvements. Indeed, the open call for comments on the proposed revision reflects a recent trend in China favoring government transparency.

Last year’s implementation of the first nationwide Open Government Information Regulations (OGI) represented an important step — at least in principle — away from China’s traditional culture of official secrecy and towards the evolving notion of citizens’ “right to know.”  The OGI calls for government agencies at all levels to facilitate citizen requests for information and make voluntary disclosures including fiscal reports, emergency plans and supervision arrangements relating to public health, food and drugs. Although the OGI recognizes the limits imposed on access to information by national security concerns, it demonstrates a great commitment to information freedom, which is intended to serve as a powerful weapon against official corruption. China’s first National Human Rights Action Plan, published this spring, echoes these sentiments, calling for “a comprehensive system ensuring transparency in government affairs.”

In light of this trend and the flaws in enforcing the Secrets Law, observers expected that the revised law would embody the OGI spirit. The just-released draft, however, is disappointing. The proposed revisions, supposedly the product of thirteen years’ preparation, focus on strengthening rules for protecting secrets and supervising their use within government institutions, particularly in areas involving digital media and the internet. The amendments modestly improve arrangements for declassifying secrets and minimizing their duration, but no maximum time limit is prescribed, making it likely that secrecy will be extended indefinitely. By contrast, the draft is very specific in addressing fines against state personnel who fail to comply with security protocols.

More troubling than any of the revisions is what remains unchanged. There is no attempt to narrow the expansive scope of state secrets, which still includes a category for “other matters classified by the National State Secrets Bureau.” The Bureau’s regulations allow for classification of information that if leaked would negatively impact one of several vague national interests, such as ethnic unity and social stability.  Furthermore, the draft fails to address criminal law provisions punishing the disclosure of “intelligence”–matters that are not state secrets, but concern national interests and should not be revealed. ‘

The classification process itself remains unclear, unchecked and in the hands of too many levels of authority for standardization. If officials are punished for disclosing secrets, but not for arbitrary classification, secrecy will be excessive. Some agencies reportedly classify every document they generate. There is no effective mechanism for challenging a determination that information is secret, either for citizens seeking information or even defendants facing criminal prosecution.

In some respects the draft introduces further breadth and ambiguity. For example, the current ban on “disclosing” secrets in private correspondence is slated to be replaced by one prohibiting correspondence that merely “relates to” secrets, however they are defined.

The Secrets Law places ordinary citizens at risk alongside government officials and the employees of domestic and foreign enterprises. Under China’s Constitution and the Secrets Law, every citizen has a duty to protect state secrets. Further, the Criminal Law states that citizens who disclose secrets will be treated the same as officials.

Yet ordinary citizens and foreign business people, if they lack “insider” knowledge, are at a disadvantage in identifying secrets. The law calls for secret documents to be labeled as such, but this offers no guarantee that unmarked documents will not subsequently be declared secret. The Supreme People’s Court endorses prosecutions where the accused “should have known” that an unlabeled document sent abroad would impact state interests. Such documents are often classified as secret after the accused has already been detained. Moreover, in such cases, the accused is normally denied access to counsel during the investigation stage, is subjected to a closed trial and cannot effectively challenge the classification. Unfortunately, the draft law ignores these issues of fundamental fairness.

Unless the draft law is significantly modified, the spirit of transparency that animates the OGI cannot be realized.

An edited version of this text appeared in English in the South China Morning Post (Hong Kong) on August 6, 2009.