Hong Kong Journalists Association, International Federation of Journalists and Independent Commentators Association welcome the public consultation for the People’s Republic of China National Security Law(draft)(Second reading draft)( hereafter new National Security Law) announced by the Standing Committee of National People’s Congress. These three organizations believe that the public consultation is an important step towards improving this law and resolving doubts. It is also an advancement towards democratization and transparency of the legislative process.

In general, we believe there is a lack of human rights protection in the new National Security Law. The reasons are as follows:

1. The concept of human security was introduced in the United Nations Development Program’s Human Development Report in 1994. It systematically describes the paradigm of “people-centred” in this new concept of global security, which lays down the concept of human security as the foundation of national and global security. And human security is embodied in human rights. It is clearly outlined in the report that the realization of global security requires sufficient protection on the realization of human rights. In other words, human rights protection is the foundation of national security protection. An increasing number of countries have accepted this new perspective on national security promoted by the United Nations. Evaluating the new National Security Law from this perspective, we find that it puts too much emphasis on the protection of national security and yet is lacking in protection of human rights, the foundation of national security.

2. The New National Security Law covers an overly broad range of areas, not in alignment with The Johannesburg Principles on National Security, Freedom of Expression and Access to Information which have been stipulated by international experts and widely adopted globally, thus rendering it easily subject to abuse, and infringement of human rights. On this, we urge the Standing Committee of the National Peoples’ Congress to refer to the “Johannesburg Principles” when revising the New National Security Law.

In the following sections, we will focus on the sectors which are the most relevant to journalists and submit our recommendation for revisions.

1. Provisions that should be deleted

A) “State’s power to govern” in Article 2 should be deleted

In the new National Security Law, state’s power to govern is listed as the first subject to protect (In the first draft, it was “to consolidate the status of the ruling party”). We propose to delete the “state’s power to govern” and the reasons are as follows:

(i) Four cardinal principles i.e. Mao Zedong Thought & Marxism-Leninism, people’s democratic dictatorship, socialist path and the leadership of the Communist Party of China have been upholded in the preamble to China’s constitution. In Article 1, it also clearly spells out the nature and system of the nation, with emphasis on “Disruption of the socialist system by any organization or individual is prohibited”. Therefore, the security of “state’s power to govern” has been sufficiently protected in the constitution and it is not necessary to add further legislative protection.

(ii) Article 2 of China’s Constitution specifies, “All power in the People’s Republic of China belongs to the people”. In theory, one of the people’s power is to choose the political regime and political party. Using legislation to ensure certain type of regime and governing party to remain in power is restricting people’s choice, and theoretically, an infringement on people’s power.

(iii) Article 5 of China’s Constitution emphases “No laws or administrative or local rules and regulations may contravene the Constitution.” If there is a law protecting the ruling party’s governing status, it means that the ruling party will be immune from impeachment, criticism or even stepping down from power. These privileges contravene the constitution.

(iv) Objectively speaking, the security of the ruling party should be guaranteed by its governance effect and achievements, not by law. From a historical point of view, there is no ruling party securing its eternal governing status through law.

(v) If the priority is given to secure the state’s power to govern, this will become a mistake with no separation of the state and the party, or the integration of party and state. And this will put enormous pressure on the work of journalists since reporting and criticizing governing officials’ blunder may easily be perceived as endangering national security.

Obviously, this article is in violation of the Constitution, historical lessons and reinforcing the mistake of the lack of separation of the state from the ruling party, and therefore, it is imperative to delete this article.

B) Article 20 concerning cultural security should be removed

We believe that the cultural security mentioned in Article 20 of the new National Security Law should be deleted. The reasons are as follows:

(i) It is not appropriate to regulate the matters in the ideological domain through law, otherwise, freedom of expression will be restricted and even smothered. The unnecessary restriction will unavoidably cause harm to the individual as a chilling effect will result. Eventually, the damage done to the individual will aggregate and transform the society into a muted community, making society as a whole suffer. China should learn the lessons from the historical events that led to the open door policy.

(ii) History, especially China history since 1949, shows that controlling ideology has been precisely the reasons for social unrest and instability. Another example is the former Soviet Union’s and Eastern Europe’s prolonged control over ideology that eventually led to their regimes’ loss of power. The stipulation of this article will sow the seeds of national unrest.

(iii) The phrase “defending and resisting against negative cultural seepage” in Article 20 is the sword of Damocles’ over journalists as the work of journalists is about introducing and discussing new thinking, new perspectives and new things. Journalists’ can be easily accused of committing an offence under this stipulation of “negative culture”

C) The last part of Article 26 concerning information security must be deleted

We believe Article 26 of the new National Security Law, which covers information security, must be deleted. It states:

“Strengthen management of the internet, preventing and punishing unlawful criminal activity on the Internet, including network attacks, cyber theft and the dissemination of unlawful and harmful information; maintain cyber space sovereignty, security and development interests.”
The reasons it should be deleted are as follows:

(i) The concept of “cyberspace sovereignty” may alter the unique feature of the Internet – that it is borderless – and become an obstacle to the free flow of information. It will further strengthen the already tight control of the Internet on the Mainland. It is totally non-beneficial to the people’s ability to obtain information from the internet, to exchange views, disseminate thoughts and monitor the government.

(ii) For journalists, obtaining information from the Internet, including exclusive information and compiling views from different parties has already become a habitual part of the reporting process. Under the new regulations, such legitimate journalistic activities may be regarded as an infringement upon national security. The legislation would cast a shadow over journalistic works.

2. Provisions to balance sovereign power should be added

From our reporting experiences, we understand that numerous acts of the persecution of citizens and violation of human rights are carried out in the name of national security. It will be especially easy for serious violations of human rights to occur in implementing provisions in four main areas of the new National Security Law. These are:

(i) Article 21 on security in the ethnic regions
(ii) Article 22 regarding religious security
(iii) Article 23 on terrorism
(iv) Article 24 on social and public security

Furthermore, we must emphasize that the scope of what is to be protected is poorly defined in the draft, yet it is of vital importance to the interests of the masses. Journalists cannot deprive the people of their right to know and are duty bound to report. Therefore, in drafting the new National Security Law, we think an appropriate balance must be sought between protecting national security and citizens’ rights.

Although Article 7 of the draft of the new National Security Law states, “The maintenance of national security should follow the Constitution and law, and uphold the principle of socialist rule of law, respect and protect human rights, and protect citizens’ rights and freedom in accordance with law,” the wording is too general and cannot provide legal recourse to those whose rights have been infringed.

We propose that there should be additional articles to safeguard human rights in the legislation. Otherwise, the legislation will become the basis for a policy of “protecting national security in name, cracking down on human rights in reality.” We propose the article be amended to the following:

Article 7: In maintaining national security, the Constitution and law must be abided by, human rights must be respected and protected, the people’s rights to freely obtain information, to a free press and freedom of assembly must be protected according to law.

3. Complementary reforms

As the proposed legislation covers a wide range of areas and many aspects of the people’s daily life, the people may fall foul of it at every turn. In view of this, we propose that before such legislation is launched, authorities must first consider the following supporting reforms:

A) To produce a Chinese “Human Rights Law”, as a statement of intent to implement Article 33 of the Chinese Constitution on the protection of human rights, and to implement China’s pledge to honour its international obligations as a signatory of the International Covenant on Civil and Political Rights (ICCPR). China signed the covenant in late 1998, but 17 years on, the Standing Committee of the National People’s Congress has yet to ratify the covenant, meaning international human rights law cannot yet be realized on the Mainland. Therefore, it is a matter of urgency to produce a Chinese human rights law to realize China’s constitutional requirement, to ratify the ICCPR and to amend accordingly the relevant Chinese laws that are not in line with the ICCPR.

B) To rescind two official replies handed down by the Supreme People’s Court in 1955 and 1986 respectively, so as to allow the courts to invoke provisions in the constitution to protect human rights.

The Supreme People’s Court gave an official reply once in 1955 and again in 1986, namely Court Reply #11298 of 1955 and Court Reply #31 of 1986, stating that the courts should not directly invoke relevant provisions from the Constitution in court proceedings. These two official replies effectively remove the authority of the Constitution by eliminating its power to protect the people’s rights. We propose the authorities consider rescinding these two official replies and restore the Constitution’s function to protect the people’s rights as soon as possible.

C) To establish at the earliest instance, a system to investigate violations of the Constitution in order to deal with violations of private rights that may arise after the rapid expansion of sovereign power once the new National Security Law is passed.

Currently, without a system to investigate violations of the Constitution, victims in the many cases in which private rights are violated by sovereign rights have no channels of appeal and recourse. In order to realise the requirements on “citizens basic rights and responsibilities” in Chapter Two of the Constitution, there is a need to establish a system for investigating violations of the Constitution.

D) Amend relevant parts of Criminal Procedure Law that require cases involving national security to be tried in closed court.

According to the 22nd Article of the Johannesburg Principles on National Security, defendants should have the right to trial in an independent court. In most cases, the defendant will be tried by jury. Therefore, the Mainland’s secret court proceedings may go against international standards. If China adopts the new National Security Law, with its sweeping coverage of many areas which far exceeds the traditional concept of national security, alongside the current requirement for secret trials, then many issues relating to politics, the economy, society, culture and technology will be placed in the realm of things that must not be exposed. This not only goes against international standards, it also contravenes the judicial reforms the Central Government is pushing, and prevents the public from witnessing the courts carrying out their proceedings in a just and fair manner.

If the public is unable to see the protagonists in a case being given the chance to have a fair trial, this will add to the lack of transparency in society and hurt social stability. Before the new National Security Law is implemented, we believe authorities must first require that trials be held openly rather than behind closed doors, so that justice can be seen to be done before the people.

E) As the new National Security Law will unavoidably restrict citizens’ rights, authorities should offer defendants all possible means of assistance in accordance with international standards, including the right of habeas corpus and to allow defendants to request special relief measures from the courts when their personal rights are being violated.

We hope you accept the above recommendations.

Anthony Bellanger
Deputy General Secretary
International Federation of Journalists (IFJ)
[email protected]

Sham Yee-Lan
Chairperson
Hong Kong Journalists Association (HKJA)
[email protected]

Bruce Lui
Convener
Independent Commentators Association (ICA)
[email protected]

June 2015