The first thing to keep in mind about the amendments to the counter-espionage law – and any law in the PRC – is that the secret police are free to ignore it when they deem it desirable to do so. Despite their actions cloaked in secrecy, many cases of lawless action eventually become known to the public and to foreigners, as recent cases again illustrate.
It is encouraging to see that the forthcoming law will be amended to protect “individuals”, i.e., including foreigners, rather than only “citizens”. But no one should be foolish enough to rely on the paper protections of human rights in this legislation or the PRC’s other provisions relating to criminal justice.
Second, speculation about how the vague terms in the amended law will actually be interpreted and applied should await promulgation of a new set of Detailed Implementing Rules as well as regional and local regulations.
Third, it is unclear which of the relevant legal institutions will exercise the most power over enforcement of the law. Surely it will not be the courts. Will it be the local Communist Party Political-Legal Committee? The organs of the Ministry of State Security? Or the recently-established National Supervisory Commission and its agents? And how meaningful is it to state that espionage cases are subject to law when the Criminal Procedure Law allows criminal investigators to detain a suspect incommunicado for six months before a decision is made to initiate conventional criminal procedures and when in espionage cases those procedures are applied in blatant denial of basic due process rights?
The anticipated amendments to the espionage law add to the already breathtaking breadth of its provisions. Acts of espionage will now include “seeking to align with an espionage organization and its agents”. The new law will protect not only state secrets and intelligence but all “other documents, data, statistics, materials and other items related to national security”. And officials are admonished, of course, to take “a holistic view of national security” in applying the terms of the law.
The new law will also proscribe espionage in China that targets a third country and will punish PRC nationals who while abroad allow themselves to be used by an espionage organization.