The New Amendments to the PRC's Counter-Espionage Law

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.

Reflections on Jiang Zemin

By Jerome A. Cohen

I have enjoyed the media obituaries and listserv commentaries on Jiang Zemin but hope that there will eventually be appraisals of his contributions to PRC efforts to establish government under law in the post-Tiananmen era. Some very significant criminal justice reforms were adopted when the nation’s Criminal Procedure Law was revised in 1996, and many legislative and regulatory reforms relating to the economy took place in order to make the PRC a plausible candidate for the WTO. Prime Minister Zhu Rongji played a key role regarding the latter, of course, and did recognize the importance of the rule of law to foreign investors. Yet I don’t recall Jiang Zemin saying much of significance about law reform.

I do vaguely recall my disappointment at his reaction to a question about a human rights case that I managed to get someone to ask him at an appearance in Washington. I wanted to bring to his attention - and the public’s - the arbitrary detention of a dissident whose family I was advising. He simply dismissed the question by saying that, since the Public Security Bureau had taken the action, he was sure that the government had reasonable grounds for acting. I would have been wiser to try “the back door” by asking Wang Daohan, whom I knew fairly well and who was thought to be important in promoting Jiang’s rise, to put in a quiet word for my client.