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National Security Law in China

H. L. Fu* AND RICHARD CULLEN**

All nations, regardless of political persuasion, generallydraft quite drastic provisions to protect national securityinterests. In 1993, the People's Republic of China (PRC)introduced a new National Security Law (NSL). The NSLis administered by the Ministry ofNational Security. Therewere hopes that the codification of the law on nationalsecurity would be a step towards a clearer and more fairregime for protecting such interests in the PRC. Experi-ence so far has not borne out these hopes. The efforts ofthe National People's Congress (the PRC Parliament) inproviding a clearer and somewhat more limited statementof what constitutes threats to national security have beenundermined by the NSL implementing authorities, especiallythrough the use of subsidiary regulations. Moreover, theaccountability mechanisms applying to the implementingauthorities remain feeble.

I. INTRODUCTION ............................. 450II. BACKGROUND .............................. 451III. NATIONAL SECURITY LAW IN CHINA: STRUCTURE ..... 453IV. NATIONAL SECURITY LAW IN CHINA: APPLICATION .... 457

A. Ministry of National Security Powers under theCriminal Litigation Law .................... 458

B. Ministry of National Security Powers under theNational Security Law ..................... 461

C. Duties of Citizens under the National Security Law.. 463V. NATIONAL SECURITY LAW N CHINA: ACCOUNTABILITY. . 464

A. Accountability to the National People's Congress... 465B. Accountability to the Courts ................. 466C. Accountability to the Public ................. 466

VI. CONCLUSION ............................... 467

* H. L. Fu, LLB (Southwestern Institute of Political Science and Law, PRC); MA(Criminology, University of Toronto); D.Jur (York University, Toronto), University Lecturerof the Department of Law, City University of Hong Kong. (Principal author).

** Richard Cullen, LLB (Hons)(Melboume); D.Jur (Osgoode Hall, Toronto), UniversitySenior Lecturer of the Department of Professional Legal Education, City University of HongKong. (Associate author).

COLUMBIA JOURNAL OF TRANSNA TIONAL LAW

I. INTRODUCTION

A recurring theme in the political dialogue between China andthe West is political freedom in the People's Republic of China(PRC). Constraints on freedom of expression and political behaviorin China have been widely discussed for many years and particularlysince the Tiananmen bloodshed on June 4, 1989.

All countries, including the most liberal democracies, placeconstraints on political expression and behavior. No jurisdictionsallow deliberate efforts to overthrow the existing order, nor do theypermit foreign governments, even friendly ones, to undertakeclandestine activities within their midst. The action taken by theFrench Government to counter the recent alleged spying by theCentral Intelligence Agency of the United States of America inFrance is a case in point.'

In the PRC, the system for controlling political expression andbehavior is extensive, detailed and often notoriously applied. Sincethe "open door" policy was adopted in the late 1970s, certainmeasures have been taken to formalize and strengthen the control ofpolitical expression and behavior in the PRC. This article focuses onone of these measures, the National Security Law of 1993 (NSL) andthe operations of the principal implementing authority for the NSL,the Ministry of National Security (MNS), sometimes also referred toas the Ministry of State Security2 . The MNS was established in1983, and the NSL was enacted in 1993. This article reviews thescope of the NSL provisions and a number of implementing rules.It also looks at the powers of the MNS under the NSL and relatedlegislation. Further, it considers the duties of citizens under the NSLand the accountability of the MNS.

In Part Two of this article, some brief background informationis provided. Part Three reviews the structure of the NSL. Part Fourlooks at the powers of the MNS, first under the Criminal LitigationLaw of 1979 (CLL), and then under the NSL (and related rules), andthe duties of citizens under the NSL. Part Five discusses accountabil-ity, and Part Six is the conclusion.

1. Harrison, Nathaniel, U.S. Spy Spat Dogs France's Balladure, USA TODAY (INT'LED.) March 8, 1995 at 4A.

2. The Ministry of National Security is the translation adopted in this article.

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NATIONAL SECURITY LAW IN CHINA

I. BACKGROUND

The MNS was set up in 1983 by a Decision of the StandingCommittee of the National People's Congress (NPC).3 The MNStook over responsibility for investigating any activities which areregarded as external threats to China's national security from theMinistry of Public Security (i.e., the ordinary police). In performingthis function, the MNS enjoys the powers of detention, arrest,interrogation, and other powers under the CLL, enacted in 1979. In1993, the Standing Committee of the NPC enacted the NSL.4 Thislaw defines the scope of national security in China and deals alsowith certain functions and powers of the MNS. In 1994, the StateCouncil passed the Rules for the Implementation of the NationalSecurity Law (the Rules).' The Rules define some of the terms inthe NSL and provide guidelines for national security work.

National security is one of the primary concerns of any govern-ment and can even override individual rights.' This primacy ofnational security concerns was judicially recognized in the UnitedStates in 1981 in the Supreme Court case of Haig v. Agee.7 In thecourts, the invocation of national security concerns clearly canoutweigh other considerations. A national government is, generallyspeaking, entitled to determine when a national security concernarises.

The term "national security" has no precise meaning. Essential-ly a political concept, its content is contingent upon the politicalcircumstances. The elastic nature of this concept "lie(s) in the broadgeopolitical and strategic factors on which versions... of the concepthave been based."8 The elastic nature of national security allows thegovernment to define it flexibly, making it a nebulous concept.

National security includes threats, both internal and external,which challenge the fundamental structure of a particular society.

3. Decision of Sept. 2, 1983 Regarding the Exercise by the State Security Organs ofthe Public Security Organs' Powers of Investigation, Detention, Preparatory Examination andArrest. Standing Committee of the National People's Congress.

4. National Security Law of the People's Republic of China, Feb. 22, 1993, StandingCommittee of the National People's Congress [hereinafter NSL].

5. Rules for the Implementation of the National Security Law of the People's Republicof China, June 4, 1994, State Council [hereinafter Rules].

6. Peter Hanks, National Security - A Political Concept, 14 MONASH U.L.REv. 114(1988).

7. 453 U.S. 280 (1981).8. Hanks, supra note 6, at 117.

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Under the Australian Security Intelligence Organization AmendmentAct of 1986, for example, national security "includes protectionagainst espionage, sabotage, politically motivated violence, promotionof communal violence, attacks on Australia's defense system, and actsof foreign interference."9 In a similar vein, national security in theUnited Kingdom is defined as encompassing the defense of the realm"from espionage, terrorism and sabotage; from the activities of agentsof foreign powers; and from actions intended to overthrow orundermine parliamentary democracy by political, industrial or violentmeans."' 0 Similar provisions apply in Canada. 1

Acts of foreign interference receive special attention as nationalsecurity concerns and are defined broadly. In Canada, threats tonational security include "foreign influenced activities within orrelating to Canada that are clandestine or deceptive or involve a threatto any person. 1 2 In Australia, acts of foreign interference aredefined as:

Activities relating to Australia that are carried on by or on behalfof, are directed or subsidized by or are undertaken in active collabora-tion with, a foreign power, being activities that-

(a) are clandestine or deceptive and-(i) are carried on for intelligence purpose;(ii) are carried on for the purpose of affecting political or

governmental process; or(iii) are otherwise detrimental to the interests of Australia;

or

(b) involve a threat to any person.' 3An act is thus more likely to pose a national security threat if a

foreign power is involved. In such a case, there is no requirement ofthe use or threat of use of violence, nor need there be a threat tooverthrow the government. It is sufficient that a foreign power or its

9. Australian Security Intelligence Organization Amendment Act, 1986, No. 122,3(d).

10. Security Service Act, 1989, ch.5 (U.K.).11. See Security Intelligence Service Act, 1984, Chap. C-23, 2 (Can.).12. Id.13. Australian Security Intelligence Organization Amendment Act, 1986, 3(a). Foreign

power is defined at sec 3(b) as(a) a foreign government;(b) an entity that is directed or controlled by a foreign government

or governments; or(c) a foreign political organization.

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agents, acting clandestinely or deceptively, gathers intelligence,interferes with the political process of the country, or does anythingelse which is detrimental to the country's interest.

III. NATIONAL SECURITY LAW IN CHINA: STRUCTURE

Under Chinese law, national security by definition is limited toexternal interference. According to Article 4 of the NSL, an actendangers China's national security when organizations14 or individ-uals 5 outside China commit, request or support others in commit-ting, or collude with organizations and individuals within China tocommit activities which endanger national security.

"Support" includes providing money, accommodation ormaterials to organizations or individuals outside China to carry outactivities endangering the national security of China. 6 "Collude"includes the following activities committed by organizations andindividuals in China:

(1) plotting or carrying out activities endangering nationalsecurity jointly with organizations or individuals outside China;

(2) accepting support or missions from organizations or individu-als outside China to carry out activities endangering nationalsecurity; and

(3) contacting organizations or individuals outside China andreceiving their support, and aiding those organizations or individualsto commit activities endangering national security.17

The primary concern of China's national security law is thusexternal interference. This legislative intent was made clear in thespeech of Mr. Jia Chunwang, the Minister of National Security, whenhe presented the draft NSL to the NPC. According to Mr Jia, China'snational security threats come from three sources: first, espionage byforeign intelligence agencies and other enemy forces; 8 second,Chinese citizens who are hostile to socialism and who seek supportfrom those foreign forces; third, Chinese citizens who sell state

14. This includes a branch office of a foreign organization. Rules, supra note 3, art. 3,1.

15. This includes persons residing in China who are not Chinese citizens. Rules, supranote 3, art. 3, 2.

16. Rules, supra note 5, art. 6.17. Rules, supra note 5, art. 7.18. Enemy is defined by both the Ministry of Public Security and the Ministry of

National Security. See Rules, supra note 5, art. 5.

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COLUMBIA JOURNAL OF TRANSNATIONAL LAW [

secrets to foreign persons for profit. The NSL is necessary, heexplained, because political interference from external forces hasintensified and diversified.1 9

Article 4 of the NSL makes it clear that, for the purpose ofnational security, foreign elements must be involved. Purely internalsubversion is left to be dealt with by other agencies of the State.Only organizations or individuals with foreign connections pose anational security threat under the NSL.2

The subject matter of national security is defined widely.Article 4 lists five categories of national security concerns:

1. plotting to subvert the government, dismember thestate, or overthrow the socialist system;

2. participating in foreign intelligence organizations oraccepting missions from such organizations or theiragents;

3. stealing, probing, purchasing or unlawfully providingstate secrets21;

4. instigating, bribing, or luring state personnel to defect;and

5. any other sabotage endangering state security.22The list of national security offences is compatible with and

reinforces the list of counterrevolutionary offenses in the CriminalLaw of 1979 (CL). These CL offences include:

1. colluding with foreign states in plotting to harm thesovereignty, territorial integrity, and the security ofthe country;

23

2. plotting to subvert the government or dismember thestate;

24

3. instigating, luring, or bribing members of the statepersonnel, armed forces, people's police or people'smilitia to defect to the enemy and turn traitor or to

19., AA CHUNWANG, INTRODUCTION TO THE NATIONAL SECURITY LAW OF THEPEOPLE'S REPUBLIC OF CmINA (22 December 1992).

20. NSL, supra note 4, art. 4.21. This category covers both the providers and the receivers of state secrets.22. Id.23. Criminal Law, art. 91 (1976).24. CL, supra note 23, art. 92.

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rise in rebellion;2"4. stealing, secretly gatheringor providing intelligence

for an enemy or supplying arms and ammunition ormilitary materials to an enemy; and

5. taking part in a secret or espionage organization oraccepting a mission assigned by an enemy.2 6

Those who have committed national security offenses under theNSL are to be punished according to the related articles of the CL.The NSL itself does not stipulate any specific penalties, but it doesincorporate the CL as a schedule to the NSL in order to establish theapplicable punishment27 .

In the draft NSL, Article 4(5) originally provided that "any otheractivities endangering state security" were proscribed. There was norequirement that the activities had to be in the nature of sabotage. Itwas a catch-all article under which any act which had the potential tobe a national security threat was punishable.28

During the debate on the draft NSL, some NPC deputiesquestioned the scope of Article 4(5) as originally drafted. Theyargued that an activity should not be considered a national securitythreat unless it was in the nature of sabotage. By inserting anelement of sabotage in Article 4(5), the, deputies intended to definethe concept more clearly and restrictively. Unless an act involvedsome type of sabotage, meaning an act which causes, or is likely tocause, some actual harm to national security, according to anobjective standard, the act would not be a security threat within themeaning of the NSL. It is clear that the legislators intended torestrict the definition of what was a national security threat, and thisintention was meant to be reflected in guidelines for the implementa-tion of the NSL.29

One might have expected the NPC or the Supreme People'sCourt ultimately to have defined the meaning and scope of "sabo-tage." Unfortunately, it is the MNS, the sponsor of the original bill,that has defined this scope. It has done so by reinserting in the Rules

25. CL, supra note 23, art. 93.26. CL, supra note 23, art. 97.27. NSL, supra note 4, Appendix "Relevant Articles in the Criminal Law".28. XIANG CHUNYI, EXAMINATION REPORT OF THE LEGISLATIVE AFFAIR'S COMMISSION

OF THE NATIONAL PEOPLE'S CONGRESS ON THE NATIONAL SECURITY LAW OF THE PEOPLE'SREPUBLIC OF CHINA.

29. Id.

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the content which was deleted from the NSL by the legislators. It isthe usual practice in the PRC for a sponsoring entity to make therules needed to implement sponsored legislation. As of yet, there arefew, if any, constraints on the departments like the MNS when theyuse this rule-making power in this way.

According to Article 8 of the Rules, "other activities" whichconstitute sabotage include:

1. organizing, planning or carrying out terrorist activitiesendangering national security;

2. falsifying or distorting facts, publishing or spreadingstatements, either in writing or orally, or making orbroadcasting audio or video products, endangeringnational security;

3. using established social, economic or administrativeorganizations to carry out activities endangering statesecurity;

4. using religion to carry out activities endangering statesecurity;

5. creating ethnic disputes, inciting ethnic separation,endangering state security; and

6. individuals from outside China meeting persons frominside China who are a threat to, or are suspected ofbeing a threat to, state security.0

The Rules effectively circumvent the more restrictive interpreta-tion of the NPC. The term "sabotage" does not add anything new.There is virtually no difference between "any other activitiesendangering national security" and "other activities which equalsabotage endangering national security."

In the draft NSL, it was also an offence for a person to falsifyinformation relating to national security and to interfere with anddamage national security work. Some of the NPC deputies pointedout that it is difficult to state the meaning of "falsify information." Asa result, this article was replaced by one describing a more generaloffence of obstruction of a national security officer in the executionof his duty. Spreading rumors would not be a national securityconcern until it amounted to obstruction.3 The MNS, however,

30. Rules, supra note 3, art.8. Article 8(6) of the Rules permits some meetings,provided they do not violate certain regulations and are permitted by the authorities. Id.

31. Xiang, supra note 28.

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reintroduced the latter offence through the Rules. Under Article 8(2)of the Rules, it is an offence if one falsifies or distorts facts andmakes or spreads statements endangering national security.32

The question that therefore arises is whether or not, by expand-ing the scope of national security, the Rules have exceeded theauthority provided to the MNS in the NSL and become ultra vires.In China, there is a rule, superficially similar to the common lawprinciples limiting the scope of delegated legislation, that subsidiarylegislation has to be within the scope granted by the parent law. TheState Council, the executive branch of the government, is authorized"to adopt administrative measures, enact administrative rules andregulations and issue decisions and orders in accordance with theConstitution and the law., 33 Chinese commentators have repeatedlymade the point that delegated legislation cannot contravene theempowering law.34

The Chinese Constitution and other laws really do not stipulatea common law ultra vires principle, however. There is a presumptionthat laws passed by the NPC will be general and abstract, not in thesense that NPC provides the framework and the executive fills in thedetails (as is the case in common law countries), but in the sense thatthe NPC creates a mandate for the executive to enact regulations togovern certain spheres of social and economic activity, or to providegeneral guidelines to the executive as to its activities. The NPCplants the seed which grows in the backyard of the State Council.35

IV. NATIONAL SECURITY LAW IN CHINA: APPLICATION

The intelligence services in common law countries are civilianagencies, whose agents do not enjoy the power possessed by peaceofficers. In Lord Denning's words, "[t]he members of the Serviceare, in the eyes of the law, ordinary citizens with no powers greater

32. Rules, supra note 5, art. 8.33. XIANFA [Constitution] art. 89(1) (1982).34. ALBERT H Y CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE'S

REPUBLIC OF CHINA 77 (1992); Xu Anbiao, The Boundary between Law and AdministrativeRegulations, in LEGISLATION: PRINCIPLES, STRUCTURE AND TECHNIQUES 145 (Guo Daohuiet al. eds., 1994).

35. If, as seems to be the case, the ultra vires principle does not apply, then theexecutive has sufficient discretion to expand the law's authority greatly. In the instant case,the State Council is apparently competent to expand the category of national security. Untilthere is a clear constitutional rule which entrenches the ultra vires principle, the StateCouncil has unlimited power to alter (and distort) national laws.

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than anyone else. They have no special powers of arrest such as thepolice have."'36 Limited rights to enter and search, however, areconferred by statutes, and the otherwise illicit entry in or interferencewith property by a security agent will be immune from criminal andcivil proceedings if carried out in accordance with ministerial orjudicial authorization. This restricted right is compatible with thepurpose of such services to gather intelligence rather than enforcesecurity measures. The creation of the Chinese MNS was not part ofa move to "civilize" the anti-espionage service in this way, but wasinstead created to separate the political police from the regular policeforce. The MNS performs the functions of both information-gathering on security threats and the enforcing of security measures.The MNS is given the same powers as the regular police under theCLL.

A. Ministry of National Security Powers Under the CriminalLitigation Law

Article 41 of the CLL grants national security police the powerof investigative detention.37 Article 48 of the CLL limits the periodof such detention to ten days. Criminal suspects who are notformally arrested within ten days of their detention must be released.According to Article 48:

In cases where a public security organ considers it neces-sary to arrest a detained person, it shall, within three days

36. Statement of Lord Denning, quoted in Ian Leigh and Laurence Lustgarten, TheSecurity Service Act 1989, 52 MOD. L. REV. 801, 822 (1989).

37. More specifically, Article 41 of CLL provides that:In any of the following circumstances, the public security organs may detainan active criminal who, based on his criminal behavior, should be arrested, ora major suspect element:1. If he is in the process of preparing to commit a crime, is committing a

crime or is discovered immediately after committing a crime;2. If he is identified as having committed a crime by the victim or by an

eyewitness on the scene;3. If he is discovered to have criminal evidence on his person or at his

residence;4. If, after committing the crime, he attempts to commit suicide or to

escape or is a fugitive;5. If there is a possibility that he may destroy or falsify evidence or

collude with others to devise a consistent story;6. If his identity is unclear and there is strong suspicion that he is a person

who goes from place to place committing crimes; or7. If he is carrying on "beating, smashing and looting" and gravely

undermining work, production or social order.Criminal Litigation Law, art. 41 (1979) [hereinafter CLL].

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NATIONAL SECURITY LAW 1N CHINA

after detention, submit a request to the people's procurator-ate for review and approval. Under special circumstances,the time for requesting review and approval may beextended by one to four days. The people's procuratorateshall make its decision to approve arrest or not to approvearrest within three days after receiving the application forapproval of arrest from the public security organ.38

Article 40 of CLL sets out three requirements for arrest: first,"the principal facts" of the crime must already have been clarified;second, the crime committed must be serious enough that the suspectcould be sentenced to a penalty of not less than imprisonment; andthird, arrest must be necessary, that is, an arrest should only beeffected in the circumstances "where adopting such measures asallowing [the suspect] to obtain a guarantor and await trial out ofcustody or to live at home under surveillance would be insufficientto prevent the occurrence of danger to society."39 Compared tomost common law jurisdictions, the requirements for making an arrestin the PRC are quite stringent. This is a principal reason whydetention (prior to arrest) for significant periods is so common. Theprovisions allowing detention are broadly drafted. As in otherjurisdictions, formal charging takes place after (or at the time of)formal arrest.

MNS officers may "conduct searches of the persons, articles,residences and other relevant places of defendants and people whomight conceal criminals or criminal evidence."40 The search mustbe carried out for the purpose of gathering criminal evidence andapprehending criminals.4'

A search warrant must be shown to the person searched.42 Asearch warrant may be issued by a person in charge of a policestation at or above the county level.43 A search incidental to adetention or arrest may also be conducted. In an emergency situation,a search may be conducted without a warrant.' The Ministry ofPublic Security specifies three emergency situations in which a searchmay be conducted without warrant: where a person "(1) possesses

38. Id. art. 48.39. Id. art. 40.40. Id. art. 79.41. Id. art. 79.42. Id. art. 75.43. Id. art. 74.44. Id. art. 81.

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weapons or other instruments which could be used to injure others orto commit suicide; (2) may have concealed explosives, poisons orother dangerous materials; or (3) may destroy or conceal evidencerelated to any offences." 5

There are other rules of conduct in carrying out a search. Allsearches must be conducted by not less than 2 officers;4 6 searchesof the persons of women shall be conducted by female personnel; 47and when premises are being searched, the person whose premises aresearched or his family members, neighbors or other witnesses shallbe present.48

Proper documentation about a search must be kept. Accordingto Article 83 of the CLL, a transcript shall be made of the circum-stances of a search and the investigation personnel and the personsearched or his family members, neighbors or other eyewitnesses shallsign it or place their seals (or their fingerprints) upon it. If theyrefuse to sign, the circumstances of such refusal should be noted inthe transcript.49

According to Article 84, articles and documents discoveredduring the search which could be used as evidence to prove the guiltor innocence of a defendant shall be seized. The seized articles anddocuments must be safely kept and cannot be used or damaged. 0

Officers may, under certain circumstances, seize the mail ortelegrams of a defendant. There are three requirements for any suchseizure:

(1) the seizure must be necessary;(2) the seizure must be approved by a national security

department, which may also notify the post andtelecommunications organ to check for relevant mailand telegrams;5' and

(3) when it is not necessary to continue seizure becauseit is ascertained that the seized articles have norelation to the case under investigation, the post ortelecommunications organ shall be notified immedi-

45. Id. art. 74.46. Id. art. 75, para. 1.47. CLL, supra note 37, art. 82.48. Id.49. Id. art. 83.50. Id. art. 84.51. Id. art. 86.

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NATIONAL SECURITY LAW 1N CINA

ately and the seized articles must be returned to theoriginal owner or to the original post and telecommu-nications organ."

Officers may interrogate any person who is suspected of havingcommitted a crime. A suspect whom it is not necessary to arrest ordetain may be summoned to a designated place for interrogation.53At least two officers are required to be present during the interroga-tion.54 Upon producing a proper certificate, investigation officersmay also question any witness at his work place or residence.5When necessary, they may require the witness to come to thepeople's procuratorate or the public security organ to providetestimony.56

Suspects have a duty to answer questions put by the investiga-tion officers based on the facts of the particular case. But suspectsmay refuse to answer questions which have no relation to the caseunder investigation. There is no full "right to silence," that is, noright to refuse to answer incriminating questions, as there is in anumber of other jurisdictions.

B. Ministry of National Security Powers Under the NationalSecurity Law

In the course of executing their duties, the MNS officers haveadditional powers, most of which are not formally granted to theregular police. These powers come from the NSL.

The officers may check the identification of any person, and mayalso search the person and personal effects of that person if hisidentity is not clear and if he is suspected of committing an actendangering state security. 8 MNS officers are allowed to enter anypremises, and, subject to proper procedures, they can enter intorestricted places or organizations to inspect or take away files,information or materials. 9 Subject to compliance with certain

52. Id. art. 87.53. Id. art. 63. Interrogation is a less intimidating component in the investigation

process than detention.54. Id. art. 62.55. Id. art. 67.56. Id.57. CLL, supra note 37, art. 64.58. NSL, supra note 4, art. 7.59. Id. art. 8.

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procedural requirements, they may use technological means ofinvestigation, such as electronic surveillance.6" Further powersinclude the power to inspect telecommunications equipment belongingto other organizations or individuals,61 to order the organizations orindividuals to make necessary alterations to any equipment whichdoes not meet the requirements of national security, and to stop theuse of equipment or seize the equipment where the alteration is notcarried out.2 Where equipment or materials are used to commit anyact endangering national security, MNS officers can seize suchequipment or materials, as well as the money or property collectedto commit the act.63 They can also control the movement of personsin and out of China. They may expel a foreign citizen from Chinaor order him to leave China within a certain period of time if heviolates the provisions of the NSL. 4 Furthermore, they may refusea person permission to enter China if there is a possibility that thatperson would commit an act in China which endangers state securi-ty.65 MNS officers should show their authorizing identificationwhen carrying out their official duties.

In addition to investigative detention 66 which can be used bythe MNS to further its investigation, the MNS can also impose up to15 days administrative detention as a penalty. This penalty has wideapplication. It can be imposed upon those who refuse to provideinformation or evidence when requested to do so by the state securityagency, while knowing that others have committed the offence ofespionage; 67 those who intentionally obstruct the lawful executionof duties by MNS officers, when the circumstances surrounding theoffence are not serious;68 and those who intentionally or negligentlydisclose secrets relating to national security.69 With the exceptionof the 15 day detention rule, the other administrative powers enjoyedby the regular police are not, however, available to MNS officers

60. Id. art. 10.61. Id. art. 11.62. Rules, supra note 5, art. 13.63. Id. art. 21.64. NSL, supra note 4, art. 30.65. Rules, supra note 5, art. 9.66. See section 4.2 supra for a discussion of investigative detention.67. NSL, supra note 4, art. 26.68. Id. art. 27. Where the circumstances are serious, the accused would be subject to

criminal prosecution instead of administrative detention.69. Id. art. 28.

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exerting their authority pursuant to the CLL.7In a recent announcement, the MNS specified the design of the

investigation certificate to be used by MNS officers. This investiga-tion certificate is the authorizing personal identification required byan officer under Article 8 of NSL. The Announcement makes twopoints: first, organizations and individuals must, subject to penalty,cooperate with national security officers upon the displaying of theircertificate. Second, MNS officers may not exceed their authority andviolate the lawful rights of any organization or individual. The publicis asked to lodge complaints against any wrongdoing on the part ofMNS officers. The MNS has promised that it will conduct seriousinvestigations of any complaints and to deal severely with thoseofficers whose wrongdoing has been substantiated. The MNS alsohas set up a telephone complaints hotline.71

C. Duties of Citizens under the National Security LawIn addition to the powers just discussed given to MNS officers,

citizens are obliged to render assistance to such officers under thethreat of punishment. All organizations and citizens are obliged toassist the maintenance of national security72 and to report anyactivities endangering national security to public security organsdirectly or via other organizations.73

Under Article 68 of the CLL, a witness has no legal duty toanswer questions asked by the police. Criminal liability was incurredonly when a witness intentionally gave false testimony or concealedcriminal evidence. This qualified right to silence has been removedunder the NSL. Citizens, when questioned by state security agencies,are obliged to furnish information relating to espionage activities ofwhich they have knowledge. 74 A violation of this section can,depending on the circumstances, lead to administrative discipline bythe offender's workplace, up to 15 days administrative detention bythe state security agency, or imprisonment for up to three years

70. For the powers of administrative detention of the regular police in China, seeEdward J. Epstein, Legal Documents and Materials on Administrative Detention in thePeople's Republic of China, 27 CHIMSE L. & Gov'T. (1994); H. L. Fu, A Case forAbolishing Shelterfor Examination: Judicial Review and Police Powers in China, in POLICESTuDiEs, Vol. XVII, No. 4 (1994).

71. Announcement of the MNS, February 20, 1994 (on file with author).72. NSL, supra note 4, art. 16.73. Id. art. 17.74. Id. art. 26.

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pursuant to Article 162 of the CL.75In the draft NSL, the offence of harboring criminals would have

been committed if a person had knowledge of espionage activities butfailed to report these to the government. The vagueness of the term"knowledge" was pointed out in the consultation process. It wassuggested that the scope of criminal liability be restricted so that acitizen would not have committed an offence unless asked by MNSofficers to furnish the information.76 Under the NSL, a person hasa duty to provide any relevant information or materials to MNSofficers if he is informed by the officers that another person hascarried out.an activity which endangers national security. Failure todo so can result in a 15 day detention. The same penalty can alsobe imposed on any citizen who refuses to assist MNS officers incarrying out their duties after being so requested.78 Obstruction ofthe performance of duty of police officers has become prevalent inChina,79 and the NSL specifically creates this offence to prevent anysuch obstruction of national security work.80 Organizations andindividuals who make an "important contribution" in securingnational security are rewarded. 81

Apart from the general duty to keep confidential any statesecrets they have obtained, a person should not unlawfully have in83their possession state secrets, nor possess or use "special espionageequipment. 8

4

V. NATIONAL SEcuRiTY LAW IN CHINA: AccouNTABILnTY

In many Western jurisdictions, the intelligence services aretypically regulated by a combination of parliamentary, judicial, andexecutive control. In China, external control over the MNS is

75. This article proscribes the harbouring of counterrevolutionaries. CL, supra note 23,art. 162.

76. Xiang, supra note 28.77. NSL, supra note 4, art. 26.78. Id. art. 27.79. THE OFFENCES OF OBSTRUCTION OF JUSTICE (Zhao Binzhi ed., People's Public

Security University Press (Beijing) 1994).80. NSL, supra note 4, art. 27.81. Id. art. 5. "Important contribution" is defined in Article 18 of the Rules. However,

neither the NSL nor the Rules specify what is the reward and how it is to be determined.82. d. art. 19.83. Id. art. 20.84. Id. art. 21.

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minimal. There are no provisions in the NSL or the Rules imposingaccountability. On the contrary, the Rules stress that the lawfulactivities of MNS officers in the course of executing their dutiescannot be interfered with unlawfully by other organizations andindividuals.

More indirect, but still potent, accountability applies at the ballotbox in the West. In a representative democracy, if the securityservices are seen to have behaved excessively, their performance (andthe monitoring thereof) may well become a political issue at electiontime. This form of accountability does not exist in the PRC.

A. Accountability to the National People's Congress

The role of parliament has been especially important in ensuringthe accountability of the intelligence agencies in common lawcountries.85 Control of the national security establishment by theNPC is minimal in China, however. There is no specific NPCcommittee to oversee the MNS. According to the Constitution, theNPC can exert control over the government in two ways. Article 71authorizes the NPC and its Standing Committee, as they deem fit, toset up a committee of inquiry into a specified matter and adoptrelevant resolutions in light of the reports. All State and socialorganizations and citizens are obliged to furnish necessary informa-tion to the committees of inquiry when they conduct investigations.86Under Article 73, the deputies to the NPC and members of theStanding Committee have the right, during sessions of the NPC andmeetings of the Standing Committee, to address questions, inaccordance with procedures prescribed by law, to the State Councilor to the ministers and commissions under the State Council. TheCouncil is required to answer these questions.87

Apart from these two general Congressional controls over thegovernment, the Ministry of Nation Security is immune from NPCscrutiny. In view of the fact that the NPC has played a passive rolein scrutinizing the government, it is unlikely it will exert any

85. See, e.g., H.P. Lee, THE AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION -NEW MECHANISMS FOR ACCOUNTABILITY, 38 INTERNATIONAL AND COMPARATIVE LAWQUARTERLY 890 (1989); Hanks, supra note 6; Murray Rankin, National Security:Information, Accountability, and the Canadian Security Intelligence Service, 36 UNIVERSITYOF TORONTO LAW JOURNAL 249 (1986); and John Wadham, The Intelligence Services Act1994, 57 Mod. L. Rev. 916 (1994).

86. XIANFA [Constitution], art 71.87. Id. art. 73.

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meaningful supervision over security operations. However, thecomments and criticism of individual deputies may carry someweight, and the government may feel compelled to take suchcriticisms into account at times.

B. Accountability to the Courts

The NSL allows for limited judicial review of administrativedecisions made by the national security establishment. A personsubject to administrative detention by officers may first appeal thedecision to the state security agency at the next higher level within 15days after he receives notice of the detention. If he disagrees withthe agency review, he may petition the People's Court within 15 daysafter he receives the notice of agency review.88

A number of NSL decisions, such as refusing permission for aperson to enter China, expelling a foreigner from China, or seizingtelecommunication equipment, are administrative decisions andtherefore should be reviewable by the courts. In contrast to commonlaw jurisdictions, national security issues in China are not generallyexempt from judicial review. In fact, the Administrative LitigationLaw (ALL) has a strict clause in this regard which provides that theonly issues excluded from judicial review are those concerning"national defense. '89 The term "national defense," on an ordinaryreading, excludes fewer matters from possible judicial review than theterm "national security." However, the general feebleness of allsystems of judicial review of executive action in China renders thisdifference largely theoretical.90

C. Accountability to the Public

The national security police and the regular police are subject tothe same complaints procedure. According to the NSL, any citizen

88. NSL, supra note 4, art. 31.89. Article 12 (1) of the ALL provides that:

The people's court shall not accept and hear proceedings in which citizens,legal persons or other organizations bring proceedings in respect of thefollowing matters:(1) acts of state pertaining to such matters as national defense or

diplomatic relations.Administrative Litigation Law, art. 12(l) (1989).

90. This feebleness is a product, inter alia, of a history of the judiciary being used asan instrument of the executive (pursuant to Marxist political theory), grave underresourcingof the judicial system and, even today, a relatively primitive legal culture by Westerncommon law standards.

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finding MNS officers exceeding their authority, abusing their poweror committing other unlawful acts may lodge a complaint with theMNS at higher levels or with other related organizations, includingthe disciplinary committees of the Communist Party and the Ministryof Supervision within the Government, an ombudsman-type institu-tion.9 Little is known about the effectiveness of these complaintprocedures, but it is unlikely to be great. Both the national securitypolice and the regular police have set up their own disciplinarycommittees and internal supervision departments to handle complaintsagainst their own officers. 2

VI. CONCLUSION

The National Security Law was passed to strengthen the anti-espionage powers of the government and to counter, through specificenforcement mechanisms, the perceived adverse increase in foreigninvolvement in China's political and social affairs. National securitythreats are, by definition, limited to those involving some linksoutside of China. Purely internal subversive activities fall within thejurisdiction of the regular police. The division of labor between theMNS and the regular police is a clear one.

What differentiates China's MNS from the intelligence agenciesin a number of Western jurisdictions (especially common lawjurisdictions) is both the police-like power the MNS possesses, andthe lack of accountability. Intelligence agencies in Australia, Canada,and the U.K. are given significantly more limited powers to securenational security, and those powers are balanced through judicial,executive, and, increasingly, parliamentary control.

The positive contribution of the NSL is that, together with theRules, it defines, in some detail, what constitutes a threat to nationalsecurity. This positive contribution is seriously undermined, however,by a number of factors discussed above. First, there is the manner in

91. NSL, supra note 4, art. 22, 1.92. There is a nominal linkage between the Ministry of Supervision and these internal

supervision departments but, in practice, the latter are part of the instrumentalities theysupervise. On the nature of the relationship between the Ministry of Supervision and otherministries, see Regulations of Administrative Supervision of the People's Republic of China,State Council, arts. 14-18 (December 9, 1990). See also Liu Shixiang, Supervision Organsand Supervision Personnel, in COMMENTARIES ON THE REGULATIONS OF ADMINISTRATIVESUPERVISION 28-29 (Gan Yisheng ed., 1993). For the complaint system that exists within theregular police departments, see PEOPLE'S POLICE LAW OF THE PEOPLE'S REPUBLIC OFCHINA: EXPLANATIONS AND COMMENTARIES 220-36 (Ma Zhiyi and Tian Minquan eds.,1995).

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468 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [34:449

which the Rules have been used to broaden the scope of the NSL'spower in a way which conflicts with the intentions expressed duringdebate on the draft NSL in the NPC. Apart from this, the powersconferred by the NSL on the MNS together with powers enjoyed bythe MNS under other legislation give the MNS the functions andpowers of a full-blown, political police force. That is, the MNS isinvolved not only in information gathering on national securitythreats, but also in enforcement of the national security regime.Finally, there is a serious lack of accountability. There is very littleparliamentary control. The powers of the courts are limited, and theadministrative review mechanisms are, effectively, "in-house."Judged by the standards prevailing in many Western jurisdictions, thenational security regime in the PRC, in form and in substance, iswide-ranging and offers great potential for significant abuse of therights of individuals, with little fear of redress.

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