According to both the letter and spirit of this legislation, it is highly probable that matters relating to iron ore negotiations, such as figures for current iron ore stockpiles at state-owned mills in China, procurement plans, and net profits made by steel mills can all be regarded as state secrets. The strategic importance of the steel industry in China’s national economy strengthens the argument that these matters can be seen as state secrets. Importantly, Article 11 of the State Secrecy Law also empowers the state entities that produce these secrets to classify them accordingly. Equally clearly state-owned steel mills and the China Iron and Steel Association would have the authority under the law to classify their production details as state secrets.
According to internal research conducted by the Internal Affairs and Judicial Committee of the NPC, many state bureaucracies and corporations arbitrarily classify their documents as state secrets for fear of being accused of leaking state secrets. This is a reflection of the poorly defined nature of China’s secrecy law, where almost the entire officialdom is authorised to turn their paper work into secrets, especially under the sweeping provisions of Article 8 where normal social and economic statistics may be labelled as state secrets.
Apart from the obvious legal problems associated with the law, there is also a paranoid protective culture in China in relation to official documents that can extend as far as published materials. This is one of the few Maoist legacies that still survive in China. A law expert from Peking University commented that the traditional guiding principle for the protection of state secrets is ‘to keep everything secret and any disclosures are exceptions’.
The Chinese government is conscious that its catch-all secrecy law needs some serious fine tuning. The official Xinhua news agency commented that according to research and surveys undertaken by the NPC, the current secrecy law suffers from the problems of arbitrary classification, an absence of prompt de-classification after expiry of a time limit, and the very broad scope of what can be rightfully regarded as state secrets. There have been some incremental changes in this regard; the normally secretive Foreign Ministry is opening up part of its archive to the public. The Bureau of State Secrets Protection announced on 8th of August 2005 that death tolls in natural disasters will no longer be treated as state secrets.
Ironically, ten days before the arrest of Stern Hu, the NPC released the long-awaited, newly amended ‘State Secrets Protection Law of the People’s Republic China’ for public consultation. The amended law hardly represents a breath of fresh air. According to legal expert Tian Weimin, from the China University of Politics and Law, who was involved in the drafting process of the amended law, there is no fundamental philosophical change in the new law with regard to what constitutes state secrets and who has the power to classify matters as state secrets. According to the amended law, relevant state entities still retain the power to classify whatever they want to as state secrets. He observes that the old principle ‘to keep everything secret and any disclosures are exceptions’ is still operational.
Both the existing and the amended secrecy laws run contrary to the spirit of transparency and openness embedded in the newly promulgated ‘Regulations concerning the disclosures of government information of the People’s Republic of China’ [pdf]. Section 3 of Article 10 of the abovementioned regulation mandates that ‘statistics concerning national economic and social developments’ should be made public in the absence of any public demand otherwise. It seems that state secrecy law has yet to catch the new spirit of openness envisioned by Beijing.
If there is any silver lining to the dark cloud surrounding Stern Hu’s case, it would be that lawyers may be able to probe the boundaries of what constitutes state secrets, establishing a litmus test for China’s professed progress towards greater transparency and openness. For the time being, Mr. Hu and his colleagues have assumed the unfortunate mantle of being sacrificial lambs on the altar of China’s national security.
It is an interesting piece to have some look at the Chinese State Secrecy Law.
We live in an imperfect world, don’t we? And many people would probably say that it is even much more less-perfect in many respects in China.
Laws are notorious areas of imperfection. Even here in Australia, there is no short supply of examples of this imperfection, with some being very seriously so.
For example, it is often said that the Australian taxation laws are opaque and unnecessarily complex in its totality, even though some may say every bit of it may be simple and understandable if one has the time and patience to study them. Doesn’t it run into thousands (or at least hundreds) of pages, or I got my memory wrong on this?
Australia is an industrialised and highly developed country. Income laws are so important to every taxpayer. Yet we have been and still are resigned to this complexity and obscurity in our lives for many, many years.
The US, the undisputed leader of the free world, has detained so many people without charges in its Guantanamo Bay military prison in Cuba, with suspicions of terrorism, although the new administration has pledged to close that prison camp. I don’t know whether its laws are perfect or not.
Further, it has been reported that the American intelligence agency, the CIA, has used inhuman, outlawed or illegal interrogation methods, with drowning simulation like water-boarding being applied to some people dozens and possibly hundreds times.
China is a vastly different country. It has been undertaking reforms to many areas, including many of its laws. But that reforming processes are far from perfect. It has a long way to go, though its economic reforms have resulted in remarkable economic growth that raised the living standards of many ordinary Chinese. In the interim, it is not only people outside China like us, but also the billion plus Chinese themselves have to live with those applying laws when relevant matters arise, just as we live with the complex and opaque Australian income laws.
Yuan’s argument that “For the time being, Mr. Hu and his colleagues have assumed the unfortunate mantle of being sacrificial lambs on the altar of China’s national security”, may be true in the sense that China’s State Secrecy Law may be different in the future and in a different law they may not necessarily be accused of what they have been now.
Unfortunately, from what the foreign minister here, Mr Stephen Smith said, the Chinese authorities are pursuing other matters than espionage of state secrecy. That is another different area of the Chinese laws that we at here hardly understand.
I’d like to add another brief point about the outages shown by some journalists and politicians here in Australia regarding to the Stern Hu detention case as mentioned in passing by Yuan.
They were understood by many Australians as condemnations for the Chinese authorities’ abuse of Mr Stern Hu’s Australian rights, in the context of a potential retaliation to either the failed Chinalco Rio deal, or the difficulties of the iron contract price negotiations between the major miners including Rio, with China, with Mr Hu as the miners’ chief negotiator.
It may also reflect a poor understanding of the Chinese laws foreign to Australians of course by those people. Further some of those people showed remarkable hypocracy in the most astonishing fashion. For example, the federal opposition leader, Mr Malcolm Turnbull, has called for the prime minster to personally intervene and phone his Chinese counterpart to get Mr Stern Hu released, because of the detention an Australian executive.
Firstly, are Australians having the same or different rights? Should a business executive be having more rights than other Australians?
Secondly, should Australians be above the Chinese laws and should be released by the Chinese authorities because they are Australians?
Thirdly, should the matter potentially involving serious charges including possibly criminal charges be handled by the interventions by politicians, or should it be dealt with according to the prevailing and residing laws?
Fourthly, Mr Turnbull has been so forceful in condemning the Chinese authorities now, did he mention a word in terms of the US detention of Australian citizens in Guantanamo Bay military prison? Why is he acting so strong and statesman like towards the Chinese and so timid and coward towards the US?
Same person, very different and very interesting behaviours and actions, indeed.
A complex and multiple personalities.
Nothing short of remarkable, astonishing and confounding.
But he is aspiring for the future Australian prime ministership. Good luck to him for his endeavour.
The link below is for those seeking further analysis of China’s state secrets system, including the way other laws, regulations and implementation measures interlock with the Law on the Protection of State Secrets, Human Rights in China’s Report “State Secrets: China’s Legal Labyrinth” provides an excellent overview. In particular: Section I, Part A(2), (3) and (4) summarizes the legal framework, enforcement and derogations from normal procedural proections (pp 9-23).
http://www.hrichina.org/public/PDFs/State-Secrets-Report/HRIC_StateSecrets-Report.pdf
I respectfully disagree that the Law on the Protection of State Secrets (which I’m assuming is what Peter refers to) is comparable to our Official Secrets Act. This law and the web of laws, regulations and implementing measures around it, creates an incredibly opaque and far-reaching framework that allows for things such as the retroactive classification of information based on the harm perceived to have occurred and the application of the death penalty, and the punishment of individuals who have shared information that was already in the public domain.
To respond to Mr Fung’s questions above: No business executive in China should have different rights to an Australian in China, and neither should have different rights to a Chinese person. All three are subject to Chinese law. The reality is, however, that China’s state secrets system makes a mockery of its efforts to improve rule of law and transparency. Moreover, this system has been retained to the extent it exists because it provides an extremely useful political tool for silencing critiques and preventing undue disclosure of issues that might harm a ruling elites interests. How and when state secrets laws are applied is a fundamentally politically question (as many cases of their application e.g. to those charged with disclosing information already in the public domain). As such, there is a role for politicians to play.
The Australian Government also has an obligation to do everything in its power, within the confines of the law, to assist Mr Hu. Particularly as he will not have access to a range of fundamental procedural rights (evidence pertaining to his case can be kept confidential from him, he will need to be obtain approval from the investigative organ before appointing, and meeting with, an lawyer etc).
It’s unfortunate that people like Mr Turnbull have their own political interests at heart rather than the genuine best interests of the person they are making a noise about. Fortunately, the Opposition appears to have toned the rhetoric down somewhat.
This does not detract that our Government should do everything it can to encourage the Chinese to provide Mr Hu with a fair trial and accesss to fundamental procedural rights.
Ms Rose, I agree that the Australian government has the responsibility to ensure Australian citizens are treated fairly. Every government should have that responsibility. I also agree that if what you say is correct, the Chinese state secret law may be too “flexible” and may have a degree of “arbitrariness”. That is not good for transparency and fairness. And it is unlikely to be good for the protection of state secrets either.
As a Chinese Australian, I hope Mr Stern Hu can have a fair trial, and China can improve its laws. It will be important for its further integration with the international economies. China is more and more important economiclly internationally. It has a responsibility to and should ensure its laws are fair and transparent.
I first heard of what I subsequently described as the “Great Chinese Iron Ore Disaster” when a Chinese businessman approached me with a copy of an advertisement in a Chinese trade magazine seeking a supply of 5Mtpa of ore. I did question the veracity of that figure, and was told it was correct, and that 5Mtpa were indeed required, cif China, that is together with the necessary freight.
Having worked as a planner for RIO in the past (but not in Hammersley), it was obvious to me that the Chinese firm should have put in place a long term supply agreement, and if they didn’t have one they were in a smelly place with no obvious means of propulsion. I suggested to my friend that he buy Portman, a small Australian iron ore supplier with that sort of output, but he said, sadly, that the purchase of shares in Portman was prohibited to a Chinese firm. Soon after, I noticed, an American firm put in a bid for Portman, and secured most of its equity.
I then began to take an interest in the incredible mess those in charge of the steel industry in China had been making of their forward projections, and did my small best to bring the alarming consequences to the attention of anyone who might be able to do anything. This blunder was, I expect, a Chinese state secret, but it was also an international disaster, and keeping it secret was in no one’s interest.
The cost, the Chinese are now saying, was $100 billion, and I can believe that. But to blame RIO and Stern Hu for that is laughable. I think we all know who is to blame, and they are not going to be shifted any time soon.