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A publication of the
Committee to Protect Journalists
|8. 'Secrets' and Subversion: The Limits of Expression
Laws on secrets and subversion provide a catchall basis for punishing any citizen who disseminates information that is sensitive or embarrassing.
It didn’t create much of a stir. It is common knowledge that the Chinese government censors the media, and that the 1989 crackdown remains a sensitive issue. Shi’s e-mail was hardly newsworthy, and certainly revealed no classified information. And yet, after tracking down the journalist (with the help of Yahoo) in his new home in Taiyuan, in northern China’s Shanxi province, authorities charged him with the crime of leaking state secrets abroad and sentenced him to 10 years in prison. He remains at a high-security prison in central China today, where he works cutting gems.
“What is the meaning of a state secret? How can a journalist hold a state secret?” wondered Mo Shaoping, the attorney who represented Shi in his appeal. “These things did not involve state secrets or state security at all. It’s common sense. These are things that everyone ought to know about.”
The vague outlines of this law—bolstered by additional provisions on state secrets in news publications and online—are a stumbling block in efforts to build true watchdog journalism in China. For the press, the law is almost superfluous; there are enough social and administrative controls on online, broadcast, and print media to ensure that nothing very sensitive is leaked. And yet authorities have used it as a last resort to criminally prosecute journalists. The law carries its own particular barbs. It allows suspects to be held for months, or even years, without access to a lawyer. It allows extension after extension of pretrial detention. And it often brings steep jail terms.
CPJ has documented the prolonged jailing of more than a dozen journalists under this law. Jiang Weiping, a reporter based in the northern city of Dalian, spent five years in jail on the charge. He was punished in retribution for writing about official corruption in that city for a Hong Kong-based magazine. One of the officials he wrote about, Bo Xilai, was later named China’s trade minister. Xu Zerong, a U.K.-trained academic and freelance writer, remains in jail on a 13-year term for e-mailing to a colleague in South Koreainformation gleaned from a 1950s book about China’s involvement in the Korean War. New York Times researcher Zhao Yan was tracked down and imprisoned, initially on suspicion of leaking state secrets, apparently because of an article that predicted the retirement of Chinese leader Jiang Zemin. (Zhao was later convicted on a fraud charge widely seen as being trumped up.)
The liberal use of this and other national security-related charges makes China the world’s leading jailer of journalists. According to CPJ research, 24 of the 29 journalists known to be imprisoned in China are jailed for antistate crimes. Though all countries have laws safeguarding state security, Chinese authorities’ use of these accusations is overly broad, and has been used repeatedly to squelch free expression. Most of the jailed journalists on CPJ’s list are political prisoners, incarcerated for appearing to get too close to the corridors of power, for embarrassing top leaders, or for criticizing the Communist Party as it jealously guards its hegemony.
China hasn’t jailed anyone for “counter-revolution” since the charge was abolished in 1997. Originally deployed against communists before the revolution of 1949, the crime was used to punish political enemies of all stripes under the reign of Mao Zedong, throughout the Cultural Revolution, and in the aftermath of the military crackdown at Tiananmen Square. The push to eradicate this outdated charge was once hailed by outsiders as a sign of progress, and seemed at its inception to be a step toward the modernization of China’s criminal code. But instead, authorities simply shifted to imprisoning reporters under a list of offenses now called “endangering national security.” Tossed in with crimes that most countries would consider a threat—such as organizing an armed uprising against the state—the criminal code includes vaguely stated “crimes” that constitute mere expression. The charge of “inciting subversion of state authority,” for instance, has been lobbed with alarming regularity against writers who criticize the one-party state.
This use of national security charges to inhibit the expression of opinions and stanch the flow of information is in contravention of international standards set forth by the International Covenant on Civil and Political Rights, to which China is a signatory. China signed the Covenant in October 1998, less than two months before Beijing announced its plan to bid for the 2008 Olympic Games. This was hardly a coincidence: The failure of its previous bid for the 2000 Olympic Games was widely attributed to concerns about China’s human rights record. But national leaders still have not ratified the international agreement, a step that would require significant legal reform.
Article 19 of the Covenant states that everyone “shall have the right to hold opinions without interference,” and that everyone “shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The same article makes exceptions in the right to free expression for the protection of national security. But it states specifically that these restrictions apply only in cases that are “provided by law and are necessary.”
In 1995, the London-based anticensorship organization
Article 19 convened a group of experts on international law,
human rights, and national security to establish recommendations
for interpreting exceptions to the free expression clauses. The resulting Johannesburg Principles,
later endorsed by the U.N. special rapporteur on freedom of opinion and expression, established a guideline
that allows restriction of freedom of expression or information only in cases when a government can
demonstrate that the restriction is lawful and is necessary to protect a legitimate national security interest
in a democratic society. The principles place the burden on governments to define unambiguously their
restrictions on expression.
These cases—and the many others that have followed—reflect China’s obsession with suppressing any hint of organized opposition to party rule, however embryonic or informal it may be. They also mark the brutal outside limit of any reporting or commentary on reform, elite politics, Falun Gong, Tibet, the autonomous region of Xinjiang, or other sensitive topics.
Since the beginning of this decade, Chinese authorities have tightened their administrative, technological,
and social control over the Internet. At the same time, several overseas Chinese-language Web sites
have developed an audience of readers in China who use proxy servers to access their banned content.
These Web sites have become real targets of Chinese authorities. One of them, Dajiyuan (Epoch Times),
is affiliated with Falun Gong, a spiritual movement that has grown political under the brutal repression of
the state. Many of the site’s contributors in China are not themselves Falun Gong practitioners, but this
doesn’t matter: Even the association is enough to cause suspicion. Another site, Boxun News, sees itself as
a forum for citizen journalists. It has no stated religious or political goals, but its willingness to post even
the harshest criticism of the one-party state has similarly angered authorities.
“He was a regular reporter at the newspaper,” his locally hired lawyer told CPJ five months after Li was picked up in September 2005. “He reported news.”
As to what the journalist was arrested for, the lawyer couldn’t say: “They haven’t let me see the articles.”
Broad classifications, ambiguity, and a lack of transparency make China’s national security laws a threat to free expression. These aspects of the laws would have to be addressed if China were to ratify the International Covenant on Civil and Political Rights. That work should be done now.