Saturday, July 11, 2009

Opening Up the Process of Reforming China's State Secrets Law

I have written recently on the use of China's state secrets law to project public regulatory power in private market economic relations, especially where economic contests involve state owned enterprises. See Larry Catá Backer, State Owned Enterprises and the Integrity of Private Markets and Commercial Activity: On the Arrest of the Rio Tinto Executive, Law at the End of the Day, July 10, 2009. I have suggested that the conflation of state roles evidenced by the use of the state secrets law in furtherance of Chinalco's business might have strategic consequences, whether inadvertent or deliberate.

The role of the state secrets law in the regulation of economic activity appears to be in a dynamic stage. M. Ulrich Killion, of Shanghai International Studies University, 620 Gubei Road, Shanghai, China, has recently posted (China seeks public opinion on draft of new State Secrets Law , July 6, 2009) the following:

In a move toward what is no less than a possible greater transparency in the mainland, China's government has made available to the public its "People's Republic of China State Secrets Law (Revised Draft)" [保守国家秘密法(修订草案)向社会公开征集意见], and is seeking public opinions on the new draft of the State Secrets Law.

Chinese citizens are instructed that they can log on directly to the National People's Congress Network at and submit their opinions regarding the draft or they can submit their opinions by mail to the following address: NPC Standing Committee (West Xicheng District, Beijing on the 23rd Lane, Postcode: 100805. The cut-off date for submitting opinions is July 31, 2009.

The text of the public notice reads as follows:


新华网消息 日前,《中华人民共和国保守国家秘密法(修订草案)》在中国人大网全文公布,向社会公开征集意见。

中国人大网的消息说,十一届全国人大常委会第九次会议初次审议了《中华人民共和国保守国家秘密法(修订草案)》。现将《 中华人民共和国保守国家秘密法(修订草案)》及草案说明在中国人大网公布,向社会公开征集意见。社会各界群众可以直接登录中国人大网(提出意见,也可以将意见寄送全国人大常委会法制工作委员会(北京市西城区西交民巷23号,邮编:100805,信封上请注明保守国家秘密法修订草案征集意见)。意见征集截止日期:2009年7月31日。

Source (来源): 保守国家秘密法(修订草案)向社会公开征集意见, 2009年07月01日, 新华网.

You can follow Mr. Killion's work at his blog site and at M. Ulric Killion's Space.

Of course, transparency comes in small steps, and has consequences for those willing to access the system. In order to post comments on the State Secrets Law draft, one needs to fill out a form on line to provide your name, address, phone number and e-mail , and only then is it possible to access the system to post your comments. For a critical discussion of the State Secrets Law, with links the the English translation of the current version, see, China's State Secrets Law to Focus on Internet Leaks, China Journal, Wall Street Journal Blogs, June 23, 2009 ("China’s state secrets law . . .has long been the subject of criticism for its vagueness and broad sweep. . . . A lengthy 2007 report by the New York-based Human Rights in China tracked how China’s complex system of state secrets laws has been used to keep a variety of statistics - on issues such as occupational diseases, human trafficking, and pollution - under wraps. . . . Legal experts who have viewed drafts of the new state secrets law say that the new law doesn’t provide additional support for the open government regulations, and may in fact have the effect of strengthening the government’s grip on information, the South China Morning Post reports" Id.). The Chinese authorities, on the other hand, appear to be targetting the mechanics of transmissions of secrets, rather than the scope of what can constitutte a state secret--and thus a political wrong.

Xia Yong, head of the National Administration for the Protection of State Secrets (NAPSS), said parts of the existing secrets law had become obsolete. The current law took effect on May 1, 1989. "New situations and problems have emerged in guarding state secrets as the country's social and economic development advances rapidly, especially with the introduction and development of information technology and the application of e-government." The materials to preserve and handle state secrets have changed from paper to acoustic, optical, electronic and magnetic forms, which created the need for corresponding policies, according to the official. China to Amend State Secrets Law, to Avoid Internet Leaks, Xinhua News Agency, June 22, 2009.
It seems that the conflation of politics and economics remains undisturbed; business torts become acts against the state itself. If this approach becomes the standard, then the projection of economic power by state owned enterprises may well serve to extend state political power as well, and not just with respect to state secrets.

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