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.

China’s nuclear power plants

The news about China’s dangerous nuclear power plants built near Hong Kong has somehow slipped from public attention. The article published in the South China Morning Post on Jan. 9, “Hong Kong fallout from China's reckless nuclear ambitions feared,” is surely one of the most important articles published by the company. It deserves our most careful but urgent study. Congratulations to the author, Stuart Heaver, whom I don’t know, and the SCMP for publishing the article, although it is unlikely to get the attention it deserves since it only appeared in the magazine. Surely the article deserves to be translated into Chinese and published in the Mainland either by SCMP or some other prominent source such as Financial Times Chinese.

I have had some passing acquaintance with the issues of nuclear power from a legal perspective. As a young lawyer in Washington, DC in 1957-58 I worked at a law firm that represented Detroit Consolidated Edison in its application for US Government approval of what I believe was to be the nation’s first nuclear power project. I briefly was assigned to the case and became increasingly concerned about the risks that various interest groups had cited in their efforts to block approval. While working late at the office on the project on Christmas night 1957, while my wife was at home in our first house with our new-born first child, I recall saying to the senior partner in charge who was nearby reviewing one of my memoranda: ”Graham, my consolation in being here on Christmas night is that at least I know we are working hard to blow up a better world.” He saw little humor in my remark and said: ”I don’t think you’re meant for private practice.” I agreed and soon left the firm to join the US Attorney’s office!

Guangdong nuclear power plant. (Guangdong, China) Photo Credit: Hong Kong Nuclear Investment Co.

Nevertheless, in 1983, having returned to private practice in order to interact with China, I found myself in the strange, apparently contradictory position of agreeing to represent China Light & Power, Lord Kadoorie’s major HK electric company, in its literally groundbreaking negotiations to establish China’s first nuclear power plant at Daya Bay, mentioned in the Heaver article. At the time it was by far the biggest Chinese-foreign joint venture yet planned, to be built a mere 70 km from HK. My rationalization was that, since the project was virtually sure to be approved (it had the backing of the PRC leadership, with then Vice Minister of Power Li Peng as the main supporter, and South China had little coal), I should try to make sure it would be as safe as possible.

The contract negotiations went on for some 18 months in the Shekou district of Shenzhen. The key issue, at least to our side, was which safety standards were to be adopted – the more confidence-inspiring, stricter French standards that at the time had already proved so valuable to many projects in France or the less precise, more relaxed international standards sought by the PRC side. We had some tense discussions against the daily background of popular concern in HK over the then newly-signed Sino-British Joint Declaration on the future of HK. One day, when the Chinese seemed especially obdurate about the safety standards, I said to their chief negotiator across the table: “Well, if we take your standards, at least that might resolve the problem of Hong Kong’s future!” Mr. Shen, a highly intelligent man with a quick and usually pleasant manner, darkened visibly at my implicit reference to the possibility of anuclear disaster that would obliterate Hong Kong, and said: ”I don’t like your humor.” Fortunately, a few weeks later the Chinese side agreed to accept the French standards.

So far those standards have stood the joint venture parties and Hong Kong in good stead despite the nagging doubts that both sides shared about how those standards would be applied in practice by mostly Chinese employees embarking on a novel and potentially dangerous task. The Heaver article points out all the factors that need to be appreciated in assessing the risks of the current, very different situation. One can only hope that it is taken seriously by China’s leaders and that they will slow the pace and adopt the most careful methods of proceeding with the many new projects that constitute such a challenge as well as maximize the possibilities of alternative, less risky sources of electric power.