China has passed a new national security law which critics say will place greater restrictions on freedom of speech and civil rights. DW speaks to law expert Eva Pils about the implications of the sweeping legislation.
Passed by China's national legislature on Wednesday, July 1, the vaguely worded law has drawn criticism as it reinforces government controls over a wide range of areas, including politics, finance, military, cyber security, ideology, the environment, food safety and religion.
The legislation empowers the state to take "all necessary measures" to protect its sovereignty and calls for vigilance and defense against "bad cultural influences," "malignant groups" and "criminal activities under the guise of religion" and warns of interference of foreign powers in internal affairs. It also calls for tougher management of the Internet, including measures to prevent the spread of "illegal or harmful information."
Human rights groups such as Amnesty International, however, have slammed the law as "draconian" and urged the Chinese government to immediately repeal it, arguing that it gives Beijing a blank cheque to punish and monitor anyone it does not like such as human rights activists, government critics, independent media and opposition voices.
In a DW interview, Dr. Eva Pils, an expert on Chinese law at King's College London, says the main motivation behind the new law is that the Chinese leadership feels threatened by the rise of challengers from within the party and civil society and that the new legislation reflects the party-state's newly assertive, authoritarian and anti-liberal stance under President Xi Jinping.
DW: What exactly does this new far-reaching security law seek to regulate?
Eva Pils: It gives extensive powers to – primarily – the police, state security, and the military to take measures to protect national security, which is defined in an incredibly broad way as "the relative absence of international or domestic threats to the state's power to govern, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major national interests, and the ability to ensure a continued state of security."
It also imposes an obligation on all Chinese citizens to contribute to the protection of national security, and it purports to legalize measures taken - both by the authorities of the state and by citizens and organizations "assisting" the authorities - to protect national security.
What does this new law reflect about the state of Chinese politics?
You can get clues from the language of the law's first articles. They are full of jargon that takes us back to the Mao Zedong era and reflect the party-state's newly assertive, authoritarian and anti-liberal stance under Xi Jinping. More widely, the past two years have seen the system assert the principle of party leadership - for example, an important party document last October asserted that party leadership and the rule of law were really "identical" - and concentration of power in the hands of Xi Jinping.
What drove the Chinese authorities to pass such a wide-ranging law?
I think that the main motivation for this is that the current leadership feels threatened by the rise of challengers from within the party and within Chinese society, and sees this as a result of relaxing control in the post-Mao era of "reform and opening" initiated by Deng Xiapoping.
This is why this move is justified in very explicitly anti-liberal terms - an explicit rejection, for example, of universal values, of a liberal conception of democracy and separation of powers, and of the idea of defending individual rights against arbitrary power abuse. It is also why the leadership re-emphasizes totalitarian concepts such as "People's Democratic Dictatorship."
Internally, the Xi Jinping administration is seeking to concentrate power and re-assert control through the ongoing party purge in the name of "anti-corruption." Toward domestic civil society, the ambition is also to introduce comprehensive and very invasive, neo-totalitarian control of all organized sectors of society.
Therefore, one could see the National Security Law as a blueprint on the basis of which more specific laws, such as the new Foreign NGO Law, are being drafted. Chinese civil society refers to this as a new era of "reform and closure."
There are growing concerns about ever-tighter limits on rights. What are the most controversial areas of the law?
The most immediate concern, from my perspective, is with the most basic human rights of liberty of the person, the right not to be tortured, and procedural rights in the criminal process.
In my own work as a researcher, I have heard from so many interlocutors over the past years affected by the security apparatus' repressive measures - being invited to "have tea," being tracked and followed; put under informal house-arrest; "being travelled;" being forcibly disappeared and tortured, in some cases through being forcibly committed to psychiatric institutions without a medical diagnosis warranting this. I worry that the prospects for curbing such abuses have got worse.
Beyond these rights, privacy and freedom of speech and conscience as well as of assembly and association are also obviously rights that have been restricted in China for a long time, and whose systemic violation has impeded, even though it certainly has not prevented, the growth of an independent civil society in China.
Rights activists say the measure is part of a series of state security legislation - including a new anti-terrorism law - that as a whole "reduces the capacity of civil society to criticise the government and hold the government accountable". What is your view on this?
Of course, the new law does not explicitly justify repressive measures, but it rhetorically weakens the basis on which they can be criticized and challenged. In a legal system in which the security apparatus has already been operating with impunity, a system that does not allow for judicial enforcement of constitutional rights and explicitly rejects judicial independence, phrases such as "State security organs, public security organs and relevant military organs carrying out special national security efforts may lawfully employ necessary means and methods" (article 75) are troubling.
They purport to legalize what would otherwise be illegal. Similarly, a provision such as: "In national security work, when special measures are required that restrict the rights and freedoms of citizens, they shall be conducted in accordance with law, and limited by the actual needs of safeguarding national security" (article 83) put inoperably vague limits on the invasion of individual rights, very unlike the justiciable tests used in more liberal societies.
The human rights movement that has developed in China over the past decade or so has so far proved very resilient. I expect that those individuals and groups - lawyers, independent journalists, etc. - already operating outside the boundaries of tolerance - will continue their work despite worsening repression; and their numbers keep growing.
But we must expect that those to whom this direct persecution is new because they have so far been more tolerated by the authorities will have to either accept further limitations, or be forced to stop.
We have already seen such developments as key civil society groups have been targeted in recent months: for example, Yirenping and Transition Institute. With the enactment of a Foreign NGO Management Law impending, foreign civil society groups operating in China are in an extremely precarious situation as well now.
The legislation will not be directly implemented in Hong Kong and Macau. But the two territories do have an obligation under the Basic Law to pass their own legislation to ensure national security. What does Beijing want to achieve by adding this to the law?
The Basic Laws of Hong Kong and Macau exhaustively list national-level legislation applicable in the Hong Kong SAR, and as the National Security Law has not been incorporated in Annex III to either Basic Law it is not applicable in Hong Kong and Macau. And, of course there is no actual, effective connection between the legal systems of the PRC and Taiwan at all – there are only assertions of sovereignty that have no reflection in reality.
The two provisions referencing these places (Article 11: "The sovereignty and territorial integrity of China cannot be encroached upon or divided. Preservation of national sovereignty and territorial integrity is a shared obligation of all the Chinese people, including compatriots from Hong Kong, Macao and Taiwan," and Article 40: "The Hong Kong Special Administrative Region, and Macao Special Administrative Region shall fulfill responsibilities for the preservation of national security") do in my view have political significance, they send a signal to the effect that Hong Kong, especially, is under obligation to introduce national security legislation.
Article 23 of the Hong Kong Basic Law does already impose an obligation to enact national security legislation on the Hong Kong SAR. In 2003, the attempt to introduce very restrictive legislation produced extremely vocal political opposition from Hong Kong civil society.
Macau passed a National Security Law in 2009. Whether the authorities would initiate the introduction of such legislation now, at this critical point in Hong Kong’s history, will be a matter of political risk assessment, I believe.
Dr. Eva Pils is a Reader in Transnational Law at King's College London. Her research interests lie in the areas of human rights, comparative constitutional law, law and development, legal philosophy and the law in China.