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Citation: 34 Colum. J. Transnat'l L. 449 1996

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Electronic copy available at: http://ssrn.com/abstract=2145192

National Security Law in China

H. L. Fu* AND RICHARD CULLEN**
All nations, regardless of politicalpersuasion, generally
draft quite drastic provisions to protect national security
interests. In 1993, the People's Republic of China (PRC)
introduceda new National Security Law (NSL). The NSL
is administeredby the Ministry ofNational Security. There
were hopes that the codification of the law on national
security would be a step towards a clearerand more fair
regime for protecting such interests in the PRC. Experience so far has not borne out these hopes. The efforts of
the National People's Congress (the PRC Parliament)in
providing a clearerand somewhat more limited statement
of what constitutes threats to nationalsecurity have been
underminedby the NSL implementingauthorities,especially
through the use of subsidiary regulations. Moreover, the
accountability mechanisms applying to the implementing
authoritiesremainfeeble.
I.

INTRODUCTION

.............................

450

II.

BACKGROUND

..............................

451
453
457

III. NATIONAL SECURITY LAW IN CHINA: STRUCTURE .....

IV. NATIONAL SECURITY LAW IN CHINA: APPLICATION ....
A. Ministry of National Security Powers under the
CriminalLitigation Law ....................
B. Ministry of National Security Powers under the
National Security Law .....................
C. Duties of Citizens under the National Security Law..
V.

NATIONAL SECURITY LAW N CHINA: ACCOUNTABILITY.

458
461
463
. 464

A. Accountability to the NationalPeople's Congress... 465

B. Accountability to the Courts .................
466
C. Accountability to the Public .................
466
VI. CONCLUSION ...............................
467

* H. L. Fu, LLB (Southwestern Institute of Political Science and Law, PRC); MA

(Criminology, University of Toronto); D.Jur (York University, Toronto), University Lecturer
of the Department of Law, City University of Hong Kong. (Principal author).
** Richard Cullen, LLB (Hons)(Melboume); D.Jur (Osgoode Hall, Toronto), University
Senior Lecturer of the Department of Professional Legal Education, City University of Hong
Kong. (Associate author).

Electronic copy available at: http://ssrn.com/abstract=2145192

COLUMBIA JOURNAL OF TRANSNA TIONAL LAW

I.

[34:449

INTRODUCTION

A recurring theme in the political dialogue between China and

the West is political freedom in the People's Republic of China
(PRC). Constraints on freedom of expression and political behavior
in China have been widely discussed for many years and particularly
since the Tiananmen bloodshed on June 4, 1989.
All countries, including the most liberal democracies, place
constraints on political expression and behavior. No jurisdictions
allow deliberate efforts to overthrow the existing order, nor do they
permit foreign governments, even friendly ones, to undertake
clandestine activities within their midst. The action taken by the
French Government to counter the recent alleged spying by the
Central Intelligence Agency of the United States of America in
France is a case in point.'
In the PRC, the system for controlling political expression and
behavior is extensive, detailed and often notoriously applied. Since
the "open door" policy was adopted in the late 1970s, certain
measures have been taken to formalize and strengthen the control of
political expression and behavior in the PRC. This article focuses on
one of these measures, the National Security Law of 1993 (NSL) and
the operations of the principal implementing authority for the NSL,
the Ministry of National Security (MNS), sometimes also referred to
as the Ministry of State Security2 . The MNS was established in
1983, and the NSL was enacted in 1993. This article reviews the
scope of the NSL provisions and a number of implementing rules.
It also looks at the powers of the MNS under the NSL and related
legislation. Further, it considers the duties of citizens under the NSL
and the accountability of the MNS.
In Part Two of this article, some brief background information
is provided. Part Three reviews the structure of the NSL. Part Four
looks at the powers of the MNS, first under the Criminal Litigation
Law of 1979 (CLL), and then under the NSL (and related rules), and
the duties of citizens under the NSL. Part Five discusses accountability, and Part Six is the conclusion.

1. Harrison, Nathaniel, U.S. Spy Spat Dogs France'sBalladure,USA TODAY

ED.) March 8, 1995 at 4A.
2. The Ministry of National Security is the translation adopted in this article.

(INT'L

19961
I.

NATIONAL SECURITY LAW IN CHINA

BACKGROUND

The MNS was set up in 1983 by a Decision of the Standing

Committee of the National People's Congress (NPC).3 The MNS
took over responsibility for investigating any activities which are
regarded as external threats to China's national security from the
Ministry of Public Security (i.e., the ordinary police). In performing
this function, the MNS enjoys the powers of detention, arrest,
interrogation, and other powers under the CLL, enacted in 1979. In
1993, the Standing Committee of the NPC enacted the NSL.4 This
law defines the scope of national security in China and deals also
with certain functions and powers of the MNS. In 1994, the State
Council passed the Rules for the Implementation of the National
Security Law (the Rules).' The Rules define some of the terms in
the NSL and provide guidelines for national security work.
National security is one of the primary concerns of any government and can even override individual rights.' This primacy of
national security concerns was judicially recognized in the United
States in 1981 in the Supreme Court case of Haig v. Agee.7 In the
courts, the invocation of national security concerns clearly can
outweigh other considerations. A national government is, generally
speaking, entitled to determine when a national security concern
arises.
The term "national security" has no precise meaning. Essentially a political concept, its content is contingent upon the political
circumstances. The elastic nature of this concept "lie(s) in the broad
geopolitical and strategic factors on which versions... of the concept
have been based." 8 The elastic nature of national security allows the
government to define it flexibly, making it a nebulous concept.
National security includes threats, both internal and external,
which challenge the fundamental structure of a particular society.

3. Decision of Sept. 2, 1983 Regarding the Exercise by the State Security Organs of
the Public Security Organs' Powers of Investigation, Detention, Preparatory Examination and
Arrest. Standing Committee of the National People's Congress.
4. National Security Law of the People's Republic of China, Feb. 22, 1993, Standing
Committee of the National People's Congress [hereinafter NSL].
5. Rules for the Implementation of the National Security Law of the People's Republic
of China, June 4, 1994, State Council [hereinafter Rules].
6. Peter Hanks, National Security - A Political Concept, 14 MONASH U.L.REv. 114

(1988).
7. 453 U.S. 280 (1981).
8. Hanks, supra note 6, at 117.

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

[34:449

Under the Australian Security Intelligence Organization Amendment

Act of 1986, for example, national security "includes protection
against espionage, sabotage, politically motivated violence, promotion
of communal violence, attacks on Australia's defense system, and acts
of foreign interference." 9 In a similar vein, national security in the
United Kingdom is defined as encompassing the defense of the realm
"from espionage, terrorism and sabotage; from the activities of agents
of foreign powers; and from actions intended to overthrow or
undermine parliamentary democracy by political, industrial or violent
means."' 0 Similar provisions apply in Canada. 1
Acts of foreign interference receive special attention as national
security concerns and are defined broadly. In Canada, threats to
national security include "foreign influenced activities within or
relating to Canada that are clandestine or deceptive or involve a threat
to any person. 1 2 In Australia, acts of foreign interference are
defined as:
Activities relating to Australia that are carried on by or on behalf
of, are directed or subsidized by or are undertaken in active collaboration with, a foreign power, being activities that(a) are clandestine or deceptive and(i) are carried on for intelligence purpose;
(ii) are carried on for the purpose of affecting political or
governmental process; or
(iii) are otherwise detrimental to the interests of Australia;
or
3
(b) involve a threat to any person.'
An act is thus more likely to pose a national security threat if a
foreign power is involved. In such a case, there is no requirement of
the use or threat of use of violence, nor need there be a threat to
overthrow the government. It is sufficient that a foreign power or its
9. Australian Security Intelligence Organization Amendment Act, 1986, No. 122,

3(d).
10. Security Service Act, 1989, ch.5 (U.K.).
11. See Security Intelligence Service Act, 1984, Chap. C-23, 2 (Can.).
12. Id.
13. Australian Security Intelligence Organization Amendment Act, 1986, 3(a). Foreign
power is defined at sec 3(b) as

(a) a foreign government;

(b) an entity that is directed or controlled by a foreign government
or governments; or
(c) a foreign political organization.

1996]

NATIONAL SECURITY LAW IN CI-NA

agents, acting clandestinely or deceptively, gathers intelligence,

interferes with the political process of the country, or does anything
else which is detrimental to the country's interest.
III. NATIONAL SECURITY LAW IN CHINA: STRUCTURE
Under Chinese law, national security by definition is limited to
external interference. According to Article 4 of the NSL, an act
endangers China's national security when organizations14 or individuals 5 outside China commit, request or support others in committing, or collude with organizations and individuals within China to
commit activities which endanger national security.
"Support" includes providing money, accommodation or
materials to organizations or individuals outside China to carry out
activities endangering the national security of China. 6 "Collude"
includes the following activities committed by organizations and
individuals in China:
(1) plotting or carrying out activities endangering national
security jointly with organizations or individuals outside China;
(2) accepting support or missions from organizations or individuals outside China to carry out activities endangering national
security; and
(3) contacting organizations or individuals outside China and
receiving their support, and aiding those organizations or individuals
to commit activities endangering national security.17
The primary concern of China's national security law is thus
external interference. This legislative intent was made clear in the
speech of Mr. Jia Chunwang, the Minister of National Security, when
he presented the draft NSL to the NPC. According to Mr Jia, China's
national security threats come from three sources: first, espionage by
foreign intelligence agencies and other enemy forces; 8 second,
Chinese citizens who are hostile to socialism and who seek support
from those foreign forces; third, Chinese citizens who sell state
14. This includes a branch office of a foreign organization. Rules, supra note 3, art. 3,

1.
15. This includes persons residing in China who are not Chinese citizens. Rules, supra
note 3, art. 3, 2.
16. Rules, supra note 5, art. 6.
17. Rules, supra note 5, art. 7.
18. Enemy is defined by both the Ministry of Public Security and the Ministry of

National Security. See Rules, supra note 5, art. 5.

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

[
[34:449

secrets to foreign persons for profit. The NSL is necessary, he

explained, because political interference from external forces has
intensified and diversified.1 9
Article 4 of the NSL makes it clear that, for the purpose of
national security, foreign elements must be involved. Purely internal
subversion is left to be dealt with by other agencies of the State.
Only organizations or individuals with foreign connections pose a
national security threat under the NSL.2
The subject matter of national security is defined widely.
Article 4 lists five categories of national security concerns:
1. plotting to subvert the government, dismember the
state, or overthrow the socialist system;
2. participating in foreign intelligence organizations or
accepting missions from such organizations or their
agents;
3. stealing, probing, purchasing or unlawfully providing
state secrets21;
4. instigating, bribing, or luring state personnel to defect;
and
5. any other sabotage endangering state security.22
The list of national security offences is compatible with and
reinforces the list of counterrevolutionary offenses in the Criminal
Law of 1979 (CL). These CL offences include:
1. colluding with foreign states in plotting to harm the
sovereignty, 23territorial integrity, and the security of
the country;
2. plotting
to subvert the government or dismember the
24
state;

3.

instigating, luring, or bribing members of the state

personnel, armed forces, people's police or people's
militia to defect to the enemy and turn traitor or to

19., AA CHUNWANG, INTRODUCTION TO THE NATIONAL SECURITY LAW OF THE

PEOPLE'S REPUBLIC OF CmINA (22 December 1992).
20.
21.
22.
23.
24.

NSL, supra note 4, art. 4.

This category covers both the providers and the receivers of state secrets.
Id.
Criminal Law, art. 91 (1976).
CL, supra note 23, art. 92.

1996]

NATIONAL SECURITYLAWIN CINA

4.
5.

rise in rebellion;2"
stealing, secretly gatheringor providing intelligence
for an enemy or supplying arms and ammunition or
military materials to an enemy; and
or
taking part in a secret or espionage organization
26
accepting a mission assigned by an enemy.

Those who have committed national security offenses under the

NSL are to be punished according to the related articles of the CL.
The NSL itself does not stipulate any specific penalties, but it does
incorporate the CL as a schedule to the NSL in order to establish the
applicable punishment27 .
In the draft NSL, Article 4(5) originally provided that "any other
activities endangering state security" were proscribed. There was no
requirement that the activities had to be in the nature of sabotage. It
was a catch-all article under which any act which had the potential to
be a national security threat was punishable.28
During the debate on the draft NSL, some NPC deputies
questioned the scope of Article 4(5) as originally drafted. They
argued that an activity should not be considered a national security
threat unless it was in the nature of sabotage. By inserting an
element of sabotage in Article 4(5), the, deputies intended to define
the concept more clearly and restrictively. Unless an act involved
some type of sabotage, meaning an act which causes, or is likely to
cause, some actual harm to national security, according to an
objective standard, the act would not be a security threat within the
meaning of the NSL. It is clear that the legislators intended to
restrict the definition of what was a national security threat, and this
intention was meant to be reflected in guidelines for the implementation of the NSL.29
One might have expected the NPC or the Supreme People's
Court ultimately to have defined the meaning and scope of "sabotage." Unfortunately, it is the MNS, the sponsor of the original bill,
that has defined this scope. It has done so by reinserting in the Rules

25. CL, supra note 23, art. 93.

26. CL, supra note 23, art. 97.
27. NSL, supra note 4, Appendix "Relevant Articles in the Criminal Law".

28. XIANG CHUNYI, EXAMINATION REPORT OF THE LEGISLATIVE AFFAIR'S COMMISSION

OF THE NATIONAL PEOPLE'S CONGRESS ON THE NATIONAL SECURITY LAW OF THE PEOPLE'S
REPUBLIC OF CHINA.

29. Id.

COLUMBIA JOURNAL OF TRANSNA TIONAL LAW

[34:449

the content which was deleted from the NSL by the legislators. It is
the usual practice in the PRC for a sponsoring entity to make the
rules needed to implement sponsored legislation. As of yet, there are
few, if any, constraints on the departments like the MNS when they
use this rule-making power in this way.
According to Article 8 of the Rules, "other activities" which
constitute sabotage include:
1. organizing, planning or carrying out terrorist activities
endangering national security;
2. falsifying or distorting facts, publishing or spreading
statements, either in writing or orally, or making or
broadcasting audio or video products, endangering
national security;
3. using established social, economic or administrative
organizations to carry out activities endangering state
security;
4. using religion to carry out activities endangering state
security;
5. creating ethnic disputes, inciting ethnic separation,
endangering state security; and
6. individuals from outside China meeting persons from
inside China who are a threat to, or are suspected of
being a threat to, state security. 0
The Rules effectively circumvent the more restrictive interpretation of the NPC. The term "sabotage" does not add anything new.
There is virtually no difference between "any other activities
endangering national security" and "other activities which equal
sabotage endangering national security."
In the draft NSL, it was also an offence for a person to falsify
information relating to national security and to interfere with and
damage national security work. Some of the NPC deputies pointed
out that it is difficult to state the meaning of "falsify information." As
a result, this article was replaced by one describing a more general
offence of obstruction of a national security officer in the execution
of his duty. Spreading rumors would not be a national security
concern until it amounted to obstruction. 3 The MNS, however,

30. Rules, supra note 3, art.8. Article 8(6) of the Rules permits some meetings,
provided they do not violate certain regulations and are permitted by the authorities. Id.
31. Xiang, supra note 28.

19961

NATIONAL SECURITY LAW IN CHINA

reintroduced the latter offence through the Rules. Under Article 8(2)
of the Rules, it is an offence if one falsifies or distorts 3facts
and
2
makes or spreads statements endangering national security.
The question that therefore arises is whether or not, by expanding the scope of national security, the Rules have exceeded the
authority provided to the MNS in the NSL and become ultra vires.
In China, there is a rule, superficially similar to the common law
principles limiting the scope of delegated legislation, that subsidiary
legislation has to be within the scope granted by the parent law. The
State Council, the executive branch of the government, is authorized
"to adopt administrative measures, enact administrative rules and
regulations and issue decisions and orders in accordance with the
Constitution and the law., 33 Chinese commentators have repeatedly
made the point that delegated legislation cannot contravene the
empowering law.34
The Chinese Constitution and other laws really do not stipulate
a common law ultra vires principle, however. There is a presumption
that laws passed by the NPC will be general and abstract, not in the
sense that NPC provides the framework and the executive fills in the
details (as is the case in common law countries), but in the sense that
the NPC creates a mandate for the executive to enact regulations to
govern certain spheres of social and economic activity, or to provide
general guidelines to the executive as to its activities. The NPC
plants the seed which grows in the backyard of the State Council.35
IV. NATIONAL SECURITY LAW IN CHINA: APPLICATION

The intelligence services in common law countries are civilian

agencies, whose agents do not enjoy the power possessed by peace
officers. In Lord Denning's words, "[t]he members of the Service
are, in the eyes of the law, ordinary citizens with no powers greater

32. Rules, supra note 5, art. 8.

33. XIANFA [Constitution] art. 89(1) (1982).
34. ALBERT H Y CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE'S

REPUBLIC OF CHINA 77 (1992); Xu Anbiao, The Boundary between Law andAdministrative

Regulations, in LEGISLATION: PRINCIPLES, STRUCTURE AND TECHNIQUES 145 (Guo Daohui
et al. eds., 1994).
35. If, as seems to be the case, the ultra vires principle does not apply, then the
executive has sufficient discretion to expand the law's authority greatly. In the instant case,
the State Council is apparently competent to expand the category of national security. Until
there is a clear constitutional rule which entrenches the ultra vires principle, the State
Council has unlimited power to alter (and distort) national laws.

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

[34:449

than anyone else. They have no special powers of arrest such as the
'
police have."36
Limited rights to enter and search, however, are
conferred by statutes, and the otherwise illicit entry in or interference
with property by a security agent will be immune from criminal and
civil proceedings if carried out in accordance with ministerial or
judicial authorization. This restricted right is compatible with the
purpose of such services to gather intelligence rather than enforce
security measures. The creation of the Chinese MNS was not part of
a move to "civilize" the anti-espionage service in this way, but was
instead created to separate the political police from the regular police
force. The MNS performs the functions of both informationgathering on security threats and the enforcing of security measures.
The MNS is given the same powers as the regular police under the
CLL.
A.

Ministry of NationalSecurity Powers Under the Criminal

Litigation Law

Article 41 of the CLL grants national security police the power

of investigative detention.37 Article 48 of the CLL limits the period
of such detention to ten days. Criminal suspects who are not
formally arrested within ten days of their detention must be released.
According to Article 48:
In cases where a public security organ considers it necessary to arrest a detained person, it shall, within three days
36. Statement of Lord Denning, quoted in Ian Leigh and Laurence Lustgarten, The
Security Service Act 1989, 52 MOD. L. REV. 801, 822 (1989).
37. More specifically, Article 41 of CLL provides that:
In any of the following circumstances, the public security organs may detain
an active criminal who, based on his criminal behavior, should be arrested, or
a major suspect element:
1.
If he is in the process of preparing to commit a crime, is committing a
crime or is discovered immediately after committing a crime;
2.
If he is identified as having committed a crime by the victim or by an
eyewitness on the scene;
3.
If he is discovered to have criminal evidence on his person or at his
residence;
4.
If, after committing the crime, he attempts to commit suicide or to
escape or is a fugitive;
5.
If there is a possibility that he may destroy or falsify evidence or
collude with others to devise a consistent story;
6.
If his identity is unclear and there is strong suspicion that he is a person
who goes from place to place committing crimes; or
7.
If he is carrying on "beating, smashing and looting" and gravely
undermining work, production or social order.
Criminal Litigation Law, art. 41 (1979) [hereinafter CLL].

1996]

NATIONAL SECURITY LAW 1N CHINA

after detention, submit a request to the people's procuratorate for review and approval. Under special circumstances,
the time for requesting review and approval may be
extended by one to four days. The people's procuratorate
shall make its decision to approve arrest or not to approve
arrest within three days after receiving the application for
approval of arrest from the public security organ.38
Article 40 of CLL sets out three requirements for arrest: first,
"the principal facts" of the crime must already have been clarified;
second, the crime committed must be serious enough that the suspect
could be sentenced to a penalty of not less than imprisonment; and
third, arrest must be necessary, that is, an arrest should only be
effected in the circumstances "where adopting such measures as
allowing [the suspect] to obtain a guarantor and await trial out of
custody or to live at home under surveillance would be insufficient
to prevent the occurrence of danger to society." 39 Compared to
most common law jurisdictions, the requirements for making an arrest
in the PRC are quite stringent. This is a principal reason why
detention (prior to arrest) for significant periods is so common. The
provisions allowing detention are broadly drafted. As in other
jurisdictions, formal charging takes place after (or at the time of)
formal arrest.
MNS officers may "conduct searches of the persons, articles,
residences and other relevant places of defendants and people who
might conceal criminals or criminal evidence." 40 The search must
be carried out for the purpose of gathering criminal evidence and
apprehending criminals.4 '
A search warrant must be shown to the person searched.42 A
search warrant may be issued by a person in charge of a police
station at or above the county level.43 A search incidental to a
detention or arrest may also be conducted. In an emergency situation,
a search may be conducted without a warrant.' The Ministry of
Public Security specifies three emergency situations in which a search
may be conducted without warrant: where a person "(1) possesses

38. Id. art. 48.

39. Id. art. 40.

40. Id. art. 79.
41. Id. art. 79.
42. Id. art. 75.
43. Id. art. 74.
44. Id. art. 81.

COLUMBIA JOURNAL OF TRANSNA TIONAL LAW

[34:449

weapons or other instruments which could be used to injure others or

to commit suicide; (2) may have concealed explosives, poisons or
other dangerous materials; or (3) may destroy or conceal evidence
related to any offences." 5
There are other rules of conduct in carrying out a search. All
searches must be conducted by not less than 2 officers;4 6 searches
of the persons of women shall be conducted by female personnel; 47
and when premises are being searched, the person whose premises are
searched or his family members, neighbors or other witnesses shall
be present.48
Proper documentation about a search must be kept. According
to Article 83 of the CLL, a transcript shall be made of the circumstances of a search and the investigation personnel and the person
searched or his family members, neighbors or other eyewitnesses shall
sign it or place their seals (or their fingerprints) upon it. If they
refuse to sign, the circumstances of such refusal should be noted in
the transcript.49
According to Article 84, articles and documents discovered
during the search which could be used as evidence to prove the guilt
or innocence of a defendant shall be seized. The seized articles and
documents must be safely kept and cannot be used or damaged. 0
Officers may, under certain circumstances, seize the mail or
telegrams of a defendant. There are three requirements for any such
seizure:
(1) the seizure must be necessary;
(2) the seizure must be approved by a national security
department, which may also notify the post and
telecommunications organ to check for relevant mail
and telegrams; 5' and
(3) when it is not necessary to continue seizure because
it is ascertained that the seized articles have no
relation to the case under investigation, the post or
telecommunications organ shall be notified immedi45.
46.
47.
48.
49.
50.
51.

Id. art. 74.

Id. art. 75, para. 1.
CLL, supra note 37, art. 82.
Id.
Id. art. 83.
Id. art. 84.
Id. art. 86.

NATIONAL SECURITY LAW 1N CINA

1996]

ately and the seized articles must be returned to the

original owner or to the original post and telecommunications organ."
Officers may interrogate any person who is suspected of having
committed a crime. A suspect whom it is not necessary to arrest or
detain may be summoned to a designated place for interrogation.53
At least two officers are required to be present during the interrogation.54 Upon producing a proper certificate, investigation officers
may also question any witness at his work place or residence. 5
When necessary, they may require the witness to come to the
people's procuratorate or the public security organ to provide
testimony.56
Suspects have a duty to answer questions put by the investigation officers based on the facts of the particular case. But suspects
may refuse to answer questions which have no relation to the case
under investigation. There is no full "right to silence," that is, no
right to refuse to answer incriminating questions, as there is in a
number of other jurisdictions.
B.

Ministry of National Security Powers Under the National

Security Law

In the course of executing their duties, the MNS officers have

additional powers, most of which are not formally granted to the
regular police. These powers come from the NSL.
The officers may check the identification of any person, and may
also search the person and personal effects of that person if his
identity is not clear and if he is suspected of committing an act
endangering state security. 8 MNS officers are allowed to enter any
premises, and, subject to proper procedures, they can enter into
restricted places or organizations to inspect or take away files,
information or materials. 9 Subject to compliance with certain

52.
53.
process
54.

Id. art. 87.

Id. art. 63. Interrogation is a less intimidating component in the investigation
than detention.
Id. art. 62.

55. Id. art. 67.

56.
57.
58.
59.

Id.
CLL, supra note 37, art. 64.
NSL, supra note 4, art. 7.
Id. art. 8.

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

[34:449

procedural requirements, they may use technological means of

investigation, such as electronic surveillance.6" Further powers
include the power to inspect telecommunications equipment belonging
to other organizations or individuals,61 to order the organizations or
individuals to make necessary alterations to any equipment which
does not meet the requirements of national security, and to stop the
use of equipment or seize the equipment where the alteration is not
carried out.2 Where equipment or materials are used to commit any
act endangering national security, MNS officers can seize such
equipment or materials, as well as the money or property collected
to commit the act.63 They can also control the movement of persons
in and out of China. They may expel a foreign citizen from China
or order him to leave China within a certain period of time if he
violates the provisions of the NSL. 4 Furthermore, they may refuse
a person permission to enter China if there is a possibility that that
person would commit an act in China which endangers state security.65 MNS officers should show their authorizing identification
when carrying out their official duties.
In addition to investigative detention 66 which can be used by
the MNS to further its investigation, the MNS can also impose up to
15 days administrativedetention as a penalty. This penalty has wide
application. It can be imposed upon those who refuse to provide
information or evidence when requested to do so by the state security
agency, while knowing that others have committed the offence of
espionage; 67 those who intentionally obstruct the lawful execution
of duties by MNS officers, when the circumstances surrounding the
offence are not serious; 68 and those who intentionally or negligently
disclose secrets relating to national security.6 9 With the exception
of the 15 day detention rule, the other administrative powers enjoyed
by the regular police are not, however, available to MNS officers

60.
61.
62.
63.
64.
65.
66.
67.
68.
criminal

Id. art. 10.

Id. art. 11.
Rules, supra note 5, art. 13.
Id. art. 21.
NSL, supra note 4, art. 30.
Rules, supra note 5, art. 9.
See section 4.2 supra for a discussion of investigative detention.
NSL, supra note 4, art. 26.
Id. art. 27. Where the circumstances are serious, the accused would be subject to
prosecution instead of administrative detention.

69. Id. art. 28.

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exerting their authority pursuant to the CLL.7

In a recent announcement, the MNS specified the design of the
investigation certificate to be used by MNS officers. This investigation certificate is the authorizing personal identification required by
an officer under Article 8 of NSL. The Announcement makes two
points: first, organizations and individuals must, subject to penalty,
cooperate with national security officers upon the displaying of their
certificate. Second, MNS officers may not exceed their authority and
violate the lawful rights of any organization or individual. The public
is asked to lodge complaints against any wrongdoing on the part of
MNS officers. The MNS has promised that it will conduct serious
investigations of any complaints and to deal severely with those
officers whose wrongdoing has been substantiated. The MNS also
has set up a telephone complaints hotline.7 1
C.

Duties of Citizens under the National Security Law

In addition to the powers just discussed given to MNS officers,

citizens are obliged to render assistance to such officers under the
threat of punishment. All organizations and citizens are obliged to
assist the maintenance of national security72 and to report any
activities endangering national security to public security organs
directly or via other organizations.73
Under Article 68 of the CLL, a witness has no legal duty to
answer questions asked by the police. Criminal liability was incurred
only when a witness intentionally gave false testimony or concealed
criminal evidence. This qualified right to silence has been removed
under the NSL. Citizens, when questioned by state security agencies,
are obliged to furnish information relating to espionage activities of
which they have knowledge. 74 A violation of this section can,
depending on the circumstances, lead to administrative discipline by
the offender's workplace, up to 15 days administrative detention by
the state security agency, or imprisonment for up to three years

70. For the powers of administrative detention of the regular police in China, see
Edward J. Epstein, Legal Documents and Materials on Administrative Detention in the
People's Republic of China, 27 CHIMSE L. & Gov'T. (1994); H. L. Fu, A Case for
Abolishing ShelterforExamination:JudicialReview and PolicePowers in China, in POLICE
STuDiEs, Vol. XVII, No. 4 (1994).
71. Announcement of the MNS, February 20, 1994 (on file with author).
72. NSL, supra note 4, art. 16.
73. Id. art. 17.
74. Id. art. 26.

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[34:449

pursuant to Article 162 of the CL.75

In the draft NSL, the offence of harboring criminals would have
been committed if a person had knowledge of espionage activities but
failed to report these to the government. The vagueness of the term
"knowledge" was pointed out in the consultation process. It was
suggested that the scope of criminal liability be restricted so that a
citizen would not have committed an offence unless asked by MNS
officers to furnish the information.76 Under the NSL, a person has
a duty to provide any relevant information or materials to MNS
officers if he is informed by the officers that another person has
carried out.an activity which endangers national security. Failure to
do so can result in a 15 day detention. The same penalty can also
be imposed on any citizen who refuses to assist MNS officers in
carrying out their duties after being so requested.78 Obstruction of
the performance of duty of police officers has become prevalent in
China, 79 and the NSL specifically creates this offence to prevent any
such obstruction of national security work.80 Organizations and
individuals who make an "important contribution" in securing
national security are rewarded. 81
Apart from the general duty to keep confidential any state
secrets they have obtained, 83
a person should not unlawfully have in
their possession
state
secrets,
nor possess or use "special espionage
84
equipment.
V.

NATIONAL SEcuRiTY LAW IN CHINA: AccouNTABILnTY

In many Western jurisdictions, the intelligence services are

typically regulated by a combination of parliamentary, judicial, and
executive control. In China, external control over the MNS is

75. This article proscribes the harbouring of counterrevolutionaries. CL, supra note 23,
art. 162.
76. Xiang, supra note 28.
77. NSL, supra note 4, art. 26.
78. Id. art. 27.
79. THE OFFENCES OF OBSTRUCTION OF JUSTICE (Zhao Binzhi ed., People's Public
Security University Press (Beijing) 1994).
80. NSL, supra note 4, art. 27.
81. Id. art. 5. "Important contribution" is defined in Article 18 of the Rules. However,
neither the NSL nor the Rules specify what is the reward and how it is to be determined.

82. d. art. 19.

83. Id. art. 20.
84. Id. art. 21.

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NATIONAL SECURITY LAW IN CINA

minimal. There are no provisions in the NSL or the Rules imposing

accountability. On the contrary, the Rules stress that the lawful
activities of MNS officers in the course of executing their duties
cannot be interfered with unlawfully by other organizations and
individuals.
More indirect, but still potent, accountability applies at the ballot
box in the West. In a representative democracy, if the security
services are seen to have behaved excessively, their performance (and
the monitoring thereof) may well become a political issue at election
time. This form of accountability does not exist in the PRC.
A.

Accountability to the NationalPeople's Congress

The role of parliament has been especially important in ensuring

the accountability of the intelligence agencies in common law
countries.85 Control of the national security establishment by the
NPC is minimal in China, however. There is no specific NPC
committee to oversee the MNS. According to the Constitution, the
NPC can exert control over the government in two ways. Article 71
authorizes the NPC and its Standing Committee, as they deem fit, to
set up a committee of inquiry into a specified matter and adopt
relevant resolutions in light of the reports. All State and social
organizations and citizens are obliged to furnish necessary information to the committees of inquiry when they conduct investigations.86
Under Article 73, the deputies to the NPC and members of the
Standing Committee have the right, during sessions of the NPC and
meetings of the Standing Committee, to address questions, in
accordance with procedures prescribed by law, to the State Council
or to the ministers and commissions under the State Council. The
Council is required to answer these questions.87
Apart from these two general Congressional controls over the
government, the Ministry of Nation Security is immune from NPC
scrutiny. In view of the fact that the NPC has played a passive role
in scrutinizing the government, it is unlikely it will exert any

85. See, e.g., H.P. Lee, THE AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION

NEW MECHANISMS FOR ACCOUNTABILITY, 38 INTERNATIONAL AND COMPARATIVE LAW

QUARTERLY 890 (1989); Hanks, supra note 6; Murray Rankin, National Security:
Information,Accountability, and the CanadianSecurity IntelligenceService, 36 UNIVERSITY
OF TORONTO LAW JOURNAL 249 (1986); and John Wadham, The IntelligenceServices Act
1994, 57 Mod. L. Rev. 916 (1994).
86. XIANFA [Constitution], art 71.
87. Id. art. 73.

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[34:449

meaningful supervision over security operations. However, the

comments and criticism of individual deputies may carry some
weight, and the government may feel compelled to take such
criticisms into account at times.
B.

Accountability to the Courts

The NSL allows for limited judicial review of administrative

decisions made by the national security establishment. A person
subject to administrative detention by officers may first appeal the
decision to the state security agency at the next higher level within 15
days after he receives notice of the detention. If he disagrees with
the agency review, he may petition the People's Court within 15 days
after he receives the notice of agency review.88
A number of NSL decisions, such as refusing permission for a
person to enter China, expelling a foreigner from China, or seizing
telecommunication equipment, are administrative decisions and
therefore should be reviewable by the courts. Incontrast to common
law jurisdictions, national security issues in China are not generally
exempt from judicial review. In fact, the Administrative Litigation
Law (ALL) has a strict clause in this regard which provides that the
only issues excluded
from judicial review are those concerning
"national defense. '89 The term "national defense," on an ordinary
reading, excludes fewer matters from possible judicial review than the
term "national security." However, the general feebleness of all
systems of judicial review of executive action in China renders this
difference largely theoretical. 90
C.

Accountability to the Public

The national security police and the regular police are subject to
the same complaints procedure. According to the NSL, any citizen
88. NSL, supra note 4, art. 31.
89. Article 12 (1) of the ALL provides that:
The people's court shall not accept and hear proceedings in which citizens,
legal persons or other organizations bring proceedings in respect of the
following matters:
(1)
acts of state pertaining to such matters as national defense or
diplomatic relations.
Administrative Litigation Law, art. 12(l) (1989).
90. This feebleness is a product, inter alia, of a history of the judiciary being used as
an instrument of the executive (pursuant to Marxist political theory), grave underresourcing
of the judicial system and, even today, a relatively primitive legal culture by Western
common law standards.

1996]

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finding MNS officers exceeding their authority, abusing their power

or committing other unlawful acts may lodge a complaint with the
MNS at higher levels or with other related organizations, including
the disciplinary committees of the Communist Party and the Ministry
of Supervision within the Government, an ombudsman-type institution.9 Little is known about the effectiveness of these complaint
procedures, but it is unlikely to be great. Both the national security
police and the regular police have set up their own disciplinary
committees and internal supervision departments to handle complaints
against their own officers. 2
VI. CONCLUSION

The National Security Law was passed to strengthen the antiespionage powers of the government and to counter, through specific
enforcement mechanisms, the perceived adverse increase in foreign
involvement in China's political and social affairs. National security
threats are, by definition, limited to those involving some links
outside of China. Purely internal subversive activities fall within the
jurisdiction of the regular police. The division of labor between the
MNS and the regular police is a clear one.
What differentiates China's MNS from the intelligence agencies
in a number of Western jurisdictions (especially common law
jurisdictions) is both the police-like power the MNS possesses, and
the lack of accountability. Intelligence agencies in Australia, Canada,
and the U.K. are given significantly more limited powers to secure
national security, and those powers are balanced through judicial,
executive, and, increasingly, parliamentary control.
The positive contribution of the NSL is that, together with the
Rules, it defines, in some detail, what constitutes a threat to national
security. This positive contribution is seriously undermined, however,
by a number of factors discussed above. First, there is the manner in
91. NSL, supra note 4, art. 22, 1.
92. There is a nominal linkage between the Ministry of Supervision and these internal
supervision departments but, in practice, the latter are part of the instrumentalities they
supervise. On the nature of the relationship between the Ministry of Supervision and other
ministries, see Regulations of Administrative Supervision of the People's Republic of China,
State Council, arts. 14-18 (December 9, 1990). See also Liu Shixiang, Supervision Organs
and Supervision Personnel,in COMMENTARIES ON THE REGULATIONS OF ADMINISTRATIVE
SUPERVISION 28-29 (Gan Yisheng ed., 1993). For the complaint system that exists within the
regular police departments, see PEOPLE'S POLICE LAW OF THE PEOPLE'S REPUBLIC OF

CHINA:
1995).

EXPLANATIONS AND COMMENTARIES

220-36 (Ma Zhiyi and Tian Minquan eds.,

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[34:449

which the Rules have been used to broaden the scope of the NSL's
power in a way which conflicts with the intentions expressed during
debate on the draft NSL in the NPC. Apart from this, the powers
conferred by the NSL on the MNS together with powers enjoyed by
the MNS under other legislation give the MNS the functions and
powers of a full-blown, political police force. That is, the MNS is
involved not only in information gathering on national security
threats, but also in enforcement of the national security regime.
Finally, there is a serious lack of accountability. There is very little
parliamentary control. The powers of the courts are limited, and the
administrative review mechanisms are, effectively, "in-house."
Judged by the standards prevailing in many Western jurisdictions, the
national security regime in the PRC, in form and in substance, is
wide-ranging and offers great potential for significant abuse of the
rights of individuals, with little fear of redress.