[Translation by Human Rights in China]
See Chinese original.
The concept of China's state security has achieved unprecedented political heights with the National Security Law recently passed by the Standing Committee of the National People’s Congress, the suite of laws that have already been passed, and those relating to national security currently under deliberation. And yet national security is commonly a highly subjective, vague, and elusive concept. Therefore, to define national security exactly and objectively through legislation is extremely unlikely.
In the case of Jacobellis v Ohio, U.S. Supreme Court Justice Potter Stewart defined obscenity this way: "I know it when I see it." National security has the same characteristic. It is only in specific, concrete environments that it can have a precise legal meaning. This is also the reason why legislative organs are unwilling, and judicial authorities are unable, to giving state security a clear legal definition.
For this reason it is neither strange nor exceptional that the National Security Law is unable to give national security a clear definition. That China's National Security Law has been widely criticized and questioned is precisely because China's legislative organs sought to define what is undefinable. The result of doing something that one understands to be undoable is to require that the state and the people closely examine all economic, societal, and cultural issues through the lens of national security, and to turn every issue the state needs to regulate into a life or death matter of national security. In this sort of all-encompassing national security framework, China’s National Security Law turns all interests of the political system, sovereignty integrity, economic development, food security, cybersecurity, religion, cultural exchange, environmental protection, and outer space, etc., into life- or-death questions regardless of their gravity.
National security legislation is normally passed at a time when a state is facing a major crisis. This type of national security legislation includes stand-alone laws such as the far-reaching counter-terrorism legislation enacted in the Western world after 9/11. It also includes amendments to existing regulations, particularly revisions to evidentiary and procedural regulations in order to expand police powers. When faced with a great enemy, legislators hurriedly pass harsh legislation—using heavy penalties to bring order to chaos. The United Kingdom’s Official Secrets Act of 1911, China’s State Security Law of 1993, China’s current drafts of the Counter-terrorism Law and Foreign NGO Management Law, and the U.S.’s Patriot Act of 2001 are all responses to real or imagined crises faced by each nation. A common characteristic of such legislation is massive expansion of government power, particularly police powers, and corresponding restriction on the rights of citizens—especially of those suspected of having committed a crime. It is precisely because the country is in the midst of a security crisis that opposing voices in society against such legislation are also very weak. Normally, it is commonly believed that the interests of national security come before all. When the security of a nation is threatened, other interests will make the necessary concessions while the law will also stay correspondingly silent.
The greatest drawback of such crisis-lawmaking is that even if the crisis passes, the law will still preserve the expanded political power and will continue to restrict civil liberties. In constitutional democracies, the usual self-regulatory approach is to draw up a “sunset clause” for this type of legislation, so that the relevant laws will automatically expire within a few years. For example, the U.S. Patriot Act of 2001 was given a first-time limit of five years; Australia’s Anti-Terrorism Act 2005 was given a time limit of ten years; the Canadian Anti-Terrorism Act of 2001 and related laws were given a time limit of five years. In this way, after the crisis has passed, legislators and the whole of society can cool-headedly consider whether or not such harsh legislation needs to continue.
Whether a state is threatened and how it is threatened are questions of factual judgment. What the nature of the crisis is—namely, whether the crisis is related to the security of political parties, of the government, or of the nation—is also a question that is difficult to sort out.
What type of crisis is China’s current national security legislation directed against? Is there a risk of a “Color Revolution” in China? What kind of threat does terrorism pose for China? Are the series of legislative actions undertaken by China necessary? Are the laws’ expansion of powers and restrictions on rights reasonable? Are they proportional to the crisis faced? Can it achieve risk prevention? How can China strike a balance between safeguarding national security and protecting civil rights? These are all questions that should be carefully considered during the legislative process.
An important effect of the National Security Law and other complementary laws is to shift the focus of national security protection from criminal law to administrative law, and from punishment to prevention and risk control. High profile political trials will, in this situation, slowly be replaced by secret political surveillance.
Moreover, the traditional political trials—those convictions and sentences based on crimes of endangering national security—in a globalized context have already become a political burden. Every trial of treason or subversion ultimately transforms into a trial of political power. This type of trial allows those on trial to become heroes and the judges to become the objects of disdain and condemnation by the international community.
Every country has its own specific security considerations, and different countries at different times will all be subjected to similar or different security threats. But different countries will also vary widely in their reaction to, and in measures taken in response to, security threats. And power, left unchecked, will always tend towards continuous self-aggrandizement.
The passage of the National Security Law will accelerate the formulation of other complementary laws, and will provide the legal basis for the power expansion of relevant law enforcement agencies. In a system lacking political participation, judicial independence, press freedom, and a civil society, a powerful national security institution could become the bulwarks of an autocratic system. And with this, national security could become a pretext for acts of state brutality.
 378 U.S. 184 (1964), available at: https://www.law.cornell.edu/supremecourt/text/378/184
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Fu Hualing (傅华伶) is a Professor at the University of Hong Kong Faculty of Law. His research interests are constitutional law and human rights, with a special focus on the criminal justice system and media law in China. He is coauthor and co-editor of Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China and Resolving Land Disputes in East Asia: Exploring the Limits of Law. He is Co-chair of the board of directors of Human Rights in China. (Photo Credit: Sam Hollenshead.)