Law may make government more covert

Transparent governance is crucial step for China’s journey towards democracy and rule of law.     ----Lu Liangbiao, Beijing-based lawyer

Proposed changes to the 20-year-old Protection of State Secrets Law might create an even more secretive government, legal experts warn. Amendments to the law, implemented in May 1989 and put under review since 1996, will face legislative scrutiny for the first time this week when the National People’s Congress Standing Committee meets. Meetings

are held once every two months. Unlike most draft legislation enacted

in recent years, the draft amendments to the Protection of State Secrets Law were not released for public consultation, so most legal experts only saw an earlier version obtained through unofficial means. “The amendments should ensure that transparency is the norm, and secrecy is the exception,” Beijingbased lawyer Lu Liangbiao (吕良彪) , a keen advocate for open government, said. “It seems like the amendments have not reflected this fundamental principle. This is regrettable. “Transparent governance is a crucial step for China’s journey towards democracy and rule of law.”

Ever since the enactment of the Open Government Information Regulations in 2007, hopes have run high that the traditionally secretive government will finally be adopting a policy of “sunshine governance”,

where the government can no longer deny the public’s right to know

except in extraordinary circumstances. Broadly, and vaguely, defined

state secrets have been a common cause of criminal injustice. Once a

person is charged with leaking state secrets, he will be denied access to

lawyers in the investigation stage and subjected to closed-door trials. Mr Lu urged the narrowing of the definition of state secrets, not only in scope and but also in person targeted for charges – a citizen who unknowingly got hold of a state secret and passed it on should not be charged. According to the current law, “state secrets” mean secrets that concern “the safety and interests of the country”, which are divided into six categories, such as defence or social development, plus a safety clause of “any other secretive matters as defined by the State Protection of Secrets departments”.

Legal experts who were consulted on the draft amendments said they Focused more on how to better carry out protection of secrets. The draft

failed to provide the necessary legal support for the Open Government

Information Regulations. In the legislative hierarchy, regulations are one

level lower than laws.

Minzu University law professor Xiong Wenzhao told Phoenix Weekly magazine that the amendments introduced measures required to protect state secrets in electronic documents and audio products, strengthened administrative capability to protect state secrets, and also specified penalties for failing to protect state secrets.

Veteran criminal lawyer MoShaoping urged the authorities to standardise procedures of how a state secret is defined, and what an individual can do if he disputes that definition. He has handled acase in which foreign media reports have been defined as a state secret.

The fact that no officials need to put their names down for determining

a piece of information as a state secret means that defence lawyers have no way to cross-examine the legality of that definition.