China’s Draft Counter-Terrorism Law

On November 3, 2014, the Standing Committee of the National People’s Congress (NPCSC) published the much-anticipated draft “Counter-Terrorism Law”–consisting of 106 articles in 10 chapters–for public review, drawing sharp international criticism (NPC website). In February, presumably in response to international criticism as well as domestic suggestions, the NPCSC produced a second draft of this law that introduced several revisions for bolstering the protection of human rights (Xinhua, February 26).

More recently, the National Security Law passed on July 1 and the Cyber Security Law published on July 6 for public comments have caused great concerns among foreign companies due to their provisions requiring the turnover of encryption keys to telecommunications equipment–the implication being that such information could be used to steal valuable intellectual property (South China Morning Post, July 9; Wall Street Journal, July 9). However, according to Zhang Chunxian, the Chinese Communist Party (CCP) chief of Xinjiang, both laws and the anti-terrorism law would provide important legal frameworks for the anti-terrorism efforts in Xinjiang, outweighing civilian security concerns (China Radio International, March 9).

The draft anti-terrorism law was published shortly after the CCP’s proclamation of “comprehensively advancing the rule of law” (全面推进依法治国) as issued by its Fourth Plenum in October 2014. One may ask whether China genuinely needs a specific anti-terrorism law and, if yes, whether the draft law in its current version conforms to the CCP’s seemingly solemn promise of the rule of law.

New Situations and Requirements

According to the NPCSC’s explanatory report on the counter-terrorism draft law, its adoption is justified by three “new situations and requirements”. First, the key counter-terrorism decisions and arrangements by the Chinese Communist Party (CCP), drawing lessons learned from previous counter-terrorism operations, need to be incorporated into law. Second, currently the various laws defining terrorism and governing penalties are scattered in different legal instruments and therefore not in a cohesive form. Third, the organizations in charge of combating terrorism need to have a legal framework clearly delineating their responsibilities and various powers to act. In view of this, the report concluded that it is necessary to enact a specific counter-terrorism law that reflects a so-called “overall national security outlook” (总体国家安全观) and is based on existing laws (NPC, November 2014).

According to Li Wei, director of the Counter-Terrorism Research Center of the government think tank China Institute of Contemporary International Relations (CICIR), the first debates on the necessity of a law specifically addressing terrorism surfaced following the 9/11 attacks, but was not seriously considered until 2005 when China started to prepare for the upcoming Olympic Games in Beijing (Shanghai Morning Post, June 16, 2014). Before 2005, China’s anti-terrorism efforts only relied on its general domestic laws, various terrorism-related provisions in these laws, and the Shanghai Convention on Combating Terrorism, Separation and Extremism. The draft law was a result of the emerging all-round terrorist threat in China, represented by several high-profile terrorist attacks, including the jeep crash and explosion in October 2013 in Beijing (China Brief, January 9, 2014) and the knife stabbings in March 2014 in Kunming (China Brief, March 6, 2014). Such unprecedented attacks were especially serious and shocking, largely because they indicated the spillover of terrorism that had usually been confined to Xinjiang.

Comprehensive Law

Prior to the publication of the draft law, Professor Zhao Bingzhi, head of the Chinese Criminal Law Association and director of Beijing Normal University’s College for Criminal Law Science (CCSL), had advocated that China adopt a comprehensive anti-terrorism law. In view of China’s national reality and anti-terrorism situation, this law was to combine administrative, judicial and military means to address the main problems in China’s anti-terrorism efforts. The combination of multiple means may not only create a synergy between administrative, judicial and military organs but also a mutual review of these organs (Legal Daily Online, July 2, 2014).

From a macro perspective, the draft law under discussion must be understood in line with the above-mentioned “overall national security outlook”, a new concept launched by President Xi Jinping at the first meeting of the CCP’s National Security Commission in April 2014 (Xinhua, April 15, 2014). Striving for “a national security path with Chinese characteristics,” the concept covers various areas of national security such as “people’s security,” “political security,” “economic security,” “military, cultural and social security,” and “international security” (People’s Daily Online, July 30, 2014). According to Professor Mei Jianming, head of the Counter-Terrorism Research Center at Chinese People’s Public Security University (CPPSU), the “outlook” would serve to “comprehensively guide China’s counter-terrorism efforts in every respect” (China Economic Weekly, Issue 24, 2014).

A top priority of the law is to set up counter-terrorism working bodies in the national, provincial and prefecture-level governments. Of these, the National Counter-Terrorism Leading Group is responsible for leading and directing the anti-terrorism efforts across the country. It should be noted that the work of these bodies is supported by many state authorities, including police departments, intelligence agencies, the People’s Liberation Army (PLA), the Chinese People’s Armed Police Force (CPAPF), the judicial administrative organs, the prosecution offices, and the courts (Articles 9-13). Currently, the National Counter-Terrorism Leading Group is housed in the Ministry of Public Security, China’s highest police authority, and headed by Guo Shengkun, Minister of Public Security (People’s Daily Online, August 28, 2013; China Daily, June 6, 2014).

Apart from the above-mentioned new mechanism for deploying all related state authorities (Chapter 2), other significant measures introduced by this law include: strengthening the prevention of terrorism (Chapter 3), improving the trans-agency sharing of information through a national intelligence gathering center (Chapter 4), determining the leading authorities responsible for emergency response to terrorist incidents (Chapter 5), adopting the procedure for designating terrorist groups and individuals (Chapter 6), authorizing police, intelligence officers, military or semi-military forces to carry out overseas anti-terrorism operations (Chapter 7) and guaranteeing financial support, organizing joint drills, and establishing volunteer teams for anti-terrorism purposes (Chapter 8). Given the diversified, multiple counter-terrorism measures, this law is genuinely “comprehensive.”

Special Emphasis on Prevention

In the opinion of Zhang Jiadong, a security expert at Fudan University, the key to counter-terrorism lies in preventing terrorist acts from ever happening, because punishment after the fact is not sufficient (Shanghai Morning Post, October 29, 2014). Du Miao, a prominent counter-terrorism law expert, recommended that the comprehensive anti-terrorism law to be enacted should emphasize the prevention of terrorism and establish a “multi-dimensional defense structure” (立体防御格局) involving specific policies that address terrorism in four distinct aspects: people, goods, information, and money (Prosecutorial Daily Online, June 26, 2014). In fact, such a structure is manifested in the third chapter of this law.

As regards the aspect of people, governments at all levels are required to conduct education and publicity campaigns against terrorism, propagate prevention and response techniques, and organize routine emergency drills. While schools at all levels are required to include terrorism awareness and emergency drills in their curricula, governmental departments for education should strengthen their supervision of such counter-terrorism educational activities (Article 14). For persons with terrorist or extremist tendencies or those who have engaged in terrorism or extremism, the state organs concerned, the villagers or citizens committees to which they belong, the places where they are employed, the schools where they study, their family members and legal guardians are obligated to educate and correct them (Article 26).

The aspect of goods involves, for example, the transport and delivery of goods and the control of dangerous items. Air, railway, maritime, or road transport companies as well as postal, courier, or logistics service providers are required to perform safety controls (Article 17). Special safety measures are introduced for the manufacturing, production, storing, transportation, provision, sale, purchase, use, and possession of dangerous objects such as (1) explosive, inflammatory, toxic, radioactive, or corrosive articles, infectious pathogens; (2) guns and ammunition; (3) dual-use items related to nuclear, biological, chemical, missile, and conventional weapons (Articles 18 and 19).

The aspect of information involves anti-terror obligations imposed on telecommunications operators and internet service providers. More broadly it also involves the increased use of traditional surveillance, such as the installation of video cameras in public places and the creation of databases and programs to compare images to identify people and vehicle license plates (Article 23).

The aspect of money targets the financing of terrorism. Aside from existing anti-money laundering statutes, the draft law introduces further provisions to impose obligations on financial institutions and certain non-financial institutions (Article 20). Banks and related government departments are obligated to monitor the financial flows of foundations, social organizations, and particularly foreign NGOs; all these organizations also have the duty to report their financial situation and funding sources to the competent agencies (Article 21).

Controversy over “Backdoors” Provisions

Owing to the concerns raised by American officials, Articles 15 and 16 of the draft law have received additional media coverage. According to Article 15, telecommunications operators and internet service providers, whether domestic or foreign, are required to install “backdoors” in their products and report encryption keys to competent authorities. Companies who refuse will not be allowed to provide service in China. Under Article 16, police and intelligence organs in charge of preventing and investigating terrorist activities may use such “backdoors” and may request related technology companies to provide technical support with decryption. It deserves mention that the second draft of this law requires that the digital investigation or surveillance, as provided under Article 16, undergo strict approval procedures and information obtained in this way be only used for counter-terrorism purposes.

In an interview with Reuters on March 2, U.S. President Barack Obama openly criticized the Chinese draft law and focused his ire on the “backdoors” provisions that would affect U.S. technology companies doing business in China (Reuters, March 2). Hua Chunying, the spokeswoman for the Ministry of Foreign Affairs, responded, saying that “the legislation is China’s domestic affair, and we hope that the U.S. can treat it in a correct, calm and objective manner” (China News Service, March 3; New York Times, March 4). Fu Ying, the spokeswoman for the National People’s Congress (NPC), argued that these measures involving IT companies are subject to strict conditions: information is only used for the purpose of forestalling and investigating terrorist activities, only police and intelligence agencies have access, and access is granted only after strict review and approval procedures. She said that the law would not affect the legitimate interests of Internet operators, because such measures were compatible with the basic principles of administrative law and consistent with practices worldwide. In addition, she added pointedly that in the past years the U.S. and the UK had also been demanding technology companies to submit encryption keys (Xinhua, March 4; Washington Post, March 5).

Fight against Thoughts?

Another major issue raised by the draft law involves the definition of terrorism. According to Article 104 of the second draft, “terrorism” is defined as “any advocacy (zhuzhang, 主张) or activity that, by means of violence, sabotage, or threat, aims to create social panic, undermine public security, or menace a state organ or an international organization.” A high point of the latest draft is to shift the initial definition of terrorism from “thought, speech or activity” to “zhuzhang or activity” (China News Service, February 25).

While international media enthusiastically reported on the removal of “thought” from the definition of terrorism, they overlooked the fact that “zhuzhang,” literally “advocacy,” remains a term vague enough to be interpreted either as “thought” or as “speech” (South China Morning Post, February 26; The Straits Times, February 26). Lawmakers may have intended to criminalize the dissemination of terrorist thoughts or speech by the inclusion of “advocacy” in the terrorism definition, but they failed to understand that such act of terrorist propaganda should be called terrorist “activity.” A person who does not participate in any “activity” should not be punished simply for holding an opinion. [1] This opinion is also shared by Liu Renwen, director of the Criminal Law Department of the Institute of Law at the Chinese Academy of Social Sciences (CASS). He suggested that, since the definition of terrorism was linked to related provisions of another draft law, the enactment of this law should be extremely cautious (Phoenix News Media, March 2).

The other “draft law” refers to the draft of the “Ninth Amendment to the Criminal Code,” which the NPCSC is reviewing concurrently with the current draft anti-terrorism law. If the current version of the draft amendment is passed, criminal punishment will be meted out to those: (1) who propagate or instigate terrorism by producing, distributing or spreading information related to terrorism or extremism; (2) who, by taking advantage of extremist ideology, instigate or force people to damage legal systems of marriage, justice, education and social management; (3) who possess objects, books as well as audio and video materials that propagate terrorism or extremism; (4) who refuse to provide investigating organs with information regarding other people’s terrorist or extremist acts.

At a symposium on terrorism-related provisions of the draft amendment organized by the Chinese Criminal Law Association and Beijing Normal University’s CCLS in January 2015, some participating experts saw signs of over-criminalization with regard to terrorist or extremist ideas in the draft amendment. In their opinion, the attempt to punish thoughts violates the basic principle that “law must not punish thoughts” to the detriment of China’s legal development (CCLS of Beijing Normal University, January 28; Legal Daily, March 25).

Conclusion

In the context of global jihad and in the era of information, China seriously needs a specific comprehensive counter-terrorism law. Speaking of the necessity of this law, Li Wei pointed out: “Only when counter-terrorism efforts are in accordance with law can they be effective” (Shanghai Morning Post, October 29, 2014). Li’s argument cuts to the core of the problems with the current draft. If this law is adopted in its current version, it will undoubtedly promote China’s ability to combat the scourge of terrorism. However, considering the power it gives to police and other government agencies, without additional revisions to ensure proper use of the law, it will also severely restrict the fundamental rights and freedoms of the people. As a result, China faces the formidable task of striking a proper balance between security and liberty. This is especially true due to the CCP’s recent vow to govern the country based on the principle of rule of law.

Note

1. See also Zhou Zunyou, interview in Deutsche Welle, February 2; and Zhou Zunyou, South China Morning Post, March 9.