18 April 2015

Lawyer Zhang Xuezhong: Gao Yu's Conviction is "Perversion of the Law"

The following is a translation of a commentary produced by Shanghai-based lawyer Zhang Xuezhong in response to yesterday's conviction of the 71-year-old senior journalist, Gao Yu.

This morning (17 April 2015), the Beijing Number Three Intermediate People’s Court sentenced Ms Gao Yu to seven years’ imprisonment, with subsequent deprivation of political rights for one year, for the crime of “illegally providing state secrets abroad.” It is understood that the so-called “state secret” in this case is probably the CCP Central Committee’s Document No. 9, entitled “Communiqué on the Current State of the Ideological Sphere.” But in fact, Ms Gao’s actions did not constitute a crime and the Beijing court’s guilty verdict is a perversion of the law.

My reasoning is as follows, based on the provisions of the Criminal Law and the Law on the Guarding of State Secrets:
1. The documents of a political party should not be considered state secrets. A party member has no legal obligation to safeguard secrets (only an organizational obligation), let alone a citizen who is not a member of the political party.

Treating political party documents as state secrets under state law is obviously a mistake based on the failure to separate between party and state or on the substitution of the party for the state. Furthermore, the ruling political party in a state ought to, as much as possible, make public its political program, policy positions, and governing principles so that they may by subjected to criticism and oversight by the full citizenry, who are the source of the state’s sovereignty. If the ruling party treats these things as secrets, it will lead people to have doubts that the interests of the party and state might be opposed to each other.

Even if a political party treats some of its documents as secrets, only party members should be expected to bear the obligation to protect these secrets and this obligation should only be a matter of party discipline. If a party member violates this obligation, at most he or she should receive party disciplinary sanctions, not the sanction of state law. Citizens who are not members of the party should not be under any obligation to protect political party documents that have been designated secret.

2. The document in this case also does not fall under the category of “state secret” as defined in the Law on the Guarding of State Secrets.

According to Article 2 and Article 8(3) of the Law on the Guarding of State Secrets, secrets of political parties may be classified as state secrets if they have “vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time.”

In light of the analysis in point 1 above, these provisions of the Law on the Guarding of State Secrets clearly violate the political principle of separation between political parties and the state. But even if one sets aside this point and the text of the provisions literally, the political party document in this case does not constitute a state secret.

First, as this is a legal provision, the phrase “state security and national interests” must refer to specific and identifable state security and national interests. In other words, it must be the case that any disclosure of the given information would lead to actual, recognizable, and measurable damage to national interests or worsening of state security. Disclosure of information producing some empty or abstract “impact” should absolutely not be treated as damage to national interests or state security as these ideas are specified under law. Otherwise, the result would be for the scope of state secrets to become boundless, and any citizen could potentially be punished unreasonably.

Second, the state secrets in these provisions must be “specified by legal procedure [and] entrusted to a limited number of people for a given period of time.” Here, “legal procedure” must involve a designated state organ carrying out a process of “specification” in accordance with national law. No political party or any of its institutions has the power to act on its own to specify party documents as state secrets.

Based on the reasoning above, I maintain that Ms Gao Yu’s actions should not constitute the crime of illegally providing state secrets abroad.

17 April 2015

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