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New Chinese Regulations on State Secrets Criticized for Lack of Transparency

Guangdong province, China

Guangdong province, China

The Chinese government has issued new guidance on its infamous state secrets law, used in the past for denying public access to information that could damage the party's image or impact state owned enterprises But observers say the measure does little to clarify what qualifies as a state secret.

China’s state secrets law has long been criticized for stifling information like disease outbreaks and financial data because of confusion over what constitutes a state secret.

Because of the law’s vague language, activists say that many officials choose to withhold information rather than releasing it to the public and risking embarrassment or even criminal charges.

Chinese official media reports describe the new provisions as an effort to boost the law’s transparency.

According to the official China Daily, officials "have been told not to label items that should be made public as state secrets."

A call for clarity

But the problem, according to observers, is the new rules do not clarify or clearly define what information should be made public.

Sharon Hom, Executive Director of Human Rights in China, says the regulations do not change the fact that virtually anything can still be classified a state secret like environmental disasters, health pandemics or consumer safety.

"When we get an answer to that and they declassify that information then we can say there has been some real progress in transparency and access to information. But right now, it's a big question mark," she said.

China classifies seven types of state secrets, ranging from information about major policy decisions to science and technology or military affairs.

Documents that are off limits to the public are expected to be identified clearly so that those who decide to divulge information know the risks.

But Hom says that is not how the law is enforced.

“We documented 42 cases where it's clear that it was not a state secret at the time the person disclosed it or transmitted or given it to somebody else, it became state secret when it was determined that its disclosure caused harm," she said.

Analysts say authorities have long relied on the law's vague wording to encourage self-censorship and stifle dissent. China legal scholar Stanley Lubman says that has led authorities to value the secrecy law an important tool for maintaining stability, because it gives them great discretion over when to prosecute alleged offenders.

"The emphasis on stability is a given, it has not softened at all that I can see. And I think given the sources of instability and the slowness with which reform is going to be carried out, the party leadership at the local level as well is going to continue to be very concerned, very anxious about instability," he said.

Over the years prosecutions have targeted journalists like Shi Tao, who passed minutes of an editorial meeting to an overseas website. Or academics like Xu Zerong, who in 1992 was accused of photo copying military documents from the Korean War.

State secrets can be the number of executions the government carries out, information about labor and land disputes, or as China's environmental ministry said last year, survey findings on soil pollution.

Data about the economy can also be risky.

In 2009, an Australian executive from mining firm Rio Tinto was detained under China's state secret laws. He was accused of stealing information about China's ore price during business negotiations.

More recently, Beijing classified as state secrets the audit documents of Chinese companies charged with fraud in the United States. As a result, the China-based offices of major American accounting firms refused to hand over the auditing papers to U.S. authorities and were suspended from practicing in the United States.

Moving forward

With the new regulations, government agencies are expected to clarify what information under their authority is classified a secret.

It remains unclear when officials will make those determinations, but Stanley Lubman says that because Xi Jinping's administration is emphasizing legal reforms, it could be within a year.

"There is recent consciousness of the need to stick to the law. How serious that is and at what level that is impossible to say. But I would say there is somewhat more pressure on the bureaucracy not to apply the law blatantly in violation of outstanding principles," he said.

The new regulations come into effect on March 1.

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