Beware China’s New National Security LawNew regulations that are currently being reviewed in China could put Taiwanese journalists at risk and have a chilling effect on freedom of expression
In recent weeks the Standing Committee of the National People’s Congress (NPC) has been reviewing a new set of laws that will come to be known as the “National Security Law” 《國安法》. Should it pass in its current form, there is a very real chance that Taiwanese journalists working in China could be netted as “criminals” for failing in their “shared obligation” to maintain China’s “national sovereignty and territorial integrity.”
Why, you ask, should Taiwanese reporters (and presumably academics) be subject to domestic laws that govern the behavior of citizens of the People’s Republic of China (PRC)? That’s because the new Law engages in what is known as extraterritoriality, with its drafters clearly stating that the said obligations apply to “all Chinese people,” which includes “compatriots from Hong Kong, Macao and Taiwan.”
In other words, parts of the Law ignore the sovereignty of Taiwan or the Republic of China (ROC), which has its own set of laws. Taiwanese working in China could now presumably be prosecuted in China for “crimes” (things that they said or wrote) while they are physically in China — or very likely while in Taiwan or abroad. The loose definition of “national security” is likely intentional and therefore open to interpretation, which means that it could be used to repress news coverage and freedom of expression. As we already know, the topics that fall under the category of “national security” in China are wide-ranging and include anything from environmental disasters to the health of senior Chinese Communist Party leaders. Given the new emphasis on China’s expanded territory, the definition also presumably includes anything that touches on the PRC’s claimed sovereignty, including Taiwan.
Commenting on this, the Hong Kong Journalists Association (HKJA) recently observed that the new Law, “covers an overly broad range of areas, not in alignment with The Johannesburg Principles on National Security, Freedom of Expression and Access to Information which have been stipulated by international experts and widely adopted globally, thus rendering it easily subject to abuse, and infringement of human rights.” Readers are encouraged to read the entire HKJA report to understand the full extent of the new Law that is being considered by the NPC.
Although the HKJA commended the NPC for allowing “public consultations” during the review process, it is probably naïve to assume that such “consultations” will have much of an impact on the final text. Furthermore, other groups that risk being affected by the new Law — including Taiwanese journalists — have had no such opportunity, at least not that we know of.
The ramifications can be serious, putting Taiwanese journalists at risk of prosecution and inevitably having a chilling effect on what they choose to report on in China, or even in Taiwan. The impact on journalistic integrity, and on the profession’s role as a check on authority, could be disastrous. Given this direct and very real assault on the sovereignty of Taiwan (ROC) and the laws that regulate this country, Taiwanese authorities cannot remain silent.
The Association of Taiwan Journalists (ATJ) also weighed in on June 3 with a “Declaration of Opposition to China’s ‘National Security Act.’” This impassioned plea is well worth quoting in full:
The Association of Taiwan Journalists therefore declares its opposition to this act for the following reasons:
(1) Article 11 of the PRC draft “National Security Law” states: “The sovereignty and territorial integrity of China cannot be divided. Maintenance of national sovereignty and territorial integrity is a shared obligation of all the Chinese people, including compatriots from Hong Kong, Macao and Taiwan.”
This article ignores the reality that Taiwan, whose constitutional name is the Republic of China, is a democratic sovereign and independent state whose sovereignty does not overlap with the PRC. Although China’s “National Security Law” is a domestic law of the PRC, it arbitrarily declares that the citizens of another state have “a shared obligation” to maintain the PRC’s “national sovereignty and territorial integrity.”
The Association of Taiwan Journalists calls on the PRC’s National People’s Congress to recognize the reality that the two sides of the Taiwan Straits are governed by two distinct states whose sovereignty and legal jurisdictions and therefore “obligations” do not overlap and demands that the NPC delete this ridiculous article.
(2) Article 81 of the PRC draft “National Security Law” states: “Violations of this law and other relevant laws, by failing to perform national security obligations or engaging in activities endangering national security, shall be investigated for legal responsibility according to law.”
By examining these two articles together, it can be discovered that the PRC’s draft “National Security Law” not only arbitrarily declares that the people of Taiwan have “a shared obligation” to maintain China’s “sovereignty, national unity and territorial integrity,” but also can be punished for failing to do so under Article 81. In other words, once this draft law is enacted by the NPC, any Taiwan citizen who enters China may be subject to investigation for legal responsibility and prosecution by the PRC authorities.
(3) Taiwan news workers will undoubtedly become a “high risk group” after the PRC’s “National Security Law” is enacted.
Under the vaguely defined legal concept of “failing to perform national security obligations or engaging in activities endangering national security,” the work of journalists, whether deriving from coverage, writing or producing news reports, commentary or other publications or even posts on Facebook pages, may easily become “criminal evidence” for accusations of “failing to perform national security obligations” by the PRC government.
(4) The legislation of this “National Security Law” by China has already sparked grave concern from the International Federation of Journalists, its affiliate Hong Kong Journalists Association and other news freedom and human rights organizations. The IFJ and the HKJA have separately issued a declaration of protest and a petition to the PRC government on this matter.
The Association of Taiwan Journalists affirms the content and values expressed by the IFJ in its declaration and urges the Ma Ying-jeou [馬英九] government in Taiwan to pay serious attention to the harm that China’s draft “National Security Law” will inflict on the civil and political rights of the Taiwan people and on the freedom of expression and news coverage of Taiwan Journalists.
We call on the Ma Ying-jeou government to take grave note of the potential harm to the exercise by all residents of Taiwan of their fundamental human rights and to take cognizance of its obligations under the International Covenant for Civil and Political Rights to proactively “take the necessary steps” to protect the civil and political rights of all residents in Taiwan, notably the rights of freedom of expression and news freedom listed in Article 19, of the ICCPR and elaborated in General Comment 34 issued by the United Nations Human Rights Affairs Committee on July 29, 2011.
Indeed, the arbitrary inclusion by the PRC government of articles that impose constrains on the civil and human rights of the Taiwan people, including the rights of freedom of news coverage and freedom of expression, can serve as the most embarrassing and harmful consequence of the Ma government’s refusal to place guarantees for human rights at the center of its handling of bilateral relations with China.
J. Michael Cole is editor in chief of Thinking Taiwan, a senior non-resident fellow at the China Policy Institute, University of Nottingham, and an Associate researcher at the French Center for Research on Contemporary China (CEFC) in Taipei. He is the author of Black Island: Two Years of Activism in Taiwan published in March 2015.