Chinese Security Laws Elevate the Party and Stifle Dissent. Mao Would Approve.

By Edward Wong, 29 MAY 2015, New York Times

BEIJING — China’s new national security law, released in draft form this month, has little to say about such traditional security matters as military power, counterespionage or defending the nation’s borders.

Instead, to the surprise and alarm of many people here, it reads more like a Communist Party ideology paper and a call to arms aimed at defending the party’s grip on power. The law, together with two other recently published draft laws, constitutes the most expansive articulation yet of President Xi Jinping’s vision of national security, and the widest interpretation of threats to the Communist Party and the state since the Mao era.

Analysts say the laws are aimed at giving the security forces and courts greater leeway in muzzling Chinese civil society and corralling the influence of Western institutions and ideas, which Mr. Xi views as a threat. Deploying the kind of retro-nationalist language that has become standard fare under Mr. Xi, the national security law says security must be maintained in all aspects of society, from culture to education to technology, “to realize the great rejuvenation of the Chinese nation.”

“This draft focuses on politics, ideology and culture,” said Zhang Xuezhong, a civil rights lawyer and former law professor at East China University of Political Science and Law in Shanghai. The two other draft laws — also related to what might be described as ideological security — are a so-called counterterrorism law and one aimed at controlling the activities of foreign nongovernmental organizations and their Chinese partners.

More than at any other time since the Communists seized power in 1949, some scholars say, the law is being used in the service of ideology and maintaining party survival. The draft laws, Mr. Zhang said, “really look like an expression of the conservative political thinking of some party leaders, and the legislative organs are merely trying to realize their thoughts.” Perhaps the most interesting question is why Mr. Xi thinks he needs such laws. Existing laws already enshrine Communist Party power and criminalize any act deemed to encourage “subversion of state power.”

But the new laws provide a firmer legal framework for controlling civil society and Western organizations, scholars say. The most ambitious of the three, the national security law, solidifies Mr. Xi’s authority over national security by placing a central organ — likely to be the National Security Commission that Mr. Xi founded — in charge of all security matters. An April 23 article in People’s Daily, the official party newspaper, said the new draft of the security law reflected “General Secretary Xi Jinping’s spirit.”

Another reason Mr. Xi wants these laws is more abstract, scholars say. Party ideology no longer plays a central role in the lives of ordinary Chinese the way it did in the Mao era, so the party needs to promote and institutionalize the ideology by whatever means it can, including by writing it into law. That is especially true under Mr. Xi, who since the day he took office in 2012 has promoted old-school party ideology in a way not seen since the aftermath of the June 1989 crackdown on pro-democracy protests around Tiananmen Square in Beijing.

“The ideology is far thinner and holds the attention of the populace far less powerfully than before,” said Stanley B. Lubman, a scholar of Chinese law at the University of California, Berkeley. “As a result, the Chinese Communist Party needs more institutional support than before, and may need even more. This helps to explain the attention that law has recently been receiving since Xi came to power.” The national security law explicitly mentions the need to teach China’s 1.3 billion people about the security and ideological needs of the state and the party. One clause commands institutions to “strengthen guidance on news, propaganda and public opinion about national security.”

“National security education will be included in the national education system and the public-servant training system to strengthen awareness among the entire populace,” the law says. “April 15 of each year will be set aside as national security education day.” Legal analysts say the law is expected to be passed no later than March, when the National People’s Congress is to meet in Beijing. It could be passed sooner by the legislature’s standing committee, which also has the power to approve laws.

“I think the frame of the national security law fits the current needs of the nation, since national security as a concept has expanded to more areas,” said Tong Zhiwei, a professor at the East China University of Political Science and Law. “But I don’t agree with some of the wordings in the draft — for example the phrases ‘ideological security’ and ‘cultural security.’ ” Ideology and culture are not threats to national security, Mr. Tong added.

Mr. Zhang, the lawyer, said the law was “destined to be abused.” With its sanction, he said, “law enforcement officials who want to suppress freedom of speech or set limits on importing foreign publications will be more confident in doing so.” The two other draft laws have even more concrete provisions for controlling civil society and Western institutions; both could be passed as early as this summer. The foreign NGO law proposes that such organizations be registered and regulated by the Public Security Ministry, a step that William Nee, a China researcher with Amnesty International, equates to treating them “as potential criminals.”

The law would apply to all nonprofit groups, including schools and artistic organizations. Even those groups with no China operations but who want to hold an event here would have to register with the police. Before registering, foreign NGOs would have to find an official sponsor. To get official backing and to win the approval of the security ministry, the NGOs would have to drop or severely curtail activities that officials might consider politically suspect, like those aimed at helping China build an independent judicial system, for example.

In addition, funding given by foreign NGOs to “more outspoken” Chinese NGOs would “rapidly dry up,” leading to the shutdown of many of those groups, wrote Maya Wang, a researcher with Human Rights Watch. Ms. Wang said the law would affect her group’s activities. The separate draft counterterrorism law calls for, among other things, foreign technology and financial companies to hand over encryption keys to Chinese agencies and install security back doors in technology. President Obama and other American officials are pressing Chinese leaders to drop those requirements.

During his tenure, Mr. Xi has repeatedly cited Han Feizi, a Legalist philosopher from the Warring States period more than 23 centuries ago. The Legalists said autocratic rule should be codified in law rather than having law limit that rule. A party conference in October laid the foundation for the party’s use of the law to justify and reinforce its rule. The conference called for policies promoting “the Socialist rule of law with Chinese characteristics.” Legal scholars say the party is appropriating the term “rule of law” for propaganda purposes with no intention of allowing the law to circumscribe the party’s authority.

Jerome A. Cohen, a law professor at New York University, said Mr. Xi’s “rule of law seems also a vehicle for strengthening the control of central authority over the unruly lower levels of government and all the distorting influences that impact local court decision-making.”

On a broader level, he said, “Xi has intensified the uses of legislation and judicial practice as instruments of party ideology and policy in order to impose a more repressive regime than China has witnessed since the June 4 era.”