THE FOUR STEPS OF CHINA’S FIGHT AGAINST TERRORISM
I.1. On December 27th 2015, the Standing Committee of the National People’s Congress of China approved the Counter-terrorism Law, to enter in force on January 1st 2016. This Law (hereinafter referred to as the “CTL”) abrogates explicitly (Art. 97 of the CTL) the 2011 “Decision of the Standing Committee of the National People’s Congress on Relevant Questions Concerning the Strengthening of Counter-Terrorist Work”.
The document, divided in ten Chapters and ninety-seven Articles, sets forth the rules for the implementation of measures to be enacted by administrative organs, units and citizens, in order to face the growing threat of terrorism.
I.2. The reasons for enacting such a Law are evident to the worldwide public opinion, never as nowadays aware of the presence of terrorist organizations and affiliated cells at every level of the human society and in the territory of every Country, and consequently of the needs of such an enactment. Nonetheless, the public opinion is also well aware of the meanings of such a Law for the deep changes it brings to the everyday life of citizens and organizations of the Country.
That’s why the CTL was awaited with an understandable mix of feelings in China: warmly welcomed on the one hand as an important safeguard for the society, it’s also observed with caution for the threats it might bring to the enjoyment of human rights of the subjects of the Chinese society.
II. Principles involved in the act
CTL faces the problems linked to terrorism from several points of view, preparing counter-strategies at all levels of the society and for all kinds of possible situations.
So that one of the main aims of the Law is to ensure a correct education and information circulation among all organizations, units and citizens at every level, in order to be ready to face every possible case of terrorism in the everyday life. Great importance is given to prevention and anticipation of the problem, with an eye to the importance of deep and useful international intelligence cooperation, while the investigation part, as we will see, is detailed and fulfills the needs of the State without forgetting to ensure the protection of the rights of citizens and legal persons. In case of terrorist attack, then, it provides with assistance to victims, also with compensation of losses from the State – not only for first aid, but also for ensuring to people the opportunity of getting back quickly to minimum levels of quality of life.
III. Main critic points
III. 1. When analyzing in depth the CTL, it is easily noticeable the particular care the Legislator put in organizing and disciplining in detail all the aspects touched by the reform. So that, as a point of start for our Commentary, we can affirm that the CTL represents one of the highest levels of legal refinement and human rights protection ever touched by the People’s Republic of China.
III. 2. The Law opens with the definition of the key terms of the matter, the most important of which appears to be the word “Terrorism” (Art. 3): it includes all the activities that “create social panic, endanger public safety, violate person and property, or coerce national organs or international organizations, through methods such violence, destruction, intimidation, so as to achieve their political, ideological, or other objectives”.
This gives the Law enforcers a huge power in determining of which actions (for example) constitute or not an action of advocating terrorism: the fear is that someone simply wearing a t-shirt with a sentence written on might be considered a terrorist advocator. And if it is true that power and right are two opposed juridical positions, a greater power means always a minor freedom in the enjoyment of someone’s personal right: in this case, the right of expressing opinions.
Nevertheless, Article 6 of the CTL stipulates the highest level of respect for human rights, stating that “Counter-terrorism work shall be conducted in accordance with law, respect and protect human rights, and preservation of citizens’ and organizations’ lawful rights and interests. Citizens’ freedom of religious belief and ethnic customs shall be respected in counter-terrorism efforts, and any practices discriminating on the basis of geography, ethnicity or religion is prohibited”.
III. 3. Another important innovation of the CTL, is the provision of a special administration to designate who is a suspect of terrorism, what actions are to be defined, in the practical cases, as “terroristic”, etcetera. Also the People’s Courts at the Intermediate level and above are entitled, while hearing criminal cases, to give such designations. If the entitlement for the Courts is a welcomed new in the optics of the Rule of Law, the creation of a specific administration for CTL-related issues worries the public opinion: all the risks connected to possible abuses of power, though, are evaded by the presence of Articles 88, 94 and 96 of the Law, submitting the administrations to administrative review by the same organs, but also and moreover (and this is the great step-up for the respect of Rule of Law in PRC contained in the CTL) to administrative review in Court under the Administrative Litigation Law for regulatory matters connected to the CTL – among which, particular importance is given to the sanctions for officials lightly abusing their functions – and to review in Court under the Criminal Law and Criminal Litigation Law, for huge abuses of power.
The power of filing law suits against abusers is given by the Law to everyone who might have knowledge of the abuses, and not only to the owners of the relevant rights. This visibly ensures a higher degree of protection to the infringed rights.
III. 4. Concerning investigation, Technological investigation (Art. 45), information content monitoring systems (Art. 19), and inspections on people or goods on public transports or on goods via post (Art. 20), which all represent deep inspecting ways capable of intruding sensitive information of people and organization’s privacy, are meant to be conducted only limitedly to the relevant information for counter-terrorist use. Where State secret, commercial secret or personal privacy is infringed, the CTL recognizes legal liability on both administrations/organizations and persons infringing and disclosing such secrets or privacy (Art. 48).
In conclusion, we are deeply convinced of the quality and innovativeness of the CTL: a legal document sanctioning not only a turning point for the organization of both public administration and human society in the prevention and fight against terrorism, but also a turning point for the inspiration of laws, careful both to the aim of the Law and to the protection of rights, including fundamental principles of internationally-recognized high standards of Law.
 For what concerns, in particular, information content monitoring systems, the Law states the involvement of private companies and operators in the telecommunications and internet providing sectors. Those, “according to provisions of law and administrative regulations, put into practice” the mentioned network security systems and information content monitoring systems, “technical prevention and safety measures, to avoid the dissemination of information with terrorist or extremist content […]”. The recalled laws and regulations, which will implement the general portrait of the CTL will represent, then, a key point for the practical application of this provision.
This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable official sources, no guarantee is made with regard to its accuracy and completeness.