The Four Steps in China’s Fight Against Terrorism

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On 1st January 2016, as approved by the Standing Committee of the National People’s Congress of China, the Counter-terrorism Law entered into force, and was greeted with an understandable mix of feelings in China; warmly welcomed on the one hand as an important safeguard for society, it is also observed with caution for the threats it might bring to the enjoyment of human rights as subjects of Chinese society.

Main critical points
(i) When analyzing in depth the CTL, it is easily noticeable the particular care that the Legislator put in organising and disciplining in detail all aspects touched by the reform. Indeed, CTL represents one of the highest levels of legal refinement and human rights protection ever touched by the People’s Republic of China.

(ii) The Law opens with a 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 organisations, through methods such as violence, destruction or intimidation, so as to achieve their political, ideological or other objectives”.

This gives 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. 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 preserve 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) Another important innovation of the CTL is the provision of a special administration to designate who is a suspect of terrorism, plus what actions are to be defined, in practical cases, as “terroristic”, etcetera. In addition, 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 a 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 Criminal Law and Criminal Litigation Law, for huge abuses of power.

(iv) 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 organisation’s privacy, are to be conducted under limitation to the relevant information for counter-terrorist use. Where State secrets, commercial secrets or personal privacy is infringed, the CTL recognises legal liability on both administrations/organisations and persons infringing and disclosing such secrets or privacy (Art. 48).

Conclusions
The quality and innovation represented by the CTL is deeply convincing; a legal document sanctioning not only a turning point for the organisation 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-recognised high standards of Law.

Disclaimer
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. For more information please visit dandreapartners.com or WeChat: dandreapartners.

 

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Legal columnist Carlo D’Andrea is Chair of the Legal & Competition Working group of the European Union Chamber of Commerce in China; Shanghai Chapter, Coordinator of the Nanjing Working Group of the Italian Chamber of Commerce in China and has taught Chinese law (commercial and contractual) at Rome 3 University. 法律作家代开乐担任中国欧盟商会上海分会法律与竞争工作组主席,中国意大利商会劳动集团的协调员与曾经在罗马三大担任企业咨询课程中中国商法、合同法的课程教授。

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