Chinese Courts Use "Secrets" Law To Sentence Tibetan Online Authors to Imprisonment

January 21, 2010

Following the wave of mostly peaceful Tibetan protests that began in March 2008 in the Tibetan autonomous areas of China, Chinese authorities have taken measures to prevent Tibetans from providing information to other Tibetans about the protests, the suppression of the protests by security forces, and the government's continuing crackdown in Tibetan areas. Security and judicial officials sometimes use vaguely worded laws on "state secrets" to punish attempts to share such information. In what appear to be separate cases, a court in Gansu province sentenced two Tibetan men on November 12, 2009, to prison terms of 15 and 5 years for allegedly violating laws prohibiting the disclosure of "state secrets." According to non-governmental organization reports and an Internet blogger based in Beijing, the cases involved using the Internet to post Tibetan-language content about the reported deaths and imprisonment of Tibetan protesters. Commission staff have not observed any Chinese government or state-run media reports on either case.

In one case, on November 12, 2009, the Gannan (Kanlho) Intermediate People's Court, located in Gannan Tibetan Autonomous Prefecture (TAP), Gansu province, sentenced Konchog Tsephel, a Tibetan man who co-founded a Web site on Tibetan arts and culture, to 15 years in prison for "disclosing state secrets," according to a November 16, 2009, International Campaign for Tibet (ICT) report. Information is not available about the Criminal Law (CL) statute under which the court convicted Konchog Tsephel. The maximum sentence that CL Article 398 provides for a person who "intentionally or negligently divulges state secrets" is 7 years, but Article 111 provides a 10-year minimum sentence for a person who "unlawfully supplies State secrets" to an organization or individual outside of China. Security officials detained Konchog Tsephel on February 26, 2009, when they "ransacked" his home and confiscated his computer, cell phone, and camera, the ICT report said. A Beijing-based Tibetan writer, Woeser (Oezer, Weise), described Konchog Tsephel in a December 19 Chinese-language blog entry as a "civil servant at the Machu [Maqu] county [Gannan TAP] Animal Husbandry Bureau" and commented on the basis of the charge against him.

The accusations against him are connected to essays he published on his Web site about the protests in Tibet [in 2008], and related to information he disclosed to the outside world about the suppression of Tibetans during the protests and the detention of monks at monasteries by People's Armed Police, etc. These essays on his site have already been deleted. He is charged with "divulging state secrets."

In the other case, the same court on the same day sentenced Kunga Tsayang, a Labrang Tashikhyil Monastery monk, to five years' imprisonment for "disclosing state secrets," according to a November 19 Tibetan Centre for Human Rights and Democracy (TCHRD) report. Kunga Tsayang hailed from Guoluo (Golog) TAP, Qinghai province, wrote essays under the pen name Gangnyi (son of snowland), and engaged in amateur photography. He had "traveled widely in Tibet and photographed the environmental degradation taking place on the Tibetan plateau and its impact on the people," the TCHRD report said, as well as worked with a Tibetan environmental protection group.

Although the Gannan court announced the verdicts for Konchog Tsephel and Kunga Tsayang on November 12, according to the ICT and TCHRD reports, Commission staff have not observed any reports explicitly linking the two men or stating that judicial authorities combined their cases. Both cases were tried in closed sessions, according to the ICT and TCHRD reports, and authorities denied Konchog Tsephel access to legal counsel, a source told ICT.

China's Criminal Procedure Law (CPL) establishes specific barriers to a defendant's access to justice when a case "involves state secrets." Article 96 of the CPL requires the suspect in such a case to obtain permission from the authorities who are investigating the case before a lawyer can be appointed to advise or represent the suspect. The CPL does not impose such an infringement on a suspect's access to legal counsel in other types of criminal cases. If the investigating authorities permit the appointment of a lawyer to advise and represent a suspect in a case alleged to involve "state secrets," Article 96 bars the suspect's lawyer from meeting with the suspect unless the authorities investigating the case grant the lawyer permission to do so. Article 152 of the CPL bars public access to trials "involving state secrets."

The Commission's 2009 Annual Report in Section II―Freedom of Expression provides analysis of the impediments to justice and the rule of law facilitated by China's vague laws on "state secrets." For example, a box titled Proposed Revision to State Secrets Law on p. 66 includes the following information.

  • In June 2009, the National People's Congress (NPC) Standing Committee reviewed a draft revision of the PRC Law on Guarding State Secrets (State Secrets Law) and the NPC released the draft for public comment, but the proposed changes do not address abuses that occur under the current state secrets legal framework. Currently, the broad and vague definition of ''state secrets'' in Chinese law and regulations gives officials wide latitude to declare almost any information a state secret.
  • [Police] can declare that a case involves state secrets to deny criminal defendants basic procedural rights, including access to counsel and an open trial. Citizens cannot challenge such a determination and officials may declare information a state secret retroactively.

The Tibetan writer Woeser assessed the allegation of "state secrets" violations in the cases of Konchog Tsephel and Kunga Tsayang in a November 27, 2009, Chinese-language blog entry that a Web site in Norway, Ny Tid (New Time), published in Norwegian on December 4 and in English on December 12.

During [2008's] "Tibet incident", [Konchog Tsephel and Kunga Tsayang] themselves witnessed how their fellow countrymen of their hometown determinedly took to the streets and voiced their opposition. The two writers revealed their aspirations and discussed facts on the internet, which then unexpectedly became the reason for them becoming criminals accused of jeopardising "state security" and revealing "state secrets". In other words, one could say that the country's action of using its power to suppress the violent behaviour of the opposing masses belongs to the category of secret which is often practiced but never spoken of.

See the Commission's 2009 Annual Report and Special Topic Paper: Tibet 2008-2009 for more information on the political imprisonment of Tibetans. See the 2009 Annual Report for more information on Chinese government use of "state secrets" provisions to undermine the rule of law. See the Commission's Political Prisoner Database for more information on Konchog Tsephel, Kunga Tsayang, and other political prisoners in China.