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China’s Leaders Are Poised to Strike a Blow to Its Legal System

President Xi Jinping has escalated China’s war on corruption with a proposed new law that would expand the reach of the Chinese Communist Party in an unprecedented manner. Under current law, two formally separate entities deal with cases of corruption: A Party Commission that focuses on illegal and improper conduct by Party members, and China’s judicial system and state agencies which handle corruption cases for everyone else.

The new law, which Xi announced in 2017, could go into effect as early as March 2018 and will be debated over the next two days at the Second Plenum of the Communist Party’s Central Committee, which began yesterday. If it is enacted, the law will create one organization, a hierarchy of “Supervision Commissions,” to investigate and punish extra-legally, unregulated by laws on criminal procedure, not only Party members, but also many millions of non-Party-members who work as state employees across a wide range of professions and positions.

All nations use law to implement policy. In nations that adopt the rule of law it is the supreme authority, but in China Party policy can take precedence.

Adoption of the new law would mark a significant departure from the separation between the Party and the justice system, which has existed since the creation of the People’s Republic of China in 1949. It would shift a portion of prosecutorial authority away from the country’s prosecutor’s offices or Procuratorates (which are part of China’s justice system) to Party organs unbound by the law, giving the Party new powers to punish Chinese citizens outside the formal legal system.

Currently, Party members suspected of corrupt conduct are investigated by the Party’s Central Commission for Discipline Inspection (CCDI) and frequently detained extra-legally. If after investigation they are found guilty (many confess), local Party Inspection commissions decide whether to expel them from the Party and hand them over to the government for criminal prosecution or other punishment.

Under current law and practice, criminal bribery cases by non-Party members are investigated by the police and Procuratorates, and tried by the courts. Commercial bribery cases are investigated by the Antimonopoly Bureau and the Unfair Competition Bureau of the State Administration of Commerce (SAIC), which may impose administrative penalties or refer cases to the police or Procuratorate for criminal prosecution.

Before final review and vote by the National People’s Congress (NPC), the draft law will be deliberated. The NPC will then debate an amendment to the Chinese Constitution granting constitutional status to the new Supervision Commissions. The Constitution is involved because the new law represents a novel blending of state and Party institutions which at present are, at least formally, separate from one another.

The new law will establish these main changes:

  1. As described by Jeremy Daum for China Law Translate, the new Commissions will investigate “illegal and criminal misconduct” by any state employees, including not only government employees but managers of state-owned enterprises and “Personnel engaged in management in public education, scientific research, culture, health care, sports and other such units” as well as “Personnel engaged in collective affairs management at basic-level mass autonomous organizations.”
  2. All illegal conduct and offenses under criminal law previously investigated by the Procuratorate will be investigated by the Supervision Commissions and then, if criminal conduct is found, are to be handed over to the Procuratorate for prosecution. The Commissions will have powers like those of the police and Procuratorate, without being restrained by many protections provided by the Law on Criminal Procedure.
  3. The Commissions will also have the power to recommend improvements in performance, and will be able to hold leadership accountable for problems.

Under current practice, any member of the Party may be detained for investigation to account for allegedly ill-gotten gains at a “designated location at a designated time”; the system is known as shuanggui, or “double designation.” According to a 2016 report by Human Rights Watch, those summoned are often deprived of liberty for days, weeks, or months, during which time they are repeatedly interrogated and often tortured. Typically, this “ends when the official confesses to corruption or other alleged disciplinary violations.” Then, in many cases, the subject of the interrogation is stripped of his or her Party affiliation and the case is generally transferred to the criminal justice system for prosecution.

The proposed new system, known as liuzhi (“detention in place” or “retention in custody”), would formally authorize extra-legal detention not only of 88 million Party members but also anyone who receives a salary from the government, a group of people that includes many millions of “public servants,” not only government officials but managers in state-owned enterprises and people who work in a wide range of state-affiliated institutions. This form of detention would apply in “major or complicated” cases or in which flight or suicide, concealment or destruction of evidence, or other obstruction of investigation might occur. The Commissions would not be subject to the Criminal Procedure Law, which applies to operations of the police, prosecutors, and courts.

Jiang Ming’an, a professor at Peking University Law School, explained to the South China Morning Post that restricting detainees’ legal representation was intended to compensate for the difficulty of collecting evidence in corruption cases. “These cases are heavily dependent on the suspect’s confession,” Jiang said. “If he remains silent under the advice of a lawyer, it would be very hard to crack the case.” But he also cautioned, as the Post put it, that because liuzhi “broadened the targets of the anti-corruption crackdown,” it “fueled fears of further abuse.”

The problems inherent in the adoption of the new extra-legal system are made very clear by an official CCDI statement, that:

The Party’s leadership and the socialist rule of law are in complete accord. We must avoid falling into “the trap of the law” [and] “the trap of democracy”; we can never place the two in opposition to one another, and in stressing the rule of law, avoid all mention of the leadership of the Party. For the Party’s leadership to persist, we must show our colors, remain firm in our position, and absolutely not equivocate or fail to speak clearly.

It remains to be seen how broadly the new law, if implemented, will be applied in practice to non-Party state employees. This was possible in practice before the draft appeared, but the new law’s applicability to them may increase the number of cases in which rules against corrupt or otherwise unethical conduct may be found to have been violated.

Notably, in these days of increased repression of dissent, prominent law professors have criticized the proposed Supervision Commissions publicly for not honoring the Party’s oft-intoned commitment to the rule of law. One professor, speaking at a meeting of legal scholars, declared that “the powers of the supervision commission would be too broad, and it lacks official checks on its power.”

Such open criticism is most significant because it comes at a time when the repression of criticism of Party-state policy is strong and increasing. Lawyers representing activists are already punished for vaguely defined offenses such as “inciting ethnic hatred” and “picking quarrels.” The professors who have spoken out put themselves personally at risk for challenging the most recent manipulation of the law.

Only the Party can initiate the formal three-step legislative process required under the Constitution to bring the law into force, and it has already decided to proceed. After the period for public comment expired, on December 27 the Politburo announced it would convene the Second Plenum of the 19th Central Committee of the Party in January 2018. The principal item on the agenda for that meeting is discussion of proposals for amending the Chinese Constitution. The formal legislative process begins after the Central Committee decides on those proposals.

The Central Committee would submit the proposed amendments to the State Council and then, after discussion, they would be submitted to the NPC, together with the proposed Supervision Law, probably in early March. The NPC would then deliberate and adopt the proposed amendments. Changes other than “minimal” are not expected.

We can only speculate that some erosion of the criminal justice system is likely. Until the text of the new law is adopted, its applications beyond the scope of current separation of law-related state and Party functions cannot be predicted. This law imposes increased extra-legality and tighter control on Chinese society, which suggests the existence of a very high level of anxiety within the highest levels of the Party leadership about social unrest in Chinese society. It also echoes once again the recurrent emphasis in Party policy on reaffirming both Xi Jinping’s central role in leading nation and Party—as well as a continuing tendency toward harsh repression that has marked his dominance.