Doubts Surround End of Abusive Shuanggui Detention

, or "dual designation," is an opaque and reportedly brutal system of secret operated by the Chinese ’s . State news agency Xinhua describes it as "an intra-party disciplinary practice that requires a CPC member under investigation to cooperate with questioning at a designated place and a designated time." Critics such as say that this "questioning" often involves "torture and other ill-treatment including beatings, prolonged sleep deprivation, and being forced to stand or maintain uncomfortable positions for hours or even days." According to HRW, at least 11 detainees are known to have died in custody since 2010. Although detainees are typically transferred to judicial organs for prosecution following internal investigation, shuanggui itself has no basis in national law, a fact that George Washington University law professor Donald Clarke has suggested "is deliberately sending a signal that the Party is and will remain above the law." Its brutality and lack of accountability have undermined the credibility of official pledges on rule of law and presented an obstacle to the negotiation of extradition treaties highly prized by Beijing. The system predates Xi Jinping’s signature corruption campaign, but previously attracted relatively little notice—in part, some rights advocates lamented, because its victims had previously been willing participants in the Party system. As Xi’s campaign mounted and the CCDI’s role grew broader and more prominent, however, its abuses became the subject of increased media scrutiny.

In his epic address at the opening of the on Wednesday, Xi announced that the system will be abolished, while reiterating his commitment to punishing and preventing official . Xi also described the role of the anticipated supervisory commissions that will extend official disciplinary machinery from the Party into the state apparatus.

The Communist Party of China will secure a sweeping victory in its fight against corruption to avoid the historical cycle of rise and fall.

The fight against corruption never ends and currently remains grave and complex. We must remain as firm as a rock in our resolve to build on the overwhelming momentum and secure a sweeping victory. Both those who take bribes and those who offer them will be punished and interest groups will be prevented from arising within the Party.

Wherever offenders may flee, they shall be brought back and brought to justice.

The CPC will work for the adoption of national anti-corruption and create a corruption reporting platform that covers both disciplinary inspection commissions and supervision agencies.

The CPC will enhance deterrence so that officials dare not commit corruption, strengthen the institutional cage so that they have no way to commit corruption, and raise their consciousness of staying away from corruption.

We will deepen reform of the national supervision system, conduct trials throughout the country, and establish supervisory commissions at the national, provincial, city, and county levels, which share offices and work together with the Party’s disciplinary inspection commissions. This will ensure that supervision covers everyone in the public sector who exercises public power. A national supervision law will be formulated. Supervisory commissions will be given responsibilities, powers, and means of investigation in accordance with law. The practice of “shuanggui” will be replaced by detention. […]

A more powerful synergy for oversight will be created by integrating intra-Party oversight with oversight by state organs, democratic oversight, judicial oversight, public oversight, and oversight through public opinion. [Source]

While shuanggui‘s abolition might seem a positive development, there is no guarantee that its replacement will correct its problems. The end in 2013 of re-education through labor, another extrajudicial detention system, offers a cautionary precedent: other forms of detention have simply been used as substitutes, sometimes in the same facilities as before. Human Rights Watch expressed concern that shuanggui‘s replacement will proceed similarly in a statement on Wednesday:

“If President Xi’s proposal means that detainees are not ill-treated, get to choose their lawyers, and otherwise have their rights respected, then this will indeed be a significant step forward,” said Sophie Richardson, China director at Human Rights Watch. “But if he is just proposing to replace one abusive detention system with another, it will be another setback for legal reform in China.”

[…] The liuzhi system mentioned by Xi is a new detention power of the soon to be created “super” anti-graft agency, the National Supervision Commission, which is slated to start work in March 2018. The agency will also consolidate graft-fighting powers currently vested in various government departments. It is also empowered to investigate anyone exercising public authority – including officials, managers in state-owned companies, and public school managers. The agency will share space and personnel with the CCDI.

Official articles suggest liuzhi will offer improvements: the system will be codified in law and subjected to stricter internal procedures; detainees will be given adequate food and rest; detentions will have time limits – three months, and, upon approval, another three months.

However, similar measures by the CCDI since the 1990s have not deterred abuses in the shuanggui system, Human Rights Watch said. There is no indication that those held under liuzhi will enjoy access to lawyers or redress mechanisms – two problems Human Rights Watch identified as facilitating serious rights violations in shuanggui. The draft State Supervision Law establishing the National Supervision Commission has not been made public; what little is known has raised concerns among Chinese human rights lawyers.

[…] “China’s top legislature should ensure that basic rights protections for detainees are included in the new legislation regulating liuzhi,” Richardson said. “Otherwise liuzhi may simply be the legal, but no less abusive, twin of shuanggui – and no more likely to succeed in deterring corruption.” [Source]

South China Morning Post’s Jun Mai suggested that deficiencies in legal representation for detainees will continue:

While Xi spoke on Wednesday of the desire to ensure that corruption was dealt with under the law, people suspected of graft will still not be allowed legal representation during investigations by the National Supervision Committee. This has already been shown to be the case in trial programmes run on a provincial level earlier in the year.

Lawyers and legal scholars have criticised the arrangement, saying that without the presence of proper representation investigations and interrogations remained open to abuse. [Source]

Continuation of shuanggui‘s abuses under a different banner on a firmer legal foundation would be consistent with a trend described by NYU legal scholar , in which "instead of practice gradually coming to conform to legislation, legislation is being revised to conform to practice." Even those protections and provisions that do appear on paper may well prove unreliable: Donald Clarke noted in a 2015 blog post on the Black Friday crackdown on rights lawyers that authorities routinely violated even the newly practice-conformed detention rules. "The law means so little to them," he wrote, "that they can’t be bothered to understand or follow it even when it would be easy to do so."

Elizabeth M. Lynch anticipated Xi’s announcement at China Law & Policy on Monday, telling readers to "expect the 19th Party Congress to signal the codification of the abuses of Xi’s anti-corruption campaign," and offering more detail on the establishment of the Supervision Commission.

Corruption is a serious problem in China and there might be an argument that bringing the anti-corruption campaign into a strong, unified government body will be good for transparency and legal protections for the suspects, something that is currently ignored by the CCDI. But the question remains – will codifying this campaign bring it out of the shadows of the CCDI or will it just bring more shadows to the law? It seems like the latter is the more likely outcome. First, even if the Supervision Commission were to follow the law, China’s Criminal Procedure Law (CPL) still allows the Commission to legally hold suspects incommunicado under “residential surveillance at a designated location” for six months without access to a lawyer. This is because the provisions of the CPL that the police currently use to do this to political activists under the guise of national security – Articles 37, 73 and 77 – apply where there are suspicions of “especially serious bribery.” In a way, the CCDI’s methods have already been codified – and are actively being used with little reprimand – in the current CPL.

And with Xi only consolidating his power further at the 19th Party Congress, don’t expect there to be any divergent voices – anyone who cares about the Party and the government being subject to the law – in the Supervision Commission. The Party-State being subject to the law is not really Xi’s thing. As if to demonstrate this further, this past weekend, the current head of the Ministry of Justice, Wu Aiying, was expelled from the Party. Who replaced her as Justice Minister? Zhang Jun, a former deputy chief of the CCDI. [Source]

In a ChinaFile Conversation on "what to watch" at the Congress on Sunday, meanwhile, Johns Hopkins University’s Ho-fung Hung highlighted other burning issues related to the corruption crackdown:

There are still challenges that could keep Xi awake at night after the Congress. Over the last five years, the purge in the name of anti-corruption has put many Party cadres in jail and sent some to mysterious deaths. Resentment of the campaign should be wide, if tacit. No one will be surprised if Xi fears that some of his rivals are waiting patiently for revenge once he steps down in five years. The rumor about Xi’s intention to find ways to stay in power beyond his next term is perfectly plausible. But without Mao’s achievement of leading the Party to power and Deng’s credential of ending the Cultural Revolution and bringing tens of thousands of persecuted cadres back into society, how can Xi stay on after his second term is up?

The other challenge is the question of Wang Qishan, Xi’s right-hand man in executing the anti-corruption campaign. One of the most important foundations of Chinese Communist Party. rule today is its control of the financial sector and the flow of credit. Wang Qishan’s command over the financial world, which he inherited from his mentor Zhu Rongji, is what enables him to undertake the anti-corruption purges with such success. If Wang retires in the Party Congress as many speculate he could, how could Xi continue the anti-corruption purge all by himself? Who else can he count on? If Wang stays on, will it mean that Xi still does not have direct command of finance and has to reluctantly depend on Wang? [Source]