Draft Disciplinary Law Issued; Abuse Fears Raised

This week, Chinese authorities released for public consultation a draft of the new Supervision Law, which will mark a new phase in crusades against official and for political unity. (An unofficial English translation is available at China Law Translate.) The law provides legal foundation for disciplinary machinery, establishing new national and regional commissions to investigate, detain, and punish a wider range of public employees for legal, ethical, or ideological violations before potentially passing their cases on for criminal prosecution. As Xi Jinping announced at the recent 19th Party Congress, the law will replace the notoriously brutal 双规, or "dual designation" detention system, with a new liuzhi 留置 "retention in custody" regime that promises to address some of its predecessors’ shortcomings. Many remain skeptical. From Xinhua:

The new detention system will safeguard the rights of those under investigation with several measures.

[…] In January, China started a pilot for the new supervision system in Beijing, as well as Shanxi and Zhejiang provinces, including establishing supervisory commissions and practicing the new detention system.

The pilot has had strong results. And the reform ensures that supervision covers everyone in the public sector who holds power.

In the first eight months of the year, a total of 183 people were detained by supervision commissions in the three pilot areas.

Since the reform, the number of people under supervision rose from 210,000 to 997,000 in Beijing, from 785,000 to 1.315 million in Shanxi, and from 383,000 to 701,000 in Zhejiang. [Source]

Sixth Tone’s Matthew Walsh reported some domestic reactions to the draft law:

Several domestic legal experts have expressed concern that the does not go far enough. In an interview with financial news website Caijing, Chen Guangzhong, an influential legal expert and a professor at the China University of Political Science and Law in Beijing, suggested that any supervisory authority should permit detainees to see a lawyer, guarantee their human rights, and ensure a fair legal process. Other Chinese jurists have questioned whether the is constitutional, and why it has not been integrated into criminal procedure.

Yet still others are optimistic. Li Yongzhong, an anti-corruption scholar and former vice-president of the China Academy of and Supervision, an academic research institution associated with the CCDI, called the draft “a breakthrough moment for systemic political reform that has lain silent for many years.” He said the draft signaled an abandonment of the Soviet model on which shuanggui was based, increasing the efficiency of the government’s anti-corruption and supervision work.

“It both protects those handling the case, ensuring they carry out their duties via rule of law … and gives more protection to suspects than shuanggui, because [the new system] carries more specific regulations,” Li told Sixth Tone. [Source]

Yale Law School’s Jeremy Daum offered his initial thoughts on the draft at China Law Translate, commenting that "translation of [监察] as ‘Supervision’ understates the importance of this new institution."

China’s creation of supervision committees under the new draft Supervision Law is such a big change to the structure of China’s government, that many argue it should require a constitutional amendment. The system essentially creates a new branch of government power that has been portrayed alternatively as bringing the Party anti-corruption process out of the shadows, and casting new shadows over the entire state .

Thus far, China’s anti-corruption campaign has primarily relied on the Intra- and inspection system to weed out officials who abuse public office, including the secretive detention system known as shuanggui (pronounced shwahng-gway). ‘Intra-party’ here is a polite way of saying ‘extra-legal’ as there is no legal basis for the procedure, nor is it subject to the normal constraints on criminal investigations.

[…] In one sense, the creation of a new government body for auditing the use of state power could be seen as abandoning the secretive Party mechanisms, in favor of the more transparent, if far from perfect state legal system. Reviewing the draft Supervision Law, however, it seems much more likely that this new system will integrate and codify some of the most questionable Party practices into the government system instead, applying them to a greater number of state employees. What is really being abolished may be the pretense of separation of Party and State. [Source]

Daum goes on to break down some of the draft’s key points, including details of the liuzhi detention system. These include the possibility of up to six months’ detention during investigation even of only minor offenses punishable by much shorter incarceration, and the "troublesome" use of locations away from more regulated criminal detention facilities. He also discusses the draft’s context: a "tremendous" program of legal reforms which, however, "are not designed to constrain the Communist Party’s power, but to reinforce the legitimacy of Party rule by creating more complete and effective mechanisms for the implementation of Party policy."

Part of this scheme is the "codifying of existing practices"; as NYU legal scholar Jerome Cohen has written, "instead of practice gradually coming to conform to legislation, legislation is being revised to conform to practice" with "a comprehensive legislative agenda designed to confirm China as a de facto garrison state." Before the 19th Congress, China Law & Policy’s Elizabeth M. Lynch predicted that it would see "the codification of the abuses of Xi’s anti-corruption campaign." Afterwards, Human Rights Watch warned that the result of shuanggui‘s abolition might simply be "to replace one abusive detention system with another."

HRW’s response to the draft law, urging substantial revisions to guarantee fair proceedings and effective legal representation, reiterated this point:

Liuzhi will, at least on paper, offer some improvements over shuanggui. Under the draft law, liuzhi will be codified and subjected to stricter internal procedures; detentions will have time limits – three months, and, upon approval, another three months; families will be notified within 24 hours; and interrogations will be videotaped.

But these limited measures are unlikely to deter abuses. While interrogators will now be required to videotape the interrogations, they are not obligated to disclose them to the detainees, making it difficult to seek accountability. The requirement that family members be notified comes with the caveat that such notification can be waived if it “impedes investigation.”

[…] “Putting a veneer of legality on an extra-legal detention system makes it no less abusive,” Richardson said. “The Chinese government claims that the draft law shows it’s committed to the rule of law, but if that were true it would abolish liuzhi and shuanggui, and investigate and prosecute corruption through a state-run, rights-respecting justice system.” [Source]

Addressing such concerns could produce tangible benefits for China by removing barriers to extradition deals and facilitating the return of corruption suspects overseas. The current obstacles are highlighted in a ChinaFile essay by Seton Hall University’s Margaret Lewis, who advocates a renewed focus on human rights in U.S. policy:

The United States and China are both parties to the Convention against and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that member states not transfer a person to a country “where there are substantial grounds for believing that he would be in danger of being subjected to .” A case-by-case analysis is needed to confirm that each repatriation meets at least these minimal standards—an inquiry complicated by the opacity of China’s criminal justice system and its Party disciplinary process.

The United States also has ratified the International Covenant on Civil and Political Rights, which provides that defendants in criminal cases “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The United States should not limit this requirement to within its own borders. Indeed, during the Obama administration, the State Department stated as a prerequisite to negotiating an treaty with China that the U.S. “must be satisfied that an individual extradited from the United States to another country would receive a fair trial . . . ” There is still no U.S.-China treaty despite China’s requests, thus necessitating use of other legal channels for repatriation. [Source]

In a 2016 interview with CDT on the public consultation process through which the Supervision Law is now passing, George Washington University’s Steven J. Balla noted that "such instruments serve merely to provide a veneer of popular legitimacy to decisions that government officials have already made behind closed doors. […] Given that online consultation derives from the CCP’s quest for legitimacy and durability, it is inherently limited as a means of governance reform." Nevertheless, "despite limitations in scope and purpose, online consultation has demonstrated its promise in enhancing transparency in government decision making and shaping policy outcomes, at least under certain circumstances."

In the meantime, the Party’s continues its work against corruption and ideological deviation. On Wednesday, it announced the punishment of two Party members for bringing home and distributing books "which distorted the history of the People’s Liberation Army and defamed some former leaders in China" from abroad. The CCDI newspaper reporting the news emphasized that "upholding Party political discipline is an important basis for being faithful to all the regulations and disciplines. The essence of obeying political disciplines is to uphold Party leadership, be absolutely loyal to the Party, maintain a high degree of consistency with the CPC Central Committee, safeguard the unity and unification of the Party and uphold the authority of the Party Central Committee."