The Party is making continued efforts to consolidate its position above the law and reiterate demands for loyalty from legal professionals, while aggressively moving against more of those who remain defiant. The CCP’s pointedly extra-legal shuanggui internal detention system has long held a reputation for brutality and unaccountability. But the announcement of plans for its abolition and the introduction of new supervisory commissions at the 19th Party Congress last November prompted fear of still greater cooption of the legal system. As Human Rights Watch’s Sophie Richardson commented, "putting a veneer of legality on an extra-legal detention system makes it no less abusive."
After the end of the Congress’ second plenum last week, NYU law scholar Jerome Cohen voiced further opposition to the planned changes:
The anticipated Constitutional and legislative changes represent a huge setback for almost four decades of official, scholarly and professional efforts to establish a rule of law that will protect the rights of individuals in their dealings with the government and the Communist Party. [… P]rocurators, scholars and lawyers are plainly opposed to the changes for many other good reasons including the length of incommunicado detentions possible without any other check or restraint, the absence of access to counsel, the very broad scope of the conduct that can be punished, even going beyond the criminal law’s prohibitions to include alleged violations of Party discipline and public morality, and the very large numbers of people—far beyond only Party members—who will be subject to repression and fear.
These changes will create a nightmarish scenario that will counteract many of the genuine reforms to the criminal justice system that are being developed and currently discussed. Yet, after a courageous academic protest meeting drew harsh official reaction, no one has dared to speak out in a public way despite great hostility to the changes continuing to be expressed on a confidential basis.
[…] What is at stake here is the legitimacy of the country’s legal system in the eyes of the educated, articulate but currently silenced, influential elites. Political leaders, bureaucrats, business figures and their employees, prosecutors, judges, legislators, professors and especially lawyers have good reason to fear that they may be the next victims of a plainly arbitrary system. This is the Inquisition with Chinese characteristics! [Source]
At ChinaFile last week, UC Berkeley’s Stanley Lubman also examined opposition to the new law:
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 [shuanggui‘s replacement] “broadened the targets of the anti-corruption crackdown,” it “fueled fears of further abuse.”
[…] 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.
[…] 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. [Source]
Sadly, China’s procedural protections for detainees get narrower and narrower. History in reverse. https://t.co/UvWhDUM5TO
— Terry Halliday (@HallidayTerry) January 20, 2018
Authorities have only doubled down on their insistence that the legal sphere fall in line behind Party leadership, as The Diplomat’s Charlotte Gao describes, citing comments by Central Political and Legal Affairs Commission head Guo Shengkun at the Central Political and Legal Work Conference in Beijing this week.
Recently, China’s politics has seen a series significant developments that are directly or indirectly related to political and legal work, particularly to the CPLAC.
The most recent development is that the CCP has decided to add Xi Jinping Thought and the National Supervision Commission (NSC) — a centralized anti-corruption organ directly under the unified leadership of the Party — into China’s constitution, as The Diplomat has been following.
However, a large number of Chinese legal professionals — including Chen Guangzhong, 87, a leading jurist, former dean of the China University of Political Science and Law, and a pioneer widely regarded as “the father of China’s Criminal Procedure Law” — have come forward to voice their deep concerns over the NSC. They argued that the NSC — if established according to the early released draft of the National Supervision Law — will be granted supreme unchecked power (even above the Supreme People’s Court and the Supreme People’s Procuratorate) over all “public personnel” across the country.
Given that the CCP has made it clear multiple times that it will establish the NSC regardless, what the Party needs most now is absolute loyalty and absolute support from all the Chinese legal enforcement authorities mentioned above. [Source]
Meanwhile, concern continues to mount over the prospects for rule of law in Hong Kong, as Alvin Y.H. Cheung describes at ChinaFile.