China’s Anticorruption System 2.0: A Harbinger of Rule of Law?

In his three-and-a-half-hour speech at China’s 19th Party Congress last month, President Xi Jinping demonstrated his determination to maintain his vigorous anticorruption campaign. But he also proposed a number of significant changes, including (1) the creation of a new National Supervision Commission (NSC), along with supervision commissions (SCs) at the provincial, municipal, and county levels, to spearhead China’s anticorruption efforts, (2) the adoption of new national legislation, the Supervision Law, that includes improved procedural protections for the accused, and (3) the integration of China’s obligations under international anticorruption treaties into domestic law.

For the most part, Western commentators were unimpressed (for example, see Tom’s previous post). The establishment of the NSC was characterized as “essentially another power expansion of the Central Commission for Discipline Inspection (CCDI),” while the reforms related to protections for the accused were seen as little more than the “replace[ment of] one abusive detention system with another.” I beg to differ. This reform plan, while incomplete and inadequate in some respects, is a big step forward from where China stands now. While it would be a mistake to be overly optimistic before any positive change actually takes place, it would also be a mistake to dismiss these new reforms out of hand as insignificant or cosmetic. Any movement toward greater judicialization and respect for the rule of law in China is likely to be incremental and face pushback. Understood in that context, the three announced reforms noted above seem quite significant, and mark a notable break with China’s previous approach to anticorruption enforcement.

  • First, consider the NSC, the proposed new “super anticorruption institution,” based on recent pilot programs implemented in three municipalities/provinces. In contrast to the Central Commission on Discipline Inspection (CCDI), which was an internal Chinese Communist Party body, the NSC will be a new state organ positioned on the same level as the State Council and the State Military Commission, and will have jurisdiction over all public servants regardless of their party membership. The NSC will integrate the existing anticorruption functions of the CCDI and the government. Of course, the NSC’s sweeping power inevitably raises concerns, including the worry that the NSC’s real purpose is to further concentrate power in President Xi (though unsurprisingly, Chinese officials have denied this). Yet even if these concerns were warranted, there are nonetheless significant benefits to greater institutionalization. The creation of NSC will harmonize and consolidate the plethora of standards and practices used in the anticorruption campaign at the local level, and will substantially decrease the arbitrary intervention of local party leaders. Past research (see here and here) has attributed many of the problems in the ongoing anticorruption efforts and the failings of the CCDI to structural weaknesses, in particular local party leaders’ constant interference with local-level implementation of the anticorruption campaign, and undue influence over local anticorruption agencies by the party agencies they are responsible for supervising. By forming a state organ, local party influence over anticorruption enforcement will be weakened. Since the NSC will apply same standards of treatment to both party and non-party members, inappropriate interference as well as inconsistent and arbitrary enforcement will be considerably curtailed.
  • The draft Supervision Law, to be voted on this coming March, is—despite its shortcomings—a remarkable move for China. The fact that the anticorruption campaign is given the status of law is an important milestone on China’s road to judicialization. To address issues through legal rather than extra-legal means will not only make a difference in how the general public perceives the system, enhancing its legitimacy, but also will influence the mentality and habits of public servants, engendering respect for law in a society where people have usually regarded law as subordinate to politics. Commentators who are concerned with the political motives behind the NSC’s creation and its sweeping powers should feel reassured by the draft Supervision Law, which, among other things, limits the discretionary power of the enforcement authorities (principally the NSC), and partly (though admittedly not completely) clarifies the division of labor between the NSC and the People’s Procuratorate.
  • Perhaps most notably, the draft Supervision Law includes improved procedural protections for suspects’ rights. Article 42 explicitly requires a complete and stable chain of evidence with corroboration and that the collection of evidence free from threats, enticement, fraud, and other illegal means. It also explicitly prohibits berating, beating, abusing, and direct or covert corporal punishment of the accused during interrogation. As a case in point, the current intraparty anticorruption disciplinary measure is called shuanggui, which is an acronym for “being investigated and interrogated at a designated time and the designated site.” Shuanggui, carried out by the CCDI, has been criticized for lacking any basis in national law, and for the torture and other human rights abuses during such detention. The new draft law replaces shanggui with a new procedure called liuzhi, grounded in Article 9 of the People’s Police Law of the People’s Republic of China, which allows the police to hold up an individual accused or suspected of a criminal offense for further interrogation upon approval of a public security organ after initial interrogation on the scene. The new draft law only allows four scenarios for such detainment: when the case is major or complicated, when the suspects are likely to flee or commit suicide, when they are likely to collude or to fabricate, destroy, transfer, or conceal evidence, and when they are likely to obstruct the investigation through other conduct. The draft law further imposes additional protections for those subjected to liuzhi. For example, the detainee must be provided sufficient food, drink, rest, and medical care when necessary; family of the detainees must be notified within 24 hours; interrogations will be videotaped; and detainment pursuant to liuzhi may not exceed three months absent extraordinary circumstances, and even then detainment can be extended only for another three months. There are, to be sure, still major deficiencies in the new system, chief among them the fact that corruption suspects may still not be able to get access to lawyers during the investigation phase. Nevertheless, the new draft law is a valuable step toward an investigative system that respects the rule of law and human rights, and lends ammunition to human rights activists and criminal justice organizations to resist and respond to Chinese government’s meta-arguments, such as the enforcement of certain measures are not proscribed in law, or that the CCP enjoys full discretion in proportioning the punishment to the offense.
  • China has always been resistant to any sign of foreign influence or meddling, and President Xi’s speech at the Party Congress once again cautioned that China should not “copy Western-Style democracy.” Yet the Supervision Law nonetheless includes a new chapter dealing specifically with international cooperation against corruption. This chapter emphasizes NSC’s role in building anticorruption capacities in different agencies, and in strengthening “extradition, judicial assistance, custody transfer of sentenced persons, asset recovery and information exchanges” in accordance with the United Nations Convention Against Corruption (UNCAC). This should be viewed together with the recent participation of Chinese delegation in the Conference of the State Parties to the UNCAC, where a member of the Standing Committee of the CCDI, Cui Peng, delivered a speech that praised UNCAC’s role in promoting international cooperation to fight corruption, and appealed to the international community to stick to three principles: “zero tolerance,” “zero loopholes,“ and “zero obstacles.” Inserting a chapter of international cooperation into the law and actively participating in international anticorruption conferences showcase China’s efforts to comply with UNCAC’s requirements and absorb UNCAC’s standards into domestic law.

Despite the important progress described above, I see at least two loopholes need to be urgently addressed:

  • For one, the new law should explicitly clarify the relationship between the NSC/SCs and the party disciplinary commissions, if they ever continue to exist. The single line in the “pilot plan” that they will “share government offices” (he shu ban gong) only muddles the situation. This distinction is crucial as the major purpose of creating SCs is to move anticorruption authority out of the CCP.
  • A better institutional design is needed to keep the NSC/SCs in check. A possible option is the People’s Procuratorate, which could function as a gatekeeper to ensure there is no abuse or violation when NSC/SCs collect evidence or conduct interrogations. But supervision of the NSC/SCs should be broader, and neither self-supervision nor supervision by the National People’s Congress (NPC) is enough. For example, judicial review should be allowed when the accused disagrees with the decisions of the NSC/SCs or when there are procedural violations. The draft law so far only allows the accused to file complaints to the NSC/SCs, but a better protection of individual rights calls for a legal recourse in the form of appeals.

Despite its limitations, these reforms to China’s anticorruption system are positive steps. We should have some faith that this reform is more than “legislation… being revised to confirm to practice”, and the legal community in China and beyond should vigorously push for improvement of the draft law before the 13th National People Congress inaugurated next year.

7 thoughts on “China’s Anticorruption System 2.0: A Harbinger of Rule of Law?

  1. Thanks for this detailed post Helen. Could you shed some more light on the Procuratorate Office and how that could help as a gatekeeper? Also, are there other Chinese statutes with similar international obligations in the text? If so, has that affected how the law has worked on the international plane?

    • Thanks for your comments, Abhinav! As to the first question, the power to prosecute still lies with the Procuratorate Office (PO); the NSC/SCs are only allowed to conduct corruption investigations and they would have to hand over the case to the PO. Hence the PO would have the first-hand opportunity to evaluate whether the NSC/SCs have conformed to the procedural requirements under the Supervisory Law, or whether there are abuses of power or potential violation of human rights.

      As regards inserting chapter of international cooperation into the law, there are two ways that China absorbing international obligations into its domestic law, either by promulgating new legislation or amending the current ones. Other statutes and laws do mention obligations such as international cooperation, but they are relatively short, vague and do not spell out specific duties. Supervisory Law, on the other hand, emphasizes on conformity with the UNCAC and specifies the areas of international cooperation including extradition, judicial assistance, custody transfer of sentenced persons, asset recovery, and information exchanges, provides the enforcement authority with specific tools (such as freezing, seizing, confiscating the assets), and mandates that NSC/SCs eliminate the institutional barriers in the way. Hence this development echoes with the UNCAC and (hopefully) will facilitate China’s compliance with its international legal obligations.

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  3. I have to put in a plug for Hong Kong since the supervisory mechanism is pretty clearly modeled after the Independent Commission Against Corruption in Hong Kong.

    I should point out the the international cooperation parts of the draft law are an important reason why the Chinese government is moving these functions from Party organs to State organs. The problem is that foreign government simply cannot cooperate with party organizations but must cooperate with institutions of the Chinese state. It would be simply impossible for law enforcement in say the United States to cooperate with an organ of the Communist Party, whereas such cooperation would be possible only with an institution of the Chinese state. There is a huge amount of anti-corruption which would involve exchange of financial data, and this is possible only via state-to-state coordination and would be impossible to do with an institute of the Communist Party.

    I have heard of one instance in which an official was “shuang gui’ed” where upon he immediately presented a US passport and revealed that he had been naturalized. The Chinese authorities at that point had no choice but to immediately deport him to the United States. The problem is that the United States would be extremely upset if a US citizen were detained by the Communist Party, whereas detention by an institution of the Chinese state would be handled through normal channels.

    • Thanks for pointing out one of the possible motives that a chapter on international cooperation is inserted into the new law. China has spent great efforts trying to retrieve the fugitives and suspects of corruption allegations from overseas but the results turned to be less than satisfying, exactly because of what you mentioned.
      I suggest we focus on how this piece of legislation would lead to more fugitives get arrested and convicted – which is a great thing despite the motives – and how it would be conducive for China to carrying out its anticorruption obligations under the UNCAC.

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