This is an abridgment of an essay published in Social Research, Vol. 86, No. 1, Spring 2019.
Attempting to assess the state of law and government in any nation is hazardous, since reality is usually messy and contradictory, and surely this is the situation in contemporary China. We must be fully aware that the People’s Republic of China (PRC) — an increasingly oppressive Marxist-Leninist dictatorship — denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.
In 2014, the fourth plenary session of the Chinese Communist Party’s eighteenth Central Committee, in unprecedented fashion, devoted itself to stressing the importance of the rule of law (fazhi). Moreover, Party general secretary Xi Jinping on many occasions has admonished the administrators of the judicial system to strive to respect the Constitution and legislation, and to render justice in every case. Yet, at the same time, Xi Jinping and the current leaders of Chinese legal institutions, including the judiciary, have relentlessly emphasized that the legal system, as well as the government, the legislature, the media, and all social and economic organizations, must always operate under the Party’s strict control.
The amendments to the Chinese Constitution that were adopted in early 2018 vividly illustrate both trends. On the one hand, the existing commitment to “improve the socialist legal system” was replaced by a commitment to “improve the socialist rule of law.” All state employees were required for the first time to take an oath to support the Constitution, and the name of the Law Committee of the National People’s Congress (NPC) was changed to the “Constitution and Law Committee.” On the other hand, other amendments made central the Constitutional assertion of the absolute domination of the Chinese Communist Party over all government institutions. This was made shockingly clear to the country and even to the Party elite by a surprise amendment that eliminated the previous restriction limiting China’s president and vice president to two successive five-year terms in office. This has made possible the life tenure of President Xi Jinping, the Party’s undisputed and all-powerful leader, assuring his continuing control over the government as well as the Party.
To consolidate the Party’s and Xi’s absolute domination not only of the government but also of all facets of society, perhaps the most significant constitutional amendment established a new branch of government — the National Supervision Commission (NSC) and lower supervision commissions at every level of government with awesome powers to investigate and detain public officials, both Party and non-Party members.
Nevertheless, despite this very hostile political and ideological environment, apart from the constitutional amendments mentioned above, quite a few legislative and judicial reforms continue to take place, at least on paper and sometimes in practice. Both the National People’s Congress and the Supreme People’s Court have improved the norms regulating many areas, including criminal justice, as well as civil, economic and administrative law and procedure.
Police Distortion of Legislative Attempts to Curb Their Power
The police have continued to demonstrate their mastery of the art of distorting legislative attempts to curb their arbitrary powers. They have long known how in practice to transform narrow exceptions to rules designed to restrain them into previously unimagined broad mandates of their authority. For example, the 2012 CPL provides that, in most cases after detaining a suspect, the police must apply for prosecutorial approval of arrest of the detained person within three days. Certain exceptions allow the police to take up to seven days before submitting their application, and only in three very specific instances — the proposed arrest of “a major suspect involved in crimes committed from one place to another, repeatedly, or in a gang” — are the police allowed up to 30 days (Criminal Procedure Law Part 1, Ch. VI, Art. 89). Nevertheless, they routinely allow themselves 30 days whenever they choose, regardless of the circumstances of the case, and are never successfully challenged on this gross distortion of legislative intent. The police took similar liberties with the detention time limits in previous versions of the CPL.
What is more distinctive and even more disturbing is the interpretation police have given to the 2012 CPL’s previously mentioned new provision authorizing them, in only three situations — cases of suspected violations involving national security, terrorism, or major bribery — to inflict “residential surveillance” in a police-designated incommunicado location on suspects for up to six months (RSDL) before deciding whether to treat them in accordance with the detention time limits prescribed for ordinary criminal cases (Criminal Procedure Law Part I, Ch. VI, Art. 74 and 77).
Indeed, it seems that, without announcing the practice, the police, in some cases that they regard as unusually important or difficult, may repeat the initial extraordinary six-month detention and give certain suspects, including some Chinese human rights lawyers as well as their clients, one or more additional terms of RSDL.
Thus, RSDL can be manipulated to deny detainees even the protection of the distorted 30-day pre-arrest detention “rule” applicable to most criminal cases. Because of the Party-backed political power enjoyed by the police, there appears to be no way in practice for suspects, their lawyers, or others effectively to challenge such official distortions, either through the Procuracy, the courts, the media, nongovernmental organizations, or the Party.
Expansion of the Party Detention System to Impose Criminal Punishment on Officials
One might think that the all-powerful police described above would meet the needs of even the most dictatorial government to impose its will upon its people. Yet there now is even more potential for arbitrary detention because of the unprecedented innovation in the Chinese criminal justice system wrought by the Xi Jinping administration when, as mentioned above, in early 2018 it directed the National People’s Congress first to adopt a constitutional amendment establishing the National Supervision Commission (NSC)system and then a statute outlining its nature, functions, procedures and powers. This novel institution, unknown in the Soviet Union or until now in any of the countries that imported the Soviet model of a legal system, may well become the most sinister formal legal instrument in the PRC’s 70-year history.
The 90 million members of the Communist Party have long been subjected to a special type of lawless informal punishment — the dreaded “shuanggui ” or “double designation” — an order to appear at a time and place designated by the Party. Well over a million Party members suspected of corruption or other violations of broadly-conceived “Party discipline” have been notified to appear before local Party “discipline and inspection” commissions that have served under the Central Party Discipline and Inspection Commission in Beijing and that have been empowered by the Party to indefinitely confine Party members incommunicado in secret Party — not government — facilities. There, for as much as a year or two, the detained members have undergone investigation and have been interrogated by various methods that have often included torture of one kind or other until their captors decided what to do with them. Many detained members, after being deprived of their Party membership and government positions, have eventually been handed over to the formal criminal justice system for prosecution, trial, conviction and sentencing to prison, and confiscation of allegedly ill-gained assets. Many more have instead received administrative or other punishments that have included loss of government and Party jobs and Party membership as well as confiscation of assets. So feared has been this secret process of indeterminate length that some who have been summoned have committed suicide rather than endure it (see Sapio 2008 for an overview of shuanggui).
Although purportedly conducted in accordance with Party rules but without any government legal authorization, in practice the shuanggui system has failed to provide its targets with any of the protections against arbitrary action found, at least in principle if not in practice, in the Criminal Procedure Law. Thus, it has been widely condemned not only by foreign critics but also by many scholars, officials, lawyers, and human rights advocates within China. This condemnation seems to be reflected in the recent Constitutional amendment creating the central National Supervision Commission (NSC); it is also reflected in legislation aiming to give the process of punishing Party members — and now many others as well — a veneer of legality by placing it, at least nominally, in the hands of the NSC.
Many of the personnel recruited by this new institution have served until now with the existing Party discipline and inspection commissions, while others have been employed in the Central Government’s Ministry of Supervision or under it at provincial and local levels. The Ministry of Supervision has long been the government face of the Party’s Central Discipline and Inspection Commission, and its officials have often shared quarters and worked with the Party discipline and inspection commissions, with many government officials actually wearing a second Party “hat.”
What appears to be especially significant in the new arrangement is that large numbers of prosecutors, particularly those charged with dealing with corruption, have been transferred from the Procuracy to the various levels of “supervisory commissions” to assist in the investigation and handling of cases. What these prosecutors currently do and how their new work at the supervisory commissions relates to the work of their former colleagues when cases are forwarded to the Procuracy for prosecution is only one of many fascinating and important questions raised by the new arrangement.
Presumably, if a supervisory commission decides that a Party member or other official under investigation deserves criminal punishment, the file will be transferred to the Procuracy, as has long been customary with the discipline inspection commissions. This will present the same question that the customary Party procedure has presented — one that has been obscured from public view and that Chinese officials have declined to answer when I have asked them. Does the Procuracy simply accept and make full use of the evidence compiled by supervisory investigators including their former colleagues? Or does it independently review that evidence and the legality of the measures used to obtain the evidence, including possible torture and illegal search and seizure? Or, much less likely, for purposes of determining whether prosecution should be brought, does it simply ignore the supervisory dossier and start the interrogation and investigation process all over again? For example, if the Procuracy is allowed to choose the middle option rather than merely accept the supervisory commission’s evidence and recommendation to arrest and indict the suspect, must it, in considering whether to approve arrest and indictment, exclude confessions coerced in the course of the commission’s detention of the suspect?
Perhaps even more crucial than the issue of the power of the supervisory commissions to influence the decisions of the Procuracy and, at least indirectly, the decisions of the trial court are the issues involving their power to detain suspects. How different is their power compared to the virtually unfettered power exercised by the Party discipline and inspection commissions? The NPC’s authorizing legislation for the NSC system uses a relatively novel term to describe the commissions’ power to confine suspects — “liuzhi.” Nevertheless, liuzhi, like terms more commonly used, also seems to mean detention, but as described and limited by the authorizing law. Although the new law fails to provide much guidance, it does make clear that the detention is to be restricted in time to a period of six months. It also very importantly authorizes the commissions to investigate, detain, and make recommendations about not only Party members but also anyone who exercises some type of government or public responsibility. This represents a potentially vast expansion of the use of this powerful weapon of the Party-state.
Although the NSC, like the State Council, the Procuracy, and the Supreme People’s Court, is required by the Constitution to report to the NPC, as well as have its leadership formally appointed and removed by the NPC, its powers to investigate and detain all government and public officials, including members of the NPC, may make it the Party’s most powerful governing instrument. Presumably the NSC, which is plainly subject to Party control, will in reality only be accountable to the Party leadership and not to any government institution, even the NPC. Whether this momentous innovation will enhance good governance by including desirable new legal restraints upon the imposition of administrative punishments or whether it will in effect entrench and expand the existing Party punishment system under the fig leaf of government action remains to be seen, but it is unlikely that in substance rather than appearance it will significantly restrain the Party’s capacity to exercise arbitrary power.
This returns us to the broader question, raised above, with regard to the success of the police in distorting and minimizing reforms prescribed by the legislature. Will the Party and the formal legal system that it dominates implement in practice some of the most meaningful reforms to which it has committed itself on paper — whether the reforms concern administrative detention or efforts such as those to expand the participation of the masses in the administration of justice, to boost the competence and status of the judiciary, or to reduce the number of wrongful convictions?
The biggest obstacle to genuine progress toward the rule of law today in China may be ideological — the absence of agreed ideals, goals, and principles to guide the formulation and implementation of legal norms. Perhaps it would be more accurate to say that there is currently considerable conflict and confusion over these matters in official Chinese circles. For over thirty years, prior to the ascent of Xi Jinping in 2012, Chinese judges, prosecutors, lawyers, legislators, officials, law professors, and even police were, by and large, increasingly educated to respect Western legal values that, since the end of World War II, have gradually become universal.
More recently, even while purporting to endorse the Constitution, the rule of law and the importance of achieving fairness and justice in every case, Xi Jinping and the Party have periodically denounced international legal values. They have condemned constitutionalism, the separation of powers, judicial independence, and the critical role of human rights lawyers, while preaching and practicing the absolute domination of the Party.
Yet Party domination has thus far failed to provide an adequate replacement for universal legal values. The old Soviet justifications of Party rule have lost their persuasive force in China as elsewhere. Moreover, intermittent attempts by Xi Jinping and his comrades to invoke China’s ancient legal traditions in order to fill the void with nationalist pride have not won acceptance. The hoary maxims of Confucianist humanism, until recently denounced by the Party as pernicious feudalism but now revived by Beijing, evidently do not meet the felt needs of the contemporary Chinese legal community. And Xi Jinping’s occasional invocation of Confucianism’s greatest opponent — the notorious Legalist philosophy of government that featured dictatorial rule by harsh application of law during China’s first imperial dynasty over two thousand years ago — is too close to the reality of Xi’s rule to offer the increasingly sophisticated and restive Chinese people — and even many Party members — much comfort.
China’s continuing struggle over the rule of law is far from over. We can only hope that, before long, new leadership will reverse the current backward transition.
This essay is an updated and substantially revised version of a lecture I presented at National Taiwan University College of Law in January 2017 as part of the Sixth Herbert Han-Pao Ma Distinguished Lectureship. I am very grateful to Dr. Yu-jie Chen of the Law Institute of Academia Sinica in Taiwan and the U.S.-Asia Law Institute for her thoughtful cooperation in its preparation.
Jerome Cohen is the senior American expert on East Asian law, teaching courses on Chinese law and society; comparative international law, analyzing how countries with a Confucian tradition relate to international laws and traditions of the West; and international business contracts and economic cooperation with East Asia. Previously published in Social Research Vol. 86, No. 1, Spring 2019. Click here to read the complete article.