The Next Phase of China’s Anti-Corruption Campaign

“Power tends to corrupt, and absolute power corrupts absolutely” – the classic judgment on the relationship between power and corruption, proposed by the 19th century British politician Lord Acton, is well known not only in the West but also in China. Numerous Chinese politicians, pundits, and scholars have quoted it on various occasions.

However, in the 21st century, the Chinese Communist Party (CCP) – the ruling party of People’s Republic of China (PRC) – is still determined to consolidate its power anyway, in the name of anti-corruption.

Despite opposition from Chinese legal professionals, the CCP has resolved to issue a law to establish an all-powerful National Supervision Commission (NSC) – a new anti-corruption agency. The law, as well as the structure of the new agency, will be in contradiction with China’s current constitution.

A Law Jurists Oppose

On November 6, 2017, the National People’s Congress Standing Committee – China’s  top legislative body –  released a draft of the National Supervision Law. The draft law outlines the powers, functions and structure of the proposed NSC, which will be the highest body supervising any “public personnel” who exercise public authority.

According to the draft, the definition of “public personnel” is extremely broad – including not only all the officials of the CCP, government, semi-governmental organizations, and state-owned enterprises, but also any personnel engaged in management of public or collective affairs, such as public education, scientific research, culture, health care, and sports.

The draft law also grants the NSC supreme power, allowing it to consolidate existing graft-fighting powers vested in various government departments. The NSC will share space and personnel with the Central Commission for Discipline Inspection (CCDI) – the highest internal-control institution of the CCP, which is currently overseeing the anti-corruption campaign launched by Chinese President Xi Jinping.

Soon after the draft was released, a large number of Chinese legal professionals began expressing their strong opposition. So far, the National People’s Congress has received over 9,600 comments on the draft law online, which is an extraordinarily high number compared to the feedback received regarding other new drafts. Several prominent retired law professors have also come forward to voice their deep concerns.

For example, 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,” published a long article online, pointing out eight serious problems with the draft law.

Against China’s Constitution

The paramount problem, Chen and other legal experts pointed out, is that the draft law is blatantly in contradiction with China’s constitution.

Currently, all Chinese laws make it clear in Article 1 that the specific law “is enacted on the basis of the Constitution.” However, the new draft law’s Article 1 doesn’t bother to mention the Constitution at all but simply says: “This Law is drafted so as to promote comprehensive governance in accordance with law, to bring about full national supervision coverage, and to thoroughly carry out anti-corruption work.”

Moreover, if the draft is approved, China’s current government structure will be fundamentally changed, which will directly contradict the Constitution.

At present, China’s government is composed of the legislative branch (the National People's Congress), the executive branch (the State Council or the head of government), and the judicial branch (the Supreme People's Court and the Supreme People's Procuratorate).

According to the draft, the NSC will be placed above the Supreme People's Court and the Supreme People's Procuratorate. Not even the State Council will be able to supervise the NSC.

A Legal Violation of Human Rights

The second issue analysts have with the draft is that it grants the NSC unregulated power to legally violate human rights.

The NSC will have enormous investigative powers, including interrogating suspects; retaining custody; conducting searches, collections, sealing, seizures, and inspections; and, most importantly, detention. The draft coins a new term – “liuzhi 留置” – to define the NSC’s power to detain a corruption suspect for investigation.

Previously the CCDI has practiced a secret detention mechanism called “shuanggui 双规” but only on Party members. The “shuanggui” mechanism allows the CCDI to detain a Party member in a secret place for unlimited time. Human Rights Watch has condemned the “shuanggui” mechanism for using arbitrary detention, solitary confinement, torture, and enforced disappearance. The new “liuzhi” mechanism will in effect legalize the “shuanggui” practice and make it applicable to not only Party members but any “public personnel” mentioned above.

In addition, while being held in undisclosed “designated locations” by the NSC, detainees will not be guaranteed access to lawyers. Nor will their family be informed if doing so “would impede the investigation.”

Tong Zhiwei, professor of law at East China University of Political Science and Law in Shanghai and vice president of the Constitutional Studies branch of the China Law Society, published a series of commentaries on the draft law. He wrote in one of his articles: “Neither in Chinese history nor in any country in the world today is there such a powerful and centralized supervisory organ like the NSC.”

The CCP’s Firm Resolution

Despite waves of criticism, the CCP is intent on passing the law.

Chinese media – over which Chinese government censors have full control – have not reported the opposition aired by legal professionals online and shared via social media. Some social media platforms, like Weibo, have been actively deleting such posts.

Meanwhile, the CCP has been publishing articles and reports complimenting the draft law.

China’s state news agency Xinhua published a 10,000-word article, attributed only to “Xinhua reporters,” explaining the effectiveness of the NSC. The article said that Xi had held six conferences on the NSC, designed the blueprint, and revised the draft himself.

Claiming that the NSC is a “major political reform,” the article further defined the NSC’s nature in blunt language:

[People should] accurately grasp the nature of the commission and fully understand that the national supervision system is a creative reform with Chinese characteristics. The commission is essentially an anti-corruption agency which shares space and personnel with the CCDI. Representing the party as well as the state, it exercises supervisory authority [over the country.] It is a political organ, rather than an administrative organ or a judicial organ. When carrying out its duties of supervision, investigation, and disposition, it should always give top priority to politics. 

Given that there is no such thing as “a political organ” tasked with carrying out investigations in any modern political system, this article has sent a clear message to the whole nation and even to the world: China’s so-called political reform is not heading forwards but backwards.

To make the CCP’s point even clearer, on November 11, Zhao Leji, one of the new members of the CCP's Politburo Standing Committee – China’s highest decision-making body – and new chief of the CCDI, held a national conference, demanding that all provincial governments should start to implement the NSC system in a test run. Meanwhile, the extremely controversial draft is still under review.

Under the current circumstances, it appears likely that the CCP will pass the law and establish the NSC regardless of opposition from legal scholars. In the end, the CCP still has a trump card: it can modify China’s constitution if necessary, since it is in full control of China’s legislative branch, too.