Trans-Pacific View author Mercy Kuo regularly engages subject-matter experts, policy practitioners, and strategic thinkers across the globe for their diverse insights into U.S. Asia policy. This conversation with Dr. Stanley Lubman – research associate and distinguished lecturer in residence (retired) at Berkeley Law School, University of California and author/editor of numerous publications on China’s legal reforms, including China’s Legal Reforms (Oxford 1996) and Bird in a Cage: China’s Legal Reforms after Mao (Stanford 2000) – is the 128th in “The Trans-Pacific View Insight Series.”
Briefly explain the correlation between China’s extrajudicial shuanggui and new detention law.
Shanggui is a system of secret detention operated by the Chinese Communist Party’s Central Commission for Discipline Inspection (CCDI) without basis in Chinese law. Communist Party members under investigation for corruption or other violation of party rules are detained for interrogation at a “designated place and a designated time” without any contact with the world outside. Detention for interrogation may not exceed three months but may be extended one time for up to an additional three months. Detainees are typically held in locations other than police stations or jails and may be tortured, beaten, or otherwise mistreated. After they confess they are typically transferred to judicial organs for prosecution. Although in theory the procuracy is separate from the Party, prosecutors often participate in shanggui interrogation.
The new law provides for liuzhi (“detention in place” or “retention in custody”), extralegal detention not only for Party members but for any “public servants” who receive a salary from the government and who are investigated for “illegal and criminal misconduct.” Investigations are to be conducted by the Supervision Commissions; if criminal conduct is found, the person is to be handed over to the Procuratorate for prosecution. This procedure, like shanggui, is not subject to China’s Criminal Procedure Law.
What is the impact of the new National Supervision Commission on China’s legal reforms?
The Party, while formally parallel to the courts, has always been superior in power to all of China’s legal institutions. Cases involving speech or conduct deemed threatening to “social stability” are commonly decided by Party organs even if criminal punishment is formally decided by the courts. The new law’s movement of procuratorial functions to the Supervision Commission is unique.
The new law applies to investigation and punishment of illegal conduct by civil servants in addition to Party members, who are already the objects of concern by the CCDI, but does not go farther at this time. It is not possible at this moment to guess how deeply the new Commission would investigate suspected criminal conduct of civil servants.
At the same time, a considerable amount of the work of the courts, such as civil cases and some criminal matters, is conducted without Party interference or participation, although other extralegal influences such as personal relations and pressures from local government officials may affect the outcomes of cases.
What are the consequences of the Chinese Community Party’s expanded powers over China’s judiciary?
After the draft law was published, a number of Chinese law professors expressed concerns. One professor, speaking at a meeting of legal scholars, declared that the powers of the Supervision Commission are “too broad, and it lacks official checks on its power.” Jiang Minggan, a well-known Beijing University law professor, was quoted as saying that ”limiting detainees’ access to legal counsel owed much to the extreme difficulty of collecting evidence in corruption cases.” Jiang added: “These cases are heavily dependent on the suspect’s confession. If he remains silent under the advice of a lawyer, it would be very hard to crack the case.” He also observed that because liuzhi “broadened the targets [and] of the anti-corruption crackdown,” it “fueled fears of future abuse.” At the same time, attempts are under way to regularize court procedures, even if they are treated as elements in an administrative hierarchy, rather than a judicial system like those in common law and civil law democracies
I do think that this recent change reflects, among other considerations, the Party’s paranoid fear of serious weakening by corruption and its deep commitment to control over Chinese society.
How might defendants have legal recourse under the new detention law?
Although some provisions of the Criminal Procedure Law do not apply to the Supervision Commissions, some “internal authorization procedures” are provided for, as discussed in a review by China Law Translate, “Unsupervised — Initial Thoughts on the Supervision Law.” Specified procedures are provided for interrogating suspects, conducting searches, employing “technological investigations” such as wiretaps, sealing and freezing assets, and retaining suspects in custody.
Why should the U.S. and other Western countries be concerned with China’s new detention law?
Apart from the specific issues discussed above, a number of concerns come to mind:
The CCP leadership is deeply concerned about the possibility of threats to “social stability” undermining CCP control over Chinese governance and society. More basically, some China scholars have described what they call a “moral vacuum”or a “spiritual vacuum” so that Chinese leaders perceive what one American scholar has described as the need “to create a firm, lasting basis for authoritarian rule.” The new law discussed here illustrates two basic problems, namely the deep-seated drive of the leadership to control Chinese society, and basic division between measures that are formulated and executed within the framework of Chinese legal institutions and others that are carried out extralegally. The new law reflects the attempts of the leadership to strengthen governance consistent with buttressing China’s sovereignty, which could have impact in the future on China’s treatment of foreign activities within China such as foreign businesses. We can expect these basic issues to continue to appear.