Saohei and the Draft Organized Crime Law

Earlier this month, China released a new draft Law on Countering Organized Crime. Like the Counter-Terrorism Law and other targeted law enforcement authority, the new draft law provides special powers and procedures to address a special kind of crime. In the Organized crime law, these include the use of secret witnesses, remote or solitary detention of convicts or suspects, and enhanced methods for recapturing illegally acquired assets. How commonly such tools could be invoked, of course, depends on how broadly ‘organized crime’ is defined.

As used in the draft, ‘organized crime’ includes both ‘criminal underworld organizations’ (黑社会性质组织) and ‘malign forces’ （恶势力）collectively known as ‘underworld forces’ (黑恶势力). The first term has long been a part of China’s Criminal Law (see article 294), while ‘malign forces’ is a key phrase in China’s ongoing ‘Saohei‘ campaign against organized crime. In a recently released 5-Year Plan on the Establishment of a ‘Rule of Law’ Society in China, Central Party authorities called for the ‘normalization’ of the Saohei campaign, and the draft Organized Crime Law’s incorporation of ‘malign forces’ is a major move in that direction.

While it’s fair to describe the ‘Saohei’ action as a crackdown on organized crime, it is actually broader both in its scope and goals than that might suggest. Earlier ‘strike-hard’ crackdowns were more purely law-enforcement efforts aimed at aggressively and severely targeting existing crime. Saohei by contrast is inherently political. It focuses on eliminating the conditions that allow organized crime to emerge and prosper by solidifying the Party’s lasting power down through to the lowest levels of government; eliminating potential sources of outside interference and influence, and addressing the corrupt officials that enable them.

This is not to so say that the action is in some way a pretext. Organized crime is a real threat that needs to be addressed in China just as anywhere else. Further, organized crime does often have its own political character, either through direct corruption of officials or by openly flouting the laws and dominating certain sectors or regions, which undermines the Party’s governance. In the Saohei action, however, it’s this impact on political, economic, and social order that defines the targeted groups, rather than their specific criminality. Official guidance on recognizing saohei cases even makes clear that crimes committed solely for money, or as the result of civil, labor, or social disputes, are not saohei cases if they lack the required societal impact.ⁱ

This focus can also be seen in local government lists identifying different types of underworld forces, like this typical example from Beijing’s Haidian District, that include overtly political categories such as:

• Underworld forces that threaten political security, especially regime security and institutional security, as well as those penetrating into the political sphere.
• Corrupt village officials and ‘men behind the curtain’ who control and manipulate state power at the local levels, undermining local elections or misappropriating village assets.
• Village or town ‘bosses’ that dominate a region, such as by exploiting familial, religious, or clan affiliations.
• Industry and market ‘bosses’ that seize control in areas such as agriculture, construction, transportation, shipping, mining, fishing, or tourism that organize illegal operations, have illegal monopolies, force transactions, or collect protection fees.
• ‘Underground law enforcement’ that insert themselves in civil financial disputes.

In regions known for political tension, like Tibet or Xinjiang, local governments also sometimes include categories targeting local civil society or activists:

• those who ‘use religion to control, to confuse, incite, or coerce the masses to resist the Party and government’
• those who instill the masses with reactionary ideology and narrow ethnocentric ideas such as … ‘protecting the “mother tongue”
• So-called ‘spokespersons’ for the masses, under banners such as economics, the people’s livelihood, environmental protection, folk customs and culture…

Expanding the concept of ‘organized crime’ is a major part of Saohei. The Criminal Law already contained the individual crimes of leading, organizing, or participating in underworld criminal organizations.ⁱⁱ The Saohei campaign did not create new crimes, but it increased punishments for crimes committed by ‘malign forces’, which are described as a less developed form of underworld criminal organizations, requiring fewer members, less fixed organization, and the political character described above. This range embraced by the draft Organized Crime Law seems to be at least as broad, even clarifying that even carrying out crimes online can be a criminal organization, even if they’ve never met and aren’t acquainted.ⁱⁱⁱ

Unpacking the Organized Crime Law: Special Procedures and Powers

The Organized Crime Law is still an early draft, and the government is currently soliciting opinions on it from the public, so it is worth considering some of the key provisions:

Investigation of leads and cases

Some of the draft’s most important provisions relate to law enforcement powers, many of which may be invoked before the case has really been confirmed to be an ‘organized crime’ investigation. This includes explicit authorization to look into suspects’ savings, financial assets, real estate, and other property when only investigating leads. With approval from higher level police, investigators may even place emergency holds on payments or seize or freeze assets for 48 hours,^iv or stop major suspects from leaving the country for up to 90 days. ^v

Police are allowed to go undercover and make controlled payments, such as bribes or purchases of contraband,vi tactics already allowed by the Criminal Procedure Law,^vii but now explicitly authorized in organized crime cases with the appropriate approvals.

Once suspects are taken into custody, they may be held in other regions or even in solitary confinement to prevent their colluding or communicating.^viii More serious offenders and public officials who are convicted can be made to serve their entire sentences in an area where they have less influence.^ix

Handling Personal Information

The draft law requires police to keep statistics on organized crime and conduct analysis. Interestingly, the draft law gives police sweeping discretion on the use of citizen’s personal information for this purpose, allowing that it may be collected, stored, processed, or disclosed. ^X That personal information was even mentioned as a concern reflects China’s recent efforts to develop a legal framework on information privacy, including a draft law on the Protection of Personal Information. This type of blanket authorization for police use, especially for purposes other than the investigation of specific crimes, however, might reveal just how ephemeral these rights can be when up against state power.

Case Assets:

Chapter V of the draft law is devoted to refining rules on the identification, valuation, and disposition of illegal assets, to cut off the economic lifeblood of organized crime. The assets include not only those that were used in or acquired through illegal activity, but also any income derived from them, or even lawfully acquired assets that support the criminal organization’s activities.^xi The draft makes clear that there must be evidence collected to prove that assets are truly connected to illegal activity, and that this evidence can be debated as part of the trial. ^xii Because organized crime activities are often tied to legitimate business interests, the draft also attempts to address situations where a third party recipient of case assets should be allowed to retain them, and allows for other stakeholders to assert claims over the assets.^xiii To preserve the assets’ value during the proceedings, there are provisions allowing for their liquidation of property or financial instruments that are susceptible to damage, devaluation, or market fluctuations. ^xiv This requires the consent of the owner as well as approval from county-level authorities or above.

Additional Restrictions on Released Convicts

After those convicted of leading or organizing a criminal underworld organization have completed their sentence and are released from prison, they may be required to report on their daily activities and assets for up to five years. ^xv They may also be restricted from engaging in certain professions. ^xvi

Secret Witness System / Witness Protection

The infrequency of witness appearances in criminal cases is notoriously low, and this is often attributed to witnesses’ fear of retaliation. To assuage these fears, the Criminal Law allows for witnesses in high-risk cases such as organized crime cases to have their identity kept from the public, and even to conceal their voice and appearance, ^xvii and the draft Organized Crime Law elaborates on these protective measures.

One notable difference in terminology, however, is that where the Criminal Law refers not disclosing [不公开] witnesses’ names and other information, the Organized Crime draft refers to “witnesses whose identity is secret” [身份保密]. It is not immediately clear what this difference signifies- for example, it could mean not disclosed to the public vs. kept secret from the defendant and their attorney, or it could mean that it will be kept secret in all court documents as well as not being disclosed publicly.

A new witness protection measure in the draft is a witness relocation system for witnesses and victims whose identity is seriously endangered.^xviii While few details are provided, we know that relocations are to be approved by the central Ministry of Public Security.

[i] Opinions on Several Issues Related to Handling Cases of Crimes by Malign Forces, 9

[ii] Criminal Law,article 294

[iii] Draft Organized Crime Law, article 31

[iv] Draft Organized Crime Law, article 27

[v] Draft Organized Crime Law, article 28

[vi] Draft Organized Crime Law, article 33

[vii] Criminal Procedure Law, article 153

[viii] Draft Organized Crime Law, article 32

[ix] Draft Organized Crime Law, article 38

[x] Draft Organized Crime Law, article 22

[xi] Draft Organized Crime Law, article 51

[xii] Draft Organized Crime Law, articles 43, 49

[xiii] Draft Organized Crime Law, articles 49, 52

[xiv] Draft Organized Crime Law, article 45

[xv] Draft Organized Crime Law, article 19

[xvi] Draft Organized Crime Law, article 34

[xvii] Criminal Law, article 64.

[xviii] Draft Organized Crime Law, article 71