Unsupervised- Initial thoughts on the Supervision Law

The draft Supervision Law is a rich topic that is going to take a long time to properly digest and analyze. Many questions cannot be answered from the text, and we will continue to update as we go, but a sufficient number of people are asking me to comment, that I am committing my initial thoughts to paper, along with a breakdown of some of the most critical portions of the rules.

NOTE: We have Changed our translation of 监察委员会 to Supervision Commissions, rather than Supervision Committees, and updated this article accordingly.

China’s creation of supervision commissions under the new draft Supervision Law is such a big change to the structure of China’s government, that many argue it should require a constitutional amendment. The system essentially creates a new branch of government power that has been portrayed alternatively as bringing the Party anti-corruption process out of the shadows, and casting new shadows over the entire state legal system.

Thus far, China’s anti-corruption campaign has primarily relied on the Intra-party discipline and inspection system to weed out officials who abuse public office, including the secretive detention system known as shuanggui (pronounced shwahng-gway). ‘Intra-party’ here is a polite way of saying ‘extra-legal’ as there is no legal basis for the procedure, nor is it subject to the normal constraints on criminal investigations.

In China, Party institutions run in a hierarchy parallel to that of state institutions through all levels of government, but are governed by Party rules rather than laws. Most state officials wear two hats, as they also have a title and role in the Party, so are subject to both legal and party supervision.

After having gone through an often lengthy shuanggui detention, corruption cases are transferred to the criminal justice system for trial, but by that time a confession is already secured and the Party has effectively sidestepped criminal justice protections like access to counsel and exclusion of coerced confessions.

In his 19^th Party address, President Xi confirmed that shuanggui would be replaced by “retention in custody, [留置] ” as part of the creation of a national Supervision System. Rather than simply insisting that official corruption be addressed solely through the justice system, however, the new system creates a hierarchy of state ‘Supervision Organs’ that run exactly parallel to the courts and procurators offices, and are responsible to the legislatures for that level of people’s government.

In one sense, the creation of a new government body for auditing the use of state power could be seen as abandoning the secretive Party mechanisms, in favor of the more transparent, if far from perfect state legal system. Reviewing the draft Supervision Law, however, it seems much more likely that this new system will integrate and codify some of the most questionable Party practices into the government system instead, applying them to a greater number of state employees. What is really being abolished may be the pretense of separation of Party and State.

This can be seen, for example, in the supervision organs’ mandate to not only investigate officials’ illegal conduct, but to supervise the political integrity and ethics of an even larger group of public employees. The system also expressly allows for law enforcement investigations outside of the normal justice system. Most telling, though, is the express mention of the Party’s authority in the text of the law, something legislation once avoided in recognition of the distinct functions of Party and State. the Party seems to being brought into, but not necessarily under, the law.

Context: Ongoing Legal Reforms

China’s legal reforms in recent years have been tremendous. There has been a sustained effort to create courts that the public trusts to resolve routine disputes, and to rein in corruption, protectionism and power-brokering by requiring legal bases for all government action. These legal reforms are not designed to constrain the Communist Party’s power, but to reinforce the legitimacy of Party rule by creating more complete and effective mechanisms for the implementation of Party policy through all levels of government and codifying existing practices.

Reforms are best understood as ensuring the faithful implementation of laws by officials, rather than protecting citizens’ civil rights. Social justice and rights protections are largely presented as products to be delivered to the people rather than as participatory endeavors. The assumption is that the Party and government’s course is what’s best for the nation and people, and that this correct orientation is undermined only by wayward and corrupt officials. Through more detailed legislation, institutional checks, closer supervision, and greater individual liability, the goal is to create lean and efficient systems where officials have sufficient discretion to perform their duties properly, but are less susceptible to improper influence and held more accountable for misconduct.

This is not to say that legal reforms are always oppressive or do not bring real benefit in important areas of concern to the public. Continued economic growth and resolution of major sources of social discontent such as food safety, environmental problems, the household registration system, and poor government transparency are all key targets of ongoing reform. Resolution of these issues, after all, is necessary for both citizens’ well-being, and for establishing Party legitimacy and social stability. But the people are the subjects of the law, not the shapers of it. The law is about implementing Party policy in governance, not about balancing governmental and individual rights and powers.

Partial Breakdown of the Supervision Law

What do we mean by ‘Supervision’?

The translation of [监察] as ‘Supervision’ understates the importance of this new institution. The creation of Supervision Commissions essentially forms a new type of governmental organ for auditing all officials’ use of their offices and authority.

Specifically, duties include: [Articles 15-18]

• Oversight of public employees’ job performance,
• Investigating illegal and criminal misconduct, and
• Resolution of improper conduct by state employees .

Persons subject to Supervision: [Article 12]

All those performing public functions, including:

• Officials of Party organs, people’s congresses, administrative organs, CPPCC organs, Supervision Organs, Trial organs, procuratorates, democratic parties, etc.
• Staff at units authorized or retained to perform public functions
• Managers at State-owned enterprises
• Staff managing public education, scientific research, culture, health care, and sports etc.
• Managers of collective affairs management at villager and resident committees

Conduct supervised:

The mission of the Supervision Commissions is broad, including not just compliance with law, but also integrity and ethics during the performance of public functions.

Violations of laws are broken into two general categories: illegal and criminal offenses.

• Illegal conduct, which includes administrative violations and conduct that is considered a misdemeanor crime in other countries, can be directly sanctioned by the Supervision Commissions. [Referred to as ‘illegal conduct, violations, etc.’]
• Criminal offenses, which are listed in the criminal law and must be prosecuted by the Procuratorate and tried at court [usually bribery, embezzlement, dereliction of duty, or other conduct seeking improper gain]. The Procuratorate previously had primary investigative authority over crimes abusing public office, but the Supervision Organs will take on this role, and transfer cases to the Procuratorate for prosecution where crimes are found after investigation is completed.

Investigative Powers:

While not part of the justice system, Supervision Organs are the lead authority for investigating official’s misconduct, and have investigative powers similar to those of other law enforcement, and subject to similar conditions. While the process sidesteps many Criminal Procedure protections for the accused (such as allowing a lawyer be hired after the first interrogation of a criminal suspect), many internal authorization procedures are retained, with the threat of sanctions or criminal prosecutions for non-compliance.

Investigative powers include:

• Receiving and evaluating informant or whistleblower reports
• Listing at-large suspects as wanted [30]
• Stopping suspects and related persons from leaving the country (mainland) [31]
• Interrogating suspects, questioning witnesses and gathering evidence [22]
• Conducting searches [26]
• Employing technological investigation tactics [wiretaps, remote computer access, etc.] [29]
• Sealing, seizing, and freezing assets [27]
• Retaining suspects in custody (留置) [24]

Examples of limitations mirroring the Criminal Procedure Law,

Disposition Powers [Article 43]

• Sanctioning public employees who break the law. [warning, demerit, major demerit, demotion, removal, expulsion, or other punishment decision]
• Recommending that units tend to performance and clean governance issues and make corrections.
• Holding leadership accountable for problems. [either directly or by recommendation to another department]
• Transferring criminal cases for prosecution at the completion of an investigation.

Retention in Custody (RC): [article 41]

The power of the Supervision Organs to detain officials during investigations has been touted as replacing the Party’s mysterious investigative detention system known as shuanggui. Shuanggui was a Party sanction, rather than government sanction, so was controlled by Party rules distinct from the legal system. RC is an area of great attention as many question whether the Supervision Law will merely codify shuanggui practice or truly bring into rule of law.

The targets of RC are public employees being investigated for serious illegal or criminal conduct where there is already some evidence accumulated:

• It is a major or complicated case
• The suspect might flee or kill themselves
• They might collude or fabricate, destroy, transfer, or conceal evidence;
• They might otherwise obstruct the investigation.

Approval of RC: Decisions to retain someone in custody must be reviewed internally and approved by the Supervision Organ at the level above; except that provincial level organs need only inform the national level of their decision.

The period for RC is not to exceed 3 months, extendable a single time for up to an additional 3 months. Extensions require approval by a higher level Supervision Organ.

Remember, that RC may be used even when investigating misconduct that amounts only to an administrative violation (similar to misdemeanor level offense) and not a full crime. Such offenses are punishable by only 15 days detention, so this detention might be worse than the punishment.

Should a criminal penalty ultimately be given, time in spent in RC will be used to reduce the criminal penalty with 1 day of RC equal to 2 days of ‘probation’ or 1 day of incarceration.

The location of RC is only listed as a ‘designated’ location. This is troublesome, because it means it is outside of the more regulated detention centers where criminal suspects are held.

It is also reminiscent of a current law enforcement abuse of holding criminal suspects and defendants in a ‘designated location’, which is often a hotel room, or similarly discrete location. While the English translation is the same, the Chinese is slightly different, suggesting but not guaranteeing, a location that is intended specifically for this purpose.

The Conditions of RC are given only minimal attention in the law. The detained person should be given food and drink, allowed to rest, and subject only to reasonably scheduled interrogations of a reasonable length. They shall also be provided medical treatment. Article 41.

The family of the person being detained is meant to be notified within 24 hours of the detention. As with the similar notice requirement in the criminal procedure law, an exception is left where giving notice would impede the investigation.

Structure and Relationship with People’s Congresses at the Same Level of Government

Like the courts and procuratorates, which have a constitutional basis, Supervision Commissions are responsible to the people’s congress at their corresponding level. The language used to describe this relationship very closely tracks the constitutions language describing the courts and procuratorates.

The size of supervision commissions is still unclear, but they are to contain a director, multiple deputy-directors, and additional members.