Legal reforms in China seek to reinforce the legitimacy of Party rule. Generally, this only means governing successfully, bettering the lives of the majority of citizens by ensuring continued economic growth, and addressing key sources of public discontent in areas such as food and product safety, environmental protection, and public safety. To a lesser extent, it can even include greater government transparency and accountability. The best way to ensure order and stability, after all, is through a content and prosperous public that does not seek change. When the Party’s authority is challenged, however, the response can be unapologetically severe.
While China’s Constitution holds that political and government organs are subject to the law, just as any business or social organization, the law itself grants the government more than sufficient ability to address perceived threats to its authority. The Laws create parallel, hierarchical government and party structures through successive levels of government that regulate all aspects of society through vertical and lateral checks. Perceived challenges to Party legitimacy can come in the form of activists and protestors that disrupt order from outside these systems, or from within through corrupt or incompetent officials who undermine the Party’s policies for the nation and its people.
Two legal innovations that began in 2018, the supervision system and the Saohei campaign, are major parts of the Party-state’s efforts to maintain its legitimacy. The Supervision system addresses internal threats by seeking accountability for any misconduct in the application of state power. The ‘Saohei’ campaign works externally to prevent the establishment of power and influence outside the Party-state structures.
The Supervision System
The Supervision System is often described as an anti-corruption mechanism, but like the word ‘supervision’ itself, this description belies its importance. Passage of the Supervision Law in 2018 entailed nothing less than the creation of a new branch of government responsible for auditing all exercise of government power.
The newly created hierarchy of supervision organs largely incorporates and expands on the powers of the existing Party Disciplinary Commissions, with which it shares offices and personnel. They are responsible for addressing misconduct by anyone whose conduct might readily reflect back on the government. This includes public officials, but also anyone in charge of managing or using state funds in the public interest, which can include those responsible for carrying out work for China’s state-owned or invested organs, even on a contract or delegated basis.
Supervision Commissions are responsible not only for ensuring legal compliance, but also for fostering integrity and ethics during the performance of public functions. Where crimes or other legal violations are suspected, the powers of supervision officials mirror those of the police and prosecutors. They can freeze and seize assets, and even detain subjects, but the supervision system lacks even the minimal protections of the criminal justice system such as access to an attorney and external oversight by judges and prosecutors. Only after the supervision organs complete their largely unchecked investigations will any crimes discovered be transferred to the courts for trial.
This avoidance of the normal criminal justice system shows the importance placed on maintaining appearances. Abuses of power that could embarrass the leadership, or call its control into question, are always to be resolved internally before being publicly acknowledged and punished. Before the passage of the Supervision law, this was accomplished through the principle of the Party managing its own in accordance with Party rules, but with the advent of the law, the line between Party and state is further eroded, and this type of backstage handling is extended to the farthest reaches of the party-state apparatus.
Saohei and ‘organized crime’
Like the supervision system, the purpose and function of the ‘sao hei’ criminal justice campaign is often understated. It is generally described only as a campaign against ‘organized crime’, a characterization that misses the campaign’s overt political character. By its own terms, the campaign is focused first on groups that “threaten political security, especially security of political power and systems, as well as those that permeate the political arena” or “control basic level political power” It targets also those that establish alternative power bases that might frustrate or compete with the party-state such as “village bosses” who use familial, clan, or religious ties to dominate local affairs; “market and industry bosses” who use unfair trade practices to gain control, and groups that meddle in civil affairs such as by operating their own law enforcement teams. It should go without saying that ‘protective umbrellas’, the officials who shield such groups, are marked for special attention.
The criminal law has long had special provisions on ‘underworld criminal’ or ‘mafia-type’ organizations [黑社会性质组织], defined by their size, stability, profit motives, and impact on social order. The new campaign goes well beyond this, however, with the addition of a more inclusive category of ‘malign forces’, which lowers the existing requirements and instead emphasizes the social impact. The campaign also stresses targeting the use of ‘soft violence’ methods such as holding protests, memorial demonstrations, and making false accusations, that could intimidate others into compliance
Local governments have interpreted the campaign as a call to target local sources of unrest. In Tibet, groups that align with the “dalai-clique’ or use ‘ethnocentric ideas’ such as ‘protecting the mother tongue’ to rally the masses are singled out. In Xinjiang, those that act in the name of religion to restrict markets or advocate extremism have been among the targets.
A draft Law on Countering Organized Crime released early this year indicates that the Saohei campaign will soon be normalized. The Law adopts the campaign’s language of ‘malign forces’ and grants authorities special powers for emergency asset freezing, solitary confinement, and detention in other regions of the country away from the accused’s influence, and even ongoing restrictions after serving a prison sentence. Like crimes of terrorism or endangering state security, ‘malign forces’ crimes will soon be an exception to the normal criminal procedure.
While rarely considered together, the Saohei campaign and the Supervision system have much in common. They began in the same year, 2018, they are both deceptively far-reaching, and at their heart they share a common goal, preventing threats to the legitimacy of party-state authority. Neither reform could be considered a pretext, organized crime and corruption or government misconduct are real issues everywhere, but the true scope of these reforms clearly goes beyond the normal understanding of those problems. The most important characteristic they share, however, is the willingness to create and codify exceptions to the normal criminal justice process to achieve their goal. Ironically, it’s a solution that should shake confidence in central leadership, or perhaps reflects the leadership’s own lack of confidence in the systems it has worked so hard to build.