With the world media attention focused on the 19th National Congress of Chinese Communist Party (CPC), it is worthwhile to pay attention to the nation-wide roll-out of the new anti-corruption regime of the National Supervision Commission (NSC) and introduction of the national supervision law, as just announced by President Xi during his opening speech.
Although the anti-corruption campaign during the five past years has been fairly successful, the Chinese leadership has become aware of the deficiencies in the current anti-corruption regime.
As a result, the Chinese government initiated a pilot reform of the national supervision system in December 2016, which will be implemented nationwide shortly after the 19th National Congress of CPC (October 18 through October 25, 2017).
The reform aims at centralizing the anti-corruption power from the National Bureau of Corruption Prevention (NBCP), Ministry of Supervision and the anti-corruption department of the Procuratorate to form a new institution named the National Supervision Commission (NSC), which will execute supervision power over public officials, as well as managers and directors in state-owned enterprises and administrative institutions.
Setting up of the NSC is anticipated to bring significant benefits. On the one hand, the disciplinary inspection power of Chinese graft busters has been significantly enhanced, thanks to the synergy achieved through the centralization of inspection powers.
On the other hand, in terms of the administration structure, the NSC replaces the old structure with a more balanced structure of “One Government, One Commission, One Procuratorate and One Court.”
The trial program of the NSC was initiated in December 2016 in Beijing, Shanxi Province and Zhejiang Province, and it will eventually be rolled out nationwide. The roll-out of the NSC will be one of the most important political and institutional reforms in China, which will have far profound and far-reaching impact on Chinese political life and the anti-corruption program.
The NSC has some underlying principles, such as centralizing anti-bribery power, enhancing the methods of supervision, adhering to the Party’s policy and “covering all corners of one case.” Those principles govern the NSC’s exercise of the centralized national supervision power.
The NSC is also authorized to execute 12 enforcement measures, such as interrogation, blocking, inquiry, and “Liu Zhi”（留置 – a compulsory detention measure) to guarantee the efficacy of national supervision power.
Among those 12 enforcement measures, Liu Zhi will replace the earlier measure of “Shuang Gui” (双规 — an intra-Party disciplinary practice that required a CPC member under investigation to cooperate with questioning at a designated place and a designated time.)
Liu Zhi and the other measures are expected to bring about unprecedented enforcement under the CPC’s regime of fighting corruption.
Jianwei (Jerry) Fang is a partner with the China-based Zhong Lun Law Firm in the firm’s Shanghai office. He was a judge in China and later earned LL.M/J.D. at Columbia Law School. He can be reached here.
It is important to note that the “sharp sword” accurately but incompletely discussed is a major component in the further consolidation of power by the Communist Party, very much and intentionally to the detriment of an independent judiciary.
Under President Xi Jinping, party general secretary and newly minted “core leader”, hundreds of lawyers have lost their licenses and been imprisoned for doing their jobs in the past two years.
The Party itself reckons that under Xi’s “tigers and flies” anti-corruption campaign 1.8 million Chinese at all levels of society have been disciplined, ranging from expulsion from the party to execution. (The number seems high to me based on publicly available figures, but is at least in the hundreds of thousands.) Whether principally purges for political control or out of genuine concern for eradicating corruption, or some combination of the two, all of it has been under the direction of the Central Commission for Discipline Inspection, a Party organ (though cases are referred, at the final stage, to state prosecutors for rubber-stamping in various courts.)
As Xi’s hand-picked Chief Justice (and fellow Central Committee member) Zhou Quiang put it a few months ago, ““We should absolutely resist erroneous influence from the West — constitutional democracy, separation of powers and independence of the judiciary.”
I recognize that Judge Fang is a mainland corporate lawyer. He certainly could say nothing more here than he has about this ominous development, including its express provision for extrajudicial detention and interrogation (replacing the house arrest and brutal interrogations that Judge Fang has described above as an “intra-party disciplinary practice.”)
We western business folks looked on with interest as Deng Xiaoping’s modernization flourished, and seemed to bring with it gradual increases in individual liberty and the rule of law. Those days are over. We all ought to be concerned about the impact on the people of the world’s most populous country; under Xi’s hand they are about to be constantly surveilled by a new “grid management” system, their online activity monitored by a new “net police” force, and their loyalty measured by a new new cradle-to-grave social credit system. And no lawyer or judge will ever hear their stories.
We business folks, who care about transparency and meaningful access to an independent judiciary, should be concerned as well. Let Judge Fang’s informative article be a warning to us all.
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