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China’s new implementation regulations on its supervision law clarifies the power of its new supervisory branch, though its effective supervision is out of reach

By Zhou Qunfeng Updated Jan.1

The Standing Committee of China’s 13th National People’s Congress, the country’s highest legislative body, passes a resolution on a supervision law at a plenary meeting, October 26, 2019

On September 20, China’s top anti-graft agency, the National Supervisory Commission, announced an implementation regulation for China’s supervision law. Coming into effect on the same day, the regulation is perceived as a major step in China’s efforts to establish the legal framework of what many are calling a supervisory branch.  

After Chinese leader Xi Jinping assumed the presidency in 2013, China launched a massive anti-corruption drive, which led to the fall of hundreds of senior officials. While the anti-graft campaign is ongoing, the central leadership has been trying to create new institutions to tackle corruption, which is seen as a major threat to the legitimacy of the ruling Communist Party of China (CPC).  

Controversies and Contradictions 
In March 2018, the National People’s Congress (NPC), China’s top legislature, announced the establishment of the National Supervisory Commission (NSC), a new anti-corruption body to consolidate the anti-corruption functions of multiple state and Party agencies.  

As the NSC reports directly to the NPC, the agency becomes a coequal branch of government running parallel with the judiciary, the Supreme People’s Procuratorate, and the State Council. 

The new arrangement grants the NSC considerable power to operate independently of other law enforcement agencies. But at the same time, some of its powers and measures are seen to contradict some existing laws, such as China’s criminal procedure code.  

Although the NPC passed the Supervision Law of the People’s Republic of China in 2018 to regulate the NSC’s operation, many legal issues remained unclear. The new regulation appears an attempt to address some of the controversies.  

With 287 articles making up nine chapters corresponding to the supervision law, the regulation lists 101 offenses that fall under the jurisdiction of the NSC and articulates a seven-stage supervisory procedure the NSC needs to follow.  

In an NSC press release on September 20, the agency said the regulation clarifies the agency’s duties, jurisdiction, supervisory power and working procedures. The NSC said that through the implementation of the regulation, the agency aims to introduce strict regulation on supervisors and promote the law-based exercise of supervisory duties.  

The regulation does clarify several issues. One of these is who is subject to the supervisory law and jurisdiction of the NSC.  

Prior to the NSC’s establishment, China’s anti-corruption drive was led by the CPC’s Central Commission for Discipline and Inspection (CCDI), which has the power to investigate Party members, who account for about 80 percent of civil servants. After the NSC was established, the supervisory law stipulated that the agency has jurisdiction over “State actors,” including not only public employees, but also other personnel such as managers at State-owned enterprises (SOEs).  

“As the law lacks detailed definition, it leads to an important question over whether foreign managers at joint ventures partially owned by SOEs are subject to the law,” Liu Fei, an anti-corruption official from Zhumadian, Henan Province, told NewsChina.  

Outlining six types of state functionaries subject to the supervision law, the new regulation stipulates that only managers who are appointed or represent the interests of the State are subject to the law, which effectively excludes both foreign managers of joint ventures and Chinese managers representing private firms.  

The regulation specifies that infractions committed by public servants who have left their posts, retired or passed away are still subject to NSC investigation, which was not specified in the supervisory law.  

“The move is in line with the overall anti-corruption approach adopted by the top leadership to hold officials accountable for life,” Mao Zhaohui, director of the Center for Anti-corruption and Clean Government at the Renmin University of China in Beijing, told NewsChina.  

Detention Measures 
Another focus of the regulation is the NSC’s detention powers. Prior to the NSC’s establishment, the CCDI used a detention measure known as shuanggui, a disciplinary practice that demands a CPC member under investigation to cooperate with questioning “at a designated time and place.” The practice of shuanggui has long been criticized as an extralegal system that fails to protect the rights of detainees and runs contrary to the country’s criminal procedure law.  

After 2018, shuanggui was scrapped and replaced with another detention mechanism called liuzhi, which allows the NSC to hold a suspect in custody for six months. But without specifying exact legal procedures, the new liuzhi system is essentially the same as shuanggui.  

In the new regulations, the NSC is now required to follow a sevenstep procedure to implement the liuzhi detention measures, from processing evidence to handing the case over to prosecuting agencies.  

NSC supervisors are required to inform relatives of a suspect within 24 hours of detention, and to record the entire process of detention and interrogation. According to the regulation, the NSC can use liuzhi to detain a suspect for three months, which can be extended to a maximum of six months for serious cases, meaning that the crime involved is punishable by life sentence.  

The regulation also stipulates that the NSC must close its investigation – either drop the case or bring charges against the suspect – within one year from either the date of detention or the day the investigation is formally started.  

Experts say the new rule is aimed at preventing investigations from going on indefinitely. According to an anti-graft official from Nanjing, Jiangsu Province, who spoke to NewsChina on condition of anonymity, investigations commonly drag on long after a suspect has been released, with the suspect stuck in limbo for a long time.  

The new regulation also endorses the principle that illegally obtained evidence, such as through torture, cannot be used in court. It also specifies three additional categories of evidence that can be used in court, a move intended to bring it in line with other laws, including victim statements, expert opinions and notes about on-scene inspections.  

According to Yi Wenjie, a criminal defense lawyer at Beijing-based Shangquan Law Firm, the new regulation means there are eight types of evidence that can be used in court for supervision-related cases, which is compatible with China’s criminal procedures.  

Right to Counsel 
But despite these incremental progresses, experts say that some of the most important issues remain outstanding. According to Mao, the new regulation ignores one of the most controversial issues regarding the supervisory law – right to legal counsel.  

Mao said that without ensuring the right to legal counsel during detention, many measures designed to protect the suspects’ rights are simply meaningless.  

For example, as the NSC focuses primarily on duty-related violations and crimes as an administrative agency, until a case is handed to prosecutors, there are no clear procedures or a timeline for whether a suspect is investigated for on-duty violations, which is subject to administrative punishment, or on-duty crimes, which is subject to criminal punishment.  

“It means there’s no entry point for when a suspect can hire a criminal defense lawyer during detention under the NSC,” Yi said. Therefore, although the regulation stipulates that evidence obtained through illegal means by investigators cannot be used in court, there is simply no way for a defendant to establish such a defense after a case is handed to prosecutors.  

“Even if the suspect was tortured during the interrogation, any sign of bruises would have long gone,” Yi added.  

The regulation’s answer to this issue is to require 24-hour video and audio recording of a suspect from the moment of detention. The new regulation specifically states that evidence obtained from interrogation using violence and threats cannot be used in court.  

But Yi said the new regulation still leaves gray areas. For example, there is no clarification over whether evidence obtained through what many call “fatigue interrogation” – depriving a suspect of sleep – is considered illegal.  

One’s Own Judge 
According to Mao, the fundamental issue is an ongoing lack of effective supervision over the supervisors, something legal experts have long voiced concerns about since the idea of a super supervisory agency started to float.  

In theory, the NSC reports to the NPC and is subject to the supervision of the NPC. But in reality, there are no established procedures or mechanisms for the NPC to supervise the powerful agency.  

While the new regulation devotes a separate chapter on the supervision of supervisors and punishment for their misconduct, it offers no real comfort to its critics.  

For example, the regulation stipulates the NSC will be liable for financial compensation resulting from abuses of power by the agency and its staff.  

But at the same time, it stipulates that the application for financial compensation will be handled and processed by the NSC itself.  

“It means the NSC is the judge and supervisor of its own conduct, which is very problematic,” Mao said.