This address presents Professor Tong's most recent thoughts on the draft State Supervision law that appears to be one of the most important legal and political innovations in Chinese law and political philosophy in recent times. Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017, the English version of which I published HERE. The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.
The address Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题] appears in the original 中国语言 with a crude English translation following below (a more refined version to follow in a few days).
Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law.
童之伟：监察立法应处理好的九个宪法问题2017-11-14 童之伟 华政法治建设研究中心监察立法应处理好的九个宪法问题——在中国宪法学会和刑诉法学会联合研讨会上的专题发言
To monitor the nine constitutional issues that should be dealt with in legislation
2017-11-14 Tong Zhiwei; Vice president of China Constitutional Law Society; East China University of Political Science and Law China Construction Research Center
The report of the 19th National Congress of the Communist Party of China (CPC) has already set the basic content the supervision system reform. That is, We will deepen reform of the national supervision system, conduct trials throughout the country, and establish supervisory commissions at the national, provincial, prefectural, and county levels, which work together with the Party's disciplinary inspection commissions as one office while keeping their own identity. This will ensure that supervision covers everyone working in the public sector who exercises public power. A national supervision law will be formulated. Supervisory commissions will be given responsibilities, powers, and means of investigation in accordance with law. The practice of shuanggui1 will be replaced by detention. Among thse, enacting the Law on Supervision is the basic work that must be done to successfully promote the reform of the supervision system.
In June 2017, "Supervision Law (Draft) of the People's Republic of China" (hereinafter referred to as "Draft Supervision Law") examined by the 28th meeting of the 12th NPC Standing Committee was published and comments were solicited from the whole of society. Our seminar is an important platform to discuss, express, summarize and display the views of constitutional and criminal law experts. I would like to use this opportunity to get a little angry, to get a little academic, without considering – for a moment – whether this may help in solving the problem. I will express my views only according to provisions in the Constitution, and constitutional law theory, and on the basis of my original essay.
First, the Draft Supervision Law must not only state clearly in writing "this law is enacted according to the Constitution," but must effectively take the Constitution as the basis to form all its provisions. However, judging from the real state of the Draft Supervision Law, the draft not only does not state that “this law is enacted according to the Constitution”, in fact it is not drafted on the basis of the Constitution. Several provisions are in manifest conflict with the letter and the spirit of the Constitution. For a number of years, one common feeling among legal scholars has been that we often discuss about strictly abiding by the Constitution, governing the country according to the Constitution and upholding the authority of the Constitution in the abstract. Where an actual and concrete unconstitutional situation is encountered, in many cases we adopt a lassez-faire attitude. In my opinion, the Law on Supervision is a fundamental law that concerns the overall situation of building of democracy and the rule of law. We must eliminate the apparent unconstitutional situations in the draft in the crucial time before the National People's Congress Standing Committee will examine the law.
If we vow to abide by the Constitution on the one hand, while letting unconstitutional situation go through unhindered, this will inevitably lead to serious losses in political morality. Because the occurrence of these situations will inevitably lead to a loss of credit of the ruling party and of state power, leaving hidden dangers. After all, "From of old, death has been the lot of an men; but if the people have no faith in their rulers, there is no standing for the state".
Second, the specific time chosen to enact the Law on Supervision should meet constitutional requirements. Some scholars have said that the Constitution must be amended before the supervision law can be enacted, and this is certainly correct. However, merely arranging the sequence whereby the Constitution is amended first, and the Law on Supervision is then promulgated will not necessarily meet constitutional standards. In the end, whether the law is constitutional or not depends on concrete arrangements made "before" and "after". The normal course of action should be that the constitutional amendment authority first adopts the constitutional amendments and the legislature then starts the legislative process according to the constitutional amendment in force. This is because a lot of time-consuming procedures are needed in order to complete a specific piece of legislation. Concerning a piece of law as relevant to the overall situation and as controversial as the Law on Supervision, the general process of its formulation should see the authoring authority presenting a bill to the Standing Committee of the National People’s Congress, the law should then be examined by the Standing Committee three times, revised, and put to a vote. After the vote, it should be submitted to the Standing Committee for Consideration. After the National People’s Congress has completed the examination and voting procedures stipulated in the Legislation Law, the law can be promulgated by the President of the State and go into effect. Therefore, "enacting" is a process concept, not a one-time act. Unfortunately, the actual situation now is that the constitutional basis necessary for the enactment of the Law on Supervision has not yet been established, but the Law on Supervision has already entered the process of enactment. This is in fact similar to jumping the gun during a sports competition. Therefore, it is hard to say that the NPC Standing Committee's review of the "Supervision Law (Draft)" in June this year is an act of exercising its powers in accordance with the Constitution.
Since a jump start has been made already, one can go back and wait for the start again. Our country is still in the initial stage of building a country ruled by law. It is completely understandable that some mistakes can take place.
Third, whether the name of the national supervision institution to be established is crowned with the word "People" before it involves major substantive issues. Some scholars think this is only a form, which does not hinder the overall situation. This is sometimes true, but this time is completely different. Many academics have persistently urged that the drafters should antepone the two characters for “People” to ‘Supervision Commission’ according to convention and to the spirit of the Constitution, yet the drafters have strongly resisted this suggestion. This has led to many speculations in the community of legal scholars, including:
If the drafters insisted that the characters for "People" not be used in the name of the national supervision institution on the basis of these considerations, it would still be reasonable. But I believe this will have a negative impact on the order of the rule of law. Because, this arrangement is not consistent with constitutional ethics. So far, the state organs that are created by, responsible before and supervised by the National People's Congress have the "People" in their name, such as the People's government and the People's courts. To ordinary citizens, this is the same as if a child or a woman insisted on not carrying surname their own father's family, and attempted to emphasize that they were closer to another mighty family. What is even more serious is that this arrangement divides all the state organs into two categories: the organs of the ruling Party itself and the organs led by the ruling Party. One of the consequences of doing so is that it is highly likely to further aggravate the existing imbalance between several parts of the state power under the constitutional order and the fundamental rights of state power and citizens.
In legal circles, it is privately and widely believed that such provisions in the draft Law on Supervision are a manifestation of the drafters’ attempt to obtain special privileges for their institution. Many of the specific provisions of the draft corroborate the People’s conjectures that the drafters attempted to obtain special privileges for their institution, and to circumvent their duty to accept supervision.
Some may think that there are precedents in 1982 Constitution regarding the provisions on the Central Military Commission. This view cannot be held. Because the military is indeed a special organization. Besides, there is only one Central Military Commission in the entire country. The supervision commission, from the central government to the district and county level, is a huge system and may also have offices at the township level. In addition, they also dispatch a large number of agencies and staff to Party and government organs, enterprises and institutions in the entire country. Regardless of the point of view chosen, it is not appropriate to compare the levels of the supervision commission with those of the Central Military Commission. If we must make such a comparison, it is inevitable that People would think military control is being implementen in the entire country, with a negative impact and consequences.
Considering the Supervision Commission as a special political organization, contrary to the provisions and spirit of the Constitution, not only causes chaos in the order of constitutional ethics, but it also hinders the normal operation of the National People’s Congress system. In line with the constitutional principle and the constitutional spirit that all state power belongs to the People, it is better to change the name of the "People's Republic of China Supervision Commission" in the draft to "People’s Republic of China Central People’s Supervision Commission" and rename the local state supervision institutions as "People’s Supervision Commissions in Provinces, autonomous regions, municipalities directly under the Central Government, autonomous prefectures, counties, autonomous counties, cities and municipal districts."
Fourth, the merging of Party and government does not conform to the provisions and the spirit of the current Constitution, and the relevant contents of the supervision system reform need to be treated constitutionally. The merging of Party and state organs in institutions that form a complete system does not conform to the provisions and the spirit of the current Constitution, and this may be proved by a variety of theoretical explanatory standpoints such as historical explanations, structural explanations, contextual and instrumental explanations. Deng Xiaoping's 1980 report on "The reform of the Party and state leadership system", discussed and adopted by the CPC Central Committee Political Bureau, the “Reform of the Party and state leadership system” of the Sixth Plenum of the Eleventh Central Committee, and relevant speeches of Peng Zhen, who was in charge of the work of constitutional amendments are linked to the 1982 Constitution. This is an even better proof that with the exception of the Central Military Commission, the merging of Party and state organs in other states institutions does not conform to the provisions and the spirit of the current Constitution.
Fifth, many articles violate the constitutional requirements for building a socialist country governed by the rule of law, including the violation of the equality before the law. Article 33 of the Constitution stipulates: "All citizens of the People's Republic of China are equal before the law. Every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law " Remember, it is " Any citizen", ah! Article 37 of the Constitution states: “The freedom of person of citizens of the People's Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ” Remember, it is" any citizen "!
Now it should be reasonably explained why the Draft Law on Supervision unconstitutionally deprives citizens who hold public office of their rights protected by the Criminal Procedure Code. Why they cannot enjoy the procedural rights even murderers, arsonists, rape suspects and terror suspects enjoy after their arrest right? It does not make sense! The rule of law is to be justified, and there is no reason to say nothing about the rule of law. Some people may say that an effective fight against corruption cannot do without these. Anti-corruption must not become a reason to violate the Constitution. On the internet there are those who say that civil servants usually enjoy more benefits and require them to have the same rights and morality. This is by no means a violation of the Constitution. In talking about immorality, the unconstitutional abuse of public power is the greatest immorality. More critically, if the law unconstitutionally infringes upon some of the basic rights of citizens, it will not be criticized and deterred. The consequence will necessarility be an indirect violation of the basic rights of all citizens. Because, if today we can deprive some people of their basic rights and tomorrow we can deprive some other citizens of the same basic rights, the day after tomorrow we may deprive all citizens of the same basic rights.
From a constitutional point of view, if the transformation of ‘shuanggui’ into ‘liuzhi’ can conform to the principles of rule by law and equality, it will be a progress. Otherwise, it will be very difficult to evaluate the transformation as a progress. “Shuanggui” obviously does not conform to the requirements of the rule of law and equality, and should be reformed soon. The easiest way to make a negative judgment on whether this reform meets these requirements is to see whether the final text of the Law on Supervision will incorporate criminal investigation within the scope of the Criminal Procedure Law.
Therefore, the provisions of the Draft Law on Supervision that violate the provisions on rule by law and equality should be completely removed. Soing so, will fundamentally benefit the entire community as well as the cause of anti-corruption and clean government. It is only too late to argue today. If we insist on denying equal protection, then we have to amend the Constitution, amend Article 33 and the equal protection clause in Article 37. This is unconceivable.
Sixth, the supervision system reform and relevant provision in the Draft Supervision Law merging Commissions for Discipline Inspection and Supervision Commission will seriously undermine the role of the People’s procuratorate as the institution that supervised legality, and its independent exercize of procuratorial power. It goes without saying that the status of our state organs depends mainly on the status of their members within the ruling Party. Secretaries of Party Commissions for Discipline Inspection now rank at the second or third place of Party committees. Just y their ranking, they overwhelm the Procuratorate and the President of the People’s Procuratorate. If to this one adds the post of Chairman of the Supervision Commission, which is equivalent to the authority enjoed by the Procuratorate, then the pressure on the procuratorate will be as heavy as the weight of Mount Taishan. Then, it iwill be difficul to effectively control the exercize of power by the Supervision Commission.
The above situation is not conducive to the protection of the normal constitutional order and the protection of the basic rights of citizens. Xinhua News Agency recently published article directly proving that such concerns are not redundant. The article, entitled "Pilot Reform of the State Supervision System," reported that: "From January to August this year, procuratorial organs in the three provinces (municipalities) handled 219 cases and 281 persons transferred by the Commission, and only 2 cases and 3 persons could reach the standards for prosecution after they were sent back to the Commission for supplementary investigation several times. 76 Cases involving 85 persons were filed for prosecution, and the courts concluded 20 cases involving 23 people. The average time in which procuratorates handled cases transferred by the Commission by reviewing and approving arrest, and reviewing the case for prosecution was of only 2,7 days and 22.4 days respectively, far lower than the statutory time limits of 14 and 45 days.”
As a law professionals, we can see at a glance that this is the result and evidence that the legal supervisory function of the procuratorate has been seriously weakened.
The Constitution stipulates that people's procuratorates shall independently exercise their powers of supervision in accordance with the law, but the provisions of the Draft Supervision Law directly undermines their independence. For example, Article 45 of the Draft stipulates that supervision organs "shall, in the absence of sufficient evidence of criminal activity, or where the criminal activity is relatively minor, or where facts of a crime are absent, seek the opinion and the approval of the supervision commission at the next higher level”. In reality, such a “seeking an opinion” from a place of significant authority such as a supervision commission merging Party and state organs, essentially means requiring the procuratorate to exercize its authority subject to the approval of the Commission.
How to solve this problem? It seems that we can only try to reduce the gap in political weight between the Commission and the Procuratorate and improve the draft Law on Supervision so as to strengthen the protection of the independent exercise of power by the procuratorate.
Seventh. The fusion between Commissions for Discipline Inspection and Supervision Commission will place a weight heavier than Mount Taishan on the People’s Courts. Under such a situation, the Commission for Discipline Inspection inevitably leads the courts’ verdicts on criminal cases. In the future, the court will face the same political pressure as the procuratorate in facing unity between the Commission for Discipline Inspection and the Supervision Commission. Briefly speaking, under the pressure by the Supervision Commission, where the Commission for Discipline Inspection believes the person under investigation has committed a crime, how can Courts possibly not make a verdict of guilt? Where the Supervision Commission requires an aggravated punishment, the court will hardly be able to give a lenient punishment, and viceversa. In the past, personnel arrangements such as the secretary of the Political Legal Commission concurrently holding the post of Director of the Public Security Bureau had a negative effect on the courts’ independent exercise of their powers in accordance with the law and the fact that there were too many unjust and wrong cases in handling criminal cases. It is hard to say that this will not be repeated under the new pattern of imbalance in the distribution of power. The lessons of history can not be forgotten.
In terms of the protection of the basic rights of citizens and the maintenance of judicial fairness and justice, the independent exercize of power is far more important in the case of courts, than it is for Supervision Commissions and People’s Procuratorates. The reduction of the status of the court will further unbalance the allocation of state power in the state organs at the same level. This is very detrimental to the maintenance of the normal political order and the guarantee of the basic rights of citizens.
In order to effectively establish a socialist country governed by the rule of law and safeguard fairness and justice, the constitutional status and political status of the People's Courts can not be lower than that of Supervision Commission. The oppositve woul mean putting the cart before the horse. In this respect, the experience of other rule of law countries that attach importance to the status and authority of courts deserves our reference.
Eighth, if the Draft law on Supervision is not amended as necessary, the fundamental political system in our country may in fact degenerate from the system of the People's Congress to the system of State Supervision Commission. Article 2 of the Constitution states: "All power in the People’s Republic of China belongs to the people.The National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise state power." Article 57 of the Constitution provides that "The National People’s Congress of the People’s Republic of China is the highest organ of state power. Its permanent body is the Standing Committee of the National People’s Congress "
According to the principle of democratic centralism set forth in the Constitution, the Draft Law on Supervision stipulates that supervision organs at all levels are produced by, responsible to and subject to the supervision of the People's Congresses at the same level, but the content of provisions on responsibility and supervision is very abstract, very empty and the methods to implement it are lacking. There is absolutely no specific form of responsibility and supervision at the level of the People's Congress. Even provisions about the annual report to the People's Congress at the same level are absent. As for People’s Congresses Standing Committees, the Draft Supervision Law it only stipulates that Standing Committee sat all levels "can listen to and deliberate on the special work report of the supervision organs at the same level and organize the inspection of law enforcement". Representatives and members may raise questions or file inquiries. Note the meaning of "may".
However, the Draft Law on Supervision contains sufficient and specific provisions on the supervision of People’s Congresses and their Standing Committees at all levels. When it comes the objecst of supervision, the object of the Draft Supervision Law includes all the public officials of People’s Congresses and their Standing Committees, including obviously the NPC Standing Committee is the chairman, the deputy chairman, the standing committee and its representatives. In addition to anti-corruption, the Supervision Committee supervises compliance with the constitution, laws and regulations by People’s Congresses and their Standing Committees, as well as their exercize of public power, their violations of professional duties, and their morality. The Draft Supervision Law also stipulates that supervision organs "shall independently exercise their power of supervision in accordance with the law and no organization or individual may refuse it," and "any organization" will not exclude People’s Congresses and their Standing Committees at the same level. It is impossible for any individual not to include the chair and deputy chair of the People's Congress at the same level. Supervision orgnas may also send a supervisory organ and a supervision officer to the People's Congress at the same level. However, the Draft Supervision Law does not allow People’s Congresses and their Standing Committees to supervise supervisors in such a specific manner. Nor does it provide that People’s Congresses and their Standing Committee may appoint supervisory organs and supervisor offirces to supervise the Supervision Commission.
There is a view that the object of oversight by the Commission are not the People's Congresses and their Standing Committee, but rather their members. This is not bad. However, according to the Draft Law, the Commission has the power to supervise each member of People’s Congresses and their Standing Committees, including their investigation, in a way that changes the nature of supervision. In fact, the Draft gave the Supervision Commission the power of control over People’s Congresses and each member of their Standing Committee, thereby giving the Supervision Commission the de facto control over the power People's Congresses and their Standing Committees. Honestly, some of the text of the Draft Supervision Law flaunts the organs of state power and offends their dignity, such as "no organization or individual can". Speaking in this way to state institutions including institutions which represent the people can not be allowed not only under the system of the People's Congresses, but also in countries with a balance of power and separation of powers.
Judging from the historical situation and other situations of a country ruled by law, it is impossible for any supervision organ to treat the organs representing the nations and which gave birth to them in this way. And it is impossible for any supervision organ that is external to organs representing the nation, and which has procuced them to supervise those organs or their members. It is impossible to broaden their power to the extent that anti-corruption goes beyond compliance with the Constitution, laws and regulations, the lawful exercise of their powers and ethics. Because, whether or not members of the partliamentary organs of all States respect the Constitution, laws and regulations and perform their duties in accordance with the law, in all cases is assessed by those organs in an autonomous way. The same is true of the countries that have checks and balances on power. How can the People's Congresses, as the authority that realizes the authority of the fundamental political system, not uphold their own constitutional laws and ethics and constrain and dispose of the autonomy of its members? If the People's deputies or members of Standing Committee ares suspected of crimes, supervision organs or public security organs certainly have the power of investigation. However, the matter of whether compulsory measures should be adopted first by the NPC should be a separate matter.
The above provisions of the Draft Supervision Law do not conform to the provisions and the spirit of the Constitution and violate the system of the People's Congresses. If it is really implemented and put into practice, the system of people's congresses will be seriously wounded and our fundamental political system will look more like a Supervision Commission system. Ensuring that the constitutional status of the NPC concerns the stability of our country's fundamental political system.
Ninth. Many of the provisions of the draft Law on Supervision do not conform to the requirements of Article 5 of the Constitution: "The State maintains the unity and dignity of the socialist legal system." Conflict between the Draft Supervision LAw and the Constitution, conflicts with the criminal procedure law and other laws will seriously undermine the unity of the state's legal system if it becomes a law. To a very small extent, this situation has been caused by the deliberate vagueness and confusion of the investigative powers of the Commission on the part of some concerned officers. The relevant officials stressed that the power to question is not an investigative power, and this is partly rational and partly unreasonable. The problem is that if we can not talk about the power to question in a general way, we must abide by the party's ideological line of seeking truth from facts and making a concrete analysis of specific issues. In this spirit, the power to question should be specifically broken down into the power to make inquiries into acts that violate Party discipline, the power to make inquiries into acts that violate political discipline, and the power to make inquiries into ordinary violations of law and official crimes (including corruption crimes). To be sure, the first three powers are not investigative powers, but the power to investigate crimes (including corruption crimes) is the right of criminal investigation. If we do not even have the courage to face such common sense, we will not be neither a thorough materialist nor a qualified member of the Communist Party of China, even less a qualified discipline inspection cadre. Therefore, it is not necessary for anyone to neglect the common sense of "one entity or multiple names" intentionally, confounding words and confusing them. The power of criminal investigation is the power to investigate. The Criminal Procedure Law should be applied to the exercise of powers of criminal investigation by the Supervision Commission.
If we can not face up to the nature of the power of invesgation in a realistic manner and let the Draft Law come into effect as such, it will very likely constitute a devastating factor in the unification of the country's legal system. If constitutional scholars and criminal law scholars can solve the qualitative problems of criminal investigation in a practical and realistic way, it will help to solve the problem that some clauses of the Supervision Law, during its improvement, present a sharp conflict with the Constitution and the Criminal Procedure Law.
Finally, a few concluding words. Although the Draft Supervision Law was painstakingly drafted and there are indeed many places to be affirmed, its serious shortcomings can not be ignored. The main defects are as follows: one-sided pursuit of the higest power fo the supervision authority, overlooking democratic participation; emphasis on arbitrary treatment, overlooking power constraints; advocating strict criminal punishment, overlooking basic rights protection. If we summarize the experience of combating corruption in the world, I feel that the modern anti-corruption system in various countries ruled by law is more successful. The main reason is that apart from the use of power, it also uses the anti-corruption function of citizens in using their rights and freedoms and attaches importance to the rule of law and equal protection of fundamental rights. Frankly speaking, judging from the Draft Law on Supervision, its anti-corruption system and methods, and the traditional practice of unilaterally relying on power and its application for more than two thousand years in our country and the lack of civic participation and protection of rights are manifest. The consequences of developing such a draft are worrisome.
A few days ago, I read an article apparently reflecting the position of the drafters of the Draft Supervision Law, which added to my concern. The article said: "From January to August this year, 6,766 clues were disposed of in Beijing, an increase of 29.7% over the same period of last year; 1840 cases were filed, an increase of 0.7% over the same period of last year; 1789 persons were punished, up 35.4% over the same period of 2007. Shanxi Province disposed of 30587 clues, an increase of 40.4% over the same period of last year; 11,261 cases were filed, an increase of 26.4% over the same period of last year; 10,557 were punished, up 11.7% over the same period of last year; 25,988 clues were disposed of in Zhejiang Province, up 91.5% over the same period of last year; 11,000 cases were filed, up 15.5% , An increase of 16.1% over the same period last year. "