Summary of the scholars’ arguments around Shuang gui
GAO Shan
Table of content
Summary
1.
Argument
from legal prospective
a.
Negative
view against Shuang gui under constitutionality issue
i. Violation of the constitution article 33
and 37
ii. Extrajudicial region which harmed the
justice and political system
b.
Positive
view support Shuang gui under constitutionality issue
i. Reasons why Shuang gui not violate
constitution
ii. Reasons why Shuang gui shall be an
exception
2.
Argument
from functional prospective
a.
Negative
opinion against Shuang gui under functional prospective
i. The transparency issue and discretional power
ii. The Zeng’s corruption case
b.
Positive
opinion support Shuang gui under functional prospective
i. Reality needs for Shuang gui
ii. Efficiency needs for Shuang gui
iii. CPC’s history and its power structure needs
Shuang gui
3.
Opinions
on optimize the measurement of Shuang gui
a.
Limiting Shuang gui’s discretional
power
b.
Due process and other secondary
measurement
c.
Improve the quality of investigation by
set up coordinate cooperation mechanism
d.
Minimize the contradiction between
Shuang gui’s legislation and state law
Appendix
Summary:
The
war against corruption is never easy, especially for socialist state like China.
Shuang gui, as a special investigation measurement for CPC discipline was
created under the first peak of corruption in the 80s. However, the prototypes
of such measurements were inherited in CPC’s history and its foundation. Since
the date of its creation, the disputes around Shuang gui never ends. Although
Shuang gui is proved to be one of the most efficient investigation measurements
in defeating the corruption and limiting CPC power under current reality and
thus has become a standardized rule, there are arguments about its
constitutionality issue, its negative outcomes on the justice and its effectiveness
in anti corruption.
This
article is trying to introduce readers the Chinese academic’s arguments about
Shuang gui. For this purpose, the article will separate into three parts, 1)
the argument surround Shuang gui from legal prospective; 2) the argument
surround Shuang gui from functional prospective; and 3) opinions on optimize
the measurement of Shuang gui. The first and second part contains both positive
and negative views. Through these three part discussion, the article is trying
to present readers a general view on opinions that support and against Shuang
gui on either legal or functional prospective.
1.
Argument
from legal prospective
a.
Negative view
against Shuang gui under constitutionality issue
Generally,
people believe that Shuang gui has constitutionality flaws. However, it is rare
to read article that states a criticism in a strong tone. There are two
articles that shared this minority opinion. One is from Yan huang chun qiu, a Magazine published by old general and
previous senior CPC officials. The second article is coming from the Legal Science, a famous law journal
published by East China University of Political Science and Law.
There are two
main points in this minority negative view. First Shuang gui violates the
Constitution, such as the provisions of equal protection, personal freedom and
due process. Second, Shuang gui created an extrajudicial region which harmed
the judicial system and political system.
i.
Violation
of the constitution article 33 and 37
Theoretically
CPC and its internal discipline shall in comply with the Constitution because
under the PREAMBLE of the Constitution “…all political parties and public
organizations in the country must take the Constitution as the basic norm of
conduct, and they have the duty to uphold the dignity of the Constitution and
ensure its implementation”.
[i]However,
in practice, Shuang gui investigation violates article 33 and 37 of the Constitution.
For example, under article 37
“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. Unlawful
deprivation or restriction of citizens' freedom of person by detention or other
means is prohibited and unlawful search of the person of citizens is prohibited.”
During Shuang
gui investigation, investigator may violate due process and personal freedom by
confining the suspect in the premises for inquiries. Such inquires may
constitutes an illegal detention that without the participation of judicial
departments. In practice the suspect is under the supervision of the
investigators for 24 hours, and he is forbidden to contact with the outside
world. Moreover, Shuang gui violates equal protection rule, which requires that
“all citizens of the People's Republic of China are equal before the law.” For
example, CDI or CCDI may use Shuang gui as a plea bargain in order to get
cooperation from the suspects.
ii.
Extrajudicial
region which harmed the justice and political system
Shuang gui
cannot replace the investigation of law enforcement department. Keep this
special measurement can create an outlaw region, which may provide an extra
protection to the suspect and damage the legal system. The article
Shall we reform the Shuang gui also
provides similar statements but with much stronger and direct criticism, which
is very rare. It provides that
[ii]:
The measurement of Shuang gui is identical
to illegal detention. CCDI cannot replace the judicial departments and CCDI
have no right to confine the freedom of the people. No one or entity shall
exceed the Constitution. The argument of keeping Shuang gui involves the
position of CPC in relation with law and politics. Moreover, the orientation of
Shuang gui will affect the reform of nation’s politic system and legal
system.
b.
Positive
view support Shuang gui under constitutionality issue
There are two articles
that hold this opinion. The authors believe that as a matter of law Shuang gui
did not violates article 33 and 37 of the Constitution. In the contrary, Shuang
gui has its Constitutional basis and the authority Shuang gui has been vested
by the Constitution. Under his interpretation of the constitution, maintaining
a strong CPC ruling is a legitimate constitutional interest. It complies with
the purpose of safeguarding people’s right.
i. Reasons why Shuang gui not violate
constitution
In
The constitutionality of Shuang gui, the
author Liu zhigang provides three theories to explain why Shuang gui is not
violate the constitution.
[iii]
First, Liu
argued that Shuang gui only applies to the relationship between the CPC and its
member. Such relationship is a “special relationship”, which is not covered by
Constitution. Under his theory, in order to enforcing the government’s
executive function, the government can impose some special and unusual
limitation on a limited group of people’s right when such person is fall in the
region of special relationship.
Second, denying
the measurement of Shuang gui is romanticism and radical-left which disregard
the reality of the society.
Third, Liu
further suggests that “Insisting on the leadership of CPC” is a basic principle
that Constitution had set up. Without CPC’s strong leadership, there is no
basis for the protection of people’s right. Thus, even Shuang gui may violates
someone’s rights, in order to protect the interest of maintaining CPC’s
leadership, we shall have a special treatment to Shuang gui. His view is
basically suggest that the interest of maintaining a strong CPC ruling is more
important than stuck to the details of one specific provisions of the
Constitution that protect personal rights.
Under his theory, there is no contradiction of the interest because
limitation on individual’s right is for better protection of such rights.
ii. Reasons why Shuang gui shall be an
exception
Third, Liu
believes that Shuang gui will survives as an exception to the region of law as
a matter of fact. Liu cites the example of Taiwan and Germany to prove the
ideal that reserving an exception for a special measurement is reasonable. The
author in
Discussion on the justification
of Shuang gui on the reality ground agrees with Liu on this point, he
provides that:
[iv]
“Special relationship” is an important
German administrative law theory and being adopted and developed in Taiwan and
Japan. Under this theory, first, it excludes the application of constitution;
second, it excludes the application of law; third, it excludes the judicial
review. This theory is in fact creating
an extrajudicial region.
2.
Argument
from functional prospective
a.
Negative opinion against Shuang gui
i. The transparency issue and discretional power
In summary, this argument
was indirectly suggested that due to the Shuang gui’s secrecy nature and CDI’s discretional power, Shuang gui is
in some way encourage the suspect’s illegal conduct because Shuang gui is being
used as a weapon against criminal liability. The author argued that:
Due to the secrecy nature of
Shuang gui, the procedural of the internal investigation is less transparent
than the judicial approach. For example, the outcome of the investigation is
not available for the public. Thus, it is reasonable to have doubt on whether
the subject of Shuang gui had been transferred to the judicial department after
the investigation. In theory, it is possible and logical that the suspect may
settle the case privately with the investigator. First, the outcome for transferring is at
investigator’s discretion, and CDI or CCDI may use Shuang gui as a plea
bargain. Second, during the period of Shuang gui, the unknown investigation is
not available for the judicial department until CDI or CCDI transfer the case
to them. Thus, Shuang gui may actually encourage the suspect utilize
cooperation to against the criminal liability. [v]
ii. The Zeng’s corruption case
The falling of Zeng jinchun
is probably the best illustration of the drawbacks of this secret investigation
measurement. Zeng jinchun was previous secretary of the CDI in Chenzhou county
of Hunan province. Under such position, Zeng used his power to extort money and
punish anyone who gave him trouble. For example, the local People’s Congress,
Judiciary departments or even member’s CPC’s party’s committee at the same
level got no easy way to take measurement against him and all the members of
those entities were subject to Zeng’s authority to initial a secret
investigation.
By bribing to other higher
officials or possessing those officials crime evidence and utilizing the
initial power of secret Shuang gui investigation, Zeng was literally the most
powerful King in Cenzhou county. Under such situation, the investigation for
Zeng was directly coming from the top official in CCDI and signed by President
Hu jingtao. Like those unconfirmed sources points out, the fall down of Zeng
may be the result of political rift. Thus, in summary the fact that it took the
highest official in the land to bring about the investigation of a local
official means that the party lacks even the most basic system of oversight. Or
at least, it is possible and not difficult for the CDI or CCDI to utilize
Shuang gui for unjustified reasons. In fact, the form of Shuang gui
investigation is resemble to those secret investigation measurements that being
used in the 60s during the culture revolution or other occasion of political rift.[vi]
b.
Positive opinion support Shuang gui
Most scholars agree that as
a special investigation measurement, Shuang gui is proved to be efficient and
useful under current reality. Those articles analysis in details why Shuang gui
should be acceptable and reasonable with its constitutionality flaw. Basically,
there are three theories support Shuang gui from a functional prospective.
i. Reality and Efficiency reason that needs for Shuang gui
First, facing the first peak
of corruption after 80’s economic reform and Tiananmen Square protest, Chinese
government learned that it is necessary to have a strong measurement in
investigating and defeating the corruption. However, during the social
transition from command economy to market economy the society was in lack of
law, and the judicial department was in lack of technique or experience to
defeat corruptions. Under such reality where the legal system is less
developed, the supervision of the state power is normally informal, like Shuang
gui.[vii]
Second, in practice Shuang gui proved to be efficient
and helpful in the anti-corruption investigation. Most high official’s falls
down are result from Shuang gui. Thus this measurement won supports from the
CCDI and citizens.[viii]
Also, China’s current special political arrangement determines the fact that
the prosecution only amount to a small portion of the accountability of the
state power. In most case, the liability is archived though other measurements,
such as Shuang gui.
ii. CPC’s history and its power structure needs Shuang gui
Some scholars analyzed the
history background of the CPC’s birth and state power structure. They made a
comparison between China, Russia and western countries and came to conclusion
that unlike the birth of political party in western countries, CPC developed as
a revolutionary party. This means, in western countries, party’s main activity
is election. There is no pressure of Life-or Death struggle and thus no needs
for any harsh special internal disciplines. On the contrary, in order to
survive in the harsh political environment, it is necessary for the CPC to
enforce some crude disciplines. [ix]
Furthermore, because CPC member projects absolute influence on the
administration of the nation, it is necessary to have special discipline
regulations to limit the abuse of such power.
In Shuang gui, under the view of CPC’s transformation from Revolutionary
Party to Administration Party, Yang tao, provides that:
One of the key reasons that
CPSU (Communist Party of The Soviet Union) won the Russia Revolution is that
CPSU, leaded by Lenin, stuck to the Bolshevism theory of founding a party. This
theory requires that the collective’s right is superior to the individual’s
right, and Iron disciplines are necessary for the implementation of party’s
polices.
Considering the history
background of China at the time when the CPC was built, similar to the
situation of CPSU, CPC needed a violent revolution to win the battle. This
means, CPC had to possess the power of depraving its member’s right, life and
liberty by the party discipline.
Although, Shuang gui was begins at the 90s of 20 century, but the base
of Shuang gui can be traced back to the party’s founding. Thus, Shuang gui won
the supports of party member and people.
In Researches on
CPC’s internal accountability system, the author provides that:
In western
country the governing power is at the hand of the party’s core member, who
works in the framework of the government structure. However, unlike the western
party, CPC’s non-core members possess enormous power after CPC governing China.
Because such power projects absolute influence on the government’s
administration, CPC needs stronger internal discipline to regulate party member
in the current government structure.[x]
Thus, in order to limit the abusing state power, CPC needs such harsh
measurement.
3.
Opinions on
optimize the measurement of Shuang gui
Although CPC developed from the violent
revolution, but it cannot followed its old routine forever. The modern
political theory indicated that the government has to win the support of the
people by democracy and rule of law. [xi]Thus,
eliminate the negative part and optimize the positive part of Shuang gui is
supported by everyone.
There are several different discussions
on the optimization of Shuang gui, each of them has its own focus. Basically,
one point is focusing on how to optimize the execution of Shuang gui, the other
is focusing on how to minimize the contradiction between state statute and
relevant Shuang gui legislation.
a.
Limiting Shuang gui’s discretional power
In the
discussion about the Zeng’s case, one of the biggest issue of Shuang gui is its
discretional power accompany with the its secrecy. As one Shuang gui
investigator points out that, during the past few years, CCDI had issued new
guidance’s and rules to summarize the positive measurements of Shuang gui and
eliminate the negative parts of it. These documents set some detailed rules
that aim at limiting the discretion power of CDI. For example Shuang gui will
apply: only when CDI had possessed some valid evidences and facts of serious
violation of the discipline; only when it is necessary for investigation and only
when some certain level of CDI has such authority. Other highlights includes
written request for approval of Shuang gui is mandatory, the approval must be
filled to the province CDI level as a record. Furthermore, the author also
believed that it is important to maintain the safety of the suspect during
Shuang gui, create a less aggressive atmosphere for the investigation is
important to the exercise of Shuang gui. [xii]
thus, in summary, the author suggested that detailed procedural rules such as
filling system and authority threshold is the way for limiting discretional
power.
b.
Due process and other secondary measurement
In The
major principle for the anti corruption system, the author emphasizes the
importance of the due process and transparent in against Shuang gui abusing.
The transparency requirement shall apply to both the daily governmental
functioning and the Shuang gui investigation. Without transparency, it is fairly
easy for the Shuang gui to be abused by the authorities. Detailed rules can
help enforce due process and limiting discretion. The recent legislation “No7
and 28 document of CCDI (detailed regulation on the time and procedural issue
of conducting Shuang gui investigation)” is a nice approach to the requirement
of due process. He also points out secondary measurement like the education,
internal democracy construction is critical to the optimize of Shuang gui.[xiii] These
secondary proposes are not new, in 2000, some scholar had proposed:
By perfecting complaining system,
reporting system, withdrawal system and anti-corruption education system, build
a firewall of anti-corruption. And pay
attention to the importance of management of government servants and their
ethical education.[xiv]
c.
Improve the quality of investigation by set up coordinate
cooperation mechanism
In the practice, some provinces had
established the coordinate meeting mechanism that enhances the quality of the
investigation by cooperation between local prosecutors, administrative
supervision department. Through this mechanism, it can enhance the transparency
and efficiency in conducting anti corruption investigation.
d.
Minimize the contradiction between Shuang gui’s legislation
and state law
Some scholars also provide suggestions
on the issue of the contradiction between Shuang gui’s legislation and state
law. Basically, some authors stated that we shall separate different
legislation authorities, set up some communication mechanism that the CPC’s legislation
can coordinate with the national statutes. Furthermore, incorporated the
internal rules to the national law and eliminate the specialness of Shuang
gui. He provides that:
We
shall maintain the NPC’s exclusive legislation power. We shall avoiding the legislation that
limiting or depriving CPC member’s constitutional right; shall avoiding the
utilization of internal regulation on the functioning of state agency and state
power.[xv]
We shall establish regular communication and cooperation
working mechanism between the legislature department of NPC and CPC. Through
this working mechanism, each department can discuss, clarify and solve the
contradiction between different authorities. The past legislation experience
prove this working mechanism is beneficial. For example, in 2006 CCDI proposed
to conduct a research on the new forms of bribes, SPC, SPP and CCDI worked
together and later CCDI and SPC issued their own regulations on this new form
of bribe. [xvi]
This practice is later proved to be a good example of the cooperation between
CCDI and other legislatures.
Appendix
A.
List
of media or publications and its background
1.
Law Journal and legal newspaper
§
Legal daily, (Chinese: 法制日报;
pinyin: fǎzhì rìbào) is a People's Republic of China state-owned newspaper
under the supervision of the PRC Ministry of Justice that is published in the
PRC and primarily covers legal developments
§
Legal science, the publisher is East
China University of Political Science and Law, one of the most famous theoretic
and ideology law journals
2.
CPC’s publication
§
Study times, the publisher is
Party School of Central Committee of C.P.C.
The Party School of the Central Committee of the Communist Party of China in
Beijing, also known as the Central Party School, is the highest institution to
train officials of the Communist Party of China. Every year, the school accepts
a great number of officials at the prefecture or provincial level to further
their studies on political theories. For more information:
http://www.china.org.cn/english/China/232270.htm
§
Probe, A magazine that under the
administrative of Party School for the Departments Directly under Chong qing
Committee of the CPC.
§
Yan huang chunqiu. A magazine that
support by old generals Xiao Ke and Zhang Aiping, a group Communist Party
elders. The magazine’s predecessor was the magazine
supported by Hu Qiaomu (previous Political Bureau of the Central Committee of
the CPC and secretary of Chairman Mao.)
3.
Other publication
§
Democracy & Societ, The
publisher is the Central Committee of the Jiu san (September, 3rd ) Society, 九三学社，
jiu san xue she, Jiu san Society is one of the
eight participatory parties in China. Members of Jiu san Society are
constituted by the leading scholars in different areas of China academy.
B.
List
of Scholars
1.
Zhou ye
zhong, Vice dean of Law School of the Wuhan University. Zhou is what might
be called an establishment legal scholar; in 2002, he was invited to lecture Hu
Jintao and the Politburo on constitutional law. He also served position of vice
chairman in China Constitution Law Society
2.
Zhu
Wei-jiu, Professor and Constitution scholar of CUPL (Chian University of
Poitical Science and Law) the only member of legal specialty who served
Counselors’ Office of the State Council
3.
Liu
zhigang. The professor of Fudan
university Law school, constitution scholar
4.
Shao
yanxiang. Writer, journalist and the editor of CNR (China National Radio,
CPC’s official media)
5.
Cao
shenbing. Council member of Anhui province Marxism Society, CPC history
society of Anhui province.
6.
Wang
jingui. the editor of People’s
Procuratorate semimonthly, a publication of the Supreme People’s
Procuratorate .
[i]
Wang jingui. (2005, Aug). Study on the Constitutionality Problems of
“Shuanggui”and Confession.
Legal Science,
08, 60
.
[ii] Shao
yanxiang. (2009, March). Shall we reform the Shuang gui?
Yan huang chun qiu, 03.
[iii]
Liu zhigang. (2005, November). Responses to Wang Jingui, The constitutionality
of Shuang gui.
Legal Science,11,
9-12.
[iv] Liu
heng. (2006. May). Discussion on the justification of Shuang gui on the reality
ground.
Journal of the Party School for
the Departments Directly under Shanxi Provincial Committee of the CPC. Retrieved
from:
www.cqvip.com.
[v] Wang
jingui. (2005, Aug). Study on the Constitutionality Problems of “Shuanggui”and
Confession.
Legal Science, 08, 60.
[vi] Shao
yanxiang. (2009, March). Shall we reform the Shuang gui
? Yan huang chun qiu, 03.
[vii] Shuang
gui, under the view of CPC’s transformation from Revolutionary Party to
Administration Party.
Democracy &
Society 06.
[ix]
Yang tao. (2006, Jun). Shuang gui, under the view of CPC’s transformation from
Revolutionary Party to Administration Party.
Democracy & Society 06.
[x] Wang
yixing. (2005, May) Researches on CPC’s internal accountability system.
Retrieved from
www.cqvip.com
[xi] Shuang
gui, under the view of CPC’s transformation from Revolutionary Party to
Administration Party.
Democracy &
Society 06.
[xii]
Sun zhen, 2010. The theoretical construction and analysis of Shuang gui.
Retrieved from www. cqvip.com.
[xiii]
Zhu lianghao, 2010, The major principle for the anti corruption system.
Party & government forum 03
[xiv] Zhou
yezhong. (2000, Aug,25). Three transformations that are urgently needed for
Anti-corruption.
Legal Daily, P.005.
[xv] Cao
shenbing. (2000, Feb). Discussion on the coordinate CPC internal regulations
and national law.
Probe, 02.
