Part I. Larry Catá Backer, Communist Party and State Discipline in China: Exploring Shuang gui 双规 and Shuang kai Part I, Law at the End of the Day, Aug. 2, 2011.
Part II. Larry Catá Backer, Communist Party and State Discipline in China Part II: Brief Introduction to Shuang Kai and Pix Inside Shuang gui Facility, Law at the End of the Day, Sept. 17, 2011.
In this Part III we look more carefully at the contours of the academic debate within China. My research assistant GAO Shan has provided an introduction to the contours of the scholarly debate about Shuang gui within China.
The issue of Shuan-gui raises a number of legal issues, some of which touch on the relationship of State, Party and Constitution. The context currently tends to be corruption, but the framework is Party discipline and the central leadership role of the Party. The scholarly debate is drawn from a number of official sources that can be divided roughly into two camps. The first includes articles in what are considered the most prestigious university journals and influential newspapers. The second includes the journals of the Party schools and Communist Party official publications and the journals of United Front parties. Many of these articles discuss the issue of the place of Shang ghui within the Chinese constitutional framework. A number focus on the effectiveness of the procedures. While most articles concede the efficiency of Shuang gui, there appears to be a split of opinion about the legitimacy of Shuang gui within the Chinese constitutional structure. A majority of scholars take a neutral stance. This is view grounded in a constitutional approach that is similar to the Western notion of legitimacy through acquiescence (a historical or tradition based argument); a variant suggests that Shuang gui is a special measure necessitated under the current realities of the Chinese political situation. These scholars look to the effectiveness of the process or its utility. Some suggest that Shuang gui is legitimate as extra constitutional, or that it is a temporary device that will be optimized with experience, or that is justified because of the importance of the fight against corruption. Some who hold the "special measure-special times" view suggest that Shuang gui will be improved or replaced to better conform with emerging understanding of the application of the rule of law in China. Views vary about the shape or structure of Shuang gui replacements.
The other two groups of scholars confront the constitutional issue directly. The first group argues that Shuang Gui violates the Chinese Constitution. The violation argument are grounded in a sense of the deficiencies of Shauang gui to follow or apply the procedural protections afforded through the Chinese Constitution. Others suggest that Shuang gui serves as a means to permit Party officials to avoid criminal liability under ordinary law.Others suggest that Shuang gui's essentially extra-judicial structure serves to weaken the legitimacy of the justice system. Another group of scholars disagree with this position and argue that Shuanbg gui is compatible with the Chinese constitution. These are grounded in notions that CPC discipline is itself treated as extra constitutional within the Chinese Constitutional system, that Shaung gui is compatible with the substantive values of the Constitution and thus incorporated and third, Shuang gui is a necessary and proper application of the leadership role of the Communist Party within the Constitutional system.
Summary of the scholars’ arguments around Shuang guiGAO ShanTable of contentSummary1. Argument from legal prospectivea. Negative view against Shuang gui under constitutionality issuei. Violation of the constitution article 33 and 37ii. Extrajudicial region which harmed the justice and political systemb. Positive view support Shuang gui under constitutionality issuei. Reasons why Shuang gui not violate constitutionii. Reasons why Shuang gui shall be an exception2. Argument from functional prospectivea. Negative opinion against Shuang gui under functional prospectivei. The transparency issue and discretional powerii. The Zeng’s corruption caseb. Positive opinion support Shuang gui under functional prospectivei. Reality needs for Shuang guiii. Efficiency needs for Shuang guiiii. CPC’s history and its power structure needs Shuang gui3. Opinions on optimize the measurement of Shuang guia. Limiting Shuang gui’s discretional powerb. Due process and other secondary measurementc. Improve the quality of investigation by set up coordinate cooperation mechanismd. Minimize the contradiction between Shuang gui’s legislation and state lawAppendixSummary: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 prospectivea. Negative view against Shuang gui under constitutionality issueGenerally, 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 37Theoretically 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 systemShuang 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 issueThere 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 constitutionIn 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 exceptionThird, 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 prospectivea. Negative opinion against Shuang guii. The transparency issue and discretional powerIn 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 caseThe 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 guiMost 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 guiFirst, 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 guiSome 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 guiAlthough 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 powerIn 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 measurementIn 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 mechanismIn 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 lawSome 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 background1. 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 journals2. 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 Scholars1. 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 Society2. 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 Council3. Liu zhigang. The professor of Fudan university Law school, constitution scholar4. 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.[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.[viii] Id[ix] Yang tao. (2006, Jun). Shuang gui, under the view of CPC’s transformation from Revolutionary Party to Administration Party. Democracy & Society 06.[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.[xvi] id